1.
GARWE
JA: The
respondent issued summons out of the High Court seeking an order for
the release of its plastic bags which were being retained by the
appellant, payment of the sum of US$157,350.05 representing the
business it lost as a result of such retention and costs of suit on
the scale of legal practitioner and client. The respondent also
sought payment of interest from the date of issue of summons to the
date of payment in full.
2.
After hearing evidence and submissions from the parties, the court a
quo
ordered the appellant to pay the sum of $157,350.05 to the respondent
being damages for loss of business, interest on that sum at the
prescribed rate and costs of suit on the ordinary scale. The present
appeal is against that order.
FACTUAL
BACKGROUND
3.
The appellant is a company registered in accordance with the laws of
Zimbabwe and carries on business from premises in Avondale, Harare.
It is an agent of the Mediterranean Shipping Company (“Mediterranean
Shipping”), a company that operates worldwide with its core
business being the carriage of containers. As agent, appellant's
responsibility is to fulfil the obligations of Mediterranean Shipping
by facilitating delivery of containerised cargo to the clients of
Mediterranean Shipping in Zimbabwe.
4.
In this particular instance, at the behest of Mediterranean Shipping,
the appellant supervised the movement by road of the plastic bags,
which were in a container, from the Port of Beira to Mutare Dry Port.
In Mutare, the appellant instructed the employees of the Port not to
release the goods until certain monies were paid by the respondent.
It is common cause that initially the appellant refused to release
the container until a sum of money owed by the wife of one of the
directors of the respondent had been paid. Upon realising that the
debt had nothing to do with the respondent, the appellant then
demanded payment of the sum of $80.50 in respect of handling charges.
The respondent, believing the bags had been unlawfully retained by
the appellant, instituted proceedings in October 2012 for the release
of the bags, damages for loss of business and interest thereon at the
prescribed rate. The sum of $80.50 was only paid in August 2013 after
which the plastic bags were then retrieved.
PROCEEDINGS
A QUO
5.
In its declaration, the respondent alleged that it had imported a
container of plastic bags from Hong Kong and that it had engaged the
appellant as its agent to facilitate the importation and clearing of
the goods with the Zimbabwe Revenue Authority(“ZIMRA”). It
alleged that, notwithstanding the fact that it had paid the import
duty and appellant's clearing fees, the appellant had refused to
release the container on the basis that it was owed money from a
previous transaction by the wife of one of the respondent's
directors. It alleged that consequent upon the refusal by the
appellant to release the container, a client who had placed an order
with it for plastic bags had cancelled the order as a result of which
the respondent had suffered damages in the amount claimed.
6.
In its plea, the appellant, as defendant, denied that it had entered
into a contract of agency with the respondent. It alleged that it had
been contracted by the shipper (a term used in the freight business
to denote the person who prepares the necessary documentation for the
carriage of goods), Hong Kong Richer Int'l Group Limited (”Richer
International”) to transport the cartons of plastic bags CIF
Mutare. It alleged that it duly discharged its obligations to deliver
the container to Mutare Dry Port after which the respondent became
liable to pay its administration fee relating to the Bill of Lading
and the container in the sum of $80.50. The appellant accepted that
it refused to release the container before payment of the
administration fee in the sum of $80.50 had been made.
7.
At a pre-trial conference before a judge in chambers, the parties
agreed the issues to be determined at the trial. The issues included,
inter
alia,
whether a contract existed between the parties, and, if so, the terms
thereof. Further, whether the appellant was entitled to refuse to
release the container until payment of the handling fee of $80.50 had
been made and, if not, whether the respondent had suffered damages in
the amount claimed in the summons.
8.
During viva
voce
evidence the respondent, represented by its managing director, Albert
Kuwaza, stated as follows. His company ordered the plastic bags from
China and, through the supplier, engaged the appellant at its offices
in China to transport the merchandise from China to Mutare, Zimbabwe.
Once the goods were in Mutare the appellant then demanded payment of
the sum of $1,750 which it alleged was owed by a Mrs Kuwaza, wife of
one of the respondent's directors, in respect of a previous
transaction. The issue of the handling fee of $80.50 was raised by
the appellant for the first time in October 2012, way after a client
who had placed an order for the bags had cancelled the purchase.
