IN
THE HIGH COURT OF LESOTHO

CIV/T/243/01
In
the matter between:-
MOJI MAKOALA PLAINTIFF

AND

ALBERT TLOKOLA 1^ST DEFENDANT

CAR WORLD (PTY) LTD. 2^ND DEFENDANT

JUDGMENT

DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI

ON THE 19^TH DAY OF MAY 2005

Contract …………………
. the burden of proof of the terms thereof rests on the
party
relying on the contract.
Cance lation of the

contract……………………………………………………………………………………………………
.
When the contract of sale is cance led
……………………………. the parties must be put back
to
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 is
cance 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 fully
the purchase price of the motor vehicle. The
seller did not complete the delivery of the
motor vehicle. He
retained the registration documents of that motor vehicle. As a
result
the contract was by agreement of the parties cancelled. The
seller accepted the return of
the 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 obligations
in 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 party
to perform.

1. BACKGROUND HISTORY OF THE CASE
On or about January
2000, the parties in this matter entered into a
written contract
of the sale of a motor vehicle. The defendant sold
to the
plaintiff one Nissan horse truck for the sum of one hundred
thousands
maloti (100,000.00). The plaintiff who was the purchaser,
paid
fully to the defendant who was the seller, the purchase price of
the
said motor vehicle. The defendant delivered the said truck to
the
plaintiff without its registration documents. There is a
dispute as
regards the defendant’s failure to perform fully the
delivery of the
said truck. According to the defendant, he
withheld the registration
documents 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 was
sold together with the trailer as a single entity.
There was only one
contract between the two parties. This is the
one they both agreed
to cancel because of the defendant’s
failure to hand over to the
plaintiff the registration documents
of the said truck. According to
the plaintiff the defendant kept
on giving unsatisfactory excuses why
the registration documents
were not ready and available to be
handed over to the plaintiff.
One such excuse was that the driver
who at some time drove that
truck to DURBAN had not yet returned
to the defendant the
registration documents of the said truck. The
delay to deliver to
the plaintiff the said registration documents
defeated the purpose
for which the plaintiff purchased the said truck.
The plaintiff
returned the truck to the defendant who accepted to
take
possession of the same. Then and there after retaking the
possession
of the said truck, defendant repaid back to the purchaser
now
plaintiff only fifty percent of the purchase price – leaving
an
amount of fifty thousand as an outstanding balance.

2. PLAINTIFF’S CASE
Plaintiff is suing the
defendant for the refund of the balance of the
purchase price, in
the sum of fifty thousands plus the interest at the
rate of 18.5%
and costs of suit. It is the plaintiff’s case that when
he
returned the vehicle to the defendant, he paid him then and there
an
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 but
he could not say exactly
when because he did not know when and
how he was going to raise
that outstanding balance of fifty
thousands. It is the plaintiff’s
contention that there was a clear
understanding between them that
the defendant will refund the
whole amount of the purchase price
paid to him by the plaintiff. The
question of expenses was never
raised. The reason why the whole
amount of the purchase price was
not then and there refunded at
the time the defendant retook the
possession of the truck was simply
that he did not have that
amount of money in his possession at that
time. Many years have
now lapsed the defendant has failed to
refund to the plaintiff the
whole amount of the purchase price
despite demands by the
plaintiff.

3. DEFENDANT’S CASE
According to the defendant, the
plaintiff returned the truck – saying
he does no longer want it.
Defendant accepted the return of the
truck and refunded fifty
percent of the purchase price. Defendant
claims that he told the
plaintiff at the time they cancelled their
agreement that he will
check the truck first in order to determine if it
was in order and
that he will refund the balance after deducting the
cost of the
repairs of any damage found by him on that truck. The
defendant
further claims that he withheld the registration documents
because
there was an outstanding balance of thirty-five thousands

which he claims the
plaintiff owes him.

It is the defendant’s further claim that the plaintiff
used the truck for
a period of three months while it was in his
possession and for that
defendant must deduct the sum of twenty
thousands maloti (20,000)
– including fair wear and tear during
the period of three months.

4. ISSUES
Although the parties agreed to cancel their
contract of sale of the
motor vehicle the reason for the said
cancellation is in dispute. The
defendant who was the seller
claims that the plaintiff returned the
motor vehicle because he
did no longer want the said motor vehicle.
According to the
plaintiff who was a buyer he returned the said
motor vehicle
because the defendant had not fully delivered it to
him. The
defendant withheld the registration papers of the said
motor
vehicle. This the defendant does not deny. He claims that he
withheld
the said registration papers because the plaintiff had not
paid
fully the purchase price of the said motor vehicle. There was
an
outstanding 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 the
amount of thirty thousands maloti for the cost of
fair wear and tear
during the three months when the said motor
vehicle was in the
possession of the plaintiff.

