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[2010] ZAFSHC 126
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Sand Van Heerden (Edms) Bpk v PROBOU (A29/2010) [2010] ZAFSHC 126 (23 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: A29/2010
In the matter between:
SAND VAN HEERDEN
(EDMS) BPK
…...................................
Appellant
and
PROBOU
…...........................................................................
Respondent
CORAM:
RAMPAI, J
et
KRUGER, J
_____________________________________________________
JUDGMENT BY
:
RAMPAI, J
et
KRUGER, J
_____________________________________________________
HEARD ON:
13 SEPTEMBER 2010
_____________________________________________________
DELIVERED ON
:
23 SEPTEMBER 2010
_____________________________________________________
[1] This is an appeal
from the magistrate’s court at Kroonstad. The respondent sued
the appellant for the delivery of 905,8m³
of sand, alternatively
for the payment of the sum of R90 051,20. On 22 October 2009 judgment
was granted in favour of the respondent.
Against that judgment, the
appellant came on appeal. The respondent opposed the appeal.
[2] In its particulars of
claim the respondent alleged that it purchased sand at Kroonstad from
the appellant during the period
stretching from 1998 until 2006. In
response to the appellant’s request for further particulars,
the respondent furnished
the appellant with details of various
purchases it made during that period. It tabulated four different
sand products it purchased,
namely: plastering sand, medium sand,
building sand and garden soil. The respondent furnished details such
as the product ordered,
the quantity thereof, the order number and
the date of each transaction. However, the required price in respect
of each sand product
so purchased was not furnished. The respondent’s
explanation was that it no longer had copies of the delivery notes
for the
relevant period.
[3] The appellant
requested the respondent to state the price the respondent paid to
the appellant per cubic metre of each sand
product and to explain how
the claim of R103 312,00 was made up and calculated. The respondent
answered that such prices fluctuated
from time to time over the years
during the period under consideration. The respondent then proceeded
to use the ‘values’
per cubic metre in respect of the
different sand products to explain how its claim was calculated and
made up. The alleged product
deficits were multiplied by the alleged
values. The products were then added up. The result of the
mathematical operation was R90
051,20 instead of R104 312,00. Such an
amount represented a 20% shortfall of the total sand the respondent
had ordered and paid
for which the appellant did not deliver during
the eight year period.
[4] In the appellant’s
pleadings the appellant denied the respondent’s claim as
amplified by the further particulars.
The appellant specifically
denied: firstly, that any sand load it delivered to the respondent
was 20% less than the 4 529m³,
quantity the respondent had
ordered; secondly the extent of the shortage, if any, thirdly the
price or rather the value of the
shortfall; and fourth the quantum of
the respondent’s alleged claim of R104 312,000 (R90 051,20).
[5] The appellant also
raised a special plea of prescription as an alternative defence. The
essence thereof was that if the court
should uphold the respondent’s
main claim by finding that the appellant had actually supplied less
sand quantity than the
respondent had ordered and paid for, which
allegation the appellant denied, then in that event, the appellant
pleaded that the
respondent’s claim had prescribed in terms of
words the provisions of the
Prescription Act, No. 68 of 1969
as
amended.
[6] The version of the
respondent was narrated by one witness, namely Mr E L Stoltz, the
proprietor of the business enterprise.
He testified that during May
2005 he realised that the resale of sand was not generating as much
income as he was expecting. Such
dwindling profit margins made him
suspect that there was something wrong somewhere. He started to
investigate.
[7] On 25 May 2006 he
ordered two loads of 3m³ each. The appellant was supposed to
deliver 2 x 3m³ = 6m³. The two
loads were off-loaded on a
concrete slab in the respondent’s yard. Two months later he
measured each load delivered. He established
that the appellant had
actually delivered 5m³ (2 x 2.5m³) instead of 6m³. The
shortage of 0,5m³ = 2,5m³
÷ 3,0m³ x 100% = 20%
per load of sand. That was the first test.
[8] On 25 July 2006 he
ordered 10m³ sand. The sand was delivered to his client, a
certain Mr Saaiman, where it was off-loaded
on 25 July 2006. The
respondent drove there. He owned a 3m³ truck. He then caused the
sand to be loaded on and off his truck.
On the first occasion, his
truck was fully filled up with a 3m³ sand. So also on the second
occasion. On the third occasion,
the remaining sand was not enough to
fill the truck. The third load was only 2m³. Instead of 10m³,
he discovered that
the appellant had only delivered 8m³. The
deficit of 2m³ (10m³ minus 8m³) was equal to 2m³
÷ 10m³
x 100 % = 20% shortage.
[9] Still on 25 July 2006
Mr A van Heerden Jr came over to respondent’s premises. They
measured the carrying capacity of the
respondent’s Iveco truck.
They were agreed that it was a 3m³ truck. However, none of the
appellant’s trucks were
ever measured by the respondent.
Although they were not measured, they were fully loaded whenever they
were off-loaded on the respondent’s
yard.
[10] The appellant used
three trucks to deliver sand to the respondent. Those were BBG868FS
with an alleged carrying capacity of
3m³; BYL378FS with an
alleged carrying capacity of 3m³ and BFB795FS with an alleged
carrying capacity of 6m³. But
the actual carrying capacities of
the trucks were smaller than they were supposed to be. That concluded
the respondent’s
evidence.
[11] The appellant called
two witnesses, Mr Jordaan an engineer, and Mr Van Heerden Snr, the
director of the appellant company.
The engineer testified that he
measured the volume of appellant’s three trucks, by loading
them level. The 6 cubic metre
truck, BFB795FS measured 6,03m³.
