IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/329/2008
In the matter between:
MOLEMO MOKHATHI PLAINTIFF
MORAI MPHOSI 1ST DEFENDANT
COIN SECURITY (PTY) LTD 2ND DEFENDANT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 25th August, 2011
Plaintiff Molemo Mokhathi has issued summons against Defendants Morai Mphosi and Coin Security (Pty) Ltd claiming:
1. Payment in the sum of M55,100.00 for repairs or replacement.
2. Interest thereon at the rate of 18.5% per annum.
3. Costs of suit and
4. Further and/or alternative relief.
In his declaration at paragraph 5, Plaintiff has claimed around September 2006 Plaintiff was driving his motor vehicle registration numbers AE 571 along Naleli Public Road when a minibus of registration numbers ABM 179 GP recklessly and negligently driven by 1st Defendant knocked Plaintiff’s car thereby causing unrepairable damage to Plaintiff’s car 1st Defendant being within the course and scope of the 2nd Defendant’s employment when the accident occurred.
The matter was defended and in their paragraph 3 of Defendants’ plea Defendants have vehemently denied contents therein saying what happened is that after the said accident occurred, 1st Defendant offered to repair Plaintiff’s motor vehicle and Plaintiff turned down the offer on the basis that the motor vehicle was beyond repair requesting 1st Defendant to buy him motor vehicle of the same value whereupon 1st Defendant agreed and proceeded to look for a replacement which he found worth M7,000.00 which Plaintiff rejected informing 1st Defendant he had found the motor vehicle which was worth M5,000.00 the price negotiated reduced to M3,500.00 the same vehicle being sold to the Plaintiff by one Khubelu Mahlo and ownership transferred to the Plaintiff by issuance of a blue card (Registration Book) better particulars of which are better known to the Plaintiff and to Defendants’ surprise Plaintiff now turns around saying he has not been restored to the position in which he was prior to the accident yet the choosing of motor vehicle as replacement was of his own volition.
Defendants have further alleged the said Khubelu Mahlo had warned Plaintiff that the motor vehicle had been lying idle for a long time and has some faults such as the starter and alternator which were damaged the Plaintiff further being warned that the paint was worn out and Plaintiff insisted on buying the vehicle “as it stands” (Voetstoods).
At all material times it does not appear Defendants denied liability Plaintiff having, on the contrary, pressed for a replacement the first of which was rejected by him and another accepted and payment effected by 1st Defendant and it would seem the Plaintiff went as far as acquiring ownership of the vehicle.
Plaintiff’s case is that 1st Defendant purchased the replacement vehicle but he was not expected to stop here he having been required, in addition, to install a new battery, new tyres, windscreen, engine overhaul, a set of rear light and head lights, a grill and bumper, a suspension to be replaced, venders to be replaced, bonnet to be replaced, re-sprayed and painted. I don’t know when Plaintiff made these demands for he has not mentioned them in his declaration to give 1st Defendant an opportunity to deny them though in course of purchasing Khubelu Mahlo’s vehicle witnesses to the deal appear to have been Plaintiff, 1st Defendant and Khubelu Mahlo who in his statement admitted by this court has said Plaintiff came to him looking for a car and he said it was alright save that he was to consult his son first much as the car had lost its value and he said he had already seen the car and wanted it as it is even when told the car had been stationary for a long time. Khubelu Mahlo says he told him the alternator, the starter, the back and the paint were worn out and he insisted he wanted it as it is to use it to fix his damaged car. Khubelu has gone further to say Plaintiff was saying it’s not him buying the car but Mr. Morai Mphosi who damaged his car. According to Khubelu, he asked 1st Defendant if he was satisfied with the car and he said he was and the car was inspected and the parties were satisfied with it. According to Khubelu, 1st Defendant having paid off the amount owing Plaintiff came to check the car asking for its bluecard and pulled the car away from his premises. According to Khubelu, he was surprised when 1st Defendant told him matter was already in court for Mr. Mokhathi accepted the car as it is.
As already remarked, remarks as to the deteriorated state of the car seem to have come from Khubelu and not the Plaintiff and if they were his should have formed part of his claim and founding papers.
I entirely agree with 1st Defendant’s submissions that:
(1) Plaintiff cannot lodge a delictual claim and then lead evidence of a breach of agreement which was not alleged in his declaration.
(2) The cause of action must be clearly set forth by averments of the nature, extent and grounds thereof and it must appear whether the action brought is in contract or in tort …
I am accordingly of the view Plaintiff has dismally failed to prove his damages and the claim is dismissed with costs.
For the Plaintiff : Adv. M. Tlapana
For the Defendants : Adv. M.V. Khesuoe
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