IN THE HIGH COURT OF LESOTHO
In the matter between:
PHATELA MOTHAE PLAINTIFF
WATER AND SEWERAGE AUTHORITY DEFENDANT
Mr. Nathane : for the Plaintiff Mr. Mohau : for the Defendant
Delivered by the Honourable Mr. justice T. Monapathi on the 23rd day of November 2000
This Defendant has given notice that it intends to except to the Plaintiffs declaration as amplified by further particulars and the amendment on the 4th August 2000 on the following grounds:
Firstly, that the said declaration as amended does not disclose a cause of action in as much as the purported agreement attached thereto "lacked the
necessary and fundamental tenets of a valid and enforceable contract". Secondly, that the said declaration as amended was so vague and embarrassing as to the precise nature of the terms of agreement between the Plaintiff and the Defendant.
As background to the application for amendment of his declaration the Plaintiff, the Defendant had before filed notice that it intended to apply to Court at the hearing of this matter in terms of Rule 32(7) to have the following points of law adjudicated upon before any evidence was led. The points were as follows:
"I. That according to paragraph 4 and succeeding paragraphs of the Plaintiffs declaration the Plaintiff and the Defendant's predecessor-inrtitle namely, the Water Branch entered into a valid agreement and it is that agreement which constituted the basis of Plaintiffs entire claim against the Defendant.
2. The Defendant would ask the Court to determine whether the alleged verbal agreement relied upon by the Plaintiff was a valid and enforceable agreement in the light of the provisions of section 10 of the Government Proceedings and Contracts Act of 1965." This section 10 of the said Act of 1965 reads as follows:
"A contract or agreement other than a contract or agreement entered into by virtue of the provision of sections 8 and 9 purporting to be made on behalf of Her Majesty in her government of Basutoland or Basutoland government shall be
held to be a contract or agreement made by and on behalf of Her Majesty in her government of Basutoland if signed by a Minister of Motlotlehi's government or by an officer authorised by such Minister and unless so signed shall be of no effect. The contracts excepted by the section 8 and 9 of the Act concern agreements with other States or International Organisations and contracts of employment."
Then followed the amended declaration whose paragraph 4 reads as follows: "Sometime in or around 1988 Plaintiff and Defendant's predecessor in title Water Branch entered into a written agreement the terms of which were inter alia that Plaintiff would construct at own costs a sewer pump as a cadastral plan did not provide for the same." (My underling)
It needed to be recorded that the previous declaration, that is the unamended declaration of the Plaintiff at paragraph 4 read as follows:
Sometimes in or around 1988 Plaintiff and Defendant's predecessor in title Water Branch entered into a verbal agreement the terms of which were inter alia that the Plaintiff would construct at own cost a sewer pump as the cadastral plan did not provide for the same." (My underlining)
What was important was that the amended declaration speaks of the agreement as having been a written agreement whereas the original declaration had spoken of the agreement as having been a verbal one.
It was necessary to indicate that the seeking of an amendment of the declaration followed the issue taken by the Defendant (as in the notice in terms of Rule 32(7) that the verbal contract could not have been a valid and enforceable contract in law. And secondly that in terms of the said section 10 of the Government Proceedings and Contract Act contracts made with Government of Lesotho shall not be valid unless it has been duly signed as provided.
Now followed the amendment which I have already referred to. This amendment had been preceded by the usual application in terms of Rule 33. The notice in support of the application had attached to it an annexure PM "I" which for all intends and purposes became part of the amended summons. One needs to look at the annexure PM " I". The letter was the primary the object of the attack by the Defendant in the exception we have just referred to. This PM "I" is a letter dated 13th September 1988 from the Managing Director of the Defendant and it was addressed to the Plaintiff Its heading was "Re-Sewer Connection" and it went as follows:
"In May 1988 a seventy four metre length of sewer was laid from the Police Training College through the plot no. 12292-084 to connect your property at plot no. 12292-129 at your request. The sewer was only laid on the assumption that a way leave would be obtained for it and that Water and Sewerage Branch would accept the sewer as a public sewer and maintained it as such. However we understand that you have made your own private arrangements with
die owner of plot no. 12292-084 and have obtained the permission to have the sewer laid on the property. Therefore the sewer will now be considered as a private sewer."
