2

them to
be presented, the Appellant, kept 3 trucks idle for 27 days at the
"pickup" point. The damages claimed were set
out as being

(a) M23 918-16 being the amount the Plaintiff could have made had the
contract terms been fulfilled.

(b) M48 132-63 being the "standing charge" for the
aforesaid days.

The
Respondent in its plea denied that it entered into any written
agreement with the Plaintiff and stated that on the date alleged
it
had made an offer to the Appellant on the terms contained in the
order form which was described in the Appellant's declaration.
The
Respondent also denied that it was a term of the agreement that the
bales would be so presented by the Respondent. The allegation
was
that the bales were to be delivered by another person and the
Appellant was to transport them as and when they arrived upon

notification by the Respondent. It is specifically denied in the plea
that the Respondent kept the Appellant "posted at the
pickup
point."

It
appears from the judgment of Guni J. that when the trial was called
in court there was no appearance for the Respondent and counsel
for
the Appellant applied for default judgment to be entered against the
Respondent. Because it was a claim for damages it was
necessary for
evidence to be led which apparently

3

was done.

The
evidence however does not appear to me to have supported the
appellant's claims. Firstly there was no evidence as to how the
first
claim of M23 918.16 was made up nor was any basis laid for a finding
that this amount represented what the appellant could
have made had
the contract been fulfilled. Incidentally it is by no means clear
from the evidence precisely what the terms of the
contract were.

Secondly,
due to the lack of evidence regarding the terms of the contract,
there was no basis for a finding regarding the so-called
"standing
charges". What term of the contract, if any, required the
appellant to keep vehicles standing idle at the "pick-up"

point does not appear either from the pleadings or from the evidence.

In view
of the fact that the damages alleged to have been suffered by the
appellant were not proved, I am of the view that the proper
order in
the court below should have been one of absolution from the instance.
This was properly conceded by counsel for the respondent.

Save,
therefore, that the order of the court a quo is altered to read
"Absolution from the instance is granted with costs"
the
appeal is dismissed with costs.

4

J. BROWDE

JUDGE OF
APPEAL

G.P.C.
KOTZE

JUDGE OF
APPEAL

VAN DEN
HEEVER

ACTING
JUDGE OF APPEAL

Delivered
at Maseru on the 29th June, 1996.