9.
Under cross-examination, he conceded that, in fact, the company with
which he contracted in China was Richer International and that Richer
International in turn contracted with Mediterranean Shipping to
transport the goods to Mutare. He further conceded that the clearing
fees were paid directly to Green Motor Services, the company that was
operating Mutare Dry Port and not to the appellant. He told the
court, further, that as far as he was concerned, the appellant,
Mediterranean Shipping and Green Motor Services were part of the same
company.
10.
Following the dismissal of an application for absolution at the close
of the plaintiff's case, the appellant's managing director, Dr
Giorgio Spambinato, gave evidence before the court a
quo.
His evidence was as follows. The appellant, which operates from
offices situate at 27 Natal Road, Belgravia, Harare is an agent of
Mediterranean Shipping. It has no offices outside Zimbabwe. The
appellant's role was to assist Mediterranean Shipping to execute
its contractual obligation of moving cargo into and out of Zimbabwe.
In this case the appellant only supervised the movement by road of
the container from the Port of Beira to Mutare. It was not involved
in the clearance of the goods with ZIMRA.
11.
He confirmed that initially the appellant had insisted on payment of
the sum of $1,750 owed by a Mrs Kuwaza in respect of a previous
transaction but, on realising the error, had personally instructed
that the container be released on payment of the sum of $80.50. That
sum represented the handling fee for facilitating the necessary
documentation and supervising the speedy execution of delivery by
sub-contractors and service providers. He explained that in Zimbabwe
it is customary for the agent handling the cargo on behalf of
Mediterranean Shipping to recover the costs directly from the
recipients of the cargo. In other countries the handling fee is paid
by Mediterranean Shipping. Whatever role the appellant played in this
case was in fulfilment of its agency agreement with Mediterranean
Shipping.
12.
In its closing address a
quo,
the respondent submitted that the question whether there was a
contract was “of no real consequence” and that “there needn't
have been a contract between them because the scenario can be
resolved by the principles of depositum…”
Further that, as depositary, the appellant had an obligation to
return the goods to the respondent upon demand. The respondent
further submitted that it was clear from the summons and declaration
that the claim “was vindicatory in nature, not contractual.”
Accordingly, respondent prayed for its claim for damages and interest
thereon to be granted on the basis of depositum.
13.
In its address a
quo
the appellant submitted that, on the evidence led before the court,
no contract had been proven. The person with whom the respondent had
communicated in China was not the appellant but an employee of
Mediterranean Shipping. More critically, the terms of the alleged
contract between the respondent and the appellant had not been
established. Moreover, at no stage had the respondent deposited the
goods with the appellant.
14.
In its judgment the court a
quo
found that Mr Kuwaza, the managing director of the respondent had
been unclear as to the nature of the relationship between the
appellant, Mediterranean Shipping, Richer International and the
respondent. The court remarked as follows at page 10 of its judgment:
“What
is apparent from Mr Kuwaza's evidence is that he did not produce
any documents to show the existence of a contract between the
plaintiff and the defendant. From the evidence that is before me it
is clear that the plaintiff entered into a shipping agreement with
Mediterranean Shipping Company in Hong Kong, China in April 2012 for
the shipment of its plastic container from China to Zimbabwe. That
contract did not involve the defendant.”
15.
However at pages 10-11 of the cyclostyled judgments the court a
quo
stated:
“I
am of the considered view that the circumstances of this case show
that there was a contract between the plaintiff and the defendant.
