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[2021] ZAKZDHC 36
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Mycsa Mulder Y Co Import Export SA v Transnet SOC Ltd (A66/2014) [2021] ZAKZDHC 36 (15 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION: DURBAN
(In
the exercise of its Admiralty Jurisdiction)
CASE
NO: A66/2014
In
the matter between:
Mycsa
Mulder Y Co Import Export
SA Applicant
and
Transnet
SOC
Ltd Defendant
JUDGMENT
Lopes
J
[1]
On
the 27
th
August
2014, an action-in-
personam
was
instituted by Mycsa Mulder Y Co Import Export SA ('Mycsa'), a company
incorporated in accordance with the laws of Spain, against
Transnet
SOC Ltd which trades as Transnet Port Terminals ('Transnet'). Mycsa's
claim is in delict, for cargo allegedly lost whilst
in the care of
Transnet.
[2] Mycsa
alleges: -
(a) On the 2
nd
of May 2012, 30 pieces of cargo, constituting a Sennebogen 5500
Star-lifter crane ('the crane'), was offloaded from the MV 'Red
Cedar' ('the ship') into the care and custody of Transnet at the
Point Multipurpose Terminal in Durban Harbour, and stored in what
was
referred to as the 'staging area' in the terminal.
(b) The crane
had been dismantled prior to loading and was loaded on board in
Leixoes, Portugal.
(c) On the 27
th
September 2012, the area where the crane was stored was declared a
'Virtual State Warehouse' by the Department of Customs ('Customs'),
in terms of the Customs and Excise Act, 1964 ('the Act'). This occurs
when break-bulk cargo has not been cleared through customs
within 28
days from the date of landing. It is normally then removed to the
State Warehouse. The Controller of customs is permitted,
in terms of
s 43 of the Act, to allow the cargo to remain where it is, but
declare the area where it is a Virtual State Warehouse,
and the cargo
is then deemed to be under the control and direction of the
Controller of customs.
(d) The cargo
was only ultimately cleared and removed from the staging area on the
30
th
September 2013, and then it was transported to Beira
in Mozambique, by road. The arrangements for the payment of customs
dues,
the removal of the cargo from the staging area and its
transportation to Beira were carried out by Exposure Management
Services
(Pty) Ltd, trading as Interlogix.
(e) Interlogix
was reimbursed by Grinrod Ships Agency (Pty) Ltd trading as King &
Sons, the clearing
and forwarding agents in Durban. King & Sons,
in turn, were reimbursed by Mycsa.
(f) When
the dismantled parts of the crane arrived in Beira, it was discovered
that:
(i) A
base plate counterweight or bracket ('the base plate') with a mass of
13.3mt, and ten counterweights,
each weighing 4.8mt were not
delivered;
(ii) Ten
items, comprising what turned out to be some type of flooring cover,
which did not belong
to Mycsa, were delivered in error to Beira. They
were, in short order, returned to Durban by King & Sons.
(iii) A
quantity of electrical equipment was removed or stripped from the
crane, and it is common cause that
that electrical equipment never
arrived in Beira.
(iv) Various
defences were raised by Transnet including a special plea of
prescription. Mr
CJ Pammenter SC
, who appeared with Mr
AJ
Boulle
for Transnet, recorded that the special plea would not be
pursued, save insofar as it may be indicative of the period for how
long
any duty of care which may have been owed by Transnet to Mycsa,
existed.
(v) At the
outset of the trial Mr
PJ Wallis SC
, who appeared for Mycsa
requested an amendment to the particulars of claim, to reduce the
amount claimed in respect of the ten
missing counterweights and
damage suffered by the loss of electrical equipment to €126 820,
47. In addition, Mycsa claimed
the sum of R1 194 722 in respect of
the base plate.
[3] The
issues before me were accordingly: -
(a) Whether the
missing base plate and the other ten counterweights were ever loaded
aboard the ship.
(b) Whether
those items were ever discharged at Durban.
(c) Whether
they were ever loaded on the trucks to be transported to Beira.
(d) Whether
Transnet owed a duty to Mycsa in respect of the missing items, if so,
for how long;
[4] The
matter of quantum was eventually agreed by the parties to be;
(a) €36
118,35 in respect of the base plate, and
(b) €72
066,50 in respect of the ten counterweights.
No
agreement was concluded as to the value of the lost electrical
components.
[5] The
first witness for Mycsa was Mr Olaf Mulder. The important aspects of
his evidence were:
(a) Mycsa was
formerly part of a much larger company, which was demerged into
four separate companies.
