CIV/T/639/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

MATATA
LENONO Plaintiff

V

MAREKA
PAUL TLHAPI Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 2nd day of December,
1988

This is a
claim for damages for the destruction of a motor vehicle. The
defendant's attorneys, Messrs Nthethe & Co., filed a
plea in May
1987 but they withdrew as attorneys of record in March 1988, before
the hearing of this case. Consequently the hearing
fixed for March
1988 was adjourned so as to allow for service on the defendant
personally.

When the
case came up for hearing on 25 November 1988 the defendant was absent
although he had been served in August. Mr Monapathi
for the plaintiff
applied to proceed ex parte and the testimony of the plaintiff and
his witness was heard. When the plaintiff's
case had been closed the
defendant appeared in court at 11.45 a.m. saying that he had been
delayed by transport problems. I allowed
him to testify in his
defence and the plaintiff's case was put to him in cross-examination.

2

The
plaintiff (PW1) testified that he purchased a Toyota Coaster minibus
in 1983 from a firm called Canadian Motors in Belgravia,

Johannesburg, R.S.A. It was second-hand but in good condition. He was
to pay for it by instal­ments of R267 monthly, but in
fact, the
record of payments (exhibit 'B') shows that he usually paid more than
that each month. The first receipt was dated 3
October 1983 and the
last was 3 June 1986. According to the receipts the total sum paid
was R.10,728 and not R.17,076 as he claimed
in Court. If there was a
deposit paid or South African tax, he did not inform the Court of it.

The
vehicle was registered at Berea on 10 September 1983 and given
registration number D1873 (exhibit 'A'). Lesotho sales tax of
M.700
was paid on a recorded taxable value of M.14,000 (exhibit 'D'). The
vehicle was used daily as a taxi, driven by someone called
Tsoasane,
who did not testify. The conductor was Boy Rampo (PW2).

The
defendant is a self-employed mechanic who repairs motor- vehicles at
his garage at Khubetsoana, Maseru. In May 1985 the plaintiff
was away
in RSA when his vehicle was brought to the defendant's garage for
repairs. The top cylinder valves were to be reground
and a cylinder
gasket fitted. The defendant's assistants started work by washing the
top of the cylinder with petrol. Something
happened and the petrol
caught fire and the vehicle was completely burned and destroyed.

According
to the conductor Rampo (PW2), he went to the garage on the following
day and saw the burnt out wreck. He

3

asked the
defendant's assistants what had happened but they did not explain.
Later that day he met the defendant who told him that
the vehicle was
being cleaned in the evening and one of his men dropped the car key
into the engine. As it was dark he lit a match
to look for it and the
petrol caught fire and the vehicle burned.

According
to the defendant (DW1), nobody lit a match. He said that when the key
fell into the engine it struck an electrical wire
which was bare and
it caused a spark which started the fire. He said this was entirely
accidental. He denied telling Rampo that
a match had caused it. He
added that he was not there when it happened and that they used a
fire extinguisher but it did not put
out the fire.

The
plaintiff testified that his wife sent Rampo (PW2) to report to him
in the R.S.A. and the plaintiff then came to Maseru to see
the
defendant. They met and discussed the matter. As a consequence the
defendant wrote out an agreement (exhibit 'C') of which
the
translation reads as follows:

P. O. Box 2621

Maseru

7 Aug 1985

This is
to certify that the vehicle belonging to Mr Matata Lenono vehicle
registration number D1873 a Toyota Coaster was burnt in
my garage. I
undertake to get another vehicle in replacement of this vehicle. This
is our agreement with the owner of the vehicle.

(signed)
Mareka Thlapi Matata Lenono

Witness:
L. M. Makepe

4

At the
top of this document there is a date stamp of the Reserve Headman,
Maseru, dated 7 August 1985, with a signature inside it
which looks
like J.S. Tsubane.

The
plaintiff claimed that the defendant had agreed that it was his
garage which was to blame and he would buy a replacement vehicle
of
the same type for the plaintiff, but in fact he had not done so,
hence this suit was filed a year later in September 1986.

The
defendant agreed that he wrote the agreement (exhibit 'C') but that
in spite of the wording it meant that he would only try
to find a
similar vehicle for the plaintiff who would then buy it himself. In
other words he denied agreeing to buy it or pay for
it himself. He
said that he never agreed to do that. He also agreed that the fire
was caused by "someone who was careless"
but he could not
explain it and he considered it to be merely an accident for which he
denied liability.

I find
the defendant's version very difficult to believe. If he had merely
agreed to search for or to keep an eye open for a replacement
for the
plaintiff to purchase, there would surely be no need to write it out
as an agreement and ask the headman to endorse it.
Such a procedure
would much more likely imply a financial or property agreement of
some kind. In the agreement the defendant undertook
to get a
replacement, not just to find one, and I would take this to mean that
he had agreed to obtain a replacement at his own
expense. That seems
to me to be the obvious meaning of their agreement, otherwise it is
pointless.

5

The
original version of the incident which both the plaintiff and Rampo
said they were told by the defendant, that a match was dropped
on to
a petrol soaked engine seems to me to be a highly probable
explanation of the resultant fire. The defendant's version of
a key
connecting a bare wire to a metal part of the engine with a spark,
obviously could happen, but if it had, it is surprising
that the
plaintiff and Rampo were not told of it at the time. Both of these
witnesses appeared to me to be of well below average
intelligence and
so most unlikely to be able to think up such a story. Besides, they
also appeared to me to be truthful in Court.

The
defendant was much more intelligent and, because of his work
knowledgeable in such matters. But I found his testimony about
the
incident, as well as about the agreement, to be most unconvincing. I
think they were both afterthoughts.

On the
balance of probabilities I would accept the plaintiff's version of
what the defendant originally told both him and Rampo
of the cause of
the fire, i.e., by a match dropped carelessly by a mechanic. Although
no written agree-ment is necessary for the
purposes of deciding a
case of this sort, I find that it does in fact confirm that the
defendant had accepted liability and was
willing to pay for a
replacement vehicle for the plaintiff. In the circumstances I am
satisfied that the defendant is liable to
the plaintiff in this
respect.

The
plaintiff said that he used the vehicle as a taxi seven days a week
from September 1983 until May 1985, that is about 21 months.
It was a
second hand vehicle running between Maseru and TY and so it clearly
was undergoing heavy use and,

6

in that
time, its value would have depreciated considerably. Mr Monapathi
submitted that about 10% each year, and a total of 20%,
depreciation
would be about right. I would agree with that.

The
plaintiff put in a certificate of fitness for the vehicle in 1985
(exhbit 'E') to show that it was on the road at the time.
In the
summons the plaintiff asked for M17,076 as the value of the vehicle
both new and at the time of the incident nearly two
years later. In
the alternative he asked for M15,898.50 being the purchase price less
20% for depreciation.

As I have
already indicated the purchase price stated by the plaintiff was not
proved in Court to be that amount. I can only go
by the receipts put
in which show a total of M10,728 as having been paid, with Lesotho
Sales tax of M.700, making a total of M11,428.
Allowing for
depreciation of 20%, that would come to M.9142.

Accordingly,
judgment is entered in favour of the plaintiff in the sum of M9142
with interest at 11% from the date of filing the
summons (5 September
1986) and costs in the suit.

P. A. P.
J. ALLEN

JUDGE

2nd
December 1988

Mr.
Monapathi for plaintiff

Defendant
in person