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[2021] ZAWCHC 172
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Tradevest 041 (Pty) Ltd t/a Tradevest Logistics v Banzi Trade 40 CC (A105/2021) [2021] ZAWCHC 172; [2021] 4 All SA 551 (WCC) (2 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO:
A105/2021
In the matter between:
TRADEVEST 041 (PTY) LTD
T/A TRADEVEST
LOGISTICS
Appellant
and
BANZI TRADE 40
CC
Respondent
Bench: P.A.L.Gamble, J & T.Le Roux, AJ.
Heard: 6 August 2021
Delivered: 2 September 2021
This judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 10h00 on Thursday 2 September
2021.
JUDGMENT
GAMBLE,
J:
INTRODUCTION
1.
This appeal from the Regional Court, in
which the appellant was ordered to pay the respondent the sum of
R354 460,20 together
with interest and costs, concerns the
transportation of a load of sugar measuring 34 tons from Durban to
Queenstown. The facts,
which are somewhat intricate but largely not
controversial, gives some insight into how the local freight industry
generally operates:
it appears from the evidence that it is not
uncommon in that industry for a contracting party to subcontract (and
thereby abrogate
its rights and responsibilities) to another party in
the industry and even for the latter mentioned party to subcontract
its obligations
further. This appeal concerns a relationship of
subcontracting between the appellant (“Tradevest”) and
the respondent
(“Banzi”)
THE FACTUAL MATRIX
2.
During May 2017 a Johannesburg-based
company, Traxys Africa Trading (Pty) Ltd (“Traxys”),
traded commodities such as
sugar. In the course of its business, it
procured 34 tons of sugar from a cargo which had been transported to
Durban by ship from
the Al Khaleej sugar refinery in the United Arab
Emirates and which was housed in storage at a warehouse in the Port
of Durban
operated by Maydon Wharf Port Terminals (Pty) Ltd (“MFT”).
3.
MFT was required to pack the sugar into
one-ton bags as part of its arrangement with Traxys. Traxys
thereafter sold the 34 tons
of sugar to a national soft drink
manufacturer called Twizza (Pty) Ltd and was required to deliver it
to Twizza’s plant at
Queenstown in the Eastern Cape. Traxys
would then invoice Twizza (which has its head office in Cape Town)
for the load of sugar
so delivered to it and Twizza would settle
Traxys directly.
4.
MFT attended to the transport arrangement
for delivery of the load of sugar on behalf of Traxys and to this
end, it contacted an
existing client, Banzi, which runs a road
transport brokerage business at Hoedspruit in Limpopo. With Mr.
Kishore Rampersada representing
MFT and Mr. Albrecht Heroldt
representing Banzi, it was agreed that Banzi would arrange for the
collection of the load in Durban
and the delivery thereof to Twizza
in Queenstown.
5.
Mr. Albrecht, who was the sole member of
the close corporation, testified on behalf of Banzi in the court
a
quo,
that his company sub-contracted
delivery of the load to Tradevest, which had its offices in Somerset
West. He knew the erstwhile
owner of Tradevest, Ms. Lize van der
Berg, as she had previously operated a freight transport company at
Mbombela in Mpumalanga
and, on the strength of their previous working
relationship, he was amenable to doing business with Tradevest. Mr.
Albrecht harboured
no reservation about sub-contracting the delivery
to another freight company. As will appear hereunder, this
arrangement was contemplated
in Banzi’s on-going agreement with
MFT and, in any event, seems to be standard practice in the industry.
6.
Ms. Van der Berg explained to the court
a
quo
that Tradevest’s business
consisted of two components. On the one hand, it owned a fleet of ten
long-distance trucks with
which it transported cargo on behalf of its
clients and on the other hand, it ran a transport broking business in
which it sub-contracted
the delivery of cargo on behalf of clients to
certain of its own approved sub-contractors. The broking arm of the
business had
grown out of a need to service clients in circumstances
where Tradevest did not have sufficient capacity on its own fleet of
trucks
to transport cargo.
7.
Mr. Eric Janse van Rensburg, who was
employed in Tradevest’s broking division, told the court
a
quo
that a number of freight
transporting businesses belonged to a WhatsApp group which served as
an electronic platform on which members
of the group would advertise
cargo available for delivery. It was through this medium that
Tradevest came to hear of the load of
sugar which Banzi was required
to deliver to Twizza.
THE LOAD CON
8.
Tradevest accordingly contracted with Banzi
to deliver the load to Queenstown in terms of an agreement that was
partly oral and
partly written. The written component of the
agreement was contained in an industry standard document known as a
“load confirmation”,
or a “load con” as the
witnesses all called it. It was said to be standard practice in the
industry that once parties
had orally agreed a rate for the conveying
of the load, as well as the date and place of collection and
delivery, a load con would
be issued to the company undertaking the
transport of the load. In short, a load con is a written instruction
from a party engaging
the services of a transporter to collect and
deliver a load on its behalf to a designated party - it would seem
not unlike a bill
of lading in shipping parlance.
9.
In this case, Banzi issued a load con on
its
pro forma
document to Tradevest which recorded, inter alia, that –
·
The transporter of the load was to
be Tradevest;
·
The commodity to be transported was
sugar;
·
The date for collection of the load
was 10 May 2017;
·
The place of collection was MFT,
Durban;
·
The registration number of the truck
collecting the load was FH 36 PT GP;
·
The driver of that truck was to be
one “Norman”; and
·
The rate payable by Banzi to
Tradevest for the delivery of the load was R14 000,00.
10.
As far as the place of delivery was
concerned, the Banzi load con records that “Off Loading”
of the sugar was to be
at “Queenstown as per POD”. The
testimony revealed that the acronym “POD” refers to a
document evidencing
“Proof of Delivery” of the load. This
is evidently an important document in the freight industry as it
establishes
delivery of the load to the consignee and the entitlement
of the transporter to demand payment from the consignor for its
services
upon delivery thereof. To this end, the Banzi load con
expressly requested the transporter to furnish it with “All
signed
POD’s with invoice please”. This suggests that the
payment of freight to Tradevest was contingent upon production by
it
of a POD containing the signature of the party to whom the load has
been delivered, in this case Twizza.
11.
In addition to the aforegoing, the lower
third of the Banzi load con (which is contained on an ordinary A4
page) contains twelve
“TERMS AND CONDITIONS OF THE LOAD
CONFIRMATION”. The reader of that document’s attention is
drawn to the terms
and conditions through an expressive annotation in
bold print towards the top thereof which reads
“
NB!!!!!!!!:
#1,7,8 & 11 of Terms
and Conditions very important!!!!!!!!
“
12.
The particular terms and conditions to
which the reader’s attention is drawn are not material to this
appeal. However, terms
2 and 4 are material and were referred to in
evidence. They read -
“
2)
The transporter and vehicles must have their own goods in transit
insurance of R500 000.00 (inc Hi-Jack)
…
.
4) The transporter will be held
liable for any loss damages (sic) to cargo.”
