CIV/T/319/80

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

STEPHEN
KEFUOE MAKHOHLO Plaintiff

v

RAZAK
DAMBHA Defendant

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. Justice J. Unterhalter on the 1st day of
December,1982

In this
action the Plaintiff claims specific performance by Defendant by
returning a certain bus LB 570 into the possession of Plaintiff
and
special damages being damages in the sum of M3,729.50. As will appear
hereafter the claim as specific performance is wrongly
phrased.

Briefly
Plaintiff's allegations are to the effect that the Defendant bought a
bus for him and delivered it to him, the arrangement
being that the
Plaintiff would pay the cost of the bus from the proceeds of his
operating it. He alleges further that he paid Plaintiff
M6.271.51 in
terms of the arrangement. Plaintiff alleges further that the bus was
involved in an accident in August 1979, that
by arrangement with
Defendant it was sent to L.T. Motors, Ficksburg for repairs, that
when these were completed the bus was not
restored to the possession
of the Plaintiff, who at the date of the declaration did not know its
present whereabouts.

In his
original plea the Defendant in effect denied knowledge of ell the
relevant contents of the Plaintiff's declaration save the
names and
the addresses of the parties Thereafter the plea was amended, its
effect being that the Defendant purchased the bus for
himself and not
for the Plaintiff. The Defendant admits that the bus was repaired

2

and
states that he sold the bus as it was his property and denies that he
was under any obligation to place the bus in the possession
of the
Plaintiff.

As an
alternative to the relevant paragraphs of the plea Defendant stated
the following :

"In the event of the Honourable Court finding, and not
otherwise, that the Plaintiff and the Defendant entered into an
agreement
as alleged by the Plaintiff, and which is still denied by
Defendant, the Defendant pleads alternatively that he has a
counterclaim
as set out hereunder and annexed hereto which
counterclaim exceeds the amount of the Plaintiff's claim.

WHEREFORE THE DEFENDANT prays that judgment on Plaintiff's claim
against him be stayed until the final adjudication of his
counterclaim
against Plaintiff end that Plaintiff's claim thereafter
be dismissed with costs and that Plaintiff's prayer for costs also be
dismissed
with costs."

The
counterclaim then follows, and therein it is alleged among other
things that the Plaintiff and the Defendant entered into a
verbal
contract in terms of which the Defendant purchased a certain bus LB
570 on behalf of and for the Plaintiff. It is also alleged
that the
Plaintiff in respect of the price paid only the amount of M6,271.51.
Generally the effect of the counter-claim is to state
that in terms
of the agreement between the parties the Defendant expended a sum of
M27,170 in respect of the bus, insurance charges,
operating costs,
repair charges and salaries, that the Plaintiff paid the amount of
M6,271 51, end that as Plaintiff failed to
make regular payments in
terms of the agreement the Defendant was entitled to dispose of the
bus, which he did for the sum of M8,000,
and that there is therefore
a balance owing to the Defendant of M12,898.49.

The
Plaintiff gave evidence and said that he was employed by the
Defendant as a truck driver, that he learned that one Rasool Abram

was selling Ibus, that he the Plaintiff wished to purchase it and
that as he did not have the money to pay for it he applied to
his
employer the Defendant for the funds. The Defendant required to speak
with Mr. Abram, they met end Defendant

3

agreed to
purchase the bus for the Plaintiff Plaintiff says that the documents
in regard to the bus were handed to him, that he
arranged with the
Defendant to pay for the bus from the takings of the bus which the
Plaintiff was to operate, that he did operate
thus and that he paid
M6,271 51 on account of the bus.

The
Plaintiff testifies to the bus having been involved in an accident
and arrangements for its repair being made by the Defendant,
and that
the bus was not returned to him.

