Bareon Projects Logistics CC v Ivan Stols Vervoer CC (2646/2021) [2021] ZAFSHC 310 (26 November 2021)

IN THE HIGH

COURT OF SOUTH AFRICA

FREE STATE

PROVINCIAL DIVISION

Case No.: 2646/2021

In the matter between:

BAREON PROJECTS LOGISTICS CC[1] Plaintiff

(Registration number: 2004/033660/23)

and

IVAN STOLS VERVOER CC[2]

Defendant/Excipient

(Registration number: 1999/042388/23)

Coram: Opperman, J

Date of hearing: 12 November 2021

Date of Judgment: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 26 November 2021. The date and time for hand-down is deemed to be 26 November 2021 at 15h00.

Summary: Exception – plaintiff’s particulars of claim fail to disclose cause of action – Rule 23 of the Uniform Rules

JUDGMENT

INTRODUCTION

[1] The case is an exception in terms of Rule 23 to the plaintiff’s particulars of claim on the basis that it lacks factual averments which are necessary to sustain the cause(s) of action.

[2] In other words; the crux is that the facts, gleaned from the particulars of claim, are confusing and do not correlate with the cause(s) of action and the defendant cannot formulate a reply. The cause(s) of action to be defended is unclear and not sustained by the facts.

THE FACTS

[3] As the plaintiff put it; the incident that led to the litigation ensued when the plaintiff placed an order with the defendant to transport “mixed dry packaged product” comprising, among others, rice and beans.[3]

[4] The defendant was required to load the cargo on 4 March 2020 at 18h00 at the premises of a third party, Sasko, in Pinetown, KwaZulu-Natal. The defendant was required to offload the cargo, two days later, on 6 March 2020 at approximately 18h00 at another premises of Sasko situated in Polokwane, Limpopo.[4]

[5] Catastrophe struck when:

The insured[5] instructed his driver Andries, to convey a load of mixed dry packaged product, which consisted of rice and beans and deliver this to Sasko Polokwane bakery. When the driver arrived at the consignees in Polokwane at Sasko Bakery, the load was inspected and rejected. The cause of the rejection was that there was a fine film of iron particles, which attached itself to the already packed packages.

The driver confirmed before he had collected the load, he had delivered a load of chrome and did not clean the back of the trailers. The chrome fine particles were left on the trailer when the new load of mixed product was loaded.

During the course of travel, wind had blown the chrome particles onto the external plastic wrapping, and onto packets of packed product. The driver confirm that he had not swept the trailers free from the chrome dust, and carried out the loading process.[6]

[6] The cargo seems to have belonged to Sasko at this stage. The plaintiff, as contractor, had to arranged for the transport of the cargo and the defendant did the transport. This fact is important. The contract or agreement or information on the relationship between Sasko and the plaintiff does not form part of the pleadings. The contract between the plaintiff and the defendant is clear and will be depicted.

[7] It is not known to the Court or the defendant who, between Sasko or the plaintiff, suffered the loss for damage to the cargo at the time of the incident. It is not explicitly known where the ownership of the cargo vested at this stage. At paragraph 16.1 of the particulars of claim the plaintiff states that:

16.1 R498,677.37, comprising the market value at which the plaintiff purchased and paid for its cargo as appears from the annexed tax invoice marked “POC4”.

[8] POC 4 is a Tax Invoice directed to Stols Vervoer (the defendant) on 1 May 2020 by Bareon Projects Logistics (Pty) Ltd to the value of R498 677, 38. The invoice in itself addressed to the defendant and from the “Pty (Ltd)” and not the “CC”, contributes to the confusion.

[9] The contract[7] between the plaintiff and the defendant consisted of nine terms and conditions as in the Transport Order:

1. INSURANCE: All risks insurance cover must be effective on above load. All or any losses will be for the account of the contractor. (Accentuation added)

2. PERMITS: All necessary permits must be effective for the above load.

3.

