IN THE SUPREME COURT OP SOUTH AFRICA	
( APPELLATE DIVISION)
 In the matter between:
R H JOHNSON CRANE HIRE (PTY) LTD 	 APPELLANT
and
S A IRON & STEEL INDUSTRIAL CORPORATION  ... RESPONDENT LIMITED
CORAM  : VILJOEN, BOTHA, SMALBERGER, VIVIER, JJA et KUMLEBEN, AJA
HEARD  : 24 FEBRUARY 1987 DELIVERED : 31 MARCH 1987
JUDGMENT
VILJOEN, JA
 On/	

2.
On 19 January 1981 three bogies supporting the front end of a Nippon ladle car (referred to in the evidence as a "torpedo") filled with hot metal were derailed at the Iscor works at Vanderbijlpark. To get the bogies and their load back onto the rails the respondent (hereinafter referred to as the de-fendant) hired from the appellant (hereinafter re-ferred to as the plaintiff) one fully hydraulic mobile crane. Whilst the crane's operator was in the process of performing the task of hoisting the bogies with their. load back onto the rails the crane collapsed and was seriously damaged. In the court a quo the plaintiff claimed from the defendant the reasonable cost of repair to restore the crane to the good order and
condition/.....

3.
condition in which it allegedly was when delivered
to the defendant,and loss of rental for the hire of
the crane by other prospective customers durlng the
period necessary f or the repair and restoratioh of
the crane. There was some dlspute in the court a quo
as to whether or not the contract entered into between
the parties was a written one which incorporated cer-
tain conditdons upon which the plaintiff relied. The
learned trial judge assumed, withoutdecidlng the issue,
that the. conditions were in fact part of the contract.
On that basis he found, on the evidence led on behalf
of the piaintiff (the defendant having closed its case
without adducing any evidence), that, in view of the
massive overload which the operator of the crane tried
to hoist, there were two possible causes for the
 collapse/	

4.
collapse of the crane. The breakdown could only have occurred
he said, if the computerised load safety device (here-
inafter simply referred to as "the device") with which .
the crane was equipped, was malfunctioning or if
the operator"by-passed a properly functioning device.
The learned trial judge came to the conclusion that
the effective cause of the collapse of the crane
"was that the cut-out mechanism of the safety device
did not function according to the manufacturer's	
rated capacity and specification and was therefore
not in good working order." Having arrived at that
conclusion the learned Judge did not find it necessary
to deal with the quantum of damages issue and dis-
missed the plaintiff's claim with costs, including
the costs occasioned by the employment of two coun-
sel. With the leave of this court, an application
 to the/	

5.
to the triai court for leave to appeal having failed, the plaintiff now appeals.
In its statement of claim the plaintiff, as was adumbrated above, relied on a written con-tract concluded on 19 January 1981 in terms of which the defendant took one fully hydraulic mobile crane on hire from the plaintiff which, it alleged, it de-llvered to the defendant in good order and condltion. It was a term upon which the defendant took the crane on hire, the plaintiff averred, that on termination of the hire it would return the crane to the plain-tiff in the same good order and condition as it was when delivered. It was further alleged that while the crane was in the possession of the defendant, it
was seriously and extensively damaged, in which con-
 dition/	

6.
dition, in breach of its obligation referred to above,
the defendant returned the crane to the plaintiff.
Damages as a result of the breach amounting to
R590 545,68 were claimed. The written contract re-
lied on was attached to the further particulars as
annexure "A". This annexure contains the conditions
 which are in dispute.	
The defendant, presumably because it wished
to avoid the consequences of being bound by the con-
ditions referred to, pleaded that the parties entered
into an oral contract in terms of which the defendant
hired from the plaintiff a crane which was to have a
lift capacity of approximately 200 tons. The contract
pleaded included the following terms:
that the said crane would be in good working. order and
condition/...

7. condition, that it would perform in accordance with
the manufacturer's rated capacity and specifications
 and that the operator to be supplied by the plain-
tiff would operate the cnane in accordance with such
rated capaclty and specifications. The written con-
tract which the defendant pleaded in the alternative
was alleged to contain substantially the same terms.
In breach of the contract, the plea pro-
ceeded, the crane supplied was not in good working
order, it dld not perform in accordance with the
manufacturer's rated capacity and specifications
or, alternatively, the operator did not operate the
crane in accordance with such rated capacity and
specifications or in a proper or workmanlike manner.
The damage to the crane, it was pleaded, was caused
 by/	

8. by the breaches. (I take it that what was meant
was any one or more of the breaches). To a request
by the plaintiff to be furnished with particulars
as to the respects in which the crane was not in
good working order and malfunctioned, the defendant
replied that it was unaware of the respects in which
the crane was not in good working order. In proof
of the allegation, said the defendant, it relied on
the fact that the crane was damaged whilst performing
a function which was within its specifications and
capacity. Further partlculars supplied by the defen-
dant as to the specific respects in which the operator
did not operate the crane in accordance with the manu-
facturer's rated capacity and specifications included
averments that the operator, when he opsrated the
 crane/	

