Mothae v Water and Sewerage Authority (CIV/T 300 of 98) [2000] LSCA 111 (23 November 2000)

1 C I V / T / 3 0 0 / 98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: P H A T E LA M O T H AE P L A I N T I FF and W A T ER A ND S E W E R A GE A U T H O R I TY D E F E N D A NT J U D G M E NT M r. N a t h a ne : for the Plaintiff M r. M o h au : for the D e f e n d a nt Delivered by the H o n o u r a b le M r. justice T. M o n a p a t hi on the 23rd d ay of N o v e m b er 2 0 00 T h is D e f e n d a nt has given notice that it intends to except to the Plaintiffs declaration as amplified by further particulars a nd the a m e n d m e nt on the 4th A u g u st 2 0 00 on the following grounds: Firstly, that the said declaration as a m e n d ed does n ot disclose a cause of action in as m u ch as the purported agreement attached thereto "lacked the necessary and fundamental tenets of a valid a nd enforceable contract". Secondly, that the said declaration as a m e n d ed w as so vague a nd embarrassing as to the precise nature of the terms of agreement between the Plaintiff a nd the Defendant. As b a c k g r o u nd to the application for a m e n d m e nt of his declaration the Plaintiff, the D e f e n d a nt h ad before filed notice that it intended to apply to C o u rt at the hearing of this matter in terms of R u le 3 2 ( 7) to have the following points of law adjudicated u p on before any evidence w as led. T he points were as follows: " I. T h at according to paragraph 4 and succeeding paragraphs of the Plaintiffs declaration the Plaintiff and the Defendant's predecessor- inrtitle namely, the W a t er Branch entered into a valid agreement and it is that agreement w h i ch constituted the basis of Plaintiffs entire claim against the Defendant. 2. T he D e f e n d a nt w o u ld ask the C o u rt to determine whether the alleged verbal agreement relied u p on by the Plaintiff w as a valid a nd enforceable agreement in the light of the provisions of section 10 of the G o v e r n m e nt Proceedings and Contracts A ct of 1 9 6 5 ." T h is section 10 of the said A ct of 1 9 65 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 m a de on behalf of H er Majesty in her g o v e r n m e nt of Basutoland or Basutoland g o v e r n m e nt shall be held to be a contract or a g r e e m e nt m a de by a nd on behalf of H er M a j e s ty in her g o v e r n m e nt of Basutoland if signed by a Minister of Motlotlehi's g o v e r n m e nt or by an officer authorised by s u ch Minister a nd unless so signed shall be of no effect. T he contracts excepted by the section 8 a nd 9 of the A ct c o n c e rn agreements with other States or International Organisations a nd contracts of e m p l o y m e n t ." T h en followed the a m e n d ed declaration w h o se p a r a g r a ph 4 reads as follows: " S o m e t i me in or a r o u nd 1 9 88 Plaintiff a nd Defendant's predecessor in title W a t er Branch entered into a written a g r e e m e nt the terms of w h i ch w e re inter alia that Plaintiff w o u ld construct at o wn costs a s e w er p u mp as a cadastral plan did n ot p r o v i de for the same." ( My underling) It n e e d ed to be recorded that the previous declaration, that is the u n a m e n d ed declaration of the Plaintiff at paragraph 4 read as follows: S o m e t i m es in or a r o u nd 1 9 88 Plaintiff a nd Defendant's predecessor in title W a t er B r a n ch entered into a verbal a g r e e m e nt the terms of w h i ch w e re inter alia that the Plaintiff w o u ld construct at o wn cost a sewer p u mp as the cadastral plan did n ot provide for the s a m e ." ( My underlining) W h at w as i m p o r t a nt w as that the a m e n d ed declaration speaks of the a g r e e m e nt as having b e en a written a g r e e m e nt whereas the original declaration h ad s p o k en of the a g r e e m e nt as h a v i ng b e en a verbal o n e. It w as necessary to indicate that the seeking of an a m e n d m e nt of the declaration followed