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[2017] ZAKZDHC 35
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Brunel Logistics Southern Africa (Pty) Ltd v OS Trading (4435/2015) [2017] ZAKZDHC 35 (28 July 2017)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 4435/2015
In
the matter between:
BRUNEL
LOGISTICS SOUTHERN AFRICA (PTY)
LTD
Plaintiff
and
OS
TRADING
Defendant
Order
:
1.
Judgment is
granted in favour of the Plaintiff in the main action in sum of
R463 099,89;
2.
Interest on
the aforesaid amount at the rate of 9% per annum, from date of
summons to date of final payment;
3.
Cost of
suit.
4.
The
Defendant’s counterclaim is dismissed, with costs.
JUDGMENT
CHETTY
J
[1]
The
plaintiff instituted action against the defendant based on three
claims arising from the clearing and forwarding of used
telecommunications
equipment from Nigeria and Zimbabwe to Durban,
South Africa. The equipment, at the request of the defendant, was
transported to
Durban and thereafter delivered via road freight to
the premises of SIMS Recycling Solutions Africa (Pty) Ltd (‘Sims’),
a client of the defendant. Despite the plaintiff delivering the goods
to their final destination, despite demand the defendant
has refused
to pay the amount of the three claims, totalling R532 944,20 for
services rendered. The plaintiff instituted
action to recover
the amount, while the defendant not only defended the action but
instituted a counter claim on the basis that
the plaintiff breached a
‘non-circumvention’ agreement, as a result of which the
defendant sustained loss of business
totalling R1 626 445,80.
The counter claim was resisted by the plaintiff.
[2]
When the
matter came before me the defendant applied for a postponement of the
trail. After hearing argument from both counsel,
I refused the
application, with costs.
[3]
The
plaintiff then gave notice of its intention to amend its summons,
with the deletion of the second claim pertaining to the clearing
and
forwarding of a consignment from Mauritius. That amendment was
duly granted. As a consequence, the plaintiff’s
claim was
crystallised into 2 distinct claims, all of which were set out in a
‘Master Schedule’, totalling R463 244,89.
This
amount was subsequently rectified to R463 099.89. made up as
follows :
[3.A] The first
claim was in respect of the transportation and forwarding of goods
from Nigeria to Durban at the instance
and request of the defendant.
[3.B] The second
claim (comprising two parts) is for the transportation of used
telecommunications equipment from Zimbabwe
to Durban and thereafter
for the onward transportation via road freight to Balito, to the
premises of SIMS Recycling Solutions
Africa Pty Ltd, a client of the
defendant.
[4]
It is
common cause that the plaintiff performed in terms of the agreement
with the defendant and submitted invoices of the claims
as per the
Master Schedule. The defendant refused to pay the amounts thereby
giving rise to the present action. The defence pleaded
is simply that
the plaintiff is put to the proof that the invoiced amounts (as per
summons), were correctly calculated. When
the parties convened
a pre-trial, the plaintiff directed the following enquiry to the
defendant :
“
In as much as defendant admits
that the services were rendered by the plaintiff, what does defendant
allege was the price that the
plaintiff would have been entitled to
charge, but for the defences raised by defendant?
The
defendant provided the following response:
“
The defendant
admits
that the plaintiff was entitled to charge the rates claimed but for
the defences raised by the defendant”.
[5]
At the
commencement of the trial, counsel for the plaintiff submitted that
in light of the defence as pleaded by the defendant,
all that was
necessary for the plaintiff to succeed in the main claim was to prove
that the invoices rendered to the defendant
were correctly
calculated. Mr Boulle, who appeared for the plaintiff, went a step
further and submitted that to that end, once
the respective invoices
are proved, the defendant loses the right to cross-examine the
plaintiff’s witnesses. I was not in
agreement with this
contention and considered it to be an overly robust approach. I
do agree however that the pleading limits
the defendant to contesting
only the accuracy of invoice. There is no dispute on the pleadings
that the plaintiff rendered services,
and that the defendant had no
complaint as to the competency or efficiency thereof. It must
also be assumed that the goods
were properly conveyed and received by
the client of the defendant, SIMS Recycling. It has also not
been disputed by the
defendant that it was duly paid by SIMS in
respect of the goods delivered. This accordingly begs the question
raised by counsel
for the plaintiff at the outset of the trial as to
what exactly remains in dispute between the parties?. The total
amount
of both claims due by the defendant is R476 515,49, as
reflected in the Master Schedule, and later corrected to reflect
R436, 099,
89, which is common cause between the parties.
[6]
It is
pertinent to point out that prior to the commencement of trial I
requested the parties to clearly define the issues for determination.
The parties concluded a written agreement as to the issues in
dispute. These are the following –
[6.1] the plaintiff
is put to the proof that the amounts set out in its invoices were
correctly calculated, with the total
due being the amount of R463,
099, 89.
[6.2] the defendant
disputed the charges for standing time, but no further details were
available in this regard.
In
essence, those are the matters concerning the claim in convention.
[7]
The
plaintiff called one witness in support of the proof of its claim,
Vinesh Parmeshwar, a freight controller employed by
it with personal
knowledge of the agreement and transactions concluded for and on
behalf of the defendant. In respect of the plaintiff’s
business
relationship with the defendant, he testified that this comprised
doing sea and road freight logistics, including shipments
from
Nigeria. Parmeshwar testified in detail in relation to the first
claim and the invoice submitted to the defendant for payment,
which
appeared at page 74A of the bundle of exhibits. This invoice
pertained to a consignment of goods from Nigeria, comprising
two 40
foot containers, as specified on the invoice. Whilst the estimate in
respect of the particular transaction was issued in
December 2014 and
the prices estimated at the time were based on the Rand/Dollar rate
of exchange of R11.40, at the time of invoicing
the defendant the
rate of exchange had increased to R11.70. The amount for the “pre
carriage pickup charges”, being
a reference to the containers,
was estimated to be R61 560. This amount was subsequently reduced on
the invoice to R42 120,
for two containers. Similarly, the
export charge in the invoice was an amount of R46 332 as opposed to
the estimate of R67 760.
[8]
Parmeshwar
went on to explain that the bill of lading amounted to R7 020, being
a reduction from R10 260 from the initial estimate.
The invoice
included charges for forklift security and a shipping line fee, being
a disbursement paid to the shipping company,
Pacific International
Liner Agency, which amounted to R 6 838.
[9]
In
addition, the plaintiff charged the defendant import cargo charges
payable to Transnet Ltd in respect of the containers brought
into
South Africa. This amounted to R7 905, 28. Similarly, the
plaintiff incurred the costs in relation to the transport
of the
containers from the Durban Container Depot to SIMS Recycling in
Balito, amounting to R3 300 per container, together with
a mark-up of
R400. Parmeshwar pointed out that the plaintiff did not charge
the defendant for any standing time. It
billed the defendant an
amount of R435, being a container terminal order fee, payable by all
clearing and forwarding companies.