9.
 crane, exceeded its rated  capacity.and speclfications when he should have realised that he was doing so or, alternatively, that he"by-passed"the device and thus attempted to lift a load in excess of the crane's speciflcations and capacity.
The essence of the allegations in the re-plication is that the rigger supplied by the defendant failed, in breach of the defendant's undertaking in terms of the contract, in his duty to properiy super-vise the lifting operation and/or to properly in-struct the operator in all matters relative to the operation of the crane other than the actual handling of the controls and/or that he failed to ensure that the crane was not used and that no attempt was made to use it to lift loads in excess of its capacity and/or
 that/	

10. 
that he failed to take the necessary safety measures
havlng regard to the nature of the load to be iifted. The plaintiff denied that the operator was incompetent or that he mishandled the crane. In any event, re-plicated the plaintiff, the operator was, during the operation, in terms of the written contract, the ser-vant of the defendant and if it be found that he did mishandle the crane, he dld so in that capacity under the instructions of the rigger concerned and no lia-bility in that regard attached to the plaintiff.
 The plalntiff  quite correctly based its ciaim for damages simpiy on the failure by the de-fendant to return the crane to the plaintiff in the same good order and condition in which it allegedly was when delivered to the defendant. The contract
in/.....

11.
in question was one of locatio conductio. In
Frenkel v Ohlsson's Cape Breweries Ltd 1909 TS
957 Innes CJ said at 962/6:
"In this respect I do not see that the
relation existing between the parties	
differs from that created in a number
of other legal transactions - depositum,
commodatum, pignus, locatio conductio -
which all, though governed by their own
rules, have this feature in common, that	
the custody of an article is entrusted
for the time being to a person who is
not the owner. In all such cases the
depositor, the lender, the pledgor or
the lessor, as the case may be, may (it
seems to me) base his claim for damages
simply upon the refusal or failure of
the custodian to return the article
which he is entitled to demand."
Faced with a claim of this nature the
onus would be on the hirer to establish a
defence. But what defences are open to him?
In Johnson Crane Hire (Pty) Ltd v Concor Con-
struction Ltd  (unreported WLD 6 July 1983) Margo J said:
 "It is settled law that, in  the absence of provision to the contrary in the contract,
a lessee/	

12.
a lessee is obliged to restore the thing leased in the same condition in which he received it, fair wear and tear excepted, unless the thlng has perished or deterio-rated or been damaged through causes beyond his control. Voet 19.2.31 (Gane's transla-tion, voiume 3, page 446); North Western Hotel Limited v Rolfes Nebel and Co 1902 TS 324 at 334; Frenkel v Ohlsson's Breweries 1909 TS 957 at 962 and Nel v Doble 1966(3) SA 352 (N) at 356 and the authorities there cited."
 In my view the phrase "through causes	
beyond his control" places, on the face of it, too
heavy a burden on the hirer. Voet 19.2.31 is to the
following effect:
 "Quod si casu fortuito res, circa quam locatio conductio concepta est, perierit, domino perit, nisi alter perlculum quoque in se receperit...."
 (Gane's translation reads: "But if pro-perty in regard to which a letting and hiring has been framed has perished by
 chance/	

13.
chance accident, it is a loss to its
owner. Exceptions are when the other party has taken this risk also upon himself
	")
That the thing perished as a result of	
casus fortuitus while in the possession of the lessee or hirer is, however, by no means the only defence which the latter has, He can also escape liability if he proves that the damage did not arise as a re-ault of his own negligence or that of his servants for whose actions he is liable. Circumstances may be conceived under which the hirer could perhaps have prevented the damage by exercising a high de-gree of control even though he was not negligent. That degree of control, as is suggested in the dictum above, is not required of him. The only onus on him is to prove that
 due/	

 14.  due diligence was exercised by him. See Medallie
and Schiff v Roux 20 SC 438 440; Lituli v Omar
1909 TS 192 194; Parsons v MacDonald 1908 TS 809;
Mposelo v Banks 19 SC 370; Nel v Dobie 1966(3) SA
352(N)356 - 359.
For reasons to be furnished in due cpurse I do
not deem it necessary to enter upon the question as to
whether the onus is on the owner to prove, if that
were placed in issue, that he delivered the thing to
the lessee or hirer in good order and condltion.
As is evident from what I have set out above,
the trial court upheld the defence that the plaintiff
failed to deliver the crane to the defsndant in good
order and condition and that it was thls failure which
 caused/	

 15.  caused the damage. The only issue, at this stage
of the matter at least, regarding the condition of
the crane when it was delivered to the defendant,
concerns the device. In my view the learned trial
judge erred in findlng that it did not function	'
according to the manufacturer's rated capacity and
specifications and that the crane was therefore not
in good working order. A copy of the Rated Capacity
and Specifications was handed ln during the trial
and is attached to the record. In it nothing at all
is said about the device. The document simply con-
tains various illustrations of the crane, notes
regarding its operation and a schedule reflecting
the weights which lt can lift with the boom at cer-
tain lengths and certain angles from the vertical
position/....

