C. of A.
(CIV) NO. 1 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

STEPHEN
K. MAKHOHLO Appellant

v.

RAZAK
DAMBA Respondent

HELD AT
MASERU

Coram:
MAISELS, P.

SCHUTZ, J.A.

VAN WINSEN, J.A.

JUDGMENT

VAN
WINSEN, J.A.

This is
an appeal against a judgment of Unterhalter A.J. in the High Court in
which he awarded a sum of M8000 damages with costs
against appellant
in favour of respondent. For convenience the parties are referred to
as in the Court a quo.

In that
Court plaintiff (respondent on appeal) had sought an order for
specific performance against defendant (appellant on appeal)
for the
return of a bus alleged by plaintiff to be in the possession of
defendant which had, so plaintiff claimed, been bought
for him,
plaintiff, by defendant from a certain Rasool Abraham. In addition,
plaintiff claimed special damages in a sum of R3 729,50
representing
loss of earnings in respect of the

2

operation
of the bus in question. An alternative claim was made for damages in
the sums of R9 200,00 (the value of the bus) plus
R3 729,50 (loss of
earnings) suffered by reason of defendant's failure to deliver the
bus to plaintiff.

Defendant
conceded in his plea that he had bought the bus from Abraham but
pleaded that he had done so for himself and not for plaintiff
and
that he had subsequently sold it as he was entitled as owner of the
bus to do. He pleaded in the alternative that, were the
Court to find
that he had bought the bus for plaintiff - which he again denied - he
had a counterclaim against plaintiff which
exceeded in value the
amount of plaintiff's claim. During the trial defendant's counsel
stated that his client was not pursuing
the counterclaim but that he
did not abandon it.

The Court
a quo was thus, in the first instance, seized with the enquiry as to
whether plaintiff had established that the bus had
been bought on his
behalf by defendant. Unterhalter A.J. found that plaintiff had
discharged this onus. The evidence disclosed
that the bus had been
sold and that defendant could accordingly not deliver the bus to
plaintiff. The Court, therefore, considered
plaintiff's alternative
claim for damages and held plaintiff to be entitled to damages in the
sum of M8000 and costs as detailed
in its order of 3rd December 1982,

An appeal
was lodged against this judgment, substantially on the basis that
plaintiff had failed to discharge the onus of proving
that defendant
had bought the bus on his behalf and, in any event, that plaintiff
had

3

failed to
prove his damages.

The main
thrust of the argument by Mr. Botha on behalf of defendant was that,
regard being had to all the evidence adduced in the
trial Court, the
presiding Judge had erred in reaching the conclusion that plaintiff
had discharged the onus of proving that the
bus had been bought by
defendant from Abraham for himself, plaintiff. In any event Mr. Botha
contended that plaintiff had failed
to prove the quantum of the
damages claimed by him.

The
evidence on the question as to the party for whom the bus was bought
comes from plaintiff, defendant and Rasool Abraham.

This
evidence may be briefly summarised as follows.

Plaintiff
testified that in 1978 he got to hear that Abraham was proposing to
sell a bus belonging to him. He approached the latter
who expressed a
willingness to sell the bus to the witness for R3020 cash. Abraham
was, however, not prepared to consider a sale
whereby he would be
paid for the bus in monthly instalments. Plaintiff informed Abraham
that he would endeavour to borrow the money
for the purchase price
from his employer, defendant. He approached the latter, who told the
witness to have Abraham come to see
him to verify what Abraham wanted
for the bus. After having seen Abraham, defendant, so plaintiff
testifies, agreed to buy the
bus for him, plaintiff.

Abraham
confirms that plaintiff approached him in the matter of the purchase
of the bus. He told plaintiff that he was still paying
off the Trust
Bank for money lent by the bank to enable him to buy the bus and that
if plaintiff

4

could get
someone to help him to pay a cash amount of R3 200, not R3 020, and
take over his, Abraham's, liability to the Trust Bank,
he would be
prepared to sell the bus. Later plaintiff asked him to go and see
defendant as the latter, so plaintiff had told him,
had promised to
buy the bus for him, plaintiff. This witness went to see defendant
who told him he, defendant, "wanted to
buy the bus for Stephen",
viz. plaintiff. The witness subsequently entered into a written
agreement of purchase and sale (Exhibit
C) in terms of which he sold
the bus to defendant for R3 200, defendant to take over Abraham's
liability in respect to the bus
to Trust Bank.' The amount of this
latter liability is not stated in the agreement nor is any mention
made in the agreement that
the bus was being bought for plaintiff.