This amount, according to him,
should be reduced to R290, as the transaction only applied two
containers. An agency fee was paid,
amounting to R2 058, 96 as well
as a facility fee of R150 and a documentation fee being a flat charge
of R350. The total amount
of the invoice according to the witness was
R174 547, 73.
[10]
Prior to
the plaintiff leading its witness any further in respect of claims 3A
and 3B, Mr Havemann, who appeared on behalf
of the defendant,
indicated that the defendant only took issue with the demand of
standing time contained invoices. The claim in
3A for standing time
is R52 500. In respect of Claim B, the standing time for three trucks
is R99 000. The remaining items contained
in the Master Schedule are
not in dispute.
[11]
What is
apparent from the outset, in my view, is that the defendant has
pleaded a general defence on its papers, putting the plaintiff
to the
proof of its claim. At trial, this defence was whittled down to the
issue of standing time. If this was the defendant’s
original compliant with the invoice, one wonders why these matters
were not raised on the pleadings.
[12]
In light of
the approach adopted by the defendant, the remainder of Parmeshwar’s
evidence focused on the charges for standing
time incurred in respect
of the road freight of goods brought in from Zimbabwe to Durban. The
procedure, he explained, is that
at the Customs’ point of
entry, each truck is required to have a document referred to as a
‘CV1’. The problem
which gave rise to claim 3A
relating to the collection of goods from Barclays in Harare, is that
the defendant only supplied one
CV1 document, whereas the
consignment comprised 2 containers. In order to overcome the
problem, the two trucks had
to travel as a convoy. No fee is levied
for the first 48 hours standing time. Parmeshwar referred to an email
of 25 February 2015
from Troy Botha to Tamryn Osborne, acting for the
defendant, in which Botha informed Osborne that the trucks incurred
standing
time of 11 and 10 days respectively, at a charge of R4 500
per truck. Botha further advised Ms Osborne that the costs in
respect of standing time had been negotiated down to 8 and 7 days
respectively, at the rate of R3 500 per day, equating to a total
of
R52 500. The initial amount for standing time was R94 500.
Botha further requested confirmation of the acceptance
of the
charges.
[13]
In
response, Ms Osborne addressed an email on 26 February 2015 stating
that she accepted Botha’s proposal but needed to discuss
the
matter with her client, after which she would revert to him. On 27
February 2015 Botha again wrote to Ms Osborne regarding
confirmation
of the standing charges, to which Ms Osborne responded that charges
were “
unwillingly”
accepted. The email gave no hint that the defendant was dissatisfied
with the charge or the rate. Parmeshwar testified that while
the
amount of R52 500 is reflected as standing time, the plaintiff
discounted a further amount of R2 500 for local standing time,
following negotiations it had with the defendant. The passing
of the credit note for this amount is reflected in the calculations
on the Master Schedule. That concluded the plaintiff’s
evidence on Claim 3A.
[14]
In relation
to claim 3B, Parmeshwar stated that this related to a consignment
comprising four truck-loads of goods from Zimbabwe
to Durban. The
convoy comprised one truck loaded with a container and the remaining
three with a ”bulk break”, meaning
a truck where a
tarpaulin is used to cover the goods. The witness testified
that in total, the trucks stood at the border
post for 11 days, the
reason being that similar to claim 3A for standing time where the
defendant provided only one CV1 for use
at Customs. As such, all the
trucks had to wait at the border in order to be cleared together.
Only once this process was complete,
could the trucks continue on
their journey.
[15]
During the
course of the trip from Zimbabwe to Durban Ms Osborne had been
informed by email on a regular basis of the position concerning
standing time, as the tracking system allowed for regular updates on
the movement of the trucks. On 25 March 2015 Parmeshwar sent
an email
to Ms Osborne in which he indicated that there was a total of 9 days
incurred as standing time, a reduction from the original
amount of 11
days. According to the email, after representations were made by the
plaintiff to the haulier company, the amount
of standing time was
reduced to 6 days, at a rate of R5 500 per day. As there were 3
vehicles delayed up at the border post, the
total for all the
vehicles was R99 000. Ms Osborne responded that the defendant was not
in agreement with this assessment and requested
a detailed breakdown
of the tracking and standing time in order for her to assess the
situation.
[16]
The
plaintiff thereafter engaged the haulier company to obtain a further
reduction of standing time and obtained a credit of R46 500,
which it reflected on its invoice to the defendant. As a result, the
amount for which the defendant was credited equated to R49,
313, 50.
The total due in respect of the invoice for Claim 3B was R182, 100.
This constituted the plaintiff’s evidence on
Claim 3B.
[17]
In total,
the amount of the three invoices totalled R463 099, 89, which
according to the witness is still outstanding and payable
by the
defendant.
[18]
Prior to Mr
Havemann
proceeding with his cross examination, a lengthy debate ensued on
what exactly the ambit of the defendant’s cross examination
would entail as the plaintiff contended that the defendant was bound
by the defences as pleaded, together with the responses in
terms of
the Rule 37. To this end, Mr
Boulle
contended that while the defendant could cross-examine the witness of
the factual position regarding standing time, it was not
within the
defendant’s remit to challenge the rates charged by the haulier
company to the plaintiff as these rates were specifically
admitted by
the defendant as part of its responses under Rule 37. Counsel
contended that he led his witness based on what
was pleaded by the
defendant.
[19]
Innes CJ in
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
pointed out that parties should be kept strictly to their
pleadings. He added further at 198
“
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full enquiry. But within those limits the Court has a
wide discretion. For pleadings are made for the
Court, not the Court
for pleadings
.”
This
view was endorsed by De Villiers JA in
Shill
v Milner
1937 AD 101.
The
role of pleadings, as set out
Beck’s
Theory
and Principles on Pleadings and Civil Actions
6
th
ed (2002), p43, is that
they
must ensure that both parties know what the points of issue are
between them, so that each party knows what case he has to
meet.
He or she can thus prepare for trial knowing what evidence he or she
requires to support his own case and to meet that
of his opponent.
The object of pleading is to clarify the issues between the parties
and a pleader cannot be allowed to direct
the attention of the other
party to one issue, and then at the trial attempt to canvass another.
Kali
v Incorporated General Insurances Ltd
1976
(2) SA 179
(D) at 182A.
I
was of the view that the defendant was intent on constantly changing
the goal posts and building on to its defence as the trial
proceeded. This type of litigation – trial by ambush, in
my opinion – has been correctly frowned upon by our
courts. It
significantly prejudices the other litigant. Mr
Havemann
,
as I understood his contention, stated that the defendant wished to
amend his defence to deny liability for standing time on the
basis
that this is a charge to be borne or absorbed by the plaintiff, and
not an expense that can be passed onto the defendant
as there was no
contract in place between the haulier and the defendant. The
argument raised by Mr
Havemann
that standing time was not
raised by the plaintiff prior to the consignment being transported is
undermined by an exchange of correspondence
between Parmeshwar and Ms
Osborne as at 2 February 2015, in which she is informed that standing
time is charged at the rate of
R3 500 per day, after the first 48
hours. There can be no complaint from the defendant that this
was a charge that would
be absorbed by the plaintiff. It was
made abundantly clear to the defendant that standing time would be
for its account.
