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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 3860/2020
In the matter between:
AMANDA MACPHERSON Plaintiff
and
SEABOURNE INXPRESS (PTY) LTD
First Defendant
PROTEA ELECTRONICS (PTY) LTD Second Defendant
Coram: NJOKWENI AJ
Heard on: 20 NOVEMBER 2025
Delivered on: 21 MAY 2026
Summary: Law of contract – validity of a contract – animus contrahendi – ad idem
requirement – uniform rule 18 – admissibility of hearsay – section 3 of the Law of
Evidence Amendment Act 45 of 1988 – evidentiary burden – balance of probabilities
– credibility findings – adherence to issues in pleadings – costs.
ORDER
1. The Plaintiff’s claim is dismissed.
2. The Plaintiff to pay the First Defendant’s costs of suit, inclusive of the costs
of the hearing of the trial on 6 and 7 November 2025, with Counsel's fees
to be taxed on scale B.
JUDGMENT
NJOKWENI AJ
INTRODUCTION
1. It is often said that ‘he who alleges must prove’. The court in Pillay v Krishna
and Another 1 addressed the basic rules governing the incidence of the burden of
proof.
The court said the following:
‘If one person claims something from another in the Court of law, then he has to satisfy the
Court that he is entitled to it. But there is a second principle which must always be read with
it: “. . . Where the person against whom the claim is made is not content with a mere denial
of the claim, but sets up a special defence, then he is regarded quoad that defence, as being
the claimant: for his defence to be upheld , he must satisfy the Court that he is entitled to
succeed on it. . . . But there is a third rule, which Voet states . . . as follows: “He who asserts,
proves and not he who denies, since a denial of a fact cannot naturally be proved provided
that it is a fact that is denied and that the denial is absolute.” . . . The onus is on the person
who alleges something and not on his opponent, who merely denies it.
2. This is at the heart of a legal battle between Mrs Amanda MacPherson
(“Plaintiff”), a businesswoman and a Laser hair removal therapist from Cape Town,
and two companies she allegedly entrusted with transporting her Lightsheer ET
Laser machine, valued at R711,160.00 (the “Laser machine”). These two companies
are: Seaborne Inexpress (Pty) Ltd, as the First Defendant (Inexpress), a logistics
company with a footprint throughout the country (including Cape Town), and Protea
Electronics (Pty) Ltd (Protea), as the Second Defendant, an electronics company, as
the name suggests.
3. What started as a simple agreement to deliver the Laser machine from Cape
Town to Johannesburg has spiralled into a hotly contested court action, with
Town to Johannesburg has spiralled into a hotly contested court action, with
1 1946 AD 946.
allegations of negligence, breach of duty of care , and a missing Laser machine. The
Plaintiff instituted a legal action in this Court , fighting to hold Inxpress and Protea
accountable for what she claims is a breach of contract. Alternatively, a breach of
legal duty by the Defendants through negligent conduct. The Plaintiff seeks damages
of R711,160.00 from the Defendants, jointly and severally, for the loss of the Laser
machine. Has she succeeded in proving her allegations against these companies, or
at least one of them? The decision and reasons of the Court appear below in this
judgment.
RELEVANT BACKGROUND FACTS
4. The plaintiff issued a combined summons in this Court on 20 February 2020.
The plaintiff’s claim is set out in the original particulars of claim attached to the
summons (POC).
The POC
In the POC, the plaintiff inter alia alleged that:
a. In August 2018, the plaintiff (represented by James MacPherson) entered into
an oral agreement with Protea (represented by Shaun Kerr).
b. In terms of the oral agreement, Protea undertook to arrange collection and
conveying of a Lightsheer ET Laser machine (“Laser machine”) from the offices of
SBSS in Cape Town to Protea's premises in Johannesburg for the normal carrier fee
charged by Inexpress and in terms whereof, Inexpress owed to the Plaintiff the
liability for, alternatively the risk in and to, the Laser machine , a duty of care to
ensure that the Laser machine is delivered in the same condition as collected from
SBSS offices in Cape Town.
c. Protea in turn contracted Inexpress to collect and convey the Laser machine
from SSBS and deliver same to Protea’s premises in Johannesburg.
d. despite the terms of the oral agreement between Plaintiff and First Defendant,
alternatively Second Defendant, First Defendant failed to deliver the Laser machine
at the agreed delivery address.
e. First defendant was responsible for collecting, transporting, and delivering the
Laser machine in the same condition as it was collected.
Laser machine in the same condition as it was collected.
f. On 16 August 2019, Inexpress collected the Laser machine but failed to
deliver it to the agreed destination.
g. Inexpress' employees instructed SBSS staff not to specify the Laser machine's
description or value on the waybill, allegedly to prevent theft. The Laser machine ,
valued at R711,160, was lost or damaged during transit. The plaintiff claims that the
first and/or second defendant breached their duty of care by failing to safeguard the
Laser machine, ensure proper handling, and deliver it in its original condition. As a
result, the plaintiff is seeking damages of R711,160 for the loss of the Laser machine.