Mycsa kept the business involving the
importation, distribution and servicing of cranes for various
European manufacturers, such
as Sennebogen;
(b) The crane
was described as a 'crawler crane' with a lifting capacity of 180mt;
(c) The
lost items from the crane were the base plate and the ten other
counterweights which are mounted
onto, and are affixed to, the rear
of the crane when it is working;
(d) The
base plate runs the entire width of the crane and the ten
counterweights, five on each side,
sit on top of the base plate;
(e) During or
about March 2012, Mycsa, the owner of the crane, concluded an
instalment sale agreement with
Gruas Usabiaga ('Usabiaga'), a crane
hire company operating in Northern Spain;
(f)
The price was to be paid by Usabiaga by forty-eight monthly
instalments of €13 570,00, together
with a final payment of €738
303,42;
(g) The
sale of the crane was registered in Spain, with the object of
protecting Mycsa. However, Mycsa
agreed to the issue by the Spanish
authorities of a permit to Usabiaga, to enable it to remove the crane
from Spain to South Africa;
(h) None
of the instalments were ever paid by Usabiaga, and the crane was
never returned to Mycsa;
(i) Usabiaga
was to have hired the crane out to an entity in Durban, CraneCom.
This deal, for
one or other reason fell through, and the crane was
never cleared and uplifted by CraneCom in Durban;
(j)
Eventually Mycsa cancelled the instalment sale agreement in July
2013. By that stage, the crane had been
carried aboard the ship from
Leixões to Durban, under a MACS bill of lading;
(k) The crane
was dismantled prior to shipment in Leixões and the bill of
lading records that there
were '30 pieces';
(l) There were
clearly problems during the loading, because parts of the crane were,
at some stage, removed from
the harbour area of Leixões and
then returned to it. There was also some paintwork damage caused to
the lattice boom sections
because a forklift was used to load the
crane;
(m) A report was
compiled by Usabiaga regarding the loading of the crane which was
eventually forwarded to Mycsa.
It formed part of the record before
me. The personnel of Usabiaga in Leixões were asked to leave
the port area, apparently
because of protests which they lodged
because of the manner in which the crane was being handled. In the
report are two photographs
of items being lifted aboard the ship. Mr
Mulder testified that, from the photographs:
(i) he
could clearly see the base plate and some of the counterweights being
suspended below a gantry
which was used in the reloading of some of
the parts which had been removed. The gantry is suspended immediately
above the deck
of the ship. What Mr Mudler in fact said, was;
'I am sure that it is
like stapled goods. The narrow one, is one of the base
counterweights. It is either base counterweights or
one of the
chassis counterweights of the machine. They are very similar in
aspects. Then there is three, apparently three, of the
10.48mt
counterweights on top.'
(ii) Mr
Mulder could see that, on top of the weights in the sling, was a
pulley block with a hook ('hook-block')
which is used to do the
lifting by the crane;
(n) He
later said that he was certain that it was the base plate, weighing
13.3mt. He was able to say
this because of the thickness evidenced by
the item in the photograph;
(o) As
part of the court record there was a number of photographs of the
crane, apparently taken after
they had arrived in Beira. Evident in
the photograph is a large boxed-shaped number of the floor coverings
which did not form any
part of the crane. Other parts of the crane
were identified by Mr Mulder, but the base plate and the
counterweights were nowhere
to be seen. Mr Mulder expressed the view
that it was impossible to be mistaken about the floor coverings not
being part of the
crane, because they were made of rubber and would
have no effect as a counterweight, which is made of cast-iron. Mr
Mulder was
unable to identify the hook-blocks (two of them) which
were depicted in the photographs. The first one was the wrong colour
for
Sennebogen equipment, and the other was clearly marked
'Liebherr'. He testified that they would not normally have used the
equipment
of another manufacturer with the crane, apparently because
of the risks in Europe of being prosecuted for doing so;
(p) Mycsa
paid a total of $260 000 for clearing the crane from the harbour and
transporting it to Beira;
(q) Mr Mulder
testified that when the crane arrived in Beira, the base plate was
missing as well as the 10.48mt
counterweights. In addition, the
electrical installation had been, as he described it, 'plundered and
vandalised and partly robbed'.
The electrical equipment included a
load limiting device, certain sensors and a wind measurement device
which were all missing.
It then transpired that it was not Mr Mulder
who saw the crane in its original condition when delivered to Beira,
but a certain
Mr Fernka, a director of Mycas who is no longer
employed by the company;
(r) Mr
Mulder referred to a SAD500 customs declaration form, compiled and
signed in Durban, and
dated the 25
th
September 2013. The
block numbered 31 on that document refers to 'BREAKBULK CARGO STC29
PKGS CRAWLER CRANE IN CKD FORM'. STC is
an acronym for 'said to
contain' and CKD is 'completely knocked down'. The document is signed
by one Kershni Bharat, a customs
broker employed by Interlogix. A
further SAD500-custom declaration form dated the 27
th
September 2013 referred to 'BREAKBULK CARGO STC 1 CASE' described as
being 'BRACKET FOR MACHINE 5500.5.170 Product; PARTS FOR CRANE';
(s) The
gross mass of the bracket referred to in that declaration form was 13
300kgs; it would appear
that the only item weighing 13 300kg was in
fact the base plate;
(t) Mr
Mulder was of the view that the only possible guess he could make as
to the identity of
the item was that it was a base plate;
(u) Mr Mulder
was emphatic that that base plate was not the original one which was
part of the crane. This
was a replacement. The market price of that
bracket was R 1 194 772.
