IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION. BLOEMFONTEIN)
Reportable / Not Reportable
Case No: Court a quo: 5476/2019
Appeal Case No.: A167/2023
In the matter between:
ROUTE MANAGEMENT (PTY) LTD t/a BUSAF BAUER
and
MISTY SEA TRADING 296 (PTY) LTD t/a
PROJECT LOGISTICS MANAGEMENT Applicant
Respondent
Neutral citation: Route Management (Pty) Ltd v Project Logistics Management,
Appeal no.: A167/2023
Coram: Mbhele, AJP, Van Rhyn, J, et Grobler, AJ
Heard on: 31 January 2025
Delivered on: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand­
down is deemed to be at 1 0h45 on 21 February 2025.
Summary: The nature of the transaction between the parties was
tripartite. The agreement between the Appellant and the
Respondent was one of manufacture, and the rights of
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common law owner was obtained via cession by the
Respondent from the financier of the merx. These
agreements were all interlinked and related. Cause of action
on the sale agreement only did not negate the terms of the
manufacturing agreement. Respondent failed to show
breach of the manufacturing agreement.
ORDER
1. The appeal succeeds with costs, such costs to include the costs of two
counsel where so employed, on scale C for senior-and scale 8 for junior
counsel.
2. The order of the court a quo is set aside and replaced with the following:
2.1 The claim is dismissed with costs, such costs to include the costs
occasioned by the application for absolution from the instance, and
counsel fees on scale B.
JUDGMENT
GROBLER AJ:
INTRODUCTION:
[1] This appeal concerns an order granted by a single Judge of this division on
20 June 2023. The learned Acting Judge allowed the Respondent's ('Project
Logistics') claim against the Appellant ('Route') for payment of R564,300 .00,
interest and costs. Route approached this Court on appeal with leave of this
Court.
[2] The court a quo found for Project Logistics on two essential points. The first
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is that Route's standard terms and conditions, applicable when it
manufactures and sells a trailer to any prospective customer, did not apply in
the present case because the transaction forming the subject matter of the
case on appeal was a contract of sale only. The second is that Route had
breached the terms of the agreement, because trailing arms on the
manufactured trailer only had a clearance height of ninety-seven millimetres
from the ground. The end result of the design was that the trailer snagged on
the· ground when reversed or towed over speed humps, gate rails, rail
crossings and other protrusions on the road. Without more the court a qou
found this to be a breach of the sale agreement.
THE SALIENT FACTS/PLEADINGS AND CONSEQUENT CONTENTIONS:
[3] Most of the facts are common cause.
[4] Project Logistics approached Route in September 2017 to manufacture what
was called a tri-axel step deck trailer for use in Project Logistics' transport
business. Route professed to the general public that it is an expert in all
matters of trailer building. The trailer was required to have a deck height of
950 mm, and it was requested that the combination length of the trailer
(when coupled to a truck tractor) should not exceed 18, 5 meters
[5] Mr Barne Viljoen of Route then supplied Mr du Bourgh and Mr Webb of
Project Logistics with a quotation and drawing of the proposed trailer. All the
technical specifications and details of the design emanated from Route. On 6
November 2017, Mr Du Bourgh wrote to Mr Viljoen accepting the quotation
and drawing, but enquiring on whether the proposed axles may be changed
from 12 ton to 13-ton weight carrying axles, and what the associated cost
would be. Mr Viljoen replied that the axles may be changed at no extra costs.
The trailer was ultimately tailor made for Project Logistics. This is so even
though the initial, engaging response from Route was to supply Project
Logistics with three examples of trailers it had manufactured in the past for
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Project Logistics choice, which were substantively similar to what Project
Logistics required.
