CIV\T\141\92

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

DR Q.M.
QHOBELA Plaintiff

v

'MAMALEFETSANE
QHOBELA Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 31st day of May, 1994

On 27th
May, 1994 judgment was entered for the plaintiff in the amount of M24
732-00 plus interest at 11% calculated from 17th June,
1991 to date
of payment; and coats.

Furthermore
the point of law raised by the defendant was also dismissed.

Here are
reasons for judgment :

I propose
to deal first with the application regarding the question of law
leading to the dismissal thereof.

2

In her
plea the defendant who is the plaintiff's sister-in-law had pleaded
in limine that the cheque dated 1-2-84 for M5000-00 had
prescribed by
virtue of the provisions of Section 3 read with Section 4(b) of Act 6
of 1861.

The
relevant sections read as follows, namely section (3) regarding
action for liquid debts :

"Except as hereinafter is excepted, no suit or action upon any
bill of exchange, promissory note or other liquid document
of debt of
such a nature as to be capable of sustaining a claim for provisional
sentence shall be capable of being brought at any
time after the
expiration of eight years from the time when the cause of action upon
such liquid document first accrues: Provided
that nothing in this Act
contained shall extend to or affect any mortgage bond, general or
special, or any judgment of any Court
in Basutoland or elsewhere"

for
Basutoland above read Lesotho.

Section
4(b) is presaged by the phrase: The provisions of the last preceding
section shall extend and apply to the respective suits
and actions
following, that is to say "for money lent by plaintiff to the
defendant".

The
plaintiff's suit is based on a series of alleged loans made to his
late brother Talimo. It is in respect of the foremost of
these in
time that the defendant raised the above point of law. The loans
consist of a aeries of cheques the first of which was
drawn in the
amount of M5000-00 for the benefit of T.M. Qhobela the deceased on
1-2-1984. See Annexure A. The summons was drawn
on

3

19th
March, 1992 and filed of record on 31st of that month. Clearly this
was after 8 years had run. But a letter of demand "Exhibit
B"
had been addressed to the defendant on 3rd June 1991. The deceased
died on 9-3-91. The defendant is sued in her capacity
as sole heiress
to the deceased estate.

In
support of the exception raised on behalf of the defendant Dr. Tsotsi
submitted that the debt became due and payable immediately
upon the
amount being advanced to the defendant. In my humble view this
submission tends to ignore that there was a purpose for
which the
money was advanced to defendant's husband namely to build a
restaurant and run a liquor store, a butchery and vegetable
sales.
This was so vital in the contract as never to be lightly ignored.

Should I
be wrong in the view I have just expressed, I find Mr. Buys's
submissions on the matter very persuasive as they are based
not only
on common sense but on what seems to be the intention of the law that
disapproves of absurdity.

Regarding
this alleged prescription Mr. Buys pointed out that the defence was
not that money was not due and payable but that there
was no loan.
See Request for Further Particulars 1.3 read with Further Particulars
paragraph 1 ad para 3 at 1.3.

Furthermore
it seems that the defendant makes two fatal

4

mistakes
in the view she takes of prescription. The proper view should be that
when one pleads prescription one must make a calculation
and say when
exactly a debt prescribes. The Court should be placed in no darkness
concerning whether a debt prescribed two days
or two months before
the issuing of summons. This the defendant has not done.

The 2nd
flaw is that it is attempted on behalf of the defendant to make a big
thing about what is called joint project or joint
venture without
giving a solution to the problem the parties seem to be entangled in.

I think
therefore that the loan whose terms are not set out in writing but
from what the plaintiff said in evidence would be payable
when the
deceased's business was operational, couldn't have been due and
payable on demand but on deceased's death when it became
definite
that he would not fulfil terms agreed on orally at the beginning when
the contract was entered into; and when indeed all
liabilities of the
estate become payable.

There is
therefore an important part of Act 6 to take into account when
calculating the period of prescription on expiration of
8 years from
the time when a liquid document first accrues.

