Zimboy Shipping Private Limited Versus ZIM China Hazel International Logistics (Private) Limited

### Preamble
1
HH 86-22
CIV “A” 104/21
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ZIMBOY SHIPPING PRIVATE LIMITED

versus

ZIM CHINA HAZEL INTERNATIONAL

LOGISTICS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MUCHAWA & WAMAMBO JJ

HARARE, 18 January & 10 February 2022

Civil Appeal

T Sena & P Nkomo, for the appellant

No appearance for the respondent

MUCHAWA J:    This is an appeal against part of the judgment of the Magistrates Court which dismissed Claim A of the appellant against the respondent but awarded claim B as claimed.   The parties had entered into an oral agreement in terms of which the appellant would transport defendant’s container from Kariba to the Democratic Republic of Congo in exchange for payment in United States Dollars into the appellant’s nostro account.

The appellant alleges that the further material terms of the agreement were that the appellant would transport the respondent’s container in a workmanlike and efficient manner and deliver the container at Kasumbalesa whereupon payment would be made as already stated. It was further averred that there were some implied terms to the agreement as listed below:

That the respondent’s container would comply with the laws of Zimbabwe, Zambia and Democratic Republic of Congo;

That the appellant’s truck would comply with the laws of Zimbabwe, Zambia and Democratic Republic of Congo;

That if the respondent failed to conduct customs clearance services efficiently and in a workmanlike manner of the truck load resulting in delays, then the respondent would be liable for demurrage at the rate of US$250.00 per day in accordance with the trucking industry trade practice; and

That the respondent would be liable for any extra mileage further than the agreed delivery place of Kasumbalesa.

The appellant alleged that there was an initial three day delay in loading at Kariba (accounting for US$ 750.00) and a further nine day delay occasioned by the respondent’s failure to conduct customs clearance efficiently (making up US$2 250.00).

Furthermore the appellant alleged that the respondent had then directed that delivery be at a destination other than Kasumbalesa but some two hundred and forty kilometres further for which the appellant charged US$2 000.00.

In addition, the appellant alleged that the respondent had not disclosed that the container would not be returning to Zimbabwe, thereby smuggling the container into the Democratic Republic of Congo without paying the necessary duty leading to the impounding of the appellant’s truck for seven days and this led to further demurrage in the sum of US$1 750.00. The total amount claimed under claim A was said to be US$6 750.00.

The court a quo dismissed claim A in its entirety and the appellant is aggrieved and has lodged this current appeal on these grounds:

The learned magistrate in the court a quo erred and grossly misdirected herself at law in calling for evidence on the issue of demurrage when the delays and rate of demurrage had not been specifically disputed by the respondent in its plea, contrary to the long established principle that “what is not denied is deemed admitted”.

The learned magistrate in the court a quo grossly misdirected herself in making a finding that the appellant had failed to prove the claim for demurrage on a balance of probabilities when the totality of the evidence established that appellant had suffered demurrage and also to realize that on prior occasions respondent had paid demurrage to appellant in higher rates that what was claimed by the appellant a quo.

The learned magistrate in the court a quo erred and grossly misdirected herself in making a finding that the appellant had failed to prove the claim for extra mileage on a balance of probabilities when the totality of the evidence established that appellant had travelled for a further 240km from the initially agreed destination and also in the light of the fact that respondent did not dispute in its plea that the initially agreed destination was Kasumbalesa and not Kolowezi.

The learned magistrate in the court a quo erred and grossly misdirected herself in making a finding that the appellant had failed to prove the claim for demurrage and extra mileage on a balance of probabilities and thus dismissing claim A when the appellant’s evidence was corroborated and based on witnesses who had firsthand knowledge as opposed to respondent’s evidence which was based on a witness who was not directly involved in the transaction.

The learned magistrate in the court a quo erred and grossly misdirected herself in accepting any or all of the respondent’s evidence which was based on a fraudulent discovery affidavit which was disowned by the appellant’s second witness who was alleged to be the deponent.

It is prayed that the appeal succeeds with costs and that the part of the judgment which dismissed claim A be set aside and be substituted with an order ordering respondent to pay US$6 000.00.

