THE HIGH COURT OF SWAZILATND
the matter between:
COTTON SWAZILAND LIMITED Plaintiff
PLAINTIFF Miss Riba
DEFENDANT Mr. L. Mamba
plaintiff claims a sum of E161,903.66. The plaintiff's claim is based
on an agreement of loan which is exhibit O and which was admittedly
signed by the defendant.
is also clear in terms of this agreement that the plaintiff
contracted to advance monies for the installation of irrigation
equipment on the defendant's land. The plaintiff duly advanced other
monies apart from that for the irrigation equipment in respect of
items set forth in schedule 8 of paragraph 8 of the agreement. It was
originally contemplated that the defendant would repay this loan by
deliveries of cotton to the plaintiff and the amount in respect of
would be set off against the loan. For some reason which is not
apparent, although the monies were advanced no deliveries of cotton
were made and the loan remains unpaid.
the matter came to trial, the issues were narrowed by agreement
between the parties and a memorandum thereof was placed before me.
agreement is as follows:-
summary of the plaintiff's account appearing at pages 10 (a) to 12 of
the bundle (A) is admitted as correctly reflecting defendant's
indebtedness to the plaintiff save as hereunder set out.
defendant contends that the debit of E174,951.20 appearing on page 10
of the bundle A and entered into on the 24th September 1990 is
incorrect and not for his account. It is the defendant's contention
that the people who owe that money are Mrs. Dlamini, Mr. Gumedze and
the late chief.
agreement referred to above shall be without prejudice to the
question of costs."
reason the defendant says that the debit of E174,951.20 is not for
him but for others is that he says that these others borrowed the
money and not him. It is not permissible in law (subject to
exceptions not here relevant) for a party to a written agreement by
oral evidence to contradict the terms of written agreement. In this
case it was not open to the defendant to allege that it was not him
who borrowed the money but other persons, in view of his signature to
the admitted written agreement.
the hearing progressed despite valiant efforts to advance the
defendant's case, the defendant's attorney was obliged having regard
not only to the law but to the weight of evidence which refuted the
defendant's version to concede that there was in fact and in law no
maintainable defence to plaintiff's claim.
being so I have no alternative but to find for the plaintiff.
Judgment will be entered in favour of the plaintiff against the
defendant for the monies claimed namely, E161,903.66, together with
interest at the rate of 9% per annum from the date of service of
summons to date of payment.
question of costs was raised and the plaintiff's counsel asked for
costs on the attorney and client scale. There is a provision in the
agreement in paragraph 13 reading: "I undertake to pay legal
costs on attorney and client scale should I in any way breach a
condition of this undertaking and should steps be instituted by Clark
Cotton as a result of the breach by me of the condition of this
undertaking including collection commissions."
counsel suggested that I had a discretion on the matter which I
should exercise in defendant's favour and withhold any special order
as to costs.
regard to the facts of the case I do not think that even if a
discretion exists, that I should exercise it in defendant's favour.
The defendant has put the plaintiff to the expense of a trial and
there is no reason why the plaintiff should not be fully compensated
for its costs. The defendant is to pay the plaintiff's costs to be
taxed on a scale as between attorney and client.