PAYMENTS AND PROOF OF DELIVERY: Invoices reflecting our order number accompanied by the original stamped and signed delivery documents as indicated above must reach us by the 20th of the month. Invoices received after the cut-off date will only be processed during the next month which will result in a delay in payment. Please note that invoices will only be processed if accompanied by the correct documentation. Remember that the cut-off date for December is 6th.

4. Acceptance of the order implies acceptance of the terms.

5. Goods – in – transit cover is for fire, collision, overturning and hijacking only. Damage during loading and offloading is not covered. (Accentuation added)

6. Customer must ensure that all goods are properly and sufficiently packed and prepared for transport.

7. Loss or damage: Any losses, damage or claims must be reported to us within 24 hours of off-loading. Any claims arising thereafter will not be settled. The customer shall not be entitled to deduct or offset monies which are owed for any claim that was not lodged within the 24-hour limit.

8. Any fines incurred as a result in excess of legal payload or due to incorrect weight distribution will be for the customer’s account.

9. The customer is responsible for all documentation and must ensure that all relevant documents are handed to the driver before the vehicle departs from the loading point.

[10] The defendant did submit a claim with its insurer but it was rejected on 16 April 2020.[8]

THE CAUSE OF

ACTION CLAIMED BY THE PLAINTIFF

[11] The claims were worded as follows in the particulars of claim

“PRIMARY CLAIM A – DELICT

11. In accepting the transport order, the defendant acquired and owed the plaintiff a duty of care during the course of executing the transport order, to ensure that the plaintiff’s cargo was not contaminated and/or damaged and duly delivered to Sasko and or/ Pioneer Foods, fit for its intended purpose i.e., human consumption.

12. The defendant’s employees and/or agents and/or authorised representatives, acting in the course of the defendant’s business and within the scope of their employment and/or authority, negligently failed and/or refused to take the necessary and reasonable steps, detailed in paragraph 6.1 supra, to prevent the contamination and/or damage of the plaintiff’s cargo.

13. In the circumstances, the defendant is liable to the plaintiff for damages in delict, sustained as a result of its cargo having been rejected by Sasko and/or Pioneer Foods.

ALTERNATIVE CLAIM B – CONTRACT

14. In the event that this court does not uphold claim A, then in that event, the defendant relies in the express alternative on claim B and pleads as follows:

14.1 The rejection of the defendant’s policy claim as detailed in paragraph 10 supra and its concomitant material failure to ensure ‘effective’ risk insurance cover of the plaintiff’s cargo qua ‘contractor’, caused the plaintiff ‘losses’ as envisaged in term 1 of the transport order.

15. In the circumstances, the plaintiff claims payment from the defendant flowing directly from the defendant’s material breach of term 1 of the transport order.”

THE EXCEPTION

[12] The grounds of exception are set out in paragraphs 1 to 14 of the defendant’s notice of exception. The nub of the exception is that the plaintiff, on its own version, only became owner of the cargo after the cause of action in both the contractual and delictual claim arose.[9] The incident happened between the 4th of March 2020 and the 6th of March 2020. The claim to the insurer was rejected on 16 April 2020.

1. The Plaintiff’s action against the defendant is (inter alia) for the payment of damages, which damages the Plaintiff calculates as the market value of the cargo in question (i.e., the amount of R498 677-37), minus the salvage value (i.e., the amount of R57 764-39).

2. The Plaintiff’s aforesaid damages claim is based on delict (herein further referred to as “the delictual claim”) and in the alternative on contract (herein further referred to as “the contractual claim”)

3. In both the delictual and the contractual claim the Plaintiff relies on its alleged ownership of the cargo in question.

4. In sub-paragraph 16.1 of its particulars of claim the Plaintiff pleads that it became owner of the cargo in question on “about 1 May 2020 when it was purchased by the Plaintiff for the amount of R498 677-37.”

5. Therefor on its own version, the Plaintiff only became owner of the cargo after the causes of action in both the delictual claim and the contractual claim arose.