5. Inexpress defended the action by filing a notice of intention to defend on 3
March 2020.
The exceptions and irregular step proceedings
6. Subsequently, Inexpress delivered an exception on 23 March 2020 on the
basis that the POC lacks the necessary averments to sustain a cause of action
against Inexpress in contract or in delict. Alternatively, on the basis that the POC is
vague and embarrassing because the Plaintiff allegedly failed to plead a factual basis
on how the alleged duty arises. On 15 October 2020, Inexpress’ exception was
argued on the basis of opposition before Mantame J, who dismissed it on 29 October
2020 for procedural irregularities.
7. Inexpress delivered a straight exception to the POC dated 17 December 2020.
The basis of the exception was that the POC lack ed the necessary averments to
sustain a cause of action against it, either in contract or in delicts. The exception was
argued before Saldanha J on 26 October 2021, and the Plaintiff was afforded an
opportunity to amend the POC within 15 days of the granting of that order, and First
Defendant’s right to file a further exception, if necessary, was reserved. Alas! The
Plaintiff failed to amend the POC in terms of the Order of Saldanha J.
8. Inexpress then filed an affidavit in support of an intended application for the
dismissal of Plaintiff’s action or Inexpress’s absolution from the instance as a result of
non-compliance with the order of Saldanha J.
9. The Plaintiff then delivered a notice in terms of uniform rule 30(2)(b) dated 23
February 2022. The heading reads: “NOTICE IN TERMS OF RULE 30(2)(b) TO THE
IRREGULAR PROCEEDING OF FILING OF A SUPPLEMENTARY AFFIDAVIT IN THE
NOTICE 23 EXCEPTION ”. This notice purported to be an objection against Inexpress’
filing of an affidavit (without leave be ing granted to amend Inexpress’ rule 23(1)
notice and leave to file the “irregular affidavit”. However, the Plaintiff’s rule 30(2)(b)
notice and leave to file the “irregular affidavit”. However, the Plaintiff’s rule 30(2)(b)
notice called upon Protea to remove the affidavit of Mr M Hoeksema (First
Defendant’s Attorney) in support of an intended application for the dismissal of
Plaintiff’s action. As a result, Inexpress did not remove the affidavit of Mr Hoeksema
because the notice of removal thereof was calling Protea to do so.
10. Eventually, on 7 March 2022, the Plaintiff filed an application in terms of
uniform rule 30 for the setting aside of Mr Hoeksema 's affidavit as an irregular step
and for its removal from the court file. This application culminated in an order by
agreement being issued by De Wet AJ on 10 March 2022, granting Plaintiff leave to
amend the POC within 15 days in terms of uniform rule 28.
Plaintiff’s first rule 28 notice
11. In an attempt to cure the alleged defect in the POC, t he Plaintiff delivered a
notice of intention to amend dated 2 8 March 2022 . On 11 April 2022, Inexpress
objected to the notice of intended notice on intention to amend in terms of uniform
rule 28(3) on the basis that the intended amendment to the POC, even if effected,
would be excipiable because it lacks necessary averments to sustain a cause of
action.
12. On 7 March 2023, Saldanha J again granted the Plaintiff an indulgence to
amend, within 15 days of that order, the POC dated 19 February 2020. In addition,
the Saldanha J granted leave to Inexpress to apply on notice to the Plaintiff for
dismissal of Plaintiff’s claim with costs in the event of the Plaintiff failing to file a
notice of intention to amend timeously, alternatively to effect the proposed
amendment in terms of rule 28, alternatively to file an application for leave to amend
in the event of an objection by Inexpress to a notice of intention to amend.
The second rule 28 notice
13. On 27 March 2023, the Plaintiff delivered a second notice of intention to
amend the POC. In this new notice of amendment, the Plaintiff alleges that she
concluded a partly written and partly oral agreement with Inexpress in terms of which
Inexpress agreed to transport the Laser machine from Protea’s offices in Cape Town
to the latter’s Johannesburg offices . The plaintiff also alleges that the express,
alternatively implied, alternatively tacit terms of the agreement, inter alia, imposed a
legal duty on Inex press to transport the Laser machine with the reasonable skill and
care expected of a courier and a transport company . On 12 April 2023, Inexpress
delivered a notice of objection to the Plaintiff ’s intended second amendment to the
POC. On 28 April 2023, the Plaintiff then filed an application for leave to amend in
terms of uniform rule 28(4). My emphasis
14. On 2 November 2023, the Plaintiff’s application for leave to amend the POC
14. On 2 November 2023, the Plaintiff’s application for leave to amend the POC
was served before Salie J , who granted leave to amend. Notably, she found that the
intended amendment does not introduce a new cause of action and thus the issue of
prescription does not arise. The Plaintiff subsequently delivered the amended POC
on 15 November 2023.
Inexpress’ Special Plea
15. Inexpress delivered a plea and special plea of prescription to the amended
POC dated 15 January 2024. The Plaintiff failed to file any replication to both the plea
and special plea. The special plea was later abandoned, and therefore, is irrelevant
in this judgment.
