Judgment No. SC 24/18
Civil Appeal No. SC 455/16
Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, op cit,
p 569.
WHETHER THE CONTRACT OF AGENCY WAS PROVED
[28]
This was the basis of the respondent’s cause of action before the High Court. The
respondent’s managing director did not know the exact relationship between the
appellant, Mediterranean Shipping and Richer International of Hong Kong. From the
evidence, it is clear that the appellant was not involved in the transactions that took
place in China. It does not conduct operations outside Zimbabwe. It only got involved,
as agent of Mediterranean Shipping, in tracking the container once it landed in Beira
and in having it transported to Mutare Dry Port. It was also clear from the evidence
that, as agent of Mediterranean Shipping, the appellant was supposed to receive
payment from Mediterranean Shipping for its role in checking the Bill of Lading and
ensuring that the cargo was delivered to Mutare Dry Port. The appellant’s managing
director explained however that it is the practice in Zimbabwe for the recipient to be
billed directly by the appellant.
[29]
Clearly, no contract of agency was proved. The fact that the appellant invoiced the
respondent for handling fees does not, on its own, show the existence of a contract. The
exact relationship that existed between the two parties was not established. In the
circumstances, the court a quo should have granted the application for absolution from
the instance which was made at the close of the case for the plaintiff. The court a quo
accepted that the respondent had not produced documents to show the existence of a
contract. The court further accepted that the respondent had entered into a shipping
agreement with Mediterranean Shipping in Hong Kong and that the appellant was not
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