In any event, as I understood the plaintiff’s
witness, where standing time cannot be attributed to a fault on the
part of
the customer, this would be absorbed by the haulier. After
hearing argument on the matter I ruled that the cross-examination of
the witness would be confined to those defences set out in the plea
and amplified in the Rule 37 admissions.
[20]
Under
cross-examination Parmeshwar was unshaken and maintained throughout
that the rates for standing time had been agreed to with
Ms Osborne,
and that the delays incurred at the border were due to the defendant
having only one CV1 document, even though the
trucks were travelling
in convoy. He denied that the plaintiff was responsible for the
correctness of all paperwork and documentation
in respect of goods
brought into the country and maintained that only the client would
know the true contents of a container being
transported. As a
result, if the container is opened by customs officials and is found
to contain goods different from that
reflected in the CV1 form, the
customer will be liable for the additional charges levied. He further
stressed that the plaintiff
in these scenarios never acts as an
importer, but strictly as an agent on behalf of the customer.
Parmeshwar further clarified
that a customer would not be liable for
standing time where the reason for the delay could be attributed to
the haulier, for instance,
where one of the trucks suffered a
mechanical breakdown. He confirmed that the eventual charge for
standing time had been significantly
reduced after the plaintiff had
passed on a discount of R51 313, 00. Parmeshwar further
explained that the standing
time was calculated using the analysis
from an electronic tracking reporting system which activates when the
truck reaches the
border, and once the 48 hour “free”
standing time elapses. That concluded the evidence on behalf of
the plaintiff.
[21]
The
defendant called as its first witness Paul Osborne who testified that
the defendant approached the plaintiff to provide logistical
services
for the transportation of used IT and cellular communications
equipment in October 2014. The reason for non-payment was
attributed
to the rates charged, as well as the amounts charged for standing
time.
[22]
When the
trial resumed in March 2017, the parties had reached an agreement
that in respect of the plaintiff’s claim 3A and
3B, the only
items in dispute was that of standing time charges. Accordingly, this
judgement does not concern itself with the testimony
of the witnesses
regarding the rates charged by the plaintiff. In so far as the claim
in convention is concerned, the summary of
the evidence of the
witnesses is confined to the dispute relating to standing time.
It was further agreed by the parties
at the resumption of the trial
that in the event of the plaintiff being successful in regard to the
claim in convention, and if
the defendant succeeded in its claim in
reconvention, the plaintiff would not execute on its judgement until
the quantum in respect
of the claim in reconvention was finalised.
[23]
The
evidence of Mr Osborne, in summary, was that the defendant should not
be held liable for the breakdown of any of the trucks
transporting
goods on behalf of the plaintiff, and consequently it assumed no
liability for standing time. As I understood the
witness’s
evidence, he contended that the haulier was acting on behalf of the
plaintiff and not on behalf of the defendant.
To the extent that
there may have been a mechanical breakdown involving one of the
trucks, Mr Osborne’s view was that the
defendant could not be
held liable for the standing time incurred at the border crossing. It
is common cause that the consignment
from Harare to Durban was held
up at the border post of Zimbabwe and South Africa because only one
customs document, referred to
as a ‘CV1’, was available
for four trucks travelling in convoy. In such a scenario, if one of
the trucks suffered a
mechanical breakdown, the other three trucks
were unable to proceed through customs without the fourth truck
joining them. Mr Osborne
further testified that a new ‘CV1’
document had to be obtained in respect of the Zimbabwean consignment.
[24]
In respect
of the contention that Ms Osborne had agreed to pay the plaintiff the
amount of standing charges contained in its invoice,
Mr Osborne
stated that Ms Osborne had no authority to negotiate or to reduce
standing time charges. He stated that the standing
time charges
caused problems for the defendant and their clients had objected to
paying these charges. In some cases, the defendant
reached a
compromise with its clients in relation to payment for these amounts,
with it absorbing some of those costs. No specific
examples were
provided of dissatisfied clients or the amounts absorbed on their
behalf.
[25]
What
emerged from Mr Osborne’s evidence was that upon receipt of the
invoice from the plaintiff, the invoice was passed on
to the client
(SIMS) for payment to the defendant. Despite the contestation
regarding standing time and the refusal of the defendant
to pay these
invoices, based on this alleged breach, Mr Osborne was unable to
confirm whether the defendant invoiced SIMS for the
full amount which
it had been charged by the plaintiff. He was invited by the
plaintiff’s counsel to produce the invoice
which the defendant
forwarded to SIMS Recycling for payment. The point made by the
plaintiff’s counsel is that while the
complaint of the
defendant is that they refused to pay the invoice on the grounds that
it included a charge for standing time,
the defendant nonetheless
invoiced SIMS Recycling for those amounts, and in the absence of
proof to the contrary, one must accept
that they were paid in full,
including the amount for standing time. As such, it was
submitted the defendant incurred no
loss and consequently it is
unable to sustain a defence for the non-payment for charges. The
defendant suffered no damages and
no prejudice as a result of the
plaintiff charging for standing time. In any event, it is the
plaintiff’s case that the charges
in respect of standing time
were agreed to by Ms Osborne, acting on behalf of the defendant, and
representing the interests of
her client, SIMS. This is evident
from the email from Ms Osborne to Botha on 27 February 2015.
This concluded Mr Osborne’s
evidence on the main claim.
[26]
In so far
as the defendant’s counterclaim is concerned, Mr Osborne
testified at length regarding the Working Document, otherwise
known
as a Non-Circumvention Agreement, which essentially is a contract
which precludes an entity, such as the plaintiff, from
poaching or
taking unfair advantage of the contact with the supplier of used IT
goods either in Nigeria or Zimbabwe, and of the
pricing structure
which the plaintiff would acquire access to. The agreement was
further intended to prevent a clearing and forwarding
agent, like the
plaintiff, from going behind the back of the defendant, and dealing
directly with the customer like SIMS, to import
and export goods
directly on their behalf. Mr Osborne aptly described the
purpose of the document as being to minimise the
risk of poaching
clients. Accordingly to him, the claim in reconvention is based
on such an agreement having been signed
by Botha representing the
plaintiff, and Ms Osborne representing the defendant.
[27]
Mr Osborne
testified that the plaintiff acquired knowledge of the defendant’s
pricing structures and used this as a means
to directly approach its
client, Eriksson Nigeria, to provide logistical services to them,
thereby undercutting or excluding the
defendant from such contracts.
