2"d Plaintiff CASE NO: 9349/15. In the matter between. Defendant. SOLUTIONS (PTY) LTD tla NATCORP IPP OPENCAST MINING (PTY) Third Party

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1 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRE;TORIA CASE NO: 9349/15 (l) REPORTABLE: YES/ NO (2) OF INTEREST TO OTH~R JUDG~S; YES/NO (3) R!:VISED. S/12/2017 DAlf: In the matter between ANDRE STEENKAMP Al EQUIPMENT CC 1st Plaintiff 2"d Plaintiff and NATCORP SPECIALISED LOGISTICS Defendant SOLUTIONS (PTY) LTD tla NATCORP IPP OPENCAST MINING (PTY) Third Party (Formerly IP PROJECTS CC}

2 JUDGMENT BRAND, AJ Introduction [1] At the outset I must apologise for the time it took to render judgment in this matter. Shortly after the trial in this matter, on 2 June 2017, my laptop computer with partly written judgments and notes and my bench book with my trial notes were stolen. This meant that i had to re!y on the typed record of the trial, which took some time to procure. The delay was exacerbated by the fact that there were several other reserved judgments with respect to which I faced the same predicament. [2] This matter is a claim for damages arising from contract. On the basis of a contract of carriage in terms of which the Defendant was to transport an excavator for the Plaintiffs from South Africa to Swaziland, the Plaintiffs claim from the Defendant damages caused when the excavator fell off the truck transporting it, [3] The Defendant joined the Third Party on the grounds that it subcontracted the transportation of the excavator to it, so that risk was in fact transferred to the Third Party and it should make good the Piaintiffs' loss, shpuld liability be found.

3 [4] During the course of the trial the 1st Plaintiff withdrew its claim against the Defendant, so that only the 2nd Plaintiff's claim, and the Defendant's attribution of liability to the Third Party remains to be decided. Background [5] The salient facts are as follows: [5.1] At the time the events that gave rise to this matter unfolded, the First Plaintiff, Mr Andre Steenkamp (Steenkamp) worked for Hitachi, a large multi-national concern that, among other things sells and leases heavy construction machinery. [5.2] To earn an extra income, Steenkamp at the time ran a business in addition to his employment, sourcing heavy construction machinery on contract for clients. In short, on his version, he would hear of a client needing machinery for a space of time; he would then buy the required machinery from his employer and lease it to his client; selling it back or on to someone else once the contract was concluded. [5.3] At some point during February of 2012, Steenkamp was approached by a client that needed a heavy duty excavator for construction work in Swaziland and Mozambique. On his version he then found out whether the right excavator was available in his employer's stock yard and bought it from Hitachi. At around the same time, he called the Defendant, where

4 he spoke with one Armand, and concluded an oral contract of carriage in terms of which the Defendant would collect the excavator from the Hitachi stock yard and transport it to Swaziland. He specifically arranged with Armand that the Defendant would insure the excavator while in transit. [5.4] Unbeknownst to the Plaintiffs, the Defendant then subcontracted with what, on the Defendant's version was the Third Party, so that it was the Third Party and not the Defendant that collected the excavator and transported it to Swaziland. It was in dispute between the Third Party and the Defendant whether the Defendant required the Third Party to procure insurance for the excavator in transit. [5.5] While en route, but already in Swaziland, the excavator fell from the trailer on which it was transported and was severely damaged, on the Plaintiff's version so much so that it was written off as a complete loss. [5.6] In the event, neither the Defendant nor the Third Party had arranged insurance in transit. Both therefore had to rely on their general insurance for the claim. Their claims against these policies were repudiated. [5. 7] Steenkamp had, on his version on strength of his agreement with the Defendant that it would provide in transit insurance, cancelled his own insurance that would ordinarily have been in place. This meant that there was no insurance from whatever source available to cover the loss of the excavator. With Hitachi pressing them for payment on the excavator he bought from them (Hitachi in fact later instituted action against them - more about this below) the Plaintiffs demanded that the Defendant cover

