IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO.2710/01
In
the matter between:
SPEEDY
OVERBORDER SERVICES (PTY) LTD PLAINTIFF
VS
IRIS
FIGUEREDO t/a PRESTIGE MARKETING DEFENDANT
CORAM
SHABANGU AJ
FOR
PLAINTIFF MR. ZWANE
FOR
DEFENDANT MR. MAZBBUKO
JUDGMENT
22nd January, 2004
The
plaintiff commenced proceedings before this court by way of action
claiming:
Payment
of E30,213-26;
Invest
thereon at the rate of 9 percent per annum calculated from the date
of issue of summons to date of payment;
Costs
of suit;
Further
and/or alternative relief.
2
In
support of its claim for the aforementioned relief the plaintiff has
pleaded the following in the relevant paragraphs of the declaration.
In this regard I refer to paragraphs four to six as follows.
"4.
In the period from April, 2000 up to May, 2001 plaintiff rendered
transportation services to the defendant at different intervals and
accordingly sent invoices to her for such services in order for her
to pay.
5.
Despite such invoices being sent to her, defendant neglected and/or
failed to make full payment for amounts indicated on such invoices.
6.
The amounts owing in respect of the invoices not paid for by the
defendant accumulated to the total of E30,213-26. Annexed hereto is a
statement indicating invoices sent to defendant and amounts in
respect thereto and the total amount due marked "A".
7.
Despite demand for payment of such amount the defendant has failed
and/or refused to pay."
Paragraphs
one and two of the declaration contains as usual a description of the
parties to the action. Then there is paragraph which states only
that, " This court has jurisdiction over this matter."
There is no allegation of some agreement or contract which may have
provided a possible basis for the alleged provision of transport
services by the plaintiff to the defendant. For all intents and
purposes the basis upon which the plaintiff allegedly provided these
services may as well have been as a negotiorum gestor. The pleadings
do not set out a complete and clear cause of action for the amount
claimed. The absence of an allegation of an agreement together with
the terms relating to an agreed remuneration means that it is
possible that the cause of action upon which the plaintiff intended
to rely may be the negotiorum gestor. If the plaintiff intended to
base its claim on negotiorum gestor it is not entitled to
remuneration for the transport services rendered to the defendant.
See WILLIAM'S ESTATE V. MOLENSCHOOT & SCHEP (PTY) LTD 1939 CPD
360, (see also GIBSON SOUTH AFRICAN MERCANTILE AND COMPANY LAW 7th
EDITION page 209). The plaintiff as negotiorum gestor will be
entitled only to his necessary or useful expenses, provided he has
not spent more than the owner himself would have spent. On the other
hand if the transport services were alleged to have been rendered on
the basis of a carriage agreement, which agreement is a species
3
of
the agreement of letting and hiring of work, in other words the
locatio conductio opens, the plaintiff would be entitled to claim the
agreed remuneration in accordance with and on the basis of the
principles applicable to contracts of letting and hiring of work, the
locatio conductio opens. On either of this possible causes of action
the plaintiff's declaration does not contain sufficient allegations
to sustain a cause of action based on either the carriage contract or
on negotiorum gestor. In so far as the carriage contract as a
possible basis for the relief claimed there is completely no
allegation of an agreement to pay remuneration for the transport
services provided, (see L.T.C. HARMS AMLERS PRECEDENTS OF PLEADING,
1988 edition page 522). Further, there are no averments relating to
the terms upon which the parries agreed on the conveyance of the
defendant's good by the plaintiff. In so far as the negotiontm gestor
as a possible cause of action for the relief claimed there is no
allegation that when the plaintiff administered the affairs of the
defendant by providing transport services, the defendant was ignorant
of the fact that his affairs were being managed on his behalf. All
that the plaintiff alleges is that it "rendered transport
services to the defendant at different intervals and accordingly sent
invoices to her for such services in order for her to pay." This
is no doubt a bad pleading to say the least. However, there was no
exception taken by the defendant to the pleading. At this stage I
need not say more on this aspect of the case.