He testified that upon being shown an email dated 20 March 2015 from
Botha, who had signed the Non-Circumvention
agreement on behalf of
the plaintiff, he was infuriated that Botha would try to undercut the
defendant, especially as he had known
him personally for many years
as a family friend. Mr Osborne testified that he contacted Botha and
confronted him regarding the
contents of the letter of 20 March 2015.
It is prudent at this stage to set out the contents of the email from
Botha to Kim Clemence-Wolfaardt
at Ericsson in Sweden. It reads as
follows :
“
As discussed, we are very much
interested in learning more about Ericsson’s global
import/export requirements on all trade
lines.
Very briefly, but about Brunel …
We are, to this day, a family run,
British business with our own offices in the UK, India, Hong
Kong/China, the USA, South Africa,
West Africa (Nigeria/Ghana), and
the UAE. We place great emphasis on not only offering a
competitive price structure, but
also a first-class and personalised
customer service. We have successfully established a global presence
which enables us to structure
visible and efficient supply chain
solutions - a full door-to-door service if need be - whether cargoes
are moving by land, sea
or air. We are an authorised economic
operator (customs) ……
We are fully accredited with customs
at all border in entries / ports, and as such all customs clearances
are handled in-house and
not subbed out to third party clearing
houses.
As mentioned telephonically, we have
been working with Emanuel Abugu of Eriksson Nigeria on export trade
from Nigeria into South
Africa, and he is interested in working more
with our Nigerian operations (Brunel Logistics Global Solutions Ltd)
in the import
traffic. It is most notable that BLGSL has gone ahead
on its own initiative to apply to the Nigerian Federal Ministry of
Environment
and Nigerian Communications Commission for permission for
export of used and discarded communication equipment on behalf of
Eriksson
Nigeria - a move no other forwarder has made. BLGSL has a
dedicated team who not only provide updates to clients on import
documentation
requirements, but also harness the local expertise …
to offer customised services.
We are keen to further discuss your
total transportation requirements with the view to submitting
costs/proposals all the trade
lines, even if it is only for cost
comparisons. We do believe we are able to offer cost savings and
certainly a high level of customer
focused services.
…………”
[28]
According
to Mr Osborne, Botha denied that he acted maliciously or with the
intent to undercut or deprive the defendant of profits
from
cross-border imports. In light of Botha’s conduct, Osborne
believed that the defendant had suffered significant damages
as the
defendant was forced to amend its pricing structure in order to
remain competitive in the marketplace. Clients also began
to question
the pricing of the defendant, resulting in many customers having to
be re-quoted. Mr Osborne stated that the
defendant was
approached by SIMS enquiring why others were getting involved in
their business of importing used cellular parts
from Nigeria.
It is at this juncture, according to Mr Osborne, that SIMS
brought to his attention Botha’s
email. In light of
Botha’s conduct, Mr Osborne decided not to pay the plaintiff’s
invoices as the damages caused
to the defendant’s business far
exceeded the amount claimed in the plaintiff’s invoices.
He also considered it
objectionable that the plaintiff could charge
interest on the standing time claimed in the invoices. He
contended that the
plaintiff is responsible for ensuring that all of
the customs documents are in order and as such, the defendant should
not be held
liable for the standing time charges incurred where the
customs documents were not present.
[29]
Mr Osborne
further denied that he had signed a document stipulating the trading
terms and conditions under which the plaintiff undertook
to contract
with the defendant. According to him, he had never seen the document
before.
[30]
Under
cross-examination, Mr Osborne advanced a rather feeble explanation
for the defendant not being able to produce the invoice
which it
forwarded to its client, SIMS Recycling, in respect of the
consignment brought in from Zimbabwe, suggesting that the Court
proceedings finished late the day before. He admitted that in
general, the plaintiff would invoice him and he would place a mark-up
on the amount, thereafter invoicing his client. It would follow
therefor that the defendant would make a profit over and
above what
it paid to the plaintiff. As such, it suffered no damages by
virtue of the plaintiff having charged it standing
time. Moreover, it
was put to Mr Osborne that the failure of the defendant to produce
its invoice to SIMS, it is unable to deny
the plaintiff’s
contention that even the reduction in standing time which the
plaintiff had negotiated with its haulier and
passed on to the
defendant, had not been passed on to SIMS.
[31]
In so far
as the defendant’s claim in reconvention, which is based on
damages sustained as a result of the plaintiff’s
breach of the
non-circumvention agreement, Mr Osborne testified that he instructed
Ms Osborne to sign the document on behalf of
the defendant as he was
out of the country. She signed the agreement on 1 October 2014 and
forwarded it to Botha for his signature,
as he represented the
plaintiff at the time. Some days later, on 10 October 2014 Botha sent
through his copy of the agreement,
duly signed.
[32]
Mr Osborne
was cross examined at length on the contents of the defendants plea
in which it is contended that the non-circumvention
agreement was
signed by Botha on behalf of the plaintiff and by Mr Osborne on
behalf of the defendant. The problem which presents
itself is that on
the documents before me, only Ms Osborne appears to have signed the
non-circumvention agreement on behalf of
the defendant. According to
Mr Osborne, it was imperative that the non-circumvention agreement to
be signed as the consignment
for SIMS was ‘already on the
seas’. This aspect of his evidence is placed in doubt from the
evidence of Ms Osborne
who stated that at the time when she signed
the non-circumvention agreement, the consignment had not yet been
finalised, nor had
it left Nigeria for South Africa.
[33]
In so far
as the non-circumvention agreement is concerned, it was put to Mr
Osborne that Mr Graham Bott of Brunel UK was not satisfied
with the
terms of the agreement. Bott indicated that the plaintiff would be
prepared to sign the document, subject to the caveat
restricting the
agreement to the Nigerian-South African trade handled by the
defendant on behalf of the SIMS Metal Group. He further
stated in an
email of 2 October 2014 that if future business opportunities arose,
the agreement could be amended as necessary.
It was put to Mr
Osborne that in light of there being no disagreement advanced by the
defendant to the suggested caveat, Botha
went ahead and signed the
non-circumvention agreement on behalf of the plaintiff.
[34]
In
so far as the loss which the defendant contends that it sustained, it
alleges that this was due to Botha poaching its clients
or
undermining its business. Mr Osborne considered the email of 20
March 2015 as Botha seeking to prize away the export trade
from
Nigeria into South Africa of used IT communications equipment.
Mr Osborne was
particularly
upset at the suggestion from Botha in his email to Kim Clemence the
plaintiff was able to offer cost savings and a
high level of customer
focused service if Ericsson elected to do business with it. Mr
Osborne was unable to point to a shred of
evidence in respect of the
documents placed before the court, to show that the plaintiff had
either directly or indirectly carried
out work for SIMS Recycling as
a result of the email dated 20
th
of March 2015, or that it had earned any revenue by soliciting
clients of the defendant.
