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[2013] ZAKZPHC 47
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Oosthuizen v Famous Pacific Shipping CC (AR 110/13) [2013] ZAKZPHC 47 (1 October 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
APPEAL
CASE NO: ARI10/13
DURBAN
CASE NO : 9427/2011
In
the matter between:
LEIGH-ANN
OOSTHUIS
...........................................................
Appellant
(Defendant
in the Court a quo)
and
FAMOUS
PACIFIC SHIPPING CC
..........................................
Respondent
(Plaintiff
in the Court a quo)
JUDGMENT
NTSHANGASE
J
Introduction
[1]
This is an appeal against the following judgment of the Magistrate’s
Court Durban :
‘
Judgment
is granted against the defendant as follows:
1.
Payment of the sum of R20 070;
2.
Interest thereon at the rate of 15.5% per annum from 23 March 2011 to
date of payment;
3.
Costs of suit.’
[2]
For convenience in what follows the appellant and respondent will be
referred to as defendant and plaintiff respectively as
they were in
the trial court.
[3]
By reason of the peculiar pagination of the record in this case where
papers bear two numbers, both numbers on the papers will
be quoted in
this judgment when reference to specific pages is made. The typed
record of proceedings refers to one of the two numbers
as a page
number. The Magistrate’s judgment refers to such numbers as
exhibit numbers.
[4]
The plaintiffs case as pleaded in the trial court is that the
defendant negligently, alternatively intentionally removed from
a
rail list and diverted three containers for merchant road haulage
contrary to the plaintiffs client’s instruction in consequence
whereof the plaintiff suffered damages in an increased amount of R20
070 as cost for storage pending onward transportation of such
containers by merchant road haulage and ‘the change of the
manner of transportation.’
[5]
The defendant, while admitting that she removed from the rail list
and diverted such three containers for merchant road haulage,
denied
liability and put the plaintiff to the proof of its allegations. The
presiding Magistrate found her to be liable.
[6]
It is common cause that the business of the plaintiff included the
facilitation of conveyance of cargo from Durban to its ultimate
destination. It is also common cause that the defendant was an
employee of the plaintiff at the time of her impugned conduct. She
resigned on 23 August 2010 as reflects at page 50/55.
[7]
On the issue in contention Ms Renelle Sharon Mariah [Renelle], an
import supervisor under whom the defendant worked testified
that she
was responsible for ensuring that all imports received by the
plaintiff were handled according to the clients’ instructions
and. relevant to this matter, with regard their conveyance to their
ultimate destinations.
Jacqueline
Etschmaier (Jacqueline) was the managing member of the plaintiff.
A
summary of the versions of the parties
[8]
I deal with the handling of the matter of the containers in question
as per Renelle and with the defendant’s response
thereto.
At
page 39/44 is an e-mail from the plaintiffs client Customs Services
(Pty) Ltd with the date and time 23 August 2010 : 11.10 AM
with
instructions -
‘
Containers
to move via rail to Johannesburg.'
It
reflects container numbers CAIU 2595466, KKTU 7931923 and KKTU
7657453.
It
is the numbers of the containers which are the subject of the present
matter.
It
is addressed to Renelle.
[9]
Renelle stated that once the e-mail was received she ‘printed
it out and (she) handed the e-mail to Leigh-Ann, ’
the
defendant who was in possession of the file. Renelle told the court
that as she handed over the e-mail to the defendant she
said to the
defendant -
“
Please
action it accordingly" and she said okay and she took it from me
and she went on with her job.’
[10]
At page 45/50 is an ‘SOB and Redirection form' which “K-Line"
sent to tire plaintiff. Once completed the defendant
was to e-mail it
back to the line. It was completed by the defendant in long hand. It
bears a tick mark in the block against which
a line reads -
:
(i.e. take container off the rail list, use your own transport)’
This
is in answer to the question on the same line... : ‘
Do
you then require merchant haulage.'
The
SOB and Redirection form reflects the same container numbers as
reflected at page 39/44 which is the e-mail beating the client’s
instructions that the containers were to be moved via rail to
Johannesburg.
The
contact person on the SOB and Redirection form is reflected as ‘Leigh
Ann’.
[11]
At page 42/47 is an e-mail with date and time 23 August 2010 : 12.50
PM from the defendant which reads -
‘
Attached
please find indemnity for removal of the above containers off the
rail list for merchant road haulage.’
It
bears the numbers of tire three containers, which are subject of this
matter. The three container numbers reflect on the document
at pages
43/48 and 44/49 which, according to Renelle, were attached to the
document at page 42/47. Page 44/49 bears the name ‘Leigh
- Ann
5
and next to the client’s name stamp, is what Renelle presumably
referred to as being the signature of the defendant. It is
the
defendant's
ini
tial.