We were not told of the implication of this letter except that the Defendant said there were no valid contractual implications. The implications should normally be apparent on the contractual document.
The Defendant argued and attacked this letter. It submitted that it was trite that a written contract will ordinarily be signed by the parties. And it asked the Court to make a correct observation that only the Defendant has signed on to the letter PM "I". It submitted that it was also trite that for any contract to be capable of being referred to as such it must set out the terms agreed by the parties and argues that there were no such terms or conditions agreed by the parties as he contended PM "I" clearly showed. He said in the instant case the document relied upon by the Plaintiff apart from not even purporting to be contract or read like one, it completely did not set out any terms capable of founding a course of action therein.
Defendant submitted finally that therefore that on the principle that Courts of law will not make agreements for parties where the parties have not made an agreement this Court should equally hold that the document relied upon by the Plaintiff, as setting out the contract between him and the Defendant, was no contract in law and the Court should accordingly uphold the exception. In this regard he referred to the case of LETEKA v NATIONAL
MOTOR COMPANY PTY LTD 1993-1994 LLR-LB 510. I need now refer to this case of LETEKA where at page 515 Mahomed JP says:
"The difficulty with this submission is that clause 10 did not specify the quantum of remuneration which the Appellant was entitled to enjoy for the stipulated period of five years and was therefore unenforceable. The quantum of the remuneration is an essential term of a contract of employment and if it is unspecified or not objectively determinable it is legally unenforceable. Voet Commentary on the Pandects Vol. 3 XIX 2,7 and Maasdorp Institutes of South African Law Vol. III page 207/8 and the case of SCAMMELL v OUTON 1941(I) ALL E.R. 14 at 26." The learned Judge of Appeal continued at page 516 in one of his concluding remarks, where he said:
"Faced with this difficulty Counsel for the Respondent on appeal
tentatively suggested that if clause 10 was unenforceable the whole
agreement was invalid and the Respondent could simply support
his claim with that relying on the agreement. When it was pointed
out to him that the Respondent's cause of action on the pleading
was based on the validity of the agreement and not its invalidity and
that it did not purport to rest on any condictio indebiti he fairly and
properly conceded that the appeal had to succeed with costs."
Before proceeding to the Plaintiffs argument over the exception we have to be
reminded that the requirement of the rules of the High Court require that any
claim that is based on a written contract must have that contract or agreement
7 attached to the summons, hence, presumably annexure PM "I".
In his argument against the exception the Plaintiff first referred to the two legs of the exception and then went on to submit as follows on the law: Before doing that one has to note the second leg was not forcefully pursued by Mr. Mohau for the Defendant. Mr. Nathane went on to argue as follows. That acting on the assumption that the Defendant was proceeding in terms of rule 9 of High Court Rules 1980 it had to be submitted that it could not ride on two horses at the same time either it contended that the declaration disclosed no cause of action or that it was vague and embarrassing. It could not in law be both of them as the requisites of the two differ in accordance with rule 29 as aforesaid. I wish to remind that the second leg was not pursued as I have said.