It should be noted that, unlike term 2, term 4 is not recorded in
bold print. However, the 12 terms and conditions are, as a whole,
boldly reflected on the Banzi load con and the ordinary reader
thereof could hardly not notice them.
13.
During argument of the appeal, counsel for
Banzi drew our attention further to term 11 (also printed in bold
uppercase) –
“
11)
IF ORIGINAL SIGNED/STAMPED DOCUMENTATION IS NOT RECEIVED
NO
PAYMENTS WILL BE MADE. R250.00 CHARGES IF POD’S IS
(sic)
LOST
FOR RECOVERY
”
14.
Turning to Tradevest’s
pro
forma
load con, one notes that the A4
size document contains similar detail to that on Banzi’s –
the date and place of collection
of the load, the truck registration
number and its driver, and the delivery address (also recorded as
“Queenstown as per
POD”). The document further records
that Tradevest’s sub-contractor was “Gienro Solutions”
in Gauteng and
that the rate for the transport of the load was
R12 500.00.
15.
The lower half of Tradevest’s load
con is reserved for its “Terms & Conditions” which
are stipulated in 10
numbered paragraphs and enclosed in a designated
box. These terms and conditions are reflected in a very small
typeface and have
the hallmark of having been prepared by someone
with a modicum of legal training – the language is far more
formal and legalistic
than the plain, industry vernacular to be found
in Banzi’s load con. Other than a recordal of Tradevest’s
physical
address in bold, the remainder of the document is in normal
font and, viewed with the ordinary user’s eye, the document
appears
to contain the sort of “fine print” which one so
often encounters in documents relating to commercial transactions and
which have found consideration over the decades in the so-called
“ticket cases”.
16.
Once again, the only terms in Tradevest’s
load con which are of any relevance are the following which were
referred to in
evidence.
“
2. The
loading of the load is proof of the unconditional acceptance of terms
and conditions contained in this document…
4. The risk in and to the load
shall pass to the subcontractor once the load is loaded onto the
vehicle to be used for the transportation
thereof at the collection
address and shall remain with the subcontractor until the load is
off-loaded at the delivery address.
Furthermore,
the subcontractor
shall be liable for any loss or damage to the property
, injury to
or death of persons or any costs or expenses of whatsoever nature
which is caused by the acts or omissions of the subcontractor
or any
person or party for whose acts or omission the subcontractor is
vicariously liable in the performance of the transportation
services
AND agrees to indemnify TRADEVEST LOGISTICS from and against any
legal proceedings, claims, demands, costs, or liabilities
in this
regard.
5. The subcontractor shall
maintain and keep in force throughout the duration of the loading,
transportation and off-loading of
the load the following insurance
policies:-
5.1 All Risks Good (sic) in
Transit insurance including hijacking cover with a cargo value as
per the “LOAD VALUE”
listed above;
5.2 Public liability insurance
with a minimum indemnity limit of R5’000 000 (sic) per
incident; and
5.3 Comprehensive vehicle
insurance in respect of each vehicle to be used for the
transportation of the load.
If the insurance covers referred
to above in this clause are not in place or are inadequate, the
subcontractor shall indemnify TRADEVEST
LOGISTICS (Pty) Ltd from and
against any loss, damage or liability arising from such omission or
inadequacy.” (Emphasis added)
ISSUES FOR DETERMINATION
17.
Notwithstanding the generation of a couple
of hundred pages of transcript, the issues in the court
a
quo
were ultimately relatively limited.
In its particulars of claim, Banzi alleged that it concluded an
agreement with Tradevest to
collect the load of sugar at MFT and
deliver it to Twizza in Queenstown. It further alleged that Tradevest
collected the sugar
and failed to deliver it to Twizza, thus
breaching the material terms of the agreement. It claimed that the
value of the load was
R 354 460,20 (34 tons x R9145,00/ton plus
VAT at 14%) and that it was liable to MFT in that amount as a
consequence of the
non-delivery of the sugar to Twizza. It thus sued
Tradevest for contractual damages in the sum of R354 460,20.
18.
Banzi alleged that the terms and conditions
of its agreement with Tradevest were contained in its load con issued
to Tradevest and
it further alleged that it was an express,
alternatively implied, alternatively tacit term of their agreement
that Tradevest would
exercise a duty of care in respect of the load
of sugar entrusted to it for transportation.
19.
After managing to fend off an application
for summary judgment with an affidavit by Ms. van der Berg that was
at variance with some
of her subsequent oral evidence, Tradevest
availed itself of some obtuse denials in its plea. For instance, it
denied that the
load was collected in Durban and further it denied
that it owed Banzi a duty of care in respect of the load of sugar
entrusted
to it for transportation.
20.
But, when all was said and done in the
witness box, Tradevest’s case was that the sugar had been
collected from MFT by Gienro
and had indeed been delivered to Twizza.
It contended that it had thus complied with its contractual
obligations vis-à-vis
Banzi and was not in breach of their
agreement. Tradevest did not prefer any counterclaim against Banzi
for payment of the sum
of R14 000,00 due under the Banzi load
con, notwithstanding the alleged delivery of the sugar to Twizza.
21.
Mr. Heroldt testified that Tradevest had
never submitted a POD to Banzi in respect of the alleged delivery of
the load to Twizza
in Queenstown. In addition, Mr. Kurt Potgieter,
Twizza’s national goods procurement coordinator employed at its
head office
in Cape Town, testified on behalf of Banzi. He said that
Twizza was not placed in possession of a POD in respect of the load
of
sugar either (as was required in order to confirm delivery thereof
to its Queenstown premises) and accordingly Twizza denied delivery
of
the load to it. Banzi relied heavily on this evidence to establish
that Tradevest was in breach of its contractual obligation
under the
Banzi load con.
22.
Tradevest was unable to produce a POD
(whether signed or otherwise) reflecting delivery of the load of
sugar to Twizza by Gienro.
The explanation put up in the court
a
quo
by Ms. van der Berg and Mr. Janse
van Rensburg (all based on hearsay evidence of varying degrees) was
that after delivery of the
load to Twizza, Gienro had claimed to have
sent the POD to Tradevest by post but that this had gone missing in
the mail. Tradevest
was unable to procure a copy of the POD from
Gienro and when it contacted Twizza many, many months after the
alleged delivery in
an attempt to obtain a copy from Twizza, it was
told by an unidentified male employee at Twizza that no such POD
could be found
because of the “chaotic” state of affairs
at Twizza. The state of “chaos” was never fully explained
but
it seems as if it was a reference to Twizza’s
administrative department.
23.
Banzi adduced the evidence of Messers
Herholdt and Rampersada to establish the arrangement regarding
collection of the sugar from
MFT, this because such collection was
denied on the pleadings. As I have said, it later became common cause
when Ms. Van der Berg
testified that Gienro had duly collected the
load in accordance with the load con issued to Tradevest by Banzi.
The collection
was said to have been in terms of Tradevest’s
sub-contracted load con with Gienro.
24.
The issues then that remained for
adjudication by the court
a quo
were as follows.