[35]
In my view, the fears of the defendant were entirely speculative
without any evidence that Botha had acted in contravention
of the
non-circumvention agreement. On the contrary, it was put to the
witness that Botha would give evidence that he had no intention
of
importing scrap telecommunications equipment into South Africa and
did not act in any way that impinged on the territory of
the
defendant. The witness was unable to point to any document or produce
any evidence to substantiate the allegation that the
plaintiff or
Botha had undercut it or offered to carry out work at more
competitive prices than the defendant. Mr Osborne
was unable to
refute the proposition put to him that Botha would say that not a
shred of business emanated from his email.
Moreover, Botha’s
interpretation of the disputed email is that it pertained to
importation of goods from Sweden to Nigeria
and had nothing
whatsoever to do with the trade routes of the defendant from Nigeria
to South Africa. This was also, according
to the plaintiff, how
Kim Clemence understood Botha’s email to her. Mr Osborne
was also unable to refute the suggestion
that the email was intended
to canvass the issue of importation of new, as opposed to scrap
goods. Despite there being nothing
to counter the averments put
to Mr Osborne, the latter was adamant, as set out in the
counterclaim, that the plaintiff contracted
directly with Erikson and
other suppliers at prices “
that
excluded and/or diverted the brokerage and/or facilitation fees that
would have been earned by the Defendant on such transactions
”
.
As set out earlier, there was no evidence to support this opinion
held by the defendant. Eventually, Mr Osborne revealed
that the
defendant had lost SIMS as a client “completely”.
He accepted under cross examination that he had no
documents which
could prove that SIMS had been offered a better price by the
Plaintiff.
[36]
The only document which the defendant relied on for its contention
that the plaintiff had caused it loss of revenue is an email
from the
director at SIMS Recycling on 7 April 2016 in which she says that she
was unable to engage the services of the defendant
as she had
received a better rate from “another transporter”. Both
Paul Osborne and Tamryn Osborne assumed that this
response from SIMS
Recycling was suggestive of the plaintiff being the “other
transporter”. Neither witness was
able to point to any
evidence that implicated the plaintiff as being the entity that was
engaged by SIMS or which offered a better
price then the defendant.
Counsel for the plaintiff submitted that this email constituted the
high water-mark of the defendant’s
claim that the plaintiff had
breached the agreement.
[37]
Mr Osborne further conceded that at the time when Botha both wrote to
him concerning the amounts of the outstanding invoice,
his response
was that he would attend to finalising the account.
[38]
It was further put to Mr Osborne that the agreement which signed by
Ms Osborne and the page bearing the signature of Botha,
are not the
same. The only conclusion that one can draw from this is that
Ms Osborne signed a document at the time when Botha
was not present.
Both signed two separate pages (page 3 of the agreement) which were
considered as one for the purposes of the
contract. The essence
of the defence to the contravention of the non-circumvention
agreement is that Botha signed the agreement
on the understanding
that the agreement would be restricted to the trade between Nigeria
and SIMS Recycling in South Africa.
It should be noted that
Bott’s email is dated 2 October 2014, the same date as when
Botha signed the agreement on behalf
of the plaintiff. This
lends credence to the version of the defendant that Botha signed the
agreement on the basis of the
restrictive interpretation, as set out
in Bott’s email.
[39]
Mr Osborne further confirmed that the defendant received the invoices
and in emails that passed between the parties from 13
October 2014 to
25 March 2015, the issue of standing time had never been raised as a
basis for non-payment. On the contrary,
Mr Osborne thanked the
plaintiff for being patient in holding out for payment. As at
16 March 2015, Mr Osborne had received
the plaintiff’s invoices
for R174 547 and R122 365. He raised no objection to
payment on the basis of standing
time or any other ground. It
was only on 11 April 2016, according to the emails contained in the
bundle of documents, that
SIMS brought it to the defendant’s
attention that they were able to get a better rate for the
transportation of goods from
Eriksson’s. There is no
indication on the email from SIMS that they had migrated to the
services offered by the plaintiff
or that the plaintiff had in any
way been responsible for the change in their decision to use someone
other than the defendant
as their service provider.
[40]
Finally, when it was put to Mr Osborne that Ms Osborne had indeed
agreed, as evidenced by the emails between herself and the
plaintiff’s employees, to the charges for standing time
incurred in the transportation of goods for the defendant, he denied
that she had the authority to accept such charges. He was
unable to offer any explanation as to why this aspect had not been
raised with the plaintiff’s witnesses during cross examination
and during which time he had been present in court.
[41]
The re-examination of the Mr Osborne was in my view a belated attempt
to rescue several holes in the defendant’s case.
When it
was put to him that the defendant agreed to the restrictive
interpretation proposed by Bott in his email, he denied this
but
offered no proof of rebuttal other than to say that Ms Osborne had to
act speedily. In his view, Botha had no prior business
experience in Nigeria and it was he (Mr Osborne) who introduced him
to that market. Mr Osborne was aggrieved that Botha sought
to
undercut the rates that the defendant offered to Nigerian customers,
although he conceded that he did not have any proof of
this this.
[42]
The next witness for the defendant was Tamryn Lee Osborne (Ms
Osborne), formerly employed as the logistics manager for the
defendant and who managed the account of SIMS Recycling during the
period of her employment. She testified that she provided a
comprehensive service to SIMS in respect of the importation of
second-hand cellular phone and IT equipment from Eriksson’s
in
Zimbabwe, Nigeria, Mauritius and Johannesburg to the warehouse of the
client, located in Balito, KwaZulu-Natal. She specially
mentioned that she attended to all other arrangements on behalf of
SIMS, other than for processing customs documentation which
were left
to the plaintiff. It emerged that she had known Mr Troy Botha as a
family friend, and that they had previously worked
together.
According to her, the general manager of SIMS, Hellen Werth, was
weary of clearing agents acquiring information as to
the identity of
the supplier of the used goods in Nigeria. Similarly, the
defendant was also averse to the clearing agents
acquiring such
information, as they could potentially undercut the rates offered by
the defendant, and consequently force the defendant
out of the
logistics chain. Put differently, the defendant also wished to
prevent the plaintiff doing business directly with their
client, in
this case, SIMS.
[43]
Ms Osborne signed the non-circumvention agreement on 1 October 2014
and forwarded it to Botha for his signature. On her version,
she had
obtained authorisation from Mr Osborne to sign the necessary
documentation on his behalf. Later in evidence she stated
that
she forwarded an unsigned copy of the agreement to Botha for
signature. Only after he returned his signed copy of the agreement
to
her, did Mr Osborne sign the agreement on behalf of the defendant.