Although the defendant said that it was acting as an agent of
Mediterranean Shipping Company its conduct towards the plaintiff
shows that it also contracted with the plaintiff separately. It is
not disputed that the defendant facilitated the importation of the
plaintiff's cargo from the Port of Beira to Mutare. Thereafter it
demanded payment from the plaintiff for the service that it had
rendered. The parties did not enter into this contract verbally or in
writing but they did so by their conduct. By demanding payment from
the plaintiff for the costs it incurred in facilitating the
importation of the plaintiff's cargo the defendant created a
contract between itself and the plaintiff. It made it a condition of
the contract that if the administration fee was not paid, the
plaintiff's cargo was not going to be released. If there was no
contract between the plaintiff and the defendant, the defendant
should have simply demanded payment of its fees from Mediterranean
Shipping Company which it alleges to be its principal. At law an
agent's duty is to perform his mandate on behalf of his principal
and he accounts to his principal. The agent's remuneration is paid
by the principal and not by a third party. I therefore take it that
the moment an agent starts demanding payment from the third party and
not from his principal then it means that he is no longer acting in
terms of the contract between himself and his principal, but he would
have created his own contract with the third party. That contract he
would have created with the third party is separate from his contract
with his principal. In casu this is what the defendant did. It
created its own contract with the plaintiff, which contract was
separate from the one it had with Mediterranean Shipping Company.”
16.
At page 12 of its judgment, the court, without commenting on the
submission by the respondent that it now relied on a contract of
depositum,
concluded by stating:
“If
there was no contract between the 2 companies then the defendant
should and would have demanded its fee from Mediterranean Shipping
Company which is its principal. If there was on (sic) contract the
defendant had no business demanding that money from the plaintiff. It
also had no business withholding or refusing to release the
plaintiff's container on the basis that the handling fee had not
been paid. All the defendant's payments would have been due from
Mediterranean Shipping Company. The plaintiff managed to prove that
there was contract between itself and the defendant.”
17.
Based on the above findings, the court concluded that the appellant
had wrongfully refused to release the container and that the
respondent had proved its contractual damages. It consequently made
the order which is the subject of this appeal.
GROUNDS
OF APPEAL
18.
In its notice of appeal the appellant raised five grounds. These are:
(i)
The court a quo erred in finding that there was a contract between
the appellant and the respondent when the latter was unable to
identify the nature of the contract it relied upon and its terms –
i.e. whether the contract was one of carriage, depositum or agency.
(ii)
The court a quo erred in finding that there was a contract between
the appellant and the respondent despite a contrary indication in the
bill of lading and respondent's lack of knowledge of the terms of
the contract it alleged.
(iii)
The court a quo erred in placing the onus of proving the terms of the
contractual relationship between appellant and respondent on the
former, albeit obliquely.
(iv)
The court a quo erred in finding that -
(1)
the contract for the sale of the plastic bags between the respondent
and Nedol Investments (Private) Limited was not a sham; and
(2)
the loss suffered by respondent, if any, was reasonably foreseen by
appellant at the time of the conclusion of the alleged contract and
despite the fact that the reasonable foreseeability was not
specifically pleaded and proved.
(v)
The court a quo erred in finding that the respondent had mitigated
its loss.
APPELLANT'S
SUBMISSIONS BEFORE THIS COURT
19.
In its submissions before this Court, the appellant has argued that
the respondent did not sufficiently identify the nature of the
contract between the parties, in particular, whether it was one of
agency or depositum.
The terms of the agreement, be it agency or depositum,
remained unknown. It further submitted that the case for the
respondent was muddled and that the judgment of the court a
quo
was equally confusing and confused. Lastly, it submitted that whilst
the facts show some relationship between the parties, the respondent
had not proved the nature of the relationship that existed between
them.
RESPONDENT'S
SUBMISSIONS BEFORE THIS COURT
20.
In its heads of argument, the respondent has submitted as follows.
Its declaration in the court a
quo
made it clear that what it sought was the release of its goods
arising from their unlawful detention. Further, that even if there
was no contract of agency between the parties, the respondent “was
not without a remedy” and that there was a tacit contract of
depositum
between the parties.
21.
In paragraph 3 of its heads of argument, it has further stated:
“The
respondent had contended that the claim was of a vindicatory nature
and that any contract between the parties was one of depositum…. As
the appellant states, the court did not deal with these issues. It is
here noted that by the time the matter came before the court, the
goods had been released and if the claim had originally been
vindicatory in nature, it no longer was, which was probably the
reason why the court a
quo allowed itself to be misled by the appellant to believe that the
claim fell to be decided in contract.”
(my emphasis)
22.