In
cross-examination he stated that the Defendant was buying the bus for
him for the sum of M9,000 and it was put to him that this
was
improbable because in terms of the deed of sale between the Defendant
and the seller, Rasool Abram, the Defendant was to pay
M3,200 plus
the outstanding balance that the seller owed to the Trust Bank, this
being M9,200. The Plaintiff "was not clear
in his replies in
regard to the price but he did say that Rasool Abram had demanded
cash in an amount of M3,200 and had stated
that he also owed Trust
Bank some money. He said that in the end he would have had to pay
M9,200 from the weekly takings to the
Defendant

It was
also put to the Plaintiff that the Defendant was insuring the bus and
paying the insurance premiums. The Plaintiff replied
that he did not
know this.

It was
put to the Plaintiff that the arrangement between him and the
Defendant was that he the Plaintiff should run the bus for
the
Defendant, but the Plaintiff denied this. The Plaintiff said that he
engaged the driver for the bus and he paid that driver
from the
proceeds of the salary that he earned as driver working for the
Defendant.

The
Plaintiff also said that although efforts were made by Rasool Abram
and himself to obtain the assistance of the Defendant in
having the
vehicle registered in the name of the Plaintiff this could not come
about because the Defendant constantly sent the
Plaintiff out on his
duties as a truck driver. The Plaintiff denied that the

4

Defendant
paid him a weekly commission from the takings from the bus.

Mr Rasool
Abram gave evidence for the Plaintiff. He confirmed that the
Plaintiff made enquiries of him regarding the purchase of
the bus,
that it was for sale, that he required the purchaser to pay him
M3,200, and that the person who bought the bus would pay
the balance
that he owed to the Trust Bank. Mr Abram said that the Plaintiff
informed him that his employer had promised to buy
the vehicle for
him, that he, Mr. Abram, went to Defendant and informed him of the
price namely, M3,200 to be paid to him and the
balance to the Trust
Bank, that the Defendant stated that he wanted to buy the bus for the
Plaintiff and he entered into the written
agreement in terms of which
he sold the bus to the Defendant. He also said that he wanted to
effect the transfer of that bus to
the Plaintiff but the Defendant
refused saying that the law did not allow this. He also said that
when he spoke to the Defendant
about arranging the transfer the
Defendant was always saying that the Plaintiff was busy. He said that
the transfer papers were
never signed

The
Defendant closed his case and Defendant's counsel applied for
absolution from the instance and this was refused for reasons
that I
gave in a judgment. The Defendant then gave evidence and stated that
Mr. Abram came to him and informed him that he, Mr
Abram, was selling
his bus in regard to which details of the purchase price were given
by the seller. The Defendant sent Mr. Abram
to the Defendant's
attorney to sign a written agreement of sale and paid M12,220 of
which M 9,200 was paid to the Trust Bank

The
Defendant said that he did not register the vehicle in his name as he
did not know the business of running a bus and wanted
to see whether
it would be a payable proposition He insured the vehicle and paid
premiums. He confirmed that the vehicle was involved
in an accident
and repaired by L.T. Motors in Ficks-burg after which he sold it for
the sum of M8,000 He denied that he purchased
the vehicle for the
Plaintiff. He also denied that he sold it to the Plaintiff for
M9,200,

5

saying he
would not have sold it at a lesser price than he paid for it. He
denied that the Plaintiff operated the bus and said that
after
running expenses he received an amount under M4,000 from the proceeds
of the operation of the bus. He said that he had nothing
to do with
the management of the bus

In
cross-examination he said that the bus was operated under the name of
the seller, that is Rasool Abram. Although there was no
agreement to
operate under the seller's name, he said that he did so and without
the consent of the seller He gave as his reason
that he was running
the bus on a trial basis. He denied that he instructed Mr Abram to
deliver the documents in connection with
the vehicle to the
Plaintiff. He said that Mr. Abram was not introduced to him but came
on his own and denied in effect that Mr.
Abram had come to him
because of the Plaintiff's interest in the bus

It is to
be noted that this aspect was not put to Mr Abram when he was
cross-examined.

He said
that when the Plaintiff left his employ they were still on good terms
and this also applied to his relationship with Mr
Rasool Abram.