The
defendant who did not take any exception to the plaintiff's
declaration actually makes some of the essential averments required
of the plaintiff in its declaration. The defendant unnecessarily
pleads what appears to have been a carriers contract. The onus of
pleading such a contract would normally have rested on the plaintiff
who in accordance with the ordinary rules of pleading would have been
obliged to allege in its pleadings and prove at the trial not only
the carriers contract but the releant terms which entitled the
plaintiff to the amount (remuneration) claimed. In paragraph two of
its plea the defendant pleads in response possibly to me allegation
contained in paragraphs four to seven of the declaration. 1 say
possibly because paragraph two of the plea erroneously expresses
itself to be a response to paragraph three of the declaration.
Paragraph three of the declaration as already observed above is the
paragraph wherein the plaintiff states.
4
"this
court has jurisdiction over this matter," Further in any event
the first paragraph of the defendant's plea also appears to be a
response to paragraph one to three of the plaintiff's declaration
and the contents of paragraph one to three of the plaintiff's
declaration are admitted in paragraph one of the plea. The pleadings
by both sides indicate not only a total disregard of the principles
and rules relating to pleadings by the parties in this case but it
also exhibits a lack of caution in the draft of pleadings. I will
regard paragraph two of the plea as a response to paragraphs four to
seven of the declaration. The "relevant" paragraphs of the
defendant's plea are paragraphs two to four. In paragraphs 2.1 to 2.8
the defendant pleads as follows:
"2.1
About the 4th May, 2001 the defendant engaged the plaintiff to
transport goods from South Africa to deliver same at the business
premises of the defendant in Swaziland on the 5th May, 2001.
2.2
The plaintiff undertook to defendant to that (sic) it will carry out
a twenty four courier service between South Africa and Matsapa. On
the strength of the plaintiff's undertaking an agreement was entered
into between plaintiff and defendant as stated in clause 2.1 above.
2.3
At all material times hereto the defendant had a credit facility with
plaintiff in terms of which plaintiff will carry out an overnight
courier service and deliver the goods to the defendant and issue an
invoice at a later stage.
2.4
On the 5th May, 2001 the plaintiff failed to deliver the goods to
defendant
contrary
to the agreement with the defendant.
2.5
The defendant on several occasions demanded a release of the goods
but plaintiff failed or refused to deliver same.
2.6
The plaintiff delivered a portion of the defendant's goods at
defendant's premises at about 24th August, 2001.
2.7
The plaintiff delivered another portion of the defendant's premises
(sic) in Matsapa about 28ih August, 2001.
2.8
The deliveries made by plaintiff is incomplete as some of the
defendant's goods are still withheld by plaintiff. Also at the time
of the deliveries aforementioned the said goods had been damaged,
others expired as they were kept in unfavourable condition. The said
goods were no longer fit for purposes intended."
Then
in paragraphs three and four the plea states.
5
a3.
The defendant denies that she is indebted to plaintiff in the amount
claimed or at all. The defendant further denies that plaintiff
performed in accordance with the contract and put plaintiff to proof
thereof
4.
The defendant avers that she did pay plaintiff what was due and
denied the balance of the claim."
On
the basis of the aforegoing plea the defendant prays for a dismissal
of the plaintiff's claim with costs.
