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[2021] ZASCA 131
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UPS SCS South Africa (Pty) Ltd v Hendrik Cornelis van Wyk t/a Skydive Mossel Bay (421/2020; 422/2020) [2021] ZASCA 131 (1 October 2021)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 421/2020
Case No: 422/2020
In the matter between:
UPS
SCS SOUTH AFRICA (PTY)
LTD APPELLANT
and
HENDRIK
CORNELIS VAN WYK
t/a RESPONDENT
SKYDIVE MOSSEL BAY
Neutral
citation:
UPS SCS South
Africa (Pty) Ltd
v Hendrik Cornelis van Wyk t/a Skydive
Mossel Bay
(421/20) and (422/20)
[2021] ZASCA 131
(1 October
2021)
Coram:
PONNAN,
WALLIS, SALDULKER, MOKGOHLOA AND MABINDLA-BOQWANA JJA
Heard:
19
August 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be at 10h00 on 1 October 2021.
Summary:
Contract
– terms – contract of carriage concluded by way of
exchange of emails – customer thereafter signing credit
application with standard trading conditions containing exemption
from liability for loss or damage – exemption clauses not
brought to the customer’s attention – exemption clauses
not part of the contract – quantum of claim – item
destroyed during carriage – replacement value of item.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape
Town
(
Henney J
sitting as court of first instance):
1 The
application in terms of
s17(2)
(b)
of
the
Superior Courts Act 10 of 2013
for leave to appeal against the
whole of the judgment of the court below is dismissed with costs,
such costs to include the costs
of two counsel.
2 The
appeal is dismissed with costs, such costs to include the costs of
two counsel.
JUDGMENT
Saldulker
JA (Ponnan, Wallis, Mokgohloa and Mabindla-Boqwana JJA concurring):
[1] Mr
Hendrik Cornelis Van Wyk, the respondent, is the owner and operator
of a skydiving business, trading under
the name and style of Skydive
Mossel Bay, situated at the Mossel Bay Airfield, in the Western Cape.
He used Cessna aircraft for
this purpose. In 2007, he sent an
aircraft engine for inspection and repair to America's Aircraft
Engines Inc, a specialist in
refurbishing aircraft engines in the
United States of America (USA). As he did not immediately need to use
it, the engine remained
in the USA for some time. In 2012, when he
needed the engine back in South Africa, he instructed America's
Aircraft Engines to
proceed with an overhaul of the engine. This was
complete towards the end of 2012 and Van Wyk made enquiries about
transporting
the engine back to South Africa (SA). It needed to be
conveyed from Collinsville, Oklahoma, to the George Airport in SA.
[2] In
December 2012, Van Wyk contacted the appellant, UPS SCS South Africa
(Pty) Ltd (UPS), the South African
branch of an international
delivery business. This resulted in the exchange of a number of
emails, of which, the following are
pertinent.
(i) On
12 December 2012, Van Wyk requested a quotation for the conveyance of
a crate containing
the aircraft engine by sea from the USA to South
Africa. He asked for the cheapest quotation and for an estimate of
how long it
would take.
(ii) On
24 December 2012, UPS represented by Mr Dirk Swanepoel (Swanepoel)
responded to Van Wyk, and
attached an estimate of the charges in the
amount of R11 070.05 on a document entitled ‘Seafreight
Import Estimate-LCL’
('the quotation'). Swanepoel also
requested a detailed description and value of the engine, presumably
for the purpose of providing
an estimate of the duration of the
transit.
(iii) On
21 January 2013, Van Wyk replied indicating that the engine had been
shipped to America’s
Aircraft Engines in 2007 for an overhaul
which was now completed, and that the cost of the overhaul process
was $21 500. Van
Wyk enquired whether the conveyance of the
aircraft engine would attract any import duty, and enquired further
about the duration
of conveyance via sea freight.
(iv) On
22 January 2013, the following emails were exchanged between
Swanepoel and Van Wyk:
[a] At
07h57, Swanepoel informed Van Wyk that the engine would take
approximately 45 days in
transit by ocean freight, and that it
would not attract import duty. However, VAT would be payable on the
value of the engine,
and not just on the value of the repair.
Swanepoel indicated that an ITAC
[1]
certificate might be required depending on the documentation Van Wyk
had available.
