CIV/T/84/2003

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:-

TEBELLO
MAKHAKHE PLAINTIFF

AND

MONKIMAKOTOKO DEFENDANT

JUDGMENT

Delivered
by the Honourable Acting Judge Mr. G.N. Mofolo On the 17th March,
2008

The
plaintiff has approached this court claiming:-

1. Cancellation
   of the agreement/contract entered into by parties in 1997;

   
   

2. Payment
   of a sum ofM130,000.00 being fair market value of a bus A5575;

   
   

l

3. Interest
   at the rate of 18.5% per annum a temporae morae;

   
   

3. Costs
   of suit; and

   
   

3. Alternative
   relief.

   
   

The claim
is defended.

Pwl,
Tebello Makhakhe sworn has testified he is plaintiff of Maseru West
and defendant is Monki Makotoko of Tsifalimali, Leribe
and the court
has jurisdiction to entertain matter. The plaintiff has testified his
means of knowing defendant is that he sold
a vehicle to defendant and
prior to entering into contractual relationship with defendant he did
not know defendant in that his
means of knowing defendant was through
one Lebohang whom he had known for a number of years. The said
Lebohang had brought defendant
to him saying he wished to buy
plaintiffs vehicle, a minibus A5575. He says he told defendant his
vehicle was worth M 130,000.00
at the time and defendant suggested as
he did not have money he would give plaintiff a Nissan truck
registration C210.

2

Plaintiff
says he gave defendant documents for the bus the truck coining to him
without documents Lebohang Phohleli saying he was
to shortly meet
defendant. The truck had been delivered shortly after the agreement.
Plaintiff has testified despite several requests
for delivery of
documents these had not been delivered and plaintiff suspected the
vehicle to be stolen though he kept it at someone's
home as his home
was too small. Because papers were not delivered to him he was unable
to register the vehicle. He says he did
say defendant was to come to
fetch his vehicle and defendant said he would bring the documents. He
had returned to Lebohang Phohleli
to have defendant deliver documents
saying failing which he would sue defendant and no papers were
received and the reason he has
sued defendant for cancellation of the
agreement and payment of M130.00.00 being value of the bus and other
ancillary prayers.
He says he has no knowledge where his bus is and
he still has the truck which he has not used by reason of it being
unregistered.
He says he did check registration in Leribe and found
it was registered in Rankhethoa Matete's name.

3

Cross-examined
by Mr. Teele for the defendant the witness has testified it is
incorrect to say bus kept at Tvlakhotso's where the
defendant
collected it for the bus was fetched from his home and he disagrees
the bus was without an engine and gearbox. The witness
disagrees the
agreement was to buy the body without engine and gearbox. He
disagrees he demanded M70,000.00 for the bus. He says
the agreement
was in as much as the bus was registered in his name, the truck was
also to be registered in plaintiffs name in Lesotho.
He says he did
not see the truck or its registration papers; he says he did see the
truck before he delivered his bus at defendant's
home where he showed
it to him and he checked it. He says he was a businessman then and
did not know defendant. At defendant's
home he did not ask for
registration papers. Asked why he did not ask for papers he says he
trusted defendant as an elderly person.
The witness agrees he went to
Leribe, given papers and checked the vehicle against papers; he also
adds he gave defendant his papers
after removing the vehicle. The
witness says by not roadworthy, he means the papers had expired. The
witness

4

has
testified he does not know when the vehicle came to him. He says the
certificate of registration is still on the truck. Put
to him he knew
details of the registration certificate he denies. Put to him the bus
was sold to Russel Sebatana he says he heard
this. He disagrees he
signed papers and does not know in which name the bus is. He says he
does not know registration number A5555
and the amount of M130,000.00
he is claiming is in respect of his vehicle being purchase price of
the vehicle. He says he did say
the vehicle is valued at M130,000.00
and this comes from him and assessment by an expert would come later.
The expert had come
and assessed the vehicle. He denies the claim is
based on inaccuracies. He denies he used the truck. Put to him when
delivered
to him the truck was registered in the name of Liteboho
Rankhethoa he says he was given no papers and C210 not the vehicle's
registration
numbers. He says the vehicle came bearing the numbers
and he denies he was told to remove them. Put to him the vehicle not
stolen
he says he does not know. He says he decided to cancel the
contract he does not know when but now remembers it was in 2003. Put

to him from 1997-2003

5

his
conduct is consistent with having had no problem he denies. He says
truck in the same condition it was when he received it.

Pw2,
Lebohang Phohleli sworn has testified he lives at Maseru Hill'sview
and knows both the plaintiff and defendant before court.
He says he
has known defendant from 1990 by reason of their being businessmen.
He knew plaintiff from 1979 or 1980 having been
in business with his
father.

