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[1985] ZASCA 60
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Compagnie Inter Africaine De Tranvaux, South African Branch v Abercom Africa (Pty) Ltd. (60/1984) [1985] ZASCA 60 (30 May 1985)
LL
Case No. 60/1984
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
COMPAGNIE INTER AFRICAINE DE
TRAVAUX SOUTH AFRICAN
BRANCH
Appellant
and
ABERCOM AFRICA (PROPRIETARY) LIMITED
t/a HTC TRANSPORT SERVICES
Respondent
CORAM
: KOTZé, CILLIé, HOEXTER, BOTHA et
GROSSKOPF JJA
HEARD
: 13 MAY 1985
DELIV
ERED: 30 MAY 1985
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
The appellant is the plaintiff and the respon= dent the defendant in an
action brought by the former against the latter in the Witwatersrand
Local
Division. To the appellant's particulars of claim, as amplified by further
particulars, the respondent took a number of exceptions
- eight in all. They
were heard by ESSELEN J, who made an order upholding all of them, with costs.
The appellant appeals against
that order, leave to do so having been granted
pursuant to a petition addressed to the Chief Justice.
In order to appreciate the issues raised by the exceptions it will be
necessary to quote extensively from the particulars of claim,
the request for
further parti= culars, the reply thereto, the written agreement between the
parties, a copy of which is annexed to
the further particulars, and the
exceptions themselves.
/The ...
3.
The appellant's particulars of claim, from
paragraph
3 onwards, read as follows:
"3. On or about 4 February 1981, the Plaintiff and the Defendant entered into
a written agreement ("the Agreement") in terms of which
the Defendant undertook
to supply, deliver and commission, inter alia,
5 MT 20
and
4 MT 10/12
trolley
locomotives ("the Locomotives") at the site of the Hex River railway tunnel,
Cape Province ("the Site") for a total consideration
of R824 886,04.
4. The Locomotives were delivered to the Site by the Defendant.
PLAINTIFF'S MAIN
CLAIM
5.1
It was a tacit term of the Agreement that the Locomotives would be
fit for the pur= pose for which they were intended, which was the
haulage of
underground muck wagons used at the Site in the construction of the Hex River
railway tunnel;
5.2
In breach of the said
tacit term, the Locomotives were unfit for the aforesaid purpose in that they
were unsuited to tun= nelling
conditions at the
Site.
6. The Agreement was concluded on the basis,
and it was within the contemplation of the parties, that if the Locomotives were
unfit
for the purpose for which they were intended, the Plaintiff would
suffer
/damages ...
4.
damages arising from expenses necessarily incurred by it in redesigning
components of the Locomotives, in reconstructing and in assisting
the Defendant
to reconstruct the Locomotives, in replacing or restruc= turing inadequately
designed components of the Locomotives,
in hiring substitute locomotives and in
increased operational costs of the Locomotives on the Site.
7. As a result of the unfitness of the Loco=
motives for the purpose for which they were intended, the Plaintiff -
7.1 became obliged to and did incur necessary
expenses in redesigning
components of the
Locomotives which were unsuitable for the
purpose for
which they were intended, in
rebuilding and in assisting the Defendant
to
rebuild the Locomotives, in replacing
or restructuring inadequately designed com= ponents of the Locomotives and in
assisting the Defendant to do so, in hiring or pur=
chasing substitute
locomotives and in in= creased operational costs of the Locomotives on the
site.
7.2 The said expenses are made up as follows -
7.2.1
Labour R209 513,00
7.2.2
Tools
and workshop facilities 15 000,00
7.2.3
Cranes 32 415,00
7.2.4
Transport 14 507,00
7.2.5
Specialists 67 530,00
7.2.6
Parts, consumables 113 854,00
7.2.7
Rental locos 322 500,00
7.2.8
Additional employees 157 950,00
R933
269,00 /8. ...
5.
8. In the premises, the Defendant is indebted
to the Plaintiff in the amount of R933 269,00.
PLAINTIFF'S FIRST ALTERNATIVE CLAIM
9. It was an express term of the Agreement
that -
9.1
The Defendant would serve
(
sic
) and repair the Locomotives, on Site, for a period of six months,
renewable for a further period of six months;
9.2
service was defined to mean preventive main= tenance according to
schedules supplied by the Defendant on delivery of the Locomotives,
and repairs
were defined to mean the repair or replacement of parts worn out due to fair
wear and tear and the repair of electrical
and
mechanical breakdowns to the Locomotives.
10. On a proper interpretation of the Agreement,
alternatively as a tacit
term thereof, such
servicing and repairs were to commence from the date of delivery,
alternatively the date of commissioning of each Locomotive.
11. It was a tacit term of the Agreement that
the servicing and repairing of the Locomotives would be done by the Defendant
in a workman= like manner so as to make the keep of
the Locomotives reasonably
operational.
11.2 It was within the contemplation of the par= ties to the Agreement, and
the Agreement was concluded on the basis, that if the
Defendant failed to
perform its aforesaid
/obligations ...
6.
obligations in terms of the Agreement, the Plaintiff would be obliged to
incur expense in servicing and repairing the Locomotives
itself.
12. The Defendant -
12.1
delivered the Locomotives
to the Site, al= ternatively, delivered the Locomotives to the Site and
commissioned each on or about the
date of delivery;
12.2
from the date of delivery and/or commis= sioning as aforesaid,
appointed and main= tained a serviceman on the Site to service and
repair the
Locomotives.
13. In breach of the tacit term alleged
in para=
graph 11.1 hereof, the Defendant failed to
either service or
repair the Locomotives in
a workmanlike manner, and the Locomotives
were
not made or kept reasonably operational.
14.1
As a result of the
Defendant's breach of the said term, the Plaintiff has suffered the damages
which are set out in paragraph 7.2
of the Plaintiff's Main
Claim.
14.2
Alternatively to
14.1
14.2.1 It was a tacit term of the Agreement
that if the Defendant failed to carry out its obligations to service and repair
the Loco=
motives on Site in a workmanlike manner, the Plaintiff would be
entitled itself to service and repair the Locomotives and to recover
the cost of
doing so from the Defendant.
/14.2.2 . ..
7.
14.2.2 The Defendant failed to carry out its
obligation to service and repair the Loco= motives on Site in a workmanlike
manner and the Plaintiff thereupon became entitled to,
and did, carry out such
servicing and effect such repairs itself, as a result of which it incurred the
expenses set out in paragraph
7.2 of the Plaintiff's Main Claim.
15. In the premises, the Defendant is indebted
to the Plaintiff in an
amount of R933 269,00.
PLAINTIFF'S SECOND ALTERNATIVE CLAIM
16.
The Plaintiff repeats
paragraph 9 of the Plaintiff's First Alternative
Claim.
17.
It was a further term of the
Agreement that -
17.1 repairs would be carried out
with assistance
from the Plaintiff's staff where necessary;
17.1 the Plaintiff would make reasonable work= shop facilities available on
Site with an adequate working area plus the use of basic
workshop equipment such
as welding, grind=
ing and drilling machines, and lifting equipment.
18. The Plaintiff, in compliance with its afore=
said obligations,
rendered assistance to
the Defendant and made reasonable
workshop
facilities available, but, in addition, at
the tacit request of
the Defendant or with
the Defendant's tacit approval rendered
services,
supplied goods and made facilities
available over and above that
contemplated
/by ...
8.
by the Agreement.
19. It was a term of the said request that
the Plaintiff would be entitled
to reason=
able remuneration for the services which
it rendered as aforesaid and the facilities which it made available and to
its usual price for the goods which it supplied over and
above what was
contemplated by the Agreement.
20.
The remuneration for the
services and the prices for the goods aforesaid were set out in paragraph 7.2 of
the Plaintiff's Main Claim.
21.
In the
premises, the Defendant is indebted
to
the Plaintiff in an amount of R933 269,00."
The relevant portions of the respondent's request for further particulars are
the following:
"1.
AD PARAGRAPH 3
(a) A copy of the agreement is required
(b)
2.
AD PARAGRAPH 4
(a) Precisely when is it alleged that the,
locomotives were delivered?
(b)
/3. ...
9.
3.
AD PARAGRAPH 5
(a) The Plaintiff is required to State the facts (not evidence) relied upon by
it for the allegation that the locomotives were unsuited
to tunnelling
conditions on site.
(b) In precisely what way is it alleged that the locomotives were unsuited to
tunnelling conditions at the site?
4.
AD
PARAGRAPH 7
(a) Precisely which components is it alleged had to be re-designed?
(b) How were such components re-designed? Full particulars are required.
(c) The Plaintiff is required to state why it was necessary to re-design each
com= ponent concerned.
(d) Is it intended to allege that each loco= motive had to be re-built?
(e) If sub-paragraph (d) above is answered in the negative, then the Plaintiff
is required to identify precisely which locomotives
had to be re-built.
(f) In relation to each locomotive which re=
quired rebuilding, the Plaintiff
is re=
quired to state precisely why it required rebuilding.
(g) with reference to each locomotive the
Plaintiff is required to state
which
components had to be replaced.
/(h) ...
10.
(h) With reference to each locomotive the Plaintiff is required to state which
component had to be restructured, the ambit of such
restructuring and the effect
of such restructuring.
(i) The Plaintiff is required to state pre= cisely on what facts (not evidence)
it relies for the allegation that the com= ponents
of the locomotives were
inade= quately designed.
(j) When, where and from whom and for
what
period were substitute locomotives hired?
(k) Pull particulars are required of the in= creased operational costs referred
to in this paragraph.
(1) Pull particulars are required as to
how
the sum of Rl67 125,00 for labour is made up, such particulars to include:
(i) To whom the amount was paid;
(ii) When and where the amount
was paid;
(iii) Precisely what work was done.
(m) Full particulars are required as to how the sum of R15 000,00 claimed for
tools and workshop facilities is made up, such particulars
to
include:
(i) When and where were such tools and workshop facilities utilized;
(ii) For what reason were such tools and workshop facilities utilized?
(iii) Precisely how were such tools and workshop facilities utilized
as
/alleged ...
11.
alleged by the Plaintiff?
(n) Pull particulars are required as to how the sum of R28 626,00 for cranes is
made up, such particulars to include:
(i) When and where were the alleged cranes utilized?
(ii) Precisely how were the cranes uti = lized in terms of the allegations
contained in Plaintiff's particulars of claim?
(iii) Precisely what work is it alleged was done by the
cranes?
(o) Pull particulars are required as to
how
the sum of R14 500,00 in respect of trans= port costs is made up, such
particulars to include:
(i) When and where were such transport costs incurred?