[b] At
9h55, Van Wyk responded to Swanepoel advising him that the value of
the engine and the repair
was the same. He added:
'I would like to go ahead
with this.
What do you need from
me.'
[c] At
10h14, Swanepoel advised Van Wyk that 'the first step' would be to
open an account with UPS-SCS.
He also asked for information in order
to see whether an ITAC permit would be required and the address and
contact details for
the pick-up of the cargo and shipment.
[d] At
10h24, Van Wyk replied that he did not have an account with UPS. He
enquired:
'Can I not just make a
full upfront payment?
Else, send me the
procedure for opening an account please’.
[e] At
10h34, Swanepoel informed Van Wyk that it was not an option not to
have an account for US shipments
and that the only way ‘we
can move ocean on the US lane is if a valid account number exists
(even if it is a COD account)’.
He advised that shipments to
and from the USA were called Regulated Trade and a multitude of rules
and regulations imposed by the
US Government and US Customs had to be
complied with. He attached a copy of the credit application to be
completed so that 'we
can start the process'.
[f] At
16h12, Van Wyk signed the credit application form and returned it to
Swanepoel. On the
relevant portion of the first page and under the
heading ‘Credit Application’, which appears in bold
print, Van Wyk
filled in his personal and business details in
manuscript. In addition, in the middle of the same page, and in
smaller print, the
words ‘Credit Facilities Required’
appear in bold print. Van Wyk entered the amount of ‘R30 000’
next
to the words ‘Credit Limit’ and next to the words
‘Payment Terms’ Van Wyk entered the words ‘Pay Up
Front’.
[3] The
parties are agreed that this exchange of emails gave rise to a
contract in terms of which UPS would arrange
for the engine to be
collected from Collinsville, Oklahoma and conveyed to George. The
initial dispute is over the precise terms
of that contract, but first
it is necessary to complete the narrative.
[4] On
31 May 2013, Swanepoel sent an email to Van Wyk informing him that
the aircraft engine was scheduled for
pick-up the following day at
America’s Aircraft Engines. On 10 June 2013, Van Wyk sent an
email to Swanepoel informing him
that there was a change of
circumstances, and that he required the engine urgently. The reason
was that an engine on one of his
planes was nearing its permissible
1500 flying hours after which it would require to be taken out of
service and reconditioned.
A replacement was accordingly needed. He
enquired about the cost of transporting the engine via air freight.
Swanepoel's response
was that he had made arrangements for the cargo
to be intercepted once it arrived in New York and could then be sent
by air. Swanepoel
also informed Van Wyk that the engine was on a
feeder truck from Dallas
en route
to New York, and that it
would then be flown from New York on a direct service to
Johannesburg.
[5] It
transpired that this was all academic. The aircraft engine never
arrived at its destination in South Africa.
On the afternoon of 12
June 2013, Van Wyk was informed by Swanepoel, once again by email,
that the cargo had been damaged whilst
in transit within the USA. The
truck and trailer carrying the aircraft engine had allegedly caught
fire as a result of equipment
malfunction, and the truck and its
cargo appeared to be a total loss. He was asked to provide UPS with a
quotation or estimate
of the value of the engine. Van Wyk was sent an
insurance claim form, but on 1 October 2013, he was informed by UPS
that the shipment
had not been insured, and, that according to the
appellant’s terms and conditions for ocean freight shipments
they were only
liable to pay US $500 per shipment.
[6] Aggrieved,
Van Wyk instituted an action against UPS in the Western Cape Division
of the High Court, Cape Town
(high court), for payment of the amount
of R386 140.30 in respect of the loss of the aircraft engine,
plus interest and costs.
Subject to a deduction in respect of
travelling costs this was the amount that he paid to obtain a
replacement reconditioned engine
from a South African supplier.
[7] In
the particulars of claim, Van Wyk pleaded that as a result of the
various emails exchanged, a written agreement
had come into existence
between the parties on or about 22 January 2013, alternatively on or
about 31 May 2013, in Johannesburg,
alternatively in Mossel Bay, for
the conveyance of the aircraft engine by the appellant from Oklahoma,
USA to George, SA. He alleged
that, the appellant had failed to
deliver the engine, as it had been damaged while in transit in the
US, and was a total loss.
