CIV/T/260/85

IN THE
HIGH COURT OF LESOTHO

In the
Matter of

NTAI
PHEKO Plaintiff

v.

MAFETENG
UNITED CO-OPERATIVE

SOCIETY.
Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 24th day of July,
1985.

The
Plaintiff sues the Defendant for provisional sentence in an amount of
M3,996-50 on an undated ack­nowledgement of debt allegedly
signed
by its duly authorised agents on its behalf, certain L. Matsepe as
Chairman and certain Lefosa and Manyeli as members of
Defendant's
committee.

The
English translation of the document in question which was written in
Sesotho reads as follows

"I, Leballo Matsepe together with Moabi Manyeli and Thabiso
Lefosa sat in the name of the Executive Committee of Mafeteng
United
co­op Society in the presence of Ntai Pheko and Suping Pheko to
look into the problems which were brought about by the
failure to
give Ntai Pheko notice in respect of his sub-lease on site No 238 of
the Co-operative.

After a long discussion we as a committee admitted liability of the
damages Ntai Pheko was claiming which in all amounted to R3,996.50.

We requested the children of Pheko to reduce our liability of the sum
claimed. The conclusion was for us to meet on Saturday 23/02/85
to
con­sider our request.

CHAIRMAN
OF THE COMMITTEE (Signed) L. Matsepe MEMBERS

"T. Lefosa

" A. Manyeli

SUB-LESEE
" Ntai Pheko

WITNESS
" S. Pheko."

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The
summons calls upon the Defendant to admit or deny the signatures of
its agents and their authority to sign the document on the

Defendant's behalf. The defen­dant had denied that the document
was signed by the defen­dant or by any of its agents on
its
behalf or that they were authorised by the Defendants to do so In
blunter fashion, the Defendant has further alleged that the
docu­ment
in question is a forgery and fraudulently made by the Plaintiff.

Oral
evidence accordingly was heard in terms of Rule of Court 9(7) as to
the authenticity of the signa­tures of the Defendant's
agents to
the acknowledgement of debt and their authority to sign on behalf of
the Defendant.

The
dispute between the Plaintiff and the Defen­dant arises out of
the following circumstances On 17th March, 1983, the Defendant
let to
the Plaintiff a portion of Site No 238 Mafeteng held by the Defendant
for the erection of a shack to house a glass-works
business at a
rental of M20 per month. The lease which is in writing further
provided that the Plaintiff's tenancy would continue
from month to
month and any improvements and changes to the property leased would
be notified in writing to the Defendant whose
written consent thereto
would be made, so the lease reads, to avoid confusion

The
Plaintiff testified that in addition to using the property for a
glass-works, he also used it, although apparently contrary
to the
conditions of his tenancy, for the purposes of brickmaking and to
accom­modate his transport vehicles.

Although
no mention of any letters was made by him in his evidence, it emerged
in the course of the evidence of the Defendant's
witnesses that two
letters had been written by the Defendant to Plaintiff. The first
which is Exh E and is dated 27th September,
1984 is unequivocal
notice to the Plaintiff that the Plaintiff was required

3

to vacate
the property by January, 1985 to allow the Defendant to continue with
its plans to erect a buil­ding on the site However,
the Plaintiff
has denied receiving this letter The second letter, which the
Plaintiff admits receiving is dated 5th December, 1984,
and again
requires the Plaintiff to vacate the premises by the end of that
month.

A witness
Agnes, who is the wife of the Defendant's Chairman, and who is
employed in a clerical capacity in the Defendant's office,
gave
evidence that she personally delivered the letter of 27th September,
1984 into the hand of the Plantiff. However, it is not
necessary for
me to decide where the truth lies in this dispute. An action for
ejectment has been instituted by the Defendant which
the Plaintiff is
defending and this dispute no doubt will be resolved then. Save in
regard to certain pro­babilities that emerged
from the
circumstances of this claim for ejectment I make no finding in that
regard.

