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[2013] ZASCA 181
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Clearfreight (Pty)Ltd v Pitech Sales CC (186/12) [2013] ZASCA 181 (29 November 2013)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case No: 186/12
Not Reportable
In the matter between:
CLEARFREIGHT (PTY)
LTD
.........................................................
APPELLANT
and
PICTECH SALES
CC
....................................................................
RESPONDENT
Neutral citation:
Clearfreight (Pty) Ltd v Pictech Sales CC
(186/12)
[2013] ZASCA 181
(29 November 2013).
Coram
: Mthiyane AP, Maya, Leach
and Saldulker JJA and Meyer AJA
Heard
: 18 November
2013
Delivered
: 29
November 2013
Summary
:
Contract of deposit - whether depositor proved delivery to depository
of goods alleged to have been lost in storage.
ORDER
On appeal from: Full Bench of the South Gauteng High Court (Masipa J
and Coppin J concurring):
(a)
The appeal is upheld with costs.
(b)
The order of the high court is set aside and is substituted
with the following:
‘The appeal is dismissed with
costs.’
JUDGMENT
Meyer AJA (Mthiyane AP, Maya, Leach and Saldulker JJA):
[1]
The appellant, Clearfreight (Pty) Ltd (Clearfreight), conducts
business as a clearing and forwarding agent although it also offers
additional services including the warehousing of goods. The
respondent, Pictech Sales CC (Pictech), is an importer of goods and
a
former client of Clearfreight. This appeal concerns Pictech’s
claim against Clearfreight for the value of goods alleged
to have
been lost in storage.
[2]
Import clearing and forwarding services were provided to
Pictech in terms of a written agreement concluded on 28 April 1998,
which
agreement incorporated Clearfreight’s ‘Standard
Trading Conditions’ (the written agreement). Initially, the
services
provided by Clearfreight related to air- conditioning units
that Pictech imported from China. Pictech later resolved to extend
its business to include the importation of ‘soft drawn copper
tubing’, also from China. Because it did not have secure
facilities to store the copper tubing, Pictech’s sole member,
Mr M Shek, arranged with a representative of Clearfreight,
Mr H Lee,
for Clearfreight to store its copper tubing, once forwarded and
cleared. These additional warehousing services were provided
to
Pictech from the end of June 2003.
[3]
Pictech’s Mr IM Parker, for reasons that are not
presently relevant, became concerned about the security at the
premises at
which Clearfreight was storing the copper tubing. He
accordingly undertook a stock count at the warehouse on 27 January
2004. The
following day he advised Clearfreight’s managing
director, Mr W Claassen, by e-mail that the ‘actual’ and
‘theoretical’
stock revealed ‘large differences’.
Pictech ultimately resolved not to conduct any further business with
Clearfreight.
And it deducted an amount of R68 447.37 from the amount
which it owed Clearfreight in respect of its services and the
disbursements
for the months December 2003 and October 2004, this
being the alleged value of its copper tubing that ‘went
missing’
from the appellant’s warehouse. The parties
referred to the alleged loss as ‘under receipting’ by
Clearfreight
of the goods in question. I adhere to their terminology.
[4]
The loss complained of relates to two consignments, referred
to as CU101 and CU104. Pictech purchased the copper tubing from a
Chinese
manufacturer, Henan Golden Dragon Precise Copper Tube Inc
(the manufacturer). Clearfreight acted as Pictech’s freight
clearing
and forwarding agent in respect of both consignments and it
appointed Formosa Transportation Co., Ltd as its agent in China. Each
consignment was loaded into a 24 m
3
container. The
containers were allegedly sealed and transported from Henan to
Tianjing P.R., China. During June 2003 the container
containing
consignment CU101 was shipped by the Mediterranean Shipping Company
to Durban. In November 2003 consignment CU104 similarly
shipped to
Durban. Both consignments were received by Clearfreight in Durban and
transported to its premises in Johannesburg, where
the seal of each
was broken for the first time. The containers were unpacked and the
copper tubing stored in Clearfreight’s
warehouse until
collected by the respondent. Pictech asserted that the records of
Clearfreight of what it had received into its
warehouse in respect of
consignments CU101 and CU102 reflect less kilograms copper tubing
than what had in fact been packed in
the containers by the
manufacturer and that there was accordingly an ‘under
receipting’ by Clearfreight of the goods
comprising the two
consignments.