In an attempt to pre-empt reliance on
various conditions attached to the credit application, Van Wyk
alleged that the agreement
was governed by the provisions of the
Consumer Protection Act 68 of 2008 (CPA), because the agreement was
for the ‘supply’
of a ‘service’ as
contemplated by the CPA. He pleaded that he was unaware of those
conditions and they were not drawn
to his attention by the appellant
as required in terms of ss 49(3) to 49(5) of the CPA.
[2]
Insofar as necessary, an order in terms of s 52(4)
(a)
(ii)
of the CPA severing all the provisions attached to the credit
application purporting to limit the risk or liability of the
appellant from the rest of the agreement was sought.
[8] UPS
advanced the following defence on the merits of the claim. It
admitted that a written agreement was concluded
between the parties
on 22 January 2013, which incorporated standard trading conditions
containing wide-ranging clauses limiting
its liability, viz clauses
13.2, 32, 33, 35.2, 36, 36.1, and 36.2.
[3]
It pleaded further that Van Wyk had signed the credit application
form and was accordingly bound by its terms, which were written
in
plain language and sufficiently conspicuous to attract his attention
As the owner of a skydiving business, he would have understood
the
meaning and import of the terms and conditions of the agreement
specifically those limiting the liability of the appellant.
UPS
pleaded that in the event of it being found that it was liable for
the loss of the engine, its liability was limited to R100
per 1000
kilograms or part thereof in terms of clause 36.2 of the agreement.
[9] In
response, Van Wyk filed a replication denying that the standard
trading conditions incorporated in the credit
application were
applicable to the contract of carriage between the parties. Van Wyk
stated that the contract was concluded upon
receipt by UPS of his
email to Swanepoel on 22 January 2013 at 9h55 to ‘go ahead’.
He had not sought credit, and
had completed the form as a formality
for the purposes of allocation of an account number by the appellant.
Furthermore, the appellant
did not explain to Van Wyk, nor did Van
Wyk reasonably understand, that the second and third pages of the
credit application, which
had not been furnished to him, prior to
receipt of the credit application, incorporated terms and conditions,
which would apply
to the contract of carriage between the parties.
[10] The
matter came before Henney J, who found in favour of the respondent,
and made an order in the following
terms:
‘
a) The
defendant’s special plea is dismissed;
b) That
in terms of
section 52(4)
(a)
(ii) of the
Consumer Protection
Act 68 of 2008
, the clauses in the agreement concluded between the
Plaintiff and the Defendant identified as annexure PC9.2 purporting
to limit
the risk or liability of the Defendant, is severed from such
agreement and in the absence of such clauses the Defendant is
therefore
held liable for the loss incurred by the Plaintiff, caused
by the destruction of his aircraft engine when it was conveyed from
the United States of America, to George in the Western Cape.
c) The
Defendant is to pay an amount of R386 140,30, with interest
thereon at the prescribed
rate of 15,5% per annum from 12 June 2013
to date of payment;
d) That
the Defendant pays the costs of suit, including the wasted costs
occasioned by the removal
of the matter from the trial roll on 5
September 2018.’
[11] UPS
applied for leave to appeal against the judgment and order of the
high court, and on 26 May 2020, Henney
J granted leave to appeal to
this Court on a limited basis, viz (i) whether Van Wyk had proven his
claim based on the fact that
UPS did not comply with the provisions
of the CPA; and (ii) whether Van Wyk had proved the quantum of its
claim. UPS then applied
in terms of
s 17(2)
(b)
of the
Superior Courts Act 10 of 2013
for leave to appeal to this Court
against the whole judgment and order of the high court. The two
judges who considered the petition
referred the application for leave
to appeal for oral argument to this Court in terms of
s 17(2)
(d)
.
This application was heard together with the appeal and the arguments
raised therein were considered together with those arising
from the
terms of the limited appeal consequent upon Henney J's order.
[12] In
finding for Van Wyk, the high court said:
At
para 89:
‘
In coming back to
the credit agreement in this case, also known as PC9.2, it is clearly
an agreement as contemplated in
section 49(1)
(a)
,
(b)
and
(c)
of the CPA. The clauses on which the Defendant relies
clearly seek to limit exposure to, or indemnify the Defendant against
any
liability based on the agreement concluded with the Plaintiff for
the damages he sustained due to the loss of his aircraft engine.
