CIV/T/154/81

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

JOAQUIM
SILVA FREITAS Plaintiff

V

JARDAN DE
JARDIN 1st Defendant

JOAD
VELHO REGO 2nd Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 29th day of October.
1982.

The
plaintiff sues the two defendants for an amount of twenty thousand
maluti and interest at a stated rate on the plaintiff's Declaration.

This was a loan which both defendants undertook to repay to the
plaintiff. The two defendants, simply deny the existence of such
a
loan between them and the plaintiff.

In his
evidence in brief, the plaintiff deposed that he and the defendants
were the best of friends. He often visited at their business

premises. Then the defendants requested a loan of an amount of twenty
thousand maluti (20,000.00) and promised to repay it within
a matter
of days. The reason for such a big loan was that the defendants
wished to purchase, from an unknown African gentlemen,
a number of
Kruger pounds. The plaintiff, like a good friend he says he was of
the defendants, agreed but then stated that he did
not have such a
large amount of cash money on his person nor did he have it at home.
He promised to draw money from the bank the
following day and would
then be in a position to

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grant the
loan as requested. He charged no interest on this huge loan.

The
plaintiff also testified that he had a cheque cashed at a Bank the
following day. He was with Mr. Sebatana who is his part-time

mechanic. It was in bundles of ten maluti notes of about a hundred
maluti each. Thereafter it was placed in en ordinary off-whitish
Bank
bag which are provided free to customers. Plaintiff got off and took
the "money" with him and went round the defendant's

premises. There he delivered the required cash which was counted and
placed in a small safe. Plaintiff then left to join Sebatana
in his
car outside. They drove off. Plaintiff is amply corroborated by this
independent witnesses in his evidence as briefly outlined
above.

The
promised days passed and nothing happened. He then inquired when
payment would be made. There began a saga of Intrique which

culminated with court actions, first in the subordinate court and
secondly in this Court. Trucks were either loaned or held in
security
for payment of a loan; false arrests were, in the process, made, to
mention but a few of the vile things that occurred
after the demand
of payment.

The
plaintiff says that later the defendant agreed to liquidate the
payment of the loan by instalments of M2,000.00 per month. A

postdated cheque was issued payable on 30/9/80 but on presentation it
was returned with the following inscription on the face of
it: "Refer
to drawer" which is a Banking language of saying that there are
no sufficient funds to meet the payment of
that cheque. I am
referring to "Exh.'B'". The defendants say this cheque was
a security of a loan of an equivalent amount
the first defendant had
loaned from the plaintiff when he proceeded to Portugal on

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holiday.
It had nothing to do with a loan of M20,000.00 which they know
nothing about. It will be seen shortly when we deal with
the demeanor
of witnesses that the defendants had previously made sworn statements
in which they had denied having borrowed any
sum of money at all from
the plaintiff.

The
defendants say that the plaintiff wished to buy Kruger pounds and
lost a huge sum of M40,000.00. As usual, he was swindled during
broad
daylight and all the parties were present. However, the defendants
could remember none of these characters. Indeed, the chief
negotiator
was simply referred to as the strange gentleman.

The
second defendant called Mr. Simon Lipitsi as his witness. This man is
a salesman in his business. He was engaged as such on
that particular
day when the plaintiff arrived at the shop to bring the money. He
says he went out to see who was accompanying
the plaintiff but found
he was alone. But it is common cause that Sebatana was In the car. He
gave the colour of the plaintiff's
car as green whereas it was white.
The plaintiff presently owns a green coloured car! He saw the
plaintiff enter the door carrying
a leather bag but everybody agrees
that the plaintiff carried the usual off-white Bank bag in which
money was contained. He was
generally not an impressive witness who
lied deliberately and unshamedly. This was a witness who had been
brought patently to bolster
up the story of the defendants which in
the words of the plaintiff's counsel, was becoming "weaker and
weaker".

The two
defendants attested to Affidavits in Proceedings in the subordinate
court in which they categorically denied ever having
borrowed money
whatsoever from the plaintiff at any time. The second defendant
ultimately found himself

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having to
say that he just signed the Affidavit without knowing what was in it.
Both defendants were greatly shocked by the production
of "Exh.B"
because I think when the affidavits were made it was thought that it
had somehow disappeared. When it appeared
dramatically in Court, it
had to be explained and that is where, in my view, a web of lies
began such as that "Exh.B"
was meant to be a security. Who
ever heard of a cheque being an instrument for security? A cheque is
intended to be paid into the
Bank when it falls due.

The
second defendant did not deny that there was discussion regarding a
building project. Why would the plaintiff be interested
in discussing
such a venture with him for. The proposal had been made, in my view,
as that the second defendant should undertake
such a project and with
the proceeds repay the loan.

When the
first defendant returned from a trip overseas he found a handsome
profit of M6,000.00 awaiting him. This was a profit over
a matter of
about six weeks. The Books of the Bussiness were requested and
produced. I saw them. They were not Books of Account
from which any
intelligible information could be gathered. They were utterly
useless. If that Balance Sheet,(Exh.F) was a Balance
Sheet which was
submitted to the Receiver of Revenue, somebody is telling a lie
somewhere on the defendants' side or was not given
all the necessary
information.

First
defendant now alleges that he subsequently paid the plaintiff a sum
of M2,000.00, not directly but through his mechanic, one
Moreira da
Silvass. However, he never insisted upon a receipt or some document
to the effect that a cash amount of M2,000.00 had
been received by
Moreira da Silvass. This gentleman has denied the existence of such a
transaction. I believe him. I saw him. He
appeared a truthful witness
to me.

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The
defendants were both poor witnesses and were obviously fabricating
and each was forced to concede that they told untruths either
here in
this Court or in the court below. Each one of them is caught under a
web of lies connected with this loan which is advanced
as a reason
for making this payment. (i.e. Exh.B). This case has demonstrated
clearly to me that the second defendant is a man
who will say
anything on Oath or otherwise to advance what he thinks is in the
best interest of his case, regardless of what it
is and regardless of
the truth. And the same can be said of the first Defendant because he
did know what was in the Affidavit.
He knew what was in the Affidavit
and he disclaimed any previous loan transaction or any loan with the
plaintiff at all. The final
question to be answered is: why did the
defendants make a payment of M2,000.00? A person does not make
payments for nothing. Having
rejected the web of lies surrounding the
explanation of this cheque (Exh.B), there remains one reasonable
inference namely that
the defendants were liquidating a debt as the
plaintiff alleged.

The
probabilities in favour of the plaintiff are enumerable: there is the
Sebatana incident; there is a cheque (Exh.'B') and, of
course, the
incredible evidence of both the defendants.

The story
of the M40,000.00 has proved to be a complete fabrication.

In my
view of the matter, the whole evidence of the defendants and their
witness is an incredibility and I do not accept it. The
probabilities
are overwhelmingly in favour of

the
plaintiff. He has discharged whatever onus was on him.

The
judgment of the Court is as follows :-

1. Payment
   of the sum of M20,000.00

   
   

2. Interest
   thereon at 10% per annum a temporate morae

   
   

3. Costs
   of the suit.

   
   

JUDGE.

29th
October, 1982.

For
Plaintiff : Mr. Sapire

For
Defendants : Adv. Lombard.