6. Furthermore, annexure “POC4” to the Plaintiff’s particulars of claim is a copy of one of the Plaintiff’s own tax invoices which was purportedly made out to the defendant. This state of affairs effectively means that it is part of the Plaintiff’s case that the Defendant purchased, or was obliged to purchase, the cargo in question from the Plaintiff for the amount of R498 677-37.

7. Nevertheless, and even if the Plaintiff indeed purchased the cargo in question on/about 1 May 2020, it means that, on its own version:

a. The Plaintiff was not the owner of the cargo in question when it was contaminated with the chrome particulars (sic);

b. The Plaintiff purchased the cargo in question knowing very well that it was contaminated with chrome particulars (sic).

8. The heading of paragraphs 4 and 5 of the Plaintiff’s particulars of claim clearly provides for a transport subcontract. The state of affairs effectively means that it is part of the Plaintiff’s case that it concluded a contract with someone in terms whereof it was part of its contractual obligations to transport the cargo in question, where after the Plaintiff concluded a subcontract with the Defendant in terms whereof it was part of the Defendant’s obligations to transport the cargo in question.

9. The state of affairs set out in paragraphs 8 above is in contradiction with the plaintiff’s case that it is the owner of the cargo in question.

10. In sub-paragraph 16.3 of its particulars of claim the Plaintiff alleges that an excess payment in the amount of R35 000-00 was incurred by the Plaintiff in pursuance of seeking and receiving partial contractual indemnification from its insurer.

11. However, and based on the Plaintiff’s allegation that it is the owner of the cargo in question:

a. The Plaintiff discloses no factual and/or legal basis for its payment of the aforesaid amount of R35 000-00;

b. It is, in any event, unknown to whom the Plaintiff made payment of the aforesaid amount of R35 000-00.

12. Moreover, in prayer 2 of its particulars of claim the Plaintiff claims payment of the aforesaid amount of R35 000-00 from the Defendant.

13. However, in prayer 1 of its particulars of claim the Plaintiff claims payment of the amount of R440 912-98 from the defendant, which amount already represents the total amount of the Plaintiff’s alleged damages.

14. Therefore, by claiming the amount of R35 000-00 from the Defendant in addition to the amount of R440 912-98, the Plaintiff is, on its own version, claiming more from the Defendant than the Plaintiff is entitled to do.

[13] At paragraphs 11. and 12. of the particulars of claim the plaintiff refers to “the plaintiff’s cargo”. In paragraph 14.1 of the particulars of claim the plaintiff refers to “the plaintiff’s cargo qua[10] ‘contractor’”. The implication is that the plaintiff took possession or acquired liability in its capacity as transport contractor. There is no prove of this in the pleadings. The fact that the cargo had to be insured was to protect the property of Sasko not the plaintiff.

THE REPLY TO THE

EXCEPTION

[14] It is the case for the plaintiff that their claims are not exclusively premised on ownership in the “traditional sense of the word”. “Rather, the plaintiff’s categorization of the cargo as the “the plaintiff’s cargo” which the “plaintiff purchased and paid for” are primary facts which establish a legal right to the cargo, either in an ownership context, or a different context to be established at the trial with the benefit of evidence i.e., facta probantia”.

[15] It is the explanation of the plaintiff that its “claim is for patrimonial loss i.e., damages, which it sustained as a result of having, in a contractual context, where legally recognised rights and obligations also arise, subcontracted the defendant to transport cargo, which the plaintiff alleges it had also purchased and paid for”.

[16] According to the plaintiff patrimonial loss includes ownership, earning capacity, debts incurred and contractual duties, all of which can be established by way of evidence at trial. The same goes for the excess claim - exception. The date on the Tax Invoice is not purported to be the date on which ownership of the cargo was acquired.

