Micor Shipping (Pty) Ltd v Treger Golf and Sports (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Franklin J
• Judgment Date: 25 January 1977
• Hearing Date: 17 November 1976
• Court: Witwatersrand Local Division

Franklin, J.:

The plaintiff, a firm of clearing, forwarding and shipping agents, claims payment from the defendant in an agreed sum of R4 163,31, plus interest at the rate of 12 per cent per A annum from 1 January 1975 to date of payment. The claim is based on services rendered and disbursements made on behalf of the defendant for clearing and forwarding goods on its behalf between July 1974 and December 1974. The defendant is a firm which manufactures and deals in sporting goods.

The plaintiff in its declaration alleges that the contract between itself and the defendant was subject to the plaintiff's B "standard trading conditions" which it annexes to the further particulars to the declaration.

The defendant admits being liable to the plaintiff in the sum claimed, but denies that its contractual relationship with the plaintiff was governed by the standard trading conditions. I shall have occasion later in this judgment to refer in detail to that document.

The defendant filed a counterclaim in which it claimed payment C of two sums by way of damages from the plaintiff, namely:

(1)

R7 414,04, being the cost of a consignment of golf gloves which the defendant had imported from the Argentine and which the plaintiff was to have cleared at Jan Smuts Airport for and on behalf of the defendant, but which it failed to do.

(2)

D R6 336,00, being the defendant's loss of profit on the sale in South Africa of the golf gloves referred to above.

It was, however, recorded in a minute of a pretrial conference that the parties had agreed that the quantum of the defendant's damages was the total sum of R10 625,00, plus interest at 14 E per cent per annum from 7 September 1976 to date of payment.

The defendant's counterclaim is based on the following allegations:

(a)

That it was an implied term of the agreement that Shipping, alternatively Air Freight, would exercise due diligence in clearing and forwarding the gloves and would clear and forward them within a reasonable time.

(b)

F In breach of the said agreement Shipping, alternatively Air Freight, failed to perform the services required of it either with due diligence or within a reasonable time or at all, as a result whereof the gloves were sold by the Department of Customs at Jan Smuts Airport.

(c)

That the damages claimed flowed naturally from the G plaintiff's breach of contract, alternatively were reasonably within the contemplation of the parties as likely to result therefrom.

In explanation of the terms "Shipping" and "Air Freight", I should mention at this stage that, at the time when the defendant filed its counterclaim, it was uncertain whether it H was the plaintiff company ("Shipping") or the second defendant in reconvention ("Air Freight") which was liable for the defendant's damages. It was for this reason that Air Freight was joined as second defendant in reconvention. It is however common cause that if the counterclaim is sound it lies against Air Freight and not against Shipping. I shall accordingly refer in this judgment, where necessary for the purposes of clarity, to the plaintiff as "Shipping" and to the second defendant in reconvention as "Air Freight". I should also mention that an alternative defence to the declaration which was based on the provisions of Act 73 of 1968 was abandoned at the trial.

Franklin J

In its plea to the counterclaim Air Freight admits the contract, but denies that it failed to perform the services required of it, that it failed to exercise due diligence or perform the services required of it within a reasonable time, A and that the gloves were sold by the Department of Customs at Jan Smuts Airport. (This last fact, incidentally, was common cause at the trial.) "Air Freight" also denies that the defendant suffered any damages, or that any damages which it may have suffered flowed from a breach of the agreement or were reasonably within the contemplation of the parties to B the agreement as likely to result from a breach thereof.

"Air Freight" also pleads as follows:

"The plaintiff and second defendant say that in any event the agreement between the defendant and the second defendant was governed by the standard trading conditions of the South African Shipping and Forwarding Agents C Association, a copy of which constitutes annexure 'B' to the further particulars furnished to the plaintiff's declaration on 4 July 1975.

Condition 12 (a) of the said standard trading conditions provides as follows:

'The company shall not be liable for loss of or damage to goods unless such loss or damage occurs whilst the goods are in the D actual custody of the company and under its actual control and unless such loss or damage is due to the wilful act or default of the company or its own servants.'

Condition 13 provides as follows:

'The company shall not in any circumstances be liable for damages arising from loss of market or attributable to delay in forwarding or in transit or failure (not amounting to wilful default) to carry out the instructions given to it'.

E Condition 14 (a) provides as follows:

'In no case shall the liability of the company exceed the value of the goods or the value declared by the customer for insurance, customs or carriage purposes, or the following respective amounts, whichever figure is the least:

(a)

Inward and outward consignments received or to be forwarded by air freight - R50 per consignment.'

Should the above Honourable Court find that the second F defendant failed to perform the services required of it either with due diligence or within a reasonable time or at all as a result whereof the defendant has suffered damages (all of which is denied), the said conditions referred to above and which formed the basis of the agreement between the defendant and the second defendant, exclude any G liability on the part of the second defendant for payment of such damages, alternatively limit the second defendant to damages in an amount of R50."

The above allegations are denied by the defendant, which also denies that it ever received the standard trading conditions or the circular letter referred to therein (that letter is H annexure "C" to the further particulars to the declaration).

[The learned Judge then set out certain amended pleadings and continued.]

It appears from the pleadings that there are four issues which fall for decision in this case, namely:

A.

whether the plaintiff committed a breach of contract by failing to perform the services required of it either at all or within a reasonable time, or by failing to exercise due diligence in performing those

Franklin J

services;

B.

whether the damages suffered by the defendant flowed from the plaintiff's breach of contract;

C.

A whether the plaintiff's standard trading conditions applied to the contract, and if so, whether they protected the plaintiff from the consequences of its breach of contract;

D.

whether the plaintiff gave either of the two oral undertakings to pay the defendant the amount of its loss.

The onus is on the defendant in respect of issues A, B, and D B above; and the onus is on the plaintiff in respect of issue C above.

Issues A and B.

It was not disputed by Mr. Kuny, who appeared for the plaintiff, that if the standard trading conditions did not apply to the contract, the plaintiff committed the breach of C contract alleged, and that the damages suffered by the defendant flowed from that breach. Indeed, the facts proved clearly establish both those allegations, and it is not necessary for me to say anything more about these two issues.

Issue D.

I propose to deal first with issue D, i.e. the question whether the defendant has discharged the onus of proving, on a balance D of probabilities, that the plaintiff gave either of the two oral undertakings alleged in the pleadings.

This is a straightforward question of fact uncomplicated by any legal principles or problems.

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