In the matter between:
PITSO MASIU T/A VITAL
Plaintiff in this case has sued
the Defendant for a cancellation of their agreement which the parties
entered into during February
2005. Plaintiff further claims for the
refund of an amount of two hundred and seventy-four thousand and five
hundred maluti (M274,
500.00) which he had paid to the Defendant.
There is no dispute that the
parties entered into such an agreement during February 2005 for the
supply of a fabric for Lesotho
Prison Services uniforms. They had
had similar agreements earlier in 2004 regarding the similar
Both parties however differ on
what actually took place when the material was ordered and what
happened in between until the stage
when the goods were already in
According to the Plaintiff
because of their earlier dealings in 2004 they had identified the
fabric which was needed, the red and
green khaki materials. This was
not denied by the Defendant. The price was reduced from the normal
price as Plaintiff was given
Plaintiff had first paid Two
Hunderd Thousand (M200,000.00) as deposit, before delivery, Exh. A,
and the balance was paid
after delivery, Exh. C. This too was
not denied by the Defendant.
Plaintiff further told the Court
that the time for delivery provided by the tender he had won for the
supply of that material lapsed
and as such he was pressurized by his
client, Correctional Services. He in turn pressurized the Defendant
to deliver the goods.
Plaintiff showed that he had won
the tender in February but because Governments financial year ends
end of March he asked for
an extension to May end. This was accepted
and he communicated that to the Defendant.
Plaintiff kept on enquiring from
the Defendant about delivery of the goods, and Defendant ended up
giving the telephone number of
his supplier to the Plaintiff. The
supplier was Salem Investments in Joburg. He phoned them and they
faxed back to Plaintiff
what he called confirmation which indicated
that they were having problems transporting the material. That
letter was handed in
and marked exhibit B.
The material was eventually
delivered at the end of the very week of the faxing of the letter.
According to Plaintiff the arrangement
had been to deliver to
Plaintiffs clients once it was delivered as he said he had no
storage for the material that bulky. He
was called by the Defendant
and he went to Defendants office. They then proceeded together to
Plaintiffs clients where one
roll was opened. According to
Plaintiff they then realized that the material supplied was the wrong
stuff in terms of colour and
texture. The material delivered was
found to be of a lighter colour as compared to the one which
Defendant supplied in 2004.
It was at that stage that
Defendant suggested to have the material sent back for colouring but
that was not acceptable as Plaintiff
showed the process was going to
take long. Parties were agreed that the material be returned, not
for colouring but for getting
the correct material.
Plaintiff enquired from
Defendant after a week only to be told that they were still looking
for the material and that their search
might lead them placing an
order in China. Plaintiff said he paid the balance before offloading
the material as Defendant demanded
for that balance.
Because there was no delivery,
Plaintiff then showed that his client had cancelled the tender and
thus demanding the refund of the
money paid. He said he was told
that the material they had was different after he had paid a deposit
but said he omitted to mention
that in his evidence. He said after
he had been told the material on stock was different he asked them to
try somewhere else for
the correct material. He said he did not
check the material before going to his client because he trusted the
Defendant from their
previous dealings with him on the same material.
The Defendant on the other side
said it was true they had dealings with Plaintiff in 2004, for supply
of khaki material, green and
red for Correction Services. In 2005
when they had the second deal was only for khaki material as
Plaintiff bought the green material
he had on stock (Defendant).
Defendant said it was on a Friday when Plaintiff gave him the deposit
for the supply of that material
and proceeded to Joburg on Monday
to buy the material.
He said whilst still there he
phoned Plaintiff to inform him that the code he had supplied him with
earlier was not available, but
that they had the same quality,
texture but with a different shade. Defendant proposed to send by
DHL a sample of that material
to Plaintiff for his approval as the
material could not be returned once it was bought.
It was the Defendants story
that Plaintiff responded by showing that he had no time for that as
he was already late with the
order. He said in his evidence that he
considered the contract to have been entered into in February of
2005. The order was not
done in writing. Defendant then considered
that because he had been given a go ahead he bought the material that
Monday and came
back on Tuesday.
