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[1994] ZASCA 158
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Bob's Shoe Centre v Heneways Freight Services Proprietary Ltd. (752/92) [1994] ZASCA 158; 1995 (2) SA 421 (AD); [1995] 1 All SA 693 (A) (18 November 1994)
Case no: 752/92
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
BOB S SHOE CENTRE
Appellant
and
HENEWAYS FREIGHT SERVICES
PROPRIETARY LIMITED Respondent
Coram:
BOTHA, HEFER, F H GROSSKOPF, VAN DEN HEEVER et HARMS
JJA.
Heard:
8 September 1994
Delivered:
18 November
1994.
2
J U D G M E N T F H GROSSKOPF JA:
During July 1988 the appellant, who owned two
retail
shoe stores in
Johannesburg, imported a consignment of shoes ("the
goods") from a manufacturer in Portugal, Marcolino Castro LDA
("Marcolino"). The goods were uplifted at Marcolino's factory and
placed on board an aircraft of TAP Airways ("TAP") by a
Portuguese
forwarding agent, ermano Serrao Amaud LDA ("Amaud"). The goods
were conveyed by TAP to Jan Smuts Airport ("the airport"), arriving
on
Thursday 14 July 1988. At the airport the goods were placed in
the
bonded warehouse of TAP, awaiting customs clearance.
It is common cause that there was a contractual relationship
between the parties and that the respondent, who had acted as
the
appellant's clearing agent on previous occasions, was obliged to
effect
customs clearance of the goods and to convey them from the airport
to
the appellant's place of business in Johannesburg. The appellant
3
contended that the respondent's duties extended much further and
that
it was responsible for all the operations from the time the
goods were
collected at Marcolino's factory in Portugal until the
goods were
delivered at the appellant's place of business in
Johannesburg. This was
disputed by the respondent, who maintained
that its contractual liability
only started once the goods had
arrived at the airport. I shall revert to
this aspect. !
In order to effect customs clearance of the goods the respondent prepared
a bill of entry and submitted it to customs at the airport
on Sunday 17 July
1988. The bill of entry did not reflect the appellant's correct importer's
customs code number ("customs number"),
and customs required the respondent to
prepare a voucher of correction. The respondent submitted such a voucher to
customs on Tuesday
19 July 1988. In the mean time the respondent had paid to
customs the sum of R21 627,60, being the duties levied on the goods. On
Wednesday 20 July 1988 customs issued a release order for the goods. When
the
4
respondent presented the release order and other relevant documents to
the official at the bonded warehouse of TAP, it was discovered
that the goods
had been stolen. An unauthorised person had obtained release of the goods by
fraudulent means on Monday 18 July 1988.
The stolen
goods were never recovered.
The effect of the theft was that further performance by the respondent
under the contract became objectively impossible. As a result
of the supervening
impossibility of performance the respondent, in accordance with the general rule
of our law, was discharged from
further performance, while the appellant's
corresponding right to claim further performance was extinguished. (See
Peters. Flamman and Co. v Kokstad Municipality
1919 AD 427
at 434-5:
Oerlikon South Africa (Pty) Ltd v.Johannesburg City Council
1970(3)
SA579(A) at 585A-B; De Wet & Van Wyk Die Suid-Afrikaanse Kontraktereg en
Handelsreg 5th ed 172 et seq,- Christie
The Law of Contract in South
Africa
2nd ed 563-564; Van der Merwe, Van Huyssteen, Reinecke, Lubbe &
Lotz
5
Contract: General Principles
384-385.) The respondent contended,
however, that performance under the contract was divisible, and since there had
been partial
performance, it was entitled to payment pro tanto. The appellant,
on the other hand, maintained that the respondent's
obligation to deliver the goods at its place of business formed an
indivisible part of the contract, and that the contract as a whole
was
accordingly extinguished when such delivery became impossible. The
appellant further contended that it had derived no benefit from
the
respondent's partial performance, and had in fact suffered damage as
a
result of the theft.
The respondent issued summons in the Witwatersrand Local Division
claiming payment from the appellant in the amount of R 30 340,10.
The appellant
in turn made two counter-claims, claiming R72 092,00 as damages for loss of the
goods, and R51 216,05, subsequently
reduced to R45 172,56, in respect of loss of
profit.