The next
event is that on or about 21st February, 1985, an undated document
headed "Description of Claim", and which is
Exh G, was
delivered by Plaintiff at the Defendant's offices and which itemises
several claims for glass, brick laying and transport
to the grand
total of M3.996.50. Agnes said that when she received this document
from the Plaintiff, which he told her she should
deliver to the
Chairman of the Defendant, she informed him, as was the office
practice in connection with its dealings with the
public, that the
committee would be meeting as usual on the 23rd February, and that
Plaintiff should attend that meeting.

The
Plaintiff denies this in total. His version is that on 27th January,
1985 when he found people dig­ging foundations on the
property,
he went to the Chair­man with his complaint and it was decided
that he should meet the committee. The Plaintiff says
that on 23rd
February, 1985, he met the Chairman, Matsepe and certain Lefosa and
Manyeli who represented themselves to him as a
quorum of the
Committee of the Defendant. The

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Plaintiff
says that he claimed M3.996.50 from the Defendant as damages and
after some discussion, the committee accepted liability
in full, that
the Plaintiff then wrote out the acknowledgment of debt which he read
over to all those present and which the committee
agreed to by
signing it Plaintiff's father, who was also present, corroborates and
supports this evidence Plaintiff says that the
last paragraph of the
acknowledgment recorded the Committee's request to him to reduce his
claim and that he agreed to look into
the matter. However, says the
Plaintiff, the chairman refused to place the Defendant's stamp on the
document and for that reason
he did not meet the com­mittee on
23rd February, 1985.

The
Plaintiff stated that he knows Matsepe's signa­ture well and it
is his signature on the acknowledgment. He said further
that Lefosa
and Manyeli claimed that they could not write and Matsepe made a
cross for each of them and wrote the name of each
of them next to
such cross with their apparent approval.

This
evidence departs materially from the allega­tions contained in
the summons which are to the effect that the Defendant's
agents
signed the document, but in the light of my conclusions on the whole
matter, it is not necessary for me to consider whether
the Plaintiff
is entitled to orovisional sentence on a summons alleging a signature
whereas the evidence reveals that a mark was
placed by another's hand
on the document. Nor need I resolve the question whether a mark will
suffice in an action for provisional
sentence about which some doubt
was cast in the decision of Carsterns v. Hendriks (1836) 1 M.64. See
however, Philips v. Moqoza
22 S.C.49 which equates a mark to a
signature for the purposes of provisional sentences

But where
the summons alleges the mark, qua signa­ture, to be the mark of
the signatory and the evidence

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shows
that it never was the alleged signatory's mark but that it was placed
there by another allegedly with the approval of the
signatory then it
may well be that the summons is defective and provisional sentence
should be refused

In the
case of disputed signatures to a liquid document, the onus, of
course, is on the Plaintiff as holder of the document on which
his
claim is based,to prove the authenticy of the document, that is, to
prove on a balance of probabilities that the signatures
arc the
signatures of those the Plaintiff claims them to be Where the
authority of the agent is also in issue then here too the
onus
similarly is on the Plaintiff.

The fact
that the defendant's evidence amounts to an allegation of forgery
against the Plaintiff does not affect his onus which
still remains to
prove on a balance of probabilities, the authenticity of the disputed
signature and/or marks as in casu.

In this
case both the Plaintiff and his father claim that the signature of
the Chairman and the marks of the Committee members were
placed on
the document by the Chairman in their presence. Manyeli was ill in
hospital and unable to attend Court and nothing turns
on his failure
to give evidence. I am satisfied that he was absent for good reason
and not because of any unwillingness to give
evidence. Both Matsepe
and Lefosa gave evidence and both categorically denied meeting the
Defendant or that Matsepe signed the
document.

If I have
any criticism of the Plaintiff's evidence, it is that it was given in
an off-hand manner and without any attempt to explain
any of the
several difficulties which I find in the way of accepting it. But I
cannot fault him or his father on their demeanour
and I am unable to
reject their evidence solely on the Grounds of credibility In sofar
as the Defendant's witnesses are concerned,
I have no criticism
either of their demeanour or of their readiness to answer

6

questions
fully and fairly. Here again I am unable to reject their evidence
solely on credibility. In the result, therefore, since
I am unable to
say that the truth lies with either the Plaintiff or the Defendant I
turn to the probabilities of the matter.