The court must therefore
determine first of all the terms of the
contract of the parties.
The burden of proof regarding the terms of
the contract, rests on
the party relying on the said contract. Mc
WILLIAMS V FIRST
CONSOLIDATED HOLDINGS (PTY) LTD 1982 2
SA 1(A).

The plaintiff has produced before this court the
contract document in
which the terms of their said contract are
succinctly set out.
According to the plaintiff the terms of the
said contract were
stipulated by the defendant who wrote them out
in his own
handwriting. The plaintiff acceded to the said terms by
appending
his signature thereby signifying his acceptance of the
same. The
purchase price of the said motor vehicle as set out in
the contract is
one hundred thousands maloti. It is the
plaintiff’s evidence that that
is the only amount they agreed
upon as the purchase price of that
motor vehicle. The purchase
price was fully paid up. This is
expressly acknowledged in the
said contract document. The
defendant should have fully delivered
the said motor vehicle to the
plaintiff. He was not entitled to
withhold the registration paper. This
is conceded by the immediate
acceptance of the return of the good
and partial refund of the
purchase price. At the cancellation of the
contract of sale both
parties must be restored what they parted with,
when they
fulfilled their obligations in terms of the contract. This is
a
generally accepted principle in the absence of specific express

provision in the said
contract.

Where there are no express provisions for the discharge
of the
contract, the general principles must apply. GELDENHUYS V
MAREE
1962 2 SA 511. The defendant had not delivered fully that
motor
vehicle. By withholding its registration papers, ownership
of the said
motor vehicle still remained with him. It is the
plaintiff’s evidence
that he had bought the said motor vehicle
for the purpose of hiring it
out to the general public for the
transportation of their goods.
Without its registration papers the
plaintiff could not lawful hire out
the said motor vehicle to the
general public for the transportation of
their goods on the public
roads. The plaintiff is a businessman
whose sole business is to
hire out his motor vehicles to the general
public to transport the
goods on the public roads. It is the defendant
who caused the
cancellation of the contract by his failure to fulfill
his
obligations in terms of the contract. He cannot unfairly
benefit from
that failure.

There is nowhere in the contract document where the
defendant has
stipulated any other terms on which he wishes to
rely. He claims
that there was more than one contract. There was
yet another
contract for the sale of the trailer for thirty-five
thousands maloti or
there about. The burden of proof rests on the
defendant to prove to
the court the terms of the contract on which
he is relying. Mc
WILLIAMS V FIRST CONSOLIDATED HOLDINGS (PTY)
LTD. There is
no 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 the
purchase price for the trailor. The first principle to
apply, where
there are no express provisions in the contract for
its discharge, is
that there is a tacit agreement to restore what
has been delivered in
part performance. When the contract of sale
is cancelled, the buyer
is entitled to the return of any purchase
price he has paid. The seller
is entitled to the return of the
goods purchased. GELDENHUYS V
MAREE 1962 2 SA 511 (0) 513E. No one
party should benefit
unfairly at the expense of the other where
the contract is cancelled
due to the failure of one party to
perform.

The defendant alleges that the plaintiff used the said
motor vehicle
for the period of three months. This he has not
proved. Plaintiff
denies using that motor vehicle. He claims that
it is the legal
requirement that one should have the registration
papers of the
motor vehicle in order to be able to lawfully use it
on public roads.
Without the registration documents he could not
and he did not use
the said motor vehicle. The said motor vehicle
being the truck, he
could not and did not use it to convey himself
and his family to
church. He has not moved house. He could not use
it to carry his
own 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 its
registration papers. But the
defendant did not until the contract was

cancelled.

The defendant though claiming that he is entitled to
withhold portion
of the purchase price for costs of repairs, there
was no proof that
there was any major repair work carried out on
that vehicle. There
is not a shred of evidence to prove the
various claims made by the
defendant. All his claims must fail.

THE PLAINTIFF SUCCEEDS IN HIS ACTION WHICH IS GRANTED
AS PRAYED
WITH COSTS. DEFENDANT’S COUNTER CLAIMS ARE DISMISSED
WITH COSTS.

K. J. Guni
JUDGE.

For Plaintiff : Mr. Phafane

For Defendant : Mr. Mpaka