Abraham
testifies that he took the licence and the "Blue Card", the
Registration Card in respect of the bus, to defendant
who instructed
him to hand over these documents' to plaintiff. Abraham testified
that he had intended to effect transfer of the
bus to plaintiff but
defendant refused to agree to this saying, somewhat
inconse-quantially it would seem, that,

"the law does not allow that, because I personally, the
defendant, am not buying the bus, but the bus is being bought
for.....the
plaintiff".

The bus
was in fact not registered either in the name of plaintiff or
defendant and the former complained in evidence that defendant
had
frustrated his attempts to effect transfer of the bus into his,
plaintiff's, name.

To return
to the evidence of plaintiff, he

5

testified
that after the bus had been bought by defendant Abraham handed over
to him, plaintiff, the "necessary documents"
relative to
the bus. He goes on to recount the arrangements made between himself
and defendant relative to its operation. He states
that he arranged
with defendant to hand over to defendant in payment for the bus the
weekly takings made on ths bus. He did so
as from the 6th of February
1979 up to August 1979 when the bus was damaged. At the latter point
he had paid in all a sum of R6
271,51 to defendant. The damaged bus
was then taken to L.T.Motors at Ficksburg by defendant for repair.
After it was repaired plaintiff
testifies that he never regained
possession of the bus, it being thereafter held by defendant.
Plaintiff states further that it
was he who employed the. driver of
the bus, paid him and organized the operation of the bus. He claims
that all the expenses for
fuel were for his account.

Under
cross-examination plaintiff stated that he had wished to reduce his
agreement with defendant to writing but the latter refused
to do so
saying that "he trusted me". The witness admitted that no
arrangement had been made between him and defendant
about the
re-imbursement of defendant by him of monies paid by the latter by
way of premiums for the insurance of the bus, which
insurance had
been effected by defendant.

As to the
amount which the witness paid to defendant it was put to him in
cross-examination that he had not paid to defendant more
than
"something in the region of R4 000". This he denied. He
also denied that he had been paid

6

"commission"
from the bus takings by defendant. In further explanation of the
payments made by him to the driver of the
bus the witness stated that
he used for this purpose the salary he received from defendant for
driving a truck. When asked why
he did not pay the driver out of the
takings he said

"I did not do so because I was very keen to complete the money
owing to the defendant. I wanted to complete it sooner."

In regard
to the cost of repairs to the. bus plaintiff testified that he and
defendant had agreed that after the bus was repaired
it would be
decided how much he would have to pay for the repairs.

Defendant's
version of the events, as foreshadowed in the plea, was that he had
bought the bus from Abraham for himself and not
for plaintiff. He
said he implemented his contract with Abraham by paying the seller R3
020 and settling the latter's outstanding
account of R9 200 with the
Trust Bank. The documents relating to the bus were, he testified,
kept in the vehicle but no steps were
ever taken to have it
registered in his name. The reason advanced by the witness for this
was that before doing so he wanted to
see whether "the business
would function", presumably meaning, would pay. If it. did not
pay he proposed to turn the
bus into a truck and employ it in his
business. He nevertheless insured the bus and was content to operate
it under the licence
which had been issued to the seller to conduct a
bus service on a particular route. Defendant said that after the bus
was damaged
he had it repaired and on the completion of repairs sold
it for R8 000. He denied that plaintiff was

7

responsible
for operating the bus and said that the running costs thereby
involved came out of the takings from the operation and
he received
only the net amount which he puts at a figure of under R4 000. He
conceded, however, that plaintiff was the one concerned
with keeping
the records of takings of the bus and its management.

Under
cross-examination defendant conceded that he, without any agreement
or authorization from the seller was, unknown to the latter,

operating the bus for his own account over a route assigned by
licence to the seller. His attempted explanation for this conduct
-
which was clearly illegal -were unconvincing.

The trial
Court made no credibility findings in regard to the various witnesses
but appears to have based its findings on the probabilities
and on
the fact that in his counter-claim it was alleged by the pleader -
acting as the trial Court found on the instructions of
his client, -
the defendant - that defendant had in fact bought the bus for and on
behalf of plaintiff. The effect of this allegation,
despite the fact
that it was specifically couched in the form of an alternative to the
denial of such an agreement, coincided with
the factual basis on
which plaintiff's claim had been founded. The counter-claim also
contains the averment that plaintiff paid
defendant an amount of R6
271,51 which was the figure claimed in the declaration to have been
paid by plaintiff to defendant, a
claim supported by plaintiff's
testimony at the trial.

