CIV/T/503/90
IN THE HIGH COURT OF LESOTHO
In the matter between:
CARLYLE MALEBO PLAINTIFF
V
LESOTHO PLANT SERVICES RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 3rd Day of November, 1992.
For the Plaintiff : Mr. T. Poopa
For the Defendant : Mr. S.C. Buys
RULING
Cases referred to:
Corbridge v Welch (1892) 9 SC 277.
The plaintiff has closed his case and Mr. Buys on behalf of the defendant applies for absolution from the instance.
The plaintiff's claim reads in part thus:
On or about February, 1990 at the offices of the defendant in Maseru the parties herein entered into a verbal contract in terms of which plaintiff would render services by using his own trucks to load some loads of soil at or near the airport area in Maseru,
It was further agreed that Defendant will pay
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the Plaintiff at the rate of Seventy Maloti (M70-00) per hour for the services rendered as per the said contract.
Plaintiff duly performed his part of the contract.
On the aforegoing Defendant is indebted to the Plaintiff to the tune of THIRTY SEVEN THOUSAND ONE HUNDRED AND EIGHTY SEVEN MALUTI AND FIFTY LISENTE (M37,187-50) being the amount for the services rendered to Defendant by the Plaintiff.
Contrary to the contract aforementioned and despite demand defendant refuses to pay the plaintiff the said amount."
It will be seen that the declaration does not state when, or over what period the particular services were rendered. Further, paragraph 7 of the declaration indicates that M37,187-50 represents the amount claimed in respect of all the services rendered. The evidence for the plaintiff establishes however that the plaintiff rendered services over the period of February to July, 1990, both months inclusive. Further, it transpires that the plaintiff's claim is in respect of non-payment for services rendered during the period from 20th April to 31st May, 1990, both dates inclusive.
Mr. Buys points to the declaration, which indicates that the whole contract price was unpaid, the evidence of the plaintiff establishing
otherwise, however. Mr. Poopa for the plaintiff submits that the defendant could have applied for further particulars. Whether or not a defendant seeks further
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particulars, does not however, as Mr. Buys submits, absolve the plaintiff from the necessity of proving all of his case. As matters stand, the plaintiff's evidence contradicts his pleadings.
Mr. Buys submits that were the defendant to succeed in this application, that would not shut the plaintiff out, as he could always come to Court again with a fresh summons. That is confirmed by the following dicta of De Villiers C.J. in the case o Corbridge v Welch (1) at p.279:
"By long practice in the Courts of South Africa "absolution from the instance" has acquired a wider range than it possessed in the Dutch courts. The latter Courts confined this form of judgment to those cases in which a plea in abatement would be successfully pleaded according to the practice of the English Courts. In this Colony, however, and, I believe, in the neighbouring states, it has been a constant practice to grant absolution in cases where the plaintiff has not established the facts in support of his case to the satisfaction of the Court. At first it was treated as equivalent to a non-suit, and confined to cases in which evidence had been given for the plaintiff only. In course of time, however, it was extended to cases in which evidence for the defendant had also been given. It was found convenient to have a form of judgment which would enable the plaintiff to take fresh proceedings without exposing himself to a plea of lia finita."
To compel the plaintiff to enter into fresh proceedings, however, will only add to costs. The matter can be remedied by amendment, and the authorities are legion that the Court will permit amendment in the absence of mala fides, and injustice to
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the other party which cannot be compensated by costs. There is no evidence of either aspect before me.
Mr. Buys however submits that where a balance is owed, one would expect the plaintiff to prove the rendering of all services involved, the part-payments made, and the balance owing. Further, he submits that the plaintiff has but placed three invoices before the Court, without any supporting documents such as weigh-bills, truck-drivers' records etc. Here, as I see it, the Court is concerned with the probative value of the plaintiff's evidence, I consider that the Less 1 say about that aspect at this stage, the better. Suffice it to say that the defendant has tendered three invoices and has testified that no payment was made in respect of the services detailed in the said invoices. He has conceded that the defendant has made payment in respect of some other services, and there is evidence indeed that the defendant made a large payment much about the time involved. The plaintiff led no evidence as to the particular services,in respect of which payment had been effected, and this possibly may ultimately affect the outcome of the case. There is however his evidence that payment has not been made in respect of the services referred to on the three invoices before the Court.
The test is whether a reasonable tribunal might, but not necessarily should, give judgment to the plaintiff, were the
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defendant not to adduce any evidence to the contrary at this stage, I emphasise that I do not have to decide what I might do in such circumstances: the test is what a reasonable tribunal might do. In all the circumstances, I find that a reasonable might, but not necessarily should give judgment to the plaintiff, were the defendant not to adduce any evidence to the contrary at this stage.
I will now entertain an application by the plaintiff to amend his declaration, as previously indicated. Subject to appropriate amendment, the application for absolution is dismissed. In view of the proposed amendment, I will also entertain submissions as to costs arising from such amendment.
Delivered at Maseru this 3rd Day of November, 1992.
B.P. COLLINAN
CHIEF JUSTICE