5 the loss, resulting in a first action being instituted, which was later withdrawn. The Plaintiffs then eventually instituted this action. The 2nd Plaintiff's case [6] The second Plaintiff's case is straightforward and simple: [6.1] It concluded, through Steenkamp, a contract with Hitachi to purchase an excavator. Upon conclusion of this contract, risk with respect to the excavator passed to it. [6.2] It then, again through Steenkamp, concluded an oral contract of carriage with the Defendant for transportation of the excavator from South Africa to Swaziland. An implicit term of this contract, as with any contract of carriage, was that risk with respect to the excavator passed to the Defendant. The oral contract included no explicit exclusion of that risk for the Defendant. In addition, an explicit term of the contract was that the Defendant would obtain insurance for the excavator for the period of transportation. [6.3] During the course of its transportation in terms of the contract concluded with the Defendant, the excavator was damaged beyond repair in Swaziland, while the Defendant bore the risk for such damage. The Defendant also failed to procure insurance as it had agreed to do to cover that daroage. Accordingly it is liable to the second Plaintiff to make good its loss.

6 The Defendant's case with respect to liability to the 2nd Plaintiff [7] The Defendant disputes liability vis a vis the 2nd Plaintiff principally by disputing the 2nd Plaintiff's locus standi to claim damages for loss of or damage to the excavator. [8] In short it disputes that the Defendant obtained ownership of or any other lawful right to the excavator and that its possession of it was ma/a fide in that it was obtained by fraud, theft or some other kind of subterfuge. This for the Defendant means that risk never passed to the 2nd Plaintiff. Without risk the 2nd Plaintiff has no cause of action and so does not have locus standi to bring the claim. Evaluation [9] For the 2nd Plaintiff, only the 1st Plaintiff, Steenkamp testified. The Defendant also called only one witness, Mr Braam Myburg, a financial officer in its employ. Both these witnesses testified and were cross-examined at length (Myburg alone spent three days on the stand). I will not attempt to summarise or give an account of their testimony in any comprehensive manner or to give a full account of their reliability and credibility. Steenkamp at some points did contradict himself and could also, in particular with respect to the existence of an apparent second agreement with Hitachi and the absence of a signature on the sales order representing on his version the agreement with Hitachi, not offer satisfactory explanations. Nevertheless, and despite Mr van der Merwe, who appeared for the Defendant's diligent attempts to show otherwise, he was not a poor witness and the inconsistencies and gaps in his testimony are not such that either his

7 reliability or his credibility are impugned. Myburg was an excellent witness throughout, leading even to counsel for the Plaintiff's Mr Mulligan, congratulating him as such at the end of cross-examination. The assessment of the lengthy testimony of these two witnesses is further simplified by the fact that on most of the material elements of the 2nd Plaintiff's claim, they converged, so that much is in fact common cause; and by the analysis of the evidence presented in the very helpful heads of argument submitted by both Mr Mulligan and Mr van der Merwe. [10] On this basis, below I briefly describe the applicable law of carriage; what is common cause between the parties; and I then turn to what remains in dispute between the parties (the question whether or not the 2nd Plaintiff was ever a bona fide possessor of the excavator, so that it acquired risk with respect to it and could pass that risk through contract to the defendant), that which constitutes the Defendant's purported defense to the claim. [11] The applicable law relating to contracts of carriage, is the following: [11.1] A carrier such as the Defendant having concluded a contract of carriage bears the obligation at common law to transport and deliver the goods safely from the agreed point of departure to the agreed destination in a reasonable time. 1 [11. 2] This means that, for the duration of the contract, th~ carrier bears liability for any damage caused to the goods by its negligence or the negligence 1 Stocks & Stocks (Pty) Ltd v TJ Daly & Sons {Pty} Ltd 1979 (3) SA 754 (A) at 670.