Inexpress Plea on Merits
16. Inexpress pleaded that no agreement existed between the Plaintiff and
Inexpress, for the following reasons:-
a. An application for credit, which also constitutes an agreement (hereinafter "the
agreement"), was concluded between the First -and Second Defendant in terms of
which Inexpress would transport the Laser machine;
b. A copy of the agreement, together with the relevant terms and conditions
thereto, is attached to Inexpress’ Plea;
c. It is pleaded that the terms of the agreement as well as the terms and
conditions thereto, be incorporated thereto;
d. Inexpress was to transport the Laser machine on Protea's behalf.
17. After the looting of the Laser machine, and on 19 August 2019, the Second
Defendant's Logistics Manager, Mr. Abdul Casoo, requested from Inexpress the
relevant details of the looted Laser machine in order for Protea to claim from its
insurance. It is specifically denied that any agreement was entered into between the
Plaintiff and Inexpress. It is therefore pleaded that the Plaintiff has no basis in law to
claim from Inexpress, and the Plaintiff is put to the proof thereof.
18. The parties reached litis contestatio (close of pleadings) with no prospects of
settlement in sight . The matter the n proceeded to trial before me, and after each
party’s case was closed, I reserved judgment and requested written submission s
from counsel for both parties. Counsel duly delivered their written submissions. I am
grateful.
ISSUES FOR DETERMINATION
19. After litis contestatio , the issues for determination had crystallised, and the
stage was set for trial , at which the parties would adduce their evidence and cross -
examine each other’s witnesses. The crystallised issues for determination are:
a. Whether the Plaintiff has prove n a conclusion of a carriage contract (to wit:
a. Whether the Plaintiff has prove n a conclusion of a carriage contract (to wit:
carriage of the Laser machine) with Inexpress. If not, is Inexpress liable for loss or
damage to the Plaintiff’s Laser machine whilst being transported by Inexpress.
b. The admissibility of the alleged hearsay evidence of:
aa. Mrs Harris for Inexpress.
bb. The Plaintiff.
c. Is it permissible for a party in litigation to make out a new case in argument
(both written and oral?
THE EVIDENCE AT TRIAL
20. It is important to highlight that the case that Inexpress had to meet at the trial
is pleaded in the amended POC, and Inexpress’s defence is set out in the plea.
Plaintiff’s case
21. The Plaintiff testified in August of 2019, was a business owner and a laser hair
removal therapist. The Plaintiff practised under the name Body Laser and utilised a
highly technical Laser machine (which requires specialised training for) to perform
Laser hair removal treatments on her clients. The Plaintiff testified that the Laser
machine she used was a class 4 Laser machine, which the Plaintiff purchased in
2004 for $73 000.00 (seventy-three thousand Dollars). At the time the Laser machine
was purchased, the exchange rate was R6.74 to the dollar. The Plaintiff needed to
courier the Laser machine from Cape Town to Johannesburg for service.
22. Both the Plaintiff and Mr MacPherson testified that the Plaintiff instructed Mr
MacPherson to take the Laser machine to SBSS's office at [...] P[...] Road, V&A
Waterfront, Cape Town and arrange for couriers to transport it to Johannesburg.
SBSS is a company in which the Plaintiff was , and still is , the sole director and
shareholder. SBSS specialises in the sale and service of broadcasting equipment.
23. Mr MacPherson testified that he accordingly instructed Abdul Casoo ("Mr
Casoo"), the logistics manager of Protea, to arrange the courier of the Laser machine
and Najma Hoosain ("Ms Hoosain"), the office administrator of SBSS , to package the
Laser machine.
24. The Plaintiff testified about an email sent by Mr Casoo to Inexpress dated 16
August 2019 in which Mr Casoo instructed Inexpress to collect the Laser machine
from SBSS's offices and deliver it to Protea's offices in Johannesburg by road. Ms
Hoosain was copied in this email. The Plaintiff testified (without more) that Inexpress
would be responsible should the Laser machine be damaged, as they were
responsible for its safe transport.
responsible for its safe transport.
25. Ms Hoosain's evidence is that she carefully packaged the Laser machine for
transport and testified that she placed fragile stickers on its packaging. Ms Hoosain
filled out the following parts of Inexpress’ waybill in respect of the carriage of the
Laser machine:
a. The details of the companies from which and to which the courier must deliver;
b. the sender’s name and contact number;
c. the receiver’s name; and
d. sender's name, signature and date thereof at the bottom left of the waybill.
26. Ms Hoosain's evidence is that she was familiar with the courier person who
arrived to collect the Laser machine and that his name was Ricardo. Ricardo
informed Ms Hoosain not to fill out the description of contents space on the waybill if
the goods being couriered were of a high value, as there this increased the risk of
theft. Ms Hoosain testified that this was common practise when utilising the services
of Inexpress.
27. Mr MacPherson , during his testimony, referred to a different waybill of
Inexpress, which was for the carriage of a camera lens that SBSS had bought and
received from a competitor, Visual Impact. Similar to the waybill in this matter, Visual
Impact did not include a ‘description of content ’ due to the high value of the camera
lens being transported.