the issue taken by the D e f e n d a nt (as in the notice in terms of R u le 3 2 ( 7) that the verbal contract could n ot h a ve b e en a valid a nd enforceable contract in law. A nd secondly that in terms of the said section 10 of the G o v e r n m e nt Proceedings a nd Contract A ct contracts m a de with G o v e r n m e nt of L e s o t ho shall n ot be valid unless it has b e en duly signed as provided. N ow followed the a m e n d m e nt w h i ch I have already referred to. T h is a m e n d m e nt h ad b e en preceded by the usual application in terms of R u le 3 3. T he notice in support of the application h ad attached to it an annexure PM " I" w h i ch for all intends a nd purposes b e c a me part of the a m e n d ed s u m m o n s. O ne needs to l o ok at the annexure PM " I". T he letter w as the primary the object of the attack by the D e f e n d a nt in the exception we have just referred to. T h is PM " I" is a letter dated 13th S e p t e m b er 1 9 88 f r om the M a n a g i ng Director of the D e f e n d a nt a nd it w as addressed to the Plaintiff Its heading w as " R e - S e w er C o n n e c t i o n" a nd it w e nt as follows: "In M ay 1 9 88 a seventy four m e t re length of sewer w as laid f r om the Police Training College t h r o u gh the plot n o. 1 2 2 9 2 - 0 84 to connect y o ur property at plot n o. 1 2 2 9 2 - 1 29 at y o ur request. T he sewer w as only laid on the a s s u m p t i on that a w ay leave w o u ld be obtained for it a nd that W a t er a nd Sewerage B r a n ch w o u ld accept the sewer as a public sewer a nd maintained it as such. H o w e v er we understand that y ou have m a de y o ur o wn private arrangements with die o w n er of plot n o. 1 2 2 9 2 - 0 84 a nd h a ve obtained the permission to h a ve the s e w er laid on the property. T h e r e f o re the s e w er will n ow be considered as a private sewer." We w e re n ot told of the implication of this letter except that the D e f e n d a nt said there w e re no valid contractual implications. T he implications s h o u ld normally be apparent on the contractual d o c u m e n t. T he D e f e n d a nt argued a nd attacked this letter. It s u b m i t t ed that it w as trite that a written contract will ordinarily be signed by the parties. A nd it asked the C o u rt to m a ke a correct observation that only the D e f e n d a nt has signed on to the letter PM " I ". It submitted that it w as also trite that for a ny contract to be capable of being referred to as s u ch it m u st set o ut the t e r ms agreed by the parties a nd argues that there w e re no s u ch terms or conditions agreed by the parties as he c o n t e n d ed PM " I" clearly s h o w e d. He said in the instant case the d o c u m e nt relied u p on by the Plaintiff apart f r om n ot e v en purporting to be contract or read like o n e, it completely did n ot set o ut a ny t e r ms capable of f o u n d i ng a course of action therein. D e f e n d a nt s u b m i t t ed finally that therefore that on the principle that C o u r ts of l aw will n ot m a ke agreements for parties w h e re the parties h a ve n ot m a de an a g r e e m e nt this C o u rt should equally h o ld that the d o c u m e nt relied u p on by the Plaintiff, as setting o ut the contract b e t w e en h im a nd the D e f e n d a n t, w as no contract in l aw a nd the C o u rt s h o u ld accordingly u p h o ld the exception. In this regard he referred to the case of L E T E KA v N A T I O N AL M O T OR C O M P A NY P TY L TD 1993-1994 L L R - LB 510. I need n ow refer to this case of L E T E KA where at page 5 15 M a h o m ed JP says: " T he 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 a nd w as therefore unenforceable. T he q u a n t um of the remuneration is an essential term of a contract of e m p l o y m e nt a nd if it is unspecified or not objectively determinable it is legally unenforceable. V o et C o m m e n t a ry on the Pandects V o l. 3 X IX 2,7 and M a a s d o