8 of its employees, unless liability for such negligence is explicitly excluded in the contract. 2 [11.3] To succeed with a claim for damages against the carrier, the consignor has to prove only the existence of the contract of carriage, including that it has no clause excluding liability; that the goods were delivered to the carrier; and that the goods were damaged while in' the carrier's custody. To escape liability under such circumstances, the carrier has to prove (ie it bears the true onus) that neither it nor its employees were at fault. 3 [1 2] The following is common cause between the 2nd Plaintiff and the defendant, as gleaned from the testimony of Steenkamp and Myburg: [12.1] The 2nd Plaintiff and the Defendant, represented by Steenkamp and one Armand Venter entered into an oral contract of carriage in terms of which the Defendant would transport a Hitachi excavator from the Hitachi yard in Boksburg to Matsapa in Swaziland. The agreed contract price was R Although there was some dispute about whether Venter was authorised to act on behalf of the Defendant, Myburg in his testimony made it clear that even if concluded without authority, the contract was ratified by the Defendant after the fact, so that it is common cause that the agreement was valid and in force. [12.2] The Defendant explicitly agreed to insure the excavator for the duration of the journey. The agreement included no clause excluding liability for the 2 The Law of South Africa, Volume 33, para 91, note 1. 3 Stocks & Stocks (above) at 761H - 762C; Alex Carriers (Pty) Ltd v Kempson Investments {Pty) Ltd 1998 (1) SA 662 (E).

9 Defendant for damage caused to the excavator through its negligence or the negligence of its employees. The standard terms and conditions of the Defendant also did not apply to the agreement. [12.3] Acting on strength of this agreement with respect to insurance, Steenkamp for the 2nd Plaintiff, in order to save costs, cancelled the insurance cover that 2nd Plaintiff had for the excavator. [12.4] Unbeknownst to the 2nd Plaintiff the Defendant subcontracted the transport to a third party (it is in dispute exactly which, but an entity linked to the Third Party in this matter - more about this issue below in the discussion of the liability of the Third Party). [12.5] The excavator was damaged en route in Swaziland while being transported by the Defendant's subcontractor, for purposes of the 2 11 d Plaintiff and the Defendant in terms of the oral agreement of carriage entered into between them. [13] In this light it is clear that the 2nct Plaintiff has proven what is required of it to establish the claim and bar the Defendant proving that the damage was not due to negligence (something it did not seriously seek to do), the Plaintiff's claim should succeed. [14] However, one issue remains in dispute, which forms the bqsis of the Defendant's only real defense to the claim. The Defendant claims that the 2nd Defendant through Steenkamp acquired neither ownership nor any other right to the

10 excavator and that its possession of the excavator, such as it was, was ma/a fide, as it had been engineered through some form of subterfuge. Consequently, so the defense concluded, the 2nd Plaintiff never acquired the risk for the excavator; could not transfer that risk through contract to the Defendant, and so has no standing to claim damages for its loss. [15] I must mention at this stage that this defense was raised for the first time from the bar by Mr van der Merwe for the Defendant on the first day of the trial, when he also sought to hand up a bundle of documents in support of it. To this Mr Mulligan objected, complaining of ambush. I noted his objection and allowed Mr van der Merwe at the time to proceed with the defense, holding that I would rule on Mr Mulligan's objection later. As will become clear below, it became unnecessary for me to do so. [16] In support of this defense of lack of standing Mr van der Merwe in his crossexamination of Steenkamp and his examination of Myburg launched and sustained a spirited attempt to establish two things: 1) that no agreement arose between Hitachi and the 2nd Plaintiff on the basis of which 2nd Plaintiff acquired the right to possess the excavator, lease it out to someone else and have it transported to Swaziland and ultimately Mozambique, and 2) that 2nd Plaintiff's eventual possession of the excavator was ma/a fide. I pause to mention here that it seems to me that in order to succeed with this defense, the Defendant must establish both these things - even should it manage to establish that no agreement and so no right to the excavator arose, it would still fail should it transpire that the 2nd Plaintiff's possession was in good faith. In the event, the Defendant manages to establish neither. I deal with each in turn below.