[6] In November 2017, Mr Du Bourgh sent an email to mr Van Niekerk of
Reichmans Capital ('Reichmans'). Reichmans was approached to finance
the trailer and it agreed. This was at the behest of Project Logistics. There is
many correspondence that followed between all concerned (including
Reichm~ns) subsequently. The trailer was ultimately delivered in March
2018, with 13-ton axles and a 13-ton air suspension. Route invoiced
Reichmans for the trailer, Reichmans paid and insisted that ownership of the
trailer be registered in its name.
[7] Project Logistics' testimony is that it started encountering problems with the
trailer almost from the get-go. Some of the issues were resolved, but
lingering were that the combination length of the tractor truck and trailer
exceeded 18,5 meters, the lower deck of the trailer did not run level when the
trailer was coupled to a tractor truck and the trailer suspension and trailing
arms snagged on the ground when the trailer was being reversed or when
the trailer was being towed forward, over speed bumps and the like.
[8] After much ado in attempts to remedy what Project Logistics experienced
and after some expressed exasperation by Mr Webb, the trailer was
delivered back to Route. It would appear that the trailer travelled
approximately fifty-eight thousand kilometres when it was given back. The
claim was then instituted seeking repayment of the purchase price of the
trailer, and after Reichmans had ceded its rights qua common law owner to
Project Logistics. The claim was instituted on the sale portion of the
transaction only.
[9] Some interposition is necessary; -Mr Hoar, for the Respondent, I think
correctly submitted that what Project Logistics initially and truly wanted was a
trailer of a specific length, with a nine hundred and fifty millimetre deck
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height.1 Route provided a design and drawing for said trailer, and at a
certain stage Project Logistics had asked for adjustments on the trailer
because it wanted a different suspension, and different axles. Different
wheels were sought as well. All this is uncontentious, and it is equally
uncontentious that Route ultimately provided what it said it would. That is not
where the true dispute is.
[1 O] It could only ever have been common cause (although Route somewhat
strangely denied initially that it had concluded such a transaction) that
Reichmans bought the trailer from Route. Much was made in the Heads of
Argument filed for Route of documents serving as aliunde evidence to show
that "the [Route] Client" was none other than Project Logistics. And all this in
an attempt to buttress its case in the plea filed, which was that the sale
agreement it concluded was with Project Logistics and not Reichmans. To
my mind Route was mistaken, and I agree with Hoar when he submitted that
the sale part of the transaction was between Route and Reichmans. This
argument found favour with the court a qou as well.
[11] Project Logistics argued and presented its case on the basis that the
transaction was one of pure sale. At least that is what it pleaded its case to
be, thereby arrogating the right to rely on the sale agreement only. That is
because, and of some significance, the Route standard terms and conditions
document provided by Route on at least two occasions that I could count
when the parties were still discussing the specifications of the trailer, stated
that should the trailer be supplied in accordance with instructions and/or
specifications and/or dimensions specified by Project Logistics, the latter
would have no claim of whatsoever nature. against Route should the trailer
not be suitable for the purpose it was purchased and as required, and for any
loss or damage Project Logistics might suffer as a result of any error,
1 The court a qou found against the Respondent on the length argument. That finding was correct, the
Appellant could never objectively have provided a trailer which would under all circumstances be of a specific
length. That is because all agreed that measurement is fundamentally influenced by the length of the tractor,
and there is no one size fits all tractor.
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result of any error, discrepancy or deficiency in such instructions and/or
specification and/or dimensions. This is expressly set out in clause 8.1 of that
standard document. In presenting its case as a quintessential sale, Project
Logistics argued that this clause did not bind, because it did not an'd could
not have had anything to do with Reichmans. Ingenious certainly, but on the
basis I explain below, flawed. Indeed, it is raised by its own petard
THE CONTRACTS:
[12] As I have mentioned, Mr Hoar argued that the Project Logistics' case was
simply based upon an agreement of sale having been concluded between
Reichmans and Route. He submitted that the particulars of claim only went
that far, and that Route had failed to plead any other agreement governing
the relationship between it and Reichmanns.