·
Whether Tradevest had a duty of care
towards Banzi for the goods entrusted to it for delivery to Twizza;
·
Whether the load of sugar had in
fact been delivered to Twizza;
·
The extent of Banzi’s
contractual damages (if any) as a consequence of the alleged breach
by Tradevest of its obligations
under the Banzi load con.
The latter issue, in turn, encompassed consideration of the following
factors:-
·
Whether Banzi was contractually
liable to MFT in damages for the value of the load that allegedly
went missing; and,
·
If so, what the value of that load
was;
DID TRADEVEST OWE BANZI A DUTY OF CARE IN RESPECT OF THE LOAD?
25.
Much time was spent in the Court
a
quo
by Ms. Manser (who appeared for
Tradevest in that court and on appeal before us) in cross-examining
Mr. Heroldt about the enforceability
of the terms and conditions of
the Banzi load con. The suggestion was that because he and Ms. van
der Berg had not expressly agreed
thereon, the terms were not
enforceable. The point is without merit for a variety of reasons,
26.
Firstly, there is the issue whether the
terms and conditions contained in the Banzi load con came to the
attention of Ms. van der
Berg (or any other authorized agent of
Tradevest) and, if not, whether Banzi is nevertheless entitled to
rely thereon. The evidence
of Ms. van der Berg confirmed that she was
aware of the fact that it was commonplace in the transport business
for public carriers
to attach terms and conditions of their
preference to their load cons. Indeed, Tradevest did precisely that
when it issued the
pro forma
document,
which was used to sub-contract conveyance of the load of sugar to
Gienro. It is apparent that its terms differ in both
content and
extent from those chosen by Banzi.
27.
So, for instance, Ms. van der Berg pointed
out that the aforesaid clause 2 of Tradevest’s terms and
conditions was the company’s
mechanism for ensuring that the
counter-party was bound by its terms and conditions. But Ms. van der
Berg also said that she was
aware that, while each contractor
stipulated its own terms and conditions, it was impractical from a
business point of view to
review each counter-party’s set of
terms before accepting a load con from a contractor.
28.
The witness put it as follows when asked by
Ms. Manser if she followed up with each contractor to whom a
Tradevest load con had
been issued to establish whether her company’s
terms and conditions had been accepted :-
“
There
is (sic) so many loads going on in a day and there is (sic) so many
agreements going on, on which loads to load that there
is absolutely
no time to call each and every contractor and ask if they read my
terms and conditions and for that reason I put
that clause in, clause
2 of page 3.”
29.
Ms. van der Berg said that she did not
normally read through the terms and conditions of a load con issued
by another public carrier
to Tradevest, while confirming that it was
“standard” to include such terms and conditions in load
cons generally.
The following passage concluded her evidence on this
point:-
“
MRS
MANSER
:
Mr. Herholdt testified that because you are a seasoned transporter
and that you have been in the industry for so long, you must
have
been aware of these terms and conditions.
MRS VAN
DER BERG
:
I am aware of terms and conditions but each load is a different
contract.”
30.
The evidence thus establishes that the
dealings between Banzi and Tradevest were conducted on the basis
·
of an oral agreement followed by a
load con that was issued to Tradevest;
·
that the load con contained terms
and conditions stipulated by Banzi and which were standard to the
industry; and
·
that Tradevest was aware that there
were such terms and conditions and that its guiding mind (or for that
matter any other employee)
did not bother (or consider it necessary)
to read them.
This places Tradevest in the position considered
by
Christie
[1]
at p 211
et seq
and
in particular the leading case in point,
King’s
Car Hire
[2]
.
31.
Christie
distinguishes
the position in cases where the “fine print” relied on by
the offeror in a contract is contained, on the
one hand, in a written
document signed by the parties and, on the other hand, where the
document is unsigned – what the author
broadly terms the
so-called “ticket cases”. The Banzi load con falls into
the latter category, there being no signature
appended to the
document by either party. The commercial rationale for binding
a party such as Tradevest to Banzi’s
stipulated terms and
conditions is discussed as follows by
Christie
at 211.
“
Banking,
consumer finance, insurance, the transport of goods, electricity and
water supply are examples of services that can be
supplied on a large
scale only if the supplier can be reasonably certain that the
carefully drafted contracts in which it defines
its own and the
customer’s obligations will produce, if tested in court, the
result on which its planning and policy is based…
Public
entertainment, sports promotion and passenger transport are examples
of enterprises that attract so many customers to the
same place at
the same time that the delay involved in obtaining a signature from
each one of them could only be eliminated by
a proliferation of entry
points and staff, for all of which the customers would have to pay.
To make obtaining of a signature unnecessary
the law has therefore
evolved a set of rules in what are usually known as the ‘ticket
cases’.
This description, for lack of a
better one, may be used, to cover all cases in which the supplier
places before the customer a document
that is not intended to be
signed and that contains or refers to the terms on which the supplier
is prepared to do business, whether
or not the document is what is
normally described as a ticket, because the basic principles are the
same in all such cases…
If it cannot be proved that the
customer read the document, the customer will nevertheless be bound
by it if the supplier did what
is reasonably sufficient or reasonably
necessary, or everything reasonably possible, to draw the customer’s
attention to
the terms contained are referred to in the document.”
32.
The evidence put up by Tradevest thus
establishes that it knew that Banzi’s load con contained terms
and conditions relating
to the transport of this particular load of
sugar and that such terms were standard terms in the industry. In
addition, the Banzi
load con contains a reference to the terms in
bold print that is unmissable to the reasonable reader. That places
Tradevest in
the position described as follows by the Full Court in
King’s Car Hire
[3]
.
“
Stating
the matter briefly, the approach of the Courts is to inquire whether
the person who received a ticket knew that there was
printing or
writing on it. Secondly, if so, a further question is ‘did the
person who received the ticket know that the printing
or writing
contained provisions of, or references relating to provisions of, the
contract in question?‘. If these questions
are answered in the
affirmative, then the provisions in question are part of the
contract.”
33.
In the circumstances, this Court is
satisfied that clause 4 of the terms and conditions stipulated in the
Banzi load con was incorporated
in the contract between it and
Tradevest.
34.
The importation of that term into the
contract between Banzi and Tradevest is in any event in accordance
with the common law principles
governing the law of carriage of goods
by a public carrier which are to the effect that the carrier, as the
depositary, is liable
for the loss or damage to goods entrusted into
its care for the purposes of delivery to the nominated consignee.
[4]
35.
In
Stocks &
Stocks
[5]
Corbett JA discussed the obligations of a public carrier by land (as
Tradevest manifestly was) against the background of an argument
that
such a carrier attracted strict liability in terms of the so-called
“Praetor’s Edict”
[6]
to public carriage by land (as opposed to by sea). The applicability
of the Edict to carriage by land was the subject of on-going
judicial
debate, a debate which was only finally settled in1995 in
Anderson
Shipping
[7]
when Joubert JA held that a public carrier by land did not attract
strict liability.
36.
The position was articulated thus by
Corbett JA in 1979 who proceeded on the assumption that the Praetor’s
Edict did not apply
to such carriage.