11 [17) In support of the position that no agreement arose between 2nd Plaintiff and Hitachi so that 2nd Plaintiff acquired no right, bearing with it risk, with respect to the excavator. Mr van der Merwe focussed on two things: first, the fact that the sales order form that was presented to this court as the wrjtten agreement in fact was simply as yet an unaccepted order, as it was unsigned; and, second, that, in the action brought by Hitachi to recover its damages resulting from the loss of the excavator from Steenkamp and the 2nd Plaintiff (which was settled), Steenkamp and 2nd Plaintiff on record took the position that no such agreement existed. [18] It is indeed so that the sales order in question was unsigned and that Steenkamp, when pressed about this under cross-examination could provide no satisfactory explanation for this and could point to no other written basis for the alleged contract. Nevertheless, it remains wholly implausible that an organisation the size of Hitachi, with all of the sophisticated control systems to which both Steenkamp and Myburg testified in place with which to keep track and control of its equipment, would allow anyone - even an employee such as Steenkamp, but perhaps in particular an employee - to take an excavator from the stock yard without a right to do so arising from an existing agreement. One thinks here in particular of the control that is exercised at the stock yard, where equipment is let out only if the necessary documentation is provided. [19] Second, it at face value does seem incongruous that Steenkamp and the second Plaintiff would in proceedings in one matter rely on the existence of a contract to establish liability for someone else, but deny its existence in another, itself to escape liability. However, there may be an explanation of legal strategy for this that this court and the Defendant cannot be privy to due to issues of privilege - that is, absent more, the mere fact of these diametrically opposed positions on the existence of the contract is not in and of itself enough to establish that no

12 contract existed. This is particularly so if one bears in mind that Hitachi, in the action that it brought relied on the existence of a contract - it was clearly satisfied that an agreement existed on the basis of which Steenkamp and the 2 nct Plaintiff could take the excavator from the stock yard for lease to someone else. What is good for the goose, that is, must be good for the gander. [20] Accordingly I must find that on a balance of probabilities - and easily so - the contract that the 2nd Plaintiff alleges existed, despite the fact that the order form is unsigned. [21] The allegation of ma/a fide possession is a little more amorphous: Mr van der Merwe sought to establish that Steenkamp, together with a friend of his who at the time also worked for Hitachi ran a business on the sly, unbeknownst to their employer, in terms of which they somehow procured heavy duty machinery without their employer's knowledge and leased it out to third parties. When the excavator in question was damaged and effectively lost, they were caught out, so to speak, unable to return the excavator that they had taken without their employer's knowledge. [22] Mr van der Merwe was unable to offer any concrete evidence or elicit any concrete testimony from either of the witnesses in support of this theory, moving instead in the realm of suggestion, innuendo and extrapolation. This theory is again not only highly improbable, but indeed wholly implausible. (23] The control systems in place at Hitachi through which to keep track of equipment on its books and avoid precisely the kind of subterfuge that Mr van der Merwe sought to establish, that Steenkamp testified to, to my mind simply excludes the

13 possibility of Steenkamp and his friend having successfully run the scam that they are accused of undetected, however devious they may have been. Not only can equipment not leave the yard unless a comprehensive set of supporting documentation, logged onto the computer system, is presented, but track is kept of the hours logged on each piece of equipment on the company's books. That is, it seems impossible for such a piece of equipment to leave the yard undetected and be absent for any length of time, let alone a number of days, weeks or months. [24] In addition, even had Steenkamp and his friend indeed managed to run this alleged scam for some time, it makes no sense whatever that Hitachi, having caught them out in it, would not immediately fire them after due disciplinary action and then proceed with criminal charges. Instead, although Steenkamp resigned shortly after the event, his friend and alleged coconspirator continued working for Hitachi for a number of years. [25) In short, I must conclude that the theory of ma/a fide possession remains only that, a theory, and a very highly improbable one at that. [26] It follows that the only comprehensive defense mounted by the Defendant against the claim fai ls, so that the 2nd Plaintiff's claim must succeed: I find that the Defendant is iiable to the 2nd Plaintiff for its proven or?greed upon damages relating to the damaged and now lost excavator. The third party

