BC Plant Hire CC t/a BC Carriers v Grenco (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2004 (4) SA 550 (C)

BC Plant Hire CC t/a BC Carriers v Grenco (SA) (Pty) Ltd
2004 (4) SA 550 (C)

2004 (4) SA p550

Citation	2004 (4) SA 550 (C)
Case No	A1090/2002
Court	Cape Provincial Division
Judge	Van Zyl J
Heard	May 30, 2003
Judgment	December 12, 2003
Counsel	H G McLachlan for the appellant.; A Kantor for the respondent.

Flynote : Sleutelwoorde C

Sale — Of goods — Risk and benefit — Risk — Refrigeration unit attached to trailer — Intention of parties that purchaser would D arrange finance with bank which would own the unit on suspensive sale agreement — After delivery but before payment made or finance arranged unit destroyed in collision — Immaterial that seller's work and labour had gone into the unit before E sale — Risk having passed from the seller to the purchaser.

Headnote : Kopnota

The appellant was the defendant in an action in a magistrate's court in which the court had found for the plaintiff. The claim arose F from an agreement in terms of which the respondent had undertaken to fit and supply a refrigeration unit on a trailer of a truck belonging to the appellant. On completion of the installation, the respondent delivered the vehicle to the appellant but before payment could be made or finance arranged, the vehicle was involved in an accident and the unit was damaged beyond repair. The respondent claimed its value (an amount of R62 700) from the appellant but the G appellant denied liability. The magistrate held that it was clear from the evidence that the appellant had taken delivery of the unit with a view to retaining it for its exclusive use. In the circumstances, the magistrate held, there was no question of a contract of depositum having come into existence. The magistrate held that the parties intended that the bank would become the purchaser of H the refrigeration unit and would acquire ownership from the respondent as seller, subject to a credit agreement being concluded between the bank and the appellant. The magistrate upheld the claim, holding that there was an implied term to the effect that the risk in the unit would pass to the appellant on its delivery. On appeal, the appellant submitted that the respondent had failed to prove the I existence of a trade usage as an implied term of the agreement to the effect that the risk in the unit would pass to the appellant on its delivery and it submitted that the court a quo had erred in holding that there was an implied term to this effect. It was contended that the agreement between the parties was not one of purchase and sale and there had been no agreement that the risk would pass on delivery and the respondent remained the owner of the unit and bore the risk of its destruction. J

2004 (4) SA p551

The respondent argued that it was a custom or trade usage of the industry that a party using a unit belonging to another would be A responsible for it from the time of delivery and should hence insure it. The respondent ultimately agreed that the nature of the cause of action between the parties was a loan for use (commodatum).

Held, on the facts, that the parties had not at any stage given the slightest thought to the possibility that their legal relationship had anything remotely to do with the loan of the unit for B the appellant's use pending finalisation of the credit agreement between the bank and the appellant: there had been no discussion as to any delivery agreement and even less of a loan for use. (Paragraph [38] at 562F - G/H.]

Held, further, that the substance of the agreement between the parties was one of purchase and sale: inasmuch as this entailed C work or labour in addition to the mere supply of the unit, it might be said that the agreement had the complexion of a contract of letting and hiring of work. Insofar as the respondent had both supplied and fitted the unit, the agreement should, strictly speaking, qualify as one of purchase and sale and for purposes of establishing liability for the destruction of the unit it was of no consequence whether it was one or the other. (Paragraphs [40] and [41] at 563B/C - F/G.) D

Held, accordingly, that there was no reason why the respondent should have been deprived of its cost of supplying and fitting the unit onto the appellant's vehicle and the appeal had to be dismissed. (Paragraph [42] at 564A/B - B.)

Cases Considered

Annotations

Reported cases E

Anglo Dutch Meats (Exports) Ltd v Blaauwberg Meat Wholesalers CC 2002 CLR 292 (C): referred to

Pahad v Director of Food Supplies and Distribution 1949 (3) SA 695 (A): dictum at 709 applied

Zandberg v Van Zyl 1910 AD 302: dictum at 309 applied

Kilburn v Estate Kilburn 1931 AD 501: dictum at 507 applied. F

Case Information

Appeal from a decision in a civil claim in a magistrate's court. The facts appear from the judgment.

