Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd

• Jurisdiction: South Africa

Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd
1995 (3) SA 42 (A)

1995 (3) SA p42

Citation	1995 (3) SA 42 (A)
Court	Appellate Division
Judge	Joubert JA, Grosskopf JA, Eksteen JA, Nicholas AJA and Olivier AJA
Heard	March 9, 1995
Judgment	March 30, 1995

Flynote : Sleutelwoorde

E Carrier — Public carrier by land — Liability of for loss of property carried — Praetor's Edict de nautis, cauponibus et stabulariis not applicable to public carriers by land — General principles of law favouring liability based on dolus and culpa levis should be applied to both private carriers by land and public carriers by land. F

Headnote : Kopnota

In accordance with the principles of Roman-Dutch law as applied in the Province of Holland and West Friesland, the Praetor's Edict de nautis, cauponibus et stabulariis (in terms whereof an action was granted against sea carriers, innkeepers and stablekeepers if they failed to restore to any person any property of which they had undertaken the safe-keeping) is not applicable to public carriers by land. Even in the land of its birth the Edict as ius honorarium existed side by side with the ius civile. G There is no need of such a duality in South Africa. To impose the absolute liability of the Edict on public carriers by land would be an anomaly while the liability of private carriers by land would be based on dolus and culpa levis. The general principles of South African law favouring liability based on dolus and culpa levis should be applied to both kinds of carriers by land. (At 50E-G.)

The decision in the Witwatersrand Local Division in Polysius (Pty) Ltd v H Anderson Shipping (Pty) Ltd reversed.

Case Information

Appeal from a decision in the Witwatersrand Local Division (Coetzee J), upholding an exception to a special plea. The nature of the pleadings appears from the judgment of Joubert JA.

E Bertelsmann SC for the appellant (the heads of argument having been prepared by E Bertelsmann SC and M M Snyman): In the principal action, the appellant is the defendant and is being sued by the respondent, as plaintiff in the principal action, for the payment of damages allegedly arising from the fact that goods transported by the appellant arrived at J their destination either damaged or not at all. It is common cause that I

1995 (3) SA p43

A the appellant is a public carrier. It is also common cause that the plaintiff relies upon, in part at least, the Praetor's Edict, namely the Edict de nautis, cauponibus et stabulariis. The appellant contends that this Edict does not apply to carriers by land in South African law, but only to carriers by sea. Although there is a considerable body of authority which holds that the Edict is applicable in South Africa, even in the case of public carriers over land, the matter has so far been left B open by this Court. Upon a proper examination of the authorities, the Edict has no place in South African law and should not be extended to public carriers by land. The first South African author to deal comprehensively with the Edict was Dönges in his work The Liability for Safe Carriage of Goods in Roman-Dutch Law, a doctoral thesis approved by the University of London in 1925 and published by Juta & Co Ltd in 1928. C At 39 and 40 of this work, the learned author refers to several decisions which, according to him, affirm the adoption of the Praetor's Edict de nautis, cauponibus et stabulariis into the South African law. The first of these is Naylor v Munnik (1857-60) 3 Searle 187. In this case the Court held a public carrier by land to be liable without discussing the D Edict, even though the Court's attention was drawn in argument to Voet 4.9. In Tregidga & Co v Sivewright NO (1897) 14 SC 76 at 81 De Villiers CJ declared that 'The reason stated for the rules which it (the praetor's edict) lays down are equally applicable to carriers by land.' With reference to Naylor v Munnik, the learned Judge concluded that the Edict E was applicable to carriage by land as well. This Court in Davis v Lockstone 1921 AD 153 held that a hotel keeper was liable for loss of his guests' luggage, and Solomon JA at 159 quotes Crocker v Doig & Murray 1 NLR 117; Stretten v Union Castle Co 1 EDC 335; and Tregidga & Co v Sivewright (supra) in support of the following statement: 'That the F Praetor's Edict is in force in South Africa has been recognised by the Courts in many cases, chiefly in connection with the liability of shipowners. . . .' Since this decision, our Courts have repeatedly had the occasion to deal with the Edict, but this Court has in Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) expressly refrained from deciding whether the extension of the Praetor's Edict to carriage by land G is justified or not. Viljoen JA deals with the issue at 1096D/E-G. Cilliers AJ in International Combustion Africa Ltd v Billy's Transport 1981 (1) SA 599 (W) at 605C was correct in doubting the conclusion that the Praetor's Edict applies to carriage by land. This is particularly so as in Hall-Thermotank Africa Ltd v Prinsloo 1979 (4) SA 91 (T) the question whether the Edict applies to carriers by land was not argued H before the learned Judge, and the Court was neither requested to make a finding in this regard, nor was the learned Judge referred to any authority in support of his view, expressed at 93H as follows: 'The absolute liability of a carrier in our law arose originally from the Praetor's Edict and has been followed consistently in several cases.' The I detailed analysis undertaken by Cilliers AJ in International Combustion Africa (supra) clearly indicates the contrary. Compare further United Building Society v D I Stone (Pty) Ltd and Another 1988 (4) SA 795 (E). In Cotton Marketing Board of Zimbabwe v Zimbabwe National Railways 1990 (1) SA 582 (ZS) the Supreme Court of that landlocked country held, with express reference to the circumstances pertaining in Zimbabwe, that the J Praetor's

1995 (3) SA p44

A Edict should apply to carriage by land in Zimbabwe. This is not sufficiently persuasive to allow the conclusion that the same extension of the Edict should be applied in South Africa. The reservations expressed by this Court in Essa v Divaris 1947 (1) SA 753 (A) to extending the Edict B to garage owners, namely that modern circumstances did not require, nor did they in fact justify, an extension of the Edict to an owner of a parking garage, should also apply to the extension of the Edict to carriers by land. Bearing in mind the original motivation for the introduction of the Praetor's Edict, as discussed by Dönges (op cit at 21), present-day circumstances are so strikingly different from Roman times that such extension is not justified. Modern public carriers are C neither notoriously dishonest, nor do they enjoy a particular opportunity to collude with thieves, nor do they enjoy comparative immunity from detection by the very nature of their profession. Advanced communication systems, highways and police surveillance are such that no particular rules are required to saddle members of an important trade with a D liability which imposes an unfair burden in the market place upon them. Furthermore, the evidentiary difficulties of proving either dishonesty or negligence are, in our law, no longer so severe as to justify the imposition of strict liability. The consignor of goods is adequately protected and, in the light of the expansion of the availability of legal advice and legal services, well able to enforce his rights without E 'expanding the strict liability of the Edict to carriers by land. In this connection, the comments published by Van Warmelo under the title 'Aanspreeklikheid van Anderes onder die Edikte betreffende Nautae Caupones et Stabularii' 1946 THRHR 182, particularly at 186, appear to be apposite:

'Die ratio vir so 'n uitbreiding (is) nie so maklik te vind nie. Dit is F nouliks moontlik om dit te verklaar uit een of ander reël van interpretasie. Die praetor se edik is per slot van sake 'n lex specialis, blykbaar ingevoer "reprimandae improbitatis hoc genus hominum". Dit is ongetwyfeld vandag nie meer 'n toepaslike motivering nòg vir nautae, caupones et stabularii, nòg vir vervoerders oor land of anderes wat miskien genoem kan word. . . . Ons sou hoogstens kon konkludeer dat in sekere gevalle die gewoonte miskien die reëls van die edik oor sekere G bepaalde gevalle uitgebrei het. . . .'

C J H Badenhorst for the respondent: The special...