14 [27] In anticipation of liability being established the Defendant, to avoid it having to pay the damages consequent upon such liability, joined the Third Party. [28] The Defendant's case with respect to the Third Party was in essence that it concluded with it a contract of carriage, in terms of which the carrier (here the Third Party) assumed risk for damage caused by its or its employees' fault, absent a clause in the contract explicitly excluding such liability. The contract between the Defendant and the Third Party did not exclude such risk. The Third Party also did not plead absence of fault on its part in the damage. Accordingly the Third Party is liable to the Defendant on the basis of contract for the damage caused to the excavator. [29] The Third Party responded to this by raising two preliminary points: first, that the Defendant joined the wrong entity as Third Party, as the entity with which it contracted was in fact a company called Midbank Retail City (Pty) Ltd (Midbank) and not IPP Opencast Mining (Pty) Ltd (IPP); and second, that the Defendant's claim against the Third Party, even had it cited the correct one, had prescribed by the time the Third Party was joined. In addition, the Third Party denied that it assumed risk upon conclusion of the contract with the defendant, so that it bears no liability toward the Defendant. [30] As will become clear below, I find in favour of the Third Party on both of the preliminary points; but find that, had those preliminary points not succeeded, the Third Party would have been liable toward the Defendant. [31] The Third Party called one witness, mr Igor Pinto who is associated with both IPP and Midbank.

15 Citation [31] The documentary evidence and Mr Pinto's testimony with respect to the identity of the party with whom the defendant contracted seems clear. [32] From the evidence before the court, it is clear that all of the initial correspondence about the conclusion of the contract and also all of the initial correspondence about the accident and resultant damage to the excavator referred not to IPP but to Midbank. The driver who collected the excavator at the Hitachi yard was employed by Midbank and not IPP. Pinto testified that the trailer used to transport the excavator belonged to Midbank and not IPP and that, although the truck that was used belonged to IPP, this was only because Midbank's truck that usually went with that trailer was damaged in an accident, so that Midbank made use of the IPP truck instead. As with all of Pinto's testimony, this was not disputed or challenged by the Defendant. In the first (later abandoned) action instituted by the Plaintiffs against the Defendant in 2012, the Defendant joined Midbank as third party and not IPP. Pinto also testified that he had clearly indicated to the Defendant's Armando Venter, who concluded the contract, that the agreement was with Midbank. Again, this was not contested - the Defendant did not call Venter to testify to the contrary. Even the issuing of an invoice to the Defendant in the name of IPP on 30 April 2012 was to my mind satisfactorily explained by Pinto as a mistake which he, once he came to know of it, immediately corrected through the issuance of a credit note. [33] It is true that one Annelise of the the Defendant in an to th e Defendant's insurers of 19 March 2012 (shortly after the accident) stated that she had determined that the subcontractor was IPP and that ther~ are various different

16 companies with which Mr Pinto is associated that the defendant in the past had done business with. Nevertheless, the preponderance of correspondence around the matter and of the other available evidence shows that it must have been clear to the Defendant that the subcontractor who should have been joined as third party was indeed Midbank. [34] In any event, the question here is not who the defendant thought it was subcontracting with or thought executed the contract, but who it in fact contracted with and who in fact executed the contract. Nothing in Myburg's testimony nor any of the documentary evidence before the court successfully contradicts Pinto's testimony that the Defendant had contracted with Midbank and that Midbank had performed in terms of that contract. This is not surprising, as Myburg was himself not involved with the subcontracting with Midbank; the Defendant, as stated above, also did not call Armando Venter to testify about the conclusion of the contract. Mr van der Merwe also did not succeed under cross examination to impugn Pinto's version to this effect. [35] On this basis alone the Defendant's claim against the Third Party must fail. Prescription [36] Should I be wrong on this conclusion, I find that the Defendant's claim against the Third Party had in any event prescribed by the time the Third Party was joined.

17 [37] Ms Vermaak, for the Third Party, relying on section 12 of the Prescription Act 68 of 1969 ('the Prescription Act') submitted that prescription of a claim starts to run as soon as the creditor acquires knowledge of the facts from which the debt arose, including the identity of the debtor, or alternatively the date on which the creditor could, with the exercise of reasonable care have acquired knowledge thereof. She further submitted that this meant that prescription began to run from the date upon which the Defendant knew or could reasonably have known of 1) the terms of the agreement between it and the Third Party, including the Third Party's identity; 2) the fact that the agreement was breached; 3) that the Defendant had suffered loss as a result of the breach; and 4) that such loss was not too remote. [38] I am satisfied that this is a correct statement of the law - indeed it is in accordance with the most recent authority in the Supreme Court of Appeal on the matter, being Truter v Deyse/ 2006 (4) SA 168 (SCA) (see in particular at paragraph 15) - and that mr Van der Merwe's contention that in addition the creditor must know the quantum of the claim (for which he offered no authority) is not. [39] On this basis it is clear that the Defendant's claim had indeed prescribed by the time it joined the Third Party. The Defendant issued the Third Party Notice to the current Third Party on 30 March [40] On Myburg's testimony the Defendant had knowledge of the terms of the agreement with the Third Party already on 23 February 2012.