He said
that Plaintiff was paid by him the sum of M40 a week for the
management of the bus He denied that the Plaintiff gave him
the sum
of M6.271.51. It was put to the Defendant in cross-examination that
the Plaintiff had said that he, the Plaintiff, had
hired a driver for
the bus and that the Plaintiff had not been challenged in this
regard. He said the Plaintiff knew that he, the
Defendant, was going
to pay the driver.

In
re-examination he said that he had traded in the bus for M8,000 when
he purchased a truck from the Leyland Company.

The Court
then questioned the Defendant in regard to the contents of the
counterclaim. It was pointed out to the Defendant that
the
counterclaim stated that the Plaintiff owed the Defendant money as
the price of the

6

bus end
that the counterclaim also stated that Plaintiff had paid the amount
of M6,271 51. He was asked if he had given his attorneys
instructions
in regard to this, and his reply was that he had not and that he had
given the summons to his attorneys when he received
it. He was then
asked to explain how they came to draw the papers if he did not give
them the instructions, and he said that he
could not understand how
that had happened. He was asked to explain how the amount of
M6,271.51 happened to be the same amount
as the Plaintiff had stated
that he had paid the Defendant, and his reply was "I am not too
certain, My Lord," He said
that he thought that his attorney
could give an explanation and that his attorney was available to give
the explanation.

The Court
asked if he had failed to register the vehicle in a name other than
that of the seller because he wanted to have some
kind of security as
far as the Plaintiff was concerned and he said that that was not the
case. He said that the Plaintiff was employed
to take care of the
monies that were collected from the bus, and when asked why the
driver of the bus could not account for those
monies by paying them
into his office instead of arranging for this to be done by
Plaintiff, he replied that it was because it
was a separate business
He said he had told his advocate that the bus was to be operated
under the seller's name and that Mr Abram
was not introduced to the
Defendant but had come to him directly.

He
admitted that he wanted the authorities to continue under the
impression that the road transportation licence was still in the
name
of Abram the seller and when asked whether he was aware that this
would be deceiving the authorities he replied: "I am
not sure "
After the Defendant had closed his case the Court suggested that the
Plaintiff be recalled whereupon Mr Kolisang
for the Plaintiff applied
for his recall

The Court
informed the Plaintiff that in terms of s.168 of the Road Traffic and
Transport Order No. 15 of 1970 a person who carried
on motor carrier

7

transportation
is guilty of an offence unless he is the holder of a certificate
issued to him under the Order He was warned that
he was not obliged
to answer questions in relation to this matter and said that he did
not have a licence but had wished to apply
for one but was obstructed
by the Defendant. He gave no satisfactory explanation as to why he
did not enlist the services of a
lawyer to obtain the transportation
certificate for him.

The Court
informed the Defendant's counsel that he should consider the
advisability of calling the Defendant's attorney to give
an
explanation as to how it came about that the matters alleged in the
counterclaim were stated therein. Counsel requested an adjournment

which was granted but when the Court re-assembled counsel stated that
he would not call the attorney as the attorney had merely
signed the
pleading which had been drawn by an advocate in Johannesburg who had
held the consultation with the Defendant. Counsel
was then asked if
he desired to call the advocate to testify and counsel declined
stating that there were difficulties in regard
to so doing.

Although
Plaintiff's claim is for specific perfor­mance by Defendant for
the return of the vehicle,in effect, from the evidence,it
is clear
that Plaintiff is vindicating the vehicle on the basis that it was
sold to him by the Defendant and delivered to him on
credit terms. In
Laing v. South African Milling Company Limited, 1921 A.D. 387 INNES,
CJ. said at p 394 :

"Now, the rule of the Civil Law was clear. The sale and the
delivery of goods did not operate to transfer the dominium unless
the
price was paid, security found or credit given That principle was
adopted in Holland and has been recognised and enforced by
our South
African Courts."

Thus, if
it is found that Plaintiff's version of what occurred is correct,
then ownership in the vehicle passed to the Plaintiff
and he is then
entitled to claim its delivery from the Defendant who took it from
him when the repairs were to be effected. If
the vehicle is no longer
available then the Plaintiff is entitled to its

8

value as
at the date of the trial Mlombo v Fourie, 1964(3) S.A. 350 T.P.D. at
357(H).