(ii) Precisely what transport costs were entailed?
(iii) To whom was the sum of R14 500,00
paid?
(p) Full particulars are required as to how the sum of R67 500 allegedly paid to
specialists is made up, such particulars to
include:
(i) The name of the alleged specialists and their specialities are required;
(ii) How much was paid to each alleged specialist and what function was
performed by each specialist for
/such ...
12.
such amount of money;
(iii) When and where were such
amounts
paid to each alleged specialist?
(q) Full
particulars are required as to how
the sum of R99 237,00 in respect of parts and "consumables" is made up, such
parti= culars to include:
(i) Pull particulars as to each part
and the cost
of such part allegedly required by the Plaintiff;
(ii) Full particulars as to the alleged "consumables" utilized and the cost of
such consumables;
(iii) To whom was the amount of R99 237,00
paid?
(iv) Precisely when and where was the
sum of R99 237,00 disbursed by the
Plaintiff.
(r) Full particulars are required as to how the sum of R135 000, for the rental
of locomotives is made up, such particulars to
include:
(i) When and where were the alleged rentals incurred?
(ii) Precisely what locomotives were rented?
(iii)
From whom were the alleged loco=
motives rented and at what cost was each locomotive so
rented?
(s) Full particulars are required as to how the sum of R157 950,00 in respect
of
additional ...
13.
additional employees is made up, such particulars to
include:
(i) When and where were such additional
employees employed;
(ii) The name, designations and functions of each alleged additional employee
. is required;
(iii) Pull particulars are required as to why the alleged additional
employees were in fact employed.
5
6
7.
AD PARAGRAPH 13
(a) The Defendant is required to state for precisely what period the locomotives
were not kept "reasonably operational".
(b) Is it intended to allege that all the locomotives did not work at all for
any specific period? If so, the period is required
in respect of each loco=
motive complained of.
(c) If sub-paragraph (b) above is answered in the negative, then in relation to
each locomotive concerned, precisely when did it
not work because of a failure
to service it?
(d) Particulars are required as to the rea= son for each locomotive not working
for any specific period of time.
/(e) ...
14.
(e) Full particulars are required in re=
lation to each locomotive as to what is meant by the words "reasonably opera=
tional" in the context of this para= graph.
8.
AD PARAGRAPH 14.2
Full particulars are required of the facts (not evidence) relied upon by the
Plaintiff for the allegation contained in paragraph 14.2.2.
9.
AD PARAGRAPHS 18, 19 AND 20
(a)
The Plaintiff is required
to state what assistance it rendered and what workshop facilities it made
available to the Defendant in
terms of its obligations, precisely when such
assistance was ren= dered and facilities made available, by whom and to whom
such assistance
was rendered and facilities made
available.
(b)
On what fact/s does the
Plaintiff rely for the allegation that the services and facilities made
available as stated in paragraph 7
of Plaintiff's main claim were over and above
its obligations as stipulated in the agreement?
"
The further particulars supplied by the appellant
in reply to those parts of the respondent's request quoted above, read as
follows:
/"1. ...
15.
"1.
AD PARAGRAPH 3
(a) A copy of the agreement is Annexure
"A"
hereto.
(b)
2.
AD PARAGRAPH 4
(a) The locomotives were delivered to the,,
site on the following dates -
X3 - 1/7/81
X4 - 6/7/81
X5 - 9/7/81
X6 - 20/7/81
X7 - 11/8/81
X8 - 9/6/81
X9 - 9/6/81
X10 - 9/6/81
Xll - 13/6/81
(b)
3.
AD PARAGRAPH 5
(a) and (b):
The locomotives were
unsuited to tunnel= ling conditions in the following respects -
(i) the suspension of all locomotives was inadequate;
(ii) the gearboxes on the twenty-two ton locomotives were poorly designed,
manifested numerous breakdowns and exhibited major oil
leaks;
(iii) the braking system on all the
/locomotives ...
16.
locomotives was not progressive and was
dangerous and on the 22 ton loco= motives the brake components such as linkages
and brake
shoes were poorly designed;
(iv) the air system on all the locomotives was faulty and the compressor
which by a modified design of the Defendant was set in such
a way that it had to
run continuously instead of inter= mittently, tended to overheat and fail;
(v) electric wiring and fuses on all
locomotives were wrongly installed and insulation was inadequate;
(vi) all electrical motors and cubicles were unprotected against moisture and
were exposed to damage as a result of moisture penetration;
(vii) all the locomotives were unsafe in operation in that electrical cir=
cuits and earth brushes were in= adequately protected,
speedometers gave false
readings or no readings at all and the brake system was dangerous;
(viii) the mass distribution on the twenty-two ton locomotives was wrong so
that traction and braking was in= hibited;
(ix) the wheels of the twenty-two ton locomotives were not properly
/affixed ...
17.
affixed to the axles and axles were manufactured of the wrong
type of steel.
Greater detail of the respects in which the locomotives were unsuited, as
alleged, is furnished in paragraph 4 below.
4.
AD
PARAGRAPH 7
(a) - (i):
The extent and manner in which components were redesigned and the reasons there=
for are furnished hereafter together with details
of what components had to be
re= placed or restructured and the ambit and effect thereof. It is the
Plaintiff's contention that the
scale of such redesign, replacement and
restructuring was such that it amounted to a rebuilding of each locomotive.
The word "site" in brackets where it occurs hereinafter, connotes that the
replacement or restructuring referred to was done at the
site by the Defendant
with the assistance of the Plaintiff. Such assistance comprised the provision of
cranes, and workshop facilities
and the services of the Plaintiff's site
mechanical engineer, site agent, mechanics, electricians and black labourers. In
addition,
services were rendered by the Plaintiff's general manager, its manager
and mechanical engineer in attending to administrative and
technical
matters
/connected ...
18.
connected with such restructuring and
replacement.
The word "Trivetts" in brackets where it occurs hereinafter, connotes that
the restructuring and replacement of parts was carried
out by that concern at
its workshops in Cape Town.
Apart from services rendered in connec= tion with the salvage of broken down
locomotives and the despatch of such locomotives to Trivetts,
and equipment such
as cranes needed therefor, the Plaintiff's site personnel visited the Trivett's
premises in Cape Town to in= spect
restructured and replaced compo= nents and
the progress of modification works.
In respect of work done by Trivetts, also, the Plaintiff's general manager,
manager and mechanical engineer were obliged to render
administrative and
technical services connected with the restructuring and replacement of com=
ponents by Trivetts.
The words "site-Trivetts" in brackets, where they occur hereafter, connote
that the restructuring and replacement of components was
done partly on the site
and partly at the premises of Trivetts.
The word "Defendant" in brackets, where it occurs hereafter, connotes that
the restructuring and replacement of parts was carried
out by the Defendant at
its
/workshops ...
19.
workshops.
Apart from services rendered in con= nection with the salvage of broken down
locomotives and the despatch of the components of such
locomotives to the
Defendant, and equipment such as cranes needed therefor, the Plaintiff's person=
nel visited the Defendant's premises
to inspect restructured and replaced
components and the progress of modifi= cation works.
In respect of work done by the Defendant, also, the Plaintiff's general
manager, manager and mechanical engineer were obliged to render
administrative
and technical services connected with the restructuring and replacement of com=
ponents by the Defendant.
Where aspects of the locomotives had to be redesigned, as hereinafter set
forth, the Plaintiff, through experts engaged by it, made
suggestions to the
Defendant on what aspects required to be redesigned and on what redesign might
best achieve the desired purpose.
(i)
The Suspension
The suspension of each locomotive was completely inadequate in that it had very
little shock absorbing capacity; this caused damage
to
the track
in the tunnel, and to each locomotive; it had an adverse effect on the braking
capacity, and made it difficult for the overhead
/electric ...
20.
electric poles to remain in contact with the overhead electric power
supply;
All suspension blocks on all loco= motives were changed several times, inter
alia, in an attempt to find a more suitable material
(site-Trivetts); after the
Defendant's attempts at remedying the inadequate suspension on each locomotive
had failed, the Defendant,
at the Plain= tiff's insistence, agreed to fit on all
locomotives a completely newly designed and different suspension, of which
fitting has been commenced on the 22nd March 1983 (site).
(ii)
Gearboxes and gearbox extensions
On all twenty-two ton locomotives, the gearboxes consisted of a gear= box
suitable for an eleven ton locomotive modified to embrace
an extension gearbox
for the twenty-two ton locomotive. These gearboxes failed with unacceptable
frequency because of overstressed
parts (in particular the idler gear). At first
the Defendant, with the assist= ance of the Plaintiff, attempted to remedy the
malfunctions
of the gear= boxes by supporting the idler bear= ing on both sides,
which attempt proved to be unsuccessful (Defendant). In addition,
excessive oil
leakages from the gearboxes occurred which
/the ...
21.
the Defendant attempted to rectify by using a sealing compound (Defen= dant).
When this attempt failed, it was sought to solve the
problem by the use of
synthetic oil, but this too failed (site). There= after new oil seals were
fitted between the main gearbox
casing and the casing of the extension gearbox
(Defendant). The modifications were not entirely successful and further
modifications
to the gear= boxes are required.
(iii)
Braking
syst
em and brake shoes
The braking system of all the twenty-two ton locomotives was to have been
designed as an electrical progessive braking system enabling
the loco= motive
and its load to maintain a selected speed in negotiating the downwards gradients
encountered in the tunnel. However,
the Defendant recommended against this, and
instead all the locomotives were fitted only with a mechanical' braking system
mainly
designed to stop the loco= motive, but which was unsuitable for
maintaining a selected speed on a downward gradient without causing
excessive
wheel slip on the tracks, leading to hazardous situations, resulting in a number
of accidents. In order to improve the
mechanical system, a new type of brake
valve
/with ...
22.
with progressive action had to be fitted to all eleven and twenty-two ton
loco= motives (site).
The brake shoes of the mechanical braking system were of such poor quality
and de= signed to fit in such a way that a loss of adjustment
occurred as
frequently as twice every twenty-four hours of operation which had to be
corrected (site); the brake shoes wore down
unevenly because of misalignment and
excessively because of the poor quality of the brake shoes on the wheels, and
the brake shoes
hold= ing strips fell out.
The excessive wear on the brake shoes caused fine particles of brake shoe
material to be deposited on the tracks which, together with
oil deposited on the
tracks from excessively leaking gearboxes, made braking erratic and consequently
hazardous.
It was sought to improve the situation by fitting new brake shoes made of a
better quality material (site-Trivetts) and by improving
the brake lever system
and alignments (site-Trivetts). A new type of brake holding strip had to be
fitted (site).