The matter was heard by Goldstein J who upheld the
6
respondent's claim to the extent of R29 969,85, and dismissed the
appellant's counter-claims. The amount of R29 969,85 comprised disbursements
amounting to R27 506,47, and fees in the sum of R2 463,38. The disbursements
included the R21 627,60 duties paid by the respondent
to customs, and an amount
of R5 655,32 paid by the respondent to Arnaud in respect of airfreight. The
amount of R2 463,38 claimed
as fees was made up mainly of an "import agency" fee
of 8% on all the disbursements which had been paid by the respondent.
Leave to appeal to this court was granted by the court
a
The respondent's claim was based on contract, and the onus of proving its
terms rested on the respondent. In its amended particulars
of claim the
respondent relied on an oral agreement concluded on 20 November 1987 between the
respondent, represented by Mr Dey,
and the appellant, represented by Mr
Bulbulia. According to the respondent its duties in terms of this alleged
agreement only commenced
once the
7
goods had arrived at the airport. Then it became obliged to attend to
degrouping freight, customs clearance of the goods, and transportation
thereof
to the appellant's place of business. (Prior to amending its particulars of
claim the respondent had relied on an oral agreement
which had been concluded
between the parties in June 1988 in terms of which the respondent in addition
had to arrange for the transportation
of the appellant's goods from Portugal.
The respondent further averred in its original particulars of claim that
pursuant to such
agreement the respondent arranged for the carriage of the goods
by TAP to the airport through Arnaud, "its agent in Portugal".)
Dey, who testified on behalf of the respondent at the trial, specifically
denied in the course of his evidence that the respondent
ever agreed to forward
the goods from Portugal, or to appoint a forwarding agent to do so. According to
his testimony he and representatives
of Arnaud went to see Bulbulia during
November 1987 at the appellant's place of business. Dey was asked what the
purpose of the meeting
was.
8 He replied as follows:
"The purpose of the meeting was, in the first instance for Arnaud to renew
their business relationship with Bob's Shoe Centre as forwarders
and for us as
Heneways to renew our business relationship as clearing
agent."
Dey further testified:
"....what was agreed to was that we would, that the [respondent] would
continue as the [appellant's] clearing agent, that Arnaud would
remain as the
[appellant's] forwarding agent."
This evidence was given nearly five years after the November 1987 meeting
and one gets the impression that Dey was inclined to reconstruct.
It is evident
from Dey's testimony that the respondent and the appellant had done business
before. Aspects such as the terms of payment,
which had previously been agreed
upon, were not even touched on in November 1987. Dey further made it quite clear
that the parties
9
did not conclude any new agreement at this meeting. Nor was that the
object of the meeting. At best for the respondent the parties
merely
reaffirmed certain aspects of their previous agreement. In
fact, on Dey's
version there was no real reason for holding any such meeting.
Bulbulia, who gave evidence on behalf of the appellant at
the trial, emphatically denied that the appellant had appointed Arnaud as
its forwarding agent in Portugal, or that Arnaud ever acted as its
I
representative. Bulbulia agreed that Dey and two strangers, who were
introduced to him as the respondent's agents in Portugal, came to see
him
during November 1987 at his place of business. This was after a
carton
of imported goods previously handled by the respondent for the
appellant
had been lost en route to South Africa. The appellant thereafter
insisted
that its goods be transmitted by means of direct flights from Portugal
to
South Africa. According to Bulbulia the November 1987 meeting
was
arranged by the respondent to reassure the appellant that there would
in
future be no further delays or loss of goods resulting from
overseas
10
transshipments of freight. In my view Bulbulia gave a far more convincing
motive for holding the meeting than Dey did.
The evidence shows that the parties already had a working business
relationship by the time the goods in question were imported in
July 1988, and
it was accordingly not necessary for them to spell out what their respective
rights and duties would be in this particular
instance. After ordering the goods
from Marcolino, Bulbulia got in touch with the respondent in June 1988. He spoke
to Dey over the
telephone and confirmed the repondent's rates. He gave Dey the
name and address of the supplier in Portugal and asked that the respondent
attend to the delivery of the goods.
Dey gave a different version of this telephone discussion in June 1988.
According to Dey, Bulbulia advised him that he had a large
consignment of shoes
on order from Marcolino and Bulbulia asked "if
[Dey] would contact Amaud to give them his instruction to
contact
the supplier and forward the goods on [the appellant's] behalf to
South
11
Africa." The learned judge a quo found this piece of evidence of Dey to
be artificial and unconvincing. I agree with that finding.