At paragraph 10 of its heads of argument, the respondent has also
stated:
“The
absence of a contract, however, would not have left the respondent
without a remedy because he would have a claim in delict for any loss
incurred as a result of the unlawful possession of his property ….”
23.
Finally, at paragraphs 13 and 14 of its heads, the respondent has
further argued:
“13.
Thus, as the respondent's counsel contended at p239, the issue
whether there was a contract between the parties was really of no
consequence and the appeal cannot succeed on the basis that no such
contract was brought into being.
14.The
court a quo found in effect that there was a tacit contract between
the parties based on the fact that the appellant raised charges
mentioned above against the respondent.”
RESPONDENT'S
SHIFTING CAUSE OF ACTION
24.
It is clear from the foregoing that the respondent, as plaintiff,
changed its cause of action as the trial progressed. In the
declaration, the claim clearly arises from a contract of agency. When
the respondent realised that the evidence did not establish such
agency, an aspect I deal with shortly, it then claimed, without
amending its pleadings, relief on the basis of the rei
vindicatio
and
a contract of depositum.
In its submissions before this Court, the respondent says, whatever
the correct position might be on whether or not it had a contract
with the appellant, it cannot be without a remedy. The suggestion was
made that it even had a claim arising out of delict.
25.
I am inclined to agree with learned counsel for the appellant that
the cause of action a
quo
was most confusing. The cause of action based on a contract of agency
was abandoned in favour of the rei
vindicatio
and
depositum,
which had not been pleaded. No evidence was led on the terms of such
contract. To add to the confusion, before this Court, the possibility
of the claim arising out of delict has also been thrown in. The
manner in which the respondent handled its cause of action in the
court a
quo
and before this Court is most unsatisfactory and not permissible.
Implicit in the submissions by the respondent in support of the
judgment of the court a
quo
is that pleadings serve no purpose.
THE
IMPORTANT PURPOSE OF PLEADINGS
26.
The manner in which the respondent has handled its case both a
quo
and in this Court brings to the fore the question as to what the
purpose of pleadings is. In general the purpose of pleadings is to
clarify the issues between the parties that require determination by
a court of law. Various decisions of the courts in this country and
elsewhere have stressed this important principle.
In
Durbach
v Fairway Hotel Ltd
1949
(3) SA 1081 (SR)
the court remarked:
“The
whole purpose of pleadings is to bring clearly to the notice of the
court and the parties to an action the issues upon which reliance is
to be placed.”
26.1
Harwood BA in his text Odgers Principles of Pleading & Practice
in Civil Actions in the High Court of Justice (16th
edn, Stevens & Sons Ltd, London, 1957) states at page 72:
“The
function of pleadings then is to ascertain with precision the matters
on which the parties differ and the points on which they agree; and
thus arrive at certain clear issues on which both parties desire a
judicial decision.”
26.2
In Kali
v Incorporated General Insurance Ltd 1976
(2) SA 179 (D) at 182,
the court remarked:
“The
purpose of pleading is to clarify the issues between the parties and
a pleader cannot be allowed to direct the attention of the other
party to one issue and then, at the trial, attempt to canvass
another.”
26.4
In Courtney–Clarke
v Bassingthwaighte
1991
(1) SA 684 (Nm),
the court remarked at page 698:
“In
any case there is no precedent or principle allowing a court to give
judgment in favour of a party on a cause of action never pleaded,
alternatively there is no authority for ignoring the pleadings… and
giving judgment in favour of a plaintiff on a cause of action never
pleaded. In such a case the least a party can do if he requires a
substitution of or amendment of his cause of action, is to apply for
an amendment.”
26.5
In Imprefed
(Pty) Ltd v National Transport Commission 1993
(3) SA 94 (A)
108, the court cited with approval the case of Robinson
v Randfontein Estates GM Co. Ltd 1925
AD 173 where at page 198 it was stated as follows:
“The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause prejudice or
would prevent full enquiry. But within those limits the court has a
wide discretion. For pleadings are made for the court, not the court
for pleadings. And where a party has had every facility to place all
the facts before the trial court and the investigation into all the
circumstances has been as thorough and as patient as in this
instance, there is no justification for interference by an appellate
tribunal, merely because the pleading of the opponent has not been as
explicit as it might have been.”