THE LAW

[17] It is trite that a party cannot use the process of an exception as a means of complaining about a lack of sufficient information for trial.[11]

[18] “An exception is a legal objection to the opponent’s pleading. It complains of a defect inherent in the pleading: admitting for the moment that all the allegations in a summons or plea are true, it asserts that even with such admission the pleading does not disclose either a cause of action or a defence, as the case may be.”[12]

[19] The principal use of an exception is to raise and obtain an expeditious decision on questions of law, which are apparent on the face of the pleadings, so as to avoid the leading of unnecessary evidence. Exceptions, should therefore be dealt with “sensibly without using an over-technical approach and provide a useful mechanism to weed out cases without legal merit”. It curtails the leading of unnecessary evidence.[13]

[20] A defendant cannot plead a defence to a cause of action which does not exist or, which has not been set out. Rule 18(4) of the Uniform Rules of Court provides that every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, with sufficient particularity to enable the opposite party to reply thereto.

[21] It is, of course, a basic constitutional principle that particulars of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto; the object of pleadings is to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. Pleadings must therefore be articulate and sound; the cause of action or defence must appear clearly from the factual allegations made.[14]

[22] In M v Zimbali Country Club (AR207/2016) [2016] ZAKZPHC 81 (23 September 2016) per Seegobin J (P Olsen J concurring) it was found that actionable causes and the proper legal meaning of cause of action is the entire set of facts giving rise to an enforceable claim. Every fact that is material to be proved to entitle plaintiffs to succeed in their claims must be included to disclose a cause of action and it does not arise or accrue until the last of such facts occurs. In McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 it was referred to as: “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to each fact, but every fact which is necessary to be proved.”

[23] The nature of the patrimonial loss at the time of the incident is not known. It is not known to the Court or the defendant who; between Sasko and the plaintiff, would suffer the loss due to damage to the cargo during the transport thereof. It is also not explicitly known where the ownership of the cargo vested at this stage. The cargo was apparently purchased later by the plaintiff. Herein lies the confusion and the exception.

[24] The exception is based on a confusion of the cause of action; claims for damages are financial claims that are brought to compensate a plaintiff as a result of a loss-causing event that occurred because of the fault of the defendant.

[25] A loss-causing event in delict and contract comprises of certain elements. The plaintiff must aver and prove it. Each of these causes of action or loss-causing events require that certain elements must be proven. A plaintiff is only entitled to the damages that he or she can prove that they have suffered.

[26] The following elements must be present to successfully claim damages as a result of a delict: The defendant must have committed an act, or an actionable omission; that is wrongful and that caused the harm. The harm to be in the form of damage or loss to the plaintiff; because of the fault (whether intentionally or negligently) of the defendant.

[27] In this case there is not clarity as to what was the harm that was caused to the plaintiff and how it came about. Is the harm the non-compensation of the plaintiff for their services or is it the damage to the cargo? Is the harm situated in the value of the cargo or the value of the service of the plaintiff to Sasko for the arrangement of the transport of the cargo? If this is uncertain so will be the quantum of the loss. Did the plaintiff cause their own harm by buying over the contaminated cargo? If so, what is the causation between the conduct of the excipient and the loss suffered by the plaintiff, if any? The contamination of the cargo was, apparently, a loss for Sasko, not the plaintiff and the plaintiff, apparently, caused its own damage by buying the cargo. The loss that the excipient caused might have been for the payment for the services of arranging the transport; not the cargo.

[28] The excipient is correct in its summation of the law. When an exception is taken against a pleading, the Court will look at the pleading as it stands.[15] If the particulars of claim does not allege an entitlement by the plaintiff to claim the damages it discloses, no cause of action exists and the exception must succeed.

[29]

ORDER

1. Since the plaintiff’s particulars of claim do not disclose an appropriate cause of action as set out and explained in paragraphs 1 to 14 of the notice of exception, it is ordered that the plaintiff’s particulars of claim are struck out;

2. that the plaintiff is afforded 10 (ten) days from the date of this order within which to amend their particulars of claim; and

3. the plaintiff is ordered to pay the costs of the exception.