The uncertainty as to when and who signed the agreement on
behalf of
the defendant is apparent from Ms Osborne’s evidence that she
signed the agreement on 1 October 2014. There was
much dispute about
the agreement relied on by the defendant in its plea and
counterclaim, which only contains the signature of
Botha. The
plaintiff contends that to the extent that the defendant relies on
this agreement, it is not binding and gives rise
to no contractual
obligations.
[44]
On the understanding that the non-circumvention agreement was in
place, the parties continued with their business relationship
without
any problems until the emergence of the email of 20 March 2015 from
Troy Botha to Kim Clemence, in which Botha sought to
make enquiries
regarding Eriksson’s global import and export requirements on
“all trade lanes”. Ms Osborne was
very upset when she
acquired knowledge of the email and took it as a personal affront.
She interpreted the email as an attempt
by Botha to undercut her
rates at which she was transacting for SIMS, and to undertake work
directly from Erikssons. She
was of the view that the plaintiff
had only started to work in Nigeria via her introduction, and hence
her strong response to what
in her mind was Botha attempting to take
business away from her. She confirmed that since December 2016 she
had no contact or business
with Eriksson and confirmed that SIMS had
last used her services in December 2016. Following the communication
from SIMS in April
2016 that they were able to obtain a better rate
from another transporter, Ms Osborne stated that she was compelled to
reduce her
rates, not only with SIMS but with other clients as well,
in order to stay competitive. In the process, the defendant sustained
losses as well as having clients leave them for others. The
underlying thread of her evidence was that she attributed all of the
blame to the actions of Botha, who she said had tried to cut her out
of business emanating from Nigeria.
[45]
In relation to the defendant’s refusal to pay the plaintiff’s
invoice for standing time, MS Osborne was aware of
the trucks
travelling in a convoy from Zimbabwe, in which the fourth vehicle
encountered a mechanical breakdown, causing a delay
in the clearance
of all of the vehicles, as they were using one CV1 form to clear
customs. Ms Osborne was subjected to intense
cross-examination
from the plaintiff’s counsel who canvassed at the outset the
foundation for the defendant’s counterclaim,
which is premised
on the plaintiff’s breach of the non-circumvention agreement.
As a result the defendant alleges that it
lost business sourced from
Eriksson and/or SIMS and that the defendant was unable to do the same
volumes of business as it was
forced to reduce its rates.
Consequently the defendant alleges that it sustained loss in the
amount of R1 626 445, 80,
and that such loss was ongoing.
The counterclaim is pleaded in terms that state specifically that the
reason for the loss of business
was that the plaintiff started
contracting directly with Eriksson and other suppliers ‘
at
prices that exclude and/or divert the brokerage and facilitation fees
that would have been earned by the defendant
”
.
Under cross examination, Ms Osborne conceded that the only evidence
supposedly in support of this assertion is the email
of Troy Botha of
20 March 2015. She further conceded that she had no proof of any
orders placed by SIMS with the plaintiff, nor
was she aware of any
emails addressed by the plaintiff to SIMS attempting to solicit
business. She conceded that nowhere in any
of the emails which have
been placed before the court, is there any suggestion or hint of
Botha offering his services at a rate
less than that quoted or
customarily charged by the defendant. Even when considering the email
from Helen Werth of SIMS dated 11
April 2016, in which she indicated
that she had obtained a better rate from another transporter, there
is no indication at all
of Botha attempting to undercut the
defendant. Ms Osborne stated further that Helen Werth was not
available to testify in the matter
and therefor unable to shed
further light on her email, nor was anyone else from SIMS prepared to
testify in support of the defendant.
In light of this, one is left
with the inference and supposition drawn from a single email written
by Botha that he was attempting
to circumvent the working
relationship which the defendant jealously guarded with its Nigerian
supplier.
[46]
As set out earlier, there are disputing versions as to who exactly
signed the non-circumvention agreement on behalf of the
defendant,
and counsel for the plaintiff attempted to sow some doubt as to Ms
Osborne’s authority to sign t on behalf of
the defendant,
particularly in light of Mr Osborne’s evidence that his
daughter had lacked authority to agree on the rates
without him being
consulted. Ms Osborne was unable to refute the contention that Botha
did not conclude any business as a result
of the email which she
considered to be ‘offensive’ and an attempt to undercut
the defendant. In addition, other than
relying on the aforementioned
email, she was unable to refute the assertion that Botha had no
intention of treading on the terrain
of the defendant.
[47]
Mr
Havemann
for
the defendant then made an ‘unfortunate’ decision to call
Mr Troy Botha as a witness, fully knowing that the plaintiff’s
case was that Mr Botha never had any intention to undercut the
defendant’s business in Nigeria, nor had he benefited from
any
business deal as a result of the email of 20 March 2015, which caused
such opprobrium from Paul and Tamryn Osborne. Botha was
questioned
regarding his email to Kingsley Egbuna, the general manager of Brunel
Logistics Global Solutions Ltd, based in Nigeria.
According to
him, the plaintiff had discussions with Egbuna in relation to
shipping scrap cellular phone equipment. He personally
had no contact
with Egbuna, but admitted that the email of 17 December 2014
contained the address of Kim Clemence of Eriksson in
Sweden, whom he
subsequently wrote to on 20 March 2015. While Botha admitted to
signing the non-circumvention agreement forwarded
to him by Ms
Osborne, he believed that he was signing the agreement in the context
of the email sent by Mr Bott, to the effect
that the agreement would
be restricted to the South African/Nigerian trade lane.
[48]
In
light of the testimony of Botha not eliciting the expected answers,
particularly those pertaining to the email of 20 March 2015
to Kim
Clemence at Erikson in Sweden and others associated with Brunel GSL
(Nigeria), United Kingdom and South Africa, Mr
Havemann
brought
an application to have Botha declared a hostile witness,. As
the plaintiff was taken somewhat by surprise by the application,
I
afforded the parties an opportunity to advance argument on the issue,
substantiated by reference to case authority. Schwikkard,
Principles
of Evidence
,
2
nd
edition (2002), para 25:3.3 points out that t
he
purpose of such an application is to obtain the right to
cross-examine one's own witness in the same way as if the latter had
been called by an opponent. The decision to bring such an application
is a tactical one, and the party bringing the application
has the
burden of satisfying the court that the witness is “not
desirous of telling the truth at the instance of the party
calling
him”. It has been held that an antagonistic
animus
must be proved, with the test being a subjective one.
S
v Steyn en andere
1987 (1) SA 353
(W) at 58G-H. The party seeking a declaration of
hostility must prove that the witness has an antagonistic
animus
so that he may cross-examine him — and yet if he could
cross-examine, he would have a better chance of exposing the required
animus.
[49]
While the
defendant submitted that Botha’s answers had been sarcastic in
relation to his interpretation of the non-circumvention
agreement,
the plaintiff’s counsel contended that the fact that Botha has
given evidence contradicting what was expected
of him by the
defendant does not
per
se
render him hostile. Equally, the defendant could not have been
surprised at the answers emanating from Botha. It was
always
the plaintiff’s case that Botha denied breaching the
non-circumvention agreement. He is the prime opponent of
the
defendant’s case, and despite being so aware, the defendant
proceeded to call him to testify in support of its cause.