 16.  position.
The only remark relating to the device is
to be found in the code of practice for the safe use
of cranes (an extract from which was handed in at the
trial). The code contains certain statutory and other
requirements and directions, the non-observance of
some of which renders the transgressor liable to be	
prosecuted in England, but which, according to the
evidence, are used merely as guide-lines in this country.
The code directs that where an automatic safe
load indicator has been fitted it should be inspec-
ted at least once a week. This was apparently not
done as far as the device was concerned but there is
 sufficient evidence on record from which a clear
 inference/	

 17.  inference may be drawn that there was nothing wrong .
with the device itself prior to the commencement of
the attempt to lift the torpedo and that only the
electrlc wires connected to the device were damaged
when the crane collapsed. When the device was re-
installed after the repair of the crane it was tested
and it was functioning properly wlthout it being
necessary even to calibrate it.
But qulte apart from the consideratlons
just mentioned it seems to me that whether the device
was in working order before the mishap occurred or not
is entirely irrelevant wlth respect to the
conditbn of the crane. The devlce was designed to
reduce the risk of damage due to human error. It re-
lates, therefore, to the handling of the crane and not
 to/	

18. to the condition of the crane. The human factor is
not completely eliminated, though. It is possible
for the safety device to be"overridden"by the operator,
but that becomes relevant only in the context of
possible negligence displayed by the operator, an
aspect which I proceed to discuss forthwith.	
The case sought to be made by the defendant
by cross-examination was that Mkhize, the operator,
was either incompetent or that he mishandled the crane
by endeavouring to lift too heavy a load in spite of
a clear warning on the dial of the device that he was
doing so - which warning he ignored by "by-passing"
the device and continuing to attempt to lift a
massive overload. In my view the defendant succeeded
in its endeavour in this regard. Mkhize was the last
witness called for the plaintiff. The plaintiff's
witnesses who testified before him on this aspect
 were agreed  that the device could be "by-passed"
 but/	

 19.  but their evidence was rather confusing as to the
clrcumstances under which and the purposes for which
 it was necessary and  permissible to do so. This un-
clear picture was compounded in large measure by the
evidence of Mkhize. I shall, however, convey as best
1 can the impression I gained from the evidence.
The device itself is a computer mounted in I
the operator's cabin. Plainly visible on the dial or
screen there is a needle which, when the crane is
operated, moves from a green into a yellow and from
the yellow into a red zone depending on whether the
lift is well within the capacity of the crane (the
green), still within the capacity but where a certain
degree of caution is demanded (the yellow or amber)
 or/	

 20.  or becomes dangerous (when it enters the red zone).
According to the evidence the controls of the crane
"cut out" when the needle reaches the red or danger
zone which means that the crane automatically stops
functioning. It is not the device which "cuts out".
The crane can only resume functioning when the by-pass
button is pressed. What the needle does when the
crane or the "controls" cut out is uncertain. It
seems logical to accept that, if the device itself
functions at all under those circumstances the
needle would stay in the red until the weight
has been put down and it then returns to green. It
is a mystery to me what the effect of the pressing
of the reset button is. Presumably it annuis the
 effect/	

21. effect of the "by-pass" and the controls wouid once
more "cut out" as soon as the needle reaches the red.
The"by-pass"becomes necessary and is per-
missible, as I read the evldence, for the purpose
of lowering the weight and putting it down. The ope-
rator would in that event be aware that he had been
 attempting to lift too heavy a  load and before the	
next attempt is made at lifting the load, the weight
has to be reduced. What has troubled me somewhat is
whether the act of lowering and depositing the load
under these circumstances was not itself a manoeuvre
fraught with danger, but I assume that there is a
 reasonable safety margin  built into the device and
that there is very little risk in proceeding to
relieve the crane of the too heavy load as soon as
the needle reaches the danger zone and the crane
cuts out. There was also evidence, which I mention
in passing because it has no relevance to the present
case, that when the boom has to be iowered to a hori-
zontal position for the purpose of ficting a fly jib
 onto/	

22. 
onto the end of it the crane also cuts out and it is necessary to by-pass the device in order to lift the boom. Apparently no risk is attached to this manoeuvre.
Mkhize was praised in glowing terms as
an excellent operator by the plaintiff's witnesses.
In so far as the actual mechanical handling of	
the crane is concerned, he might have been compe-tent, but judging from his evidence I get the distinct impression that he was not the type of person who was able to display much initiative or who could exercise the necessary discretion in an emergency. The learned trial judge described him as a very nervous and excitable person. While giving evidence he continuously played with his hands, apparently because of his nervous tension, said the learned judge, but he did not think that he was intentionally dishonest. The judge expressed
 the/	

23.
the view that Mkhize was only confused and mentioned
two examples of such confusion. He expressed a doubt 
as to whether,on the occasion in question, Mkhize	
handled the crane competently. In my own mind there 
is more than a doubt. It seems to me that a clear
inference may be drawn from the evidence that he was
negligent. Not only did he press the by-pass button 
but he also disregarded the load chart in the cabin.
There are indicia in the evidence that he pressed the
by-pass button not for the purpose of relieving the
crane of an overweight but in an attempt to lift the
 weight. From the evidence it may be  deduced, in my
view, that, after he had failed the first time to
lift the weight, he overrode the device and made another
attempt/.....