[5]
Clearfreight did not accept being liable to Pictech. Instead,
it instituted the action against Pictech in the magistrates’
court, Randburg claiming payment of the sum of R69 701.36, interest
and costs. Pictech acknowledged its liability to Clearfreight
in the
sum of R68 447.37, but in a counterclaim claimed payment of that
amount from Clearfreight which amount it alleged represents
the
damages it had suffered as a result of Clearfreight’s breach of
an oral agreement concluded on 3 June 2003 between Pictech,
represented by Shek, and Clearfreight, represented by Lee, in terms
of which the warehousing services were provided. Clearfreight,
on the
other hand, asserted that all its services were provided to Pictech
in terms of the written agreement. It is common cause
that if the
warehousing services were provided subject to Clearfreight’s
standard trading conditions its liability would
be limited to loss
caused as a result of gross negligence or fraud.
[6]
At first instance, by agreement between the parties the
magistrate’s court ruled, pursuant to rule 29(4), that three
questions
be adjudicated separately: (a) whether the warehousing
services that were provided by Clearfreight to Pictech during the
period
June 2003 until February 2004 were provided in terms of the
written agreement as alleged by Clearfreight, in which event the
standard
terms and conditions annexed thereto applied, or whether
such services were provided in terms of the oral agreement as alleged
by Pictech; (b) whether there was under receipting by Clearfreight of
the goods in the consignments identified as CU101 and CU104;
and (c)
in the event of the question in regard to whether the services were
provided in terms of a written agreement being decided
in favour of
Clearfreight and it being found that Clearfreight had under receipted
the goods, whether such under receipting was
a result of gross
negligence or theft.
[7]
Pictech argued that the question of its loss was dispositive
of the matter. This argument seems to me to be sound. Pictech
conceded
being liable to pay to Clearfreight the sum of R68 447.37
and sought to avoid paying
that sum by setting off
its alleged loss against it. Clearfreight waived the difference
between the amount it claimed and the amount
of Pictech’s
admitted liability and accordingly, it would not matter whether the
warehousing
services had been provided in terms of the written
agreement or a subsequent oral agreement if Pictech’s alleged
loss was
not proved.
[8]
The court of first instance decided each question in favour of
Clearfreight. It granted judgment in its favour against Pictech for
payment of the sum of R68 447.37 plus interest and costs and it
dismissed Pictech’s counterclaim with costs. On appeal the
South Gauteng High Court (Masipa J and Coppin J concurring) held a
different view. In upholding the appeal with costs it decided
questions (a) and (b) in Pictech’s favour. The present appeal
is with the leave of this court.
[9]
Taking the cue from Pictech’s submission at first
instance, I propose to first consider the question whether Pictech
has proved
on a preponderance of probabilities that there was under
receipting by Clearfreight of the copper tubing comprising
consignments
CU101 and CU104.
[10]
The dispute relating to those consignments only relates to
copper tubing with dimensions 12.7 mm x 0.6 mm x 15 m. Parker’s
evidence is to the effect that in loading a container, 20 boxes of
copper tubing (5 layers of 4 boxes each) are packed onto a pallet
and
shrink wrapped. If necessary, empty boxes are used to complete the
cube of twenty boxes. In establishing Clearfreight’s
‘receipting’ of the goods, Pictech relied solely on
Clearfreight’s own records, which include stock lists prepared
at the time of unpacking the containers, collection notes and a
schedule or reconciliation of goods received and collected by
Pictech.
[11]
Regarding consignment CU101, the records reveal that
Clearfright received a total of 18 pallets on which 344 boxes were
packed.
