CIV/APN/347/2004
IN THE HIGH COURT OF LESOTHO

In the
matter between:-

SOUTHERN
LESOTHO CONSTRUCTION (PTY) LTD APPLICANT

and

MNM
CONSTRUCTION (PTY) LTD 1st RESPONDENT

EDUCATION
FACILITY UNIT 2nd RESPONDENT

MINISTRY
OF EDUCATION 3rd RESPONDENT

ATTORNEY
GENERAL 4th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs Justice A.M. Hlajoane on the 15th December
2004.

This is
an application for an interdict of the first Respondent from
continuing to build unilaterally against the spirit of the
Joint
Venture, Litsebe Primary School. First Respondent is also being asked
to account and disclose all financial dealings in relation
to the
Joint Venture to the Applicant. Second Respondent on the other side
is being asked to withhold all moneys from first Respondent
in
relation to the

-2-Joint
Venture pending finalisation of this matter.

It has
been the Applicant's case that in terms of the Agreement signed
between him and the first Respondent, they had entered into
a
co-operation to tender jointly under the first Respondent's name fort
he construction of a list of Four Primary Schools. The
said Agreement
has been attached to the Applicant's founding papers as Annexure "B".

It was a
term of the Agreement that the following rules and conditions should
apply, in case of winning of any of the tendered schools;
that

- All
expenses for the execution of the project shall be shared on a fifty
fifty basis by the two companies.

- In the
same token, all profits shall be shared equally by the two companies.

The four
schools were:

- Montsa
Primary School

- Litsebe
Primary School

- Ntsupe
Primary School

- and
Thaba-Khubelu Primary School.

According
to the Applicant around the 2nd December, 2003 there was an
invitation to tender for the building of Litsebe Primary School.
That
tender was awarded to the Joint Venture, so that the tender was to be
dealt with in accordance with he joint venture agreement.

The first
Respondent on the other hand showed that it had not been possible to
put the contract into effect due to some intervening
impossibility as
the Ministry of

-3-

Education
would not allow them to tender jointly. In response to that, the
Applicant pointed out that in submitting tenders both
parties used
the same name MNM Construction, so that there was just no way that it
could be said they were separate.

What is
common cause is that in terms of the contract, Joint Venture
Agreement, the parties to the agreement would tender under
the first
Respondent's name for various schools as indicated in the Agreement.
On reading the terms of the Joint Venture Agreement,
one finds that
they are very clear and very simple.

Parties
agreed to cooperate and tender jointly under first Respondent's name.
As rightly pointed out by the Applicant, parties never
agreed to
contract on the basis of a supposition on the question of whether or
not any of them may tender alone in case inviter
does not approve
both companies to build jointly. A supposition cannot be created but
has to be so expressly stated in the contract,
Dutch Reformed Church
Council v Croker 1953 (4) S.A. 53. In the absence of any such
supposition in the contract, the parties were
bound by the terms of
the contract, and had therefore to abide by it.

Van der
Merwe in his book, general principles on contract p.263 has this to
say

that,

"The
unusual manner in which contractants provide for uncertainty about a
future event which may after their obligations take
place is by
qualifying an obligation by means of a condition."

Looking
at the parties's contract, parties never qualified their obligation
with any conditions.

-4-

Both
parties signed the contract, the same parties that deposed to
affidavits in this case. The intentions of the parties could
be
gathered from the words used in the Agreement which they have both
signed. Their so signing the Agreement is to be taken as
enough proof
that signifies that they agreed to the terms of the contract, Van Der
Merwe at 277. The contract that they both entered
into, that is the
Applicant and first Respondent was such that would not allow them to
later change and be heard to verbally say
they did not tender jointly
or work jointly. The contract as it stands would not allow them to
say that, First National Bank of
S.A Ltd vs Lynn No 1996 (2) S.A 339.

First
Respondent has challenged the Applicant for having chosen to approach
the Court seeking for an interdict. This was raised
for the first
time in his heads of argument, thus denying the Applicant the chance
of responding. He has also raised for the first
time in his heads
that there was a dispute of fact that could not be resolved on
papers, thus deny Applicant the opportunity to
respond to that. It is
not only for the applicant who stands or falls by his founding
affidavits, Attorney General v Motaung C
of A (CIV) 18/2001, the
Respondent also has to put forth his defence in his answering papers.

First
Respondent also alleged that the Applicant withdrew from the contract
as he realized that the place was inaccessible. That
has just been an
allegation as nothing was attached to the papers to show that in fact
Applicant withdrew from the contract. Since
it was the first
Respondent who alleged the withdrawal, he ought to prove it and in
the absence of any such proof they must fail
in their defence.

Since the
first Respondent has not denied that they entered into a Joint
Venture Agreement with the Applicant, but only relying
on a
supposition not forming part

-5-or not
stipulated in the Agreement, the Applicant must succeed.

The
Application succeeds with costs.

A. M.
HLAJOANE JUDGE

For
Applicant: Mr Habasisa For Respondent: Mr Molapo