Judgment No. SC 24/18 Civil Appeal No. SC 455/16 the parties, the respondent “was not without a remedy” and that there was a tacit contract of depositum between the parties. [20] In paragraph 3 of its heads of argument, it has further stated: “The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of depositum …. As the appellant states, the court did not deal with these issues. It is here noted that by the time the matter came before the court, the goods had been released and if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court a quo allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.” (my emphasis) [21] At paragraph 10 of its heads of argument, the respondent has also stated:“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property ….” [22] Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:“13. 14. Thus, as the respondent’s counsel contended at p 239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being. The court a quo found in effect that there was a tacit contract between the parties based on the fact that the appellant raised charges mentioned above against the respondent.” RESPONDENT’S SHIFTING CAUSE OF ACTION [23] It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed. In the declaration, the claim clearly arises from a contract of agency. When the respondent realised that the evidence did not establish such agency, an aspect I deal with shortly, it then claimed, without amending its pleadings, relief on the basis of the rei vindicatio and a contract of depositum. In its submissions before this Court, the respondent says, whatever the correct position might be on whether or 9