28. Ms Hoosain testified that Ricardo filled out the dimensions and weight of the
Laser machine and that, usually, the courier also filled out the account number;
however, on this waybill, it was left blank. Ms Hoosain filled out the receiver’s name
as Abdul/James because the Laser machine would arrive at Protea's office in
Johannesburg, and Mr Casoo would take receipt of it, after which Mr MacPherson
would ultimately collect it from Mr Casoo to get it serviced.
29. Mr Macpherson testified similarly to Ms Hoosain in this regard. Ms Hoosain's
evidence in this regard was uncontested. It is common cause that the Laser machine
was collected and , during transit, was involved in an accident and thereafter stolen
from the delivery truck carrying it. The Plaintiff read out the contents of an email sent
by a representative of Inexpress to Mr Casoo on 19 August 2019,0 in which
Inexpress informs Mr Casoo of the aforesaid events and apologises for any
inconvenience to Mr Casoo or his client.
30. Mr MacPherson testified that Mr Casoo had informed him of the aforesaid
30. Mr MacPherson testified that Mr Casoo had informed him of the aforesaid
email while he was in a meeting and informed him of what had happened. Mr
MacPherson was referred to an email he sent to Chris Piers, an employee of Protea,
which evidenced that he was , at all times , the person responsible for settling the
freight bill on behalf of his wife. Mr MacPherson never settled the invoice, as he said
no invoice had ever been sent to him and he presumed this was because the l aser
machine was never actually delivered.
31. The Plaintiff testified that she was very distressed when she received the news
that the Laser machine had been stolen. The Laser machine was her sole source of
income, and she had clients who relied on her to continue their treatments. The
Plaintiff explained to the Court that she and Mr MacPherson had been in contact with
a representative of Inexpress, Madeeka Jacobs (“Ms Jacobs ”), who requested
documentary proof of ownership of the Laser machine and would send this through
as a claim from their insurance.
32. The Plaintiff testified to this with reference to the email correspondence
between her and Ms Jacobs, which shows that she emailed proof of ownership to Ms
Jacobs. The subject line of the e -mail contained the waybill number. The Plaintiff
followed up with Inexpress regarding her claim and was put in contact with a different
Inexpress representative, Nandi Swart (“Ms Swart ”). On 22 October 2019, the
Plaintiff emailed Ms Swart and thanked her for the telephone conversation they had
had about the Plaintiff's c laim and asked to please be kept updated about the status
of the claim. On 5 November 2019, the Plaintiff sent a follow -up email to Ms Swart
regarding the status of her claim.10 Similarly, the subject line of the e -mail was the
waybill number.
33. The Plaintiff explained to the Court that she never received any response to
either of the aforementioned emails, and furthermore that she followed up numerous
times as to the status of her claim by calling and emailing Inexpress, to no avail. The
Plaintiff testified that to this day she has not been compensated for the loss of the
Laser machine.
Inexpress’ case
34. Inexpress called only one witness to testify - its managing director Ezelle
Harris (“Ms Harris ”). Ms Harris has been in the courier industry since 1994 and
started Inexpress in 2004. Inexpress is predominantly a domestic courier. Ms Harris
is the managing director of Inexpress. Ms Harris' responsibilities in Inexpress relate
to ensuring that the business is running as it should, which includes oversight of staff
training and general business compliance. Ms Harris was asked during examination -
in-chief whether it is typical for Inexpress to enter into an oral agreement, to which Ms
Harris responded - no, usually Inexpress would enter into a written agreement before
Inexpress would undertake a delivery.
Inexpress would undertake a delivery.
35. Inexpress received a request for a delivery from Protea, which was typical of
Protea to send. There was no indication it was for or on behalf of someone else until
after the accident and subsequent looting of the delivery truck which was carrying the
Laser machine
36. Ms Harris’ evidence is that Inexpress still deals with Protea as of the date of
Ms Harris ’ testimony. Ms Harris testified that every client seeking to utilise
Inexpress’s courier services must complete a credit application, which includes the
standard terms and conditions that Inexpress requires its clients to sign. The credit
application Ms Harris was referred to was Protea's application to Inexpress.
37. The aforesaid invoice was paid by Protea on 30 September 2019, together
with payment for other goods transported under a different freight. Under cross -
examination, Ms Harris was referred to an email sent by Mari Schwartz ("Ms
Schwartz"), an employee of the First Respondent, to Mr Casoo on 19 August 2019. It
was pointed out to Ms Harris that the aforesaid email states: "shipped by SBSS" and
"consigned to Protea Electronics". SBSS is the company owned by the Plaintiff. Ms
Harris testified that all this meant was that the package was sent by SBSS and was
to be delivered to Protea.