M OPPERMAN, J

APPEARANCES

FOR THE

PLAINTIFF

ADVOCATE

A DUVENHAGE

082 7731 840

arnod@capebar.co.za

JANINE SNYDERS

ENGELSMAN

MAGABANE INC

Ref: LIB11/0045/B.185

C/O KRAMER

WEIHMAN INC

24 BARNES STREET

Westdene

BLOEMFONTEIN

051 411 4000

Ref: JL WEIHMANN

FOR THE DEFENDANT/

EXCIPIENT

ADVOCATE

JE KRUGER

082 3366 898

kruger.annamarie@gmail.com

LOU

VAN WYK ATTORNEYS INC

056 811 2323

lou@kriwyk.co.za

C/O PHATSOANE

HENNEY INC

35 MARKGRAAFF STREET

WESTDENE

051 400 4022

japiek@phinc.co.za

Ref: J KRUGER/LOU120/0003

[1] “Bareon CC”. There is also mention of BAREON PROJECTS LOGISTICS (Pty) Ltd with registration number: 2014/073298/07. The first page of the Particulars of Claim at paragraph 1. refers to the plaintiff as follows: 1. The plaintiff is BAREON PROJECTS LOGISTICS (PTY) LTD 1.1 A private profit company with the registration number 2004/033660/23, duly incorporated and registered in accordance with the company laws of the Republic of South Africa. 1.2 … 1.3 Authorized to pursue this claim in terms of the annexed resolution marked POC 1. The plaintiff is a CC and the registration number is indeed 2004/033660/23. The (Pty) Ltd carries the registration number 2014/073298/07. POC 1 authorizes a civil claim in the Northern Cape High Court by and to the CC.

[1] “Bareon CC”. There is also mention of BAREON PROJECTS LOGISTICS (Pty) Ltd with registration number: 2014/073298/07. The first page of the Particulars of Claim at paragraph 1. refers to the plaintiff as follows:

1. The plaintiff is BAREON PROJECTS LOGISTICS (PTY) LTD

1.1 A private profit company with the registration number 2004/033660/23, duly incorporated and registered in accordance with the company laws of the Republic of South Africa.

1.2 …

1.3 Authorized to pursue this claim in terms of the annexed resolution marked POC 1.

The plaintiff is a CC and the registration number is indeed 2004/033660/23. The (Pty) Ltd carries the registration number 2014/073298/07. POC 1 authorizes a civil claim in the Northern Cape High Court by and to the CC.

[2] “Stols Vervoer”.

[3] Paragraph 4 at page 14 of the Bundle indexed on 4 October 2021.

[4] Paragraph 5.1 of the particulars of claim at page 14 of the Bundle indexed on 14 October 2021.

[5] The defendant.

[6] POC 3 at page 23 of the Bundle indexed on 14 October 2021.

[7] POC 2 at page 21 of the Bundle indexed on 4 October 2021.

[8] POC 3 at page 23 of the Bundle dated 4 October 2021.

[9] Defendant’s heads of argument at 3.1.1.

[10] Definition of qua: “in the capacity or character of”, https://www.merriam-webster.com/dictionary/qua on 19 November 2021.

[11] Venter and Others NNO v Barritt; Venter and Others NNO v Wolfberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C).

[12] Erasmus, Superior Court Practice, Volume 2: Uniform Rules and Appendices, Rules of Court, 23 Exceptions and applications to strike out at page RS 16, 2021, D1-293.

[13] Bowman Gilfillan Inc and Another: In re: Minister of Transport and Others [2018] 3 All SA 484 (GP) at paragraphs 18 to 23.

[14] Harms, Civil Procedure in the Supreme Court at B23.1, last updated 2021, https://www.mylexisnexis.co.za/Index.aspx.

[15] Minister of Safety and Security and another v Hamilton 2001 (3) SA 50 (SCA), [2001] ZASCA 22, Baliso v FirstRand Bank LTD t/a Wesbank 2017 (1) SA 292 (CC).