Included were 60 boxes (three pallets) containing the 12.7 x
0.6 x 15 copper tubing. Parker calculated the net weight of this
consignment
as per Clearfreight’s records at 9 950.80
kilograms. In the case of consignment CU104, it received a total of
18 pallets
on which 360 boxes were packed. Included were 40 boxes
(two pallets) containing the 12.7 x 0.6 x 15 copper tubing. Parker
calculated
the net weight of this consignment at 9 562.00 kilograms.
[12]
Pictech
asserted that there was under receipting by Clearfreight of 20 boxes
(1 pallet) of 12.7 mm x 0.6 mm x 15 m copper tubing
(a net weight of
905.30 kilograms) in respect of consignment CU101, and 40 boxes (2
pallets) copper tubing with those dimensions
(a net weight of 1 464
kilograms) in the case of consignment CU104. In order to establish
its assertions, and particularly what
had been packed into the
containers in China, Pictech relied on what purports to be: (a) the
manufacturer’s ‘commercial
invoice’ dated 9 May
2003 and the manufacturer’s ‘packing list’ in
respect of consignment CU101; (b) the
manufacturer’s
‘commercial invoice’ dated 3 November 2003 in respect of
consignment CU104; and a letter from
the manufacturer dated 01 March
2004, which reads:
‘We herewith confirm that:
1)
our shipment for Pictech with order number Cu101, shipped by
FORMOSA TRANSPORTATION CO., LTD, on the 5
th
June 2003,
from Tianjing P.R. China to Johannesburg, RSA, the total net weight
is 10 856.10 KGS, gross weight 12 167 KGS, measurement
24.00 m3,
with total 19 clean Pallets. The detail can be referred to our
packing list.
2)
our
shipment for Pictech with order number Cu104, shipped by FORMOSA
TRANSPORTATION CO., LTD, on the 26
th
November 2003, from
Tianjing P.R. China to Johannesburg, RSA, the total net weight is 11
130.69 KGS, gross weight 12 669.5 KGS,
measurement 24.00 m3, with
total 20 clean Pallets. The detail can be referred to our packing
list.’
[13]
Other documents referred to are a Bill of Lading, Shipped on
Board Details that appears to have been prepared by the Mediterranean
Shipping Company, and a Bill of Entry in respect of each consignment.
The undisputed evidence, however, is that the information
regarding
the weight and number of pallets of each consignment reflected in
these documents emanated from the information contained
in the
manufacturer’s invoices and packing lists. The information was
merely carried over from document to document. The
containers were
sealed after they had been loaded in China and the seals were only
broken once the containers had arrived at Clearfreight’s
premises in Johannesburg.
[14]
The correctness of the details of each of the disputed
consignments reflected in the manufacturer’s documents has not
been
proven. We are accordingly faced with conflicting documents as
to what was allegedly consigned and that which Clearfreight recorded
as having been received. There is, in my view, no reason why the
documents of the manufacturer should be preferred to those of
Clearfreight. Either the employees of the manufacturer or those of
Clearfreight might have recorded false or mere incorrect information.
I conclude therefore that loss on the part of Pictech has not been
proved on a preponderance of probabilities.
[15]
In the circumstances Pictech failed to prove that there had
indeed been an under-receipting on the part of Clearfreight or, more
accurately, that goods it had received on Pictech’s behalf had
gone missing from its warehouse. It therefore failed to prove
its
counterclaim and its admitted liability in respect of the sum of R68
447.37 has not been displaced. The court of first instance
thus
correctly found in Clearfreight’s favour and the court of
appeal erred in allowing Pictech’s appeal.
[16]
In the result the following order is made:
(a)
The appeal is upheld with costs.
(b)
The order of the high court is set aside and is substituted
with the following:
‘The appeal is dismissed with
costs.’
P A MEYER
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant:
B D
Hitchings
Instructed by:
Breytenbach Mostert, Pretoria
Vermaak & Dennis, Bloemfontein
For Respondent:
M D Silver
Instructed by:
Daeeyl Furman & Associates,
Johannesburg
Matsepes, Bloemfontein