38. Ms Harris testified that it was possible for customers to ship items which they
do not own. Ms Harris was referred to an email sent to her by Ms Swart on 28
February 2020. Ms Harris testified that Inexpress had utilised a third-party service
provider, Emit , to courier the Laser machine . Ms Swart informed Ms Harris in the
aforesaid email that the Plaintiff's claim had been submitted to Emit but rejected
because the Plaintiff did not have a service level agreement with Inexpress. Ms
Swart further informed Ms Harris in the aforesaid email that she had also been told
not to submit a claim through Inexpress’s insurance company, Bruvos.
39. No instruction was received directly from the Plaintiff regarding the
transportation of the Laser machine . Such instruction was received from Mr Abdul
Casoo on behalf of Protea. There were no prior discussions with the Plaintiff or Mr
MacPherson regarding the transport of the Laser machine . At the time of the said
instruction, Protea was already a standing client of Inexpress, wh ich has a credit
facility with Inexpress, and further, any transport for Protea is subject to Inexpress’
Standard Conditions of Agreement.
40. Inexpress would not have concluded an oral agreement with the Plaintiff. Any
agreement with any client would be subject to Inexpress’ Standard Conditions of
Agreement. Since the instruction came from Protea, the transport of the Laser
machine was subject to Inexpress’ Standard Conditions of Agreement. The said
Standard Conditions of Agreement limits Inexpress’ liability.
Standard Conditions of Agreement limits Inexpress’ liability.
41. Inexpress did not assume liability for the Plaintiff ’s loss by responding to her
emails requesting documents for insurance purposes. Inexpress followed its internal
processes, after which any claim was rejected because the Plaintiff was not the
contracting party.
LAW AND ANALYSIS
42. In this case , the Plaintiff sues Inexpress on a partly written and partly oral
contract. Uniform rule 18(6) thus finds application, and it provides:
“A party who in such party's pleading relies upon a contract shall state whether the contract
is written or oral, when, where and by whom it was concluded, and if the contract is in
writing, a copy thereof or of the part relied on in the pleading shall be annexed to the
pleading.”
43. Rule 18(6) speaks of a party who , in his pleading, relies on a contract or part
thereof. A party clearly relies upon a contract when it uses it as a link in the chain of
its cause of action.2
44. The Plaintiff attached the amended POC as POC1, which she contends is the
written part of the agreement . Accordingly, the Plaintiff uses POC1 as a link in the
chain of her cause of action. However, this purported written part of the agreement
poses fundamental difficulties for the Plaintiff’s case, namely:
a. From a plain reading, the agreement constitutes an agreement (collection
instruction) between Second Defendant, represented by Mr Abdul Casoo, and
Inexpress, represented by Ms Kimberley Zhou;
b. Ms Zhou's response to Mr Casoo states: "Thank you for your collection
request, "referencing the request from Mr Casoo.
c. Nowhere does the name or details of the Plaintiff appear;
d. No instruction from the Plaintiff to Inexpress is apparent from the alleged
agreement.
45. In fact, the instruction expressly and clearly emanated from Mr Casoo at
Protea via email . Accordingly, POC1 does not support the Plaintiff’s allegation of
conclusion of an agreement with Inexpress.
46. In its plea, Inexpress denies concluding the alleged carriage agreement with
the Plaintiff or any agreement whatsoever for that matter , so it was incumbent upon
the Plaintiff to adduce evidence at trial to prove the conclusion of the alleged partly
written and partly oral agreement and its terms. If, at the end of the trial, the Plaintiff
fails to prove, on the balance of probabilities, the existence of the alleged contract,
then that is the end of the matter. Accordingly, I proceed to determine this issue and,
in doing so, I have considered the applicable legal principles, the pleadings, practice
notes, and evidence led at trial.
47. The basis of the contract is to be found in detrimental reliance on the
appearance of agreement, or, in simple terms, in the reasonable belief in the
appearance of agreement, or, in simple terms, in the reasonable belief in the
existence of consensus, induced by the conduct of the other party. It gives effect to a
reasonable belief. The so-called reliance theory.
48. Our law of contract, unlike English law, enforces promises seriously made, not
bargains. Not all promises are enforced, only those made seriously and deliberately
and with the intention that lawful obligation should be established. Mere serious
agreement between parties is sufficient to constitute a contract. Our law is also
2 South African Railways and Harbours v Deal Enterprises (Pty) Ltd 1975 (3) SA 944 (W) at 953A; and Van
Tonder v Western Credit Ltd 1966 (1) SA 189 (C) at 193H.
practical enough to recognize that it must, as a general rule, concern itself with the
external manifestations, and not the person who expresses his or her intention in
relation to the formation of a contract. The decisive question is often not what he or
she subjectively intended, but what it led the other party, as a reasonable person, to
believe was his or her intention. 3 Before a contract can be formed, there must be
consensus. Once consensus is realised, offer and acceptance come into play.
49. Hence, the written part of the impugned agreement (POC1) does not prove its
formation; the Court must also consider the impugned oral agreement between the
parties. Of course, the Plaintiff bears the burden of proof on a balance of
probabilities.
