CIV/T/295/79
see CIV/APN/116/80

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

CHHOGALA
IGBAL Plaintiff

v

MICHAEL
MTHEMBU Defendant

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr.Justice T.S. Cotran on the 13th day of
January 1983

On 8th
December 1982 I entered Judgment for the plaintiff in the sum of
M5050 with interest at 9% from the date the summons was
filed on 21st
November 1979 up to and including the 8th December 1982, at 12%
interest from 9th December 1982 until settlement,
costs of the 1st
and 3rd day hearing on party and party scale, costs of 2nd day
hearing on attorney and clients scale, the costs
on party and party
scale of rescinding (by Rooney J on 21st November 1980). of the
default Judgment granted against the defendant
(by Mofokeng J on 31st
March 1980), with no order as to costs in the subsequent chamber
proceedings (before Rooney J) wherein the
learned Judge recalled his
order (that the Registrar be authorised to reinstate the default
Judgment in the event of the defendant
failing to file a plea within
seven days - see last paragraph but one of the Judgment at p.5) and
allowing the defendant extension
of time to file a plea. This the
defendant did. I see no minute of the last mentioned event on file
but attorneys for both parties
agreed this took place.

Pleadings
having been closed the trial took place before me on 6th December and
the two subsequent days. I gave judgment as intimated
and said
reasons will be filed later. These now follow. If an appeal is
contemplated time will start to run from the date of this
Judgment.

It is
common cause that the plaintiff and defendant entered into two
contracts (both drafted by attorneys apparently acting

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on behalf
of the defendant) on 23rd November 1978, one contract providing for
the lease of premises known as "Mthembu's cafe"
at site 45
Pitso Ground Maseru Reserve owned by defendant to the plaintiff
(Annexure B) and one contract providing for the sale
by the defendant
to the plaintiff of that cafe as a "going concern"
(Annexure A).

It is
also common cause that prior to the 23rd November 1978 "Mthembu's
cafe" was leased to a gentleman called Kaleem.
Kaleem wanted to
give up the business and introduced the plaintiff to the defendant as
the prospective lessee and purchaser. The
negotiations between
plaintiff and defendant culminated in the two agreements above
referred to. Kaleem had some stock in the cafe
and had employed a
sales girl called Mamothetsi(PW3). Kaleem sold his stock to the
plaintiff and arranged for Mrs. Mamothetsi to
continue in plaintiff's
service, which she did, up to the time of the events that gave rise
to these proceedings. The value of
stock purchased by plaintiff from
Kaleem had nothing to do with defendant. Its value has not been
disclosed.

The
plaintiff ran the cafe with the assistance of his wife with nothing
untowards until early September 1979. Clause 2 of the lease
provided
that the rent (M200 per month) be paid on or before the 7th of each
month at the offices of Messrs Du Preez, Liebetrau
& Co. who had
clients to whom the defendant owed debts. The rent due for September
1979 was not however paid by the plaintiff.

The
plaintiff testifies that after running the cafe for some months he
wanted to exchange the cafe premises with another premises,
a
clothing shop, next door to the cafe, also owned by the defendant,
which was larger and commanded a higher rent. The plaintiff's
wife
was expecting a child and had gone to Durban for her confinement and
he, the plaintiff, was about to follow her there to be
in attendance.
It has not been clarified if the plaintiff wanted to dispose of the
cafe business altogether to take up the clothing
business or whether
he wanted to enlarge the cafe, but according to him the defendant
said that the clothing shop was, or would
be, available upon his
return, that he need not pay the rent on the cafe due for September
and that they would finalise the swopping
arrangements upon the
plaintiff's return. The plaintiff says that in addition to the
equipment that the cafe had under the terms
of the lease and sale he
brought from his house for use at the cafe, and purchased for the
business, a number of items, which included
a deep freeze, a stove, a
"sandwich machine", an electric frying pan, pots and pans,
a