From
the defendant's plea it emerges for the first time that there was a
carriers agreement between the parties. However, the defendant's plea
does not appear to specify the date of the agreement. It does not
even specify whether the agreement was oral or in writing as is
required by Rule 18 of the Rules of this Court. Inspite of this, no
fault can be laid at the defendant's door in this regard because it
was not the defendant's business to plead such agreement in the first
place. The onus to allege in the pleadings the existence of this
agreement and to prove such agreement at the trial was borne by the
plaintiff. A further difficulty in the way of the plaintiff which
appears on the pleadings is that on the assumption that paragraph two
of the plea is directed to paragraph four of the declaration most of
paragraph two of the plea seems to suggest that the defendant only
engaged the plaintiff on or about 4th May, 2001 for the purposes of
conveying the defendant's goods from South Africa to the business
premises of the defendant in Swaziland and that such goods were in
terms of that engagement supposed to be delivered the next day on 5th
May, 2001. It is not clear on the plea' what specific and particular
allegations of paragraph four of the declaration are being denied. As
already stated above other than the denial by the defendant that the
plaintiff's performance was in accordance with the "contract"
the defendant also pleads that she is not indebted to the plaintiff
and that "she did pay plaintiff what was due and denies the
balance of the claim." This is how the pleadings are formulated
in this matter.
At
the trial the evidence which was led revealed the following. The
plaintiff's business is that of a carrier offering services to the
public for the conveyance of goods between Swaziland and South
Africa. The plaintiff has indeed provided carriage services to the
6
defendant
for some time between April, 2000 to at least May 2001. This turned
out to be common cause. The plaintiff referred in its evidence to
annexure "A" of its declaration which is a statement of
account dated 31st July, 2001 reflecting a summary of a list of
invoice numbers and debits made by the plaintiff to the defendant in
respect of each of the invoice numbers. There is also a credit column
on the statement which reflects that one payment of E2000 (two
thousand Emalangeni) was made on 6th February, 2001. The total amount
reflected to be owing from the defendant to the plaintiff amounts to
E30,213-26 which is the amount claimed in the summons. At the
commencement of the trial however both parties informed me that
plaintiff was no longer claiming the aforesaid amount of E30.213-26.
The amount claimed by the plaintiff at the commencement of the trial
was less an amount of E9,175-92 which the defendant paid by cheque to
the plaintiff on or about 26th October, 2001 under cover of a letter
written by defendant's attorneys of the same date. It appears that
this amount was paid by the defendant after the plaintiff had issued
summons commencing this proceedings against the defendant. In
paragraph two of the letter dated 24th October, 2001 the defendant's
attorneys describe the payment as follows:
"2.
Our client will pay what she believes is fair and defend the balance
of your client's claim. A cheque for E9,175-92 (nine thousand one
hundred and seventy five (sic) ninety two cents) is enclosed in
settlement of what our client agrees to pay."
According
to the defendant the agreement was that the plaintiff was to convey
goods from South Africa to the defendant's premises for remuneration.
He does not say what the agreed remuneration was or how it was going
to be calculated in accordance with the terms of the agreement. The
defendant however does state and this appears to be common cause that
the initially agreed terms of payment were chat payment was to be
within thirty days from presentation of invoice. A problem arose when
the defendant's child got sick and the defendant had a huge medical
bill to attend to. Arising from this, it is common cause the
plaintiff and defendant altered the aforementioned arrangement as to
payment. The new agreed terms of payment were that the defendant was
to pay as and when she was able to until the problems occasioned to
her business as a result of her sickly child were resolved. It is
also common cause that there was no fixed instalment. The witness
called by the plaintiff also gave a substantially similar version of
the
7
agreement
reached by the parties on the revised terms of payment. The
plaintiff's witness was however not present when the revised terms of
payment were agreed upon between the parties. When the revised terms
of payment were agreed upon, the plaintiff was represented by one
Willy Stewart. The plaintiff's witness testified that on 5th May,
2001 the plaintiff rejected an amount of E3000 (three thousand
Emalangeni) which the defendant tendered as payment. The reason
offered by the plaintiff for rejecting the payment is that the amount
was too little considering the defendant's alleged indebtedness to
the plaintiff. The rejection of this payment appears to have
coincided with the last transaction between the parties which is the
one referred to in the defendant's plea. It appears that in terms of
this transaction the plaintiff had undertaken to transport and convey
goods belonging to the defendant from South Africa to the defendant's
business address in Swaziland, in Matsapa. Even though the plaintiff
accepted the obligation to convey the defendant's goods from South
Africa to Matsapa it is clear that the plaintiff did not deliver the
defendant's goods at the premises as agreed or at least as expected.