Dey throughout his
evidence went out of his way to stress the point that Arnaud was acting on
behalf of and on the instructions of
the appellant. There are however strong
indications that Amaud was acting on instructions from the respondent and as its
representative.
Apart from this one aspect, to which I shall return, there does not
appear to be any real dispute about the terms which governed the
contractual
relationship of the parties. Some of those terms arose from trade usage and
custom and were therefore imported by law.
(
Alfred McAlpine & Sons (Pty)
Ltd v Transvaal Provincial Administration
1974(3) SA 506(A), per Corbett AJA
at 531 E-H.) Other unexpressed provisions of their contract were those tacit
terms which derived
from their actual or imputed common intention, as inferred
from the express terms of their agreement and the surrounding circumstances.
(
Alfred McAlpine's
case,
supra,
at 531H-533B.)
12
It is common cause that, factually, importing the appellant's goods
involved the following separate operations:
(a) the forwarding agent (Arnaud) had to collect the
goods
from Marcolino's factory in Portugal,
convey them to the forwarding ! airport, and consolidate this consignment with
others intended
for the | same airport of destination;
(b)
the forwarding
agent (Arnaud) had to arrange for TAP to carry the goods from Portugal by direct
flight to the airport in South Africa,
and pay the airfreight to
TAP;
(c)
the degrouping agent
(the respondent) had to attend to the degrouping of the individual consignments
after the arrival thereof at
the airport, by distributing the relevant house air
waybills to the individual importers or their respective clearing agents, and
to
reimburse Arnaud for the
airfreight;
(d) the clearing agent (the
respondent) had to prepare a bill
of entry in respect of the goods,
pay the required duties to customs and
13
obtain clearance of the goods from customs;
(e) the local carrier (the respondent) had to take delivery of the goods
from customs and convey them from the airport to the appellant's
place of
business in Johannesburg.
These various operations were all covered by the express or implied and
tacit terms of the agreement concluded between the parties.
It was common cause
that the respondent had agreed itself to perform the last three steps in the
chain of events, each one in a different
capacity. The only aspect which
remained in dispute, as indicated above, was which one of the parties was
responsible for forwarding
the goods, and so obliged to appoint a forwarding
agent to attend to those duties in Portugal. The respondent denied that it was
obliged to attend to the forwarding of the goods in Portugal, and alleged that
Arnaud acted as forwarding agent for the appellant.
The appellant averred the
exact opposite.
It is in my opinion not necessary to determine who
14
appointed Arnaud as forwarding agent in the first instance, and although
I have misgivings about the respondent's version on this
aspect of the case I do
not propose to make a specific finding on this score. For the
purpose of this case I shall assume in the appellant's favour that the
respondent was obliged in terms of their agreement to attend to all I
aspects of the importation from the moment the goods were uplifted
at
Marcolino's factory until they were delivered to the appellant at its place of
business.
The main defence raised by the appellant was based on the so-called
exceptio non adimpleti contractus. (See
Crispette and Candy Co Ltd v Oscar
Michaelis NO and Another
1947(4) SA 521(A) at 537;
Ese Financial Services
(Pty) Ltd v Cramer
1973(2) SA 805(C) at 809A-G; BK Tooling (Edms) Bpk v
Scone Precision Engineering
(Edms) Bpk
1979m SA 391(A)
at 415G-H,
418A-419H; De Wet & Van Wyk 196 ef seq.) The appellant submitted that the
contract between the parties was a single
and indivisible one in terms of which
the
15
respondent was obliged to bring the goods from the door of
Marcolino's
factory in Portugal to the door of the appellant's retail store in Jeppe
Street, Johannesburg, while the appellant, for its part, only
became
obliged to pay the respondent once there had been complete
performance
by the respondent of this contractual obligation. The respondent was, of
course, relieved of further performance because of the
supervening
impossibility of performance caused by the theft of the goods. The
appellant contended that the principle of reciprocity applied to this i
contract and that once the respondent's obligation to deliver
the goods was
extinguished by the supervening impossibility of performance, the appellant was
also discharged from its counter-obligation
to pay. (De Wet & Van Wyk 173.)
The question is whether the appellant nevertheless remained liable to pay the
respondent for
services rendered and disbursements incurred up to the time when
further performance became impossible. The answer depends on whether
performance
under the contract was divisible or not. The appellant argued that, the
contract
16
being entire and the performance indivisible, it was not liable for
part
payment in respect of partial performance. (Cf
Bedford v Uvs
1971(1)
SA 549(C) at 553B-C.)