[12]
In a summary of events which is at pages 37/42 and 38/43 prepared by
Renelle. which she confirmed in her testimony, she pointed
to the
fact that she had looked at the file and seen that the instruction
that had been addressed to her and handed over to the
defendant on 23
August 2010 was not in what she referred to as the ‘master
sub-file' where it should have been with defendant's
correspondence
to “K -Line”. It was in what she referred to as the ‘LCL
sub-file.’
[13]
She testified that she had telephoned the defendant and explained to
her what had happened. She told her that there was no
instruction to
remove the containers off the rail list to which, the defendant, in
response, stated that there were in fact three
containers to be
removed off the rail list. She informed the defendant that there were
no e-mails with such instructions. She invited
the defendant to come
to the office to view the files. Hie defendant promised that she
would, in the company of her mother. When
her mother subsequently
telephoned Renelle to enquire as to what had happened, Renelle
explained to her what had happened and invited
her to join the
defendant to the office to view the files. The defendant’s
mother declined the invitation and said the defendant
was being
‘framed’, whereupon Renelle invited them ‘to bring
in (their) own specialist to view all (their) pc’s.
servers,
material, whatever (they) had on hand’. She testified that both
failed to take up the invitation.
[14]
Cross-examined on the significance to be attached to ‘Remove
off rail list’ and ‘Remove off rail’ engraved
on
documents 1 and 2 at pages 29 and 30 respectively Renelle’s
explanation was as follows :
‘
No,
although it's written “remove off rail list,” it is
pre-written, pre-prepared. It's only when an instruction is
handed
over from the client do you act on instruction. So even though it’s
written there, it doesn't mean it had to be removed
off the rail
list.'
She
said this applied to the case of the specific client Customs Sendees
and, the defendant not being a trainee but a controller,
‘would
have known that the client would remove or wouldn’t remove off
the rail list and that files are pre-prepared,’
and also
‘because she trained to know it.’
[15]
It was further put to Renelle as defendant’s instructions that
when she was given the two files the tops whereof were
engraved with
instructions to remove off the rail list, she had not dealt with
‘Shanghai’ before. This, Renelle disputed.
[16]
Renelle was referred to the client’s instructions at pages
39/44 and 41/46 :
‘
If
this e-mail is not for you, piease kindly pass on to the correct
person and cc me in.’
Renelle
conceded that the client had specifically required her to ‘cc
(it) in’ and she did not do it.
As
to why she did not comply with the client's instruction what purports
to be her explanation is lost to ‘inaudibles’
in the
transcript of her following recorded response :
‘
When
it comes to e-mails, the reason why I didn’t forward it on to
Leigh-Ann because Pm ... [ inaudible] I’m directly
...
[Inaudible] another copy to myself.’
[17]
Renelle insisted that the defendant received the relevant files
before 23 August 2010 and that she received the e-mails on
23 August
2010; if she had not, she would not have sent an e-mail to “K-Line”
on 23 August 2010.
[18]
Jacqueline explained the procedure followed in handling shipment
matters; in particular she explained the pre-capturing or
pre-preparation process as being necessitated by need to cope with
high volumes of work which was to be executed within time
constraints.
What was pre-captured on files was drawn from the bill
of lading. “Remove off the rail list" would be
pre-engraved at
tire beginning of the process in respect of the
client in this matter as the client’s instructions were in 90%
of the cases
for removal off the rail list as ‘the norm.’
This was confirmed by Renelle in her testimony. She had pre-captured
the
files in question. The data was pre-captured ahead of time and
when the arrival notification is received from the shipping line,
the
person responsible takes over and has to fully activate the file and
adjust in terms of the client’s requirements which
differ from
shipment to shipment. She explained that in the pre-capture procedure
they ‘go on what the previous history shows.
When the arrival
notification comes in or they change their minds and send an
instruction, you then have to amend your files there
and then."
Jacqueline
further explained that if the instruction is to leave it on the rail
list what is done is either to ‘tipp-ex
:
“remove off rail list” or to complete a new file and
recapture all the information.
[19]
As did Renelle, Jacqueline disputed that the defendant was not aware
of the standing procedural instructions which pertained
to the
pre-preparation of files. Jacqueline testified that ‘(her)
staff are trained A to Z; they have to have the ability
to take on
the work of any staff member... in the imports department/ She as did
Renelle, disputed that the defendant had not,
before, handled
Shanghai. She stated that she had personally assigned Shanghai to the
defendant as her trade lane and that she
had handled that trade lane
for about two months until the point of her departure: and. that is
why the ‘indemnities’
were in the defendant’s
handwriting on the shipments from Shanghai which are in question in
this matter. She stated that
the same rules and principles applied
whether the shipments were from Taiwan, Shanghai or India as to how
the files were handled.