 24.	
attempt at lifting the massive overload after the crane
had cut out. That much I gather not only from a state-
ment which, according to the witness Vass, he made
to him two days after the mishap but also from his
own evidence.. I quote the relevant paragraphs from
his statement.
"14. The driver was told that the total
weight was approx 400 tons, and that
only half the weight was going to be
lifted by the crane as the slings were	
to be placed around one end of the	
container.
 15. The driver was instructed to position
himself approx 5 metres from the 'torpedo' but as he took the load, the ground star-ted to give way under the outriggers.
16. The driver was then instructed to move within approx 3 1/2 metres of the 'tor-pedo' and to again set the crane ready for lifting, the load being positioned between the outriggers at the side of the crane.
 17. The/	

 25.	
17. The Demag crane is equipped with a computer
 controlled oyerload  device which automati- cally disengages the hydrauilc control 
levers governing any lifting operation should the crane reach 85% of its maximum carrying capacity.
 18.	This overload device is fed into a simple
dial which is positloned in the driver's
cab. This dial is marked in three colours, 
green orange and red. As the néedle on the dial goes into the red, the hydraulic control levers disengage.
 19.	When the needle is in the red the driver
is able to lower the load only, but is
 unable to lift the rope or boom or to ex- tend the boom sections.
 20.	When the needle returns to the orange or green, the driver resets the controls by
actuating a reset button positioned adjacent
to the dial.
 21.	Should this reset button be held down then
the lifting controls can be used even though
the needle is in the red.
 22.	After setting the crane up in the second
position, the driver was instructed to
lift the load slowly.
 23. As/	

26.
 23.	As the load was lifted off the ground
the load indicator needle moved into the
red and the overload device cut out the
lift controls.
 24.	Because the 'torpedo' was partially filled
with molten metal when it came off the
rails, this gradually flowed away from
the end which had been llftêd resulting
in the needle moving out of tha red and into the orange.
 25.	As the needle went into the orange the
driver reset the button and contlnued
wlth the llft.
 26.	This operation was undertaken three
tlmes without any sign of distress to
the crane. While the 'torpedo' was being
held in the air we understand that the
Iscor personnel were placing blocks below'
the bogeys and generally tightening the	
bolts under the carriage.
 27.	On the fourth lift the needle again went
from the green into the orange, however
as it started to go into the red the lift
rams ripped off and ths boom fell onto the
'torpedo'."		 
I assume that Mkhize told him what his
 conception/	

27.
conception was as to how the device should be operated
and how he in fact operated it. I do not follow what
was said in paragraph 19 and 20 of the statement.
When the needle enters the red zone the controls
stop functioning and the by-pass button has to be 
pressed to cause them to function again. In view
of evidence given by other witnesses I think para-
graph 21 would have been more intelligible if it
read: "Should this by-pass button be held down then
the lifting controls can be used even though the
needle is in the red. " If what Vass understood .
by "reset" means "by-passed" paragraph 25 is
rather significant. Mkhize probably pressed the
by-pass button when the needle went into the
orange or the red and made several attempts to
 lift/	

 28.  lift the torpedo without success. When he tried
for the fourth time, at the same time pressing the
by-pass, the lift rams ripped off and the boom fell
onto the torpedo. (I would interpolate paragraph
27 thus). If so read, the version given by Mkhize
as to what happened seems to me to accord with the
other evidence about the functioning of the device.
Although he said he had forgotten a great deal
of what had happened, Mkhize's own evidence-in-chief
accords to some extent with the statement taken down
by Vass. He testified as follows:
"Yes, now Alpheus, I do not want to ask
you all about your operating, all about
your training as an operator by Aaron, I
just want to ask you this and listen
carefully. If you are lifting a load and
the computer indicator goes into the red
and the machine cuts out what do you do?
	 It stops.
 It/	

 29.
 It stops,right, now what do you do? 	
I tell the people with whom I work that it
has stopped.
Yes, and then what do you do with it? 	
Because it is a load that exceeds the load
that is indicated then it is left.
 It is what? 	 Yes, because it cannot lift
that load.
Yes, it cannot lift the load so you have
got a load in the air, what do you do with
 it? 	 We bring it down.
 Bring it down if it is up?.	Yes.
Now from your training were you allowed to
use the override button in order to continue
lifting a load if the computer was already
in the red indicating that you had an overload?
	 No." 	
About the instructions given to him by the rigger,
he testified (still in chief):
"MR SCHUTZ: Right, now what did this foreman 
 rigger do? 	 He then showed me the site at 
which we were supposed to put the crane.
Who decided where the crane would stand? 	
The rigger.
Who decided how the boom was to be used? 	
 The/	

30.
The rigger because he said that the load
was heavy.
And who decided on where the slings were
to be placed? 	 The rigger too.
And who decided when the lift was to commence?
	 The rigger too. Because he was in charge
of the crane.
Yes, and how did he indicate that the lift
was to start? 	 He showed me, he indlcated
with his hand, he made the sign that I have	
 just been making. The witness has made ... (Court intervenes).
COURT: It is a circular sign with his finger.
	 Has made a spiral indicatlon."
Under cross-examination he gave the following
evidence:
"MR JOFFE: If you attempt to lift a weight
which is beyond the capacity of the crane,
...	Yes?
 The computer in the crane  will prevent you
from lifting the weight? 	 Yes.
But you can override the computer? 	 Yes.
 You/	