[6] Under
cross-examination, Mr Mulder conceded that he was unable to say
whether the procedure depicted in the
photographs was the loading of
the crane onboard the ship, or the offloading of it for the purpose
of relocating it outside the
port boundaries. What was referred to in
the report was the fact that the crane was 'eventually fully loaded
at 17H00'. Mr
Pammenter
suggested to Mr Mulder that the report
clearly contained a concern by Usabiaga that not everything was
loaded. This was because
the report stated:
'Gruas Usabiaga is
therefore not responsible for the damage, wear or loss of items
belonging to each of the crane components.'
This
statement is made after setting out the complaints of Usabiaga
regarding the exclusion of their personnel from the harbour
precinct,
and that the trucks containing the crane had to be parked outside the
harbour precinct in a public parking area overnight.
Allegations of
incompetence, unhelpfulness and general complaints of 'total chaos
and lack of prevision and organisation, as already
loaded parts must
be hoisted again for relocation' during the loading process are made.
[7] Mr
Mulder also conceded that the wrong 'hook-pulleys' had been
delivered. Mycsa was not, however, claiming
for those parts. He
considered it unlikely that those items were shipped by Usabiaga. He
was also unable to articulate precisely
which of the missing
electrical items were missing, and which were broken. He said that
the parts were elements of the anemometer,
which measures the
strength of the wind. Mr Mulder suggested that once Transnet were
notified that the crane was damaged and parts
were missing, they
should have sent someone to assess the damage. Transnet simply never
replied to the notifications sent to them
by King & Sons.
[8] Mr
Mulder said that Mycsa sent invoices to King & Sons, who,
presumably, sent them on to Transnet. Some
of the invoices referred
to were not claimed in this action. He also conceded that the damage
to the electrical components was
something he was told about, and not
something he physically witnessed.
[9] The
second witness for Mycsa was Mr Kevin Pillay, who, during 2013/2014
worked as the logistics representative,
and later the logistics
supervisor of King & Sons. King & Sons were the ship's agent
for MACS. His functions were to see
that the ship was brought into
the harbour; to manage the discharge of cargo; see to all the needs
of the ship; and ensure that
it leaves the harbour. After the ship
docks, the agent receives a ship's manifest from the loading port.
The manifest would be
produced to customs to facilitate the discharge
of the cargo. MACS appointed their own tally company, MACS TALLY. The
function
of the tally company was to oversee the discharge of the
cargo.
[10]
During
the discharge, Transnet would have had its own staff on the quayside.
Their function was to compile a cargo outturn report.
At the stage
the cargo was removed from the ship, it was not cleared by Transnet
or Customs. The Transnet report in this matter
recorded the
offloading of 30 unmarked pieces with a mass of 203 020kgs. The cargo
was also inspected by the staff of MACS TALLY.
[11] Interlogix
were appointed by Mr Pillay to convey the cargo to Beira. He
described Interlogix as a cargo management
company that specialised
in cross border cargo deliveries. He did not know of, and was
not ever informed, that some cargo
had not been offloaded from the
ship. This was confirmed by the contents of the outturn report.
[12] Mr
Pillay ensured that the cargo was collected from the staging area,
and transported by road to Beira. Transnet
invoiced Interlogix for
the storage and release of the cargo, and Interlogix paid the value
of the invoice, and was, in tum, reimbursed
by King & Sons, who
were paid by Mycsa.
[13] On
the 19
th
September 2013, a 'Non Conformance Report' was
sent by King & Sons to Transnet, recording that, when the cargo
was being tallied
in preparation for the upliftment thereof for
transportation to Beira, the base plate with a mass of 13 300kgs was
missing from
the items reflected on the bill of lading. This was
addressed to George Aucamp and Graham Henry of Transnet, by the claim
adjustor
for King & Sons, Solethu Mboyiyana. Mr Pillay was copied
in on this correspondence, and remembered it. He thought that the
missing base plate was noticed by the staff of MACS TALLY. Mr Pillay
was responsible for organising the return of the mis-delivered
flooring material from Beira back to Durban.
[14] Under
cross-examination, Mr Pillay conceded that he had no personal
knowledge of:
(a) what
happened to the missing parts;
(b) what was
loaded at Leixões;
(c) what was
offloaded in Durban; and
(d) what cargo
went onto the trucks to be carried to Beira, although he had been
responsible for arranging
their transportation.
[15] Mr
Pillay also conceded that he was present at the loading of the
trucks, but could not say whether the cargo
offloaded included the
flooring material. He accepted that the tally clerks had counted 30
pieces when the cargo was offloaded,
that they did not weigh them,
and some 16 months' later, 30 pieces were identified at the staging
area as belonging to the crane.
