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Auxilium, Advocate
Category: South Africa Law
Satisfied Customers: 49
Experience:  Advocate of the High Court of South Africa
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We own a small transport company. The biggest client makes

Customer Question

We own a small transport company. The biggest client makes up approximately 90% of the total income. They approached us in 2013 to handle their transport requirements. We made it very clear that we did not have the infrastructure to handle their business but could assist by making use of third parties. We agreed rates and we're given the go ahead without any contact. Merely an email from their MD stating cancellation of their old transporter and usage of Market Logistics.
Some audit was conducted a few months ago and we were told that the paperwork was not in order. This came as a surprise to us as we normally send invoice to their MD who in turn forwards it to their logistics manager. He checks invoice and once satisfied with charges , claims (damages, lost goods etc ) he sends notice to MD that all is 100% and OK for payment. The MD then sends their financial director an "OK to pay" message and payment is effected.into our account. We allow them a discount of 2.5% if paid by the date stipulated on the invoice. They sometimes paid after the agreed date and they still took their discount. We were forced to accept this as we could upset the "apple cart" if we complained. Claims were deducted from the invoice ( non negotiable! ) . We had to accept whatever they deemed fit or else...My office normally puts the delivery waybillslip and invoice and hand it to logistics manager. Not once in nearly 3 years was there ever a request for "missing" paperwork.
Around September last year, we noticed that another company was collecting goods. When we queried we were told that we were a little expensive. We reviewed rates and handed to logistics manager. Things looked OK until this year. We noticed a drop in collections (income). We queried but we're told not to panic merely an exercise. Then came the audit. We were told that the auditors wanted to charge us for fraud as there was missing paperwork(from inception but they (auditors) were looking more especially at 2015 invoices )! !! We were astounded! We were given (around the 23rd of last month) approximately a week to supply all outstanding "paperwork " We got out all the 2015 invoices and began working through them. Pressure was being exerted by the logistics manager and MD to come up with "missing " paperwork.
All work countrywide was in the meantime dwindling to zero. We queried and we're told to come up with this "missing " paperwork and everything will be normal.(from the MD personal chat). Staff witnessed same transporter that was working in the background was now in the forefront!
Current invoice sent in usual manner. We were told that 2 pieces of paperwork was missing. We duly sent same immediately.
We are now told that we must either forward ALL outstanding paperwork or we must give them a figure for these so that they can deduct from our payment! We sent them an email telling them that their actions constitute unlawful behaviour. We are working on trying to give them the paperwork which was never questioned in nearly 3 years but this would take us in the region of 30 working days at 9 full hours per day.
They still refuse to pay us. We are on the brink of closing down!
What do we do?
Submitted: 2 months ago.
Category: South Africa Law
Expert:  Auxilium replied 2 months ago.

Good afternoon,

Thank you for the question.

Can you please give m:

  • An indication on your normal operating procedures with your client in the past
  • what documents received upon loading
  • documents handed in at client upon off-loading
  • the normal procedure for the submitting of invoices and statements.
  • Are there any standard trade terms on your invoices?


Customer: replied 2 months ago.
We use various transporters to collect goods on our behalf. The documentation that should be used by the sending branch(12 branches country wide)is our pre-printed Market Logistics waybill. They sometimes complete the 3rd party waybill and sometimes both. The collecting party accepts goods by signing both or one of the way bills.The goods are then delivered to the recipient stated on waybill. The recipient (not always the intended party)signs the waybill as proof of receipt of goods and is handed 1 copy.3rd party bills us and attaches copy of waybill as proof (not always).We then bill this client around the 25th of each month . Every item billed has a waybill -reference number / origin / destination / chargeable mass / rates applicable / fuel levy/ waybill fee / vat.If any delivery is delayed for more than 24 hours after agreed delivery time, we receive either a call or an email queries delay.If goods are short delivered or damaged , we get an immediate call or email from recipient. Invoice for damages or losses soon follows . They deduct without showing us proof of costing , no question of insurable interest , whether goods were inadequately packaged etc. If we dared to question them , we lose account.
Trust this is ok
Customer: replied 2 months ago.
Every charge has a reference number which serves as proof that a certain branch sent goods on a certain date to another branch / client. The number of boxes / charge mass is also stated.
The client may check with sender on ANY sender by quoting the reference number stated.
Customer: replied 2 months ago.
Hi. No trading t's & c's on waybills
Customer: replied 2 months ago.
Hi. Are we going to receive answers / solutions anytime soon. Thanks. Mark
Expert:  Auxilium replied 2 months ago.

Hi Mark

Sorry for only coming back to you now and thank you for the information.

From what you have stated it does not seem that there is any substance to their new found audits, but merely an attempt not to pay yourself.

My advice would be to start the process to recover payment from them.

this should be initiated by way of a letter of demand. If no payment is forthcoming then to issue summons against them.

After summons you can immediately apply for summary judgement, as it seems that they do not have a bona fide defence to your claim and are merely trying to delay payment. This process can take up to 6 months, but with diligent actions can be finalised within 2 months.

should you not be successful with summary judgement, then the matter would proceed to trial which would entail oral evidence from yourselves and them. this process can take up to 2 years depending of the court were you institute the action.

I would advise that you employ the services of an attorney asap to prevent any delays in the process.

Please feel free to reply should you have any further queries.


Customer: replied 2 months ago.
This non payment bankrupts us. Can we claim for damages / compensation / respite?
Expert:  Auxilium replied 2 months ago.

Unfortunately not, as it seems that you do not have a fixed term contract.

your only recourse would be to institute action for payment of monies owed together with interest at 9% p/a.


Customer: replied 2 months ago.
Delict is applicable?
Expert:  Auxilium replied 2 months ago.

No there is no cause of action based on delict.

your cause of action would payment for services rendered, based on contract.

payment is due as performance was rendered in terms of the contract. On the facts supply there is however no guarantee for future work, hence you only entitled to performance already delivered.