In fact it is common cause that the plaintiff refused to deliver the
goods unless the amount of E30,213-26 was paid to it. According to
the defendant's evidence which was uncontroverted the goods consisted
of stock the cost value thereof was El 1,884-86 this being the amount
at which the defendant bought the goods from South Africa. Indeed
this figure was confirmed by the plaintiff's own witness who
apparently had in her possession an invoice reflecting the cost price
of the goods to the defendant as E11,884-86. When the plaintiff's
witness divulged this she was being cross-examined by the defendant's
attorney who put to her that the value of the stock transported by
the plaintiff on 4th May, 2001 was R19,610-06. From the rest of the
evidence it is apparent that though the defendant had purchased the
stock at a cost price of El 1,884-86 its retail value in Swaziland
based on the defendant's mark-up of E7,175-25 was E19,610-06. In fact
the evidence of the defendant even as contained in exhibit "P1"
is that there were already specific orders from defendant's customers
for these goods at this retail price(s). The defendant had apparently
ordered the goods in order to meet specific orders already made to
her by her customers, It is also the uncontroverted evidence of the
defendant that because of the retention of the goods by the plaintiff
under unfavourable conditions they got spoiled and damaged, as a
result they were unfit for the
8
purpose
for which they were purchased and the defendant had to throw them
away. In line with her evidence is a summary of the result of the
plaintiff's conduct in retaining the goods which is contained in
paragraphs three and four of the letter by her attorneys dated 24th
October, 2001 to the plaintiff's attorneys wherein it was stated .
"3.
The stock which your client unlawfully kept at its warehouse for four
months (i.e. 4th May, to 4th August, 2001) was dumped by your client
on the 24th August, 2001. At the time that stock was dumped at our
client's premises it was incomplete. On the 28th August, 2001 your
client dumped some goods but still the goods were incomplete. It
appears that your client is still in possession of some of our
client's goods. At a meeting with Mr. Zwane it was pointed out that a
lot of goods are still missing.
4.
Even the goods that were dumped at our client's premises had been
damaged and were no longer good for the purpose for which they were
purchased. Further the goods were ordered for specific orders. Since
your client kept the goods unlawfully the orders were cancelled.
These goods are still lying where they were dumped. These goods are
perishable within a very short period of time. These are issues that
our client brought to your attention with a view to settle the matter
out of court."
The
defendant's evidence is that on several occasions she went to the
plaintiff's premises to explain that their retention of the goods in
the conditions under which they were kept would result in them
completely getting spoiled and losing their value. She says she
actually showed the plaintiff's witness on one occasion that some of
the goods were already spoiled at an early stage. When the
defendant's complaint and aforementioned explanations about the
deteriorating condition of the goods fell on deaf ears she says she
actually telephoned Mr. Willy Stewart and enquired whether she was
expected to accept that the plaintiff was retaining her goods in full
and final settlement of whatever the plaintiff alleged was owed by
her to the said plaintiff. She says that the line went silent on the
other side until plaintiff's representative hung up without
answering. Nevertheless following enquiry the plaintiff continued to
hold on to the goods for a long time until about 24th and 28th
August, 2001 on which dates the plaintiff simple dumped the goods at
her premises. They did not require here to sign a delivery invoice as
was the usual practice. It may be of some importance to note that
according to the statement which is annexure "A" of the
plaintiff's declaration the plaintiff's charges in respect of the
conveyance of these goods would have been El,427-28 (one thousand
four hundred and
9
twenty
seven Emalangeni twenty eight cents). The aforesaid annexure appears
to be a document produced from a computer. The date which appears on
it as 31st July, 2001 is a date on which it was produced. The
statement is addressed to Prestige Marketing, at an incomplete
address because the number of the post office box number is not
stated. In light of this it is not strange that the defendant says
she never received same until on or about the date of commencement of
these proceedings.