The respondent did not turn up for the appeal hearing despite proper service having been effected on its legal practitioners of record, Mazhande and Mazhande Legal Practice. Ms Sena prayed for a default order but could not point the court to any rule which provides for the granting of a default order as of right. Upon being quizzed, she conceded that r 95 of the High Court Rules, 2021 does not specifically state what happens when the respondent in an appeal does not appear.

The High Court Act, [Chapter 7:06] is however instructive. It provides as follows:

“31 Powers of High Court on appeal in civil cases

(1) On the hearing of a civil appeal the High Court—

(a) shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.”

It is incumbent therefore for the court to consider the merits of this appeal and I proceed to do so below.

Ground 1 of Appeal: Whether the respondent had specifically disputed the issue of demurrage and its rate

A quick perusal of the respondent’s plea shows the following from para(s) 5 and 6:

“5. Similarly there was no agreement whatsoever that defendant will be liable for demurrage for     any delays. Had that been the case, a specific and written contract ought to have been made in line    with the trucking industry trade as alleged. Plaintiff is put to the strictest proof thereof.

6.  It was also impossible in the circumstances for the parties to agree on the issue of demurrage     given that it is trite that for such long distances and in the transport business delays are inescapable and are anticipated such that no one can be penalized for such. If parties seriously wanted this to be part of their contract, a written contract was compulsory and the fact that this was not done clearly means parties never agreed to it.”

If the above is not clear disputation of the issue of demurrage and its alleged rate, then I am at a loss as to how the respondent was supposed to put it. I find no merit in ground 1 of appeal.

Ground 2: Whether the appellant was able to prove the claim of demurrage and should have been awarded same

The court a quo made the following findings in relation to the claim for demurrage:

For Kariba

That there was no specific date agreed on as the loading date. The witness simply stated that the appellant placed its truck at respondent’s disposal at Kariba after being told that the container was ready for loading. The appellant’s case was not assisted by the fact that exhibit 6 which was the trip sheet had two conflicting loading dates that is 13/07/18 and 17/07/18. The witness even admitted that there indeed were conflicting dates. Such trip sheet was not signed and the name of the person who completed it was omitted. (see record pages 52, 53 and 278)

That unlike in other occasions, there was no email communication to indicate to respondent that demurrage had started to accrue by a particular date. (see record page 53)

The court also found that the allegation of lost business from the delay at Kariba was not substantiated.

For Kasumbalesa Inbound

That the delay of nine days was not proved as simple arithmetic taking into account the alleged three days for clearing the truck, if the truck arrived on 17/07 /18, it should have left on 20/7/18 and upon arrival on 25/07/18, the delay would be five days instead of nine days

That the witness was inconsistent regarding the number of days it would take to clear the trucks. He first said three days and under cross examination he changed to one day and failed to reconcile his statements

That the trip sheet showed the offloading day as 23/07/18 in exhibit 6. The discrepancy remained unexplained to the court

The court noted the absence of documentary evidence in the form of a customs clearance certificate and did not accept the witness’ evidence that the Democratic Republic of Congo was paperless.

Impounding of the truck Outbound at Kasumbalesa

That whereas in the particulars of claim, the appellant had claimed a delay of seven days due to the impounding of the truck, the appellant’s witness gave conflicting evidence when he stated that the delay had been from 27/07/18 to 10/08 18 thus giving a fourteen day delay

That there was no evidence given to reconcile the conflicting evidence

That there was no documentary evidence from the Democratic Republic of Congo Revenue and Customs Authorities

Rate of Demurrage

That there was no evidence to show how the rate of US$250.00 demurrage per day was arrived at particularly as the evidence on record showed that the usual rate was US$21.00 per hour as per exhibit 3 which would translate to $450.00 per day.

The appellant spent time talking about the industry practice but did not show where the errors were in finding that the actual periods of delay were not substantiated as well as the rates of demurrage payable. In paragraph 5 of its plea, the respondent denies that there were any delays by stating that whatever delays would happen would be anticipated and there would be no penalty. Given the findings of the court a quo which are well reasoned and grounded in the evidence on record, there is no basis to vacate same. There is no merit in ground 2 of appeal.

