C. of A.
(CIV) No. 2 of 1981

IN THE
LESOTHO COURT OF- APPEAL

In the
Appeal of :

PIONEER
MOTORS(PTY)LTD Appellant

V

ALBERT
SEBOKA MOKAKE Respondent

HELD AT
MASERU

Coram:

MAISELS,
P.

SCHUTZ,
J.A.

VAN
WINSEN, J.A.

JUDGMENT

Van
Winsen, J.A.

This is
an appeal against an order by Cotran C.J. awarding to respondent
(plaintiff in the Court a quo) damages in the sum. of M10,000
as
compensation for the loss of a motor vehicle entrusted by him to
appellant (defendant in the Court a quo) for repair and which
the
latter failed to restore to respondent. For the sake of convenience
the parties are referred to as in the Court a quo.

It
appears from the evidence that on the 10th of July 1980 plaintiff had
delivered to defendant his Toyota truck, registration number
L.G.
228, for repair and service. On the 20th of July,1980 when a relative
of plaintiff went to defendant's premises to fetch the
truck the work
on it was not complete and he was asked to return for it in two
weeks' time. On the 29th of July, 1980 defendant
handed over
plaintiff's truck to a Mr. Stanley Voyatjis of Remus Distributors
(Pty) Ltd., Zastron.

The
circumstances under which the plaintiff's truck was handed over to
Voyatjis are, briefly stated, the following: On the 8th of
June 1980
plaintiff, who at that time owed some money (the exact amount of
which is disputed) to Voyatjis signed a document reading
as follows :

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"Remus
Distributors

P.O. Box
122

Zastron
8/6/80

Dear
Sirs,

I hereby,
I, A.S.T. Mokake, promise to deliver a truck, L.G. 228 to Remus
Distributors at Zastron as payment of my outstanding a/c
with the
above Co. not later than Friday at latest Monday 16/6/80.

Signed at Mt. Moorosi 8/6/80 (Sgd) A.S. Mokake "

This
document is hereinafter referred to as "the letter".
Voyatjis after consulting an attorney, Mr. Harley, went in his

company to the office of the General Manager of defendant, a Mr.
Molapo, produced the above letter and asked for the delivery of

plaintiff's truck to him. Molapo testified at the trial that he had
doubts as to whether (the) ought to accede to this request
and
unsuccessfully sought to obtain the advice of the legal adviser to
the Lesotho National Development Corporation, which body
is the
majority shareholder in defendant company. Molapo then consulted a
colleague of his in the mechanical department of defendant,
a Mr.
Gilbert, as to what he should do.

After
obtaining a document from Voyatjis certifying that he, Voyatjis, had
legal authority to remove plaintiff's truck from defendant,
and after
receiving payment from Voyatjis for the work done to the truck by
defendant, Molapo delivered the truck to Voyatjis and
the latter
removed it to Zastron. During August plaintiff went to the premises
of defendant and discovered that defendant had handed
his truck to
Voyatjis. Getting no satisfaction from defendant he issued summons
against it claiming damages in a sum of M15,000.

From the
evidence it is clear that plaintiff did not fulfil his promise
contained in the letter to deliver the truck to Voyatjis.
The reason
for his not doing so is not relevant to the present enquiry. It is
however clear that as a result of this letter Voyatjis
acquired no
rights in respect of the truck and certainly acquired no right to
claim delivery of the truck from defendant. Indeed
had Molapo perused
the letter he would have noticed that the latest date mentioned
therein for the fulfilment of plaintiff's promise
to deliver the
truck, viz, 16/6/80 had already passed when plaintiff delivered the
truck to defendant for repairs.

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The
contract between the parties to the present dispute relative to the
truck is one of bailment. It was decided in the case of
Medallie and
Schiff v. Rouse 20.SC 438 at p.440 that :-

"...... it is a primary duty of a depository to return the thing
deposited when it was required of him, and if he is unable
to do so
he cannot escape liability without proving that his inability does
not arise out of his negligence".

This case
was followed in Weiner v. Calderbank, 1929 T.P.D. 654 at p.664 and in
Silhouette Chemical Works, Ltd. v. Steyn's Garage
Ltd., 1967(3) S.A.
564 at p. 568.