On all locomotives, in addition to the above, no grease nipples were provided
for lubrication of the brake linkage arti= culations
which caused the brakes to
seize and resulted in loss of braking power, as well as in bent brake
connecting
/rods ...
23.
rods due to seized and broken linkage articulations in the eleven ton loco=
motives. Grease nipples had to be fitted on brake linkage
articulations
(site-Trivetts).
The compressor drive also drove the al= ternator. This drive was
intermittent, as the compressor was required to operate from time
to time only
to maintain the pressure in the air tanks. However, following consistent battery
failure, the Defendant decided to modify
the compress sor drive from
intermittent to continuous to allow continuous use of the alternator for the
purpose of charging the
battery, which was done with the assistance of the
Plaintiff. In consequence of the con= tinuous instead of intermittent operation
of the compressor, it was subject to over= heating failures; a failure of the
com= pressor affected the braking system and thereby
immobilised the locomotive.
At first, the Defendant attempted to remedy the failure of the modified design
by reducing the speed
of the compressor and improving the air flow (site);
thereafter, a domestic shower cooling system was at= tempted, using the
discharge
side of the unloading valve to cool the compressor (site); thereafter,
a car fan was fitted on the compression pulley in an attempt
to combat the
overheating and enlarged cowling holes were provided in the loco= motive bonnet
(Trivetts), but cooling to the compressor
is still not according to
/the ...
24.
the manufacturer's specification of 4/ms.
(iv)
The air system
On all the locomotives, pipes from the compressor to the air tanks had to be
increased in diameter in order to limit the overheating
of the compressor
(site); upon delivery of the locomotives, numerous leaks developed in the pipes
due to vibra= tions resulting from
the absence of securing brackets and the
inadequate sus= pension; such leakages were eliminated and the pipes secured
(site-Trivetts).
The air filter required a bracket to be fitted to keep it from
falling down (site Trivetts). The brake pressure gauge was installed
in such a
manner that it measured the booster pressure before in= stead of after the
pressure reducing valve; the gauge had to be
moved down= stream of the pressure
reducing valve (Trivetts).
On the eleven ton locomotives, the air tank and purge location had to be
modified for the reason that the purge relief valve on the
air tank discharged
water and rust sediment onto and into the electrical motors, which facilitated
the penetration of moisture into
the said motors, exposing those motors to
damage and malfunction (Trivetts).
In the twenty-two ton locomotives, the purge in the air circuit was
inaccessible and an automatic drain purge had to be fitted (Trivetts).
/(v) ...
25.
(v)
Electric wiring, insulation, fuses
The bottom edge of the cable way on all locomotives had to be rounded and covers
fitted on the cableway to protect it against oil
and grease (site-Trivetts).
On all locomotives the 12 volt plastic conduits had to be secured (site) and in=
adequate insulation on the 12 volt cir= cuit, which
resulted in intrusion of the
500 volt current into the 12 volt circuit, had to be improved to ensure better
sepa= ration of the 500
volt and 12 volt cir= cuits (site-Trivetts).
On all locomotives the 12 volt fuses, which were underrated, had to be replaced
by adequate fuses (site) and the fuses which had
been fitted upside down were
fitted with the right side up (site) and the lighting and control circuit fuses
were separated, new
12 volt fuses being fitted for the lighting circuit
(Trivetts).
On all locomotives rotative beacon motors and headlights were damaged by poor
in= sulation of the 12 volt circuit and had to be changed
and the said
insulation improved (site-Trivetts). The main contactor on the twenty-two ton
locomotives was not readily accessible
for maintenance and had to be moved to
the side of the locomotive (Trivetts).
Clearance between the arc chute and eguip= ment was insufficient on all
locomotives and had to be increased (Trivetts).
/(vii) ...
26.
(vi)
Electric motors and
cubicles
No electric motor on any locomotive was totally enclosed; lack of adequate
pro= tection against moisture and mud encoun= tered in
the tunnel caused water
to pene= trate into the motors, exposing these components to damage and
malfunction. Protective covers and
splash guards had to be fitted to each motor
to avoid failures caused by wet conditions (site); louvres were fitted on all
bonnet
openings (site). Similarly, electrical cubicles had to be waterproofed by
fitting all holes with plugs and providing glands to cables
(site-Trivetts). The
battery on all locomotives had to be relocated at an accessible place since it
could only be reached by removing
the locomotive canopy for which a crane was
required (Trivetts).
(vii)
Safety
All the locomotives were unsuited to tun= nelling or any conditions in that
they were electrically hazardous by reason of the absence
of certain protective
devices. Only one earth collector was fitted to one axle and contact of the
earth brushes was poor, causing
flashing to the frame or canopy of the
locomotive, necessitating the fitting of a second earth collector to the other
axle of the
locomotive (Trivetts), and replacement of burnt out components
(site). Earth collectors which wore down excessively were changed
for a
different type and protected by a
/guard ...
27.and 28
guard box (Trivetts). An earth leakage relay was designed and fitted
(Trivetts). 500 volt cables which were lying on top of electrical
resistances
were protected (site) and protection was fitted above 500 volt cables lying
exposed in the driver's cockpit (Trivetts).
On/off labels which should have
indicated the operation of electrical switches (which were not uniform) had to
be fitted (site Trivetts).
The electrical connection to the ammeter was, for the sake of safety, moved
from the 500 volt side to the earth side (Trivetts).
The chain tightening system on the eleven ton locomotives was designed in
such a way that the failure of the sole retaining bolt would
lead to a total
brake failure. A second retaining bolt had to be fitted (Trivetts).
The speedometers on all the locomotives were either inoperative or gave false
readings. In addition, the grease nip= ples on the twenty-two
ton locomotives
were inaccessible. The speedometers accordingly had to be changed from a gearbox
take-off to a jockey wheel type
(Trivetts).
(viii)
Traction
The mass of the twenty-two ton locomotives is not properly distributed with
the re= suit that their traction and braking are
/greatly ...
29.
greatly impaired by imbalanced adhesion of all the wheels with the rails. All
the twenty-two ton locomotives have as a consequence
performed well below their
design capacity, a situation which it is not possible to remedy.
The resistance bank on the twenty-two ton locomotives required five additional
re= sistances to ensure smooth starting (Trivetts).
On all the locomotives, the electrical pole swivel base was too low and had to
be fitted at a higher level (site).
The drive chain of the eleven ton loco= motives was designed in such a way that
it tended to rub on the brake adjusting rod; this
involved an abnormally high
risk of breakdown, and increased mainte= nance (site).
In the twenty-two ton locomotives the wheels were not properly affixed to the
axles, a situation which was remedied by fitting hew
axles with a larger
diameter into enlarged wheel cores to extend the contact surface
(Defendant).
(ix)
X5 locomotive
Numerous failures occurred in the pro= peller shaft of the X5, a twenty-two ton
locomotive. The Defendant has found no remedy for
this
shortcoming.
(j) Substitute locomotives were acquired by lease or purchase as follows :-
The deployment of four additional locomotives
/became ...
30.
became necessary as a result of the unsuitability of the locomotives supplied
by the Defendant and the consequent excessive down time
experienced in the use
of such locomotives. Details of such additional locomotives are as follows:-
(i) 25 ton Hunslett Taylor diesel locomotive
hired from Cawse and
Malcolm and delivered to the site on 5 April 1982;
(ii) 16 ton Goodman locomotive purchased (de= signated X12) and delivered to
the site on 23 April 1982;
(iii) 16 ton Goodman locomotive purchased (desig= nated X13) and delivered to
the site on 23 April 1982;
(iii) 15 ton Hunslett Taylor diesel locomotive
hired from Cawse and Malcolm and delivered to the site on 12 March 1982, which
was replaced by a 17 ton CKK locomotive (de= signated
X14) purchased by the
Plaintiff and delivered to the site on 28 June
1982.
The Plaintiff's claim is based on the total
number of locomotive months calculated from the date of delivery of each
locomotive to
28 February 1983, that is 43, multiplied by the reasonable average
monthly costs of each loco= motive amounting to R7 500,00 which
includes an
allowance of 25% in respect of general overheads and profit which the Plaintiff
could have earned had it been able to
devote the money used for hiring or
purchasing locomotives to a profitable purpose.
43 x R7 500,00 = R322 500,00
(k) The Defendant is
referred to sub-paragraph (s)
/below ...
31.
below.
(1) The labour costs necessarily incurred by the Plaintiff as a result of the
unfitness of the locomotives for the purpose for which
they were intended, is
given below. In each case, an estimate of the time devoted by the named official
or workman of the Plain=
tiff to the matters complained of in paragraph 4 above
is furnished for a period of 20 months together with the reasonable cost of
the
particular official or workman to the Plaintiff, which includes a 25% mark-up
for general over= heads and for profit which it
would have made had it been able
to commit the resources de= voted to the said difficulties with the loco=
motives to a profitable
purpose.
(i) General Manager (Chassagnette)
at 7% (10 500 x 20 x 7%) 14 700,00
(ii) Manager (Shorland) at 7%
(9 893 x 20 x 74) 13 850,00
(iii) Mec. Engineer JHB (Bilard) at
20% (7 500 x 20 x 20%) 30 000,00
(iv) Site Agent (Larribe) at 5%
(9 600 x 11 x 5%) 5 280,00
(v) Mec. Engineer Site (Cottin) at
25% (7 293 x 20 x 25%) 36 465,00
(vi) Mechanics (European) 8 man
months (5 408 x 8) 43 264,00
(vii) Chief Mechanic (Lopes) at 8%
(6 267 x 20 x 8%) ' 10 027,00
(viii) Electrican (Malivert) at 8%
(6 267 x 20 x 8%) 10 027,00
/(ix) ...
32.
(ix) Coloured Mechanics 20,5 man
months (1 200 x 20,5) 24 600,00
(x) Coloured Electricians 6,5 man
months (1 200 x 6,5) 7 800,00
(xi) Blacks 30 man
months
(450 x 30) 13 500,00
R209 513,00
Save as aforesaid, the Defendant is not strictly entitled to further particulars
for the purpose of pleading or tendering.
(m) Two workshops were
established, one at the east portal and one at the west portal of the tunnel to
perform the routine maintenance
referred to in the agreement. The reasonable
cost of establishing and maintaining the Plaintiff's own workshops (i.e. other
than
the two foreseen in the agreement) used for the modifications referred to
in paragraph 4 above, including an allowance for small
tools, electric power and
welding gas came to R7 500,00 for each workshop for the period 30 June 1981 to
31 July 1982, and includes
an allowance of 25% for general overheads and for
profit which the Plaintiff could have earned if it had been able to commit the
money and resources devoted to such work= shops to a profitable purpose.