Mr. Nathane said that insofar as an exception was on the ground that no cause of action or defence was disclosed, Rule 29(I)(b) says that the grounds upon which the exception is founded must be clearly and concisely stated. He emphasized "must be clearly and concisely stated." He submitted that in the case of LIQUIDATORS WAPEJO SHIPPING COMPANY LIMITED v LURIE BROTHERS 1924 AD p.69 at 74 the phrase cause of action was described as meaning
"every fact which is material to be proved to entitle the Plaintiff to succeed. Whether there will be sufficient proof adduced at the end of the day was not the issue to be decided at this stage." He submitted that in the way it was worded Defendant's first exception fell
short of the requirement of rule 29(I) and the authorities cited on this issue. The alleged necessary and fundamental tenets of valid and enforceable contract have not been stated. This Court was being asked to speculate on the issue. In any event as he went on this would not be a proper stage for the Court to make a finding that the contract in issue herein was invalid and not enforceable. He went on to indicate as was stated in AMALGAMATED FOOTWEAR v JORDAN CO. LTD 1948(2) SA p.89I than
"Insofar as there can be no onus on either party on a pure question of law it rests upon the excipient who alleges that a summons discloses no cause of action and he must establish that in all its possible meanings no cause of action is disclosed." (My underlining)
I was also referred to Uniform Rules of Court 3rd edition by Nathan and Barnett at p. 154.
It was argued in addition that the first leg of the exception was purely on question of law and fell to be determined in line with the authorities referred to above. Plaintiff contended that the exception should be dismissed with costs. In response Mr. Mohau contended most simply that PM "I" did not reflect any agreement and could not be an agreement in that no obligations of the Plaintiff were not spelt out, no duties were spelt out, nor of the Defendant. One could not discern any terms and conditions of a contract as is known in our law.
I did not see that any amount of elegance would be required from the
Defendant. The Defendant speaks of the purported agreement which was attached and he says it lacks the necessary and fundamental tenats of a valid and enforceable contract. I do not see that in the circumstances much particularity was required as to whether the annexure "PM "I" disclosed a valid and enforceable contract. It may have been insufficient to indicate the requirements that Mr. Mohau now spoke about from the bar but it is not difficult for a lawyer trained in identifying validity of enforceable and valid contract to be able to discern at any given time even without precision that a contract has a meaning. The meaning of contract is said to be as follows:
"Contracts are a source of obligation and in this context and obligation is a relationship comprising rights and duties between legal subjects." See Farlam and Hathaway CONTRACT CASES MATERIALS COMMENTARY 3rd Edition by Gerard Lube and Christina Murray at page I. In that book by Farlam and Hathaway the authors say at page 182:
"Contracts pre-supposes agreement and agreement must be manifested by declarations of intent."
Contracts and agreements must create enforceable obligations. There must be specific consequences of various contractual obligations in the nature of terms and conditions. These have to be spelt out because they have implications which must have been anticipated by reference to rights and duties of the parties. This may result in stipulations as to warrantees conditions and what are normally called time clauses.
I say the parties must be able to determine the consequences of the contracts as pre-agreed and pre-arranged. This means that there are common liabilities and entitlement of the respective parties which must be determined and be determinable on the document or testament evidencing an agreement between the parties. Now the question is: Does PM "I" have any of the hallmarks? What are the terms and conditions? Have the parties agreed onto any obligations, duties and rights? In simpler terms: What are the consequences of this alleged agreement? Who is bound and in what terms is one or both of the parties bound? What are the consequences of failure to obey the terms and conditions? In my view there were no answers.
The learned author R H Christie in his valuable work THE LAW OF CONTRACT IN SOUTH AFRICA, 2nd Edition, in addressing "The technique of ascertaining agreement" at page 28 says:
"The most common and normally helpful technique for ascertaining whether there has been agreement, true or based on quasi-mutual assent, is to look for offer and acceptance of the offer." (My underlining)
The learned author continues on that page to refer to the cases that emphasize [he importance of consensus offer and acceptance in a contract in order for such contract to be complete. On the following page there is warning against strict adherence in applying the two concepts of offer and acceptance as a rigid "talisman" which is from a quotation in the case of GODFREY v PADVIC 1965(2) SA 738 (D) 743. The learned author continued his caution by saying:
"To which it is only necessary to add that offer and acceptance must never be sought for their own sake but as an aid in deciding whether an agreement has been reached."
As matters stand, looking nowhere else but at "PMI" it appears there was no
offer nor acceptance and there was therefore no contract.
The exception succeeded with costs.