Section
4(b) extends "liquid" to include moneys lent and advanced.

5

It would
seem then that calculation would properly start when a claim accrues
not when a cheque was handed over.

The Court
is alive to the unchallenged evidence of the plaintiff that repayment
would have been on completion of the project that
the deceased had
started.

All the
foregoing is exclusive of another important principle that stay of
prescription is effected when action for the claim is
instituted.
Regard being had to the fact that letter of demand was on 3rd June
1991 it can successfully be argued that this was
the date when the
defendant was placed in mora.

Now
turning to the merits. The plaintiff sues the defendant for :

1. payment
   of M24 732-00 being the amount due and payable to plaintiff in
   respect of monies lent and advanced by plaintiff to Talimo
   Mohlakazo
   Qhobela (the late husband of the deceased who is cited in her
   capacity as sole heiress in the estate of the said late
   Talimo
   Mohlakazo Qhobela) at the latter's special instance and request
   during or about the period February 1984 to April, 1986
   which amount
   defendant has despite demand failed to pay;

   
   

2. payment
   of interest on the aforesaid amount at the rate of 11% per annum
   from 17th June, 1991;

   
   

3. costs
   of suit;

   
   

4. alternative
   relief.

   
   

6

In
paragraph 4 of his declaration the plaintiff states that

"Defendant, in her aforesaid capacity, is liable to plaintiff
for payment of the aforesaid amount."

Reference
to the defendant's capacity is to be found in paragraph 2 of the
declaration which is to the effect that the defendant
is the sole
heiress in the Estate of the late Talimo.

Questioning
this aspect of the matter the defendant in her Request for Further
Particulars Ad Para 4 in paragraph 2.1 asks :

"Did the late Talimo Mohlakazo Qhobela leave a will in favour of
the Defendant? If so, Defendant requires a copy thereof;
if not in
what way is it alleged that she is sole heiress of her late husband's
estate?"

To cut a
long story short at the beginning of this trial Mr. Buys stated and
Dr Tsotsi confirmed that :

1. Payments
   reflected in the pleadings were made to the deceased.

   
   

2. Defendant's
   counsel has seen correspondence between plaintiff and the deceased -
   the defendant's husband.

   
   

3. It
   has now been admitted that the defendant is sole heiress of the
   deceased.

   
   

After
these admissions the plaintiff gave oral evidence on oath. He stated
that the defendant was married to the deceased Talimo.

7

It is
common cause that Talimo was the plaintiff's brother. Therefore the
defendant is the plaintiff's sister-in-law.

The
plaintiff stated that the defendant is also sole heiress to the
estate of the deceased who was predeceased by his only son
Malefetsane Qhobela,

He went
further to state that upon the deceased's death he personally took
the defendant to the District Administrative Secretary
at Maseru to
confirm the defendant as sole heiress to the estate of the deceased
Talimo.

The
plaintiff further took the defendant to the Manager of Barclays Bank
Maseru for the release of whatever assets were due to the
deceased.

The
plaintiff subsequently sued the defendant for M24 732-00 being the
composite amount consisting of sums of money reflected in
Exhibit
"A".

These
amounts are in the nature of cheques issued to the deceased at
various dates and years,; to wit (a) 1-2-84, (b) 6-9-84, (c)
4-5-85
and (d) 29-4-86.

These
cheques were credited into the deceased's various accounts. They were
negotiated through the plaintiff's accounts.

8

A
photocopy marked "A" attached to the pleadings was referred
to in proof thereof.

The
plaintiff indicated that since 1970 he has been living abroad for
approximately 20 years. During this absence the deceased used
to look
after the plaintiff's interests. Indeed in evidence led it seems the
deceased and plaintiff were very close and had a high
degree of
affection for each other.