The capacity of BBG868FS was 2,91m³, and that of DYC378FS
3,07m³. These facts were
confirmed in cross-examination. This
means that the capacity of the two 3 cubic metre trucks, calculated
jointly, was 5,98m³,
and on average 2,99m³. Bearing in mind
that the 6 metre truck took more that 6 metres, and not knowing which
trucks were used
for the loads over the 8 year period, and how often
each truck was used, there is a chance, if not a probability that too
much
sand was delivered. Jordaan also stated that if sand was
off-loaded and then loaded again, some of the sand which was
off-loaded
could have been be lost. Capacity can also be relevant to
volume.
[12] Van Heerden
testified that the respondent was supposed to pay cash for the sand,
but fell into arrears. Then the respondent,
after five or six years,
alleged that there was a shortfall in delivering after having
measured two loads. Van Heerden testified
that there were always
persons who supervised the workers when the trucks were loaded to
ensure that they were loaded with the
sand level at the top. The
appellant received the respondent’s first complaint at a stage
when the respondent was five to
six months in arrears with his
payments. The person who received the sand on behalf of the
respondent, one Saayman, never complained
to appellant about the
alleged short delivery.
[13] The magistrate found
that the respondent’s witness, Mr Stoltz, was a very good
witness who presented his case coherently
and with certainty. The
magistrate mentioned that Stolz could possibly be criticized for
waiting so long before he complained.
The magistrate pointed out that
the evidence of Jordaan, the engineer, was never really in dispute.
As to the appellant’s
witness, Van Heerden, the magistrate
found him a poor witness who adapted his version. The magistrate
referred in particular to
Van Heerden’s evidence regarding the
capacities of the trucks and weight of a cubic metre of sand.
[14] In Mr De Wet’s
heads of argument the point is made that the magistrate’s
conclusion is the most plausible explanation
on the facts. The
delivered sand did not generate the required profits. As a result of
the respondent’s measurements of the
trucks, the inference
could be drawn that too little sand was delivered. Mr De Wet points
out that two loads of sand which were
directly delivered to Saayman
in his personal capacity measured only 2,5m³ when re-loaded.
[15] Mr Claassen, on
behalf of appellant, pointed out that the respondent never indicated
how it arrived at the claimed “average
price” of R100.
Three types of sand which were delivered over an eight-year period,
during which prices changed, were involved.
The respondent relied for
its claim of short delivery on the test of only two loads of sand
which were actually measured. The respondent
relies on a photograph
of one of appellant’s trucks which was taken from a distance of
100 metres. There were three compartments
on the truck, and on
respondent’s own version the loads were 85,216%, which on
respondent’s own version, is less than
the 20% shortfall for
which the respondent got judgment.
[16] The second
measurement on which the respondent relied was done in respect of
sand which had been off-loaded two months previously.
Mr Claassen
points out that according to the respondent, the appellant’
s 6
ton truck had a capacity of 5,5 tons. This is a shortfall of 8%, not
20% for which respondent got judgment. According to the further
particulars about all the loads were transported on the 6 ton truck.
[17] According to Mr
Claassen the crux of this case is the volume of the three trucks. The
respondent never measured the volume
(capacity) of appellant’s
three trucks. Appellant called an engineer who measured the trucks:
BFB – 6m = 6,039m³
BBG – 3m = 2,91m³
DYC – 3m = 3,07m³
[18] Thus only one truck
was under capacity, and one does not know which trucks were used on
which occasions. Over an eight-year
period one would expect that the
lesser loads were cancelled out by the greater loads delivered on the
two trucks with excessive
capacity.
[19] The appellant
testified that the trucks were always loaded “flat”, i.e.
level with the top of the side of the truck.
The sand was combed to
be level. Mr Claasen submits that the respondent’s claim calls
for exact measurement, not the probabilities
or credibility. The
magistrate should have ordered absolution.
[20] The issue in this
appeal is whether the respondent proved its case on preponderance of
probabilities.
[21] The onus was on the
respondent to prove that over an eight- year period it had received
20% less sand than it had paid for.
The respondent also had to prove
the price it paid, with reasonable certainly. It did not. Instead it
wrongly relied on ‘values’
which were not even verified
by an expert.
[22] Prescription is
raised as a defence for part of respondent’s claim. There was
no reason why the respondent could not
have become aware of its claim
sooner. The appellant did not hide anything. The respondent should be
assessed according to the
normal knowledge and know-how of a
reasonable person in his position –
DRENNAN MAUD &
PARTNERS v PENNINGTON TOWN BOARD
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) 209F-
G. According to Mr De Wet’s calculations prescription, if
upheld, would extinguish R48 580,00 of the respondent’s
claim.
[23]
CONCLUSION
The respondent had to
prove its case. The respondent gave no satisfactory evidence as to
how the price of the four types of sand
over an eight-year period had
been calculated for purposes of its claim. As to the short-delivery,
the evidence does not prove
respondent’s claim of a consistent
shortfall of 20% over the entire period. Two of the trucks took more
than their stated
3 ton and 6 ton capacities. One 3 ton truck took
fractionally less. One does not know which trucks were used for which
loads. There
is a great deal of uncertainty about the respondent’s
claim. Absolution from the instance should have been granted.
[24]
Order
1. The appeal succeeds
with costs.
2. The magistrate’s
order is replaced with the following:
“
Absolution
from the instance with costs.”
________________
M. H. RAMPAI, J
_______________
A. KRUGER, J
On behalf of the
appellant: Adv. J. Y. Claassen SC
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of the
respondents: Adv. P. J. T. de Wet
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/eb