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[2015] ZAGPPHC 353
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Nuco Auctioneers (Pty) Ltd v Axis House (Pty) Ltd (38968/2012) [2015] ZAGPPHC 353 (20 May 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
38968 / 2012
DATE: 20 MAY 2015
In the matter
between:
NUCO AUCTIONEERS
(PTY)
LTD
...........................................................................................
PLAINTIFF
AND
AXIS HOUSE (PTY)
LTD
.........................................................................................................
DEFENDANT
JUDGMENT
MAVUNDLA, J.
[1]
The plaintiff is conducting,
inter
alia,
the
business of road transportation of goods. The defendant is an agent
conducting, among others, the business of import and export
of goods.
[2]
The plaintiff is suing the defendant for payment of a total amount of
R319 816. 09, allegedly being for direct, necessary and
essential
costs required to ensure that certain chemical goods are placed in
safe storage, to ensure their preservation and protection
from
elements preserved, and to ensure the protection of the general
public from the chemicals, and to specifically prevent damage
and
theft thereof for the two loads of goods respectively since 17
November 2011 and 18 November 2011
.
[3] The plaintiff
called two witnesses, namely Mr Ben Kruger and Mr Babalo Xodwa.
Kruger represented the plaintiff in the conclusion
of an oral
agreement with Refentse Logistics, represented by Mr Babalo Xodwa in
terms of which Plaintiff was to carry goods by
road transport,
including two loads of Sodium Metabisulphate ("the goods")
from Gauteng to Mutanda Mine, Katanga Province,
Democratic Republic
of Congo.
[4] After both the
two aforesaid witnesses testified, the plaintiff closed its case. An
application for absolution was brought on
behalf of the defendant.
[5] From the
evidence of Kruger and Xodwa the salient facts that emerged are the
following:
5.1 During November
2011 an oral agreement was concluded between plaintiff, represented
by Kruger and Refenste Logistics represented
by Xodwa, in terms of
which plaintiff was to carry goods by road transport, including two
of two truckloads of Sodium Metabisulphate
("the goods")
from Gauteng to Mutanda Mine, Katanga Province, Democratic Republic
of Congo.
5.2
The terms of the agreement were,
inter
alia,
that:
i. R54 000. 00 per
load would be paid, 50% thereof payable by the day of collection of
the goods and the remainder payable on delivery
of the goods in DRC.
ii. a further two
days standing time at a rate of R4000. 00 per day per at the border
and one day off loading respectively.
iii. that the
plaintiffs truck and trailer will be at Lefarge Lichtenburg on the
agreed loading day.
5.3 Xodwa through
Refentse Logistics was involved in the transporting industry, as a
brokerage. During the conclusion of the oral
agreement and during
subsequent interactions between the plaintiff and Refentse Logistics,
Xodwa never divulged to Kruger who his
client was, a fact conceded by
Kruger.
5.4
Xodwa too, did not know who the owner
of
the
goods to be transported was,because he sourced the information of the
cross border transportation to DRC from another agent,
namely Thomas
and or Magied Logistics. Where there are multiple agents, none of the
agents in the chain reveals who his client
is for fear of losing the
client to the other agents. Similarly too, Thomas never revealed to
Xodwa who the owner of the goods
was. If there were payments outside
the contract, Xodwa would source money from Thomas and after receipt
of payment from the latter,
would after taking his commission, pay to
the plaintiff.
5.5 Kruger conceded
that the plaintiff did not contract with the defendant. The plaintiff
at all relevant times was invoicing Refentse
Logistic. As a matter of
fact, the evidence of both Kruger and Xodwa reveals that the relevant
documentation, to enable cross border
transportation of the freight
destined to DRC as well as payment, was to be made by Refentse
Logistics. Kruger also conceded that
reimbursement was to be made by
Refentse, as the party contracted with, and not any other third
party. The plaintiff was at all
relevant times invoicing Refentse.
5.6 The two loads of
sodium were picked up by the plaintiffs trucks from Boksburg and
brought to the plaintiffs yard, while awaiting
payment of the 50%
deposit on the agreed amount.
5.7 Refentese failed
to either effect the deposit or provide the relevant documentation,
resulting on a delay of 7 (seven) days
for one truck and 8 (eight)
days for the other truck from 17 and 18 November respectively.
5.8 While waiting
for payment and documentation, the trucks waited at Nuco's premises.
After it was determined that the freight
consisted of sodium, it was
decided by the plaintiff to have the trucks moved to Meyerton at
Dewaldt and Ettienne Nienaber for
safe storage at a cost of R25 800
inclusive VAT per month from November 2011 to March 2012, R34 533
inclusive VAT per month from
April to June 2012 thus totalling
storage costs in an amount of R267 429.60.