26.6
In Jowell
v Bramwell-Jones
1998
(1) SA 836 at 898 the
court cited with approval the following remarks by the authors Jacob
and Goldrein in their text Pleadings:
Principles and Practice
at
p8-9:
“As
the parties are adversaries, it is left to each of them to formulate
his case in his own way, subject to the basic rules of pleadings…
For the sake of certainty and finality, each party is bound by his
own pleading and cannot be allowed to raise a different or fresh case
without due amendment properly made. Each party thus knows the case
he has to meet and cannot be taken by surprise at the trial. The
court itself is as much bound by the pleadings of the parties as they
are themselves. It is not part of the duty or function of the court
to enter upon any enquiry into the case before it other than to
adjudicate upon the specific matters in dispute which the parties
themselves have raised by their pleadings. Indeed, the court would be
acting contrary to its own character and nature if it were to
pronounce upon any claim or defence not made by the parties. To do so
would be to enter the realm of speculation.… Moreover, in such
event, the parties themselves, or at any rate one of them, might well
feel aggrieved; for a decision given on a claim or defence not made,
or raised by or against a party is equivalent to not hearing him at
all and may thus be a denial of justice. The court does not provide
its own terms of reference or conduct its own inquiry into the merits
of the case but accepts and acts upon the terms of reference which
the parties have chosen and specified in their pleadings. In the
adversary system of litigation, therefore, it is the parties
themselves who set the agenda for the trial by their pleadings and
neither party can complain if the agenda is strictly adhered to.”
(my emphasis)
26.7
The authors Cilliers AC, Loots C and Nel HC in their text Herbstein
and Van Winsen “The Civil Practice of the High Courts of South
Africa
(5th
edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage
from Halsbury's Laws
of England,
4th
edn (Reissue), Vol 36 para 1 in which the function of pleadings is
said to be:
“… to
give a fair notice of the case which has to be met and to define the
issues on which the court will have to adjudicate in order to
determine the matters in dispute between the parties. It follows that
the pleadings enable the parties to decide in advance of the trial
what evidence will be needed. From the pleadings the appropriate
method of trial can be determined. They also form a record which will
be available if issues are sought to be litigated again. The matters
in issue are determined by the state of pleadings at the close if
they are not subsequently amended.” (at page 558)
26.8
In Farrell
v Secretary of State for Defence (1980)
1
All ER 166 at page 173, Lord Edmund-Davies stated as follows:
“It
has become fashionable these days to attach decreasing importance to
pleadings, and it is beyond doubt that there have been times when an
insistence on complete compliance with their technicalities put
justice at risk, and indeed, may on occasion have led to its being
defeated. But pleadings continue to play an essential part in civil
actions, and although there has been… a wide power to permit
amendments, circumstances may arise when the grant of permission
would work injustice or, at least, necessitate an adjournment which
may prove particularly unfortunate in trial with a jury. To shrug off
criticism as 'a mere pleading point' is therefore bad law and bad
practice. For the primary purpose of pleadings remains, and it can
still prove of vital importance. That purpose is to define the issues
and thereby to inform the parties in advance of the case they have to
meet and so enable them to take steps to deal with it.”
26.9
In a paper: A
Judge's View Point, the Role of Pleadings presented
by Justices Rares of the Federal Court of Australia and Richard White
of the Supreme Court of New South Wales at a judge's symposium, the
learned judges remarked:
“Precise
formulation of the applicant's rights in the initiating document is
of central importance. This is because the pleading is the source
from which many other consequences flow in the life of the litigation
from filing at first instance through to final resolution in the High
Court. The pleading will be used as the reference point for the
seeking of particulars, the administering of interrogatories (which
is virtually extinct), the obtaining of an order for discovery if the
court is satisfied this is required, the issue of subpoenas, the
calling of evidence, the relevance and admissibility of evidence, the
closing arguments, the reasons for judgments and the availability of
arguments on appeal. At all of these points, the following questions
arise: “Was this issue pleaded?” and “How was this issue
pleaded?” The question is not the loose one whether the argument
could possibly be raised on the evidence at the conclusion of a
hearing but whether the issue has been pleaded…”
27.
