Mfa in court over undelivered cattle
Lebogang Mosikare | Tuesday November 24, 2015 15:07
Through his lawyer Gontse Simon, Benjamin Thabo, argues that he gave Mfa P241,000 in 2012 to supply him with cattle, but to date Mfa has not delivered the cattle as per agreement. Mfa’s attorney, Tshekiso Tshekiso, argued that the only time a party to a contract can be sued is when there has been a breach of an implied term of contract.
Tshekiso said that in the current matter, the plaintiff alleges that there was an agreement to purchase cattle from the defendant.
He stated that a request of further particulars was filed on June 3, 2015 and the plaintiff answered the request on June 11, 2015. “A question asked by the defendant in request of further particulars is that there was no agreement on where the cattle will be delivered and how they will be delivered. In answering, the plaintiff said that there was no specific agreement of how and when the cattle will be delivered. It is surprising then what entitles the plaintiff to sue the defendant,” said Tshekiso.
Tshekiso added that there was no timeframe of when the cattle would be delivered and how. He said that it would be an implied term that the cattle would be delivered within a reasonable time.
“Whatever the case, the plaintiff must allege whether relying on an implied or expressed term because only then the defendant will know the case he is facing or has to answer. The plaintiff was given the opportunity to state, which term of the agreement was violated but he chose to say that there was no agreement.
It also boggles the mind that the time to deliver the cattle has lapsed since it was not stated,” argued Tshekiso.
Simon replied that according to new rules, a cause of action must be disclosed in writ of summons.
“The plaintiff wrote writ of summons and served the defendant and in so doing the defendant filed memorandum of appearance to defend which raised grounds of defence,” he said.
Simon added that in 2012, Mfa made several verbal promises to deliver the cattle but has not done so to date.
“Is that not enough to show that the defendant breached his obligations to deliver cattle purchased since 2012? We submit that such averments clearly show that the defendant has breached the agreement and gives the plaintiff the right to sue. If that is not enough, the law still caters that such averments can be interpreted to show breach by defendant,” said Simon.
Simon added that it is incorrect for the defendant to say that there was no place set for delivery of cattle because he has already delivered 18 cattle to the plaintiff at his farm.
In reply, Tshekiso said that the defendant’s position is that the plaintiff refused to collect the cattle.
Tshekiso also told the court that the plaintiff is waiting for the defendant to come and collect his cattle and has even written him a letter informing him to do so but the defendant has not replied.
Justice Phadi Solomon set December 10 for continuation of trial and possible ruling.