Save as aforesaid, the Defendant is not strictly entitled to further particulars
for the purpose of pleading or tendering.
(n) (i) The cranes were utilised at the site for the times indicated
below.
/(ii) ...
33.
(ii) The cranes were used to lift gear= boxes and motors, to replace broken
down motors, to remove and replace
wheels and to remove and replace canopies.
(iii) The times the cranes were utilised for the period 30/6/81 to 28/2/83
were :-
30 t crane 94 h x R110 RlO 340,00
20 t crane 155 h x 90 13
950,00
6 t crane 325 h x 25 8 125,00
R32 415,00
The costs include a 25% allowance for general overheads and for profit which
the Plaintiff would have earned had it been able to commit
the money and
resources devoted to cranes to a profitable purpose.
(o) (i) The transport costs were incurred
during the period 30 June 1981 to 31 July 1982.
(ii) The transport costs were incurred in respect of necessary journeys to
the site or Cape Town from Johannesburg and between the
site and Cape Town for
the purpose of inspections, technical assessments and discussions with
representatives of the Defendant.
(iii) The amount of R14 507,00 claimed re= presents the cost to the Plaintiff
of the travelling done by its officials or employees
together with a 25% allow=
ance for general overheads (including profit which it would have made had it
/been ...
34.
been able to commit the money and resources devoted to travelling to a
profitable purpose). The Plain= tiff's claim is made up as
follows:-
19 journeys by its general
manager and mechanical en=
gineer from JHB to Cape
Town or to the site at
R625,00 per journey Rll 875,00
14 journeys by the Plain=
tiff's site mechanical
engineer and chief mechanic
to Cape Town at R188,00 per
journey 2 632,00
R14 507,00
(p) (i) The schedule set out below indicates in the first column thereof the
name of the specialist, in the second column the name
of his employer and in the
third column the speciality of each.
(ii) The function performed by each
specialist is indicated in the fourth column of the said schedule and the
amount paid in respect of his services
in the fifth column thereof.
(iii) The approximate date of payment to each specialist is reflected in
column 6 of the said schedule.
[The schedule which follows is not reproduced here.]
/(q) ...
35.
(q) (i) The Plaintiff replaced parts during the period 30/6/81 to 28/2/83
in=
cluding alternators, poles, wheels, axles, pressure switches, batteries,
compressors, valves and used steel for modifications. These
parts were replaced
at a cost of R184 377,50 of which the Plaintiff estimates that 50% were
necessitated by the design shortcomings
and failures referred to in paragraph 4
above
R184 377,50 x 50% R92 188,75
(ii) The cost of the electrical consumables amounted to R7 475,33 of which it
is estimated that 90% were necessitated by the aforesaid
design short= comings
and failures and included main contractors, lights, spares for con= troller,
solenoid valves, fuses, resistors,
contac= tors and relays
R7 475,33 x 90% 6 272,80
The cost of oil which
leaked from gearboxes
and had to be replaced
amounted to 14 937,50
R113 854,00 (iii) The amounts were paid to H.A. Schippers
/(Pty) ...
36.
(Pty) Limited, Diesel Electric (Pty) Limited, Electro Diesel (Pty) Limited, the
Defendant, Transcap Steel and M.A.G. Brakes.
(iv) The amount of R113 854,00 was paid out by the Plaintiff during the period
30 June 1981 to 31 July 1982.
(r) The
Defendant is referred to sub-paragraph (j) above.
(s) Additional employees were required over a thirteen month period for each
of nine locomotives and each of three daily shifts to
man each locomotive in
order to manually maintain the trolley pole on the overhead power supply; such
trolley pole tended
to break contact with the overhead power supply as a result of the inadequate
sus= pension of each locomotive.
Calculation:
9 hours x 3 shifts x 13 months x 450
= R157 950,00.
The cost of such employees includes an allowance
of 25% for general overheads and profit which the Plaintiff would have been able
to earn had it committed the money and resources devoted to such ad= ditional
employees to a profitable pur= pose. Save as aforesaid,
the Defendant is not
strictly entitled to further par= ticulars for the purpose of pleading or
tendering.
5
/6. ...
37.
6
7.
AD PARAGRAPH 13
(a) The locomotives were not reasonably opera=
tional from the delivery of
each of them
and are anticipated to become reasonably
operational only
when the modifications
to the suspension of each of them which were commenced on 22 March 1983 have
been completed.
(b) Every locomotive was out of service for a
time due to, inter alia, the
gearbox and
wheel assembly of each being sent to the
Defendant's workshops
for repairs, as in=
dicated in paragraph 4 above, and the
locomotives
themselves being sent to
Trivetts for the modifications alleged
in
paragraph 4. In addition, each locomotive
was out of commission during
breakdowns
which occurred as a result of the design
failures described in
paragraph 4. A
reasonable downtime coefficient for loco=
motives of the
kind in question used under
conditions of the kind in question, would
be 0,06 (6 per centum) or 0,5 locomotives on average. The actual downtime
coef = ficient during the period from delivery of the locomotives
to the end of
March 1983 has been 0,25 (twenty-five per centum) or 2,25 locomotives on
average.
(c)
This request falls
away.
(d)
The Defendant is referred to
sub-paragraph (b) above.
/(e) ...
38.
(e) The Defendant is referred to paragraph (b) above.
8,
AD PARAGRAPH 14.2
The Defendant is referred to sub-paragraph (b) of paragraph 7 above. The
downtime of the locomotives far exceed what could reasonably
have been expected
under the circumstances which would not have been the case had the Plaintiff
(sic) performed its obligations.
For particulars of the respects in which re=
pairs to locomotives were attempted, but failed, the Defendant is referred to
paragraph
4 above.
9.
AD PARAGRAPHS 18, 19.AND 20
(a)
The Defendant is referred
to the allega= tions in paragraph 4 above. The assist= ance has been rendered
and the workshop facilities
made available from the time of delivery of each
locomotive to the present by the Plaintiff to the Defendant or its
subcontractor,
Trivetts.
(b)
The Plaintiff's
obligations in terms of the agreement were, on a proper construc= tion thereof,
to render assistance and make reasonable
facilities available for routine
maintenance of and running re= pairs to, the locomotives. In addition, the
Plaintiff became obliged
to assist with, and make facilities available for, the
major reconstruction work set out above and for attempts to repair failures
resulting from design flaws."
/The ...
39. The
agreement, annexure "A" to the further particulars, consists of two letters. In
them, the parties are referred to by the names
under which they trade: "Comiat"
in the case of the appellant, and "Hunslet Taylor Consolidated" or "H.T.C." in
the case of the respondent.
The first letter, dated 4 February 1981, is a short
one from the respondent to the appel= lant, reading as follows:
"RE : TROLLEY ELECTRIC LOCOMOTIVES
YOUR ORDER NO. HRT 00017
OUR
REP.
LS 1097
Thank you very much for your order above= mentioned, which we hereby acknowledge
and accept on the terms and conditions of the contract,
copy of which is
enclosed duly signed."
The second letter, bearing
the date 28 November 1980, is = a lengthy document. According to its heading it
pur= ports to be addressed
by the appellant to the respondent, but at the foot
of the last page it is signed on behalf of both parties. The relevant parts of
it read as
/follows ...
40.
follows:
"Re: LOCOMOTIVES HEX RIVER TUNNEL "
OFFICIAL ORDER HRT 00017
1.
OBJET
(sic)
The supply, delivery and commissioning of five MT20, four MT 10/12 trolley
locomotives and four spring loader cable drums at the site
of Hex River Tunnel,
Cape Province, in accordance with the following general and specific
characteristics.
' 1-1
General Characteristics
1.1.1.
Electricity supply 500
DC overhead line.
1.1.2.
No specific
flameproofing required.
1.1.3.
Rail gauge
42"
1.1.4.
The equipment must comply with any
South African Regulation applicable.
1.1.5.
Overall height with trolley pole in the down position must not
exceed 1700 mm.
1.1.6.
Center line of buffers
to top of the rails : 337 mm.
1.1.7.
Locomotives fitted with 60 KW DC
Motors.
1.2
Specific Characteristic
s 1.2.1.
MT 20 Locomotive Summary
Locomotive type MT 20
Wheel Arrangement 0.4.0.
/Traction ...
41 .
Traction Motor: Output 60 KW (one hour rating)
Type D.C. Series Wound totally
enclosed type.
Voltage 500 V.D.C.
No of Motors Two
Insulation Class F
Wheel Base 1 900 mm
Wheel Diameter 725 mm
Maximum
height 1 500 mm
Maximum Width 1 600 mm
Length over buffer beams 6 000 mm
(Locomotive bolted together)
Rail
Gauge 1 067 mm
Weight in working order 20 tonne
Maximum speed 16 km/h
Frame
: : The locomotive is manufactured from m.s.
place. (
sic
)
Driver's Well
: : The driver's well is so designed to form
an integral part of the frame complete with driver's seat, controller and
park= ing hand brake wheel.
Casing
: Low profile mild steel casing with centre
hinged doors for ease of access.
Wheels & Axles
: Fully machined steel wheels are pressed
onto the axles. The treads are machined to standard wheel profile. The axles
are fully machined from high tensile axle steel.
Suspension
: The suspension comprises a cast steel
adaptor supported on the axle by means of two Timken taper roller bearings
and ' suitable seals. The adaptor is supported in a fabricated
steel cradle
housing special rubber blocks. The suspension used is the Timken Rub-A-Tuf
unit.
/The ...
42.
The axlebox units are rigidly bolted to the frame.
Traction Motor : Output : 60 kw (one hour rating)
Type : D.C. Series wound totally en=
closed type Voltage: D.C. 500 V No of Motors : Two Insulation : Class F.
Transmission
: Double reduction type with input from
the motor via Hardy Spicer Cardan Shaft to first reduction set of spur gears
with final reduction to axle mounted bevel wheel and
pinion. One mounted on each
driving axle.
Brake
System
: The locomotive is fitted with a compressed
air brake
system operating brake blocks
on all four driving wheels.
This is a
fail-safe system as the main
air pressure is used for releasing the
brake
mechanism and should the air pres=
sure fail the brakes are
automatically
applied by the heavy duty springs built
into the brake boost
cylinder.
(a) Parking : The locomotive is fitted with a separate
"Park
Brake" control valve which when activated destroys air in the system thus
mechanically applying the Park Brake. (b)
Service
(air): : An additional
brake control valve is
fitted which pneumatically controls the "Service Brake" operating on all four
driving wheels.