[16] In
re-examination, Mr Pillay pointed out that the reference in the
Arrival Notification to:
'1 CASES
1 CASE (S)
Sennebogen crane 5500
R-SL serial number 5500.5.170'
demonstrated
that two cases were delivered – this was, in fact, a glitch in
the computer system, and the line starting '1
CASE (S)' was actually
a heading which should have appeared at the top of the column. This
led, in turn, to an incorrect count
of 31 pieces, when there were
actually only 30 pieces.
[17]
Transnet
led one witness, Mr Graham Shawn Henry, who testified that he had
been employed by Transnet for 23 years, and in 2012 was
the
Operations Manager at the Point area, responsible for the staging
area. His functions included ensuring: that the terminal
was
profitable; the safety of his employees; and the offloading and
despatch of cargo. His evidence was, in summary:
(a) he
recalled the arrival of the ship, and the fact that there were no
other cranes in the staging
area at the time;
(b) where
cargo is not cleared within 28 days after arrival, Customs is
notified. The cargo is then
either removed to the State Warehouse, or
a Virtual State Warehouse is declared. The cargo then falls under the
ownership of Customs,
who advises Transnet whether the cargo will be
sold by auction;
(c) in
order for goods to be uplifted by the owner after a Virtual State
Warehouse has been declared,
a Release Notification and a rent note
must be obtained from Customs;
(d) when
cargo is discharged, the Transnet representative checks the cargo
against the ship's manifest
and confirms that the cargo has been
landed. If cargo is short-landed, a discrepancy report is compiled,
which is essentially the
outturn report. If a piece of cargo is not
located, the clerk will issue a supplementary report;
(e) the
outturn report in this matter confirms that 30 unmarked 'pkgs'
(packages) were offloaded from
the ship. The virtual warehouse
declaration also confirms 30 packages were 'taken up into the records
of the State Warehouse' on
the 27
th
September 2012. The
cargo was to remain under the care ('footprint') of Transnet,
awaiting further instructions from Customs, or
an application by the
client;
(f) a
Transnet landing order, date-stamped the 26
th
September 2013 records the arrival of 'BREAKBULK CARGO STC 29 CASES
SENNEBOGEN CRANE 5500... DETAILS AS PER PACKING LIST'. The
document
is signed at the bottom left-hand corner by what is shown as an
'authorised agent', which Mr Henry said 'could be' the
ship's agent
or clearing agent; (This document has a line drawn through it from
the top right-hand side to the bottom left-hand
side!).
(g) the
Non Conformance Report would have come to his attention, but he could
not recall it. He accepted
that the Non Conformance Report placed
Transnet on warning that 30 packages came off the ship, and one was
now missing –
the 13.3mt base plate. The 29 packages were also
recorded in a SAD500-CUSTOMS DECLARATION FORM, unstamped, but dated
the 25
th
September 2013. This was from the same author
(Kershnie Bharath of Interlogix) as a similar form dated two days'
later, recording
one case containing a bracket with a mass of 13
300kgs. As the cargo was not clearly marked, a representative of
Interlogix placed
onto each package an A4 size piece of paper
identifying the package by 'Colli No'.
(h) Mr Henry
was referred to the Usabiaga report prepared on shipment, where item
no 9 referred to the base
plate with a mass of 13 300kgs;
(i) when
the packages were loaded onto the trucks for transportation to Beira,
delivery notes
(followed by documents containing the truck driver's
identity photograph) were prepared and signed by Transnet to indicate
its
correctness. He agreed that it was common cause that no delivery
note referred to the base plate, so it never went to Beira. He
had
looked for it because of the Non Conformance Report, which had
arrived three days' after the cargo left Durban. Mr Henry said
that a
sweep of the staging area would have been done to look for it. He
could not say whether Customs had sold it.
(j) Mr
Henry maintained that 10 bundles of counterweights (shown in a
photograph with the description
of 'Colli No 10-19') with a mass of 4
800kgs each, were what was loaded onto the trucks. He said that they
were not the counterweights
for the crane. He stated that they were
confirmed by 'the clients representative' and labelled, and would not
have been loaded
onto the trucks unless otherwise. The manifest was
not specific as to the identity of the pieces of cargo which were
described
as cases, although there were no cases at all.
(k) Mr
Henry confirmed a tax invoice addressed by Transnet to Interlogix in
respect of landing, late
order and storage charges for 28 days',
which reflected the cargo.
[18] Under
cross-examination of Mr Henry by Mr
Wallis,
the following
emerged:
(a) When
cargo is offloaded, the Transnet cargo controller tallies the cargo
without a manifest. The
cargo controller is close to the cargo, and
the count is done side-by-side with the person conducting a count for
the ship, and
would be checked against that count. As the cargo
controllers do not use the ship's manifest, they may not be aware of
any short-landing.
(b) Transnet
does not have an internal process to check on cargo which should have
been offloaded,
but was not. The outturn report could be checked
against an inventory report and against the manifest. The Transnet
inventory clerk
would cross-check physically landed cargo against the
manifest. The inventory clerks are experienced, they walk the
terminal regularly,
and ad-hoc stock-takes are done, albeit
irregularly.