H G McLachlan for the appellant.

A Kantor for the respondent. G

Cur adv vult.

Postea (December 12).

Judgment

Van Zyl J:

Introduction H

[1] This is an appeal against the decision of the Magistrate's Court, Kuils River, in terms of which the respondent's claim against the appellant in the amount of R62 700 was granted together with interest a tempore morae and costs. A cross-appeal was I noted at a late stage with the leave of the court. It relates to the rejection by the court a quo of one of the causes of action raised by the respondent in its amended particulars of claim, and to the court's refusal to grant a special order as to costs. Mr H G McLachlan appeared for the appellant and Mr A Kantor for the respondent. The court expresses its appreciation to them for their helpful J

2004 (4) SA p552

Van Zyl J

submissions and additional arguments arising from difficulties put to them during the presentation A of their cases.

[2] It is common cause that the claim arose from an agreement in terms of which the respondent (plaintiff in the court a quo) undertook to supply and fit a refrigeration unit ('the unit') on the trailer of a truck belonging to the appellant (defendant in the court a quo). On completion B of the installation during March 1997, the respondent duly delivered the vehicle to the appellant. Before payment could be made or finance arranged, however, the vehicle was involved in an accident on 7 May 1997 and the unit was damaged beyond repair. The respondent claimed its value, being R62 700, from the appellant. The appellant denied liability, however, and refused to pay. C

The issues

[3] The main issues between the parties are, firstly, what the nature of their agreement was and, secondly, which of the parties must be held D to have borne the risk of destruction of the unit. These issues are, of course, materially interlinked.

[4] The appellant has also raised the identity of the party trading as 'BC Carriers' as an issue. This is clearly a non-issue in that it is common cause that the entity trading as 'BC Carriers' was E at all relevant times represented by one Braam Coetzee and was in fact the defendant in the court a quo, irrespective of whether or not the close corporation trading as such was BC Earthmoving or BC Plant Hire. In the original particulars of claim the defendant was in fact cited as BC Carriers CC and in his affidavit opposing summary judgment the said Braam Coetzee admitted that, during F July or August 1997 he had concluded an agreement on behalf of the defendant as cited. It is common cause that that same defendant took possession of the unit after it had been installed on its truck. If the appellant was hence wrongly cited in later pleadings, it is clearly a simple misnomer that could not have caused the appellant the slightest prejudice. See in general on misnomers the discussion in G Anglo Dutch Meats (Exports) Ltd v Blaauwberg Meat Wholesalers CC 2002 CLR 292 (C) at 300 - 14 (paras [21] - [47]) and the various authorities cited there. For present purposes it is hence not necessary to consider whether the citation of the appellant in further pleadings was correct or not. H

The pleadings

[5] The pleadings and respective cases of the parties are anything but a model of clarity. The cause of action started off, in the initial particulars of claim, as an oral agreement concluded on 5 August 1997 between the respondent, represented by Johan Coetzee, and the I appellant, represented by Braam Coetzee. In terms of this agreement the respondent undertook to supply the said refrigeration unit and install it (on the trailer of one of the appellant's trucks) for the amount of R62 700. The respondent duly performed its obligations but the appellant refused to pay the amount owing 'as a consequence of the services rendered'. J

2004 (4) SA p553

Van Zyl J

[6] In his affidavit opposing a summary judgment application brought against the appellant by the respondent, the said Braam A Coetzee appears to have admitted that there was an agreement between the parties in terms of which the appellant 'ordered' the unit from the respondent. He averred, however, that it was subject to a suspensive condition that payment would be effected by means of a financing agreement to be approved by the appellant's financial institution. The application for financing would be approved only after B receipt of an invoice submitted to it by the respondent. The invoice was to contain a correct description of the item sold, its price and the VAT payable in respect thereof. The respondent failed to submit such invoice. Consequently the financing agreement was not concluded and the suspensive condition was not fulfilled. What the consequence was of such non-fulfilment does not appear from the C affidavit.

[7] In its plea to the initial particulars of claim, the appellant denied that an agreement as alleged by the respondent had been concluded. In the alternative, should it be held that there was such an agreement, the appellant averred...