Anderson Transport (Pty) Ltd v A.M. Transport CC

• Jurisdiction: South Africa
• Judge: Van Reenen J
• Judgment Date: 29 January 2003
• Docket Number: A110/22002
• Court: Cape Provincial Division
• Hearing Date: 18 October 2002
• Citation: 2003 JDR 0189 (C)

Van Reenen J:

[1]

For the sake of convenience the appellant and the respondent are referred to as the plaintiff and the defendant respectively.

[2]

The plaintiff is a company with a share capital carrying on business as a cartage contractor at Wellington.

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Van Reenen J

[3]

The respondent is a close corporation carrying on business as a cartage contractor at Paarl South.

[4]

The plaintiff and the defendant have an arrangement in terms whereof each enters into contracts with the other to discharge its obligations as a carrier of goods to its respective client.

[5]

In terms of a contract of carriage entered into with Tongaat-Hulett Sugar Limited (Tongaat-Hulett) the defendant was obliged to take delivery of a load of approximately 34.4 tons of packaged sugar products stacked on pallets (the consignment) at 444 South Coast Road, Rossburgh, Durban, on the 29th of April 1999 and transport it to Trade Centre, Milnerton, Cape Town for delivery on the 3rd of May 1999.

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Van Reenen J

[6]

The defendant by means of a document known as a "load confirmation", telefaxed to the plaintiff's Johannesburg offices, instructed the latter to discharge defendant's obligations to Tongaat-Hulett flowing from the said contract of carriage at an agreed price of R175 per ton excluding value-added tax.

[7]

The said "load confirmation" contained, inter alia, the following term:

"Please Note:

4.

This overrides all your transport conditions and is subject to our terms and conditions of contract (Available on request)."

[8]

The plaintiff transported the said consignment from Durban to Cape Town on two interlinked trailers drawn by a mechanical horse.

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Van Reenen J

[9]

When the consignment arrived at the premises of Trade Centre on the 3rd of May 1995 the consignee refused to accept delivery because rainwater had penetrated the tarpaulins that covered the load and caused damage thereto, the extent and quantum whereof is in issue.

[10]

The consignment was taken to the plaintiff's warehouse in Wellington the same day and subsequently returned to the premises of Tongaat-Hulett by road where it was inspected on the 17th of May 1999 by its distribution co-ordinator Kim Ridgeway and, except for two pallets of speciality sugars, found to have been water-damaged.

[11]

Tongaat-Hulett reworked the damaged sugar and held the defendant liable for the damages suffered by it, in accordance with a formula agreed to between it and the defendant namely, the difference between the invoice

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value of the consignment and its "sweepings" value and amounted to R41 982,55.

[12]

The plaintiff instituted an action against the defendant in the Paarl Magistrates' Court in which it claimed payment of an amount of R72 303,92 in respect of services rendered as a carrier during the period March 1999 to October 1999, pursuant to an oral agreement. The defendant entered an appearance to defend and after a request for further particulars had been complied with, filed a plea and counter-claim. The plaintiff in turn filed a plea to the counter-claim.

[13]

The defendant in its plea admitted being indebted to the plaintiff in an amount of R53 637,23; in its counter-claim claimed payment of an amount of R63 897 in respect of cartage services rendered by it to the plaintiff against which amount it set off the amount of R53

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Van Reenen J

637,23 so that the plaintiff was indebted to the defendant in an amount of R10250,77. The defendant in the alternative, averred that the plaintiff caused damage or loss to goods carried for it in amounts totalling R71 790. The plaintiff in its plea to the counter-claim denied that it had caused any damage or loss in respect of goods conveyed for the defendant.

[14]

When the matter came to trial the plaintiff in a pre-trial minute admitted that a) it was indebted to the defendant in an amount of R53 523 in respect of services rendered; b) that it was contractually liable to the defendant in respect of damage caused to goods transported by it resulting from the willful or negligent conduct of its employees acting within the course and scope of their employment; and that the damage caused to the consignment was caused by its

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employees during such transportation and amounted to R2002.

[15]

The defendant in a separate pre-trial minute admitted a) the locus standi of the plaintiff; b) that it was indebted to the plaintiff in an amount of R53 637,23 in respect of services rendered; and c) that the defendant was indebted to the plaintiff in an amount of R71 790 in respect of services rendered, the payment whereof was being withheld because the plaintiff was liable in damages to the defendant, caused whilst rendering services as a carrier to the defendant.

[16]

The plaintiff during the trial amended the amount of R53 523 in the aforementioned pre-trial minute to R63 897.

[17]

The defendant's attorneys in a letter dated the 16th November 2000 addressed to the plaintiff's attorneys,

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of the claims against the plaintiff – which according to annexure AM1 to its plea, previously amounted to R125 427,92 – abandoned claims amounting to R15 198.

[18]

The result of the aforegoing was that, apart from any obligations flowing from the water damage to the consignment, the plaintiff admitted being indebted to the defendant in an amount of R63 897 and the defendant in turn admitted being indebted to the plaintiff in an amount of R110 229,92 so that the plaintiff enjoyed a claim of R46 332 against the defendant.

[19]

The magistrate at the end of the trial and after both parties had adduced evidence...