In the matter between:
and
PITSO MASIU T/A VITAL FABRICS Defendant
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 material.
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 Maseru.
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 a discount.
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 17th 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 was light 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 himself.
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 14th 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 June.
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 of Gascoyne 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 than the other.
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 and this 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 colour.
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 have inspected the material even before passing it over to his client.
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 case in 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 of evidence but the probabilities arising from the evidence and all the circumstances of the case. Defendants story is the more probable story than that of the Plaintiff.
Plaintiffs claim is thus dismissed with costs.
A.M. HLAJOANE
JUDGE
For Plaintiff: Mr Shale
For Defendant: Mr Molete