(c) When
asked by Mr
Wallis
how an item weighing 13 300kgs could
disappear from the staging area, Mr Henry said that question tells
him that the base plate
was never loaded (at Leixões) –
he also suggested that Colli No 9 (as depicted in the photographs)
was the crane jib,
and not the base plate. He was then referred to
the State Warehouse Deposit Note, which he confirmed was completed by
the manifest
clerk. When pressed on the fact that the document
reflected 30 packages, Mr Henry conceded that the details probably
came from
the manifest, and that it was also probable that the
inventory clerk did a floor sweep and compared his count with the
manifest.
(d) Mr
Henry stated that, on the appointment of the Virtual State Warehouse,
Customs would have worked
only with the documents. In addition, if
any cargo had been removed by Customs, they would all have been told.
(e) The
staging area has security cameras, but Mr Henry was unsure whether
they were operative. He
was not aware of anything having been stolen
from the staging area. When cargo was to be removed from the staging
area and is not
labelled, it is necessary for the shipping line to
label it, and identify the items against the bill of lading. In this
case, King
& Sons sent a clerk who marked the cargo 'Colli for
Colli'. When the transporter arrives, a load co-ordinator will
instruct
Transnet as to which items are to be loaded onto which
trucks. When the trucks exit the precinct of the harbour, security
personnel
verify the cargo on the delivery notes with the cargo on
the truck.
(f) Mr
Henry said that the Interlogix clerk relabelled the rubber mats or
floor coverings as
belonging to the bill of lading, and Transnet
relied on his identification. He also suggested that any discrepancy
between documents
identifying 30 or 29 pieces of cargo may be
attributable to the fact that one of the crane jibs could fit into
another (telescope
effect) and two items may have been counted as
one.
[19] Mr
Wallis
submitted that it is probable that the base plate was
loaded on the ship, and discharged at Durban into the care of
Transnet because:
(a) The
control systems exercised by the various parties indicated that the
cargo was all landed, although
the condition of the cargo was not set
out.
(b) The
survey report compiled at Leixões by an independent party
before any dispute arose,
indicates that the base plate was loaded
onto the ship.
(c) This
is confirmed by the colour photographs as interpreted by Mr Mulder,
who was certain as to
the identity of the base plate. This he could
do because of the counterweights with the chevron marks lying on top
of the base
plate, and the relative dimensions of the items depicted
– the length, width and thickness of the base plate.
(d) No
Notice of Protest, or any other document recording a problem was
received by Mycsa.
(e) Mr
Pillay stated that he would have been aware if cargo had not been
discharged.
(f) King
& Sons, who were the agents for MACS would have realised, at the
ship's next port
of call (Richards Bay), if any cargo had been left
on board.
(g) They
best description of what was loaded aboard the ship is contained in
the Usabiaga report, which
report included both the base plate and
the ten missing counterweights.
[20] The
reason that the crane was kept there for some sixteen and a half
months was that the instalment sale purchaser,
Usabiaga, purported to
hire it out to CraneCom, but for some reason, that deal fell through.
Usabiaga left the crane at the staging
area, waiting for it to be
uplifted. Eventually, Mycsa cancelled the contract with Usabiaga, and
reclaimed its property from Transnet.
The declaration of a Virtual
State Warehouse only happened between four and a half and five months
after the arrival of the crane.
[21] Mr
Wallis
submitted that the size and weight of the missing base
plate and the ten counterweights 'guaranteed' that it could not and
would
not be removed by unauthorised persons from the staging area.
No evidence was led to demonstrate that the missing items were sold
on auction by Customs, and if that had happened, Transnet would have
known. Transnet has failed to produce any documentation from
the
State Warehouse, no regular stock-takes were conducted, and there are
no records of the
ad hoc
stock-takes that were conducted. The
only control mechanism used by Transnet was to have the cargo
labelled in 2013, when the cargo
was to be transported to Beira. This
was done because Transnet had no idea of the identity of the person
to whom the cargo belonged.
[22] With
regard to any duty of care which Transnet bore, Mr
Wallis
submitted:
(a) Transnet
were in charge of the care of the goods, and they charged for that
storage.
(b) Accordingly,
Transnet had a duty of care to act reasonably with regard to the
storage of, and care for,
the cargo.
(c) Transnet
cannot have it both ways: it charged for the storage of 189mt, but
did not charge for
the base plate because they had already received a
note of protest.
(d) Mycsa did
not know where the cargo was located, and only established and
located it five months after
discharge.
(e) In
terms of the statutory conditions imposed by Customs in the
declaration of a Virtual State Warehouse,
Transnet was:
(i) responsible
for the cargo until further notice from the Controller of Customs;
(ii) liable
for any duty on the cargo for the period of its storage;
(iii) entitled
to payment of State Warehouse rent as prescribed;
(iv) the cargo
could only be released against an authenticated DA 68, signed on
behalf of the Controller;
(v) the
liability of SARS was excluded.