[20]
The defendant insisted in her denial that she was handling Shanghai.
She stated that the Shanghai file was handed to her on
23 August
2010.
[21]
In. regard to the removal of the containers off the rail list she
stated that she acted on instructions from Renelle. In regard
to the
inscription “remove off the rail list” on the file cover,
she said she was not aware that the client in question
in this matter
predominantly, to the extent of 90%, moved its containers off the
rail list for cartage to Johannesburg and that
by reason thereof the
client’s files were, in pre-preparation, endorsed “remove
off the rail list."
[22]
She stated that although she resigned on 23 August 2010 she had
continued to work within the period of her notice. On 15 September
2010 she had reported late for work because of a personal problem
which she failed to disclose, in consequence whereof she was
dismissed from employment the following day, the 16
th
September 2010, she received a call from Renelle who told her that
there was a mistake on the file she had handled. It is the file
in
question in this matter. She did state that she was invited to come
and view the documents. She had undertaken to discuss the
matter with
her mother and indicated that they would call at work to view the
documents.
The
evaluation of the evidence before the trial court
[23]
This case turns on the alleged failure of the defendant to act in
terms of the plaintiff’s client’s e-mail at page
39/44
dated 23 August 2010 which required the containers to be moved to
Johannesburg by rail cartage and which Renelle stated she
gave to her
on the same date. Pitted against Renelle \s testimony is the
defendant’s insistence that she was not given the
e- mails. In
her testimony she stated that Renelle had written on the top of the
file in bold black to ‘remove off the rail
list.’ She
stated -
‘
1
was told by Renelle verbally to remove the two files’
containers off the rail list.’
She
also stated -
‘
I
took her instructions because she is my superior and 1 should listen
to what she used to instruct me to do.’
But
when questioned -
‘
So
then you did not actually open the file and fook in it?’
Her
response which shows that she did not in fact act on oral
instructions from Renelle was - ‘
1
did look in the file.’
[24]
The probability of the defendant's version is assailed by the failure
to challenge Renelle
5
s
testimony to the effect that when the defendant returned her call,
upon being given a detailed explanation of what had happened,
she
(the defendant) had -
‘
insisted
that there was an e-mail to remove these three containers off the
rail list’
She
also said :
‘
No,
there is and its in the File.’
Renelle
said this was the defendant's response when she (Renelle) said there
was no instruction in the file for the removal of the
containers off
the rail list.
What
also tends to belie her version is that when it was put to her that
the trigger was an instruction from the client, but that
she did not
look for that she in response stated -
‘
1
did look for that in the file but that was not inside the file at the
time I was there. ’
If
she had acted on the instructions of her superior Renelle. and in
terms of the inscription on the file cover, she would have
had no
reason to look for the instruction inside the file. The defendant
proffered no satisfactory explanation as to why she still
found need
to look for an instruction inside the file.
[25]
The fact that the defendant looked in the file for the client's
instruction despite the fact that the file cover was endorsed
‘remove
off the rail list’ appears to be an unequivocal acknowledgment
and concession that what prevails is the client’s
instruction
as the trigger for the action to be taken with regard to the cartage
of the containers. This defeats her stated ostensible
reliance on the
file cover instruction and the alleged oral instruction from her
superior, Renelle.
[26]
The defendant fell short of disputing that the files are pre-prepared
and that the data is pre-captured ahead of time pending
notification
from the shipping line and that adjustments are made to meet the
requirements of the client as to how the cargo was
to be transported.
The
defendant put her response no higher than that she had no knowledge
that for the particular client 90% of their instruction
was to remove
off the rail list and also that she was not aware of the pre-existing
procedure applied in respect of the plaintiffs
VIP client concerned.
[27]
Some telling concessions eroded the probability of the version of the
defendant in her answers under cross-examination as reflects
hereunder:
‘
You
have dealt with these kind of files for quite a while. ] am correct
that the trigger for when things really start happening
is when you
receive something from a client, is that correct? ...
Yes’
Note
also the defendant’s answer in what follows -
‘
And
you know that, well it was not challenged that you had until roughly
1 September on the three containers to send out the remove
off rail
request? Renelle gave that evidence ... Yes, that is correct. 72
hours prior ,.. ’
Renelle
had. in that regard stated -
‘
(T)he
shipping lines’ rule is that all removal off the rail list has
to be submitted 72 hours before the vessels’ ETA.
[i.e.
expected time of arrival]’
The
defendant was questioned -
‘
So
why action it on the 23
rd
?’