The Pleadings
50. In August 2018, the plaintiff (represented by James MacPherson) entered into
an oral agreement with Protea (represented by Shaun Kerr). Plaintiff’s Rule 30(2)(b)
notice of 23 February 2022 called upon Protea to remove the affidavit of Mr M
Hoeksema (First Defendant’s Attorney) in support of an intended application for the
dismissal of Plaintiff’s action. The Rule 30(2)(b) notice was followed by an application
in terms of Rule 30 of 7 March 2022, and in this Rule 30 application, once again, the
Plaintiff states that the Rule 3)(2)(b) notice was served on Protea, who did not
respond to that notice, and it was claimed that the Plaintiff was entitled to bring the
Rule 30 application for removal of an affidavit filed for Inexpress.
51. In the Plaintiff’s first Rule 28 notice of 28 March 2022, the Plaintiff alleged that
she entered into an oral agreement with Protea, the latter represented by Shaun Kerr
and Abdul Casoo and the Plaintiff represented by Mr MacPherson . In the second
Rule 28 notice of 28 March 2023, the Plaintiff inter alia alleges that:
a. On 16 August 2019, she entered into a partly written, partly oral
agreement with Inexpress
b. The latter was represented by Kimberly Zhou, and she was represented
b. The latter was represented by Kimberly Zhou, and she was represented
by Mr MacPherson.
c. Inexpress was to collect the Laser machine from Protea’s offices, at [...]
P[...] Road, V&A Waterfront, Cape Town.
52. Plaintiff’s counsel filed a practice note on 20 October 2025, 15 days before the
trial commenced. Notably, in paragraph 2 thereof, she inter alia states:
3 Cameron J, Kwazulu-Natal Liaison Committee v MEC for Education KZN 2013 4 SA 262 (CC).
“2. Nature of the application
1. The Plaintiff entered into an oral agreement with the Second Defendant for the
collection of and delivery of a Light Shear ET Laser machine (“Laser machine”).
2. The first defendant collected the Laser machine from the Second Defendant’s
premises on 16 August 2019…,”
53. The reference to the nature of the application in the practice note
demonstrates careless drafting, as these are not application proceedings but an
action. The drafter of the note clearly cut and pasted from a precedent. Secondly,
again, it is stated that the Plaintiff concluded an oral agreement with the Second
Defendant, not the First Defendant.
54. From the Plaintiff’s pleadings, there is one constant who allegedly represented
the Plaintiff in the conclusion of the impugned contract, either with Inexpress or
Protea, namely Mr MacPherson. The offices from which the Laser machine was
collected in August 2018 or August 2019 were those of Protea (then known as SBBS
(Pty) Ltd). Mr MacPherson was employed by Protea at the time. Mr MacPherson
testified under cross-examination and re-examination that he delegated his duties to
Mr Abdul Casoo (Protea’s logisti cs manager) regarding the arrangement of the
courier service. Clearly, the two are acquaintances and colleagues.
55. If Mr Casoo acted as Mr MacPherson’s representative when he sent the
instruction email to Inexpress for the collection of the Laser machine from Protea’s
office at [...] P[...] Road, V&A Waterfront, Cape Town, he could have stated so in his
email to avoid any confusion about who sought Inexpress courier services regarding
the transportation of the Laser Machine . This must be the case because Protea was,
and still is, an Inexpress client. Moreover, Mr Casoo sent the said email from
Protea’s email domain, namely: “A[...].”
56. After the Laser machine was looted, Mr Abdul Casoo requested from
Inexpress the relevant details of the looted Laser machine so that Protea could claim
Inexpress the relevant details of the looted Laser machine so that Protea could claim
from its insurance . Protea was invoiced by Inexpress for the transportation of the
Plaintiff’s Laser machine , although the machine was lost during transit. Then, on 30
September 2019, Protea paid Inexpress’s invoice.
57. It remains a mystery to me how both Mr MacPherson and Mr Casoo could not
know the exact date the alleged agreement was concluded and between which
parties. This is because the incident of loss of the Laser machine occurred between
17 and 19 August 2018 or 2019; the following month, Protea paid Inexpress’s invoice
for the transportation of the lost Laser machine. Both Mr Casoo and Mr MacPherson
were employed by Protea at the time. A million -dollar question? Why did Protea pay
Inexpress invoice for the transportation of the Laser machine, if Protea had never
contracted Inexpress for the transportation thereof? To make matters worse, Mr
Casoo was Protea’s logistics manager who handled Protea’s insurance claim.
58. In the amended POC delivered on 15 November 2023, the Plaintiff avers that
Protea’s offices at [...] P[...] Road, V&A Waterfront, were in August 2019 known as
SBSS (Pty) Ltd, and in the Plaintiff’s heads of argument, it is submitted that SBSS is
a company which the Plaintiff was and still is the sole director and shareholder and
which specialises in the sale and service of broadcasting equipment.
59. It is worth noting that this action was instituted 6 months after the loss of the
Laser machine, and yet it would appear from the pleadings that different instructions
were given to the Plaintiff’s attorneys. This is because Mrs MacPherson, as the
SBSS director, shared offices with Protea at the time of the Laser machine's loss.
She had access to both Mr MacPherson and Mr Casoo to obtain clarity on the exact
date of the alleged contract's conclusion with Inexpress and its terms.