“
Assuming,
however, that the Edict does not apply to public carriers by land, it
seems to me that the carrier would still be in the
position of a
depositary or bailee for reward, who is under a duty to exercise
reasonable care in regard to the goods entrusted
to him for
conveyance and who, in the event of the goods being damaged or
destroyed, is liable in damages to the owner thereof
unless he can
show that the damage or destruction occurred without
culpa
or
dolus
on
his part.”
37.
Lastly, it did not avail Tradevest to take
issue with its obligation to take care of the load of sugar consigned
to it for transport
for the reason that it sought to impose precisely
such an obligation on Gienro under clause 4 of its load con; the
point being
that, in accordance with the
nemo
plus juris
rule
[8]
Tradevest could not purport to impose such an obligation on Gienro if
it did not possess the obligation in the first place through
its
prior dealings with Banzi.
[9]
PROOF OF DELIVERY OF THE LOAD TO TWIZZA
38.
In para 3 of the particulars of claim Banzi
pleaded its obligation under its agreement with MFT to transport the
sugar from Durban
to Queenstown, while in para 4.1 thereof it alleged
that on 10 May 2017 it “brokered/subcontracted the
transportation of
the goods” to Tradevest. Tradevest pleaded
that it had no knowledge of the allegations contained in para 3 of
the particulars
of claim and put Banzi to the proof thereof. It
admitted para 4.1.
39.
The breach of the agreement with Tradevest
was pleaded as follows by Banzi.
“
6.
In
breach of the terms of the agreement between the parties, the
Defendant and/or its employees and or [its] further (
unauthorized
)
sub-contractor collected the goods at the collection point at MFT,
Durban, but failed to deliver same at its destination point
in
Queenstown.”
40.
Tradevest’s answer to para 6 of the
particulars of claim was pleaded as follows.
“
AD
PARA 6
12. The defendant denies each
and every allegation contained in this paragraph and places the
Plaintiff to the proof thereof.”
41.
As already stated, it became common cause
during the trial that the load had been collected from MFT, with
Tradevest alleging that
the collection by its sub-contractor Hienro
was lawful. The allegation by Banzi that the sub-contracting of the
delivery of the
load to Hienro was “unlawful” is not
material to this appeal. On the pleadings as they stood, therefore,
Banzi bore
the onus of proving that Tradevest had breached the
contract evidenced by the Banzi load con by failing to deliver the
load to
Twizza in Queenstown.
42.
In
Alex
Carriers
[10]
Mpati J dealt with the issue of the onus in the post-
Anderson
Shipping
context as follows.
“
But
before the carrier can be saddled with the
onus
of showing that the damage to or destruction of the goods occurred
without
dolus
or
culpa
on his part, the plaintiff must, in my view, have laid the foundation
therefore by proving that the goods had in fact been damaged,
i.e.
that the value thereof upon delivery at the delivery point was
non-existent or less than it was at the time when they were
received
by carrier.”
Applied to the present case, this required Banzi to lay an evidential
foundation to prove that the load of sugar had not been delivered
to
Twizza
43.
While the production of a POD by Tradevest
for the delivery in question would have entitled it to present Banzi
with an invoice
and demand payment in terms of its load con
[11]
,
it does not follow that the absence of a POD necessarily established
that delivery had not taken place as required under the load
con. For
instance, it is possible that Hienro may have omitted to procure
Twizza’s employee’s signature on the document,
or that it
failed to deliver the POD to Tradevest, that the document had gone
missing in the post or even that the proverbial dog
had eaten it. In
the circumstances, it was incumbent on Banzi to adduce sufficient
evidence in the Court
a quo
to prove non-delivery of the sugar to Twizza on a balance of
probabilities. This it attempted to do through the evidence of
Messers
Albrecht and Potgieter.
44.
Mr. Albrecht adduced reams of hearsay
evidence in that regard which I shall recite for what it’s
worth. He said he had contacted
a certain “Norman” (the
alleged driver of the truck on which the sugar had been loaded by
MFT) by cellphone on 3 occasions.
The first call was evidently at
17h40 on 10 May 2017, when Mr. Albrecht said Norman confirmed to him
that he had loaded the sugar
and had left the premises of MFT. A
further call to Norman at 08h50 the following morning, said Mr.
Albrecht, went unanswered.
At 16h50 that day, 11 May 2017, Mr.
Albrecht said that he spoke to Norman again (after yet another
unanswered call shortly before
that) and established that the truck
was then at Ngcobo in the Eastern Cape. After making some
calculations, Mr. Albrecht worked
out that the truck was then some
142 km from Queenstown and he testified that he expected it to be at
its destination around 19h30
that evening.
45.
Mr. Albrecht testified that he made another
call to Norman on 11 May 2017 (he did not specify the time) but was
unable to contact
him. So too on 12 May 2017. Eventually, said Mr.
Albrecht, he reported the situation to Tradevest’s controller,
Mr. Janse
van Rensburg, but he did not tell the court
a
quo
what the outcome of that discussion
was. However, what Mr. Albrecht did not do at that time was to call
Twizza in Queenstown and
ask whether the load had in fact been
delivered. On this score, the evidence of Mr. Potgieter established
that at that time Twizza
was taking delivery of three to four such 34
ton loads of sugar a week. He stated that 34 tons of sugar is a
sizeable load and
that its non-delivery would certainly have been
noticed at the time during a physical inspection at the Twizza
warehouse. I understood
him to suggest that there would have been a
vacant space in the warehouse suggesting non-delivery.
THE MISKEY LETTER
46.
The further evidence adduced by Mr.
Albrecht was that on 3 September 2018 a firm known as “Miskey
Legal Consultants”
acting on his instructions had sent a letter
of demand to Tradevest claiming payment of the sum of R357 000.00
(excluding
VAT), being the estimated value of a load of sugar
“brokered” by Banzi to Tradevest for delivery “to
its intended
destination”. The letter of demand does not make
reference to the date or place of delivery nor the mass of the load.
There
is no reference either to any number of a waybill or the like.
47.
The Miskey letter is revealing to the
extent that it claims, “our client, on the 30
th
August 2018 discovered that the sugar load in question was never
received by its client, and immediately advised you hereof on
the
very same day.” In other words, it was alleged that Mr.
Albrecht only came to hear of the alleged non-delivery of the
sugar
some 15 months after it was destined for delivery, presumably to
Twizza. But, there is more.
THE STAFFORD LAW LETTER
48.
In attempting to establish the extent of
Banzi’s damages for the alleged non-delivery by Tradevest, Mr.
Albrecht referred
to a letter written to Banzi on 6 June 2019 by a
firm of Sandton attorneys, Stafford Law, on behalf of their client,
MFT. That
letter sets out MFT’s allegations regarding an
agreement it concluded with Banzi on 7 April 2017, the salient terms
whereof
were said to be that –
·
Banzi would provide logistical
support to MFT for individual orders placed with it by MFT, with each
such order constituting a separate
contract;
·
Banzi was entitled to subcontract
any particular order placed with it to its subcontractor;
·
Banzi would accept the risk for
goods so transported and warehoused at the cost price thereof;
·
MFT would pay Banzi within 30 days
of its monthly statements; and
·
All claims for losses incurred by
MFT in the discharge of Banzi’s services would be settled by
Banzi within 60 days of receipt
of by it of MFT’s tax invoice
for such loss.