5.9 The initial
intention of the plaintiff in keeping the consignment was to sell it
to recover its loss. Later the consignment
was analysed and when it
was found that it was sodium, a safe storage was sought as the
plaintiff suspected that it is harmful.
5.10 Under cross
examination Kruger conceded that he could have returned the
consignment to where he originally picked it up from,
as early as in
December 2011, and by so doing avoided storage charges. He, however,
wanted to keep the consignment as a bargaining
tool to induce payment
of what was owed to plaintiff by Refentse. He was, however, unable to
refute the proposition put to him
that the storage charges referred
to herein above were exorbitant. He also conceded that there was no
agreement between plaintiff
and Refentse or McGee regarding the
storage charges.
5. 11 At a certain
point there was a delay in receiving money from Thomas, consequently
Xodwa ended up passing the details of Thomas
to the plaintiff so that
the latter can call for the payment direct from Thomas.
5.12 According to
Kruger, prior to the sodium freight agreement, the plaintiff had
transported three loads of cement (25 tons) from
Lichtenburg to
Motande Mine in DRC, on contract with Refentse, for the price of R54.
000. 00 per load. The plaintiff was paid at
a later stage for the
cement an amount of R54 000, paid by Refentse, and R27 000 by McGee.
5.13 Kruger conceded
that he was subsequently approached by one Thomas of McGee Logistics,
also a transport broker, with arrangements
for payment for stock
belonging to the defendant to be transported to DRC on urgent basis
during January 2012.
5.14 Kruger further
conceded that he did not know from whom the payment he received was,
but allocated the payment from McGee Logistics
to the Refentse cement
load outstanding account.
[6]
With regard to an absolution application from the instance, the
courts have set out the test to be applied. The question to
be asked
is '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...'
Vide
Claude Neon Lights (SCA) Ltd v Daniel
1
a
pproved
by the
Supreme
Court of Appeal
in
Gordon Lloyd Page
& Associates v Riever and Another
2
.
[7]
It brooks no argument that the plaintiff bears the
onus
of
proving its case. In my view, the concession made by Mr Kruger that
the plaintiff contracted with Refentse and not with the defendant
is
fatal to the plaintiffs case in respect of what was owed to it,
coupled with the confusion on its part in crediting what was
paid by
McGee to Refentse account. In my view, a reasonable court faced with
such concessions, will find against the plaintiff
in regard to the
claim relating to the standing charges of 7 and 8 days. An absolution
from the instance in respect of this claim
should be granted.
[8]
In respect of the claim for storage charges, the concession by Kruger
that he could have avoided the storage charges by simply
returning
the consignment to where he picked it up from, demonstrate, in my
view, that the plaintiff is unable to prove that the
storage charges
were in fact necessary and reasonable and could not be avoided. The
fact that he was unable to refute that the
storage charges were
exorbitant, is in my view, telling against him in discharging the
onus
resting
on the plaintiff to show that such costs were reasonable and
necessary. Further, there was no expert evidence to show what
the
consequences of keeping the sodium consignment and under what
conditions were, to show that it was reasonable and necessary
to keep
the goods at the storage, and what adverse effects would have been in
not having done so. Further, the fact that plaintiff
kept the
consignment to exhort payment, when it could have simply issued
summons for the monies owed to it, demonstrate in my view
that the
plaintiff acted
mala
fide
and
was driven not by necessity but self-aggrandizement. Even if
plaintiff is so driven, he would nonetheless have an action against
the defendant were he to show that the expenses were necessary and
reasonable, which, in my view the plaintiff has failed to prove.
There is no evidence that such storage costs were unavoidable. There
is also no expert evidence to show that, but for the storage,
the
consignment would have devalued, or has appreciated in value, as the
result of the storage, and that the defendant has consequentially
been unduly enriched. In my view, a reasonable court looking at all
these facts, will find that the plaintiff has failed to discharge
the
onus
resting
on it, to show that these storage costs were necessarily and
reasonably incurred, and that the defendant was unduly enriched.
[9] In the result I
am of the view that the application for absolution from the instance
was well taken and therefore the absolution
from the instances is
granted and the plaintiffs action is dismissed with costs.
N.M.MAVUNDLA
Date of Hearing:
02/09/2014
Date of Judgment:
20/05/2015
PLAINTIFF'S
ATTORNEYS : VAN GREUNEN & ASSOCIATES
PLAINTIFF'S ADVOCATE
: ADV J C KLOPPER
DEFENDANT'S
ATTORNEYS: LOUIS GISHEN & ASSOCIATES
DEFENDANT'S ADVOCATE
: ADV A C BOTHA
1
1976 (4) SA 403
(A) at 403G-H.
2
2001
SA 88
(SCA) at 92E-93A.