IN THE HIGH COURT OF LESOTHO
CIV/T/243/01In the matter between:-MOJI MAKOALA PLAINTIFF
AND
ALBERT TLOKOLA 1ST DEFENDANT
CAR WORLD (PTY) LTD. 2ND DEFENDANT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 19TH DAY OF MAY 2005
Contract . the burden of proof of the terms thereof rests on the partyrelying on the contract.Cance lation of the
contract .When the contract of sale is cance led . the parties must be put backto their original status which obtained prior to their entry into the said contract.No one party should benefit unfairly at the expense of the other, where the contract iscance led due to the failure of the one party to perform.
SUMMARY OF THE CASE The two parties entered into a contract of sale of the motor vehicle. The buyer paid fullythe purchase price of the motor vehicle. The seller did not complete the delivery of themotor vehicle. He retained the registration documents of that motor vehicle. As a resultthe contract was by agreement of the parties cancelled. The seller accepted the return ofthe motor vehicle but withheld fifty percent of the purchase price.
HELD : (1) At the cancellation of the contract of sale, both parties must be
restored what they parted with when they fulfilled their obligationsin terms of the contract.
(2) No one party should benefit unfairly at the expense of the other,
where the contract is cancelled due to the failure of the one partyto perform.
1. BACKGROUND HISTORY OF THE CASEOn or about January 2000, the parties in this matter entered into awritten contract of the sale of a motor vehicle. The defendant soldto the plaintiff one Nissan horse truck for the sum of one hundredthousands maloti (100,000.00). The plaintiff who was the purchaser,paid fully to the defendant who was the seller, the purchase price ofthe said motor vehicle. The defendant delivered the said truck to theplaintiff without its registration documents. There is a dispute asregards the defendants failure to perform fully the delivery of thesaid truck. According to the defendant, he withheld the registrationdocuments of the said truck because the plaintiff had not paid fully
for the truck and trailer.
The plaintiff claims he had paid fully for both because the truck wassold together with the trailer as a single entity. There was only onecontract between the two parties. This is the one they both agreedto cancel because of the defendants failure to hand over to theplaintiff the registration documents of the said truck. According tothe plaintiff the defendant kept on giving unsatisfactory excuses whythe registration documents were not ready and available to behanded over to the plaintiff. One such excuse was that the driverwho at some time drove that truck to DURBAN had not yet returnedto the defendant the registration documents of the said truck. Thedelay to deliver to the plaintiff the said registration documentsdefeated the purpose for which the plaintiff purchased the said truck.The plaintiff returned the truck to the defendant who accepted totake possession of the same. Then and there after retaking thepossession of the said truck, defendant repaid back to the purchasernow plaintiff only fifty percent of the purchase price leaving anamount of fifty thousand as an outstanding balance.
2. PLAINTIFFS CASEPlaintiff is suing the defendant for the refund of the balance of thepurchase price, in the sum of fifty thousands plus the interest at therate of 18.5% and costs of suit. It is the plaintiffs case that whenhe returned the vehicle to the defendant, he paid him then and therean amount of fifty thousands. Defendant told the plaintiff that he
does not have the rest of the amount of the purchase price.He promised the plaintiff that he will pay it some time in future buthe could not say exactly when because he did not know when andhow he was going to raise that outstanding balance of fiftythousands. It is the plaintiffs contention that there was a clearunderstanding between them that the defendant will refund thewhole amount of the purchase price paid to him by the plaintiff. Thequestion of expenses was never raised. The reason why the wholeamount of the purchase price was not then and there refunded atthe time the defendant retook the possession of the truck was simplythat he did not have that amount of money in his possession at thattime. Many years have now lapsed the defendant has failed torefund to the plaintiff the whole amount of the purchase pricedespite demands by the plaintiff.
3. DEFENDANTS CASEAccording to the defendant, the plaintiff returned the truck sayinghe does no longer want it. Defendant accepted the return of thetruck and refunded fifty percent of the purchase price. Defendantclaims that he told the plaintiff at the time they cancelled theiragreement that he will check the truck first in order to determine if itwas in order and that he will refund the balance after deducting thecost of the repairs of any damage found by him on that truck. Thedefendant further claims that he withheld the registration documentsbecause there was an outstanding balance of thirty-five thousands
which he claims the plaintiff owes him.
It is the defendants further claim that the plaintiff used the truck fora period of three months while it was in his possession and for thatdefendant must deduct the sum of twenty thousands maloti (20,000) including fair wear and tear during the period of three months.