It was in
this posture of events that the deceased intimated to the plaintiff
that he was due to retire soon and would wish to set
himself in some
commercial enterprise in Butha Buthe. For this he asked for a loan
from the plaintiff. Hence the various cheques
drawn on plaintiff's
various Banks for the benefit of the deceased.

The
plaintiff was emphatic that there was no written document to
constitute the agreement between him and the deceased. The agreement

was oral and he produced correspondence between him and the deceased
as furnishing a basis from which the existence of the said
agreement
could be inferred.

The
plaintiff was closely cross-examined in an endeavour to show that in
fact these letters (correspondence) suggest the existence
of a joint
venture between him and the deceased. Reliance in that regard was
reposed on the use of and reference to

9

frequent
use on either side to the words "ours" "we" "our"
and "us".

While
Counsel for defendant made an adorable performance in ably dissecting
contents of these letters it becomes an irksome task
to determine
what weight to attach to them in contrast with what plaintiff said
about them and not gainsaid by any evidence from
the defendant's
side. The plaintiff was challenged and he gave his explanations. It
is not the function of the Court to speculate
on what evidence could
have been adduced for the defendant to gainsay the only explanation
given by the plaintiff. The Court cannot
speculate on what the
plaintiff meant when an explanation of what he meant is there. Thus
it must stand. By this I wish to stress
that the Court can only
decide on evidence before it. If plaintiff's evidence stands alone,
then that evidence if uncontradicted
must stand.

In
cross-examination of the plaintiff the defendant's counsel sought to
make capital from a phrase appearing in Annexure "C"
dated
2nd April, 1984 written by plaintiff to the defendant spelt out in
the penultimate paragraph as follows:

"What is the progress of the project at BB, as I would like to
budget for it in time".

It was
contended that this shows that the plaintiff's interest extended
beyond a mere loan and implied that the project at Butha

10

Buthe was
a joint venture between the plaintiff and the defendant. But as I
stated earlier short of any evidence to support this
contention there
can be no basis for the view that the form of contractual
relationship between the deceased and the plaintiff
was in the nature
of a partnership. This is moreso when the explanation of the
plaintiff which is not countervailed by any evidence
is that all the
monies he supplied to his late brother were a loan geared at securing
the deceased's personal and sole business
venture.

Having
submitted in his heads of arguments at paragraph 6 that the onus
,..... is clearly on the plaintiff to prove on a balance
of
probabilities that the monies which were sent his late brother were
for a loan, Dr Tsotsi for the defendant demurred at the
fact that it
is convenient for the plaintiff to claim at this stage when Talimo is
no more and when questioned about the existence
of the loan, to say
only the deceased knows.

The
plaintiff testified that after handing over the money to his late
brother the agreement was that repayment of the loans could
start
being effected when the business was operational. However until the
deceased's death the project had never gone into operation.
The
deceased had not progressed far beyond merely obtaining trading
licences reflected in the correspondence placed before Court.

11

The
plaintiff stated that before returning home he had known that the
deceased hadn't a clean bill of health. Thus he was under
constant
medical treatment for high blood pressure which later led to heart
attack to which he succumbed shortly after the plaintiff's
arrival
home from foreign service with WHO in Tanzania.

The
plaintiff ruefully maintained that he had not been able to finalise
arrangements with the deceased before the latter's death.

Faced
with this unwelcome turn of events the plaintiff approached three of
his relatives namely Mr. Letjea Qhobela, Mr. Mopeli Qhobela
the
plaintiff's brother and Theko and asked them to bring him face to
face with the defendant concerning the unfinished business
left by
his late brother. The defendant is said to have listened carefully to
the proceedings, made no comment and appeared to
be unhappy.

Two more
meetings were held without any success. The last of this was in the
absence of the plaintiff. Thereafter he addressed a
letter of demand
to the defendant. The response was in the nature of a letter
addressed to the plaintiff by the defendant's attorneys.

Because
of his utter lack of personal interest in the business going on in
Butha Buthe either through hire of business premises

12

by the
defendant to someone or run by the defendant herself the plaintiff is
ignorant of the state and use of those premises.