It is
correct, as counsel for the Defendant submitted, that there are
improbabilities in the version as given by the Plaintiff.
It is
unlikely that the price arranged by the parties according to the
Plaintiff was the sum of M9,200 when the Defendant paid
a total of
M12,200 to the seller and the Trust Bank And that the Defendant
insured the vehicle,again points to the probability
that he did so
because the ownership of the vehicle vested in him. As against this,
however, there is the probability that the
Plaintiff as a truck
driver was ignorant of the implications in regard to the payment to
the Trust Bank and was confused as to
whether the price was M3,200 or
M9.200 There are also improbabilities in the Defendant's version that
the Plaintiff was merely
to manage the bus. It seems hardly likely
that the Defendant required the Plaintiff to collect the monies and
pay them in when
the driver of the bus could quite easily have
brought then directly to the Defendant's office and paid them in to a
member of Defendant's
staff who could issue an appropriate receipt
for what was paid in Although the Defendant denied that he continued
to have the vehicle
remain registered in the name of the seller as a
form of security for the Defendant, it is conceivable that this was a
means of
protecting the Defendant by insuring that there was no
conclusive evidence that the vehicle belonged to the Plaintiff
because of
the regis­tration in Plaintiff's name. His explanation
that he continued to use the seller's name without the seller's
permission
is inadequate when he states that this was done because he
was engaged in ascertaining whether he could operate the bus as a
profitable
enterprise

What
tilts the balance against the Defendant, apart from the evidence of
Rasool Abram, is what appears in the counterclaim, namely
the
allegation in paragraph 3 thereof that the Defendant purchased the
bus on behalf of the Plaintiff and the allegation in paragraph
8
thereof that the Plaintiff paid the amount of M6,271,51, being the
same amount as that alleged by the Plaintiff.

9

Mr, Botha
on behalf of the Defendant has referred to Seedat v Tucker's Shoe
Company, 1952(3) S.A. 513 T.P.D. At page 516(H) this
is said :

"It is not, in my opinion, proper to draw conclusions adverse to
the credibility of a party merely because there is a discre­pancy

between his evidence and the pleadings which are formulated, not by
the party, but by his legal adviser. If it is established that
the
party made statements of facts to his legal adviser or anyone else in
conflict with his trial evidence, this would be a different
matter "

This case
was followed in Star Motors v. Swart, 1968(3) S.A. 60 T.P.D. where a
witness was not asked if he was the source of information
that had
found its way into the pleading. It will be remembered that in the
present matter a full opportunity was given to the
Defendant to call
his legal advisers to offer an explanation as to how the version
stated in the counterclaim came to be there.
Ordinarily an inference
would be drawn that the practitioner would not plead in a particular
manner unless he had received instructions
from the client so to do.
It may be that there is an explanation, but if the opportunity to
give that explanation is not accepted
then in my view this
strengthens the inference that allegations were made because the
client had instructed the attorney or his
counsel to that effect.
Kiloverter Sales (Pty) Ltd. v Mackenzie's Garage (Pty) Ltd. 1975(1)
S.A. 223 N.P.D. at D-E.

I would
draw attention to what was said many years ago in Greet Australian
Gold Mining Company v. Martin, (1877) 5 Ch. D 1 per JAMES
L.J. at 10
He said that Counsel's signature on a pleading is a matter to which
the Court was in the habit of paying the greatest
possible respect It
is to that extent a voucher that the case was not a mere fiction In
this matter plea and counter-claim are
signed at the end by the
attorney for the Defendant and counsel informed me that the attorney
is Mr Keeton. I am entitled to assume
in terms of the case that I
have just referred to that the attorney as a responsible member of
his profession vouches that

10

the
allegations are not a mere fiction, in the sense not that they are
necessarily true but that he had received instructions from
his
client to plead accordingly.