rp Institutes of S o u th African L aw V o l. III page 2 0 7 /8 and the case of S C A M M E LL v O U T ON 1 9 4 1 ( I) A LL E. R. 14 at 2 6 ." T he learned Judge of A p p e al continued at page 5 16 in o ne of his concluding remarks, where he said: "Faced with this difficulty Counsel for the R e s p o n d e nt on appeal tentatively suggested that if clause 10 w as unenforceable the whole agreement w as invalid a nd the R e s p o n d e nt could simply support his claim with that relying on the agreement. W h en it w as pointed out to h im that the Respondent's cause of action on the pleading was based on the validity of the agreement and not its invalidity a nd that it did not purport to rest on any condictio indebiti he fairly and properly conceded that the appeal h ad 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 H i gh Court require that any claim that is based on a written contract m u st have that contract or agreement attached to the s u m m o n s, hence, p r e s u m a b ly a n n e x u re PM " I ". In his a r g u m e nt against the exception the Plaintiff first referred to the t wo legs of the exception a nd then w e nt on to s u b m it as follows on the law: Before d o i ng that o ne h as to n o te the s e c o nd leg w as n ot forcefully p u r s u ed by M r. M o h au for t he D e f e n d a n t. M r. N a t h a ne w e nt on to argue as follows. T h at acting on the a s s u m p t i on that the D e f e n d a nt w as p r o c e e d i ng in terms of rule 9 of H i gh C o u rt R u l es 1 9 80 it h ad to be submitted that it could n ot ride on t wo horses at the s a me t i me either it c o n t e n d ed that the declaration disclosed no cause of action or that it w as v a g ue a nd embarrassing. It could n ot in l aw be b o th of t h em as t he requisites of the t wo differ in a c c o r d a n ce with rule 29 as aforesaid. I w i sh to r e m i nd that the s e c o nd leg w as n ot p u r s u ed as I h a ve said. M r. N a t h a ne said that insofar as an exception w as on the g r o u nd that no cause of action or defence w as disclosed, R u le 2 9 ( I ) ( b) says that the g r o u n ds u p on w h i ch the exception is f o u n d ed m u st be clearly a nd concisely stated. He e m p h a s i z ed " m u st be clearly a nd concisely stated." He s u b m i t t ed that in the case of L I Q U I D A T O RS W A P E JO S H I P P I NG C O M P A NY L I M I T ED v L U R IE B R O T H E RS 1 9 24 AD p.69 at 74 the phrase cause of action was described as m e a n i ng "every fact w h i ch is material to be p r o v ed to entitle the Plaintiff to succeed. W h e t h er there will be sufficient p r o of a d d u c ed at the e nd of the d ay w as n ot the issue to be decided at this stage." He submitted that in t he w ay it w as w o r d ed Defendant's first exception fell short of the requirement of rule 2 9 ( I) a nd the authorities cited on this issue. T he alleged necessary a nd f u n d a m e n t al tenets of valid a nd enforceable contract h a ve n ot b e en stated. T h is C o u rt w as being asked to speculate on the issue. In a ny event as he w e nt on this w o u ld n ot be a p r o p er stage for the C o u rt to m a ke a finding that the contract in issue herein w as invalid a nd n ot enforceable. He w e nt on to indicate as w as stated in A M A L G A M A T ED F O O T W E AR v J O R D AN C O. L TD 1 9 4 8 ( 2) SA p.89I than "Insofar as there c an be no o n us on either party on a p u re question of l aw it rests u p on the excipient w ho alleges that a s u m m o ns discloses no cause of action a nd he m u st establish that in all its possible m e a n i n gs no cause of action is disclosed." ( My underlining) I w as also referred to U n i f o rm R u l es of C o u rt 3rd edition by N a t h an a nd Barnett at p. 1 5 4. It w as argued in addition that the first leg of the exception w as purely on question of law a nd fell to be determined in line with the authorities referred to above. Plaintiff c o n t e n d ed that the