Control
: Viostatic type plus serie parallel Con=
trol with bank of six resistances mini = mum.
Collector System
: Pole
/
Installed
...
43.
Installed power
: - 60 KW motor each
4 KW compressor 2 KW blower
1.2.2.
MT/10/12
Summary
Locomotive Type MT 10
Wheel Arrangement 0-4-0
Traction Motor :
Output. 60 KW (One hour rating)
Type D.C. Series Wound Totally
enclosed type
Voltage 500 V.D.C.
No of Motors One
Insulation Class P
Wheel Base 1 500 mm
Wheel Diameter 610 mm
Maximum Height 1 500
m
Maximum Width 1 600 m
For caging
1.
Drivers Well length 1 000
mm
2.
Motor well length 1 100
mm
3.
Locomotive mid-section length 2 500
mm
Length over buffer beams 4 600 mm
(locomotive bolted together)
Rail Gauge 1 067 mm
Weight in working order 10/12 tonne
Maximum
speed 16 km/h
Frame
: The locomotive frame is manufactured
from m.s. plate.
Driver's Well
: The driver's well is so designed to
form
an integral part of the frame complete
with driver's seat, controller and park=
ing hand brake wheel.
/
Casing
...
44.
Casing
: Low profile mild steel casing with cen=
tre hinged doors for ease of access.
Wheels & Axles
: Fully
machined steel wheel centres
complete with rolled steel tyres are pressed onto the axles. The tyres are
fully machined to standard wheel profile. The axles are
fully machined from high
tensile axle steel.
Suspension
: The suspension comprises a cast steel
adaptor supported on the axle by means of two Timken taper roller bearings
and suitable seals.
The adaptor is supported in a fabricated steel cradle housing special rubber
blocks. The suspension used is the Timken Rub-a-Tup unit.
The axlebox units are
rigidly bolted to the frame.
Traction motor
: Output : 60 KW (one hour rating)
Type : DC Series wound totally
enclosed type. Voltage : D.C. 500V No of Motors : 1 Insulation : Class F
Transmission
: : The drive from the electric motor is
via a Hardy Spicer Cardan Shaft through a double reduction frame mounted
gear= box, with a duplex output chain sprocket driving single
chain sprockets
mounted one on each axle.
Brake System
: The locomotive is fitted with a com=
pressed air brake system operating brake blocks on all four driving wheels.
This is a fail-safe system as the main air pressure is
used for releasing the
brake mechanism and should the air pressure fail the brakes are auto= matically
applied by the heavy duty
/springs ...
45.
springs built into the brake boost cylinder.
(a)
Parking
: The locomotive is fitted with a separate
"Park Brake" control valve which when activated destroys air in the system
thus mechanically applying the Park Brake.
(b)
Service
(air): An additional brake control valve
is fitted
which pneumatically controls
the "Service Brake" operating on all
four
driving wheels.
Control
:Viostatic type control with bank of
six
resistances minimum.
Collector System
: Pole
Installed Power
: 60
KW Motor
4 KW Compressor 2 KW Blower
1.2.3.
Spring loaded cable drum
: Type K.T.B. 50/614 SP with spooling device with a capacity of 75 m of 42 mm
diameter trailing cable.
1.2.4.
No dynamic
breaking on MT10/12 and MT20 locomotives.
2.
TIME
OF DELIVERY
Hunslet Taylor is committed to deliver and com= mission the equipment at Hex
River Site at the latest as follows:
2.1.
MT 20 Trolley locomotives
2.1.1.
First unit - Monday 27
April 1981
2.1.2.
Second unit - Monday 11 May
1981
2.1.3.
Third unit - Monday 25 May
1981
2.1.4.
Fourth unit - Monday 8 June
1981
2.1.5.
Fifth unit - Monday 22 June
1981
/2.2. ...
46.
2.2.
MT 10/12 Trolley locomotives
2.2.1.
Two units - Monday 27
April 1981
2.2.2.
Two units - Monday 11 May
1981
2.3.
Spring load cable drums
Four units - Monday 27 April 1981
2.4.
Commissioning
2.4.1.
Hunslet Taylor
Consolidated undertakes to have a representative on site to com= mission the
equipment within 24 (twenty four) hours
of advice by COMIAT of arrival of
equipment on site.
2.4.2.
Each equipment will
be deemed to be com= missioned when it has been placed on the track, all braking
and operations systems have been
tested and found to be functioning to
specification and the locomotive has been driven on the track pulling the rated
load for one
hour.
2.4.3.
A commissioning
certificate per unit
will be issued and signed by a
duly author= ised COMIAT's representative immediately after successful
commissioning of each unit.
2.5. Comiat will pay airfreight charges, against proof
of invoices for two
MT 20 and for four MT. 10/12
locomotives controllers.
3.
PRICE
4.
GUARANTEE
In lieu of any condition
or warranty expressed or implied by law or otherwise Hunslet Taylor Consolidated
expressly guarantee to re-supply
/any ...
47.
any part of the equipment supplied by them which, within a period not
exceeding six months from date of commissioning may prove defective
through bad
material or workmanship, fair wear and tear ex= cluded; but all orders accepted
for goods to be supplied are on the condition
that Hunslet Taylor Consolidated
is not liable for any loss of profit, or other special damages or any con=
sequential damages arising
from any cause what= soever.
5.
PENALTY FOR LATE DELIVERY
5.1. The penalties will apply in the event of the
commissioning dates as specified in clause 2.1, 2.2 and 2.3 not being
achieved, each equipment being considered separately.
5.2 The penalties will be 1% (one percent) of the
Rand value of the
specific unit late commissioned,
per week or part thereof of late
commissioning.
Considering 6 days per week, penalties will apply
for any
uncompleted week of late delivery on
a base of 1/6 of weekly penalty per working day.
5.3
The maximum penalty per
equipment late delivered is 5% of the Rand value of the specific unit late
commissioned.
5.4
Bonus for early
commissioning : the same terms as per under clause 5.1, 5.2 and 5.3 will apply
in case of early delivery except for
bonus per week will be ½% with a
maximum of 2,5% of the Rand value of the specific equipment early com=
missioned.
6.
AFTER SALE SERVICE
Hunslet Taylor Consolidated agrees to service and
/repair ...
48.
repair the referred 9 trolley locomotives, on site, for a period of 6 months,
renewable for a further period of 6 months and to be
subject
to :
6.1 The presence on site for the full 6 months
period of a H.T.C. technician appointed to do service and repair work, both
electrical
and mechanical on H.T.C. locomotives only, on the basis of a 10 hour
working day, 6 days per week and subject to call out if necessary.
Service
meaning, preventative maintenance as per the schedules . which will be supplied
by H.T.C. on delivery of the locomotive.
Repairs shall mean the necessary work
to be carried out with assistance from Comiat staff where necessary to repair or
replace all
parts, which have worn out due to fair wear and tear, or breakdowns
of the loco= motives, both electrical and mechanical.
6.2
Responsibility
He will be responsible to the Comiat Site Engineer, whilst on site, as
regards immediate on site re= pairs and their order of priority.
However,
Hunslet Taylor Consolidated service manager will visit the site at least once
per month to ensure that the maintenance is
being done to a H.T.C.
specifications and requirements, in order to protect H.T.C. from any
difficulties which may arise. Daily reports
will be made out by the H.T.C.
serviceman, and these reports to be signed on a regular basis by the Comiat Site
Engineer. If it is
reported by H.T.C. Serviceman that certain items required
urgent attention and that he requires the locomotive immediately, to carry
out
such work, if this is considered impossible by the production personnel, then it
is up to the site engineer, as to whether repairs
are necessary
/or ...
49.
or not, and he will then accept the consequences of his decision.
6.3
On site reasonable workshop
facilities being made available by Comiat with adequate working area plus the
use of basic workshop equipment
such as welding (gas and arc), grinding and
dril= ling machines, lifting equipment (i.e. crane)
etc.
6.4
One full day per week (Sundays) to be
reserved
for preventive maintenance work with all 9
units being available on that particular day.
6.5 Cost of the contract to be R.4 000 per month
plus transport R. 590,00
per month which figures
include the serviceman's hotel and living
out
expenses, plus periodic supervision on site by
the Hunslet Taylor
Service Manager.
6.6 Payment of the monthly service charge to be made 30 days after
presentation of invoice.
6.7 The service contract costs will be subject to
escalation each 6 months on the following basis :
(a) Labour - 75% of the labour contract value to be escalated using SEIFSA
index table C3 - Labour costs all hourly paid.
6.8 Initially the technician will stay at the De Dooms
Hotel at H.T.C. cost when Park Homes become available, he will then establish
site on Comiat Township.
7.
SPARE PARTS
/The ...
50.
The respondent's notice of exception reads as
follows:
"The Defendant excepts to the Plaintiff's parti= culars of claim, as amplified
by further parti= culars thereto, as such pleading
lacks aver= ments which are
necessary to sustain the causes of action therein set out.
The grounds of Defendant's exceptions are as
follows:
A. 1. The Plaintiff relies on a written
agree= ment in terms of which it purchased from the Defendant 5 x MT20 and 4 x
MT10/12 . trolley
locomotives.
2. A copy of the relevant agreement is
annexed to the Plaintiff's particulars, marked Annexure "A".
B.
MAIN CLAIM
1.
First Exception
(a)
In terms of the agreement
the Defen= dant was obliged to supply, deliver and commission locomotives with
cer= tain general and specific
charac= teristics.
(b)
In the premises the Defendant was obliged to supply, deliver and
com= mission and the Plaintiff was entitled to receive locomotives
complying
with the said specifications.
(c)
The
Plaintiff, more particularly in paragraph 5 of the particulars of claim, seeks
to rely on a tacit term of the agreement, to the
effect
that
/the ...
51.
the locomotives would be fit for the purpose for which they were
intended.
(d) The tacit term sought to be relied on by the Plaintiff -
(i) is not necessary in the busi=
ness sense to give efficacy to the contract;
(ii) does not arise from a neces= sary implication that the parties must have
intended it to exist;
(iii) is in contradiction to the unambiguous terms of the contract; and
(iv) must of necessity seek to
introduce inadmissible evi= dence of surrounding circum= stances.
2.
Second Exception
(a) Clause 4 of the agreement, Annexure
"A", reads as follows:
[Clause 4 has been quoted
above]
(b) The Plaintiff's claim for damages,
/as ...
52.
as set out in paragraph 7 of its particulars of claim and amplified by the
further particulars thereto, is a claim for alleged damages
suf= fered by it as
a consequence of the locomotives not being fit for the purpose for which they
were supplied, delivered and commissioned.