When Plaintiff saw Defendant
that Tuesday he enquired from him as to why he was in Maseru without
the material and was told the
truck was already loading as he left
Joburg. He confirmed the existence and contents of Exh. B.
The material arrived
on Thursday morning, the 20th.
According to the Defendant as he
had called Plaintiff to his office they opened one roll together to
check and said Plaintiff was
happy with the material. He then asked
Plaintiff to pay the balance before off-loading and that was done.
They both drove in
one car to Prisons Offices. It was only when
they got there that Plaintiffs clients complained that the colour
as they needed a darker colour.
It was at this stage that
Plaintiff then sought to involve Defendant but Defendant considered
their deal as a done deal. Plaintiff
only asked Defendant if colour
could be painted to a darker colour and Defendant after talking to
supplier in Joburg told him
that the colour could be changed by
dying. The supplier ended up by showing that it would be a long
process considering the quantity
of the material, 10,000 metres. The
three were agreed that the material be dyed.
Defendant went further to show
that the following week the supplier sent a sample of the dyed
material to Defendant and he took
that to Plaintiff who still
maintained that the colour was still light. Defendant left promising
to tell supplier to make it darker.
It was the following week that
Defendant got a call from Plaintiff telling him to stop the process
as Plaintiff has found another
supplier who was even cheaper. He
requested to be refunded his money but was told by Defendant that
that was not possible, and
was instead advised to sell the material
There developed hostility
between the two and communication stopped. Defendant denied ever
suggesting getting an order from China.
He said Plaintiff had
checked the material before effecting the last payment. According to
him there was no delay as he delivered
within a week.
Defendant further showed that
the material was still at the place where it had to be dyed. He had
been waiting for Plaintiff to
inform him when he was ready to get his
material, but that Plaintiff will first have to pay the expenses for
dying and for storage.
Defendant said he took it that
the contract started in May as Plaintiff had placed his order in May.
He had earlier on only bought
material that was already available
from the Defendant, green poplin. Plaintiff never gave him any
sample for the order of the
May, 2005, because as Defendant put it, he already knew the kind of
material that was needed from the previous order.
According to the Defendant the
order was only to be processed once a deposit was paid and the
balance to be paid before collection
of goods. Defendant knew where
the material was to be used. It was for Prisoners uniform.
Looking at exhibit A the
receipt for M20,000.00 I noticed that
it is dated 14th
May, 2005 and the Defendant said he left for Joburg on the 17th
May 2005 to buy the material. It was at that time that Plaintiff was
advised of the colour code. Delivery was on the 20th
May, 2005. This thus makes the Defendants story more probable
that he was going to process the order once the deposit was paid.
Though Defendant under cross
examination denied that Plaintiff ever approached him for a
quotation, but in Defendants evidence
in chief he had said that
Plaintiff came to him at his place of business and asked for a
quotation for the material.
Defendant further said when the
agreement was made for returning the material for dyeing no time
limit was set for bringing back
the material. That the dyeing was
going to be at Plaintiffs expense. When shown that there could be
no government tender without
time limits, Defendant said it all
depended on the agreement made.
The Defendant through Sky net
had been sent the sample of the dyed material which he passed over to
the Plaintiff who in turn still
showed that the material was still
bright. Plaintiff informed the Defendant to stop the process in
Though Defendant said that
Plaintiff threatened to kill him as a result of not being ready to
refund his money, this was never suggested
to Plaintiff when he was
cross examined. That he even approached Police for protection was
not put to Plaintiff in cross examination.
It was also not suggested
in cross examination that Plaintiff was to bear the expenses of
returning the material for dyeing.
Again though Defendant said he
came to know that Plaintiff delivered another material after that on
the same tender, he was quite
not sure that it was on the same tender
he only assumed. The Court can never work on assumptions.
