HIGH COURT OF LESOTHO
by the Honourable Mr. Justice J.L. Kheola on the 2nd day of February,
plaintiff in this case issued summons against the defendant claiming
M3,000-00 plus interest at the rate of 11% being payment
done by the plaintiff to the defendant's house at Lithoteng.
declaration as supplemented by further particulars the plaintiff
alleges that in November, 1987 he and defendant entered
into an oral
contract whereby he undertook to do the following work to defendant's
complete the walls
plaster the walls
do the roofing
fit door locks.
further alleges that he has completed the work and that he has never
received any payment. The work was carried out in accordance
terms of the agreement and the payment of M3,000-00 was to be done
upon completion of the building. Despite demand the
refusing or neglecting to pay the said sum of M3,000-00.
plea the defendant alleges that it is correct that a contract was
entered into by the parties as indicated by the plaintiff,
avers that plaintiff did not complete the work as agreed. He has also
stolen from the site some of the materials which
were to be used in
the building of the house. He further avers that the plaintiff took
an amount of M900-00 from the defendant
for the purpose of buying
some building materials but the money has never been brought back.
defendant avers that the agreement was that plaintiff would assess
the work on completion and give his price which would then
negotiated. The plantiff has left the work unfinished and has
disappeared with the money which was to buy additional building
1st September, 1989 the plaintiff gave oral evidence before this
Court. He testified that before he started work he inspected
house and found that the walls had been built to the window level;
there were no window-frames on the front wall; the concrete
floor was not good and had to be removed and done again; the walls
were not plastered he had to do the roofing; he agreed
the walls, to roof the house, to plaster the walls and to partition
the house. That meant that he had to finish the
plaintiff deposed that he finished all the work covered by their
agreement but did not do the facia boards, ceiling, plumbing
wiring. The amount of M3,000-00 was agreed upon after he had finished
the plastering and the roofing of the house. He built
a toilet and
also repaired a crack in the wall by making an underpeel. He also
bought bricks, glazestone, cement, glass, crushed
stones and said.
The amount of M3,000-00 covers the building materials he bought with
his own money as well as his labour.
plaintiff deposed that the defendant agreed to pay him for the work
he had done and that thereafter he must finish what had
done. It is now over one year since he finished but the defendant has
not paid him anything. He met him (defendant) about
five times but
the latter was in financial difficulties and said he was waiting for
certain Government cheques which were due to
him apparently for work
he had done for Government. After about three months after he 'had
completed the work the wife of the
came to him and asked him to give her the keys for the house because
she wanted to employ a person who would do the wiring.
She has never
returned the keys to him and the defendant and his family are
now in occupation of the house.
defendant did report the loss of building material from the site in
question but . he (plaintiff) asked him why he was claiming
materials after he had finished the work he was supposed to do to the
house. He did not tell him when he discovered the
theft nor the value
of the stolen material. Regarding the amount of M900-00 allegedly
given to him to buy additional building materials,
the plaintiff says
that the amount was in fact M700-00 and not M900-00 as alleged by the
plaintiff. He used the amount for the
purchase of additional building
materials. The plaintiff did the assessment after he had
completed the work. He denies that
it was agreed that someone from
outside would do the assessment.
plaintiff admits that initially they did not agree on the price but
the parties agreed on the sum of M3,000-00 after he had
work. It was for the work he had done and they still have to agree on
the price of the outstanding work.
defendant did not give any evidence in this Court and closed his case
without calling any witness.
Monaphathi, attorney for the plaintiff, submitted that the prima
facie case established by the plaintiff has not been controverted
it must now become conclusive. He further submitted that the
agreement between the parties has not been denied by the defendant.
