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2023
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[2023] ZAECQBHC 32
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Solatha General Trade CC vs Intertown Transport (Pty) Ltd (3104/2021) [2023] ZAECQBHC 32 (6 June 2023)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
Case No.: 3104/2021
Date Heard: 11 May 2023
Date Delivered: 6 June 2023
In the matter between:
SOLATHA
GENERAL TRADE CC
Plaintiff
and
INTERTOWN
TRANSPORT (PTY) LTD
Defendant
JUDGMENT: EXCEPTION
RONAASEN AJ:
Introduction
[1]
On 19 October 2021 the plaintiff instituted an
action against the defendant in which it sought payment of damages
from the defendant
in the sum of R1 063 247.00, and
ancillary relief.
[2]
The plaintiff alleges that, on 30 March 2021, it
purchased a brand-new combined incubator/hatcher machine (“the
machine”)
from a supplier in Johannesburg. Thereafter, on
1 April 2021, at Gqeberha, it concluded an oral agreement with the
defendant
in terms of which the defendant was required to transport
the machine from Johannesburg to the plaintiff’s business
premises
in Gqeberha.
[3]
The plaintiff avers that it paid the agreed price
for the transport services to the defendant. It states further
that upon
agreeing to transport the machine the defendant came under
a legal duty to:
3.1.
act with a degree of care, skill and diligence as
would ordinarily be expected of a courier company, in similar
circumstances;
3.2.
carry out the duties and obligations it had
assumed in terms of the agreement with reasonable skill and care;
3.3.
ensure that the delivery of the machine would
occur safely and without any damage being caused to the machine; and
3.4.
deliver the machine timeously to the plaintiff.
[4]
The plaintiff then goes on to allege that the
defendant breached the terms of the agreement, alternatively the duty
of care which
it to the plaintiff by failing to:
4.1.
deliver the machine timeously to the plaintiff and
then advising the plaintiff the machine had been damaged in transit;
4.2.
act with the degree of care, skill and diligence
expected of a courier company, in similar circumstances;
4.3.
carry out all its obligations with reasonable
skill and care;
4.4.
ensure that the delivery of the machine occurred
safely and without any damage to the machine; and
4.5.
provide the agreed delivery/courier service with
professional skill, care and diligence as could reasonably be
expected of a courier
company, while they could and should have done
so.
The defendant’s exception
[5]
On 25 October 2022 the defendant delivered a
notice in terms of Uniform Rule 23(1) in which it informed the
plaintiff that it contended
that the particulars of claim were
excipiable in various respects and that in the absence of a response
to the notice it would
deliver an exception.
[6]
The notice was not responded to by the plaintiff
and an exception was duly delivered by the defendant on 25 November
2022, echoing
the notice in terms of rule 23(1).
[7]
In summary the exception proceeds on the following
grounds:
7.1.
to the extent that the plaintiff seeks to hold the
defendant liable for the negligent conduct of its employees, the
plaintiff had
failed to allege that the employees were acting in the
scope and course of their employment with the defendant; and
7.2.
the legal duty of care relied upon by the
plaintiff emanated from the alleged oral agreement, according to the
particulars of claim.
Thus, the plaintiff had impermissibly
conflated a claim based on an alleged breach of contract and a claim
founded on an alleged
delict. Policy considerations did not
permit that delictual liability could be imposed for the negligent
breach of a contract;
and
7.3.
accordingly, the plaintiff’s claim was bad
in law as it lacked the averments necessary to sustain a cause of
action, alternatively,
it was vague and embarrassing.
Legal principles
[8]
On a consideration of the averments relied on by
the plaintiff it is apparent that the plaintiff is contending that
the defendant
is a carrier in the position of a depositary or bailee,
for reward. Therefore, it is apposite to refer to the following
passage
from the judgment of the former Appellate Division in
Stocks
& Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd
1979
(3) SA 754
(AD) at 761H-762C, to the following effect:
“
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. The position of a contracting
party whose liability is governed by the provisions of the Praetor’s
Edict
and the position of a depositary or bailee for reward is
similar in that in each case the
onus
which lies on him in regard to loss of or damage
to the goods entrusted to his custody ‘arises as an inference
from the nature
of the contract which places him under an obligation
to return the article or prove the reason why he has failed to do
so’.”
[references omitted]
Application of legal principles
[9]
In my view the averments in the particulars of
claim disclose a cause of action to hold the defendant liable in
damages to the plaintiff
on the basis that it was a carrier (in
respect of the machine) and thus a depositary or bailee for reward.
My conclusion
in this regard thus puts paid to the grounds of
exception summarised in paragraph 7.2, above.
[10]
Also, my conclusion disposes of the ground of
exception in terms of which the defendant alleges that the
particulars of claim are
excipiable as the plaintiff had failed to
allege that the employees of the defendant, whose negligence it is
alleged caused the
damage to the machine, were acting in the scope
and course of their employment with the defendant.
[11]
Paragraph 12 of the particulars of claim commences
with the following preamble:
“
In breach of
the agreement set out above, alternatively in breach of the
defendant’s duty of care as set out above, the defendant’s
employees acting as aforesaid were negligent in that they:”
The plaintiff then goes on to set out
various grounds of negligence. It is particularly the preamble
which the defendant contends
is deficient.
[12]
Given the nature of the contract on which the
plaintiff relies, i.e., a contract of carriage, which, by operation
of law, has the
characteristics described in the
Stocks
judgment, the averments in paragraph 12 of the
particulars of claim are superfluous.
[13]
In respect of contracts of carriage, when suing
the carrier for damage to the goods which were the subject matter of
the contract,
a plaintiff need only aver the following:
13.1.
the conclusion of the contract;
13.2.
the fact that it was an implied term of the
contract that the goods would be delivered at their destination in a
sound and undamaged
condition;
13.3.
the breach of the contract in that the goods did
not arrive in a sound and undamaged condition; and
13.4.
particularity of the damages suffered as result of
the breach.
See
Amler’s Precedents of
Pleadings
by LTC Harms (ninth edition) at 68-7.
[14]
If those essential averments are made and, in this
case, they are then the defendant bears the
onus
to establish that any loss or damage the plaintiff
may have sustained occurred without its fault.
[15]
The plaintiff was therefore not required to allege
that the defendant’s employees acted in the scope and course of
their employment
with the defendant.
Conclusion and order
[16]
The exception accordingly has no foundation.
As a result, I make the following order:
The exception is dismissed with
costs.
O H RONAASEN
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel
for Plaintiff:
Adv V
Madokwe
Instructed
by:
Ntanzi
Attorneys Inc.
Counsel
for Excipient/Defendant:
Adv L
Voultsos
Instructed
by:
Goldberg
& De Villiers Inc