The
Plaintiff was furthermore presented with two full pages, which was
not very conspicuous or clearly delineated, and in relation
to which
no effort was made to draw the Plaintiff’s attention to any of
the provisions. It was furthermore written in extremely
small font,
which even the court on the original document found extremely
difficult to read, and which contains the very clauses
mentioned in
section 49(1)
, against which the act seeks to protect the consumer.’
And
at para 92:
‘
The Plaintiff in
his evidence stated that his attention was not drawn to these
provisions. I furthermore agree with the submissions
made by Mr
Acton, insofar as this case is concerned, that a supplier such as the
Defendant is not in a position to determine the
level of a
sophistication of a customer, particularly in a case when all contact
with the customer had been by email. . . .’
And
at para 93:
‘
I am furthermore
in agreement with the submission that even the most experienced
business person is unlikely to understand the nature
and effect of
the clauses in question, without explanation. I also agree with the
submission, and as stated above, that it seems
that the obligations
placed on a supplier such as the Defendant, are absolute.’
[13] In
other words the trial judge proceeded on the footing that the
contract between the parties included the
terms and conditions
attached to the credit application. He found for Van Wyk on the basis
that those terms were invalidated by
the provisions of the CPA. In my
view, however, he erred in holding that the contract included those
terms and conditions. It appears
from the exchange of emails that
when Van Wyk gave the ‘go ahead’ on 22 January 2013 at
9h55, the credit application
incorporating the standard trading
conditions containing clauses exempting UPS from liability for loss
or damage had not been furnished,
nor brought to Van Wyk’s
attention by Swanepoel. Van Wyk made clear that he had not sought
credit. He had only signed
the credit application so as to be
allocated an account number, which he was told was required for
shipments to and from the USA,
where a number of rules and
regulations had to be complied with. Van Wyk understood that the
completion and signing of the credit
application was to enable UPS to
capture his details and allocate him an account number, in order for
him to get his aircraft engine
back to SA. Despite a lengthy and
repetitive cross-examination he was firm in his evidence that he did
not think that he was binding
himself 'to all sorts of fine print
that I can't even read'.
[14] As
is evident from the pleadings, UPS based its entire case on the
proposition that the credit application
form, with the standard terms
and conditions, constituted the contract. It relied on the fact that
above Van Wyk's signature on
the credit application appeared the word
‘Conditions’ and the following:
‘
The Company
reserves the right to discontinue any account and summarily to cancel
any agreement in respect of which payments have
fallen in arrears,
and in the event of these being exercised, all amounts owing shall
immediately become due and payable on demand.
It is mutually agreed
that any action arising between the parties may be instituted in the
Magistrates Court although the cause
of action or amount of the
action may exceed the jurisdiction of that court, it is agreed that
interest will be charged at a maximum
permissible rate allowed by law
on amounts not settled within the agreed terms of credit. I, the
undersigned, hereby certify that
I am duly authorised to sign this
document, copy of which has been handed to me and agree to the Terms
and Conditions stated therein
and acknowledge that all business will
be governed by and subject to the terms of the Standard Trading
Conditions and Terms and
Conditions of Carriage printed overleaf,
which are in my possession and by which I agree to be bound for any
business which we
may conduct with either or both the Freight and
Warehousing Division and the International Express Parcels Division
(United Parcels
Services).’
[15] However,
Mr Morrison SC, who appeared before us for UPS, in contradistinction
to the pleaded case, changed
tack and instead sought to rely upon the
following provision that appeared at the foot of the original quote
provided to Van Wyk
by UPS:
‘
This estimate is
based on rates and rates of exchanges subject to fluctuation beyond
our control.
Credit facilities are
subject to completion and approval of our Credit Application form.
All business conducted is
subject to our Standard Trading Conditions a copy of which is
available upon request.
Your attention is drawn
to the fact that this is an estimate of normal anticipated charges
and is therefore subject to third party
charges without any prior
notice. This estimate excludes 14%VAT where applicable.’