[13] For Mr Hoar it was incumbent upon Route to plead the terms of any specific
contract otherwise and name it, and if it were of intent to prove that this was
no simple sale agreement.
[14] Mr Snellenburg (appearing with Mr Groenewald) for Route submitted to this
that what Project Logistics was attempting to do was to cherry-pick the terms
of the actual transaction between the parties that suited it, whi)st -under the
guise of asserting a sale agreement only -wishing to avoid other terms.
[15] This point was debated at some length in argument before us. I have no
doubt that Mr Hoar is correct when he says that the terms upon the sale
agreement only were relied upon -at least in its particulars of claim. And it
seems evident that the court a quo dealt with the case as if it were a simple
sale transaction and a sale transaction only.
[16] All the evidence led however, and to my mind, these cannot support a case
in terms of which the court should have dealt with the matter as if it were a
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simple sale transaction. It is for that reason that the court a quo ultimately
found that the Route standard terms and conditions did not apply. It seems
to me rather clear that what was in fact here concluded was a tripartite
transaction between Route, Project Logistics and Reichmanns. That clearly
was the arrangement and respectfully I think this is the decision that the
court a quo should indeed have made. All the evidence provided, I think the
court a qou misdirected itself through heavy and exclusive reliance on the
pleadings at the end of the case.2 The court was to determine the true
dispute, and certainly was not bound to the name the parties gave to the
transaction or contract. Granted; -the plea filed for Route did not make the
court a qou's task easier.
[17] When confronted with what we thought was the true nature of the
transaction, Mr Hoar told us that Koen J had written a judgment where he
dealt with the relationship between parties inter se concerning a sale of an
asset that was ultimately financed by a third-party financial institution. I was
able to source the decision of Maharaj's Coach and Bus Hire CC v
Dealership Middelburg Man (Ply) Ltd and 2 Others3. The facts of that case
are specific to the matter that served before that court,· but in para 25 Koen J
held as follows (after dealing with the terms of the agreement between the
parties inter se):
2 See on these decisions such as: Sentrachem Beperk v Wenho/d, 1995 {4} SA 312 (A) at 320. The then
Appellate Division held as follows-on this:
'Waar al die relevante getuienis voor die hof is, hoef daar myns insiens nie meer soveel nadruk op die
pleitstukke gele te word nie, maar behoort hierdie hof die soak te bes/is op die werklike geskilpunte
wot gedurende die verloop van die verhoor in die hof a quo uitgepluis is.'
See also; -Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd and
Others (2008) (2) SCA para 31. The court referred to Shill v Milner (1937) AD 101 at 105. See also Mcgrane v
Cape Roya/e The Residence (Pty) Ltd (2021) ZASCA 139 at para 22.
3 Case No. 14058/2018 Pietermoritzburg High Court, 10 August 2022.
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'As much as the above agreements must each be interpreted on their
own, they are all part of a composite tripartite transaction which
incorporates the terms of the individual agreements. Alternatively, and
in any event, even as separate self-standing agreements, they are
interdependent.'
[18] do not believe that it was one contract ultimately concluded betwee~ all
three of these parties. But I do believe that the individual contracts were
interlinked, interdependent upon one another. There wouldn't have been
one had there not been the other, which to my mind means Koen J was
correct when he held that -as is. the case in the present matter -the
agreements are self-standing agreements. One is to distinguish between the
holistic transaction and the enforceable agreements that underlie it. All this
means in the present case is that the agreement between Route and Project
Logistics was one of manufacture, the agreement between Route and
Reichmanns was one of sale and between Reichmanns and Project Logistics
was one of credit extending finance. All bound those agreeing to them.
[19] Significantly this means to my mind that the Route standard terms and
conditions would always bind between it and Project Logistics. That the plea
denied selling to Reichmans, or pleading nothing positively of a specific [
manufacturing] contract and naming it thus does not matter. It appears to
me clear that this was the transaction viewed as a whole.