Defendant
had expressed the view he wished to buy plaintiff's bus and they
exchanged a bus for a truck. Plaintiff had released his
bus with
documents but when the truck came, it was said documents would
follow. He says he learned later from the plaintiff that
documents
had not arrived. Defendant had told him documents were with the man
from whom he purchased the truck being Liteboho Rankhethoa
and said
he would ask Liteboho to give plaintiff the documents. Plaintiff had
returned to him saying documents not delivered and
he had urged
defendant to release the documents. A long

6

time
passed and there were no documents. Plaintiff had returned to him and
he was not happy and he returned to the defendant wondering
why
documents were still missing. Documents were never delivered to
plaintiff. He saw the bus before it was taken to defendant.
It was
not moving when he saw it for it had been parked for a long time and
he did not know what the problem was. He says the documents
were not
released at once having been released after the bus was painted. The
bus was sold to Mr. Sebatana.

Cross-examined,
the witness has testified the last time he saw the bus was in custody
of the plaintiff just before 2000 when it
was being penal beaten and
painted by Moremoholo Penal Beaters and put in good condition by
plaintiff about 1997. He says he left
business in 2000 and saw the
vehicle before then. He could not quite remember whether he was
present when the truck was delivered
to plaintiff. He says after he
saw the vehicle it was taken to penal beaters and a few days after it
returned. He had seen the
truck at penal beaters and it was there for
a long time and saw it being

7

painted
and the while plaintiff was waiting for papers. He says when the
truck came to plaintiff, the paint was peeling for it was
an old
vehicle. He says he has come to court to say plaintiff was not given
registration documents and he had chased this omission
on behalf of
the plaintiff. He says he asked for documents several times for about
two (2) years. He says he could have done this
up to 1999 and does
not know whether plaintiff went to examine the vehicle and was then
given the documents. The witness has testified
plaintiff informed him
defendant sought his assistance to have the bus's ownership changed
in favour of Mr. Sebatana. He says when
one buys a vehicle one checks
it against registration papers and he would expert the plaintiff to
have done this. He says he does
not know if defendant gave plaintiff
registration papers in the name of Liteboho Rankhethoa. He says he
also agrees if plaintiff
repainted the truck he would ask for costs
thereof. He also agrees he has a feeling plaintiff is blaming him for
having negotiated
on his behalf with defendant.

8

There
being no re-examination, the plaintiff closes his case as the
defendant also closes his case.

This is a
very strange case. Plaintiff and defendant agreed verbally to
exchange vehicles and vehicles were in fact exchanged sometime
in
1997. About six (6) years later, the plaintiff has approached this
court asking for the cancellation of the contract and payment
of the
sum of M130,000.00, being value of his vehicle. Plaintiff does this
in circumstances in which defendant's vehicle delivered
to him in
1997 remains in plaintiff's possession and custody and from the
evidence of his own witness Pw2, it would appear plaintiff
cooperated
with defendant to have ownership of the vehicle changed into Mr.
Sebatana. If he allowed and facilitated ownership being
changed to
Sebatana on defendant's behalf, how can plaintiff claim a vehicle
defendant parted with lawfully? It has taken plaintiff
nearly six (6)
years and by his own evidence he allowed defendant to sell the bus to
one Sebatana. It is this bus he allowed to
be sold to Sebatana that
he is now claiming alleging, at the time of the exchange of vehicles
the bus was

9

worth
M130,000.00. It has taken plaintiff nearly six (6) years to cancel
the contract and I may say a contract is liable to be cancelled

where, although parties have agreed or are ad idem, it appears while
one party performs the other is guilty of non­performance.

If, as
plaintiff has claimed, defendant was guilty of not delivering
registration papers to plaintiff, it stands to reason that
defendant
would be guilty of non-performance. Unfortunately, this is not the
case in that in this respect plaintiff blows hot and
cold. In one
breath defendant has given him no registration papers at all and in
another defendant has although the papers when
delivered to him had
expired. If so, one expects that plaintiff would have returned to the
defendant to deliver fresh papers. Plaintiff
has not done this but
has been sending messages by Pw2 the intermediary that defendant
deliver registration papers which, according
to plaintiff, he was in
receipt of. Not only this, according to Pw2 plaintiffs witness,
plaintiff resprayed and repainted the truck
from defendant. How could
he do this unless he was satisfied

10

with the
truck's condition for if for any reason he was dissatisfied, he
should have returned the vehicle or demanded that the truck
be
returned to defendant and defendant return his bus instead of
allowing defendant to sell it and worse, allowing or permitting

change of ownership of the bus? By allowing change of ownership of
the bus, plaintiff divested himself irrevocably of ownership
of the
bus and he cannot reclaim it. Plaintiff can't have it both ways,
keeping defendant's truck and claiming a bus whose sale
he
sanctioned. Plaintiffs conduct is throughout consistent with having
been satisfied with the truck delivered to him.

I have
found plaintiff to be a liar in material respects and I have not
believed him. As for Pw2, genuine as he was, he was no more
than a
plaything in plaintiffs theatrics and his evidence has not advanced
plaintiffs case a whit.

11

In the
result, defendant is absolved from the instance with costs.

G.N.
MOFOLO

PUISNE
JUDGE

For
Plaintiff : Mr. Phafane

For
Defendant : Mr. Teele

12