HIGH COURT OF LESOTHO
CONSTRUCTION LESOTHO 1st RESPONDENT
DEPUTY-SHERIFF (T.LERAISA) 2nd RESPONDENT
(LESOTHO) (PTY) LTD 3rd RESPONDENT
by the Honourable Mr. Justice T. Nomngcongo On the 25th February 2008
applicant prays for stay of execution and rescission of judgment that
he claims was entered in error against him personally
when in fact he
was not liable but rather the company Mashai Transport Company (PTY)
in his founding affidavit that on the 1st July 1999 Mashai Transport
Co. (Pty) LTD and Raubex Construction Lesotho (Pty)
LTD entered into
a Joint Venture ( commonly styled "pre-bidding Joint Venture
Agreement) for the construction and maintenance
of roads, the
employer being the Government of Lesotho. Paragraph 6 of the Joint
Venture Agreement provides as follows.
and principles of the Joint Venture Agreement:
6.3. The signing of a more detailed operational Joint Venture
Agreement which shall be concluded preferably prior to the date of
tendering and at least prior to signature of the contract with the
employer in the case contract award and which shall include,
principles contained herein
The following persons shall be authorized to represent and obligate
the Joint Venture:
MASHAI TRANSPORT CO. (PTY) LTD – T. MORUTHANE
RAUBEX CONSTRUCTION LESOTHO (PTY) LTD - G.M. RAUBENHEIMER.
1.2. DISPUTE RESOLUTION
Any dispute in connection with this agreement shall be finally
settled under the Rules and Provisions of the Arbitration Act N0.42
of 1965 of the Republic of South Africa.
Respondent admits that there was a pre-bidding Joint Venture
Agreement in the above terms but that the Joint Venture Agreement
itself was now between:-
"T. Moruthane of Mashai Transport Hire hereafter referred to as
"Mashai" of the first part and G.M. Raubenheimer
Construction (Pty) LTD (...) of the second part"
on to say in his answering affidavit that:
"The Joint Venture Agreement was not between Mashai Transport
Company (Pty) LTD and the First Respondent."
goes on to say:
"The Joint Venture Agreement also provides that it "over-rides
any previous agreements or arrangements concluded between
in regard to the works and contracts" From this it can be seen
that the applicant expressly agreed that earlier
agreements such as
the pre-bidding Joint Venture Agreement would be replaced by the
Joint Venture Agreement".
the 1st respondent concludes that the Joint Venture Agreement clearly
states that it is between the 1st respondent and
question is why should it be between the applicant T. Moruthane and
the 1st respondent and not between him and G.M. Raubenheimer.
reliance is sought on the Joint Venture Agreement document it clearly
states that the agreement is entered into between T. Moruthane
Mashai Transport Hire and G.M. Raubenheimer of Raubex Construction
(Pty) LTD. It is entered into on that argument, between two
individuals who come from
organizations but not representing them. There is certainly nothing
on the face of that document to indicate that the two
there represent the organizations from which they come. If T.
Moruthane in the Joint Venture Agreement is contracting
on his own
behalf then so too is G.M. Raubenheimer on his own behalf. None of
them claim to be acting or signing on behalf of their
view the matter was entirely between Moruthane and Raubenheimer. The
present first respondent had no locus standi at all.
another view that may be taken on the matter. The Joint Venture
Agreement may be seen in context and not given the literal
which the 1st respondent sought albeit unsuccessfully, to press for.
The contract should not be seen in isolation and regard
must be had
for its purpose. It was not a contract from the blue as it were. It
was preceded by - nay
by a Pre-Bidding Joint Venture Agreement. See VAN RENSBURG V TAUTE
1975 (1) SA 299 (A) at 303.
construction, in terms of clause 11 of the Pre-Bidding Joint Venture
Agreement T. Moruthane and G.M. Raubenheimer were empowered
obligate the Joint Venture. It seems to me that this is precisely
what they had in mind when they signed the Joint Venture Agreement.
Otherwise it would be absurd to believe that a construction company
would go into an agreement with an individual for the construction
and rehabilitation of roads where just previously they had been
involved in pre-bid negotiations with a company of which the
was member. It would even border on the suspicious if that
individual is obligated to assume 60% of the risk in the venture.
construction there had been an erroneous misjoinder of T. Moruthane.
construction therefore judgment was erroneously granted against T.
applicant has said that he did not attend to his affairs timeously
because he suffered a mental break-down. I am no medical
man and do
not know except from fable how it affects mental capacity and
function. More medical information would have assisted
the court in
this regard. It however seems from what the applicant says that he
was seriously incapacitated and I cannot just ignore
this See DEWET
AND ANOTHER V WESTERN BANK LTD 1979 2) S.A 1031 at 1042 H- A.
of that and the very serious nature of the defence that applicant
raises in the main case, that judgment was wrongly obtained
him when, and it is the view that I take the 1st respondent well knew
who was really liable in the matter, I exercise my
favour of the applicant.
is granted with costs.
Plaintiff : Mr Ntlhoki
Respondent : Webber Newdigate
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