There are no hard and fast rules to determine whether a performance is
divisible or indivisible, and no real assistance can be derived
from considering
the question of divisibility in this particular case with reference to other
types of contract, such as a contract
to build a house for instance. (See
Wessels
The Law of Contract in South Africa
2nd ed §1612-4; De Wet
& Van Wyk 145.)
In determining whether performance in the present case was divisible or
indivisible, little assistance can be derived from cases dealing
with
severability in contracts in restraint of trade. There a special application of
the doctrine of severability obtains and those
cases should not be applied out
of context. (See Christie 458-461, 465.) The present case is concerned not with
the problem of severing
an illegal or void provision in a contract from the rest
of it (cf
Du Plooy v Sasol Bedrvf
17
(Edms) Bpk
1988(1) SA 438(A) at453E-H;
Sasfin (Pty) Ltd v
Beukes
1989(1) SA 1(A) at 15I-16C, 17C-H), but with the
divisibility or indivisibility of performance. The principles governing the
severability
of an illegal or void provision may, however, be of assistance when
considering the problem of divisibility (cf Van der Merwe, Van
Huyssteen &
Others 226, 229).
In dealing with the related issue of severability
of an offending provision at 16A-B in the
Sasfin
case,
supra
.
Smalberger JA quoted with approval a passage from
Vogel NO v Volkersz
1977(1) SA 537(T) at 548F to the effect that the fundamental and governing
principle for determining severability is to have regard
to the probable
intention of the parties as it appears in, or can be inferred from, the terms of
the contract as a whole.
There can be no doubt that the intention of the parties plays an
important role in determining whether performance is divisible or
not; eg where
two horses are sold, in the nature of things performance is
18
divisible, but not if the parties intended the horses to be sold as a
pair. (See Voet 21.1.4;
Collen v Rietfontein Engineering Works
1948(1)
SA
413(A) at 434-5.) Where the intention of the parties regarding
divisibility is expressly stated in the contract, cadit questio, but
when their
probable intention has to be inferred from the terms of the contract as a whole,
the nature of the performance can be
of decisive importance. (Cf De Wet &
Van Wyk 145; Van der Merwe, Van Huyssteen & Others 227.) In the present
instance there
was no express agreement as to the intention of the parties with
regard to divisibility of performance, and the opinions of the respective
witnesses at the trial are of no assistance in deciding the issue.
Performance will usually by its very nature be divisible where the
contract makes provision for separate or distinct performances,
but it may also
be divisible where the contract provides for a composite performance which can
be subdivided. (See Van der Merwe,
Van Huyssteen & Others 226-228.) In the
present matter the appellant's case
19
was based on the premise that performance was indivisible solely because
there was allegedly a single indivisible contract. The divisibility
of the
contract as such is however not a prerequisite for the divisibility of its
performance (cf Van der Merwe, Van Huyssteen &
Others 226-228); and even if
the parties intended the contract to be a single one, it still made provision
for a composite performance
consisting of separate and distinct operations, eg
the forwarding and degrouping of the goods, the customs clearance thereof, and
the final transportation of the goods to the appellant's place of business.
That, to my mind, is a strong indication of the divisibility
of
performance.
Divisibility of performance does not depend on the divisibility of the
counter-performance (cf Van der Merwe, Van Huyssteen &
Others 228), but
proof of a divisible counter-performance creates a presumption that the
performance is also divisible, provided
each distinct performance can be related
to a corresponding part of the divided counter-performance. (Cf
Du Plooy v
Sasol Bedrvf supra
, at
20
453E-H, a case which dealt with the severability of a void provision from
the rest of the contract.) In the present instance the appellant's
counter-performance was divisible to such an extent that a specified quid pro
quo could be allocated to each distinct performance.
We know for instance that
the "import cartage" for the transportation of the goods from the airport to the
appellant's retail store
amounted to R245,25. When this part of the respondent's
performance became impossible, the corresponding R245,25 of the
counter-performance
could easily be deducted from the respondent's claim. The
fact that a separate part of the performance could be related to a corresponding
part of the counter-performance shows that the parties probably intended
performance, and indeed the contract itself, to be divisible.
