Vulcan Rubber Works (Pty) Ltd v South African Railways and Harbours

• Jurisdiction: South Africa
• Citation: 1958 (3) SA 285 (A)

Vulcan Rubber Works (Pty) Ltd v South African Railways and Harbours
1958 (3) SA 285 (A)

1958 (3) SA p285

Citation	1958 (3) SA 285 (A)
Court	Appellate Division
Judge	Schreiner JA, De Beer JA, Beyers JA, Hall AJA and Ogilvie Thompson AJA
Heard	May 8, 1958; May 9, 1958
Judgment	May 19, 1958

Flynote : Sleutelwoorde F

Vindication — Goods alleged to have been delivered to Railway Administration and possession taken by it — Claim by owner for redelivery — What plaintiff must prove — Evidence — Hearsay. G — Inadmissibility of.

Headnote : Kopnota

In an action claiming the delivery of 42 bales of rubber, the appellant (plaintiff) had averred that in and about July, 1951, these bales, of which it was the owner and which had been consigned to it at Durban, had been delivered to the respondent (defendant) at the Port Elizabeth Docks and taken by it into its possession. Despite demand to deliver the bales H the respondent had failed to do so. The respondent in its plea had denied the allegations that the bales, which had been consigned to the appellant, had been delivered to it at Port Elizabeth or that it had accepted delivery or taken possession thereof. The evidence showed that the appellant had notified the respondent of its claim on 30th October, 1951, and that a claims official had made enquiries at the chief ports and excess depots in regard to these missing bales which could not be found. A trial Court having dismissed the appellant's claim with costs, in an appeal,

1958 (3) SA p286

Held, that the trial Court had to determine whether the appellant had proved possession by the respondent at the time of action, and if that were not proved whether it had proved that the respondent had had possession and had parted with it only after 30th October, 1951.

Held, further, that the evidence of the claims official was not admissible to establish facts other than the generalisation that he had made a fruitless search for the bales.

A Held, further, as the appellant had failed to prove that the respondent had possession after 30th October, 1951, that the appeal should be dismissed with costs.

The decision in the Port Elizabeth Circuit Local Division in Vulcan Rubber Works (Pty.) Ltd v South African Railways & Harbours confirmed. B

Case Information

Appeal from a decision in the Port Elizabeth Circuit Local Division (SAMPSON, A.J.). The facts appear from the judgment of SCHREINER, J.A.

G. D. Porter Matthew, Q.C. (with him A. B. Harcourt, Q.C., and Gordon Davis, Q.C.), for the appellant: The parties throughout regarded C delivery to and possession by respondent as the sole issue and respondent should not be permitted to succeed on this point, as appellant never consented to any amendment of the pleadings, no application to amend was ever made nor has it yet been made. Respondent tendered evidence to establish non-delivery to the rubber companies and thus inferentially non-delivery to itself and is not entitled to contend D that the issues were enlarged by the evidence tendered; see Middleton v Carr, 1949 (2) SA at pp. 385 - 6. It is conceded that in vindicatory actions, there ought to be an allegation of possession by a defendant; see Philip Bros v Wetzlar, 1878 Buch. 77; S.A.R. & H v Natal Industrial Products, Ltd., 1949 (2) SA 782, and cf. Wainwright v Estate Mahomed, 29 N.L.R. at pp. 626 - 7. But by permitting the pleadings to be closed and going to trial defendant is debarred from E taking any objection on a point of pleading; see Beck, Pleading (2nd ed., p. 110); Herbstein and van Winsen, Civil Practice (p. 261). In law, therefore, respondent is conclusively precluded from succeeding on the point in issue since it adopted the role, and is in the position of, one who has put himself forward in a suit; see Voet 6.1.22 (Gane's F translation, vol. 2, pp. 235 - 6, esp. paras. 3 and 5), Digest, VI.1.25, 26 (Scott's translation, vol. 3, p. 210). Consequently respondent cannot rely upon loss of possession. In any event, so far as proof of such possession is concerned, once it was, and rightly, held, that delivery was effected to respondent, this necessarily included proof of possession by respondent. Thereafter continued possession was, G and is, established by the operation of the presumption of continuance linked with the failure of respondent to prove a parting with possession; see Philip Bros. case, supra at p. 78; S.A.R. & H. case, supra at p. 787. Thereafter the onus in the sense of the risk of non-possession was on respondent. As to the nature and effect of the H presumption of continuance, see R v Fourie, 1937 AD at p. 42; May, Evidence (3rd ed., para. 248); Scoble, Evidence (3rd ed., p. 27); Wigmore, Evidence (Vol. II, sec. 437, vol. IX, sec. 2530); Halsbury's Laws of England (Simonds), vol. 15, pp. 283 - 4; Phipson, Evidence (9th ed., p. 107). Assuming a proved possession on delivery, the Judge a quo should have drawn the inference, based on probabilities derived from the evidence and from common experience, that the bales were in possession of the respondent. Respondent tendered evidence to prove