Ground 3: Whether the appellant managed to prove the claim for extra mileage

In its plea, the respondent does deny that the appellant travelled extra mileage and puts appellant to the proof thereof. It is therefore incorrect for the appellant to state that the respondent did not dispute in its plea that the initially agreed destination was Kasumbalesa and not Kolowezi.

On record page 60, the appellant’s witness (a former employee of the respondent) says he personally engaged appellant’s Nyamwanza to transport the container from Kariba to Kasumbalesa. The same witness initially admitted to authoring the outside transport expense notice dated 6 July 2018 which gave the destination as Kolowezi, exhibit 15 on record page 300, he made a u turn and denied the document as not emanating from him. The witness then said he only learnt from the appellant’s Nyamwanza through a telephone call that the final destination was in fact Kolowezi and not Kasumbalesa. The court a quo noted the inconsistencies emanating from this testimony coming from a person who claimed to have been directly involved. In particular, it was questioned how, if the appellant had been advised through Nyamwanza that the destination was Kasumbalesa, how the Nyamwanza ended up advising that the final destination was Koloweza. Further notice was taken of how the same witness tried to blame the mix up on a fellow worker yet he had been in direct communication with the appellant.

The same witness stated that he had agreed with the appellant on payment of extra mileage though no rate was provided. The court was left at sea as to what the rate was for the extra mileage. On record page 102 when the appellant’s witness was asked to justify the amount claimed for extra mileage he simply said:

“Q: Do we arrive at USD2 000 using your figures?

A: I would tell the court that I don’t provide transport for free. Extra mileage is not to cover cost at free margin. We also make a margin

Q: How did you arrive at $2 000?

A: I arrive at USD2 000 which is costs plus margin

Q: What was costs and the margin?

A: Costs I have detailed tolls, bridges, fuel parking and some which we can’t disclose which are direct costs to move the truck.”

In the circumstances, the court cannot be faulted for finding that there was no proof of the destination having been changed from Kasumbalesa to Kolowezi and how the extra mileage claimed was arrived at.

There is therefore no merit in ground 3 of appeal.

Ground of appeal 4

The court a quo made its findings on a balance of probabilities. In its submissions before us, the appellant is saying that the court should not have reached the conclusions it reached because it had two persons giving evidence on its behalf who were directly involved in the transaction in issue and whose evidence corroborated each other on demurrage and extra mileage yet the respondent only had one witness who had not been directly involved.

The learned authors Hoffman and Zeffert in their South African Law of Evidence, 3rd ed, at p 527 on balance of probabilities said:

“Thus courts have occasionally had to point out that evidence does not have to be accepted merely because it is un- contradicted. What is being weighed in the “balance” is not quantities of evidence but the probabilities arising from the evidence and all the circumstances of the case.”

In casu, as discussed under grounds 2 and 3 of appeal, the evidence in favour of the appellant did not weigh in its favour on material aspects thereof as already highlighted. Hoffman and Zeffert proceed to quote from KOTZE JA in West Rand Estates Limited v New Zealand Insurance Co Limited 1925 AD 245 @ 263:

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. It must be of sufficient weight to throw the onus on the other side to rebut it.”

The approach taken by the court a court cannot be impugned in the circumstances as the appellant’s submissions do not address the failure to address material aspects. There is no merit in ground 4 of appeal.

Ground 5: Whether the court a quo erred in accepting any or all of the respondent’s evidence which was based on a fraudulent discovery affidavit which was disowned by the appellant’s second witness who was the alleged deponent

In its submissions, the appellant emphasizes on the importance of a discovery affidavit. This is well and good. What is however lost to the appellant is that the decision of the court a quo was hinged mostly on appellant’s failure to establish a reasonable presumption in its favour even in oral evidence to prove the actual delays giving rise to demurrage and the rate of such demurrage. This also applied to the failure to prove the rate of extra mileage claimed. For a fuller discussion reference is made to the discussion under-ground 4 of appeal.

I find no error in the approach and the conclusions of the court a quo.

Consequently, this appeal is dismissed in its entirety for lack of merit.

WAMAMBO J, Agrees: …………………………………

ChimukaMafunga Commercial Attorneys, appellant’s legal practitioners

Mazhande Mazhande Legal Practitioners, respondent’s legal practitioners