31.
You would not ever override the computer?
	 No, I do not have the authority. 	
And if you dld overrlde the computer, you
would be a very bad operator? 	 Yes.
And you have been trained never to do
that? 	 Yes.
And on this day when the crane broke at
Iscor you never overrode the safety device,
the computer? 	 No, I did not.
There was never need for you to override it on that occasion? --- No, I never. .....
COURT: When you llfted the crane did this 	
needle ever go towards the red? 	 Yes,
the needle moved to the red and then it came back again a little bit to yellow. I then reset it.
You what? 	 I reset it and put it on so
that it could function again.
MR JOFFE: I thought you said you did not
have to use the overload device? 	
(Mr Schutz intervenes).
MR SCHUTZ : No,he did not say he used the overload. He said he reset it.
COURT: Yes,/....

32.
COURT: Yes, I do not know what that means.
MR JOFFE: No, it is - did this happen once?
	 Once.
Only once? 	 Yes, only once.
COURT: Let me tell you I do not understand what hé means when he says "I reset it".
Is that the words, Mr Interpreter? 	
Reset it.
MR JOFFE: Those are the words. I will come back to that. Now when you say that when the crane broke the needle of the gauge of the com-
puter - it was in green? 	 No.
Well, what .... (Court intervenes).
COURT: He sald it was in yellow.
MR JOFFE : That was the first time, My Lord.
What colour was the - where was the needle?
	 At yellow.
But the crane had not yet cut out yet? 	
No, it does not cut when it is at yellow.
Now when the crane cuts out can you reset
the safety device, the computer? 	 When
the crane resets ....?
No, no, when the crane cuts out ... (inter-
vention).. /..,.

 33.	
 vention) ..	When it is at red you 
 cannot reset it.
Then what have you got to do? 	 I have
said that it moved red and then went and came back again and then it stood at yellow. And then when it - it was when it was at yellow that I reset it again.
What did you reset? 	 The computer.
Why did you have to reset it? 	 Because
it was moving back to yellow.
What do you do to reset the computer? 	
I switch it on. Is that the press-button
 switch? 	 Yes.
 The one with a picture next to it of a
 crane  falling over? 	 Yes.
So when the crane was in the yellow, when the dial of the computer was in the yellow,
it was that button that you pressed? 	
Yes.
And then the crane carried on working? 	 Yes."
 The use of  the word "reset" in his evidence 	
 and/	

 34.  and in his statement to Vass puzzles me as much
as it obviously did the learned trial judge. I
repeat that I do not appreciate why he had to reset
the device while the needle was apparently functio-
ning properly by moving from the red back to the yellow
and then to the green. I can only surmise that,
even though he denied that he did so, he pushed the
by-pass button; otherwise his evidence does not make
sense.
Greater confusion resulted when his counsel in
re-examination endeavoured to urge him into clarifying
matters. From this evidence it appears that he pressed
two buttons, the reset and the by-pass buttons. Why
he had to press both, he does not satisfactorily ex-
plain. He testified:
 "Now/	

35.
"Now Alpheus, I just want you to expiain
slowly certain movements of this crane.
If you are lifting a load and the needle
reached the red and the crane stops, ..
	Yes?
 Can you lift further? 	 If it is at that
point then you cannot lift further.
Right, now if it comes - if the needle comes
back again into the yellow or into the green,
and you want to lift again, what do you do?
	 I reset.
Now how do you reset it, with what do you
 reset it? 	 There are buttons, you have
to press on buttons.
Yes, is there a button for resetting? 	
Those are the buttons I am referring to.
And then the crane will - you can start again?
	Yes.
 Now that reset  button,is it the same button
as the override button or is it a different
button? 	 It is just like the other buttons.
Yes, I know. I want to know whether there
is a separate reset button and a separate
 override  button? 	 They are the same, the
reset button as well as the bypass button are
the same buttons.
I do/	

36. I do not want to know whether they iook the
same.	I say that those are the buttons.	
Is there one button or two buttons? 	 Two
buttons.
A reset button and an override button? 	
You press both on and then reset.
Yes, alright. Apparently in order to reset you have got to press them hoth? That is
the resetting mode? 	 If you want to reset
it you have to press them both.
But now you know that you sometlmes have to use the override button in order to put your
flying jib on? 	 Yes, when you want to -
yes, but at the stage when you want to reset the - want to put your fly jib on, you have got to keep them pressed, you do not leave them out of pressing.
Both pressed? 	Yes.
COURT: But he says you have got to keep them
pressed? 	 Keep them pressed.
MR SCHUTZ: Why do you	keep them pressed? 	
 Because whe'n the gauge	is on red it does not
move from there. When	you have them pressed
like that.
COURT: I am sorry, I am a bit confused at the moment. When you say you reset this thing
I first/	