(c) In the circumstances the basis upon which damages are claimed by the
Plaintiff is inconsistent with the provisions of clause 4
of the agree= ment,
Annexure "A", which provided for specific, circumscribed and dif= ferent
relief.
C.
FIRST ALTERNATIVE CLAIM
1.
First Exception
(a)
In terms of the agreement
(Annexure "A") the Defendant was obliged to render specific after sales service
and re= pairs.
(b)
Clause 6 of the agreement
reads as follows:
[Clause 6 has been quoted
above]
(c) In its first alternative claim, more parti
cularly paragraphs 11.1 and
13 thereof, th
Plaintiff seeks to rely on a tacit term to
the effect that
the Defendant would make
/and ...
53.
and keep the locomotives reasonably opera= tional.
(d) The tacit term sought to be relied upon by the Plaintiff -
(i) is not necessary in the business sense to give efficacy to the
contract;
(ii) does not arise from the necessary im= plication that the parties must
have intended it to exist;
(iii) is in contradiction to the unambiguous terms of the contract; and
(iv) must of necessity seek to introduce inadmissible evidence of surrounding
circumstances.
2.
Second Exception
(a)
Upon a proper analysis, the
damages sought to be recovered by the Plaintiff flow from the unsuitability of
the locomotives for the
purpose for which they were intended and not from any
breach on the part of the Defendant of its obligations to service and maintain
them.
(b)
In the premises and more
particularly by virtue of the excipiability of the Plain= tiff's allegations
with regard to the alleged tacit
term relating to the suit= ability of the
locomotives for the purposes for which they were intended, the formula tion and
basis of
the alternative claim for damages are bad in
law.
3.
Third Exception
/The ...
54.
The Plaintiff's first alternative claim is a claim for loss of profit and/or
special damages and/or consequential damages and the
Defendant is not liable
therefor in terms of clause 4 of the agreement which provided for specific cir=
cumscribed and different
relief.
D.
SECOND
ALTERNATIVE CLAIM
1.
First Exception
(a)
The Defendant repeats sub-paragraphs (a) and (b) of paragraph C 1
above.
(b)
The Plaintiff seeks to rely on a
tacit agreement that it would supply goods and make facilities available over
and above those contemplated
by the agreement, An= nexure "A", and a tacit term
that it would be entitled to reasonable remuneration for such services and
payment
for such goods at its usual prices.
(c)
The tacit agreement and the tacit term arising therefrom sought to
be relied upon by the Plaintiff -
(i) are not
necessary in the business
sense to give efficacy to the contract;
(ii) do not arise from a necessary implica=
tion that the parties must have intended it to exist;
(iii) are in contradiction to the unambiguous terms of the contract; and
(iv) must of necessity seek to introduce inadmissible evidence of
surrounding
circumstances.
/2. ...
55.
2.
Second Exception
(a) On a proper analysis the damages sought
to be recovered by the
Plaintiff flow
from the alleged unsuitability of the
locomotives for the purpose for which they were intended, and not from any
tacit agreement or term thereof.
(b) In the premises and more particularly by
virtue of the excipiability
of the Plain=
tiff's allegations with regard to the
alleged tacit term
relating to the suit=
ability of the locomotives for the pur=
pose for
which they were intended, the
formulation and basis of the second
alter=
native claim are bad in law.
3.
Third E
xception
The Plaintiff's second alternative claim is a claim for loss of profit and/or
special damages and/or consequential damages and the
Defendant is not liable
therefor in terms of clause 4 of the agreement which provided for specific cir=
cumscribed and different
relief."
I turn now to a consideration of the arguments ad= dressed to this Court on
the individual exceptions, com= mencing with the first
and second exceptions to
the main claim.
The manner in which the two exceptions to the main
/claim ...
56.
claim were dealt with in argument requires some initial
explanation. They were not argued separately, but together. Counsel for the
respondent advanced two grounds of attack against the main claim, as arising
from the two exceptions taken together. The two grounds
re= lied upon may be
briefly summarised as follows: (1) the tacit term alleged in paragraph 5.1 of
the appellant's particulars of
claim was inconsistent with the specifica= tions
expressly laid down in clauses 1, 1.1 and 1.2 of the agreement; and (2) the
tacit
term alleged in para= graph 5.1 of the appellant's particulars of claim
was inconsistent with the express provisions contained in
the opening words of
clause 4 of the agreement. The first ground is squarely covered by the terms of
the first exception, but the
second ground does not appear to me to be raised
pertinently by the terms of either the first or the second exception, or of both
of them read together. However, there is no need to pursue
/this ...
57.
this aspect of the matter, because of the attitude taken up
in regard thereto by counsel for the appellant. He made it clear that
he
accepted that the second ground relied upon by the respondent's counsel was
indeed covered by the two exceptions to the main claim
and he,. presented his
argument upon that footing. I shall accordingly consider both grounds of attack
against the main claim, as
argued. They have a common target: the tacit term
alleged in paragraph 5.1 of the particu= lars of claim. The basis upon which
damages
are claimed, which is referred to in paragraph (c) of the second ex=
ception to the main claim, was not relied upon by counsel for
the respondent as
an independent cause of complaint against the main claim, and need therefore not
be con= sidered otherwise than
in the context of the second of the grounds of
attack summarised above.
I turn to a consideration of the first ground of attack against the main
claim. In support of it,
/counsel ...
58.
counsel for the respondent relied on the case of
Hall
& Co v Kearns
(1893) 10 S C 152.
In that case the plain= tiff bought
from the defendant a "one-horse power Pur= nell gas engine", for the purpose of
supplying power
to operate a coffee mill and roasters. The defendant supplied a
sound engine corresponding exactly to the description of the one
ordered. It
turned out that the engine could not satisfactorily perform the function for
which it was required, owing to the insufficiency
of the gas pressure in Cape
Town at the time. The plaintiff's claim for a refund of the purchase price and
damages was rejected.
In his judgment DE VILLIERS CJ said the fol= lowing (at
155):
"If an article of a definite nature is
ordered, the manufacturer warrants no more than that the article supplied is
as fit as any answering the description in the order."
Counsel for the respondent submitted that this passage and the decision in
the case itself governed the position
/in ...
59.
in the present case, because of the detailed specifica= tions
according to which the respondent was required to manufacture the locomotives
to
be supplied to the appel= lant in terms of clause 1 of the agreement, having re=
gard particularly to the specific characteristics
enume= rated in sub-clauses
1.2.1 and 1.2.2. It was pointed out that the appellant in its particulars of
claim and further particulars
did not allege non-compliance in any respect by
the respondent with those specifications, and the latter, it was submitted, left
no room for importing into the agreement a tacit term as to the fitness of the
products for a particular purpose, as alleged by the
appellant. In support of
his argument counsel re= lied also upon the provisions of the agreement relating
to the commissioning of
the locomotives, as contained in clause 2.4 thereof.
In my view these submissions cannot be accepted. They rest on the supposition
that it is possible to come
/to ...
60.
to a positive finding
ex facie
the agreement alone, by
reference to the specifications contained therein, that the locomotives to be
supplied were described with
such a degree of exactness that they constituted
articles "of a definite nature" in the same way as the Lister engine in
Hall
& Co v Kearns supra
. That supposition I consider to be wrong. On an
analysis of the speci= fications it appears to me to be obvious that there are
numerous
aspects of the construction of these locomotives on which the
specifications are silent, in respect of which the respondent had a
freedom of
choice, and which preclude the use of the adjective "definite" in relation to
them. This view is fortified by a consideration
of the appellant's allegations
in regard to the particular respects in which the locomotives were unsuited for
the purpose for which
they were required, as set forth in paragraphs 3 and 4 of
its further particulars. A com= parison between the allegations in
sub-paragraphs
(i)
/to ...
61 .
to (ix) of both paragraphs 3 and 4 (in the latter case,
following upon the introductory part of the sub-paragraph headed "(a) - (i)")
of
the further particulars, on the one hand, and, on the other, the specifications
contained in clauses 1.2.1 and 1.2.2 of the agreement,
demonstrates, in my view,
that in many instances the matters complained of are not covered, or at least
not covered pertinently,
by any of the provisions of the specifications (for
example: the precise design of the gear-boxes, the exact design and manner of
operation of the compressors and the air systems, the manner of protecting the
electrical circuits and earth brushes, the mass distribution
of the locomotives,
and so forth). Of course, since the matter is before the Court on exception,
there is no need to express a definite
opinion on the interpretation of the
specifications contained in the agreement, and I refrain from doing so. Expert
or technical
evidence might well affect the issue as to whether or not the
/principle ...
62.
principle applied in
Hall & Co v Kearns
supra can pro= perly be
applied to the facts of this case. For the purposes of my judgment it is
sufficient to say that I am satisfied
that the issue ought not to be decided
against the appellant on exception.
It should be observed, moreover, that in
Hall & Co v Kearns supra
the plaintiff's claim was dealt with in the judgment of DE VILLIERS CJ solely in
the context of a claim for aedilitian relief, flowing
from the so-called
warranty, implied by law, against latent defects. The possible existence of a
tacit term in the agreement between
the parties, arising from their unexpressed
consensus
, that the engine would be fit for the purpose for which the
plaintiff required it, was not adverted to in that case, so that the
question
whether such a term would have been inconsistent with the definite description
of the engine did not arise for consideration.
That case is accordingly
/distinguishable ...
62. B
distinguishable from the present one.
It should be mentioned also that some of the passages in the judgment of DE
VILLIERS CJ in
Hall & Co v Reams supra
have been criticised as being
too wide (see e g MacKeurtan's Sale of Goods in South Africa, 5th ed, at 51-2,
and Norman's Purchase
and Sale in South Africa, 4th ed, at 357-8). I do not find
it necessary to discuss these criticisms, but in passing it may be of
interest
to note the more qualified manner in which the same topic is dealt with in a
passage in Williston On Contracts, on which
counsel for the respondent also
relied (3rd ed. Vol 8, para 990, p 578). The passage reads as follows:
/"If ...
63.
"If the buyer either enters into an execu= tory contract for the purchase of
goods exactly described, or makes an executed purchase
of such goods, while he
may be able to assert an obligation on the part of the seller to furnish
merchantable goods of that description,
unless the description itself precludes
merchantability, he cannot regard the seller, even though the seller be the
manufacturer
of the goods, as war= ranting that they are fit for any special
purpose other than that which merchantable goods of the agreed description
necessarily fulfill. By exactly defining what he wants, the buyer has exercised
his own judgment instead of relying upon that of
the
seller."