Her
answer was wholly unacceptable. What she said would violate the
shipping lines’ rule. She said -
‘
Because
sometimes you get busy and you forget to do certain things, so you
... [inaudible] as soon as you get an instruction you
send it out.’
The
expected time of arrival of the vessel with the three containers was
5 September 2010. The rule is that all removals off the
rail have to
be submitted 72 hours before the expected time of arrival of the
vessel.
[28]
The presiding Magistrate’s observation that ‘the timing
of the e-mail ties in with the time that the defendant
says she
received the file and canned out the action,’ is, in my view,
fully justified. Renelle received the first instruction
at page 39/44
for containers to move via
rail
to Johannesburg as sent to her on 23 August 2010 at 11:10 AM. It
pertains to the three containers in question. She received the
second
instruction at page 41/46 from the same client which was for removal
of a container off the rail list as sent to her on
23 August 2010 at
11:31
AM.
Her undisputed evidence was that once the e-mail was received she
printed it. The defendant significantly sent the first received
instruction (wrongly) on the same date - on 23 August 2010 at 12:50
PM and the second received instruction (correctly) also on
the same
date ~ on 23 August 2010 at 12:58 PM.
[29]
The trial court was. in my view, correct in rejecting the version of
the defendant that she had not handled the Shanghai lane.
In my view
she was untruthful on this aspect. The defendant was a poor witness.
She initially admitted that she had signed a ‘release
letter'
at page 36/41 on 18 August 2010. When she was confronted with this as
disproving that she had not handled Shanghai before
23 August 2010,
she somersaulted as follows :
‘
1
was thinking now. If I only invoiced on
2
September,
the release letters are printed on after we have invoiced the file.
So 1 could not have signed for this on 18 August.’
She
contradicted herself in her evidence also on the aspect surrounding
instructions allegedly from Renelle with regard to the removal
of the
containers off the rail list. When she was asked -
‘
Mow.
did you do anything more than that or did you just accept those
instructions?’
Her
response earlier quoted was -
‘
1
did not look for that in the file but that was not inside the file at
the time I was there.’
So,
she did after all do something more than her professed compliance
with Renelle’s instruction. Not only does it beg the
question
as to why she needed to look for the client’s instruction on
tire file if hers was simply to comply with instructions
allegedly
given by her superior Renelle, it also establishes her knowledge of
the client’s instruction as the sole trigger
for the action to
be taken with regard to the cartage of containers, whether it be via
rail or off rail.
[30]
It is noteworthy that the defendant spumed the invitation by Renelle
on 16 September 2010 to view the documents concerned to
satisfy
herself with regard to the handling of the matter of the containers
in question. This is inconsistent with innocence. One
would have
expected her to seize the opportunity to prove Renelle wrong. She
instead sought refuge, as she was of course entitled
to do, in legal
representation.
[31]
She also spurned an offer to pay R4000 only. An endeavour to fully
canvas this under cross-examination was stifled by her legal
representative’s intervention. When Mr Boulle for the plaintiff
enquired from the defendant whether she recalled that her
attorney
had put to one of the witnesses in cross-examination that she had
declined on principle to accept the offer to pay R4000
only. Mr Peart
on, for the defendant intervening stated-
‘
Sorry
I don’t recall it.’
He
suggested that Mr Boulle might be mistaking a discussion outside
court. In the face of this persistence Mr Boulle, who insisted
that
he specifically recalled it. felt compelled not to pursue his
cross-examination. He was correct. As reflects at page 190 of
the
record Mr Pearton had, in fact, in cross-examination of the
plaintiffs witness Renelle state-
l
So
my instructions are and once again, and this is the reason why she
has refused to pay all the time right from inception; she
could have
got away with four grand; she could have paid R4000 but on principle
she said “I am not. Its not my mistake. It
was Reneile’s
mistake ...”
I
find, as did the presiding Magistrate, that it was her mistake. It
was a mistake bom of negligence.
I
pause here to state that unwarranted and sometimes unduly protective
interventions during cross-examination tend to defeat the
purpose of
cross-examination and may quite often render it ineffective.
[32]
In all the circumstances I am of the view that the presiding
Magistrate, who gave cogent reasons for his decision on this matter,
was not wrong. This precludes interference by tliis court. The appeal
cannot succeed.
The
order
The
appeal is dismissed with costs.
SISHI
J
I
agree
Appearances:
For
the Appellant: M Bingham
Instructed
by: Thorpe and Hands Inc,
c/o
Austen Smith
For
the Respondent: A J Boulle
Instructed
by: Norton Rose
3
Pencarrow Cresent
La
Lucia Ridge
Durban