As can be seen from the evidence
adduced, both parties gave evidence on their own behalf and each
called no further witnesses.
There has been no dispute that parties
had had dealings before for supply of similar materials. That even
for their dealings in
2005, the order was still for the supply of the
same khaki material.
Plaintiff did not dispute the
fact that Defendant did communicate to him that the material he had
found was different from the one
he used to supply. What he disputed
was the fact that he said he had no time to be sent a sample for him
to make a decision.
He said he responded by asking the Defendant to
look for the material he wanted somewhere else. Thus admitting that
he was made
aware that the material was different.
As Defendant rightly pointed
out, at the end of every civil case the Court is enjoined to make an
enquiry as to whether there has
been sufficient evidence upon which
it ought to give judgment in favour of Plaintiff, citing the case ofGascoyne v Paul &
Huner 1917 TPD 170.
The onus rests upon the Plaintiff to prove his case. This being a
civil claim the Court will consider which story is more probable
We have heard from the Plaintiff
himself in giving his evidence that he got the tender in February and
approached Defendant to place
an order and said in his own words, I
gave him a go ahead to get me the same material as the one he has
supplied me with in
the first tender. Plaintiff further said
because financial year was to end in March, he had to discuss with
his clients on
the question of time considering the quantity he had
to supply. He said he wanted the time to be extended beyond March
was accepted. This confirming that the order was placed in
February not May. He then communicated this to the Defendant that
the time to supply has been extended to May.
Plaintiff has also not denied
that he was informed of the colour of the material whilst Defendant
was still in Joburg. When
the material was delivered at
Defendants offices he called Plaintiff to come to his office.
According to the Defendant, he
called Plaintiff to inspect the
material and indeed he complied and was happy with the material.
But according to the Plaintiff
he was called to Defendants office but he did not inspect the
material but they drove together
with the Defendant to Prisons
offices. It was only then that they inspected the material and it
was Plaintiffs client who
said the material was too light in
The question would be which
story sounds to be the most probable? To get the answer we have to
take it from the stage when the
Defendant phoned to tell Plaintiff of
the material. If indeed Plaintiff knew, as he said he was informed,
that Defendant said
he had found another material different from the
one Plaintiff wanted, it would have only been wise and reasonable to
the material even before passing it over to his
Plaintiff only said he did not
inspect the material because he trusted the Defendant from their
previous dealings with him regarding
the same material. But because
there was a mention of a different material it was only reasonable to
have checked first.
Plaintiff said he paid the
balance even before satisfying himself that the material was of the
correct colour. But Defendant said
it was after he had seen the
material and was satisfied with it. The story of the Defendant
sounded to be the most probable.
The material was only rejected by
Plaintiffs clients who were not parties to the contract.
Plaintiff never told this Court
that when he was informed of the
problem of colour he ever approached his clients. He approached
clients when going to deliver
the material. He never involved his
clients because they were not parties to the contract.
On the evidence before this
Court, I find that the contract was concluded between the two parties
to the agreement. The repudiation
was by a third party. Each party
had performed his part of the deal. Once a contract is concluded and
discharged it cannot be
cancelled unless there has been some breach
or misrepresentation and that was never shown to have been the casein casu.
The question of whether or not
there was an undertaking to take the material back for dyeing came
after the contract had been concluded.
It is therefore more probable
than not that Plaintiff was satisfied with the material and only his
clients were not at a later stage.
But both Plaintiff and Defendant
had performed in terms of their agreement. Plaintiff placed the
order and when Defendant met
with problems of colour he informed
Plaintiff who gave him a go ahead and that was confirmed by Plaintiff
paying the balance.
As pointed out by the Defendant that what is to
be weighed in the balance of probabilities should not be the quantity
but the probabilities arising from the evidence and all
the circumstances of the case. Defendants story is the more
story than that of the Plaintiff.
Plaintiffs claim is thus
dismissed with costs.
For Plaintiff: Mr Shale
For Defendant: Mr Molete
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law