The
degree of care with which the law burdens the depository or bailee is
defined in the following passage from the judgment in
Rosenthal v.
Marks, 1944 T.P.D. 172 at p. 176, per

Murray J.
:

"The bailee is not an insurer of the article deposited for
safekeeping and is consequently not liable for the effects of casus

fortuitus. On the other hand he must display ordinary diligence and
is liable for the consequences of culpa levis on his part;
if the
article is lost or damaged while in his custody, he must make
compensation unless he can show that such loss or damage was

occasioned despite the exercise by him of the care which a reasonable
prudent and careful man might be expected to have taken in
the
particular circumstances".

Mr.
Beckley, who appeared on behalf of appellant, argued that defendant
had acquitted himself of the obligation to prove an absence
of
negligence on his part. In support of this contention he relied upon
the fact that before delivery of the truck to Voyatjis
defendant had
been presented with a document (the letter) duly signed by plaintiff
in which the latter had stated that he intended
paying his account to
Voyatjis by passing ownership in and delivering the truck in question
to the latter before a certain date.
He also relied on the fact that
Voyatjis had assured defendant's general manager, Molapo, in writing
that he had been authorised
by plaintiff to take possession of the
vehicle.

It seems
to me that when defendant, acting through its general manager,
accepted that the letter and the assurance given by Voyatjis

constituted sufficient authority to defendant to part with the truck
to anyone other than its owner it failed to display that standard
of
care which is in law required of a bailee. Had Molapo perused the
letter he would have become aware

4

that the
letter contained no more than a promise to deliver the truck and that
in any event the promise had not been fulfilled since
the vehicle had
been delivered to defendant for repair subsequent to the date on
which plaintiff had undertaken to hand it over
to Voyatjis. Until
this promise was fulfilled by delivery of the truck to Voyatjis the
ownership of the truck remained with plaintiff.
As a reasonably
careful man Molapo, acting on behalf of defendant, should have
concluded that no transfer of ownership from plaintiff
to Voyatjis
had taken place. Moreover it was naive of Molapo to think that he
could rely on a statement of an interested party,
such as Voyatjis
was, to the effect that he had legal authority to remove the truck
from defendants possession. The obvious course
which a reasonably
careful man would in the circumstances have adopted would have been
to get into touch with the owner of the
truck in order to obtain his
instructions in regard to its disposal. A failure by Molapo to do so
was a clear breach of duty to
take care. There is accordingly no
doubt that defendant failed to prove that it had exercised the care
required of it in law in
regard to the preservation of the truck
entrusted to it by the truck's owner. Defendant was accordingly
correctly found by the
Court a quo to have been liable to compensate
plaintiff for such loss as he could prove that he had sustained by
reason of defendant's
breach of contract.

As was
decided in Swart v. Van der Vyver, 1970(1) S.A.633 (A.D.) at p.643
(D-E), patrimonial loss as a result of breach of contract
is
generally determined by a comparison between the existing patrimonial
position of the aggrieved party and what it would have
been had the
breach of contract not taken place. It is for the aggrieved party to
prove the fact of this difference and the amount
thereof. Steenkamp
v. Juriaanse, 1907 T.S. 980 at p.986, and Mouton v. Die
Mynwerkersunie, 1977(1) S.A. 119(A.D.) at p.146. The
difference must
of course be related to the time at which performance should have
taken place. In pursuance of this onus it is
for the aggrieved party
to put before the trial court all evidence available to him to enable
the court to determine the compensation
due to him. Turkstra Ltd. v.
Richards, 1926 T.P.D. 276; Versveld v. S.A. Citrus Farms Ltd., 1930
A.D. 452 at p.460; Mkwanazi v.
Van der Merwe, 1970(1) S.A. 609 (A.D.)
at pp. 631-2. The courts have, however, recognized that if it has
been proved that the aggrieved
party has suffered damages, the
difficulty of quantifying the sum due is no reason for the court not
to endeavour as best it can
to determine this amount on the evidence
available to it. Turkstra's case (supra) at pp. 282-3;

5

Versveld's
case (supra) at p.459; Sandler v. Wholesale Coal Suppliers Ltd., 1941
A.D. 194 at p.198.