3

settee
and chairs, etc... to the value of M1050. He also had stock to the
value of M2000. He locked up the cafe and took the keys
with him. He
proceeded to Durban on or about 10th September 1979. He returned on
the 27th September 1979 only to find that the
cafe had been let to a
"coloured couple" who were in the process of cleaning,
painting, and otherwise renovating the
cafe. The plaintiff says he
asked the defendant what was happening and the defendant kept
procastinating for 3 weeks and finally
told him "You can go to
Court". The plaintiff sought legal advice and lodged his action
in November 1979. In his declaration
he stated that the defendant had
broken into his cafe. He claimed M5050 in damages consisting of –

1. M2000
   paid for the goodwill under the sale agreement.

   
   

2. M2000
   value of stock at the cafe.

   
   

3. M1050
   value of the equipment additional to the existing equipment which
   was in the cafe. The plaintiff also claimed loss of profits
   but this
   portion of the claim had been abandoned.

   
   

The
defendant gives a different story. He testifies that in early
September 1979 the plaintiff told him that his wife had gone to

Durban for confinement, that he himself wanted to give up the cafe
business altogether, that he was proceeding to Pakistan for
good
since the South African authorities would not give him a residence
permit, and that the defendant could have his cafe in the
state that
the plaintiff was leaving it, with no liabilities incurred by either
side on the lease contract or the sale contract.
The defendant denied
that there were any negotiations about swopping the cafe for the
clothing shop next door and maintains he
could not have given such an
undertaking to the plaintiff because the clothing shop was already
let to a third party. He admits
"leasing" and "selling"
the cafe to the "coloured couple" after the plaintiff's
departure,but denies
there was anything underhand about this and more
especially denies breaking the doors and locks of the cafe to give
the new tenants
possession. The defendant swears that prior to the
plaintiff's departure from Maseru the plaintiff handed him the keys
to the cafe.
But as I said the plaintiff produced these as an
exhibit. The defendant explains this by saying that when he leased
and sold the
cafe to the plaintiff, he handed him two sets of keys -
that is duplicate bunches, in accordance with his (the defendant's)
custom.
When the plaintiff was about to depart for good plaintiff
handed him only one bunch and when asked

4

about the
second he replied that the other bunch was probably with his wife in
Durban or was lost or mislaid. This, it was implied,
was the bunch
produced by plaintiff to the Court. When the "coloured couple"
expressed interest and finally took over
the cafe before the return
of the plaintiff defendant adds that he handed to them the bunch
given him by the plaintiff but told
them that a set of duplicates
were "floating around" and warned them about the risk of
unauthorised entry by whoever
could procure the duplicate keys. In
other words the defendant intimated to the "coloured couple"
that it will be in
their interests to change the locks. The defendant
added from the witness box that he himself did not know (three years
after the
event) whether the "coloured couple" or
subsequent tenants(the "coloured couple" could not get a
trading licence
and had to vacate the premises after 3/4 months)
fixed new locks nor did he bother to check. In the course of the
trial, and after
adjournment, it was established that the locks were
in fact changed. The keys plaintiff produced would not open the new
locks.
It is my considered view that defendant knew all along that
the locks were changed and the probabilities are, as will appear
later,
that he did or authorised changing the locks because he had no
keys to the premises save the ones he gave the plaintiff and those
he
did not have.

In the
course of his evidence the plaintiff testified that after his return
from Durban the defendant would not allow him to go
into the shop to
remove his stock and other equipment which he had brought (additional
to those the cafe had as part of the lease)
and all his books of
accounts were gone. The value of the stock could only be an estimate.
Some of the equipment he brought for
the cafe were either in use
originally for domestic purposes at home or he bought new. He gave a
rough value of these in Exhibit
B. He also installed a Shell paraffin
tank at the rear to dispense paraffin on a retail basis. The
defendant admits there was some
stock, but "no more than Mr.
Kaleem had left", and denies categorically that a tank was in
existence. Since the plaintiff
had bought Kaleem's stock on
defendant's own admission, I do not see how the defendant's case can
in any way improve or his liability
for damages decrease. The
defendant alleged that all equipment in the shop was his and the
plaintiff brought nothing, but this,
as we shall see, is a blatant
lie.

