In the matter between:
THABO KOU TRANSPORT Plaintiff
INFRADEV LOGISTICS Defendant
Coram: Hon. Hlajoane J
Date Hearing: 22nd September, 2011, 29th February, 2012, 29th March, 2012.
Date of Judgment: 27th April 2012.
Contract – Oral agreement to render transport services – Transport services provided but no payment for such services – No agreement as to rates to be used – Market price resorted to by plaintiff in making his claim for services rendered – Defendant not coming up with an alternative rate but concerned on making profit.
Gibson Wille’s Principles of South African Law 6th Edition
 There is no dispute that both parties had entered into a verbal agreement for plaintiff to provide transport to the defendant. The said transport was duly provided but no payment was effected as there was no agreement on the rates to be used for such services.
 It has been the plaintiff’s case that the defendant caused the confusion in deciding which rates were to be used as defendant wanted to use the rates which were previously used by Spoornet.
 Plaintiff showed that he ended up using the charges from the Shipping Line, a company which defendant was to deliver for at the time. He said he used those rates because the Shipping Line was at the time the company which sets the rates.
 Plaintiff further showed that he had provided transport to the defendant during the months of April to September when he was forced to stop due to non-payments of his claims.
 He denied that he had been unavailable on the many occasions that he had been invited to come and discuss the issue of rates. He said they had met several times but could not agree on the rates to be used.
 Plaintiff made it clear in his evidence that his business involves conveying goods by using trucks. He said he got the rates from a company which was dealing directly with the defendant.
 Plaintiff has attached to his papers Annexure “A” showing the rates he received from the company dealing with rates and showed that, those were the rates that he used.
 Annexure “B” being the invoices that plaintiff forwarded to defendant for the months of April, 2009 to September, 2009 as claimed.
 Annexure “C” showing the total claim for the months of April to September, 2009 as reflected in the letter of demand.
 The defendants on the other hand admitted that there had been such an oral agreement to provide transport but that the plaintiff unilaterally applied rates which they had both not agreed upon.
 The defendant did not deny the fact that the rates which plaintiff used were those which plaintiff obtained from defendant’s clients. Defendant argued that the rates applied by the plaintiff defeated the whole purpose of why the defendant entered into business, which was to make profit and the rates so used by the plaintiff would leave the defendant with no profit whatsoever.
 Defendant said in evidence that they were never invoiced but the plaintiff through its witness as manager showed that he was the one who invoiced the defendant.
 It became clear from the evidence through the defendant’s evidence that defendant had a contract with the company known as Sufmarine to provide transport. Sufmarine being the Shipping Line for ferrying containers from overseas to Maseru station.
 The contract between the defendant and Sufmarine was for the defendant to provide transport for transporting goods from such containers to deliver throughout the country.
 The defendant did not however wish to lie to the Court in saying that he had transport of his own. Hence why he had to sub-contract the plaintiff to provide transport though he had lied to Sufmarine about the issue of transport.
 The defendant admitted in evidence that he in fact provided a quotation to Sufmarine basing it on the market value of transportation.
 It would therefore appear from the evidence that that quotation contained the very same rates that Sufmarine provided to the plaintiff as the market rates. The plaintiff has thus based his claim on the rates that he got from defendant’s client.
 The defendant argued further that it was wrong for the plaintiff to have unilaterally applied the rates without agreement with him, as that was contrary to the principle in a contract that their minds had to be ad idem.
 The defendant further submitted that the rates applied by the plaintiff included the price of loading / unloading and transport which were not applicable to a trucker whose job was only to transport a container.
 Plaintiff’s counsel attacked the line of argument above as giving evidence from the bar because counsel was saying things which were never raised in the evidence led before this Court.
 As can be seen from the defendant’s heads of argument in giving a brief synopsis of the facts in this case, has described the plaintiff as a Transportation Company, whereas defendant is a company involved in the loading, unloading of the containers at the Maseru Depot and their transportation.
 But that according to Annexure “A” reflecting the rates supplied to the plaintiff, transport is transport without including the loading and unloading. The rates used are reflected in kilometers covered for transporting goods.
 What the plaintiff has used as rates to justify his claim has not been just anything that came from his head but the market rates obtaining at that time. If defendant’s concern was to make more profit he could have agreed on rates with the plaintiff before giving him a go ahead to provide transport.
 Defendant has not denied that transport was provided and what remained was to pay the plaintiff for work done. It would not be an unjust enrichment as defendant wanted the Court to see it as it would be payment for work done.
 Plaintiff has sought to justify his claim under the above principle of unjust enrichment from the book by the learned Author - Gibson, where it was said;
“Delivery under contract without Reciprocal Rights where one party to a contract gives property or money to the other in pursuance of his promise, but the other party fails to make full performance of the obligation stipulated for in return, the former is entitled, according to circumstances.”
 Plaintiff has thus delivered the goods for the defendant as was agreed but has not been paid. They had failed to reach an agreement on rates, but plaintiff used the market rates which unfortunately would leave the defendant with no profit as has alleged.
 They have come to Court because they could not agree on rates. But what plaintiff did could not be considered as being an unreasonable conduct under the circumstances of this case.
 Plaintiff claim thus succeeds as claimed under (a), (b), (c) of the summons.
For Plaintiff: Mr Matooane
For Defendant: Mr T?enase
Wille’s Principles of South African Law. 6thEdition at 488
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