1958 (3) SA p287

that places in which it was probable that, if the bales had remained in its possession, it would have been, had been unavailingly searched. This evidence was challenged and the challenge was continued as it was clearly hearsay evidence so far as it related to an attempt to disprove the presence of the bales in the enumerated places and it was not the A best evidence for this purpose; see Estate de Wet v de Wet, 1924 CPD 341; May, supra, p. 241. And it is not saved from rejection by the type of exception exemplified by Gibson v Arnold & Co., 1951 (2) SA 139. The Judge a quo erred in finding that it was proved on a balance of probability that the bales in question were delivered to the Firestone Company. So far as circumstantial evidence was concerned not a single B witness was called to prove the possibility of such delivery. All the witnesses from the Firestone Company were called by respondent to prove that no such delivery had, or could have, taken place. None of them conceded, under cross-examination, the possibility of delivery in fact, as stated by the Judge a quo. The Judge could not, by any C permissible thought, draw an inference from their evidence that the opposite of what they said was true; see Goodrich v Botha and Others, 1954 (2) SA at p. 549. In view of the foregoing, respondent has failed to disturb appellant's prima facie case which, in consequence becomes conclusive.

C. Isaacson, Q.C. (with him K. Graham, Q.C. and S. G. Rein) for the D respondent: In the event of this Court finding that the Judge a quo was correct in his finding of the fact that appellant's rubber was landed at Port Elizabeth but was no longer in the possession of respondent at the date the action was brought, the Judge a quo applied the correct legal principles in dismissing appellant's claim; see Burnham v Neumeyer, 1917 T.P.D. 633; Getz v Hoon, 1935 W.L.D. at pp. 128, 133; Wainwright & E Co v Hassim Mahomed's Trustee, 21 N.L.R. 619; Union Government v Lombard, 1926 CPD 150; Aspeling, N.O v Joubert, 1919 AD 167; John Bell & Co., Ltd v Esselen, 1954 (1) SA 147. Appellant rightly conceded that it should have alleged that 'there ought to be an allegation of possession by a defendant'. From this it follows that it F is incumbent upon appellant to amend it's pleadings and that, in any event, appellant had to prove such possession by respondent. In the absence of such proof, appellant is not entitled to judgment, even in an undefended action and the contention that respondent should have pleaded to an allegation that was neither expressly nor impliedly embodied in the declaration and which constitutes an essential requisite of his G claim is untenable. It further follows that any necessary amendment which respondent may have to apply for, can only arise after appellant has put his pleadings in order. In any event the issue whether respondent was in possession of the goods was fully canvassed. The application of the doctrine of continuance will naturally only arise should this Court find that appellant's rubber came into respondent's H possession at Port Elizabeth. The doctrine raises a presumption of fact and not of law and casts no onus on respondent; see authorities cited for appellant, as to the nature and effect of the presumption. In any event, appellant cannot succeed unless it discharges the onus of proving on a balance of probabilities that the rubber was in respondent's possession at the time action was instituted

1958 (3) SA p288

and it has failed in such proof. The hearsay evidence objected to by appellant constituted admissible evidence of the type referred to in Gibson v Arnold & Co., 1951 (2) SA 139; and arises ex necessitate rei; see Naik v Pillay's Trustee, 1923 AD at p. 477.

Porter Mathew, Q.C. in reply.

Cur adv. vult. A

Postea (May 19th).

Judgment

B Schreiner, J.A.:

This is an appeal from a judgment of SAMPSON, A.J., sitting in the Port Elizabeth Circuit Local Division, in which the appellant's claim against the Administration for delivery of certain forty-two bales of rubber or payment of £2,286 8s. 9d., their value, was dismissed with costs.

C In order that the issues, the approach of the parties thereto and the ground of the trial Judge's decision may be properly appreciated, it is necessary to recite the material portions of the declaration and the plea. Paras. 3 to 6 of the declaration read:

'3. In or about July 1951 and at Port Elizabeth Docks Motor Vessel Inverbank offloaded and delivered to defendant, inter alia, certain 42 bales of rubber, consigned to plaintiff at Durban.

4. Defendant accepted delivery at the quayside at the said date and D took the said bales into its possession.

5. Plaintiff is, and was, at all relevant times the owner of...