IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CIV. T. NO. 1115/90
In
the matter between:
BUYILE
MPUNGOSE
Vs
BUZZBY
SERVICES
CORAM
: A.F.M. THWALA
FOR
THE PLAINTIFF : MR. SIMELANE, FINE
FOR
DEFENDANT : MR. SHILUBANE
JUDGMENT
05/08/94
In
this case the Plaintiff claims:
Cancellation
of the contract
Repayment
of the sum of E10500 being the purchase price
Interest
at the rate of 9% per annum, a temporae morae to date of payment
Costs
os Suit
The
case arose from a contract agreement entered into during September,
1989, between Plaintiff and defendant. They entered into an oral
agreement of sale in terms of which the Plaintiff purchased a
mobi-house from the defendant for the sum of E10500.
The
Plaintiff represented herself. The defendant was represented by its
Director Mr. Abrahams. The Plaintiff paid the sum of E10500 which
included transport. The defendant's director undertook to deliver the
mobi-house at plot 99 Msunduza Extension 3.
2
In
her evidence the Plaintiff said they discussed delivery. Mr Abrahams
said he was going to provide a special transport for the delivery of
the mobi-house. They inspected the site. Mr Abrahams told her that
the site was not suitable it needed to be graded. After the site was
graded, they visited it, Mr Abrahams said the site was accessible.
Mr. Abrahams arranged with City Plumbing to put the foundations of
the mobi-house. The foundations were done by City Plumbing.
Petros
Mpungose and Richard Nxumalo confirmed that plot 99 was graded by
Mbabane Town Council and it was accessible. This was done about
October, 1989. At the beginning of the trial, an inspection in Loco
was done. The Court observed that work had been done on the plot and
that there was a sort of a foundation. There were also blocks on the
site. It must be observed that it is almost four years since the work
was done. The plot is now covered with vegetation. According to the
Plaintiff, the defendant did not complain that the place was not
accessible.
When
she noticed that the defendant did not deliver the mobi-house, she
wrote the letter, exhibit A to defendant for attention of Mr.
Abrahams. Mr Abrahams denied that the defendant received the letter.
She also stated that she phoned Mr. Abrahams five times. She also
told him that she wanted to use the house for Christmas.
Nothing
happened until she received the letter exhibit 'c' from defendant.
She denied that she asked City Plumbing to erect the mobi-house at
Sandla. She maintains the house was to be delivered at plot 99
Msunduza extension 3 as a complete unit not, dismantled. She then
handed exhibit 'C' to her Lawyers.
Mr.
Abrahams confirmed that the Plaintiff and defendant entered into a
contract and that the Plaintiff fulfilled her obligation.
3
He
also confirmed that he asked the Plaintiff to make plot 99 accessible
for delivery. Contrary to what the Plaintiff said, he said the house
was to be dismantled and re-set on delivery. He denies receiving
exhibit 'A' and he denied visiting the site after it had been graded.
He also denied that the Plaintiff phoned him about five times
informing him that she needed the house for Christmas.
One
wonders why a Lowbed Loader was needed if the house was to be
dismantled. I think if it was explained to the complainant that the
house was not to be delivered as a complete unit, she could not have
entered into the contract. The need of a Lowbed Loader indicates that
the house was to be delivered as a complete unit. The defendant
Counsel also conceded that in the circumstances the time for delivery
or performance was not reasonable. I agree. The Plaintiff bought a
mobi-house because she was in need of acccomodation. A delay for more
than a year is definitely unreasonable.
The
Plaintiff Counsel and defence Counsel addressed me on the question of
costs and interests and referred me to Authorities cited in "The
Law of Contract in South Africa" by Christie. I hold that the
defendant was placed in morae on the date of the service of the
summons because Plaintiff did not serve the Plaintiff with notice of
demand. The interest will run from the date of service of the
summons, the 30th November, 1990.
I
grant judgment in favour of the Plaintiff in terms of the summons.
A.F.M.
THWALA
JUDGE