I associate myself entirely with the above remarks made by eminent
jurists both in this jurisdiction and internationally. The position
is therefore settled that pleadings serve the important purpose of
clarifying or isolating the triable issues that separate the two
litigants. It is on those issues that a defendant prepares for trial
and that a court is called upon to make a determination.
Therefore
a party who pays little regard to its pleadings may well find itself
in the difficult position of not being able to prove its stated cause
of action against an opponent.
REQUISITES
FOR PLEADING A CONTRACT
28.
In an action based on a contract, the material averments that must
usually be made are the existence of the contract, the relevant terms
of the contract and the applicability of those terms to the
particular right forming the basis ex
contractu
of the claim – Herbstein
& Van Winsen,
The
Civil Practice of the High Courts of South Africa,
op cit, p569.
Whether
the contract of agency was proved?
29.
This was the basis of the respondent's cause of action before the
High Court. The respondent's managing director did not know the
exact relationship between the appellant, Mediterranean Shipping and
Richer International of Hong Kong. From the evidence, it is clear
that the appellant was not involved in the transactions that took
place in China. It does not conduct operations outside Zimbabwe. It
only got involved, as agent of Mediterranean Shipping, in tracking
the container once it landed in Beira and in having it transported to
Mutare Dry Port. It was also clear from the evidence that, as agent
of Mediterranean Shipping, the appellant was supposed to receive
payment from Mediterranean Shipping for its role in checking the Bill
of Lading and ensuring that the cargo was delivered to Mutare Dry
Port. The appellant's managing director explained however that it
is the practice in Zimbabwe for the recipient to be billed directly
by the appellant.
30.
Clearly, no contract of agency was proved. The fact that the
appellant invoiced the respondent for handling fees does not, on its
own, show the existence of a contract. The exact relationship that
existed between the two parties was not established. In the
circumstances, the court a
quo
should have granted the application for absolution from the instance
which was made at the close of the case for the plaintiff. The court
a
quo
accepted that the respondent had not produced documents to show the
existence of a contract. The court further accepted that the
respondent had entered into a shipping agreement with Mediterranean
Shipping in Hong Kong and that the appellant was not involved.
31.
The court also accepted that the appellant only got involved in
supervising the movement of the container from Beira to Mutare at the
behest of Mediterranean Shipping. The court further found that
although the parties had been involved in these transactions over the
years, the respondent did not know that the appellant was merely an
agent of Mediterranean Shipping.
32.
Having made these findings, that really should have been the end of
the matter. The suggestion that, judging by the conduct of the
parties, there must have been some other undefined contract between
them, is not borne by the evidence. In any event, the court did not
state what type of contract this may have been and what its terms
were.
33.
Of significance is the fact that the respondent itself accepted, in
its closing submissions, that its claim was not based on agency but
rather on depositum.
Having abandoned its claim based on a contract of agency, it was not
for the court a
quo
to find, as it did, that there was some other undefined contract.
Once the respondent abandoned its pleadings, the court should have
granted absolution from the instance.
The
attempt by the respondent to rely on the rei
vindicatio
and depositum,
as well as delict, clearly confirms that the respondent had not
established any real cause of action against the appellant.
“Depositum”
not established in any event
34.
Earlier in this judgment, I cited several decided cases in support of
the proposition that pleadings serve the important purpose of
identifying the issues that require determination by a court and also
enabling a defendant to know the case he has to meet before the
court. To this principle however there is a qualification. In a
limited sense, a court can adjudicate on issues not raised on the
pleadings even when no amendment has been applied for.
32.1
In Collen
v Rietfontein Engineering Works
1948
(1) SA 413 (A)
433, CENTLIVRES JA, referring to an issue not raised on the pleadings
but fully canvassed at the trial, said:
“This
court, therefore, has before it all the materials on which it is able
to form an opinion, and this being the position it would be idle for
it not to determine the real issue which emerged during the course of
the trial.”
32.2
Further
in Middleton v Carr 1949
(2) SA 374 (A) at 385,
SCHREINER JA, in similar vein, stated:
“Where
there has been full investigations 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.”
