Clark Cotton Swaziland Ltd v Simelane (NULL) [1995] SZHC 158 (07 December 1995);

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IN THE HIGH COURT OF SWAZILATND


Civ. Case No.1436/93


In the matter between:


CLARK COTTON SWAZILAND LIMITED Plaintiff


and


MAHAWUKELA SIMELANE Defendant


CORAM: S.W. Sapire A.J.


FOR PLAINTIFF Miss Riba


FOR DEFENDANT Mr. L. Mamba


Judgment


(7/12/95)


The 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.


It 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 the


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cotton 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.


When the matter came to trial, the issues were narrowed by agreement between the parties and a memorandum thereof was placed before me.


This agreement is as follows:-


"1. The 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.


"2. The 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.


"3. The agreement referred to above shall be without prejudice to the question of costs."


The 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.


As 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.


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This 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.


The 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."


Defendant's 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.


Having 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.


S.W. SAPIRE


ACTING JUDGE