I
agree with the plaintiff’s argument that the defendant
knowingly called Botha as a witness, and having made that election,
they cannot seek to escape the consequences of their decision by
declaring him to be hostile. Moreover, in my view there
was
nothing in Botha’s demeanour or from his behaviour in the
witness box that could be cause to consider him to be ‘hostile’.
See
Meyer’s
Trustees v Malan
1911 TPD 559.
[50]
For these reasons, the interlocutory application was dismissed.
[51]
Botha was recalled and questioned regarding the defendant’s
counter-claim emanating from the alleged breach of the
non-circumvention
agreement. Botha denied that the agreement
had been breached and stated that he had not done any work for
Erikson’s
other than through the defendant. Under cross
examination, Botha disagreed with the contention contained in the
defendant’s
counterclaim that the latter sustained loss of
business as a result of the plaintiff stealing clients and allegedly
contracting
directly with Ericsson and other suppliers. In so
far as the email of 17 December 2014 from Kingsley Egbuna to him,
Botha
said that he interpreted this as an attempt by Brunel Logistics
Global Solutions (Nigeria) wanting to be registered as an importer
of
finished goods from Sweden. His email to Kim Clemence on 20
March 2015 was the result of a prompt from Egbuna on 12 February
2015. Botha stated that his email was simply an enquiry as to
how finished goods from Sweden could be imported into Nigeria.
He had no intention of harming the business of the defendant, and was
adamant that no business emanated from his approach to Kim
Clemence,
nor did he ever provide SIMS with a quote for the importation of
goods from Nigeria.
[52]
Botha confirmed that he received an email from Paul Osborne on 25
March 2015 in which he was advised that the defendant was
terminating
all its business dealings with the plaintiff in light of their
“unethical breach of the non-circumvention agreement”
and
upon taking legal advice, they were withholding all payment due to
the plaintiff until they decided on a course of action in
respect of
the alleged breach. In response, Bott denied the allegations levelled
against the plaintiff and demanded that the defendant
make payment of
the freight and other charges which were outstanding. The matter
thereafter was placed in the hands of the attorneys
for the
respective parties.
[53]
In relation to his signing of the non-circumvention agreement, Botha
confirmed that he only signed the agreement after the
email from Bott
had been sent, in which the plaintiff set out the caveat pertaining
to the agreement. In so far as the agreement
which he signed, he was
clear that Ms Osborne never gave him a hard copy of the agreement.
All that he received from her was an
email containing an attachment,
which he signed and handed back to her..
[54]
The
defendant then closed its case after which counsel for the plaintiff
applied for absolution in respect of the claim in the convention
on
the basis that the defendant had failed to make out any case that the
loss of the business which it sustained was shown to be
attributable
to the plaintiff contracting directly with Erikson or any other
supplier. Counsel further submitted that both
Paul and Tamryn
Osborne conceded in their testimony that there was no direct evidence
or proof that the plaintiff had indeed circumvented
the defendant,
and sought to transact directly with the defendant’s
suppliers.
The
test for absolution from the instance at the end of a plaintiff’s
case is well established. It is set out in the following
passage from
Gordon
Lloyd Page & Associates v Rivera and Another
2001
(1) SA 88
(SCA):
‘
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A) at 409G - H in these terms:
'.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff …
”
This
implies that a plaintiff has to make out a
prima
facie
case - in the sense that there is evidence relating to all the
elements of the claim - to survive absolution because without such
evidence no court could find for the plaintiff
…
As
far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one,
not the only
reasonable one
…
The
test has from time to time been formulated in different terms,
especially it has been said that the court must consider whether
there is 'evidence upon which a reasonable man might find for the
plaintiff'
…
Such
a formulation tends to cloud the issue. The court ought not to be
concerned with what someone else might think; it should rather
be
concerned with its own judgment and not that of another 'reasonable'
person or court. Having said this, absolution at the end
of
.”’
[55]
I
concluded that absolution from the instance should not be granted,
but in light of the decision
Gafoor
v Unie Versekeringsadviseurs (Edms) Bpk
1961
(1) SA 335
(A)
at 340D-G I avoided a discussion of the evidence, lest either party
would formulate an opinion that I may have taken a view
of the merits
of the matter, which should only be determined at the end of the
whole case. Following my decision on absolution,
the plaintiff
elected to close its case in respect of the counterclaim.
[56]
In evaluating the evidence in respect of the main claim, the
plaintiff initially claimed a total of R532 944.20.
At the
commencement of the trial the plaintiff produced a Master Schedule
which detailed the total of each invoice issued to the
defendant, any
credit notes passed and the totals due in respect of each claim.
The total amount claimed as per the master
schedule is R463, 244,
89. Pursuant to the evidence of the plaintiff’s witness,
Mr Parmeshwar, the plaintiff conceded
that the amount in respect of
claim 1 contained an overcharge in the amount of R145, 00. As a
result, the plaintiff’s amended
claim is the amount of R 463,
099, 89.
[57]
The defendant’s plea admitted that the services were rendered
by the plaintiff as alleged in the particulars of claim.
It however
put the plaintiff to the proof that the amounts contained in the
invoices were
correctly
calculated
.
It therefore denied owing the total amount initially claimed, without
conceding what amount if any it was liable for as a result
of the
services which had been rendered by the plaintiff. It was only after
considerable time had been spent by the plaintiff leading
evidence of
its witness laboriously in relation to each and every item set out in
its invoices, did the defendant eventually concede
that the only
dispute in relation to claim 3A and 3B as per the Master Schedule,
was the issue of standing time. The disputed
amount in claim 3A
was R52, 500, 00 and R49 687.00 in respect of claim 3B.
[58]
In respect of claim 3A, the documentary evidence reveals that Botha
wrote to Ms Osborne indicating to her that the charges
for standing
time in respect of the particular consignment was R52,500 calculated
on the basis of R3 500 per day, per truck.
The trucks were
delayed at the border post for 10 and 11 days respectively. The
amount of R52 500.00 represented a reduced
fee, taking into
account that the initial period of 48 hours standing time is absorbed
by the transporter. In response, the evidence
was that Ms Osborne
accepted the charges after discussion with her client. As stated
earlier, the defendant’s plea merely
contested the
calculation
of
the amounts contained in the invoice. In his testimony, Mr Osborne
sought to contend that Ms Osborne did not have the authority
to
negotiate rates or deal with the issue of standing time charges in
the manner in which she did. This however was denied by her,
and she
contended that she had the necessary authority to accept the charges.