That
is the brief summary of the material portions of the evidence given
at the tiral. Questions may arise on whether it may be proper to take
into account some aspects of the evidence having regard to the manner
the pleadings have been drawn. In such a situation the question is
always whether all aspects of the issue which is not properly and
timeously raised on the pleadings have been fully investigated. In
MIDDLETON V. CARE. 1949(2) SA 374 AD a matter which involved inter
alia a claim for remuneration in respect of services rendered, the
learned Judge Schreiner JA stated:
"I
turn now to ground (b), under which the appellant claims thai failing
proof of the express contract for remuneration at the rate of thirty
pounds per month he is nevertheless entitled to payment at a fair or
reasonable rate for the services which he rendered. The learned Judge
refused to make such an order in the appellant's favour because there
was in the declaration no claim alternative to that based on the
express contract and because even if there had been such a claim the
evidence was insufficient to warrant a judgement for remuneration at
any particular rate. The two points are not unconnected because, as
has often been pointed out, where there has been full investigation
of a matter, that is, where there is no reasonable ground for
thinking that further examination of the facts might lead to a
different conclusion, the Court is entitled to, and generally should,
treat the issue as if it had been expressly and timeously raised. But
unless the court is satisfied that the investigation has been full,
in the above sense, injustice may easily be done if the issue is
treated as being before the court. Generally speaking the issues in
civil cases should be raised on the pleadings and if an issue arises
which does not appear from the pleadings in their original form an
appropriate amendment should be sought. Parties should not be unduly
encouraged to rely, in the hope, perhaps, of obtaining some tactical
advantage or of avoiding a special order as to costs, on the court's
readiness at the argument stage or on appeal to treat unpleaded
issues as having been fully investigated. "
In
light of the above quoted passage from Schreiner JA's judgment I
shall not hold against the plaintiff the fact that che plaintiff's
declaration does not allege any agreement,
10
because
the agreement is raised, even though, inappropriately by the
defendant in her plea. I will therefore take into account the aspects
of the evidence which relate to the agreement. In any event it does
appear to be common cause that there was an agreement, even though no
allegation is made at all whether the agreement was in writing or
oral. The fact that there was an agreement excludes the possibility
that this may have been a case of negotiorum gestor.
One
item that is clearly lacking in both the pleadings and the evidence
is an agreement as to remuneration. The question arises therefore
whether the plaintiff can obtain judgment at any rate, even if fixed
by the court as reasonable remuneration, in light of both the
pleadings and the evidence led at the trial. What is clear though
from the evidence and even from the pleadings is that remuneration
was payable. This may be inferred from the plaintiff's declaration
wherein it is stated at paragraph four that the plaintiff "sent
invoices to her for such services in order for her to pay," read
with paragraph 2.3 of the plea wherein the defendant states –
"At
all material times hereto the defendant had a credit facility with
plaintiff in terms of which plaintiff will carry out an overnight
courier service and deliver goods to the defendant and issue an
invoice at a later stage."
From
both these statements in the pleadings it is not sufficiently made
clear that remuneration was payable. If this statements are read in
the context of the evidence it is possible to infer that the parties
accepted that remuneration was payable. From this it follows that the
agreement was a contract of carriage, a species of the contract of
letting and hiring, in these case of work, otherwise known as locatio
conductio opens. See GIBSON, J.T.R, WILLE'S PRINCIPLES OF SOUTH
AFRICAN LAW 7th edition page 448, pages WILLE & MILLIN'S
MERCANTILE LAW OF SOUTH AFRICA 7th EDITION page 478. See also LTC
HARMS, AIMLER'S PRECEDENT'S OF PLEADING 3rd EDITION 52 and 190.