(f) There
is no statutory exemption for Transnet, and the base plate, the
counterweights, and the electrical
items may have been removed prior
to the declaration of a Virtual Customs Warehouse. There was no
abandonment of the cargo, and
no evidence from Transnet as to what
happened to the missing cargo.
[23] Mr
Wallis
recorded that the quantum had been agreed as set out
above. No agreement had been concluded for the value of the
electrical items.
The electrical items had been repaired and paid for
by Mycsa.
[24] Mr
Pammenter
submitted that Transnet owed no legal duty of care
to Mycsa with regard to the cargo for the following reasons:
(a) the mere
fact that Transnet was in possession of the cargo, does not create a
legal duty. He relied on
the judgment in
Viv's Tippers (EDMS) BPK
v Pha Phama Staff Services (EDMS) BPK h/a Pha Phama Security
2010
(4) SA 455
(SCA) para 6, where Lewis JA held:
'There is a spectre of
limitless liability. It is established thus, that a court, in
deciding to impose liability on an actor, must
consider whether it is
legally and socially desirable to do so, having regard to all
relevant policy considerations, including
whether the loss is finite
and whether the number of potential plaintiffs is limited.'
In that matter, a
security guard allowed the unlawful removal of a third-party owner's
truck from a site where the security provider
had concluded a
contract excluding liability for the provider's services. The
security provider was held not to be liable for the
loss of the truck
because it owed no duty of care to the owner to prevent the theft of
the truck. The very contract in terms of
which the security services
were agreed, excluded liability to the third party. The court also
expressed concern for the fact that:
security services are often
provided for premises where many third-party owners had assets,
resulting in the possibility of limitless
actions: which could result
in an inability to obtain those services.
(b) Mycsa was
obliged to have pleaded the facts and circumstances giving rise to
the legal duty of Transnet,
and its negligent breach thereof. In this
regard, Mr
Pammenter
submitted that an omission to act is not
prima facie
unlawful, and referred to
Stedall and Another v
Aspeling and Another
2018 (2) SA 75
(SCA), paras 15-17, where the
court stated:
'[15] Moving to a
different issue, in contrast to a positive act which causes physical
harm to a person or property, a negligent
omission, as relied on by
the respondents, is not necessarily regarded as prima facie wrongful.
Consequently in
Van Duivenboden,
Nugent
JA stressed that a negligent omission should only be regarded as
being wrongful "if it occurs in circumstances that
the law
regards as sufficient to give rise to a legal duty to avoid
negligently causing harm''. (footnote omitted).
[16] The use of the phrase 'legal
duty' in these circumstances means no more than that the omission
must not be wrongful as judicially
determined in the manner referred
to above ie involving criteria of public and legal policy consistent
with constitutional norms
– see
Hawekwa Youth Camp and
Another v Byrne
2010 (6) SA 83
(SCA) ... para 22. Importantly,
the concept is not to be confused with the English law concept of 'a
duty of care' which encompasses
both wrongfulness and negligence.
…
[17] There is another matter relevant
to the dispute before this court. As an omission is not prima facie
unlawful the respondents,
on particularising their claim, should not
only have alleged that the negligent omissions upon which they relied
had been wrongful,
but pleaded the facts upon which reliance was
placed in support of that contention. Indeed in
Kadir
this
court stated that the facts pleaded "in support of the alleged
legal duty represent the high-water mark of the factual
basis on
which the court will be required to decide the question".'
(c) An
important aspect of any duty of care which may have existed, is the
time period for which it should
endure. The staging area in the port
is part of a multipurpose area where break-bulk cargo is 'dealt
with'. It cannot be expected
of Transnet to keep the goods there
indefinitely.
(d) Section
43(2)
(c)
of the Act provides for the obligations of the
Commissioner with regard to compiling and publishing a weekly list of
goods stored
in a State Warehouse, such publication being deemed to
be sufficient notification to any party with a right to such goods
that
unless the goods be duly entered in accordance with the Act,
they will be disposed of in terms of that section.
(e) Section 17
of the Act provides for an exemption in the following terms:
'(3) The State or
any officer shall in no case be liable in respect of any loss or
diminution of or damage to any goods in
a State warehouse or in
respect of any loss or damage sustained by wrong delivery of such
goods'
This exemption was not
provided simply because Transnet would otherwise be liable.
(f)
The question to be answered is whether public policy considerations
dictate that the legal duty of a person
in charge of a Virtual State
Warehouse should be extended in circumstances where it is statutorily
obliged to care for cargo. Such
a person has no choice! Had the goods
been moved to an actual warehouse, Transnet would have had no duty of
care to anyone. Following
the above cases, a person in possession
does not necessarily attract a duty of care – and Mycsa has not
pleaded the basis
upon which the duty of care arose.
[25] Mr
Pammenter
then dealt with the facts concerning the breach of
any duty of care which Transnet may have borne. He submitted that;
(a) there
was no evidence to establish that the base plate was ever discharged.
