IN THE HIGH COURT OF LESOTHO

HELD AT MASERU                                 CIV/T/62/2008 

In the matter between:

SOLOMON CHABATSANE                                     Plaintiff

And

JUDGEMENT

Delivered the Hon. Mr Justice T. E. Monapathi

On the 15^th day of March 2011

1.        The Plaintiff in this case filed a claim in which he asked for an order in the following terms:

a)  Payment of M200,000.00 for damages occasioned unto Plaintiff by Third Respondent;

b)  18% interest thereon;

c)   Costs of suit;

d)  Further and/or alternative relief.

2.        This matter was enrolled for hearing on the 31^st August 2010 and the Defendants elected not to defend.  The matter then proceeded uncontested. 

3.        The claim arose out of an alleged breach of contract between the Plaintiff and the Second Defendant.  It is alleged that Plaintiff had entered into contract with the Defendant in terms of which (Plaintiff) was to “grew and supply the seedlings” so that he could sell to government (Second Defendant).  This agreement was evidence by exhibit “D” and various orders: exhibit A5, A6, A1, A2, A3 and A4.  On a balance of probabilities such an agreement was made and the orders were made.

4.        Plaintiff gave evidence that the value of one tree was 0.80L.  He further testified that he had planted trees, totalling to forty four thousand (M44,000.00) in price.  However, government had not collected or paid for the said seedlings.  There was wastage and loss of profit and income against the Plaintiff.

5.        Plaintiff testified that government had failed to pay the M44,000.00 and gave evidence to the effect that as a result of this breach by the Defendants, he has incurred other losses such as loss of business, loss of livestock and loss of livelihood.  Plaintiff consequently suffered a loss amounting to M200,000.00.  This was separated from the loss for seedlings. See prayer (b).  Defendants had not paid for the seedlings.  Plaintiff had to sell his livestock to make good the demand for wages by his employees. Plaintiff claimed that this failure by government had also affected the paying of his children’s school fees and other household and family necessities.

6.        I concluded that it was very clear from the facts that Plaintiff had a contract with government and government had failed to abide by the terms of the contract.  This means Plaintiff has to be compensated for the loss he had suffered as a result of failure to perform by government.  There is no doubt that Plaintiff has to be awarded the amount of M44,000.00 as loss suffered.

7.        With regard to M200,000.00 Plaintiff has failed to prove before this court why he is entitled to that specified amount and as to how the loss was proximately connected to his loss of trees.  He did not show before this court the costs he has incurred other than the M44,000.00.  He does not even tell the court the amount used to pay the wages of the employees.  If the court can order the government to pay the Plaintiff M200,000.00 that would be unfair because the agreement between the parties was that Plaintiff should plant the seedlings costing M44,000.00.  It is not clear as to why Plaintiff continued to plant more and more seedlings when the government did not even collect the seedlings which initially cost the M44,000.00.  It is to be presumed that in this charge he should have included costs, overheads and profit. How would Defendants be responsible for every incidental loss however remotely connected.

8.        In my opinion the loss of livestock and livelihood do not form part of damages especially when the Plaintiff did not show before this court that he had exceeded M44,000.00 that was agreed upon.  It is clear that this can be considered as remote damages and it is too harsh unfair unjust and unconscionable to order such damages.  See the case of the Wagon Mound (No) (1961) AC 388 at 422-423 where it was said;

“A man must be considered to be responsible for the probable consequences of his act.  To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behavior.”  The principles generally involved in our law being that the Plaintiff’s damage not be “too remote” and a man’s liability must be a direct consequence of his act or which he must have foreseen while his act is an “adequate cause” of damage for which he is in law liable.” 

See also The Law of Delict, PQR Boberg(1984) page 380-382.

9.        For this reason I find that loss of livestock and livelihood are secondary damages and they are too remote to be claimed.  Plaintiff is only entitled to M44,000.00 as damages and costs of suit.

--------------------

T. E. Monapathi

Judge

For Plaintiff                 :             Miss Thabane

For Defendants            :             No Appearance