32.3
In Sager's Motors (Pvt) Ltd v Patel 1968
(2) RLR 267 (A),
Lewis AJA accepted that the above remarks correctly reflected the
position in this country. At page 274A–B he stated:
“The
ratio decidendi of the cases… referred to above is that where there
has been a full and thorough investigation into all the circumstances
of the case and a party has had every facility to place all the facts
before the trial court, the court will not decline to adjudicate on
an issue thus fully canvassed simply because the pleadings have not
explicitly covered it.”
32.4
The above remarks were cited with approval by this Court in Guardian
Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR (S), 5D–H, 6A-B.
That a court can determine an issue that is fully canvassed but not
pleaded is therefore now settled in this jurisdiction.
35.
Implicit in the submissions by the respondent, both a
quo
and
in this court, is the suggestion that, although not pleaded, the
existence of a contract of depositum
was
established on the evidence adduced before the court a
quo.
36.
Depositum,
as a concept, was, as would be expected, developed by the Romans. A
contract of depositum,
or deposit, as we now call it, is “… a contract in which one
person (depositor)
gives another (depositarius)
a
thing to keep for him gratis,
and to return it on demand … the ownership of the thing is not
transferred, but ownership and possession remain with the depositor….
The receiver is not allowed to use it” – Hunter W.A. A
Systemic and Historical Exposition of Roman Law in the Order of a
Code
(2nd
Ed) William Maxwell and Son, London 1885.
37.
In B.C.
Plant Hire CC t/a BC Carriers v Grenco
(SA) (Pty) Ltd (2004) 1 ALL SA 612 (C), the court held that a
contract of depositum
comes into existence when one person (the depositor) entrusts a
moveable thing to another person (depositary) who undertakes to care
for it gratuitously and to return it at the request of the depositor.
The depositary does not benefit from the deposit in any way. If the
depositary uses the thing, then this is considered a furtum
usus.
38.
The depository can only be found liable where gross negligence (culpa
lata)
is established. See also Ncube
v Hamadziripi
1996
(2) ZLR 403 (HC);
Munhuwa
v Mhukahuru Bus Services (Pvt) Ltd
1994
(2) ZLR 382
H; Smith
v Minister of Lands and Natural Resources
1979
RLR 421 (G);
1980 (1) SA 565 (ZH).
39.
In this case it was never the respondent's case at any stage that
it had given the container to the appellant for safe keeping or that
the appellant had agreed to keep the container gratis
and
to return it on demand. The appellant does not handle containers ex
gratia.
To
the contrary, the appellant was demanding payment of the handling fee
of $80.50 before the container could be released to the respondent.
In
short, the evidence did not establish the existence of a contract of
depositum.
DISPOSITION
40.
It is clear, from all the circumstances of this case, that the
respondent did not establish any cause of action cognizable at law
against the appellant. It may, but I make no firm finding in this
respect, have had a cause of action arising out of delict as
suggested by its counsel before this Court. However this was not the
cause of action pleaded before the court a
quo
or
established during the oral hearing. The possibility of a cause of
action arising from delict was, as already noted, raised for the
first time in heads of argument filed before this Court. The fact
that the respondent abandoned its claim based on agency and then
sought to rely on the rei
vindicatio
and depositum
(without amending its pleadings) and also delict, leaves one in no
doubt that the respondent was on a fishing expedition and was not
clear, even in its own mind, what its cause of action against the
appellant was.
In
changing its cause of action at whim, as it did, the respondent
breached the whole essence and purpose of pleadings.
41.
It cannot in these circumstances be said to have proved its claim for
contractual damages against the appellant.
The
appeal must therefore succeed. Costs are to follow the event.
It
is accordingly ordered as follows:
1.
The appeal succeeds with costs.
2.
The judgment of the court a
quo
is set aside and in its place the following is substituted:
“The
plaintiff's claim be and is hereby dismissed with costs.”
GOWORA
JA: I agree
GUVAVA
JA: I agree
Honey
& Blackenberg, appellant's legal practitioners
Venturas
& Samkange, respondent's legal practitioners