37.
I first thought you pressed one button and
it was the same button, and now you say there are two buttons, it is the reset button and the bypass button. Do you keep them pressed
down all the time or what do you do? 	
These two buttons work together, functlon together. When you press the button on you are supposed to press them both at the same time.
MR SCHUTZ: Mr Interpreter, as he was demon-strating there he pressed the two and he took
his hand off, did he not? 	 Yes, when it is
on, you press them then leave.
That is when you reset it then you take them
 off?	Yes.
Alright, now when you are putting on a flying jib and you want to override the computer, what
do you do then? 	 You keep them pressed.
You keep them pressed? 	 You keep them pressed.
 That is vthe way you have been trained?	Yes.
And it is two different things that you do?
	 Yes." .
The following evidence given by him under
cross-examination reveals his attitude in his approach
to the task in hand:
 "And/	 

38.
"And I want to put to you that the crane
 did not have the capacity to lift the weight?
	 It is Iscor that orders the crane."
From what he told Vass it is to be gleaned
that he was told the weight of the torpedo plus bogies
was approximately 400 ton but he was told that this
weight would be reduced to 200 ton in the course of
the lifting process. He knew very well that the
capacity of the crane was 180 ton with the boom at
its smallest angle. As the radius of the lift in-
creased so the lifting capacity of the crane decreased.
According to the rated capacity and speciflcations
the crane had, at 85% capacity, a lifting capacity of
110 ton at a 6 metre radius and 82 ton at an 8 metre
radius. Allowing fully for the fact that as soon as-
 the/	

39.
the weight was lifted the molten metal would flow
to the other end and the weight would be reduced
by half (which would in any event only occur as
soon as the lifted end is hoisted higher than the
 other end) the weight which had to be lifted wás,
 accordlng to undisputed e.videncs,  191.65 ton which
is, even at 100% capacity, far in excess of the crane's
capaclty. There was a load chart in Mkhize's cabin
which reflected the capacity of the crane at the
various radii. The fact that Mkhize attempted to
lift a load far in excess of the capacity of the
crane renders it all the more probable, (apart from
the fact that he admitted having pressed two buttons
 - one of which must have been  the by-pass button).
that he did press the by-pass button. In addition 
 the/	

40.
 the inference may be drawn that he negligently or
 intentionally disregarded the load chart. In my
view he was clearly negligent. Whether this availed
the defendant I shall consider in due course.
I have come to the conclusion,however,
that he was not the only negligent person. The crane
was ordered by the defendant. Van Rensburg, the plain-
tiff's employee who manned the hire desk where all
 the orders were recorded and who noted the order,
could not remember the order specifically. The defen-
dant pleaded that it ordered a crane having a capacity
of "about 200 ton". No evidence was led on behalf of
the defendant and there was therefore from its side
no substantiation of the averment that a crane with
that capacity was ordered. The evidence indicated
that/.....

41.
that the crane concerned was, ac the time, the strongest
crane available. That the capacity was 180 tons was, according to the evidence, clearly signwritten on the crane. The rigger concerned must, therefore, have been aware of the capacity of the crane. The probabl-lity is that the defendant, being in a dilemma because it had.to get the bogies back onto the track, ordered the biggest crane that was available and decided to use it regardless of the risk involved. The defendant's servants who were responsible obviously entertained the hope that, in spite of the weight of the torpedo being . beyond the capacity of the crane, it would nevertheless accomplish the lift without any mishap. The massive overload which it had to lift turned out to be so
 far/	 

 42.  far beyond the capacity of the crane that the
breakdown was inevitable.
The English code of practice for the safe
use of cranes to which reference was made above
lists i a the following requirements for a slinger
(i e a rigger).
"1.6.2 The slinger should
(4) have been trained in the general prin-ciples of slinging and to be able to establish weights and judge distances, heights and clearances;
(7) be capable of directing the movement of the crane and load in such a manner as to ensure the safety of personnel and plant."
There is no evidence that the rigger con-
cerned did not properly direct the movement of the
crane but as I have pointed out, he knew that the
 load/	

 43.  load was heavy and, regard being had to the distance
of the crane from the load to be lifted, he should
have realised that the load was clearly beyond the
capacity of the crane.
The final consideration in so far as the
liability is concerned is that, unless I am relieved
from doing so, I shall have to decide whose negligence
was, to use a neutral term, the effective cause of the
damage. If the plaintiff is right in its contention
that Mkhize was, in terms of the contract, the servant
of the defendant, this consideration would indeed re-
lieve me of that duty. It therefore becomes vitaily
important to resolve the issue raised by the defendant
that the terms relied upon by the plaintiff were not
 proved/	

 44.	
proved by it to have formed part of the contract.
Logically, the first enquiry is whether the terms
relied upon did have the effect contended for by
the plaintiff for if they did not it would be unnecessary .
to consider whether they formed part of the contract
or not. I proceed, therefore, to examine the relevant
terms and to pronounce thereon.
Although I have dealt with the negligence
issue in the context, in so far as the defendant is concerne
generally of the duty of the rigger, lt is interes-
ting to note that clause 5 of the contract relied
 upon by the  plaintiff provides inter alia:
 "The hirer undertakes that  he/it will use or permit the crane to be used only in a responsible manner, and he/it will not perform or permit to be performed any lifts beyond the rated capacity
and specification 	"	
 The/	