However
the sole witness for the defence gave the Court an inkling of what
business is going on there. He said the premises have
been rented out
by the defendant to someone who is running sales of liquor in those
premises. Understandably the defendant stands
to benefit from the
rent collected for the hire of the premises.

Asked why
he didn't ask Talimo to pay back the money on plaintiff's arrival
from abroad in 1990 the plaintiff replied that the project
had not
yet been completed; the understanding having been that the deceased
would pay when the project had taken off and it had
not.

The
plaintiff was taxed about his lack of knowledge of the extent of the
construction of the project on his arrival and about the
fact that he
didn't go to see the construction. The plaintiff had contented
himself with taking his brother's word and reposing
his utmost faith
in the letter's sincerity. The plaintiff denied that the project
existed only in his imagination.

It was
put to plaintiff that the project was not just Talimo's alone but was
a joint one between the deceased and the plaintiff.
The plaintiff
replied that

13

"There was nothing joint about the project as shown by licences
issued in the deceased's sole name. I gave him a loan".

In an attempt to buttress the contention that the letters seem to
support the view that the venture was a joint one the
cross-examination
proceeded as follows :-

"I put it to you that this project was a joint project between
you and Talimo and these letters are proof?....I deny that
it was a
joint project.

All letters produced bar one were written by you?.... Yes.

Is it the only letter he wrote?... The letters were not primarily
relating to the project. The project would come towards the end.

It is significant that only one letter is on the project. Were there
letters relevant to the project?.... There were letters which
had
nothing to do with the project (Referenced to A1 for identification).
Read the second sentence. What does it signify?.... It
would have
been for him to clarify.

But he is not here?.... Well it could have been he and you?....Yes,
like it could have referred to him and others.

Like who for instance?..... He and his wife.

Our own building material refers to who?.... My answer is the same as
above.

He refers to hie financial problems in paragraph 3. He does not refer
to you as source of financial assistance?.,. There was never
a loan
saying send me so much. Nothing like that in writing. the loan is
inferred in the correspondence."

The plaintiff was later referred to document "B" dated
25-9-83 :

"This is a letter from you to your brother (letter read). The
'we" shows you were in partnership with Talimo?...

14

The 'we' does not necessarily mean me, but Talimo and others.

You can't go round that one. You had given thought in detail to
it?.... My interest was in getting my loan reimbursed; if the project

could refund my loan quickly-fine.

This letter was written on 25-9-83, the loan was on 1-2-84?.... The
project was a proposed project.

Why say 'our or 'we' instead of saying to Talimo as 'you' or
'your'?...."

The
reaction to this question by the plaintiff was not satisfactory. I
gained the impression that he was caught in an awkward position.
But
even so in the absence of evidence on which the defence basis its
case an occasional moment of awkwardness reflected by a witness
in an
attempt to answer a question to which the reply is not satisfactory
does not necessarily demolish the case which is being
attacked.

The sole
defence witness was DW1 Mr. Bereng Nathaniel Jameson Qhobela who
testified that he and the plaintiff are relatives, their
fathers
being brothers. DW1 knew Talimo the deceased very well.

DW1
stayed with Talimo and the defendant from 1969 to 1970. DW1 said he
and his sister were taken care of by the deceased. He maintains
and
his statement is worthy of credit that he and Talimo were very close.

15

However
he said he didn't know anything about Dr. Qhobela lending M24 732 to
Talimo. He maintains he would have known if this had
been done
because Talimo always communicated whatever instructions emanated
from the plaintiff (the elder brother).

Under
cross-examination DW1 stated that he had intimate knowledge of the
affairs of the late Talimo because of discussions he had
with him. He
however qualified his statement by indicating that the discussion was
on some and not all of the deceased's affairs.
He didn't know how
much money Talimo had in the Bank at the time of the latter's death.
Nor did he know the extent of the deceased's
debts.