As I read the record, Mr. Albrecht does not appear to have taken
issue with the terms of this agreement with MFT. Rather, Banzi
sought
to rely on the letter and its contents for purposes of quantifying
its contractual damages, of which more later.
49.
The Stafford Law letter goes on to allege
that during May 2017 MFT sent an order to Banzi for the transport of
34 tons of sugar
from Durban to Queenstown. It is said that in
January 2018, Banzi asked MFT “if there were any queries with
the aforementioned
load”. Upon being advised by MFT that “no
issues had been raised at the time”, Banzi invoiced MFT for
payment
of its services in the amount of R15 000,00 under
invoice no.120369.
50.
It is further alleged that in August 2018,
MFT notified Banzi that the load had in fact not been delivered,
notwithstanding Banzi’s
invoice to MFT as aforesaid.
Thereafter, it is claimed, MFT received an invoice from its client
(which is not identified but is
presumed to have been Traxys) for the
loss which it had incurred as a consequence of the disappearance of
the load. In the result,
said Stafford Law, MFT invoiced Banzi on 11
October 2018 for the alleged cost price of the goods, to wit
R357 569,50
[12]
.
Given that Banzi had failed to settle MFT’s invoice within 60
days, a formal demand for payment was made on behalf of MFT
with the
customary threats of ensuing litigation in the event of non-payment.
51.
The Stafford Law letter is notable for two
reasons. Firstly, it suggests that from April 2017, there was an
on-going commercial
relationship between MFT and Banzi for the
transport of cargo. Secondly, it confirms the allegations made in the
Miskey letter
that Banzi (through Mr. Albrecht) only came to hear of
the non-delivery of the load towards the end of August 2018. I shall
revert
to this later.
TWIZZA’S EXPLANATION
52.
Given the absence of any direct knowledge
of non-delivery on the part of Banzi as a consequence of the
sub-contracting of the work
to Tradevest and the further
sub-contracting by it to Hienro, the only feasible way for it to
establish non-delivery of the load
was to adduce evidence from
Twizza. Accordingly, Banzi called Mr. Potgieter to testify.
53.
Mr. Potgieter said that since 2016 he had
been employed at Twizza’s Head Office in Cape Town and was the
company’s “group
supply chain coordinator”. It was
thus fair to assume that he would know what product Twizza had
ordered, from whom it was
ordered and when and where delivery of
goods so procured had occurred. Yet Mr. Potgieter’s evidence
was anything but clear.
He had no personal knowledge of the alleged
lost load and could only rely on a series of documents, none of which
were generated
by him or his department.
54.
Firstly, Mr. Potgieter was shown a credit
note in the sum of R365 119,20 issued by Traxys in favour of
Twizza on 31 October
2018. He testified that he would have received
this document in course of his duties and he stated that this amount
was credited
to Twizza “for a load of sugar that was not
delivered to our Queenstown branch.” In an endeavour to link
this document
to the missing load, Mr. Potgieter was referred to
various reference numbers on the credit note. It was pointed out that
on this
document -
·
the “Contract No.” was
“JA 11980”;
·
the “Credit No.” was
“TATC-599”;
·
the “Harbour Permit No.”
was “4212”
·
there was reference to a serial
number (the classification whereof was not described) which read “UME
WSIC45 03312017”
·
the description of the goods was
“ICUMSA 45 White Refined Sugar (AL KHALEEJ)” contained in
34 x 1 ton bags.
·
the price per ton was “R9420.00”
giving a “TOTAL VALUE” of “R365 119.20”
made up of “R320 280.00”
(i.e. 9420 x 34) plus
“R44 839.00” (being VAT at 14%)
·
there was an additional annotation
that read “TAT-0184 and part of TAT-0193”
55.
Then, Mr. Potgieter was shown a tax invoice
which was issued by Traxys to MFT on 7 August 2018 about which the
witness said he had
no knowledge. Nevertheless, he was taken through
the document in an attempt to show similarities with the credit note.
On the tax
invoice it appears that –
·
the contract number was the same as
that on the credit note (JA 11980);
·
the invoice number was recorded as
TAT-01846;
·
the UME reference was the same as
that on the credit note;
·
the harbour number differed and was
recorded as “4293”;
·
the description of the goods was the
same, save that the price per ton was reflected as “R9145.00”
giving a total value
of the tax invoice as “R354 460.20”,
being “R310 930.00” (i.e. R9145 x 34) plus VAT at
14% of
“R43 530.20”.
56.
Despite his manifest lack of knowledge of
the codes referred to by Traxys on its documents, Mr. Potgieter
speculated that the reference
on the credit note to “TAT-0184”
was a cross-reference to the tax invoice, notwithstanding the obvious
absence of an
additional numeral. As regards the inscription “part
of TAT-0193 refers”, Mr. Potgieter said
“
And
the other one I cannot confirm exactly what for but it is highly
likely a pricing difference.”
Lastly, as regards the manifest difference in harbour numbers, the
witness said,
“
I
cannot explain that, because the harbour number has of (sic) no
reference to Twizza itself
.”
57.
Earlier, Mr. Rampersada was asked under
cross-examination by Ms. Manser to explain the relevance of the
“harbor permit exit
number” on a document by that name
generated by MFT. He confirmed that each such permit number referred
to a separate and
specific load leaving the port. The witness was
then shown such a document which was said to relate to the load in
question. This
document (generated at 23:38:24 on 10 May 2017)
contained, inter alia, the following information –
·
The harbor permit exit number was
4293;
·
A truck with registration number FH
36 PT GP was being driven by one “Lucky”;
·
The transporter was described as
“TRADEV” (which was taken as a reference to Tradevest);
and
·
The load was 34 X 1 ton bags of
white sugar.
58.
Mr. Rampersada also identified a form
completed in manuscript by one of the MFT clerks from which the
information on the harbor
permit document was sourced. That
manuscript document recorded that the truck in question, driven by a
certain “Lucky”,
departed the MFT premises at 17h40 on 10
May 2017.
59.
In cross-examination Mr. Potgieter was
referred to a typed document issued on Twizza’s letterhead
dated 15 January 2019, marked
for the attention of “To Whom It
May Concern” and signed by one Karin Aylwin, a “Production
Cost Controller”
with Twizza. It reads as follows.
“
This
is to confirm that sugar load of 34,000kg on harbour permit number:
4212 dated 22.05.17 arranged by Traxy (sic) was not received
at
Twizza Queenstown.
Credit note TATC-59 was received
from Traxy for this load.”
60.
It is not clear whether Mr. Potgieter had
been briefed on this document because he was not referred to it in
his evidence-in-chief
and he fell about in the witness box somewhat
under cross-examination while trying to give context to the letter.