A large
part of the second day's hearing was devoted to investigating the
paraffin tank which the plaintiff alleged he installed
at the back of
the cafe to dispense this commodity to

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retail
customers. The defendant denied that this tank existed. The plaintiff
called Ernest Ramokoena (PW4) a salesman in Shell BP
LESOTHO who
confirmed that he authorised the installation of the tank at
plaintiff's request. Two documents were produced, Exhibits
A and C
which were invoices for installation of the tank and supply of
paraffin. These prima facie show that a tank was indeed
installed. I
asked the deft whether his case was that no tank existed, or whether,
if there was a tank, he did not know about it
or was installed
contrary to his wishes or terms of the lease. The defendant, who had
hitherto been speaking in perfect English,
found the question
difficult to answer except in Zulu his mother tongue! No Zulu
interpreter could be had and that question was
abandoned. He
insisted, however, that an official from Caltex be called as a
witness. That witness was not available in Court and
Mr. Kolisang on
his behalf requested an adjournment.

The Court
was reluctant to grant an adjournment and asked

Mr.
Kolisang what the witness was expected to say. Mr. Kolisang replied
that that witness will describe to the Court the "procedure"

for installing tanks. Mr. Sello objected to an adjournment for this
purpose since the evidence the witness is expected to give
is
irrelevant to the issues, but said that if the defendant knows the
Caltex procedure he can go into the box to describe it and
he (Mr.
Sello) would not even cross-examine him. In the event the defendant
went into the box and testified that he was familiar
with the Caltex
procedure for installing tanks. The defendant's evidence according to
my notes was as follows :

"A customer applies to the Company to have a tank installed. The
company would tell him if a tank was available or not because
there
is a shortage of manpower and transport. If the customer is in a
hurry, he gets his own transport and Caltex will reimburse
the cost
to the customer. The customer need not pay one cent since he buys the
company's products".

Now
Exhibit C produced by the plaintiff shows prima facie that he paid
R16.50 for this service. I asked the defendant what conclusion
or
inference he wants the Court to draw since the issue in dispute (not
a very relevant one in my view but Mr.Sello says it may
well go into
the defendant's credibility as a witness of truth) was whether a tank
did or did not exist on the premises. The defendant
replied that the
evidence he adduced shows that the plaintiff was swindled by Shell BP
because they charged him for the installation
when they need not!

6

The
defendant's case, as I have endeavoured to demonstrate, is that the
lease and sale agreements were cancelled by mutual consent
to the
convenience of both parties. The plaintiff's case was that there was
no cancellation. Mr. Sello then cross examined the
defendant about
the contents of his founding affidavit in CIV/APN/116/80 wherein he
sought to rescind the default judgment granted
by Mofokeng J. The
following exchange took place:

"Q : In para 13 page 2 of your founding affidavit you

stated that you had reasonable prospects of success

'in as much as respondent is himself in breach of the agreement of
lease between the parties signed on the 23rd November, 1980
in that
respondent failed to pay rent either before or after the seventh
September, 1979 thus contravening clause 2 of the said
agreement of
lease. Your petitioner hereby attaches a photostatic copy of the said
lease. Annexture "B". Your petitioner
refers to clause 2
thereof. Your petitioner was thus entitled to cancel the said
agreement and retake possession of the said cafe
business as he did
in terms of clause 9 of the said lease"

That was your oath on 18th July 1980. Do you

remember that?

A : Yes.

Q : Read it again .....(pause)

A : Yes I have an answer for that. I was stating in my evidence what
took place prior to 7. 9. 1979 but when I saw him (plaintiff)

sommersaulting then I instructed my attorney to say those things.

Q : You decided to tell an untruth not only in your affidavit but
also in your plea.

A : The plaintiff summersaulted so I said in the alternative that he
breached the agreement.

Q : But he did not breach the agreement?

A : I had to say he did.

Q : But also look at the second leg of the clause at page 3 of the
founding affidavit. How can he pay rent after 7th?

A : He summersaulted and I did the same.

Q : Why did you lie in your affidavit? A : Because the plaintiff
summersaulted."

