Judgment No. SC 24/18 Civil Appeal No. SC 455/16 [33] 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. [34] 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. 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) S.A 565 (ZH). [35] 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. 17