There is, of course, a question of degree
involved in the concept of "goods exactly described", or of a buyer "exactly
defining what
he wants". Counsel for the appellant submitted that the
specifications contained in the agreement in this case were no more than
guidelines for the construction of the locomotives. That I con= sider to be an
overstatement. But, in the context of deciding the
issue on exception, I cannot
fault the further submission of counsel for the appellant, which
/is ...
64.
is formulated in his heads of argument as follows:
"The specifications
prima
facie (but this is a matter on which evidence
may be required) are not sufficiently detailed to permit of the construction of
a trolley
locomotive without the injection of the Excipient's own judgment and
expertise in the manufacture of such
vehicles."
Counsel pointed out further that it was
in this area of
the respondent's expertise that the parties may have
in=
tended a tacit term that the locomotives would be fit for
the purpose
for which they were intended, and that it was
in this area, in which there was no express term, that it
could be found that the tacit term was necessary to give
business efficacy
to the contract.
It follows, therefore, that the first ground of attack
against the main claim must fail.
I come to the second ground of attack against
the main claim. It is based primarily on the opening
words of clause 4 of
the agreement:
"In lieu of any condition or warranty ex= pressed or implied by law or otherwise
....."
The essence of the argument on behalf of the
respondent was that these words clearly and unambiguously precluded
/reliance ...
65.
reliance by the appellant on the tacit term alleged in paragraph 5.1 of its
particulars of claim, because that term was incompatible
with the express
provisions of the clause.
At first sight it might have been thought that the words in question,
ostensibly being of such wide im= port, were intended to exclude
any liability
on the part of the respondent that could conceivably flow from the agreement,
other than liability in respect of the
limited. guarantee expressly provided for
in the following part of the clause. On analysis, however, I have no doubt that
the words
cannot be interpreted so literally, and so widely, as to give rise to
such a result. Two examples will suffice to show that, on a
proper construe=
tion of the agreement, the literal effect of the words . must perforce be cut
down. The first relates to the
words "any condition expressed
otherwise"
(than by law). Literally, these words would cover any
/express ...
66.
express term of the agreement (other than the
guarantee
which is contained in the clause itself). But assume
that the MT 20 locomotives supplied by the respondent
weighed 25 tonnes
and were capable of a maximum speed,
of 10 km per hour only, instead of the
20 tonnes and 16
km/h prescribed in clause 1.2.1, and that the deviation
from the specifications could hot be cured by the re=
placement of
(defective) parts in terms of the express
guarantee. The parties could not have intended that
in such a case clause 4 would leave the appellant without
any remedy at all, nor that a claim for damages for breach-
of contract would be hit by the last part of the clause.
The second example relates to the words "any war=
ranty implied by law". Literally, these words
would cover what is generally known in our practice as
the warranty, implied by law, against eviction. But
there can be no doubt that the parties could not have
intended clause 4 to exclude or to limit the respondent's
/liability ...
67.
liability for eviction.
The examples I have given do not, of course, touch directly on the issue in
the present case, but they do demonstrate that the opening
words of clause 4 are
not to be construed literally, in the sense pf pro= viding for an all-embracing
exclusion of liability on the
part of the respondent (subject only to the
express guarantee). The importance of this conclusion is that it leads directly
to the
next enquiry, which is vital to the present issue: in what manner and to
what extent is the ostensibly wide ambit of the words to
be limited? The answer
must be sought in the fundamental rule that the words must be construed in the
context in which they appear.
This context is that the conditions and war=
ranties referred to are replaced ("In lieu of ") by
a guarantee to resupply any part of the equipment which, within a period of 6
months from date of commissioning, may prove to be defective
through bad
material or work=
/manship ...
68.
manship, fair wear and tear excluded. In my opinion the wording and the
composition of the clause point to the conclusion that the
parties intended by
the opening words of it to exclude the operation of such conditions and
warranties as might be germane to the
subject-matter of the express guarantee,
and no more. As a matter of logic, that which is replaced must have been
intended to be
appropriate to that by which it is replaced. The. subject-matter
of the guarantee is the resupply of parts of the equipment which
may prove to be
defective through bad material or workmanship. It is in the light of that
subject-matter that the opening words of
the clause must be construed.
The words that require interpretation, with a
view to the appellant's main claim, are: "any
warranty implied by law or otherwise". Generally,
as to the nature of implied or tacit terms in a contract, I shall apply the
approach reflected in the well-known
/passages ...
69.
passages of the judgment of CORBETT JA in
Alfred McAlpine & Son (Pty)
Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531 D to
533 B. Counsel for the respondent argued in the first place that the expres=
sion "warranty implied by law" covered
the respondent's liability for defects in
relation to the aedilitian re=
medies. This liability is in practice
generally referred to as a liability arising from a so-called warranty against
defects. Although,
from a jurisprudential point of view, the terminology is
strictly speaking incorrect (see De Wet & Yeats, Kontraktereg en Handelsreg,
4th ed, at 303, and
McAlpine
's case, supra at 531 F-H), I accept that in
this agreement the expression "warranty implied by law", viewed by itself, is
prima facie
appropriate to cover the respon= dent's liability for defects
in relation to the aedilitian remedies. Counsel for the respondent
relied on the
definition of "defects" in this connection, as formulated in
MacKeurtan
op
cit
at 134, viz '
/For ...
70.
"For the purposes of the aedilitian remedies,
a defect may be defined as an abnormal
quality
or attribute which destroys or
substantially
impairs the utility or effectiveness of the
res vendita for the purpose for which it has
been sold or for which it is commonly used",
and
argued on that basis that each and every respect in which the appellant alleged
that the locomotives were unfit for the purpose
for which they were intended, as
set forth in sub-paragraphs (i) to (ix) of paragraph 3 of its further
particulars, constituted a
"defect". Thus (so it was argued) the wording of
clause 4 of the agree= ment precluded the appellant from claiming the relief it
sought on the facts alleged. Counsel for the res= pondent argued in the second
place that the expression "warranty implied (by law)
or otherwise
"
covered the tacit term alleged in paragraph 5.1 of the appellant's particulars
of claim, which was a term sought to be imported
into the agreement as arising
from the facts, i e as being based on the supposed
consensus
of the
parties. It was argued that the expression was wide enough to embrace any
/term ...
71.
term of that kind, whatever its content, but counsel stressed that by
alleging a tacit term as to the fitness of the locomotives for
a particular
purpose the appellant was in effect treading the same ground as that covered by
the implied warranty against defects.
Counsel for the appellant, on the other
hand, conceded that clause 4 excluded liability on the part of the respondent in
terms of
the implied warranty against defects, but argued that such liability
was confined to defects that were latent,. that on the allegations
contained in
the appellant's further particulars it was not possible to find that the
appellant's claim was based on latent defects,
that the tacit term alleged was
not necessarily related to defects, and that accordingly it could not be found
on exception that
the alleged tacit term was inconsistent with the provisions of
clause 4.
In my view the clue to the resolution of the issue raised by the opposing
arguments outlined above is
/to ...
72.
to be found in an aspect of the appellant's pleadings which was not broached
pertinently by either counsel. I refer to the nature
and effect of the
respondent's alleged breach of contract, as formulated in the first part of
paragraph 4 of the appellant's further
particu=" lars. For convenience, and
because it is crucial to my reasoning, I quote the passage again:
"The extent and manner in which components were redesigned and the reasons
therefor are furnished hereafter together with de= tails
of what components had
to be replaced or restructured and the ambit and effect thereof.
It is the
Plaintiff's conte
ntion
that the scale of such redesign, replacement and
restructuring was such that it amounted to a rebuilding of each
locomotive
."
From the allegation that I have
emphasised (read with paragraph 7.1 of the particulars of claim and the detailed
allegations in the
rest of paragraph 4 of the further par= ticulars) it is a
necessary inference, in my view, that the locomotives were incapable of
being
rendered fit for their intended purpose by means of the respondent imple=
/menting ...
73.
menting its express guarantee in clause 4 to resupply defective parts. That
being so, the question that arises . is this: does clause
4 apply at all to the
factual situation alleged in the appellant's pleadings?
As indicated above, it is my view that the parties must have intended the
existence of a correlation between the terms of the express
guarantee and the
open= ing words of clause 4. The express guarantee clearly predicates a
situation in which the replacement of defec=
tive parts would serve a useful
purpose, i e to keep the locomotives in an operative condition (after their com=
missioning in terms
of clause 2). The appellant's al= legations postulate a
situation in which it was impossible to achieve that purpose by merely
implementing
the guaran= tee. Accordingly there is no room for an effective ap=
plication of the guarantee to the facts on which the appellant
relies for its
main claim. Does it follow, from the correlation that I have mentioned, that
the
/opening...
74.
opening words of clause 4 also have no application in the factual
situation alleged by the appellant? A negative answer is conceivable,
on the
basis that the clause was intended to exempt the respondent from all liability
in respect of defects in the locomotives, of
whatever kind and whatever the
circumstances, save to the extent provided for in the express guarantee, whether
or not the latter
could be effectively applied. In my view, however, it is
extremely unlikely that the parties could have intended clause 4 to have
such an
effect, be= cause the result would be that the appellant would be saddled with
useless locomotives without having any remedy
at all in respect thereof. It is
far more likely that the parties intended the opening words of clause 4 to be
operative only in
circumstances in which effect could appropriately be given to
the express guarantee. It follows, therefore, in my judgment, that
clause 4 in
its entirety does not apply to the kind of breach of
/contract....
75.
contract alleged by the appellant.
The above interpretation of clause 4 seems to me to be in consonance with the
general approach of our Courts to the construction of
clauses in contracts
exempting the one party from liability to the other for breach of contract.
Where there is ambiguity as to the
ambit of the exemption, a narrow
interpretation is favoured (see e g Sou
th African Railways and Harb
ours v
Lyle Shipping Co Ltd
1958 (3) SA 416
(A), especially at 419 E, and
G
overnment of the Re
public
of South Africa v Fibre Spinners &
Weavers (Pty) Ltd
1978 (2) SA 794
(A) at 804 H - 805 F). In
Hall-Thermotank Natal (Pty) Ltd v Hardman
1968 (4) SA 818
(D) the
plaintiff undertook to supply and install a refrigeration plant in the defen=
dant's fishing vessel. After installation the
plant would not function and could
not be made to function by the plaintiff. An exemption clause in the contract
provided as follows:
/"The ...
76.