He confirmed
that Ms. Aylwin (who no longer worked for Twizza) was
the person who would have had knowledge of a missing load in the
course of
her duties. He further explained that this document was
drafted some 20 months after the Banzi load allegedly went missing
and
was sent after a request from Traxys.
61.
While it appeared as if Mr. Potgieter, at
one stage of his cross-examination, believed that the document was
written to explain
non-receipt of the Banzi load, the date of
delivery and the permit number presented obvious problems for Twizza.
The document is
manifestly wrong if it was intended for that purpose
as the harbour permit for the missing Banzi load was numbered 4293,
as explained
by Mr. Rampersada, and the date of delivery would have
been on 11 May 2017 (or 12 May 2017 at the latest) given that the
truck
allegedly left the MFT warehouse at 17h40 on 10 May 2017.
62.
Mr. Potgieter ultimately suggested that
this letter was probably intended to refer to a different lost load.
That answer poses the
question why the letter was discovered and
included in the witness bundle if it had no relevance to the alleged
lost Banzi load.
It was certainly not relied upon by Banzi to show
that the phenomenon of missing loads was not an infrequent occurrence
and thus
tendered as similar fact evidence.
63.
Mr. Herholdt, on the other hand was adamant
that the Twizza letter was written to establish non-delivery of the
Banzi load, claiming
that the incorrect harbour permit number was in
all likelihood a misprint. However, such a misprint would not explain
the different
date of delivery or the credit note reference number.
CONCLUSION ON THE ISSUE OF NON-DELIVERY
64.
In my view, Banzi did not adduce sufficient
evidence to discharge the burden of proof it bore to show that
Tradevest breached the
terms of the Banzi load con by failing to
deliver the load of sugar to Twizza. The documentation it relied upon
was largely hearsay
and ultimately equivocal. The viva voce evidence
presented by Banzi did not go far enough either. Importantly, Banzi
did not take
the most basic step of calling the responsible person(s)
at the Queenstown factory to testify regarding the non-delivery of a
load
of sugar that was ordered, loaded, expected for delivery and
which ultimately allegedly did not arrive. Surely, it must be asked
rhetorically, there was an administrative system in place in terms
whereof the entry of such a sizeable load onto the premises,
and its
subsequent storage in a warehouse, was recorded so that Twizza had
proof of its receipt of the load when Traxys asked for
payment
thereof. One is reminded in this regard of the cautionary words of
Nienaber JA in
SFW Group
[13]
“
[1]
Recollection can be fallible. And in business the failure to confirm
an event promptly on paper can be fatal.”
65.
On the other hand, Tradevest could no doubt
have called the driver (be it Norman, Lucky or A.N.Other) to testify
that the load had
been delivered to Twizza as required under the
Tradevest load con. But, to be fair, Tradevest attracted no onus to
establish delivery
and its failure to call the driver is not fatal to
its case. Moreover, the fact that Tradevest also adduced a slew of
hearsay evidence
in support of its allegation that delivery took
place notwithstanding the absence of the POD, does not assist Banzi,
which had
the onus to establish the material disputed allegation made
in its particulars of claim – non-delivery to Twizza.
66.
Looking at the matter from the angle of the
probabilities, it is indeed strange that the allegations of
non-delivery only arose
more than a year after the date of delivery
when questions were being asked by Traxys of MFT about payment for
its sugar and when
MFT in turn looked to its co-contractant (Banzi)
for an explanation. One must also bear in mind, too, that there was
mention in
the evidence on both sides of insurance cover (or really
the lack thereof, in the case of Tradevest) and that this
factor
may also account for the disappearance of the load only coming
to the fore at that stage – when insurance claims were being
submitted to, or assessed by, insurers.
67.
But the most puzzling aspect of all is that
if a load of sugar of this mass did not reach its destination as
planned, one would
have expected that Twizza would have anxiously
been asking questions almost immediately because it would have had an
unfilled space
in its warehouse and a possible disruption to its
production line. Also, the disappearance of such a large load
(whether through
theft or a high-jacking) would no doubt have merited
the attention of the police.
68.
However, since there is a paucity of
admissible and reliable evidence adduced by either party to establish
delivery or non-delivery
(as the case may be) on a balance of
probabilities, it cannot be said that there were two irreconcilable
versions placed before
the court
a quo
and it is therefore not permissible to consider where the
probabilities lie.
[14]
69.
In the circumstances, the evidence is
simply not of a satisfactory or persuasive standard and I consider
that the court
a quo
erred
in finding for Banzi. The judgment in its favour accordingly falls to
be set aside. I shall revert to the appropriate order
to be made on
appeal later.
QUANTUM OF PLAINTIFF’S DAMAGES CLAIM
70.
In the event that I am wrong in relation to
the finding on the merits of Banzi’s contractual claim, I turn
to the question
of quantum. As already stated, the court
a
quo
found that the plaintiff had
established damages in the sum of R354 460,20, being -
“
the
value of the sugar at the time of the load which was not delivered by
Tradevest to Twizza, Queenstown” which the court
calculated to
be “34 metric tons @R9145.00 (excluding Vat) per metric
ton
.”
[15]
71.
The basis for the finding by the court
a
quo
that the plaintiff had suffered
damages is that
“
(
a)s
a result of the breach of the contract Banzi has suffered a loss. It
is now obliged to pay the replacement value of the load
to its
customer MFT
.”
The finding that Banzi suffered a loss is predicated on two issues –
whether the future obligation to pay money to MFT constitutes
damage
per se
recoverable by Banzi from Tradevest, and then further,
whether the evidence placed before the court
a quo
sustains
the alleged obligation to pay.
72.
At the outset, it must be said that there
can be no debate about the court
a quo’s
finding that Tradevest attracted
liability for any loss or damage to the load of sugar which it had
undertaken to transport on behalf
of Banzi from Durban to Queenstown.
As already pointed out, such liability arose contractually from
clause 4 of the Banzi load
con and, in any event, from the operation
of the law relating to the carriage of goods and the principles
pertaining to
depositum.
APPROACH TO THE ASSESSMENT OF CONTRACTUAL DAMAGES
73.
It is trite that a contracting party which
claims damages arising from breach of contract
[16]
must prove that it actually suffered damage or loss. In order to
succeed in that regard, the injured party would ordinarily be
permitted to prove its damage by comparing the extent of its
patrimony as a consequence of the breach with the position it would
otherwise have been in had the breach not occurred.
[17]
If there is a difference between the two positions, that would
constitute the injured party’s damage, thus entitling it to
recover damages from the breaching party.
74.
The traditional approach to the
quantification of damages was usefully summarized as follows by
Jansen JA in his judgment in
ISEP
at 8A.
“
The
basic principle in the assessment of damages for breach of an
obligation arising from contract was formulated as follows by
Innes
CJ over 65 years ago:
“
The
sufferer by such a breach should be placed in the position he would
have occupied had the contract been performed, so far as
that can be
done by the payment of money, and without undue hardship to the
defaulting party.”