The
plaintiff called two further witnesses apart from Mr. Ramokoena from
Shell BP. Candido Feleciano de Freitas(PW1) is the son-in-law
of the
"coloured couple" who took over the lease and purchased
"Mthembu's cafe" soon after the plaintiff departed
from
Lesotho. The "coloured couple" had gone to the Transkei and
they did not testify, but Candido says he heard a cafe
was available
in defendant's complex block at Pitso Ground and his parents-in-law
wanted it. He saw defendant

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with his
father-in-law and expressed interest in the cafe. The cafe was
locked. The witnesses did not know if the defendant had
the keys but
he, his father-in-law and defendant looked at it from the outside.
Candido says there was some stock and other equipment.
His
father-in-law started negotiations with the defendant and eventually
his father and mother-in-law took over the cafe and he
(Candido)
assisted in painting and renovating the shop but himself took no part
in the running of the business. The defendant says
he has not met
this witness. I believe Candido and in my view the defendant is
untruthful.

Another
witness was Mamothetsi(PW3) the plaintiff's saleslady. She testifies
that in September 1979 the plaintiff told her he was
going to Durban
to fetch stock for the shop. She was present when he did so. She had
previously been working in the shop when owned
by Kaleem. She says
that during plaintiff's tenure she saw new items of equipment and
furniture brought by the plaintiff. When
the plaintiff left the shop
had

stock but
it was "not full". She certainly was still on the
plaintiff's payroll when she saw new people painting and

renovating
the shop; She met the defendant and asked him what was going on to
which he replied that he let the shop to new people
because plaintiff
had not paid the rent. If it is true that plaintiff and defendant
agreed to cancel the lease there was not need
for the lie.

The
plaintiff and his witnesses gave their evidence in a candid a
straightforward manner. The defendant the exact opposite. In my
view
he is a devious character to whom the truth means nothing.

I am of
opinion that no oral agreement was reached between the parties in
September 1979 to cancel the sale and the lease. I have
no doubt that
the defendant; by causing the plaintiff's premises to be let to third
parties, has commited both a breach of contract
and the delict of
wrongful trespass on plaintiff's property and goods.

The non
payment of the rent for September does not justify in law the
defendant's entry into the leased premises. Clauses in some
contracts
whereby the landlord is given the right of entry for non payment of
rent mean no more than that the landlord may invoke
the law to get
his remedy. No one is allowed to take the law into his own hands. The
defendant's alternative defence is therefore
just nonsense.

I shall
now deal with the quantum of damages. The

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plaintiff
paid M2000 for the cafe "as a going concern". He had three
years lease with' an "option" to renew
for a further three
years. This so called "option" has no effect in law since
no amount was specified in advance. The
question that crossed my mind
is whether, the M2000 claimed under this head should be reduced
proportionately under the formula
10 months use divided by 36
multiplied by M2000 i.e. M555.55. I have decided against reduction
because the plaintiff had paid for
the overall three years goodwill
not for a portion.

The
plaintiff next claimed M2000 for the value of the stock. Since the
defendant was responsible for the breach, for the disappearance
of
the books and the goods the onus was on him to prove it was less than
the M2000 claimed. This he failed to discharge.

The
plaintiff next claimed M1050 for equipment he brought from his house
and bought for the cafe. The plaintiff was dispoiled by
the defendant
who admits he did not even bother to take an inventory. I have no
reason to suspect the plaintiff's valuation and
the fact that
additional equipment was brought is confirmed by the saleslady
Mamothetsi whose evidence I believe.

Judgment
was accordingly entered as prayed.

This was
a case where the defendant had prostituted the rules of court to his
advantage, and on the merits had no leg to

stand on
(except possibly on quantum) and had succeeded, for over three
years,in frustrating the plaintiff from obtaining the fruits
of his
judgment.

Interest
and costs have therefore been assessed to take into account the
defendant's shameful and disgraceful abuse of process.

CHIEF
JUSTICE

13th
January, 1983

For
Plaintiff : Mr. Sello )

For
Defendant: Mr. Kolisang )

with
copies of the judgment