He
further stated that he knew that Talimo owed money in respect of a
motor car and of a loan in the Building Finance Corporation
but not
of any other accounts, especially small accounts.

Asked "how much did he owe for the car?..." he said

"I recall that he deposited the old car and was given an advance
by the Government"

"Where were you staying in 1984?.... I was in U.S.A.

How long for?... I came back in 1985.

Where did you stay then?... Maseru.

Had you contact on daily basis with the deceased Talimo?...Weekly at
least.

How much money did Dr. Qhobela pay in respect of repairs to his
house?.... I don't know how much.

16

Otherwise I know that plaintiff instructed Talimo to take charge of
that.

Who eventually paid for repairs?.... I was told Dr. Qhobela did"

Asked how
much was sent by plaintiff to Talimo in order for the latter to do
some work for the former DW1 said Talimo just indicated
that some
money was sent to him without saying how much.

He
recalls the number of occasions that this took place to be over five
times according as the deceased told him. He didn't get
to know of
details of instructions given to Talimo by the plaintiff in
connection with these occasions.

Cross-examination
and corresponding replies proceeded as

follows :

"Do you know of property that belonged to deceased at Likileng
in Butha Buthe?.... I know of it.

You say it belonged to Talimo?.... Yes.

Today to whom does it belong?.... To defendant wife of Talimo.

Is it developed or undeveloped?... It is developed. It has a building
in it.

What happens in that building?... There is a business of liquor being
sold there. Something like a bar.

Do you go to this place from time to time?.... I usually go past
because it is someone doing the business there.

Meaning it is being rented out by Mrs. Qhobela?... Yes.

If there was a family meeting after the death of Talimo would you be
entitled to attend because of your

17

relationship with deceased?... I would be entitled because Mrs.
Qhobela would call me.

Did she in fact call you?... No she just showed me a letter.

After Talimo died were you actively involved in the administration of
deceased estate?... I was not directly involved but the wife
used to
call me and say what to do"

From the
above summary of evidence that has mostly been quoted verbatim it
seems clear that the plaintiff's case far outweighs that
of the
defendant on a balance of probabilities.

The
plaintiff provided a solid background concerning relations between
him and the deceased. He gave a background also of the claim
largely
based on the warm brotherly relations which existed between him and
his late brother.

The
defence on several occasions suggested that the agreement between the
parties was a joint venture. On each such occasion this
was denied.
The test to apply in establishing whether there was a joint project
or not would revolve on ascertaining what the plaintiff
did in regard
to the project during the deceased's life time and prior to his
death.

Evidence
shows that the plaintiff doesn't even know what is going on at the
business premises in Butha Buthe, He took no action
to make any claim
to that property or even show any interest in it.

18

There is
no evidence that the defendant herself either approached the
plaintiff regarding the project.

If it was
a joint venture it could only have been a partnership; in which case
the law which says that at death of one partner the
partnership is
dissolved, would apply. But this didn't happen, DW1 says business is
going on there and is for the benefit of the
defendant in the sense
that she has rented out the premises. This contrasts sharply with the
suggestion put to the plaintiff that
no business goes on in the
project and that any business going on there is purely in the
imagination of the plaintiff.

No
evidence has been led on behalf of the defendant to challenge the
plaintiff's denial of the existence of any joint venture between
him
and the deceased.

Though
DW1 was a straightforward witness he did not advance the defendant's
case in any material respect. He frankly indicated that
much of what
he was telling the Court was either hearsay or that he could not
supply intimate details of what he otherwise claimed
he knew. It is a
lasting and favourable impression formed of DW1 by the Court that he
did not seek to hide his ignorance of things
material to this case by
resorting to evasiveness or prevarications. He was truthful and
ignorant.

19

For these
reasons the Court entered Judgment as prayed in the summons for the
plaintiff.

JUDGE

31st May,
1994

For
Plaintiff : Mr. Buys

For
Defendant: Dr. Tsotsi