"The equipment, if operated in accordance with the tender's instructions, is
guaran= teed for a period of 12 months from the date
of starting up thereof,
against defec= tive workmanship and material. Any part failing due to such
causes will be replaced or repaired,
free of charge. The tenderer's liability
shall be limited to such replace= meats or repair and shall not extend to any
consequential
and/or damage due to any cause, or causes,
whatsoever.,
HENNING J held, at 835 F-H:
"In spite of the emphatic language of the exemption clause in this case if
appears to me that the parties could hardly have in= tended
that the plaintiff
would be exonerated from liability if it failed to perform its obligations at
all, or if its performance proved
useless, or if it committed a breach going to
the root of the contract. After all the parties must have had in mind that both
of
them would carry out the terms of the contract. It is most unlikely that they
contemplated that the plaintiff would be ex= cused
from the consequences of a
fundamental breach. The clause is in my view to be construed as affording
limited protection to : the
plaintiff against faults or imperfections in the
product of its labours, which is other= wise substantially in accordance with
the.
contract."
/In ...
77.
In my view this reasoning, with which I agree, applies to
clause 4 in the present case.
It is to be observed that on my view of the meaning and effect of clause 4 it
does not matter whether the "defects" alleged in paragraph
3 of the appellant's
further particulars were latent or not, for to the extent that they were, the
clause is nevertheless not applicable
to the facts on which the appellant's main
claim is founded, as explained above. To the extent that my view runs counter to
the concession
made by the appellant's counsel in regard to the exclusion of
liability in respect of the implied warranty against defects, I do
not agree
with it, and I am not, of course, bound by it.
I must now revert to a consideration of the tacit term on which the
appellant's main claim is founded. In the discussion above I have
dealt with the
meaning and effect of clause 4 of the agreement from the point of view of the
breach of contract alleged by the appellant.
But
/the ...
78
the respondent's attack against the main claim is directed at the tacit
term alleged by the appellant. The term alleged is simply
that the locomotives
would be fit for the purpose for which they were intended. If the appel= lant
had alleged a breach of that term
consisting of no more than, say, the presence
of a number of defective parts that could be replaced in terms of the express
guarantee
of clause 4, the main claim would have been open to exception, for in
such a situation clause 4 would have operated to exclude liability
on the part
of the respondent for the relief claimed, and to that extent the tacit term
could be said to be inconsistent with the
ex= press terms of the agreement. If,
on the other hand, the appellant had alleged a tacit term to the effect that the
locomotives
would not be unfit for the purpose for which they were intended by
reason of, say, design defects which could not be cured by the
replacement of
parts, the main claim would not, on my construction of clause 4, have been
/open ...
79.
open to exception, because there would have been no in= consistency
between such a term and clause 4 of the agreement. Does the form
in which the
appellant has couched its alleged tacit term render the main claim excipiable?
In my opinion, not. I do not think that
regard should be had to the tacit term
as alleged in isolation; it should be considered in conjunction with the
appellant's allegations
regarding the respondent's breach of it, as detailed in
the particulars of claim and the further particulars. The tacit term as alleged,
and the allegations regarding the manner in which it was breached, taken
together, are not repugnant to clause 4 and therefore do
disclose a valid cause
of action. The basis of the respondent's attack is that the term is in
irreconcilable conflict with the express
terms of clause 4; it is only on that
basis that the exception can suc= ceed. The principle on which the respondent
relies is that
contained in the well-known passage in the judgment
/of ...
80.
of VAN WINSEN JA in
South African Mutual Aid Society v
Cape Town Chamber of Commerce
1962 (1) SA 598
(A) at 615 D-E:
"A term is sought to be implied in an agreement for the very reason that the
parties failed to agree expressly thereon. Where the
parties have expressly
agreed upon a term and given expression to that agreement in the written
contract in unam= biguous terms no
reference can be had to surrounding
circumstances in order to sub= vert the meaning to be derived from a con=
sideration of the language
of the agreement only. See
Delmas Milling Co. Ltd.
v. du Plessis
,
1955 (3) S.A. 447
(A.D.) at p.
454."
In my view this passage does not apply to the
facts in
the present case. Here, the appellant has alleged a
tacit term
that has a field in which it can validly
operate side by side with, and
independently of, the
express terms of clause 4, and it has alleged
facts
showing that it is in that field that it seeks to apply
the term.
There is an area in which the operation of
the tacit term is excluded by virtue of clause 4, but
/the ...
81.
the appellant does not seek to apply it in that area.
The respondent's exception, in order to succeed, must
strike at the very
root of the appellant's main claim,
so as to destroy it altogether, for the exception is
based on the ground
that the claim discloses no cause
of action, not merely that it is vague and
embarrassing.
In short, the tacit term is not wholly and necessarily
irreconcilable with
clause 4, and the appellant relies
upon it only to the extent to which it can be operative
without impinging
on the express provisions of clause
4.
In the result, the second ground of attack against the main claim must also
be rejected.
In regard to the exceptions to the first and second alternative claims,
counsel for the respondent informed the Court that he was
not pressing the first
and third exceptions to either the first or the second alternative claim. In my
view counsel was wise in
/adopting ...
82.
adopting that attitude. My reasons for saying so can be
stated very briefly. The first exception to the first alternative claim rests
on
the basis that the tacit term alleged by the appellant, i e that the res=
pondent would, in rendering its after sales service
in terms of clause 6 of the
agreement, make and keep the locomotives reasonably operational, contradicted
the ex=
press terms of the agreement. There is no merit in
this point, for clause 6 does not define the respondent's obligations in
regard to after sales service with such exactitude that there
is no room for a
tacit term as to the quality of the service to be rendered. Whether, as a matter
of fact, the term ought to be implied,
is not a question that can be decided on
exception. Similarly, the first exception to the second alternative claim is not
well-founded,
for there is nothing in the written agreement to preclude the
finding of a tacit agreement and a tacit term as alleged by the appellant.
In
regard
/to ...
83.
to the third exception in the case of both alternative
claims, counsel conceded that some of the items of damages claimed by the
appellant
were not of the kind covered by the terms of the exception, and that
in ac= cordance with the principles discussed in cases such
as
Dharumpal
Transport (
Pty)
Ltd v Dharumpal
1956 (1) SA 700
(A) at 706 A-H, these
exceptions could not be sus= tained. I agree, but I would add that in my view
these exceptions were in any
event not well-founded, for the. further reason
that the provisions of clause 4 of the agreement have no application to the
causes
of action contained in the alternative claims.
There remains for consideration the second exception in the case of each of
the alternative claims. Since these exceptions cover substantially
the same '
ground, it will be convenient to deal with them together. The crux of what falls
to be considered appears in each case
from paragraph (a) of the second
exception. The
/main ...
84.
main thrust of the argument of counsel for the respon= dent was that
the alternative claims were doomed to failure because the appellant
could not
create alterna= tive causes of action by what was submitted to be mere changes
in nomenclature, while its claim for damages
or remuneration in each of the
alternative claims re= mained inseparably linked to the cause of action advanced
in the main claim.
Counsel pointed to the fact that the damages claimed in the
main claim, as specified in paragraph 7.2 of the particulars of claim,
were
incor= porated by reference in each of the alternative claims (paragraphs 14.1,
14.2.2, and 20 of the particulars of claim),
and argued that the particulars
furnished in relation to paragraph 7, in paragraph 4 of the further particulars,
were of necessity
also incorporated in the alternative claims. It was pointed
out further that in the particulars furnished in respect of both alter=
native
claims there were specific references to the
/allegations ...
85.
allegations in paragraph 4 of the further particulars (see paragraphs
7 (b), 8 and 9 (a) of the further par= ticulars). Counsel contended
that an
analysis of paragraph 7 of the particulars of claim and paragraph 4 of the
further particulars revealed that the damages
claimed, while appropriate to the
main claim, were wholly unrelated to, and indeed irreconcilable with,
a claim for damages for an alleged breach of the obliga=
tion to service
and repair (the first alternative claim) and a claim for reasonable remuneration
for services rendered and the usual
price of goods supplied (the second
alternative claim). Finally, counsel made a point of the fact that the amount
claimed in the
main claim and in each of the alternative claims was exactly the
same.
In my view the arguments outlined above do not
justify the upholding of the exceptions in question. I
am not convinced that the allegations in paragraph 4 of
/the ...
86.
the further particulars, which were made in response to a request
relating
prima facie
to the main claim only, must necessarily be regarded
as being incorporated en
bloc
in the alternative claims, but I do not
find it necessary to express a firm view on the point. Assuming counsel's
submission to be
correct, it does not follow, in my opinion, that the
alternative claims are fatally defective. The substantive allegations advanced
in them in support of the claims for damages and remunera= tion respectively do
not warrant the description of being mere changes
in nomenclature, in relation
to the main claim; they are entirely distinct and independent causes of action
and the fact that the
same amount is claimed in each case is of no consequence.
It is true that in many respects the allegations contained in para= graph
7 of
the particulars of claim and paragraph 4 of the further particulars are
inappropriate to the claims put forward in the alternative
claims, but it does
not
/follow ...
87.
follow that the alternative claims do not disclose valid
causes of action. The inappropriate particulars are no doubt indicative of
clumsiness in the appellant's plead= ings, and they may well constitute a cause
of embarrass= ment for the respondent, but that is
not the latter's complaint.
Its notice of exception avers that the appellant's pleading (consisting of the
particulars of claim as
amplified by the further particulars thereto)
"lacks averments which are necessary to sustain the causes of action therein set
out."
The arguments of the respondent's counsel do
not sub= stantiate this charge. Moreover, it is possible to isolate portions of
paragraphs
7.2 of the particulars of claim and paragraph 4 of the further
particulars, to which no objection can be taken in relation to the
al= ternative
claims. For instance, the items of R32 415,00 and R14 507,00 in paragraphs 7.2.3
and 7.2.4 in respect of "Cranes" and
"Transport" are particularised in
sub-paragraphs
/(n) ...
88.
(n) and (o) of paragraph 4 of the further particulars without
any express reference to the unfitness of the locomotives for their
purpose;
these paragraphs are accordingly perfectly consistent with the claim for damages
in the first alternative claim and the
claim for remuneration in the second
alternative plea. In accordance with the principles discussed in
Dharumpal
's case supra this in itself is a sufficient reason for not
allowing the exceptions in question.
In my judgment, therefore, the final result is that the Court
a quo
should not have upheld any of the exceptions; all of them should have been
dismissed.
The appeal accordingly succeeds
in toto
.
The order of the Court is as follows:
1.
The appeal is allowed with
costs, including the costs of two counsel.
2.
The order made by the Court a quo
/is
...
89.
is set aside and there is substituted therefor an order as follows:
"All the exceptions are dismissed with costs, including the costs
of two counsel."
A.S. BOT
HA JA
KOTZE JA
CILLIE JA
CONCUR HOEXTER JA
GROSSKOPF JA