Now no
evidence was led in this case of the value of the truck as at the
date that the breach of contract occurred. Regard being
had to all
the circumstances of this case as disclosed in the evidence the
absence of such evidence is understandable. As a result
of
defendant's breach of contract the truck was taken out of the country
into a foreign jurisdiction. In view of the relationship
existing
between plaintiff and Voyatjis it would have been difficult, if not
impossible, for plaintiff to have gained access to
the truck in order
to have it valued. From the evidence it would appear that plaintiff
was adversely influenced by the presence
of a police officer to sign,
much against his will, the letter promising to hand over the truck to
voyatjis. Plaintiff refused
to make good his promise contained in the
letter. Despite this Voyatjis claimed to be the owner of the truck
with the right to
take possession of it from defendant. It is clear
therefore that plaintiff and Voyatjis were at all relevant times at
arms-length
and that plaintiff could expect no assistance from that
quarter to prove his case against defendant. Furthermore, in view of
the
fact that plaintiff's success in the action could well expose
Voyatjis to a claim by defendant, it makes the likelihood of
defendant
obtaining Voyatjis' co-operation in pursuing his action
even more remote.

There was
however evidence before the Court a quo relative to the value of the
truck at the time when defendant acted in breach
of his contractual
obligation by delivering the truck to Voyatjis. Plaintiff testified
that at the time he handed the truck to
defendant he had had a buyer
for it for the sum of M15,000. He had bought it as a new truck in
February 1978 for the sum of M18,000.
It had done during the time he
had it 38,000 Km. and was in good condition at the relevant time. He
furthermore states that four
months previous to the time he took the
truck to defendant for repairs he had brought it to defendant to
assess its value. The
value put upon it by defendant was M10,000, It
was suggested to the witness under cross-examination that it was in
fact valued
by defendant at only M5,000, a suggestion strongly
rejected by him. No evidence was led by defendant in support of this
suggestion.

The
evidence as to the offer of M15,000, made in 1980, for the purchase
of the truck is supported by the evidence of Mr.Joseph

6

Masoabi
who said he was the offeror and that the deal had in fact been
clinched. Mr. Makhooane testified that he was present when
defendant
had offered to purchase the truck for M10,000, M5,000 less than what
plaintiff wanted for it.

The above
represents the only evidence adduced by plaintiff with reference to
the value of the truck.

Voyatjis
described the vehicle as being in bad condition, he having spent
M3,000 on the engine. Mr. Paul Nena, the sales manager
of defendant
company, testified that a new Toyota truck would in 1980 have cost a
purchaser Ml6,044. A cash buyer would get a discount
of 12½
per cent on that price. The witness stated that defendant did not
deal in second-hand vehicles nor trade-in second-hand
trucks but that
plaintiff had stated to him that he wanted to sell the truck in
question for M10,000. He did not tell him (the
witness) that he had
found a purchaser for the truck for M15,000. This witness at no stage
saw the truck and did not give any estimate
as to the value.

A manual,
called a Commercial Vehicle Dealers' Digest, containing
recommendations to dealers as to the prices at which they could
buy
second-hand vehicles and subsequently sell them was submitted in
evidence on behalf of plaintiff. Nena was referred to this
manual
under cross-examination and stated that it only constituted a guide
to prices which depended upon the condition of the vehicle.
This
manual indicates that a truck of the kind in question in this case,
viz, a 1978 Toyota, had a trade-in value in 1980 of R8,150
and a
recommended resale value of R10,000.

After
weighing all this evidence the learned Chief Justice concluded that
an appropriate award of compensation would be M10,000.

I can
find no justification for the conclusion that in arriving at this
calculation of the compensation due the Court a quo was
guilty of any
irregularity of misdirection. Nor could it be cogently argued that
there was not sufficient evidence before the Court
for arriving at
its conclusion. So far from there being any striking disparity
between the sum awarded and the sum which this Court
would consider
appropriate I am of the view that the trial Court's assessment is an
eminently fair one which should accordingly
not be disturbed.

In the
result, therefore, the appeal is dismissed

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with
costs.

L. de V. van Winsen

Signed: .........................

L. DE V. VAN WINSEN

Judge of Appeal

I.A. Maisels

I agree
Signed:..........................

I.A. MAISELS

President

W.P. Schutz

I agree
Signed:.........................

W.P. SCHUTZ

Judge of Appeal

Delivered
on this 24th day of August 1981 at MASERU

For
Appellant : Mr. Beckley

For
Respondent: Mr. Masoabi