Mr. Botha
has further urged upon me that as the counterclaim is conditional the
Court should disregard it because the counterclaim
was not proceeded
with I cannot accept this submission. It is common practice that when
a pleading is amended it is perfectly proper
for counsel to
cross-examine a witness as to how the amendment came about, in order
to test credibility and in order to assess
probabilities. As a fact
the present counterclaim was drawn, and filed in Court. Relevant
questions arise from its contents end
such questions may be put and
inferences drawn from the answers given. The inference that I draw is
that the Defendant did make
certain statements to his legal
advisers,the effect of which is to confirm in essence the version of
the Plaintiff that the Defendant
purchased a vehicle for Plaintiff,
delivered it to him, gave him credit and received on account of the
price the sum of M6,271.51.
This being so I hold that the Plaintiff
was the owner of the vehicle and that he was entitled to vindicate
it.

Mr Botha
has submitted that there was inadequate proof as to the value of the
vehicle In Pioneer Motors (Pty) Ltd v. Mokake, a judgment
in the
Lesotho Court of Appeal (2/1981), it was held, following a series of
South African decisions, that the difficulty of quantifying
the sum
due is no reason for the Court not to endeavour as best it can to
determine an amount on the evidence available to it That
case was
also concerned with the claim by an owner of a vehicle which had been
disposed of and in regard to which the Plaintiff
claimed its value.

The
Plaintiff did not call evidence in regard to the value, the reason
being that he did not know where the vehicle was and thus
could not
engage the services of a valuer to examine it It was submitted by Mr
Botha that evidence could have been led as to the
value of a similar
type of vehicle. In my view, however,

11

there is
evidence before the Court which can guide the Court in determining
the value. That evidence is the evidence of the Defendant
that he
traded in the bus for the sum of M8,000. In such circumstances that
value is in all probability close enough to the value
that it bore at
the time that it was traded in. It is true that that time is earlier
than the time of the trial and the vehicle
may have depreciated in
value. As against that, however, it is notorious that prices of motor
vehicles, because of the inflation,
have risen considerably in the
past few years. It would in my view be appropriate to balance any
depreciation that may have occurred
against any appreciation in value
because of the current inflation. That the Court in certain
circumstances can take judicial notice
of notorious factors appears
from the case of Paola v. Hughes (Pty) Ltd. and Another, 1956(2) S.A.
587 N.P.D. at 596(B) There the
Court took notice of the fact that
chandeliers do not depreciate significantly.

I hold,
therefore, that the Plaintiff has established his claim to the value
of the vehicle in the sum of M8,000.

Plaintiff
has claimed special damages being the loss of earnings in the sum of
M3,729.50. Presumably he makes this claim because,
having been
deprived of the use of the bus, he has thereby lost the opportunity
of gaining the income that would have arisen from
the continued use
of the bus. There was inadequate evidence to support this claim but
in any event it cannot be made for the reason
that follows.

On
Plaintiff's version he was operating the bus without the motor
carrier transportation certificate that was required to be issued
to
him in terms of the Road Traffic and Transport Order No. 15 of 1970.
He was therefore operating unlawfully. In Dhlamini v. Protea

Assurance Company Ltd. 1974(4) S.A. 906 A.D. it was held that where a
hawker claimed for loss of income because of injuries received
in a
motor car accident she was not entitled to such damages because the
income

12

had been
derived from a hawker's business in regard to which she had no
licence and where trading as a hawker without a licence
was a
criminal offence. It was held that there were considerations of
public interest that made it important to licence a hawker
and that
compen­sation for lost income of such a nature would be against
public policy

In the
present matter it is in my view likewise a matter of public interest
that vehicles should not travel on the roads in Lesotho,
where they
are operated for the conveyance of members of the public, unless the
proper road transportation certificate has been
issued. This is for
the protection of the public; and it is in my view against public
policy to give compensation for the lost
income claimed in the
circumstances of the present case. For this reason Plaintiff's claim
for M3,729.50 is dismissed.

The
judgment of the Court is that the Defendant

is
ordered to pay the Plaintiff the sum of M8,000.

J.
UNTERHALTER

ACTING
JUDGE.

For the
Plaintiff : Mr. G.M. Kolisang

For the
Defendant : Mr A.D. Botha.