45.
The terms which are crucial for 'the pur-
poses of determining the liability f or the acts of
the operator are clauses l0a, 12 and 21a which read:
"l0a If the CRANE is supplied with the OWNER'S
OPERATOR (who shall be a competent OPERATOR and licensed where required by law) then whlle on the SITE the OPERATOR shall be under the sole and absolute control of the HIRER who/which warrants and under- takes that he/it will give to the OPE-RATOR clear and specific instructions and directibns for all work to be per-formed by the OPERATOR and the CRANE on the SITE. The HIRER shall be obliged and warrants that he/it will (during the hours that the HIRER requires the CRANE to operate) supervise or provide respon-sible supervision for the OPERATOR while the CRANE is on the SITE during the period of hire. Notwithstanding any-thing to the contrary hereinbefore con-tained, the OWNER shall remain the general employer of the OPERATOR and no obliga-tion shall be placed upon the HIRER to. observe the provisions of any statutory laws regulating the relationship between
 the/	

 46.  the OWNER and the OPERATOR."
"12 Notwithstandlng anything herein con-
tained to the contrary while the CRANE is on SITE, the OWNER shall not be res-ponsible or liable to the HIRER or any other person for any acts on the part of the OWNER'S operator while such operator is carrying out the instruc-tions of the HIRER or any acts or omissions on the part of t'he HIRER or the HIRER'S operator or for any loss or damage what-soever occasioned to the HIRER or any other person, property or thlng and the HIRER indemnifies and holds harmless the OWNER against all claims of any nature whatsoever for any loss or damage afore-
said including all costs relating to such claims, but this indemnity shall not extend to include an act sólely attributable to the OWNER'S operator."
 "21a  Subject to Clauses lOa and 12 above, the HIRER shall be responsible for all costs and expenses arising from the breakdown, loss of or damage to the CRANE occurring through the HIRER'S negligence, misdirec-tlon or misuse, and shall include the
 travelling/	

47.
travelling time and costs of the OWNER or his/its nominee and time lost and ex-penses incurred through the CRANE being immobilised or bogged in wet ground, rockfall, subsidence, inundation or the like."
As is apparent from clause 10a it is not
specificaily provided that the operator is, for the
duration of the operation, the servant of the hirer.
The word "servant" is not used. The owner of the
crane remains the general employer of the operator
and it is only for purposes of the work to be per-
formed that he piaces the operator at the disposal
of the hirer and under the sole and absolute control
of the latter. That does not of course mean that
 the operator would be obliged to  slavishly carry out
 ail the rigger's instructions inciuding  such instruc-
 tions as would conflict with ths  interests of the
 owner/	

 48.	
owner as far as the handiing of the crane is con-
cerned. But if he does so, the hirer cannot, in
my view, hold the owner liable. On the contrary, he
would be liabie to the owner. Unfortunately for the
defendant that seems to be exactly what Mkhize dld.
He seems to have blindly followed the instructions of
the rigger to lift this heavy weight and in the process
of doing so his contribution to the mlshap was to over-
tax the capacity of the crane. Clause 12 provides
clearly that the owner shall not be responsible or
liable to the hirer for any acts on the part of the
owner's operator while such operator is carrying out the-
instructions of the hirer. Under the circumstances I
need not consider what the legal implications would be
if the operator operated the crane in defiance of the in-
 structions/	

49.
 structions of  the rigger. Although there was some
suggestion under cross-examination that Mkhize ieft
the cab,presumably at a critical stage, he denied it
and there was no proof that he in fact did so. In
my view the words "negligence, misdirection and mis-
use of the crane" can appropriately be applied to
describe the dereliction of duty of the rigger and
in terms of clause 21a the defendant is responsible
for all costs and expenses arlsing from the breakdown'
loss or damage to the crane.
Even, therefore, if Mkhize's negligence
contributed to or was the effective cause of the breakdown of the crane, he operated the crane under the sole and absolute control of the defendant's
 rigger/	

50.
 rigger  and under his instructions and provided the. terms referred to were proved to be part of the
contract entered into between the parties the defen-
dant would clearly, in my view, be liable for the '
damage occasioned.
It remains to consider whether the terms
relled on by the plaintiff were proved by it. The
copy of annexure "A" which was attached to the par-
ticulars of claim was the "acceptance" copy of the
contract which was referred to on the covering page
 as a "Jobbing" contract. According to the  evidence
the contracts entered into by the plaintiff with
hirers of cranes were usuaily completed in triplicate.
One copy wouid remain in the file and the second and
 third would be handed to the crane drlver to be
 handed/	

51 . handed to the hirer before proceeding wlth the task
at hand. The "acceptance" copy had to be returned
to the owner after signature by the hirer. The
"acceptance" copy which was annexed to the particu-
lars of claim purported to have emanated from the
defendant who accepted the plaintiff's offer in
the foilowing terms:
"Dear Sir/s,
I/We accept your offer for hire of
plant, etc., scheduled at hire rates	 
on the terms noted below and subject
to the general conditions endorsed
on your offer."
Ib was signed by one Boshoff on behalf of the defen-
dant and aiso bears the signature of D van Rensburg
on behalf of the plaintiff. This latter signature
was appended before the contract was remitted to
 the/	