Mr
Morrison contended that according to this the credit facilities were
subject to the completion and approval of the credit application
form
and all business was conducted subject to the standard trading and
conditions. He contended that the terms and conditions
were part of
the quotation that Van Wyk had accepted. This submission in my view,
is opportunistic, as the point now being advanced
by Mr Morrison
was never raised in the pleadings, nor in the evidence in the
court a quo. It had never been put
to Van Wyk in
cross-examination that the quote represented the agreement between
the parties, and that he had bound himself to
the terms and
conditions therein. It bears emphasis that no witnesses were called
to testify on the appellant’s behalf at
the trial. There was
thus simply no evidence to gainsay the evidence of Van Wyk.
[16] In
my view, the attempt to rely on this provision in the quotation
cannot be countenanced. It was not UPS's
pleaded case and was not
canvassed in evidence with Van Wyk. One can only speculate as to his
response had it been raised with
him. Given the terms of the plea,
its introduction would have required an amendment and, had that been
granted, potentially a postponement
of the trial in order to amend
the replication. It is not a legal issue arising on the facts of this
case as it is apparent that
had it been raised further factual issues
would have needed to be canvassed. UPS therefore had to stand or fall
by the case it
had pleaded based on the credit application.
[17] UPS
did not explain to Van Wyk that the credit application that he was
required to sign to open the account,
incorporated provisions that
excluded or limited UPS’ liability for loss or damage.
Furthermore, the standard trading conditions
and the relevant clauses
which UPS seeks to rely on appear in fine print, and are not
conspicuously legible. They appear on the
second and third pages of
the credit application, which can only be read with extreme
difficulty and concentrated effort. Importantly
the credit
application was sent without the conditions being attached and were
described by Swanepoel as needing to be completed
so that 'we can
start the process'. Nothing was said to Van Wyk to disabuse him of
the notion that all of this was merely a matter
of formality.
[18] In
this regard the following passage in
Mercurius Motors v Lopez
[2008] ZASCA 22
;
[2008] 3 All SA 238
(SCA);
2008 (3) SA 572
(SCA)
para 33, is patently on point:
‘
A person
delivering a motor vehicle to be serviced or repaired would
ordinarily rightly expect that the depositary would take reasonable
care in relation to the safekeeping of his vehicle entrusted to him
or her. An exemption clause such as that contained in clause
5 of the
conditions of contract, that undermines the very essence of the
contract of deposit, should be clearly and pertinently
brought to the
attention of a customer who signs a standard instruction form, and
not by way of an inconspicuous and barely legible
clause that refers
to the conditions on the reverse side of the page in question.
Moreover, the caption immediately above the signature
is misleading
in that a customer is directed to that provision and away from the
more important provision in small print on the
left-hand side of the
document which refers to the conditions on the reverse side of the
document which are themselves not easily
accessible. It will be
recalled that Mr Lopez’s unchallenged evidence was that the
conditions on which Mercurius now relies
were not brought to his
attention.’
(
See
also Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd
1986 (1) SA
303
(A) at 318C and
Du Toit v Atkinson’s Motors Bpk
1985
(2) SA 893
(A) at 904I to 905B.)
In
the circumstances, Van Wyk did not contract on the basis of the
conditions relied upon by UPS. The position is therefore that
UPS
undertook as carrier to arrange for the transport of the engine from
the USA to South Africa. It failed to perform and the
engine was
destroyed. The fact that at the time of its destruction the engine
was in the possession of a subcontractor does not
alter UPS’s
position as the carrier under a contract of carriage. It was under an
obligation to cause the engine to be conveyed
in accordance with the
contract and it breached that obligation because the engine was
destroyed while in the possession of UPS
or its agents. It was
accordingly obliged to compensate Van Wyk for the damages caused by
its breach of contract.
[19] As
regards the quantum, the measure of the damages is such amount as was
necessary to place Van Wyk in the
same position as he would have been
in had the contract been performed. In that event he would have been
in possession of a fully
reconditioned engine certified for 1500
flying hours. Van Wyk testified to the damages he incurred when his
engine was destroyed,
and that the amount claimed was for the
replacement value of a similar engine. Mr Anderson who is an aircraft
engineer of many
years standing and experience testified in
substantiation of the quantum claimed by Van Wyk. His evidence, based
on his expertise
and experience regarding the repair and maintenance
of engines, as well as the costs to have such an engine overhauled
was not
disputed by any other evidence. He was qualified to testify
as to the cost that would have to be incurred to replace such an
aircraft
engine with a similar overhauled engine. There appears to be
no reason to reject his evidence, more especially as the appellant
called no evidence of its own on this score. There was nothing to
gainsay Van Wyk's evidence that this was what he needed to pay
in
order to obtain a replacement engine.