The evidence of the plaintiff, supported by the exchange
of emails,
clearly reflects that the amount charged to the defendant was for
standing time, and the amount eventually charged was
as a result of
an agreement reached between the parties. At the Rule 37 conference
the plaintiff enquired from the defendant what
amount it alleges was
due to the plaintiff. In response the defendant conceded that the
plaintiff was entitled to charge the rates
claimed, but for the
defences raised by the plaintiff. The latter aspect pertains to the
alleged breach of the non-circumvention
agreement and the consequent
loss flowing therefrom. In my view, the evidence of the
plaintiff on this claim is largely uncontested,
there were no
inherent improbabilities from the evidence of the plaintiff’s
witness and no defence mounted thereto.
[59]
In respect of claim 3B, the evidence of Parmeshwar was largely
unchallenged. It was apparent from his evidence that standing
time
was incurred and the plaintiff charged the usual rate in this
regard. The delay which was occasioned was caused because
of a
new CV1 customs document which had to be obtained. While the
plaintiff submitted that this was the responsibility for
the customer
(defendant), Ms Osborne attempted to deflect responsibility for this
to the plaintiff. The imputation that this
was the
responsibility of the plaintiff flies in the face of the admission by
Osborne that they supplied a new CV1 document to
enable the convoy to
clear customs after the initial delay.
[60]
Counsel for the plaintiff submitted that it was not open to the
defendant to challenge the plaintiff’s entitlement to
charge
standing time, particularly in light of the defendant’s
admission that the plaintiff was entitled to charge the rates
claimed. The plaintiff was meticulous in keeping the defendant
informed of the delays at the border, resulting in the incurring
of
standing time charges. The version of the plaintiff’s witness
as regards the single CV1 form which had to be provided
by the
defendant is in my view more probable than that of the version of Ms
Osborne, who attempted to shift blame to the plaintiff
for the
documentation.
[61]
Moreover, the amounts charged by the plaintiff were arrived at after
the passing of a number of discounts. The admission
by Mr
Osborne that the total amount of the invoice presented to it by the
plaintiff, inclusive of the amount for standing time,
was paid by
SIMS Recycling, is fatal to the defendant’s case. Not only did
SIMS pay the full amount invoiced by the plaintiff,
but the defendant
added to the invoice an amount representing its mark-up for services
rendered. It therefor made a profit
from the transaction.
No evidence was put up by the defendant as to the actual amount which
it invoiced SIMS for the work
done. It is not even known whether the
defendant passed on to SIMS the reductions which the plaintiff
reflected in its invoice.
In light of this, the question arises of
what prejudice or hardship the defendant has suffered, which warrants
its refusal to pay
the amount charged by the plaintiff. In my view,
the defendant has failed to mount any lawful basis to justify denying
payment
of the amount claimed to the plaintiff. Ultimately, it would
appear that the decision to withhold payment, which is precluded by
the standard trading terms and conditions applicable to the parties,
was the result of Botha’s alleged breach of the
non-circumvention agreement. Clause 27 of the said agreement provides
‘
unless
otherwise specifically agreed by the company in writing the customer
shall pay to the company in cash immediately upon presentation
of
account all sums due to the company without deduction or set-off
andpayments shall not be withheld or deferred on account of
any claim
or contact claim which the customer may allege
.’
It
would appear that contractually, even if the defendant believed that
it has a valid counterclaim, in terms of its agreement with
the
defendant, the latter cannot withhold payment due to the plaintiff.
On an evaluation of the evidence before me, I am
of the view that the
plaintiff must prevail in respect of its claim as amended in terms of
the Master Schedule. Counsel for
the plaintiff submitted that
the main claim should be upheld with costs on an attorney client
scale. While those that represented
the defendant changed
course in mid-stream and unnecessarily curtailed the duration of the
trial by requiring the plaintiff to
lead evidence of matters which
they later indicated were not in dispute, it would be unfair in my
view to mulct the defendant with
costs on a punitive scale.
For
the reasons set out above, the plaintiff must prevail in respect of
its claim in the main action.
[62]
Regarding the counterclaim based on the perceived breached the
non-circumvention agreement, the evidence was that a copy of
the
agreement was forwarded to Troy Botha to sign on behalf of the
plaintiff. On Botha’s version, substantiated by an email
from
Graham Bott, the latter had no objection to the agreement, on the
basis of the caveat that the agreement would only apply
to the South
African-Nigerian trade lanes. There is a dispute as to who signed the
non-circumvention agreement on behalf of the
defendant, particularly
as the document annexed .to the pleadings was not signed by either
Paul or Tamryn Osborne. The copy
relied upon by the defendant,
and annexed to the pleadings, bears the signature of Botha alone.
There is no corresponding
signature of behalf of the defendant.
On the basis alone, the plaintiff contends that no valid agreement
was concluded between
the parties as clause 9 of the agreement makes
it binding only upon signature. To the extent that the
defendant bears the
onus of adducing evidence to establish the
existence of a signed non-circumvention agreement, the evidence of
the defendant’s
witnesses were unsatisfactory and
unconvincing.
[63]
The evidence of both Paul and Tamryn Osborne was such that neither
could point to a single email in the bundle of documents
placed
before this court to justify their conclusion that Troy Botha either
attempted to undercut or did do so to their business.
There is
nothing to gainsay this version, confirmed by Troy Botha himself,
even after the defendant attempted to have him declared
a hostile
witness. The evidence failed to implicate Botha of soliciting clients
away from the defendant, and there is not one shred
of evidence to
suggest that he benefited directly or indirectly from the email he
addressed to Ericsson’s in Sweden. The
Osborne’s felt
betrayed by Botha, whom they had known as a family friend. The
defendant’s counterclaim is based on
a speculative hypothesis
that its loss of business could be attributed to Troy Botha’s
email to Ericsson. The defendant,
in my view, has failed to show any
causal nexus between the losses that they allege to have sustained
and the email by Troy Botha.
[64]
In the result I am satisfied that the defendant has failed to make
out a case for the contravention of the non-circumvention
agreement
as alleged. I would accordingly dismiss the defendant’s
counterclaim. I see no reason why costs should not
follow the result.
[65]
In
the premises I make the following order
1.
Judgment is
granted in favour of the Plaintiff in the main action in sum of
R463 099,89;
2.
Interest on
the aforesaid amount at the rate of 9% per annum, from date of
summons to date of final payment;
3.
Cost of
suit.
4.
The
Defendant’s counterclaim is dismissed, with costs.
_________________________
M
R CHETTY
APPEARANCES
For
the Plaintiff: A J Boulle
Instructed
by: Shepstone & Wylie
Umhlanga
Rocks
Ref:
(Qvdm/vsb/BRUN26904.3)
031 575
7000
For
the defendant: Mr C Haveman
Instructed
by: Messrs. CW Havemann & Associates
Durban
North
031 837
6525
Date
of hearing: 8, 9, 10 June 2016, 15, 16, 17 March 2017
Date
of Judgment: 28 July 2017