Brunel Logistics Southern Africa (Pty) Ltd v Os Trading
| Jurisdiction | South Africa |
| Judge | MR Chetty J |
| Judgment Date | 28 July 2017 |
| Citation | 2017 JDR 1238 (KZD) |
| Docket Number | 4435/2015 |
| Court | KwaZulu-Natal Division, Durban |
Chetty J:
The plaintiff instituted action against the defendant based on three claims arising from the clearing and forwarding of used telecommunications equipment from Nigeria and Zimbabwe to Durban, South Africa. The equipment, at the request of the defendant, was transported to Durban and thereafter delivered
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via road freight to the premises of SIMS Recycling Solutions Africa (Pty) Ltd ('Sims'), a client of the defendant. Despite the plaintiff delivering the goods to their final destination, despite demand the defendant has refused to pay the amount of the three claims, totalling R532 944,20 for services rendered. The plaintiff instituted action to recover the amount, while the defendant not only defended the action but instituted a counter claim on the basis that the plaintiff breached a 'non-circumvention' agreement, as a result of which the defendant sustained loss of business totalling R1 626 445,80. The counter claim was resisted by the plaintiff.
When the matter came before me the defendant applied for a postponement of the trail. After hearing argument from both counsel, I refused the application, with costs.
The plaintiff then gave notice of its intention to amend its summons, with the deletion of the second claim pertaining to the clearing and forwarding of a consignment from Mauritius. That amendment was duly granted. As a consequence, the plaintiff's claim was crystallised into 2 distinct claims, all of which were set out in a 'Master Schedule', totalling R463 244,89. This amount was subsequently rectified to R463 099.89. made up as follows :
The first claim was in respect of the transportation and forwarding of goods from Nigeria to Durban at the instance and request of the defendant.
The second claim (comprising two parts) is for the transportation of used telecommunications equipment from Zimbabwe to Durban and thereafter for the onward transportation via road freight to Balito, to the premises of SIMS Recycling Solutions Africa Pty Ltd, a client of the defendant.
It is common cause that the plaintiff performed in terms of the agreement with the defendant and submitted invoices of the claims as per the Master Schedule. The defendant refused to pay the amounts thereby giving rise to the present action. The defence pleaded is simply that the plaintiff is put to the proof that the invoiced amounts (as per summons), were correctly calculated. When the
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parties convened a pre-trial, the plaintiff directed the following enquiry to the defendant:
"In as much as defendant admits that the services were rendered by the plaintiff, what does defendant allege was the price that the plaintiff would have been entitled to charge, but for the defences raised by defendant?
The defendant provided the following response:
"The defendant admits that the plaintiff was entitled to charge the rates claimed but for the defences raised by the defendant".
At the commencement of the trial, counsel for the plaintiff submitted that in light of the defence as pleaded by the defendant, all that was necessary for the plaintiff to succeed in the main claim was to prove that the invoices rendered to the defendant were correctly calculated. Mr Boulle, who appeared for the plaintiff, went a step further and submitted that to that end, once the respective invoices are proved, the defendant loses the right to cross-examine the plaintiff's witnesses. I was not in agreement with this contention and considered it to be an overly robust approach. I do agree however that the pleading limits the defendant to contesting only the accuracy of invoice. There is no dispute on the pleadings that the plaintiff rendered services, and that the defendant had no complaint as to the competency or efficiency thereof. It must also be assumed that the goods were properly conveyed and received by the client of the defendant, SIMS Recycling. It has also not been disputed by the defendant that it was duly paid by SIMS in respect of the goods delivered. This accordingly begs the question raised by counsel for the plaintiff at the outset of the trial as to what exactly remains in dispute between the parties?. The total amount of both claims due by the defendant is R476 515,49, as reflected in the Master Schedule, and later corrected to reflect R436, 099, 89, which is common cause between the parties.
It is pertinent to point out that prior to the commencement of trial I requested the parties to clearly define the issues for determination. The parties concluded a written agreement as to the issues in dispute. These are the following –
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the plaintiff is put to the proof that the amounts set out in its invoices were correctly calculated, with the total due being the amount of R463, 099, 89.
the defendant disputed the charges for standing time, but no further details were available in this regard.