60. Mr Casoo was not called to testify during the trial. It took the Plaintiff and Mr
MacPherson more than 3 years from the date of loss of the Laser machine to realise
that the Plaintiff had concluded a contract with Inexpress, not Protea.
61. The history of this matter, distilled from the pleadings and viva voce evidence
at trial, suggests a convoluted attempt to impose liability on Inexpress by alleging a
contract between her and Inexpress, without any factual basis or evidence to support
it.
62. Save for pleading , Inexpress would charge its usual courier fee ; no other
obligations of the Plaintiff in terms of the alleged agreement are pleaded. For
example, by when such fee is payable by the Plaintiff and what happens if the laser
machine is damages in transit to Johannesburg. No breach provisions are pleaded.
Contrast this with Ms Harris ’ evidence . Ms Harris has been in the courier industry
Contrast this with Ms Harris ’ evidence . Ms Harris has been in the courier industry
since 1994 and started Inexpress in 2004. Inexpress is predominantly a domestic
courier. Ms Harris is the managing director of Inexpress. Ms Harris' responsibilities at
Inexpress include ensuring the business is running as it should, including oversight of
staff training and general business compliance. Ms Harris was asked during
examination-in-chief whether it is typical for Inexpress to enter into an oral
agreement, to which Ms Harris responded: "No, usually Inexpress would enter into a
written agreement before undertaking a delivery."
63. Mr MacPherson and the Plaintiff attempted to use the reference in the waybill
to SBSS and Inexpress as a link between the conclusion of the impugned
agreement. Further, they attempted to argue that, at some stage, Inexpress
employees seemed willing to claim for the loss of the laser machine from Inexpress
insurance (which never happened), as a fact to be considered in proving the
conclusion of the impugned contract. However, both these attempts have been
answered by Ms Harris.
64. Ms Harris’s position is that the waybill is only valid for the contracting party
(Protea), and Inexpress’s insurance obligations do not extend to Ms Hoosain, as she
was not their direct client. Any communications with the Plaintiff were not an
acceptance of liability or a willingness to process her insurance claim.
Admissibility of hearsay evidence
65. The Plaintiff challenged the admissibility of Ms Harris’ evidence on the basis
that it was hearsay evidence. Inasmuch as Protea did not challenge the admissibility
of the evidence of the Plaintiff and Mr MacPherson apropos the conclusion of the
impugned agreement between the parties, I have deemed it appropriate and fair to
consider the admissibility of their evidence regarding the same issue in dispute in this
case. “What's good for the goose is good for the gander”.
66. As a general rule of the Law of Evidence of South Africa, hearsay evidence is
not admitted. Hearsay evidence is defined in section 3(4) of the Law of Evidence
Amendment Act, No. 45 of 1988 (LEAA) as:
“evidence, whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence”.
67. The exception to this rule is regulated by section 3 of the Law of Evidence
Amendment Act 45 of 1988:
“(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless:-
(a) each party against whom the evidence is to be adduced agrees to the admission of
the evidence at such proceedings; or
(b) the person upon whose credibility the probative value of such evidence depends,
himself testifies at the proceedings; or
(c) the Court, having regard to:-
(i) the nature of the proceedings
(ii) the nature of the evidence
(iii) the purpose for which the evidence is tendered
(iv) the probative value of the evidence
(iii) the purpose for which the evidence is tendered
(iv) the probative value of the evidence
(v) the reason why the evidence is not given by the person upon whose credibility
the probative value of such evidence depends
(vi) any prejudice to a party which the admission of such evidence might entail.
(vii) any other factor which should , in the opinion of the court , be taken into
account, is of the opinion that such evidence should be admitted in the interest
of justice.”
68. In the amended POC , the Plaintiff pleads that she was represented by Mr
MacPherson when the impugned contract was concluded. But during his evidence in
Court, Mr MacPherson testified that he did not personally arrange the courier for the
Laser Machine but delegated his duties to the Plaintiff to arrange the courier for the
Laser Machine to Mr Casoo . The involvement of Mr Casoo is first mentioned at trial
and in the Plaintiff’s heads of argument. The parties are limited to their pleadings; a
pleader cannot be allowed to direct the attention of the other party to one issue, and
then, at the trial , attempt to canvass another. 4 For this reason, and to prevent
surprise, pleadings must be articulate and sound; the cause of action or defence
must clearly appear from the factual allegations.5 In Robinson v Randfontein Estates
GM Co Ltd6, where Innes J (as he then was) stated:
‘The object of pleading is to define the issues , and parties will be kept strictly to their pleas
where any departure would cause prejudice or would prevent full enquiry. But within those
limits, the Court has a wide discretion. For pleadings are made for the Court, not the Court
for pleadings. And where a party has had every facility to place all the facts before the trial
Court and the investigation into all the circumstances has been as thorough and as patient
as in this instance, there is no justification for interference by an appellate tribunal, merely
because the pleading of the opponent has not been as explicit as it might have been.’