18 [41] On Myburg's concession, the Defendant became aware of the breach of the agreement - ie the damage to the excavator while transported - on 1 March 2012; further, as testified by Steenkamp and conceded by Myburg, the Defendant was made aware that the excavator had been written off on 22 March [42] Accepting for the moment, for purposes of deciding this point in limine, that the Third Party was indeed IPP, it also seems clear that the Defendant knew the identity of the Third Party at least by 19 March Mr van der Merwe urged me to find instead that the Defendant only ascertained the identity of the Third Party on 30 April 2012, when it received a tax invoice from IPP and that Myburg personally only did so on 14 April when he was given the tax invoice. However, in her of 19 March 2012 one Annelise, on behalf of the Defendant, in correspondence with the insurer, states that she has ascertained that the subcontractor was indeed IPP. Under cross examination, Myburg indeed conceded that on strength of that , the identity of the subcontractor was then known to the Defendant, although he himself only became aware of it on 30 April. [42] This conclusion is bolstered by the fact that on the same date - 19 March the Defendant informed IPP that it had registered a claim with respect to the damage to the excavator with its insurer, and indeed, the claim form lodged with the insurers shows the subcontractor as IPP. [43] Final ly, with respect to this point, it is clear that even had the Defendant not known the identity of the subcontractor before 30 April 2012, it was long before then eminently possible for it, through taking reasonable steps, to do so. Myburg testified about the good working relationship that the Defendant enjoyed with

19 Pinto, who was their contact person with both IPP and Midbank, stating that the moment he heard that Pinto was involved, he did not worry any longer as he knew they would be able to sit around a table and sort things out. Under cross examination it was put to him that he did not take any further steps once he heard of the damage to determine the precise identity of the subcontractor, because he had heard that Pinto was involved. He conceded this. In this light Ms Vermaak submitted that it was possible for Myburg and the Defendant before 30 March 2012 through taking the simple and certainly reasonable step of contacting Pinto, to determine who the subcontractor was, but that the Defendant failed to take those steps. That is, and I agree with Ms Vermaak on this, even if it did not know, the Defendant reasonably ought to have known the identity of the subcontractor before 30 March [44] There was no dispute between the parties as to remoteness of the damage. Instead, Mr van der Merwe submitted that in addition to the other requirements dealt with above, prescription would run only once the Defendant had ascertained the quantum of the claim. As already stated above, this is in fact not the correct position in law. Nevertheless, even were it, it is clear that the Defendant, before 30 March 2012, had if not a precise then a very clear approximate idea of the value of its claim against the subcontractor. [45] As stated above, the Defendant became aware that the excavator was damaged on 1 March 2012 and that it had been written off (ie that the loss was total) on 22 March As supported by the documentary evidence and Myburg's testimony under cross examination relating to the lodgment of the Defendant's insurance claim by Annelise, it is clear also that probably already on 5 March 2012, but if not then, on either 19 March or 22 March, the Defendant, through its Annelise was aware that the value of the excavator was R that is, that the value of its potential claim was at least R

20 [46] Against this background, I cannot but accept Ms Vermaak's submission in conclusion that the Defendant was aware of all the facts from which the debt arose on 19 March 2012, or if not that, on 22 March. This means that prescription started running at the latest on 22 March, so that the issuance of the Third Party notice only on 30 March 2015 falls outside the three year period for prescription and the Defendant's claim against the Third Party has prescribed. Third Party's liability to the Defendant [47] Should I be wrong with respect to both the Third Party's P?ints in fimine, I would have to determine the liability of the Third Party to the Defendant. I proceed to do so below. [48] Mr van der Merwe for the Defendant, submitted that the relationship between the Third Party and the Defendant and that between the Defendant and the Plaintiffs, with respect to its effect on the location of risk for damage to the excavator is the same: upon conclusion of a contract of carriage risk for damage passes from the original holder of the to be transported thing to the transporter, as soon as the transporter takes possession. The transporter can escape liability for damage due to its or its employees ' fault only if such damage was explicitly contractually excluded. In the absence of such explicit exclusion, it can escape liability only if it can prove (ie it bears the true onus in this respect) the absence of negligence on its part.