I do not
think that the contradiction between

8

defendant's
plea and counter-claim can be allowed to affect the enquiry with
which the trial Court was concerned. A party is entitled
to plead in
the alternative and the counter­claim is in the present case
expressly advanced as an alternative method of meeting
plaintiff's
claim as formulated in the declaration. There are, of
course,.limitations upon the right of a party to plead inconsistent

defences. Barry, J.P. in the case of Whitehead's Trustee v. Van Eyk,
4 E.D.C. at p. 8, held that

"the proper view of the case seems to be that several pleas
ought to be allowed to be pleaded together although they are
inconsistent if they are required bona fide and appear to be
necessary to meet the real justice of the case."

The test
would appear to be whether the inconsistency is prejudicial or
embarrassing to the plaintiff. See Middelburg Coal Agency
v.
Johannesburg Municipality, 1916 T.P.D. 224.

I do not
think that the pleading in this case can be described as an
embarrassment to plaintiff. Admittedly the phraseology used
by the
pleader drawing the counter­claim was unfortunate. What he
intended to say was, I have no doubt, that should the Court
find that
he had entered into an agreement as alleged by the plaintiff, he
nevertheless had a claim in excess of the amount claimed
by
plaintiff. I accordingly do not think that any adverse inference can
be drawn against defendant because of the form of his pleadings.

However
in regard to the improbabilities inherent in defendant's case, I am
unpersuaded that the conclusion arrived at by the trial
Judge is
unsupportable.

9

There is
no evidence to contradict that of plain­tiff and Abraham as to
the manner in which the purchase of the bus from the
latter was first
mooted. It was clearly owing to the initiative of plaintiff that the
matter of the purchase of the bus was raised
with the then owner of
the bus. Nor is there evidence to contradict that of plaintiff and
Abraham that the latter went to see defendant
about the purchase of
the bus at the instance of the plaintiff who wished to acquire
ownership of the bus. While it is true that
from then on the actual
contractual arrangements for the acquisition of the bus were
conducted between Abraham and defendant, nevertheless
there seems to
be nothing improbable about Abraham's evidence that when he went to
see defendant the latter told him that he was
buying the bus for
plaintiff. Moreover this evidence was not rejected by the trial
Court.

Counsel
for appellant argued that it was highly improbable that defendant
would agree to buy an expensive vehicle for a lowly-paid
employee who
could offer no security for the eventual payment of the purchase
price. But on the other hand if regard is had to
the actions of the
defendant with reference to the bus the probabilities point in the
opposite direction. Defendant took no steps
to have the bus
registered in his name as one would have expected from an owner. The
operation of the bus was left in the hands
of his lowly paid
employee. The latter was left to engage and pay the driver of the bus
and collect from him the takings from its
operation. Had defendant
regarded himself as the owner of the bus it is inexplicable that his
office staff was not entrusted with
this function, which, from his
point of

10

view,
would have been a more efficient and surer way of collecting the
returns produced by the operation of the bus. Instead he
left it to
one of his lorry drivers to determine what amounts were to be handed
over to him each week with no check on the correctness
of the sums.
Such a procedure is indicative of an acceptance by defendant of the
fact that the sums that plaintiff was handing
over to him represented
instalments on a capital sum due by plaintiff to defendant in respect
to the purchase of the bus by defendant
for plaintiff.

It was
further contended on behalf of defendant that plaintiff had failed to
prove any damages. Defendant's damages would be represented
by the
market value of the bus. Plaintiff failed to produce evidence of such
value. However defendant in his counter-claim alleged
that the R8 000
was the "fair and reasonable market value" of the bus.
There is no evidence on record to suggest that
the sale of the bus
was undertaken under circumstances which would have been likely to
affect its market value or that the price
of R8 000 was any more or
less than that which defendant had alleged it to be. Defendant's
evidence was, without more, that he
sold it for R8 000 from which, in
the absence of evidence that extraneous factors existed which could
have affected the price,
it can be inferred that such sum represented
the market value of the vehicle. I am not disposed to differ

11

from the
finding of the trial Court that R8 000 represented the market value
of the bus.

The
appeal is dismissed with costs.

L. DE V.
VAN WINSEN

JUDGE OF
APPEAL

I. A.
MAISELS

PRESIDENT

W. P.
SCHUTZ

JUDGE OF
APPEAL

Delivered
this 22nd day of August 1983 at MASERU