The defendant admits that he has not paid the plaintiff any amount
for the work he has done nor has he made any offer for such
other hand Mr. Hlaoli, attorney for the defendant, submitted that the
agreement was that assessment was to be done after
the completion of
the whole work. He submitted that the plaintiff is in breach of
contract because he has not completed the work
according to the
agreement. He further submitted that the evidence given by the
plaintiff contradicts paragraph 4 of the declaration.
with Mr. Hlaoli that there seems to be a conflict between the
evidence of the plaintiff and paragraph 4 of his declaration.
cannot be allowed to give evidence which is in conflict with one's
declaration unless one has been granted leave to amend the
declaration to bring it in line with one's evidence. In the
declaration the plaintiff avers that 'the parties agreed that the
works were to be completed at the cost of M3,000-00 and that
Defendant would pay Plaintiff on completion of the said building
In his evidence in Court plaintiff admits that initially
there was no agreement on the price; there was to be an
of the work done and then an agreement on how much defendant was to
pay. He testified that after completing the work
agreed upon the
assessment was made. The parties agreed on payment of M3,000-00 for
the work done.
view the conflict referred to above is a minor one and does not in
any way change the cause of action. The amount claimed
changed, the only change I can see is as to the time when the
agreement was reached. In paragraph 3 of his pleas the defendant
admits that the terms of contract were as described in paragraph 3 of
the plaintiff's declaration. Paragraph 3 of the declaration
be read with the further particulars in which the plaintiff set out
in detail the work that he had to do in terms of the contract.
avers in the same paragraph that all the works have been done. He
also testified in Court that such works have been done.
paragraph 3 of his plea he merely avers that the plaintiff did not
complete the works as agreed. He does not state exactly what
plaintiff has not done. It ties necessary for him to have clearly
mentioned the things he has not done because the plaintiff
a full list the things which he was supposed to do in terms of the
contract. It seems to me that in terms of the contract
was not to do certain things such as ceiling, plumbing and electrical
wiring. These things do not appear in paragraph
3 of the declaration
as supplemented by further particulars. As I have indicated
above the defendant has admitted in paragraph
3 of his plea that
those were the terms of the contract.
defendant's wild allegation that the plaintiff has not finished the
works, unsupported by any evidence, cannot be accepted.
not to give evidence despite the fact that he admits that there was a
contract between him and the plaintiff. He has
not given evidence to
prove that the plaintiff did not complete the works agreed upon in
terms of the contract.
parte Minister of Justice: re R. v. Jacobson and Levy 1931 A.D. 466
at p. 478 Stratford, J.A. said:
"Prima facie evidence in its usual sense is used to mean prima
facie proof of an issue, the burden of proving which is upon
party giving that evidence. In the absence of further evidence from
the other side, the prima facie proof becomes conclusive
the party giving it discharges his onus".
36 of his book: South African Law of Evidence, 1st edition, Hoffmann
has this to say:
"If the evidence adduced by one party can reasonably support an
inference in his favour, and it lies exclusively within the
the other party to show what the true facts were, his failure to do
so may entitle the court to infer that the truth would
supported his case. On the other hand, if there is no reason to
expect a party to be able to throw light upon the facts,
can add nothing to the evidence by his opponent. In such a case there
is no difference between prima facie and sufficient
I am of
the view that if the defendant had given evidence he would have been
able to throw light on the things which the plaintiff
unfinished because according to him that is the first reason why he
refuses to pay the plaintiff.
second reason is that building materials were stolen. I do not see
any connection between the theft of the materials and the
the plaintiff. The defendant does not say what materials have: been
stolen by the plaintiff and why he has not reported
him to the police
for criminal prosecution. In any case if theft by the plaintiff had
been proved the defendant could claim a set-off
provided he proved
the value of the stolen material. He cannot arbitrarily refuse to pay
the plaintiff what is due to him by relying
on mere suspicion
that he stole his property.
regard to the alleged M900 which was given to him to buy additional
building material the plaintiff has testified that it was
M700 and that he bought the relevant material with it. His evidence
has not been controverted and I have no reason to disbelieve
reasons I have stated above I have come to the conclusion that the
prima facie proof established by the plaintiff now becomes
proof and that he has discharged his onus.
is granted for the plaintiff as prayed in the summons with costs.
Plaintiff - Mr. Monaphathi
Defendant - Mr. Hlaoli.
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