The performance which became impossible in the present case was the
delivery of the goods to the appellant's place of business. It
was the last of
the respondent's obligations. In contrast to its other obligations, the
transportation of the goods required no special
expertise
21
on the part of the respondent, and could in fact have been carried out by
any small cartage contractor. The low price which the respondent
charged for
performing this additional obligation shows that it was regarded as an
unimportant collateral matter. The obligation
to transport the goods from the
airport was, by its very nature, merely subsidiary to the main purpose of the
contract, viz the expeditious
forwarding and customs clearance of the goods. (Cf
Cameron v Bray Gibb & Co (Pvt) Ltd
1966(3) SA 675(R) at
676A-677A.)
A useful test which can be applied in deciding whether a particular
provision of a contract is subsidiary to the main purpose, and
therefore
severable from the rest, is to determine whether the parties would have entered
into the contract without that provision.
(Cf
Kriel v Hochstetter House
(Edms) Bpk
1988(1) SA 220 (T) 227H-228A;
Sasfin's
case,
supra
,
at 17D-H, 24B-D; Christie 464.) Although we are here not dealing with the
severability of an offending provision, the present matter
is likewise concerned
with the "severance" of a part of the
22
contract - not because it was an illegal or void provision, but as a
result of the supervening impossibility of performance. I would
therefore apply
the same test in this case to determine whether the term which became
impossible of performance was subsidiary to the main purpose and
therefore severable from the rest.
Bulbulia alleged in the course of his evidence that the appellant decided
to appoint an expert to attend to all the operations involved
in getting the
goods bought in Portugal from the seller to his store here; but, as pointed out
before, no expert was required to
convey the goods from the airport to
Johannesburg. It accordingly seems to me to be likely that the parties would
have concluded
the contract even if it had not provided for any such
transportation. In my opinion this provision regarding the transportation was
in
any event not material to achieve the appellant's ends. I therefore conclude
that the provision relating to the transportation
of the goods was merely
subsidiary or collateral to the main purpose of the contract. As such it was
severable
23
from the remainder of the contract.
For the reasons set out
above I am therefore of the opinion that performance was divisible. The
appellant's main argument can accordingly
not be upheld.
The appellant's second argument was that the respondent could not rely on
the supervening impossibility of performance inasmuch as
the impossibility was
self-created. The appellant contended that the impossibility resulted not from
vis major or casus fortuitus,
but from the respondent's own breach of contract,
and that the respondent accordingly remained bound by the contract. (See
Benjamin v Myers
1946 CPD 655
at 662;
SA Crushers (Pty) Ltd v
Ramdass
1951(2) SA 543(N) at 546H-547G;
Grobbelaar NO v Bosch
1964(3)
SA 687(E) at 691C-G; De Wet & Van Wyk 174-6; Van der Merwe, Van Huyssteen
& Others 384-6; Christie 565.)
It is common cause that the respondent failed to insert the appellant's
correct customs number in the bill of entry and that customs
24
required the appellant to prepare a voucher of correction. This caused a
delay in customs clearance. The appellant submitted that
the respondent, who
professed to be an expert in this field, was obliged to enquire from its lay
customer, the appellant, what its
correct customs number was, and that its
failure to do so resulted in the goods being delayed in the bonded warehouse of
TAP. Assuming
that the respondent was liable for the delay, the question still
remains whether in law that delay caused the supervening impossibility
of
performance. In the final analysis the impossibility of performance resulted
from the theft of the goods, and in my view the delay
caused by the wrong
customs number on the bill of entry did not contribute causally to that theft. I
say this notwithstanding the
ill-advised concession made by Mr Henegan, who
testified for the respondent, that the wrong customs number resulted in the
goods
being detained by customs, which caused the theft. It was not for Henegan
to decide on the issue of the causation, but for the court.
The parties appear
to have accepted a report from TAP that
25
the theft of the goods took place on Monday 18 July between 15:30 and
16:30. It is common cause that the bill of entry with the wrong
customs number
was submitted by the respondent to customs at the airport on Sunday 17 July
1988. The uncontroverted evidence of both
Dey and Henegan was that once the
relevant papers were lodged with customs it normally took two working days to
get imported goods
released by customs. So even with the correct customs number
the respondent would not have been able to obtain customs clearance
of the goods
before the afternoon of Tuesday 19 July 1988 at the earliest. Henegan did say
that the respondent actually had "a result"
as early as Monday morning 18 July
1988, but that was merely a reference to the notification by customs that the
goods had been detained
on the Monday as a result of the wrong customs number
having been entered in the bill of entry. I therefore find that the
impossibility
of performance was not self-created. It was not due to any fault
on the part of the respondent, or to an act or omission amounting
to a breach of
contract.