Gibson supra at 449 defines the contract of carriage as follows:
"A
contract of carriage is concluded when the parties have agreed upon
the following essential points: the persons or goods to be carried;
the place of departure and the destination; and the fare or freight,
or the method of
11
calculating
the same. At common law the contract may be made orally, but it is
customary for all important contracts of carriage to be made in
writing. "
Similarly
in Wille and Millin supra at page 478, the learned authors state the
following to be essential terms of carriage contract,
"In
order that a contract of carriage under the common law be binding on
the parties, they must definitely agree on the following three
points: (1) what is to be carried, (2) from what place to what
destination it is to be carried, and (3) for what price or freight
When these essential points have been agreed upon the contract is
complete. The agreement may be made orally and it is not necessary
that it be writing."
From
the above quoted passages one thing is clear, that is, that one of
the essential requirements of a carriage contract is that there must
be an agreement regarding remuneration. If no remuneration is payable
in terms of the carriage agreement the contract is a deposit or a
gratuitous mandate. (See GIBSON WTLLE'S PRINCIPLES OF SOUTH AFRICAN
LAW 7th EDITION page 448. WILLE & MBLLIN'S MERCANTILE LAW OF
SOUTH AFRICA 7th EDITION page 478. '
Regarding
the terms of agreement relating to remuneration HARMS LTC, IN
AIMLER'S
PRECEDENTS OF PLEADINGS 3rd EDITION AT PAGE 191 says:
"The
plaintiff must allege and prove (a) that remuneration was, in terms
of the contract, payable and (b) the amount of the remuneration
payable in terms of the contract. As far as (a) is concerned,
remuneration is payable if nothing was said about remuneration. It is
implied that that in such circumstance the remuneration will be a
reasonable one. It is for the plaintiff to prove that nothing was
said concerning remuneration. An allegation by the defendant that the
plaintiff undertook to do the work free of charge does not place any
onus upon the defendant. DAVE V. BIRREL 1936 TPD 192; CHAMOTTE (PTY)
V. CARL COETZEE (PTY) LTD 1973(1) SA 644 A at 649; INKIN V. BOREHOLE
DRILLERS 1949(2) SA 366 (A). It may be prudent to allege, in the
alternative to an agreed rate, a tacit term of a fair and reasonable
remuneration. If that is not done, and the issue is not fully
canvassed, the court may be unable to fix the rate and the plaintiff
may fail. MIDDLETON V. CARR 1949(2) SA 374 (A) at 385-386. The claim
for a reasonable remuneration based upon an implied term should be
distinguished from such a claim based upon unjust enrichment where
allegations of enrichment and acceptance of the benefits by the
defendant must be made."
12
Even
though LTC Harms supra says that remuneration is payable where
nothing is said about remuneration and that it is implied in such
circumstance that the remuneration will be at a reasonable rate, it
is clear from the above quoted passage by the learned author that in
order to succeed the plaintiff must allege and prove (a) that
remuneration was, in terms of the contract, payable and (b) the
amount of the remuneration payable in terms of the contract. If the
agreement did not expressly fix the amount of the remuneration and
the plaintiff wishes to rely on a tacit term of a fair and reasonable
remuneration, such term must be alleged in the pleadings and be
proven during the trial. In the present case there is neither an
allegation of an express term of the agreement fixing the
remuneration for the services rendered nor is there an allegation of
an implied term that the plaintiff would receive a fair and
reasonable amount as remuneration. Further the evidence does not at
any stage contain even a reference to either an expressly agreed
remuneration let alone an implied or tacit term for a fair and
reasonable remuneration.
Finally
there is no evidence at all led during the trial upon which I may be
able to fix a fair and reasonable remuneration. There has not even
been an attempt at all to canvass these issues.
In
the circumstances the plaintiff's claim cannot succeed and it is
dismissed with costs.
A.S.
SHABANGU
Acting
Judge