(
Victoria Falls and
Transvaal Power Co. Ltd v Consolidated Langlaagte Mines Ltd
1915 AD 1
at 22).
The rule can also be stated
thus: the defaulting party must compensate the plaintiff, so far as
that can be done by the payment
of money, for the damage (patrimonial
loss) suffered by him as a result of the breach. Then ‘damage’,
in order to conform
to the aforementioned test, will be defined in
the terms adopted by the majority in
Swart v Van der Vyver
1970 (1) SA 633
(A) at 643D:
‘
Die
vermoensskade ingevolge kontrakbreuk gely, word normaalweg bepaal
deur ‘n vergelyking van die bestaande vermoensposisie
van die
skuldeiser met die waarin hy so gewees het indien geen kontrakbreuk
plaasgevind het nie.
’
“
75.
As regards the date for the assessment of
damages, the general rule was held in
Rens
[18]
to be the date of performance, but that date may be determined to be
later in appropriate circumstances.
“
The
application of this rule will ordinarily require in many cases,
typically the case of a breach of contract of sale by the purchaser,
that the date for the assessment of damages be the date of
performance, or as it has often been expressed, the date of the
breach.
But even in contracts of this nature, there is no hard and
fast rule (cf
Culverwell
and another v Brown
1990 (1) SA 7
(A) at 30G - 31 H) and in each case the appropriate
date may vary depending on the circumstances and the proper
application of
the fundamental rule that the injured party is to be
placed in the position he would have occupied had the agreement been
fulfilled.
The position is the same in England. In
Miliangos
v George Frank (Textiles) Ltd
[1975] 3 All ER801 (HL) Lord Wilberforce recognized that ‘
as
a general rule in English law damages for tort or for breach of
contract or assist as at the date of the breach’
but
in the same passage emphasized that the general rule did not preclude
the Courts in particular cases from damages as at some
later date.”
76.
In the present matter the injured party
alleged that as a consequence of Tradevest’s breach (in the
form of the failure to
deliver the load to Twizza in accordance with
its obligation under the Banzi load con), it was liable to MFT for
the value of the
load. Banzi’s liability to MFT, in turn, was
said to flow from its contract with MFT, the terms, whereof, which
are set out
fully in the Stafford Law letter, do not appear to be in
dispute. Hence, the letter alleged, Banzi was entitled to subcontract
the delivery of the load to a subcontractor of its (Banzi’s)
choice but, notwithstanding the entitlement to so subcontract,
it
accepted the risk of MFT’s goods during transit at the cost
price thereof. This liability to MFT is not affected by clause
4 of
Banzi’s agreement with Tradevest in terms whereof Tradevest
became liable to Banzi for the loss of the goods.
77.
Banzi’s claim was thus in respect of
damage which it anticipated it would suffer when MFT sought to hold
it liable under the
contract alleged in the Stafford Law letter. As
Van der Merwe et al
[19]
suggest –
“
In
actual fact, the courts do not always make use of a comparison
between a hypothetical and an actual total patrimony in order
to
assess damage. Much rather, they follow a
concrete
approach
to the question of damage by focusing on the particular elements of
the estate that are affected. According to the concrete
approach,
damage occurs whenever, as a consequence of an uncertain or unplanned
event, the use of an asset is forfeited; a particular
asset is lost
or reduced in value;
a
particular liability (that is, a debt) is incurred or increased
,
or an expenditure becomes useless.… Liabilities or debts are
not only liabilities that have resulted from the uncertain
event
complained of but also liabilities or expenses that will inevitably
result from the event and which can be regarded as both
necessary and
reasonable.” (Emphasis added; internal references omitted)
78.
The issue as to whether a prospective
liability constitutes part of an injured party’s patrimony was
discussed by the Appellate
Division in
Jonnes
[20]
.
The case involved the interpretation of a contract for the sale of
shares which contained the following term –
“
You
shall indemnify me against any loss or damage I might suffer by
reason of any other guarantees given by me on behalf of….”
At issue in that matter was whether a suretyship put up by the
appellant prior to the sale of shares agreement was intended to
be
covered by the indemnity.
79.
A dispute arose between the parties as to
the proper meaning and extent of the indemnity. In the result, the
focus of the judgment
was on the principles of contractual
interpretation applicable at that time. However, in the latter part
of his judgment dealing
with the probabilities of the matter,
Potgieter JA addressed the argument of counsel and made the following
comments, which are
relevant to this matter.
“
But,
contends Mr. Maisels [for the respondent], such a construction would
do violence to the words ‘any loss or damage I might
suffer.’
In the first place he submitted that the words ‘any loss or
damage’ can only mean actual loss in the
sense that the
plaintiff has already parted with money without or after recourse to
the principal debtor and co-sureties. The probabilities
adverted to
above are similarly not in accord with such a narrow meaning of those
words. Moreover, I agree with Mr. Didcott [for
the appellant] that
one’s estate or patrimony consists not only of corporeal
assets, but also of the balance between the
value of one’s
incorporeal assets and the extent of one’s incorporeal
liabilities and one’s estate is therefore
diminished by the
increase of one’s incorporeal liabilities (cf.
West
Wake Price & Co. v Ching
(1956)
3 All E.R. 821
(Q.B.) at p.825D). It seems clear, therefore, that the
words ‘loss or damage’ may bear the meaning of loss or
damage
sustained as a result of an inescapable obligation to pay
money even before the money is actually paid. As pointed out above,
the
probabilities favour such a meaning. In this connection I may add
that it is not insignificant that the all-embracing word ‘any’
is used.”
80.
The learned Judge of Appeal then dealt with
the argument that the word “might” in the indemnity
suggested only an actual
payment made by the respondent at a time in
the future.
“
This
contention cannot be sustained. It loses sight of the fact that the
plaintiff’s liability to pay under his suretyship
only arises
when the debtors fail to pay and plaintiff is called upon by the
creditors to pay. Plaintiff’s mere liability
to pay therefore
also postulates futurity. Consequently the word ‘might’
is equally appropriate when applied to the
construction contended for
by Mr. Didcott.
In support of his contention
that the words ‘loss or damage’ only connote a loss in
the sense that money is already
parted with, Mr. Maisels posed the
following question: one of the creditors called upon plaintiff to
pay; he refused to pay and
the creditor did nothing further; did
plaintiff then suffer any loss? Of course not. But such an
eventuality is so unrealistic
and unlikely that one can safely assume
that it could never have been contemplated by the parties. In any
event, in those circumstances,
there would be no inescapable
liability to pay.
Van der Merwe et al
[21]
comment on
Jonnes
and suggest that it might be correct to refer, in this context, to
“debt expectancies” (or “skuldverwagtinge”)
that will inevitably materialize as liabilities in a party’s
patrimony.
81.
It seems to me therefore that when
determining the extent of an injured party’s patrimony after a
breach of contract has occurred,
consideration may be given to the
injured party’s debt expectancies, but then, as Potgieter JA
postulated in
Jonnes
,
the liability to pay must arise from an “inescapable
obligation”.
82.