exception should be dismissed w i th costs. In response M r. M o h au c o n t e n d ed m o st simply that PM " I" did n ot reflect a ny a g r e e m e nt a nd could n ot be an a g r e e m e nt in that no obligations of the Plaintiff w e re n ot spelt out, no duties w e re spelt out, n or of the D e f e n d a n t. O ne could n ot discern a ny terms a nd conditions of a contract as is k n o wn in o ur law. I did n ot see that a ny a m o u nt of elegance w o u ld be required f r om the D e f e n d a n t. T he D e f e n d a nt speaks of the p u r p o r t ed a g r e e m e nt w h i ch w as attached a nd he says it lacks the necessary a nd f u n d a m e n t al tenats of a valid a nd enforceable contract. I do n ot see that in the circumstances m u ch particularity w as required as to w h e t h er the a n n e x u re " PM " I" disclosed a valid a nd enforceable contract. It m ay h a ve b e en insufficient to indicate the requirements that M r. M o h au n ow s p o ke a b o ut f r om the bar b ut it is n ot difficult for a lawyer trained in identifying validity of enforceable a nd valid contract to be able to discern at a ny given t i me even w i t h o ut precision that a contract has a m e a n i n g. T he m e a n i ng of contract is said to be as follows: "Contracts are a source of obligation a nd in this context a nd obligation is a relationship comprising rights a nd duties b e t w e en legal subjects." S ee F a r l am a nd H a t h a w ay C O N T R A CT C A S ES M A T E R I A LS C O M M E N T A RY 3rd Edition by G e r a rd L u be a nd Christina M u r r ay at p a ge I. In that b o ok by F a r l am a nd H a t h a w ay the authors say at p a ge 1 8 2: " C o n t r a c ts pre-supposes a g r e e m e nt a nd a g r e e m e nt m u st be manifested by declarations of intent." Contracts a nd agreements m u st create enforceable obligations. T h e re m u st be specific c o n s e q u e n c es of various contractual obligations in the nature of terms a nd conditions. T h e se h a ve to be spelt o ut because they h a ve implications w h i ch m u st h a ve b e en anticipated by reference to rights a nd duties of the parties. T h is m ay result in stipulations as to warrantees conditions a nd w h at are normally called t i me clauses. I say the parties m u st be able to determine the consequences of the contracts as pre-agreed a nd pre-arranged. This m e a ns that there are c o m m on liabilities and entitlement of the respective parties which m u st be determined and be determinable on the d o c u m e nt or testament evidencing an agreement between the parties. N ow the question is: D o es PM " I" have any of the hallmarks? W h at are the terms and conditions? H a ve the parties agreed onto any obligations, duties a nd rights? In simpler terms: W h at are the consequences of this alleged agreement? W ho is b o u nd and in w h at terms is o ne or both of the parties b o u n d? W h at are the consequences of failure to obey the terms and conditions? In my view there were no answers. T he learned author R H Christie in his valuable w o rk T HE L AW OF C O N T R A CT IN S O U TH A F R I C A, 2nd Edition, in addressing " T he technique of ascertaining agreement" at page 28 says: " T he m o st c o m m on 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) T he 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 t wo concepts of offer and acceptance as a rigid "talisman" w h i ch is f r om a quotation in the case of G O D F R EY v P A D V IC 1 9 6 5 ( 2) SA 7 38 ( D) 7 4 3. T he learned author continued his caution by saying: " To w h i ch it is only necessary to a dd that offer a nd acceptance m u st never be s o u g ht for their o wn sake b ut as an aid in deciding w h e t h er an agreement has b e en reached." As matters stand, looking n o w h e re else b ut at " P M I" it appears there w as no offer n or acceptance a nd there w as therefore no contract. T he exception succeeded w i th costs. T. M O N A P A T HI J U D GE