The
Signatures.

Matsepe has stated categorically that the signature is not his on the
acknowledgment of debt. When pressed on the apparent similarity
to
his signature, he pointed amongst other things to the formation of
the capital letter M, which indeed to my untrained eye is
notably
different from the M of his signature on an authentic document such
as the agreement of lease Exh 'A'. There also one sees
a sharp
difference between the writing of the names of Lefosa and Manyeli
allegedly written by Matsepe and the writing of the name
Matsepe in
his signature, but again I claim no expertise in the examination of
handwriting. Matsepe certainly, however, knows his
own writing and is
qualified to speak on that and he says that the signatures are not in
his writing.

The
acknowledgment of debt.

Several
surprising features arise from the document and its execution

(1) For a totally unknown reason, Matsepe, although he had allegedly
plainly ad­mitted liability for the amount claimed, refused
to
write the document himself, even though he was able to do so. Nor did
he read the document himself before signing it. he allowed
the
Plaintiff to read what he, the Plaintiff.had written as recording
their agreement, and simply signed the document thereafter.
It seems
to me highly improbable that Matsepe would so perfunctorily have
performed his duties by simply signing a document written
and read to
him by the Plaintiff,

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wholly in whose favour the document is, and not check it himself
before signing it.

(11) Although Matsepe and his committee had accepted liability and
were prepared to sign a document recording the Defendant's liability,

they refused to place the Defendant's stamp upon the document,
contrary to their practice and the appearance of all other documents

executed by the Defendant that such documents must bear the
Defendant's stamp As the Plaintiff's father put it in evidence "by

the chairman's refusal to stamp the agreement he was somer­saulting
against what he had agreed." It seems to me to be
improbable
that this change of heart would take place within seconds of agreeing
to accept liability and then refusing to complete
the document by
stamping it accor­ding to their practice

The
Acceptance of liability for the amount claimed

1. The
   Plaintiff's account is, to say the least of it, mystifying in its
   details. What brick­laying is referred to is not explained
   nor
   was any evidence proffered of any debate of the quantum of each
   item. No attempt appears to have been made to strike a bargain
   and
   the Committee members are supposed to have admitted liability down
   to the last cent of the Plaintiff's claim

   
   

2. Moreover,
   the Defendant's committee have

   
   

totally ignored the fact that the Plaintiff was on a monthly lease
which the Defendant at least purported to terminate by a written

notice. No attempt had apparently been made to use this fact in
bargaining with the Plaintiff

I find it difficult to accept as a matter of probability that the
Defendant's committee would have allowed themselves to be led
by the
nose by the Plaintiff.

The
consequences of Defendant's acceptance of Liability.

Having
secured the Defendant's acceptance of liability for the full amount
claimed as damages for the unlawful termination of his
tenancy, the
Plaintiff nevertheless has remained in occupation of the property.
One would expect at least that acceptance by the
Defendant of the
Plaintiff's claim would bring about an acceptance by the Plaintiff of
the lawful termination of his lease The
continued occupation by the

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Plaintiff
of the property and the failure of the Defendant's committee to
secure the Plaintiff's removal from the site at least
as a quid pro
quo for the acknowledgment of debt in a very substan­tial amount
strongly indicates that no such acknowledgment
was ever given.

If the
parol evidence makes the genuineness of the signature of the
Defendant's agents doubtful then pro­visional sentence cannot
be
granted. See Steel v. De Wet 1M.93 My views on the above matters lead
me to the further conclusion that it is more probable
than not that
Matsepe did not sign the acknowledgment of debt and I accordingly
dismiss the Plaintiff's action with costs.

Signed
D.S. LEVY

ACTING
JUDGE

24th
July, 1985.

For
Plaintiff Mr. Pheko,

For
Defendant Adv. Z. Mda