The bill of lading
reflected 30 pieces, and so did the manifest.
However, the tally clerks would have had little idea of what they
were actually counting.
Mr Henry testified that the manifest clerk is
given the report of the tally clerk, and checks it against the
manifest, but there
is nothing to show what that was;
(b) There is
also the possibility that the two telescoped parts of the boom were
counted as two pieces, and
not one. The count may then have reflected
30 pieces when the base plate was not there. There was no evidence of
anyone who saw
the base plate since the ship was offloaded. It was
only on the 19
th
September 2013 that it was realised that
the base plate was missing. Mr Mulder testified that the base plate
was not one of the
30 pieces of cargo reflected in the photographs
taken in the staging area;
(c) The
probabilities favour that fact that the floor coverings were counted
as ten items instead of
the ten 4.8mt counterweights. If ten items
were counted and removed, where is the negligence?
[26] Mr
Pammenter
submitted that, with regard to the electrical items,
Mr Mulder was unable to specify where or how they were damaged or
removed.
There is no link disclosed in Mycsa's cause of action
between the invoices raised and the damage caused. With regard to the
quantum
of Mycsa's claim, it was agreed that if Transnet is liable,
the base plate was valued at €36 118,35, and the ten
counterweights
at €72 066,50. No valuation was agreed for the
electrical items, and there is no evidence as to what was contained
in the
3 x 20' containers.
[27] The
first issue to be decided is whether Transnet, as the physical
possessor of the cargo, owed any duty to
the owner, Mycsa, with
regard to the keeping and protection of the cargo. The parties were
bound by contract, and Mycsa's claim
was entirely based in delict. It
was common cause that:
(a) ownership
of the cargo vested in Mycsa;
(b) the cargo
was delivered to Transnet. For the purpose of the reasoning on this
issue, I shall assume that
all the cargo was delivered;
(c) In
September 2013, it was established that the base plate, the ten
counterweights and some electrical
items were missing;
(d) Mycsa
pleaded that:
(i) Transnet
was under a contractual duty to safeguard the cargo, and ensure that
it was not
removed by unauthorised persons. (Mr
Wallis
conceded
that the contract was not concluded between Mycsa and Transnet, but
between Transnet and the consignee of the cargo, and
that Mycsa's
claim lay only in delict);
(ii) Transnet
bore a legal duty to Mycsa;
(iii) Transnet
failed to deliver the missing items;
(iv) arising
from the breach of the legal duty owed by Transnet, Mycsa suffered
damages of €450 207,29
(amended to €126 820,47) in respect
of 'the missing counterweights and other damage.
[28] In
deciding whether a legal duty is owed for an omission, I am enjoined
to consider whether public policy
considerations and the legal
convictions of society would require Transnet to bear the liability
for the loss of the base plate,
the counterweights and the electrical
items. I accept that Mycsa was a third party to the contract, and
that the crane was effectively
abandoned by the consignee, CraneCom.
It is apparent from the evidence of Mr Mulder that the instalment
sale purchaser of the crane,
Usabiaga, hired the crane out, but
failed in its obligations to pay for the crane. The deal between
Usabiaga and CraneCom then
fell through, and, it would appear, that
neither of those entities took any further interest in the crane. It
was only upon cancellation
of the instalment sale agreement that
Mycsa sought to recover the crane.
[29] It
is perhaps important to note that any findings which I make will be
on a preponderance of probabilities
– that may be trite, but it
means no more than 'is it more likely than not the base plate and
counterweights were loaded
in Leixões?' In
Coetzer v Krause
1942 OPD 122
, de Beer J stated;
'To my mind the word
preponderance
merely
implies a quantitative or qualitative superiority and does not
suggest any substantial or marked superiority.'
[30] Should
Transnet, in those circumstances, attract obligations to the owner of
the crane, with whom it has had
no relationship whatsoever? Two
relevant considerations mentioned in
Viv's Tippers
are that
the owner, as a third party, does not benefit more than the original
contracting party would, and whether the possibility
of multiple
plaintiffs exists? The limitation of liability contained in
Transnet's standard trading terms and conditions (annexed
to the plea
of Transnet, but not argued before me), would not be exceeded in this
matter, but could have been, if more of the crane
disappeared.
[31] In
my view, and relying upon the authority of
Viv's Tippers
and
Stedall,
public policy considerations and the legal
convictions of society would not require Transnet to bear liability
for the losses of
Mycsa in this matter. In
PeriUrban Areas
Health Board v Munarin
1965 (3) SA 367
(A), the facts of which
are entirely distinguishable from the present case, Harms JA,
explained the circumstances in which a legal
duty arises. He said –
'Negligence is the breach
of a duty of care. In general, the law allows me to mind my own
business. Thus if I happened to see someone
else's child about to
drown in a pool, ordinarily I do not owe a legal duty to anyone to
try to save it. But sometimes the law
requires me to be my brother's
keeper. This happens, for example, when the circumstances are such
that I owe him a duty of care;
and I am negligent if I breach it. I
owe him such a duty if a diligens paterfamilias, that notional
epitome of reasonable prudence,
in the position in which I am in,
would –
(a) foresee the
possibility of harm occurring to him; and
(b) take steps
to guard against its occurrence.'