21 [49] I am satisfied that this statement of the law is correct - in fact, that it is trite. 4 It arises from the common law, but applies to any contract of carriage. This puts paid to Ms Vermaak's submission (for which she cites no authority) that the Defendant, through pleading not a common law duty of care, but only breach of contractual duty, cannot rely on the passing of risk to the Third Party. [50] Against this background it seems clear to me that, should it have been correctly cited and should its liability not have prescribed, the Third Party is indeed liable to the Defendant for the damage caused to the excavator.. [51] It is common cause that the agreement between the Defendant and the Third Party did not exclude liability for negligently caused damage. Even were it so that the parties had agreed that the Third Party would not obtain insurance for the duration of the carriage of the excavator (this remained in dispute), this could not be construed as by implication excluding such liability and Ms Vermaak to her credit did not attempt to persuade me as such. [52] This means that the Third Party, to escape liability, had the onus to prove that the damage to the excavator was not due to its or its employees' negligence. This onus it did not come close to discharging: the Third Party placed no evidence before this court and no testimony was offered to this effect. The closest it came to attempting to discharge this onus was to try to discount the evidence of negligence placed before this court by the Plaintiffs - the string of s appearing on pages 275 to 284 of the Evidentiary Bundle in which the opinion of one van Wyk as to the cause of the damage is related - as hearsay evidence. 4 See in this respect the following authorities that Mr van der Merwe helpfully referred me to in his heads of argument: Union Fabrics v SAR 1981 SA 418 (W);!nternational Combustion Africa v Billy's Transport 1981 (1) SA 599; Micor Shipping v Tregger Golf 1977 (2) SA 709 (W).

22 [53] In this light there seems to be no option but to find that the damage to the excavator was indeed caused by the Third Party's employee's negligence, as pleaded by the Defendant (and indeed, by implication, by the Plaintiffs) and that, in the result, the Third Party is liable for that damage to the Defendant. Of course, as it must be emphasised here, this finding of Jiability only becomes relevant and operative should my conclusions with respect to citation of the Third Party and prescription of the Defendant's claim against it, be wrong. Costs (54] I have held that 1) the Defendant is liable to the 2nd Plaintiff for the latter's proven or agreed to damages; and 2) that the Defendant's claim against the Third Party fails due to its mis-citation of the Third Party, alternatively prescription of its claim. against the Third Party. What remains is to determine the issue of costs. [55) The 2nd Plaintiff has succeeded in its claim against the Defendant. The Defendant has failed in its claim for indemnification against the Third Party. Neither the 2nd Plaintiff nor the Third Party motivated for anything other than an ordinary order as to costs - that is, one that in all respects follows the result. [56] In this light the Defendant is liable to pay the costs of the 2nd Plaintiff, including the costs attendant upon the previous trial in this matter (the 1st Plaintiff upon its withdrawal from this action tendered its costs); and the costs of the Third Party, including those attendant upon the first trial herein.

23 [57] Accordingly, I order as follows: Judgment is granted in favour of the Second Plaintiff. With respect to the First and Second Plaintiff's claim it is ordered that- 1. The Defendant pay the Second Plaintiff's damages, to be agreed upon or proven. 2. The Defendant pay the Second Plaintiff's costs to date, including those costs related to the previous trial herein. 3. The First Plaintiff pay the costs attendant upon its participation in this matter to date, including those costs related to the previous trial herein, as tendered. With respect to the participation of the Third Party it is ordered that- 4. The Defendant is 100% liable for the Second Plaintiff's proven or agreed damages.

24 5. The Third Party is not liable to indemnify the Defendant in respect of any amount of damages that the Second Plaintiff may prove against the Defendant or that may be agreed upon. 6. The Defendant pay the costs of the Third Party, including those costs related to the previous trial herein. JFD Brand Acting Judge of the High Court