NO BREACH:
[20) The court a quo found in favour of Project Logistics simply because the
trailing arms had a clearing height of ninety-seven millimetres from the
ground. The court a quo found that the manufactured trailer was not fit for the
purpose for which it was designed, and viewed this to be a breach of the
manufacturing contract. I have difficulty with this, because it does not
axiomatically follow that that clearance height amounted to breach at all. If
the parties agreed on that height, or that is what Project Management
9
wanted, or told Route that is what it wanted, or approved a design where that
was the height, it cannot be said that Route breached the agreement when it
delivered a trailer with those trailing arms clearing height, regard being had
to the fact that the height of the trailer was 170mm from the ground with its
original 12-ton suspension.
[21] Mr Hoar was ably alive to this, and from this realization the morphed gist of
the dispute. Mr Hoar submitted that there was a duty upon Route qua expert
trailer manufacturer to advise Project Logistics on detrimental implications of
changing the suspension, wheels and axles on the trailer as well. Vacuously
this is correct and this caused some debate before, because the sale
agreement punted and relied upon by Project Logistics could not have
incorporated any designing advice viz-a-viz Reichmanns. That would be a
logical non-sequitur, because all the evidence showed that Reichmans did
not require anything specific re dimensions, clearance heights etc. All
Reichmans wanted was for Route to deliver a trailer of the nature and overt
qualiti~s to Project Logistics as it [Route] promised .. This is also why
Rei'cmans agreed with Project Logistics that should there be any functionality
issues with the trailer, that would be of no concern to Reichmans.
[22) • And when Mr Viljoen testified for Route, he was cross-examined (somewhat
uncontested by counsel then appearing for Route) on advice duties Route
had apropos the design and advice on the functionality of the trailer. From
here -as I understood Mr Snellenburg's argument -the cherry-picking of
contractual terms as and when these suited Project Logistics. I think this is
correct on the whole as an accusation against Project Logistics, but the
problem with Mr Hoar's argument lies deeper. It was not Project Logistics'
case that there had been a negligent breach of contract, in that advice was
sought or impliedly required but was not given or wrongly given. That is a
different case all together. And even if I am wrong or being somewhat unfair
in this finding, it seems to me that the exemption clause in the Route's
standard terms and conditions safeguarded Route against these flaws, and
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consequently this case.
[23] I have no problem in finding that the agreement actually was one of
manufacture [as between the Appellant and the Respondent], and those
terms are the most governing between Route and Project Logistics. And the
authorities are rather trite as to the consequences of concluding such an
agreement. But the totality of the evidence however reveals that Project
Logistics got exactly what it had asked must be designed and manufactured
for it. That is to say, it had requested the manufacture of the trailer and the
actual question was simply if it got what it paid for. It did. Had the design
included a trailing arms height of more than what was built the case would
have been different. I have no doubt that Project Logistics experienced
intermittent problems with the trailer, but it failed to show that these problems
were caused because of any breach of the manufacturing agreement it
concluded with Route.
CONCLUSION:
[24] For these reasons I believe the appeal should succeed and I make the
following order:
1. The appeal succeeds with costs, such costs to include the costs of two
counsel where so employed, on scale C for senior counsel and scale B for
junior counsel.
2. The order of the court a quo is set aside and substituted with an order as
follows:
2.1 The claim is dismissed with costs, the costs of counsel on scale B and
such costs to include the costs occasioned by the prosecution of the
application for absolution from the instance.
I concur.
I concur.
On behalf of the Appellant:
On behalf of the Respondent: Adv. N Snellenburg SC
Adv. W. Groenewald
On instruction of:
Symington & de Kok
BLOEMFONTEIN
Adv. S. Hoar
On instruction of:
Lot Attorneys
c/o Honey Attorneys
BLOEMFONTEIN 11
ER,AJ
I\IIBHE~, AJP
~ /