Judgment No. SC 24/18 Civil Appeal No. SC 455/16 DISPOSITION [36] 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. It cannot in these circumstances be said to have proved its claim for contractual damages against the appellant. [37] The appeal must therefore succeed. Costs are to follow the event. [38] 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 18