[20] In
view of all of the aforegoing, the appeal must fail. In the
circumstances, it is not necessary to deal
with the issues relating
to the CPA or the
National Credit Act 34 of 2005
. For the reasons
already stated the application for leave to appeal must also be
dismissed. The introduction of those further issues
would not have
affected the outcome of the appeal.
[21] In
the result, the following order is made:
1 The
application in terms of
s 17(2)
(b)
of the
Superior Courts
Act 10 of 2013
for leave to appeal against the whole of the judgment
of the court below is dismissed with costs, such costs to include the
costs
of two counsel.
2 The
appeal is dismissed with costs, such costs to include the costs of
two counsel.
H
K SALDULKER
JUDGE
OF APPEAL
APPEARANCES:
For
appellant: L
J Morrison SC (with M
D Silver)
Instructed
by: David
Kotzen Attorneys c/o
Lovius Block
Bloemfontein
For
respondent: R
A J Acton
Instructed
by: Oosthuisen
Marais &
c/o
Phatshoane Henney
Bloemfontein
[1]
International Trade Administration Commission of South Africa.
[2]
Sections 49(3)
to
49
(5) of the
Consumer Protection Act 68 of 2008
provides as follows:
‘
(3) A provision,
condition or notice contemplated in subsection (1) or (2) must be
written in plain language, as described in
section 22.
(4) The fact, nature and
effect of the provision or notice contemplated in subsection (1)
must be drawn to the attention of the
consumer—
(a)
in a
conspicuous manner and form that is likely to attract the attention
of an ordinarily alert consumer, having regard to the
circumstances;
and
(b)
before the
earlier of the time at which the consumer—
(i) enters into the
transaction or agreement, begins to engage in the activity, or
enters or gains access to the facility; or
(ii) is required or
expected to offer consideration for the transaction or agreement.
(5) The consumer must be
given an adequate opportunity in the circumstances to receive and
comprehend the provision or notice
as contemplated in subsection
(1).’
[3]
Clause 13.2: Where the Company employs independent third parties to
perform all or any of the functions required of the Company,
the
Company shall have no responsibility or liability to its customers
for any act or omission of such third party, even though
the Company
may be responsible for the payment of such third party’s
charges, but the Company may, if suitably indemnified
against all
costs, including attorney and client costs, take such action against
the third party on its customer’s behalf
as its customer may
direct.
Clause
32: The Company shall not in any circumstances be liable for any
loss or damage to goods or for non-delivery or mis-delivery
whether
on grounds of breach of contract or negligence, unless it is proved
that the loss, damage non-delivery or mis-delivery
occurred whilst
the goods were in the actual custody of the Company and under its
actual control.
Clause
33: Subject to the terms of Clause 32 above the Company shall be
under no liability whatsoever, whether on grounds of breach
of
contract or negligence, in respect of any type of loss or damage,
however arising, and whether in respect of or in connection
with any
goods or any instructions, business, advice, information or services
or otherwise, unless it is proved that the loss
or damage was caused
by gross negligence of the Company.
Clause
35: Notwithstanding anything hereinbefore contained, the Company
shall be discharged from all liability-
Clause
35.2: For loss or non-delivery of the whole of the consignment,
however caused, unless notice be received in writing within
28
(TWENTY-EIGHT) days of the date upon which the good should have been
delivered.
Clause
36: In no case whatsoever shall any liability of the Company,
however arising, exceed the values of the goods or the value
declared by the customer for insurance, customs or carriage
purposes, or an amount determined as set out below, whichever is
the
lowest.
Clause
36.1: Inward and outward consignments received or to be forwarded by
airfreight- R50 per consignment:
Clause
36.2: Inward and outward consignments received or to be forwarded by
sea freight or other surface carriage, excluding parcel
post –
R100 per 1000 kilograms or part thereof.’