4. ISSUESAlthough the parties agreed to cancel their contract of sale of themotor vehicle the reason for the said cancellation is in dispute. Thedefendant who was the seller claims that the plaintiff returned themotor vehicle because he did no longer want the said motor vehicle.According to the plaintiff who was a buyer he returned the saidmotor vehicle because the defendant had not fully delivered it tohim. The defendant withheld the registration papers of the saidmotor vehicle. This the defendant does not deny. He claims that hewithheld the said registration papers because the plaintiff had notpaid fully the purchase price of the said motor vehicle. There was anoutstanding balance on the purchase price in the amount of thirty-five thousands maloti.
The defendant claims that he is entitled to withhold the refund in theamount of thirty thousands maloti for the cost of fair wear and tearduring the three months when the said motor vehicle was in thepossession of the plaintiff.
The court must therefore determine first of all the terms of thecontract of the parties. The burden of proof regarding the terms ofthe contract, rests on the party relying on the said contract. Mc WILLIAMS V FIRST CONSOLIDATED HOLDINGS (PTY) LTD 1982 2SA 1(A).
The plaintiff has produced before this court the contract document inwhich the terms of their said contract are succinctly set out.According to the plaintiff the terms of the said contract werestipulated by the defendant who wrote them out in his ownhandwriting. The plaintiff acceded to the said terms by appendinghis signature thereby signifying his acceptance of the same. Thepurchase price of the said motor vehicle as set out in the contract isone hundred thousands maloti. It is the plaintiffs evidence that thatis the only amount they agreed upon as the purchase price of thatmotor vehicle. The purchase price was fully paid up. This isexpressly acknowledged in the said contract document. Thedefendant should have fully delivered the said motor vehicle to theplaintiff. He was not entitled to withhold the registration paper. Thisis conceded by the immediate acceptance of the return of the goodand partial refund of the purchase price. At the cancellation of thecontract of sale both parties must be restored what they parted with,when they fulfilled their obligations in terms of the contract. This isa generally accepted principle in the absence of specific express
provision in the said contract.
Where there are no express provisions for the discharge of thecontract, the general principles must apply. GELDENHUYS V MAREE1962 2 SA 511. The defendant had not delivered fully that motorvehicle. By withholding its registration papers, ownership of the saidmotor vehicle still remained with him. It is the plaintiffs evidencethat he had bought the said motor vehicle for the purpose of hiring itout to the general public for the transportation of their goods.Without its registration papers the plaintiff could not lawful hire outthe said motor vehicle to the general public for the transportation oftheir goods on the public roads. The plaintiff is a businessmanwhose sole business is to hire out his motor vehicles to the generalpublic to transport the goods on the public roads. It is the defendantwho caused the cancellation of the contract by his failure to fulfill hisobligations in terms of the contract. He cannot unfairly benefit fromthat failure.
There is nowhere in the contract document where the defendant hasstipulated any other terms on which he wishes to rely. He claimsthat there was more than one contract. There was yet anothercontract for the sale of the trailer for thirty-five thousands maloti orthere about. The burden of proof rests on the defendant to prove tothe court the terms of the contract on which he is relying. McWILLIAMS V FIRST CONSOLIDATED HOLDINGS (PTY) LTD. There isno proof that there was yet another verbal contract between the
parties for the sale of a trailor.
Therefore the defendant has failed to prove that he is owed thepurchase price for the trailor. The first principle to apply, wherethere are no express provisions in the contract for its discharge, isthat there is a tacit agreement to restore what has been delivered inpart performance. When the contract of sale is cancelled, the buyeris entitled to the return of any purchase price he has paid. The selleris entitled to the return of the goods purchased. GELDENHUYS VMAREE 1962 2 SA 511 (0) 513E. No one party should benefitunfairly at the expense of the other where the contract is cancelleddue to the failure of one party to perform.
The defendant alleges that the plaintiff used the said motor vehiclefor the period of three months. This he has not proved. Plaintiffdenies using that motor vehicle. He claims that it is the legalrequirement that one should have the registration papers of themotor vehicle in order to be able to lawfully use it on public roads.Without the registration documents he could not and he did not usethe said motor vehicle. The said motor vehicle being the truck, hecould not and did not use it to convey himself and his family tochurch. He has not moved house. He could not use it to carry hisown goods to any place. He had no personal use for that big truck.For the three months when it remained in his possession it was idle.He at all times had hoped that the defendant will deliver to him itsregistration papers. But the defendant did not until the contract was
cancelled.
The defendant though claiming that he is entitled to withhold portionof the purchase price for costs of repairs, there was no proof thatthere was any major repair work carried out on that vehicle. Thereis not a shred of evidence to prove the various claims made by thedefendant. All his claims must fail.
THE PLAINTIFF SUCCEEDS IN HIS ACTION WHICH IS GRANTED AS PRAYED WITH COSTS. DEFENDANTS COUNTER CLAIMS ARE DISMISSED WITH COSTS.
K. J. GuniJUDGE.
For Plaintiff : Mr. Phafane
For Defendant : Mr. Mpaka