26
Accordingly the supervening impossibility of performance operated to
extinguish the obligation to perform. The appellant, however,
contended that the
respondent bore the risk of any supervening impossibility of performance, and
advanced three arguments in support
of its contention. In the first place the
appellant relied on Voet 19.2.37 for its argument in this connection. This
passage of Voet
was cited with approval by the trial court in
Bothwell v
Union Government (Minister of Lands
1917 AD 262
at 280, and by this court in
Oerlikon SA (Pty) Ltd v Johannesburg City Council
1970(3)SA579(A) at
584A-B. The appellant's submission was that the contract in the present instance
was one of locatio conductio
operis, and as performance by the respondent had
not yet been "completed and approved", according to Voet the risk of loss fell
on
the respondent. However, the type of contract which was contemplated by Voet
in the passage cited, and which featured in the two
cases referred to, was a
building or construction contract, differing totally from the contract in the
present case. I would not
describe this contract
27
as a locatio conductio operis, but rather as a contract sui generis,
comprising elements of mandatum,depostum and carriage of goods.
But whatever
label one may attach to this contract, it should be borne in mind that
performance in terms thereof was divisible, as
explained above. This clearly
distinguishes the present contract from the typical building or construction
contract which Voet had
in mind.
The appellant submitted in the second place that as the respondent was an
expert in this particular field of activity, it impliedly
or tacitly undertook
the risk of any loss occasioned by the supervening impossibility of performance.
The case on which counsel for
the appellant relied in this regard,
Kroonstad
Westelike Boere Ko-
operatieweVerenigingBpkv Botha
and Another
1964(3)
SA 561(A), does not assist him. That case deals with the liability of a merchant
seller, who professes to have expert knowledge,
for consequential damage caused
by a latent defect in the thing sold. The principles there enunciated cannot in
my opinion be extended
to the type of contract with
28
which we are dealing. The appellant's submission that the respondent
impliedly or tacitly contracted to carry the risk by virtue of
the fact that it
was an expert in the Geld, cannot be sustained.
There was a third and further ground upon which the appellant based its
submission that the risk of loss fell upon the respondent,
viz that the
respondent was liable by virtue of its being a depositary through its alleged
agents Arnaud and TAP. I shall assume
without deciding that the respondent was
indeed a depositary. In the absence of express agreement to the contrary a
depositary in
the case of an ordinary depositum or bailment for reward bears the
onus of proving that loss of or damage to the stored goods was
not due to any
negligence on his part. (See
Frenkel v Ohlsson's Cape Breweries Ltd
1909
TS 957
at 9623, 965, 974-5;
Rosenthal v Marks
1944 TPD 172
at 176;
Government of the Republic of South Africa v Fibre
Spinners and Weavers (Pty)
Ltd
1978(2) SA 794(A) at 802D-H.) But as Murray J remarked in
Rosenthal's
case,
supra
, at 176, "[t]he bailee
29
is not an insurer of the article deposited for safekeeping and is
consequently not liable for the effects of a casus fortuitus". On
the findings
already set out in this judgment the respondent did in fact establish that the
loss occasioned by the theft was caused
by casus fortuitus, and not by any fault
on its part. In view of the aforegoing I conclude therefore that the respondent
did not
bear the risk of loss as a result of the supervening impossibility of
performance.
The appellant's appeal against the dismissal by the court a quo of its
claims in reconvention remains to be considered. They are based
on breach of
contract, alternatively on delict. Insofar as the appellant relies on the
respondent's alleged breach of contract, there
is no need to repeat what has
been said before. For the reasons set out above I have reached the conclusion
that the respondent did
not commit any breach of contract. The counter-claims
cannot, therefore, succeed on that ground. Insofar as the respondent's
counter-claims
are based on delict, I need only reiterate that there is no
evidence to show that the appellant's
30
loss was caused by any fault on the part of the respondent. The
appellant's counter-claims can accordingly also not succeed on the
alternative
basis of delict.
In the result the appeal is dismissed with costs.
F H GROSSKOPF, JA Botha JA Hefer JA Van den Heever JA Harms JA
Concur