Transnet's
obligations were fully contained in its contractual relationship with
the shippers/consignees. From Transnet's point
of view, it was simply
happenstance that the cargo lay where it did for some sixteen months'
before being recovered by Mycsa. Transnet
played no role whatsoever
in the contractual arrangements between the various parties. Then
there is the notional (but seemingly
most improbable) possibility of
either the shipper or the consignee stepping forward to claim from
Transnet.
[32] It
is true that Mycsa paid Transnet for the release of the cargo, and
storage, apparently, only for 28 days.
This is what was suggested in
the cross-examination of Mr Mulder, and not contradicted. In
addition, Mycsa did not plead the facts
and circumstances upon which
the claim is based that Transnet bore a duty to Mycsa. The pleadings,
in fact, do not specify the
identity of the party to whom the duty of
care was owed. Although the allegation is made by Mycsa in its
particulars of claim that
the damages it suffered arose directly from
the legal duty owed by Transnet, neither negligence nor wrongfulness
are alleged.
[33] The
statutory duties imposed on Transnet are based upon the provisions of
the Act. This was pursuant to a
relationship between Transnet and
Customs, to which Mycsa formed no part. The liabilities created are
not expressed to be applicable
to third parties – see: s
43(2)
(b)
of the Act.
[34] Even
were I to be persuaded that Transnet owed a duty to Mycsa, I remain
unpersuaded that negligence on the
part of Transnet has been
established. In this regard:
(a) In view of
the problems created in the port of Leixões, and the removal
of the crane from, and
its return to, the harbour, a doubt is created
whether the missing parts were simply never returned to the harbour.
This is particularly
so because the crane appears to have spent the
night in a public parking area.
(b) No
real assistance is derived from the identification, from the Usabiaga
report photographs, by
Mr Mulder of the crane parts being loaded.
This is because there was no verification from the taker of the
photographs as to when
exactly they were taken. I emphasize that this
is no reflection on Mr Mulder, who I considered to be an honest and
forthright witness.
The photographs appear to have been taken from
outside the port precincts.
(c) In
addition, Mr Mulder alluded to the fact that there were, in fact,
three types of counterweights:
the base plate, the ten
counterweights, and two more chassis counterweights;
(d) Mr
Mulder also stated that the ten counterweights had yellow and grey
chevron stripes. The photographs
showed that the items he identified
as some of the counterweights being loaded had red and white chevron
stripes;
(e) The
collection of photographs taken of the dismantled crane (apparently
taken in Beira) depicts
'Colli No 9 = 13.300 KGS'. Mr Mulder stated
that what was actually depicted in the photograph was the 'wing' of
the crane that
separates the cables from the structure of the crane.
The report from Usabiaga described Colli No 9 as a 'Counterweight
baseplate'
with a mass of 13 300kgs. Mr Mulder said that only one
item had a mass of 13 300kgs – the base plate. Clearly the
'wing'
is misdescribed.
(f) Although
hearsay evidence is admissible in Admiralty proceedings, the weight
to be given to such
evidence must also be assessed. The report from
Usabiaga was clearly compiled with a view to future claims of damage
to the crane.
The loading process does not appear to have been
carried out in a logical manner under the supervision, nor, indeed,
observation
of the staff of Usabiaga.
(g) We are left
with real doubt as to whether the missing parts of the crane actually
arrived in Durban.
This is complicated by the fact that when the
crane was removed to Beira, parts not belonging to the crane were
sent together with
the crane – having been counted as part of
the crane. Then there is the question of what physical cargo was in
the staging
area when the Virtual State Warehouse was declared?
(h) Part of the
difficulty in establishing the true facts is that it appears that the
personnel responsible
for counting and identifying the cargo as it
was offloaded from the ship, were probably not in a position
positively to identify
the various crane parts. This leads to a
suggestion that it is uncertain whether all was delivered as it
should have been.
[35] In
all the circumstances, I am not persuaded that Transnet owed a duty
of care to Mycsa, and, even if it did
so, negligence on the part of
Transnet has not been established. The pleadings were, in my view,
insufficient to sustain the cause
of action relied upon by Mycsa.
[36] There
seems no reason why costs should not follow the result.
[37] I
make the following order:
The plaintiff's claim is
dismissed with costs, such costs to include those costs consequent
upon the employment of two counsel,
where employed.
Lopes
J
Dates
of hearing: 10
th
-11
th
March,2020, and the 23
rd
– 25
th
August,
2021.
Date
of judgment: 15
th
October,
2021.
For
the plaintiff: PJ
Wallis SC (instructed by Shepstone & Wylie Attorneys).
For
the defendant: CJ Pammenter SC, with him AJ Boulle
(instructed by Neerajh Ghazi Attorneys).