In essence, those are the matters concerning the claim in convention.
The plaintiff called one witness in support of the proof of its claim, Vinesh Parmeshwar, a freight controller employed by it with personal knowledge of the agreement and transactions concluded for and on behalf of the defendant. In respect of the plaintiff's business relationship with the defendant, he testified that this comprised doing sea and road freight logistics, including shipments from Nigeria. Parmeshwar testified in detail in relation to the first claim and the invoice submitted to the defendant for payment, which appeared at page 74A of the bundle of exhibits. This invoice pertained to a consignment of goods from Nigeria, comprising two 40 foot containers, as specified on the invoice. Whilst the estimate in respect of the particular transaction was issued in December 2014 and the prices estimated at the time were based on the Rand/Dollar rate of exchange of R11.40, at the time of invoicing the defendant the rate of exchange had increased to R11.70. The amount for the "pre carriage pickup charges", being a reference to the containers, was estimated to be R61 560. This amount was subsequently reduced on the invoice to R42 120, for two containers. Similarly, the export charge in the invoice was an amount of R46 332 as opposed to the estimate of R67 760.
Parmeshwar went on to explain that the bill of lading amounted to R7 020, being a reduction from R10 260 from the initial estimate. The invoice included charges for forklift security and a shipping line fee, being a disbursement paid to the shipping company, Pacific International Liner Agency, which amounted to R 6 838.
In addition, the plaintiff charged the defendant import cargo charges payable to Transnet Ltd in respect of the containers brought into South Africa. This amounted to R7 905, 28. Similarly, the plaintiff incurred the costs in relation to the transport of the containers from the Durban Container Depot to SIMS
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Recycling in Balito, amounting to R3 300 per container, together with a mark-up of R400. Parmeshwar pointed out that the plaintiff did not charge the defendant for any standing time. It billed the defendant an amount of R435, being a container terminal order fee, payable by all clearing and forwarding companies. This amount, according to him, should be reduced to R290, as the transaction only applied two containers. An agency fee was paid, amounting to R2 058, 96 as well as a facility fee of R150 and a documentation fee being a flat charge of R350. The total amount of the invoice according to the witness was R174 547, 73.
Prior to the plaintiff leading its witness any further in respect of claims 3A and 3B, Mr Havemann, who appeared on behalf of the defendant, indicated that the defendant only took issue with the demand of standing time contained invoices. The claim in 3A for standing time is R52 500. In respect of Claim B, the standing time for three trucks is R99 000. The remaining items contained in the Master Schedule are not in dispute.
What is apparent from the outset, in my view, is that the defendant has pleaded a general defence on its papers, putting the plaintiff to the proof of its claim. At trial, this defence was whittled down to the issue of standing time. If this was the defendant's original compliant with the invoice, one wonders why these matters were not raised on the pleadings.
In light of the approach adopted by the defendant, the remainder of Parmeshwar's evidence focused on the charges for standing time incurred in respect of the road freight of goods brought in from Zimbabwe to Durban. The procedure, he explained, is that at the Customs' point of entry, each truck is required to have a document referred to as a 'CV1'. The problem which gave rise to claim 3A relating to the collection of goods from Barclays in Harare, is that the defendant only supplied one CV1 document, whereas the consignment comprised 2 containers. In order to overcome the problem, the two trucks had to travel as a convoy. No fee is levied for the first 48 hours standing time. Parmeshwar referred to an email of 25 February 2015 from Troy Botha to Tamryn Osborne, acting for the defendant, in which Botha informed Osborne
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that the trucks incurred standing time of 11 and 10 days respectively, at a charge of R4 500 per truck. Botha further advised Ms Osborne that the costs in respect of standing time had been negotiated down to 8 and 7 days respectively, at the rate of R3 500 per day, equating to a total of R52 500. The initial amount for standing time was R94 500. Botha further requested confirmation of the acceptance of the charges.
In response, Ms Osborne addressed an email on 26 February 2015 stating that she accepted Botha's proposal but needed to discuss the matter with her client, after which...
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