69. It is trite that t he court must look at the substantial issue between the parties
and not blindly follow the ipsissima verba of the pleadings. It is, however, not open to
the court to adjudicate the case on the basis of issues which are not cognizable or
derivable from the pleadings. 7 The cardinal rules in regard to pleadings should be
properly observed, and the trial should not be allowed to become a ‘free-for-all’ with a
properly observed, and the trial should not be allowed to become a ‘free-for-all’ with a
complete disregard of the issues raised on the pleadings.8
70. Neither Mr MacPherson nor the Plaintiff concluded the alleged agreement with
Inexpress; as such, the alleged oral part of the purported agreement and its terms
were neither negotiated nor concluded by either of them , but by Mr Casoo. So, the
probative value of the evidence on the conclusion of the alleged agreement by the
Plaintiff and Inexpress, including its terms , depends on the credibility of Mr Casoo.
He was not called to testify, and no explanation or reason was advanced why that
4 DB v CB 2024 (5) SA 335 (CC) at paragraph [44].
5 Al Mayya International Limited (BVI) v DPP Valuers (Pty) Ltd (unreported, WCC case no A166/2022 dated
31 July 2024 — a decision of the full court) at paragraph [11] and the cases there referred to.
6 1925 AD 173 at 198.
7 DB v CB 2024 (5) SA 335 (CC) at paragraph [44]. See also Desmond Francke ‘Maintaining judicial
boundaries: The importance of adhering to the issues in pleadings’ 2024 (September) De Rebus 26.
Heads of argument are not evidence. They should contain argument based on the pleadings and
evidence/affidavits in opposed applications. It is irregular to raise a potential defence for the first time in
heads of argument, especially where the facts have not been fully canvassed ( Janse van Rensburg v
Obiang 2023 (3) SA 591 (WCC) at paragraphs [22]–[24]). See also Montle and Neo Transport Service v Engen
Petroleum Limited (unreported, WCC case no 20420/2022 dated 18 August 2023) at paragraphs 41–45.
8 Media 24 (Pty) Ltd v Nhleko (unreported, SCA case no 109/22 dated 29 May 2023) at paragraph [18].
evidence was not given by Mr Casoo, upon whose credibility the probative value of
such evidence depends.
71. Given the nature of these proceedings, evidence and purpose for which this
evidence was tendered, I accordingly find that it will be prejudicial to Inexpress if
such evidence were to be admitted, and not in the interest of justice to do so. By
contrast, Ms Harris's evidence was based on her personal experience as the founder
and managing director of Inexpress. Surely, she knows and manages the operation
procedures of Inexpress. She duly made concessions where necessary and, in some
instances, contradicted herself. However, such contradictions were not material.
72. In evaluation of the evidence in its totality and on a balance of probabilities, I
thus accept the evidence of Ms Harries as credible, probable and reliable. However, I
find the evidence of Mr MacPherson and the Plaintiff to be inadmissible hearsay. In
addition, I did not find Mr MacPherson and the Plaintiff to be reliable witnesses, and I
reject their evidence for reasons discussed above.
CONCLUSION
73. For reasons best known to her, the Plaintiff belatedly pursued a very ambitious
but unmeritorious claim against Inexpress, when, all along, her claim was against
Protea. Hanging her jacket where she can’t reach it, alas! In the end, it has proven a
futile task.
74. Having considered the relevant facts of this matter, the conspectus of
evidence, and the applicable law, I have reached an inescapable conclusion that the
Plaintiff has always known that she entered into an agreement with Protea, not with
Inexpress. The belated attempt to shift liability from Protea to Inexpress occurred
post facto. I do not know the reason behind it , and, as tempting as the facts are, I
refuse to venture into conjecture.
75. There is just no factual basis or evidentiary material to persuade me that the
Plaintiff entered into the impugned agreement with Protea. There was never any
Plaintiff entered into the impugned agreement with Protea. There was never any
meeting of the minds as to the subject matter and terms (transportation of the laser
machine by Inexpress at the instance of the Plaintiff) – The parties were never at ad
idem. The plaintiff has failed to prove the necessary animus contrahendi (intention to
contract).
76. Accordingly, I could not, on a balance of probabilities , find in favour of the
Plaintiff. The Plaintiff has failed to discharge the burden of proof. I am not persuaded
that the Plaintiff has proven an agreement with Inexpress, as pleaded , or at all.
Accordingly, it is not necessary to consider terms of a non -existent contract - “Ex
nihilo nihil fit,” goes the classic adage: nothing comes from nothing.
ORDER
77. As a result, I make the following order:
1. The Plaintiff’s claim is dismissed.
2. The Plaintiff to pay the First Defendant’s costs of suit, inclusive of the costs of
the hearing of the trial on 6 and 7 November 2025, with Counsel's fees to be
taxed on scale B.
________________________________
P. NJOKWENI
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE
Appearances
For the Plaintiff: Mrs MA McChesney
With her: Mr L Tully
Instructed by: VGV attorneys
For the First Respondent: Mr EL Smit
Instructed by: Hatstone Lawyers Inc.