What are the facts here? There is no debate
that Banzi was contractually bound to MFT to transport its load of
sugar and that it
was contractually bound to accept the risk in
relation to any loss thereof. In his evidence, Mr. Albrecht said
that, although Stafford
Law had demanded payment of the sum of
R357 569,50 by Banzi in June 2019, at the time that he testified
in October 2020, no
further steps had been taken against his company.
83.
Mr. Albrecht went on to say under
cross-examination, when asked by Ms. Manser what damages Banzi had
actually suffered, that he
considered himself bound to settle Banzi’s
alleged indebtedness to MFT because if he did not do so, MFT would no
longer do
business with Banzi. Counsel then correctly pointed out to
Mr. Albrecht that it was not part of Banzi’s claim against
Tradevest
that it had suffered damages “because [its]
relationship was ruined.” The witness accepted the proposition.
84.
Mr. Albrecht further stated that, as far as
he was concerned, any money that Banzi might recover from Tradevest
in this litigation
would be paid over to MFT. In fact, he went so far
as to suggest that Ms. van der Berg could pay the money over directly
to MFT.
85.
Ms. Manser then traversed the issue of the
prescription of MFT’s claim against Banzi, pointing out that at
that stage (October
2020) the claim had clearly prescribed. To this
Mr. Albrecht said that Banzi would not shirk its commercial
responsibility, as
“I will know it is
skelm.
That is not the way to operate it. That is not the way it work
(sic).”
86.
The problem with the approach adopted by
Banzi to the MFT claim is, firstly, that there has been no
unequivocal admission of its
liability to MFT in respect of the
allegedly lost load of sugar: no correspondence was produced by Banzi
to establish that it acknowledged
the claim and would not plead
prescription. Secondly, there is no evidence that MFT has issued
summons to stop the running of prescription
in respect of Banzi’s
alleged debt. On the contrary, as matters presently stand, the debt
owing to MFT appears to have prescribed.
Thirdly, there is the
concern that if Banzi recovers the cost of the load of sugar from
Tradevest and MFT fails to take further
steps, Banzi will not only
have not suffered any damages but will in fact have been enriched. It
is not inconceivable that Mr.
Herholdt, notwithstanding his honest
assurances in the witness box, might be advised by lawyers acting for
Banzi that there is
no basis for the corporation to settle MFT’s
debt should it proceed to litigation.
87.
In the result, I am driven to conclude that
Banzi failed to establish the requisite degree of inevitability of
its future, contingent
obligation to MFT. In the circumstances, it
follows that Banzi has not adduced sufficient evidence to sustain the
damages it claims
to have suffered.
CONCLUSION
88.
In the light of my findings that Banzi’s
evidence before the court
a quo
did
not sustain the finding of damages in its favour, the judgment falls
to be set aside. In such circumstances, this Court is permitted,
under s87(a) of the Magistrates Court Act, 32 of 1944
“
to
confirm, vary or reverse the judgment appealed from, as justice may
require”
S19(d)
of the
Superior Courts Act, 10 of 2013
, is in similar vein
providing that the court hearing an appeal may –
“
confirm,
amend or set aside the decision which is the subject of the appeal
and render any decision which the circumstances may
require.”
89.
So what order should this Court make in the
circumstances? I have found that Banzi did not adduce sufficient
admissible evidence
to prove non-delivery of the load to Twizza. On
the assumption that there is a vague prospect that it may yet be able
to conclusively
establish non-delivery, I believe that it would be in
the interests of justice to permit Banzi to do so. An order granting
absolution
from the instance at the conclusion of the defendant’s
case may be made in circumstances where the possibility exists that
a
plaintiff who bears the onus of proof in the matter might
successfully discharge that onus by establishing other facts.
[22]
The same approach would apply to the issue of damages, in the event
that I am wrong in regard to the finding on the merits of Banzi’s
claim.
IN THE RESULT, THE FOLLOWING ORDER IS MADE:
A.
The appeal succeeds with costs.
B.
The order of the Regional Magistrate,
Somerset West is set aside and replaced with the following:
“
There will be absolution from the instance
with the plaintiff to pay the costs.”
GAMBLE, J
I AGREE.
LE ROUX, AJ
APPEARANCES
Appellant
:
Ms. V. Manser
Instructed by Malan
Lourens Viljoen Inc
Somerset West
c/o Macgregor Erasmus Attorneys
Cape Town.
Respondent
:
Mr. M.A.Basson
Instructed by BDP Attorneys
Tygervalley
c/o Goussard Coetzee & Otto Inc
Somerset West.
[1]
GB Bradford
,
Christie’s Law of Contract in South Africa, 7
th
ed.
[2]
Kings Car Hire (Pty) Ltd v Wakeling
1970 (4) SA 640 (N)
[3]
At 643D-F
[4]
LAWSA
(2
nd
ed.) Vol 2 Part 1 para 603 at p326.
[5]
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd
1979 (3) SA 754
(A) at 761H – 762C
[6]
This was a principle of Roman Dutch law which imposed strict
liability upon “seamen, inn-keepers or stable-keepers
(
nautae,caupones,stabulari
)” in respect of goods
entrusted to them for safe-keeping.
[7]
Anderson Shipping (Pty) Ltd v Polysius (Pty)
Ltd
1995 (3) SA 42 (A)
[8]
Nemo plus juris ad alium transferre potest quam ipse habet –
“No one can transfer to another a greater right than he has
himself”
(Claasen
Dictionary of Legal Words and Phrases
Vol 3 [Issue 1] N-26)
[9]
ISEP Structural Engineering and Plating (Pty)
Ltd v Inland Exploration Co (Pty) Ltd
1981 (4) SA 1
(A) at 9F
[10]
Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd and
another
1998 (1) SA 662
(ECD) at 674D
[11]
“ALL SIGNED POD’S WITH INVOICE PLEASE”
[12]
It is common cause that on 1 April 2018, VAT increased from 14% to
15%, hence the higher amount then being claimed.
[13]
Stellenbosch Farmers Winery Group Ltd and another v Martell et
Cie and others
2003 (1) SA 11
(SCA) at [1]
[14]
SFW Group
at [5]
[15]
The sum of R354 460.20 was correctly calculated as 34 x
R9145.00 + R43 530.20 (VAT at 14%)
[16]
For the sake of convenience, I will refer to this as “the
injured party”.
[17]
Swart v van der Vyver
1970 (1) SA 633
(A) at 643B
et seq.
[18]
Rens v Coltman
[1995] ZASCA 118
;
1996 (1) SA 452
(A) at 458E-H
[19]
Van der Merwe, van Huyssteen, Reinecke and
Lubbe
Contract, General Principles 4
th
ed. at 358 - 9
[20]
Jonnes v Anglo-African Shipping Co. (1936) Ltd
1972 (2) SA
827
(A) at 837 B-E
[21]
At 359 fn253
[22]
Damont NO v Van Zyl
1962 (4) SA 47
(C) at 52G-H;
Mills
Litho (Pty) Ltd v Storm Quinan t/a ‘Out of the Blue
1987
(1) SA 781
(C) at 786H-I