52.
the defendant. It is not disputed that Boshoff was .
authorised to sign on behalf of the defendant.
Mkhize was required to hand the two copies
comprising the offer and acceptance to the defendant
or to somebody on its behalf and according to his
evidence he duly did so by handing the two copies
to a person at the main gate when he entered the de-
fendant's premises and before he was directed to the
spot where the torpedo had been derailed. Only the
acceptance copy was before the trial court in the
form of, as I have said, an annexure to plaintiff's
particulars of claim. What happened to the copy
which the defendant retained has not been disciosed
or explalned. The terms "noted below" on the accep- 
tance copy included the tariff per hour to be paid,
 the/	

53.
the minimum charge and an enumeration of certain
chargeable items. It also provided as follows:
 "Acceptance of this contract signifies your acceptance of these C P H A con-ditions overleaf on all future hires."
Why provision had to be made f or all
future hires and not for the hire concerned is not
clear. It so happens that according to the evidence
the defendant had previously made use of the plain-
tiff's cranes but there was no guarantee that it
would do so in the future. It appears to be a stan-
dard conditlon which is contained in every one of
the plaintiff's contracts. The letters C P H A stand
for "Contractor's Plant Hire Association." The plain-
 tiff's witnesses  testified that "the general conditions"
 referred/	

 54.  referred to in the acceptance copy included the
C P H A conditions with a few further conditions
which the plaintiff added for its own sake and pur-
poses. They further testified that the conditions
which the plaintiff attached to the acceptance copy
as part of annexure " A" were similar to the general
conditions which were normally attached to the copy 
which the hirer retained and which were referred to
as "the general conditions endorsed on your offer".
During the trial the plaintiff's witnesses handed in
the acceptance copy of a specimen of what they said
was a standardised form which the plaintiff used when
it entered into contracts with clients. On this
copy the words "Contract Basis" appear which differ
 from/	

55.
 from the words  "Jobbing Contract" on annexure "A".
It does not, furthermore, contain a notification
from the hirer to the owner that he/they accepted
the offer. There are, in additlon, other small
 differences. Defendant's counsel contended that the plain-
tiff at no stage adduced evidence that the conditions
accompanying an offer in respect of a "Contract Basis"
contract were identical to those accompanying a
 "Jobbing" contract. There is, in my view, no merit
in this argument. The format of the "front cover",
as it was referred to in evidence, mlght have changed
or the plaintiff might have used different front
covers but the evidence, which was never refuted, was
that the conditions attached to the hirer's copy of
the contract, were always the same. These were sub-
 stantially/	

 56.  stantially the so-called C P H A conditions with
the few other conditions to which I have referred, added. I have, accordingly,. come to the conclusion that the conditions relied upon were properly proved. Counsel were ad idem that if the appeal on the merits succeeded, this Court should itself determine the damages. The damages claimed by plaintiff in the amount of R590 545,68 comprise the following:
 (a)	The reasonable cost of repairs
necessary to restore the crane
to its former condition	R379 122,38
 (b)	Loss of rentals for the hire
of the crane to other customers
during the period necessary for
the repair and restoration of
the crane to its former condition R211 423,30
R590 545,68 The onus was on the plaintiff to prove its damages. Counsel for the defendant submitted
 in/	

57. in general that, even though it was alleged in 
pleadings that the parties to the agreement contem-
plated that the plaintiff would suffer such damages
as relate to loss of hire in the event of a breach
of the contract by the defendant, such comtemplation
was not proved. I fail to see what specific evidence
was in the present case necessary for such an inferen-
ce other than the circumstances which pervaded the
 entire case. It was alleged in the  plaintiff's par-
ticulars of claim that the plaintlff "is a company
	 which carries on the business of hiring plant."
 This allegation was  admitted. The defendant hired
the crane from the plaintiff at certain "hire rates".
 The defendant could not but  know and contemplate
that/.....

 58.  that if the crane which earned income for the
plalntiff broke down the plaintiff would suffer
damages of the nature claimed. I need say nothing
further in this regard.
As a result of the breakdown the crane
was immobilised for the period 19 January 1981 to
13 May 1981. Figures were obtained from invoices
charged out for the crane of the earnlngs of the
crane during the period March 1980 to 19 January 1981
(the date of breakdown). For the last fourmonths
before the breakdown occurred, namely September,
October, November and December 1980 (January was dis-
regarded because it was not a full month), the agreed
average came to R57 500 per month. This amount
 was/	

59. was projected over the period during which the crane
was out of action and after certain deductions were
made the figure claimed was arrived at. In the course
of the trial it was conceded by the plaintiff's wit-
nesses that certain further deductions would have to
be made. In the submission of counsel for the defen-
dant still further deductions should be made. He sub-
mitted, firstly, that a calculation of the average
of the earnings over the last four months unduly fa-
voured the plaintiff. Taking the average of ten months'
figures would in view of fluctuations over the entire
period have been more realistic, urged counsel,
which would render an amount considerably less than
the calculatlon referred to. I do not agree. The
 evidence reveals that  after the acquisition of the
crane/....

60. crane when it was still new and it was not yet gene-
rally known that the crane was available, the earnings
were low but that they gradually increased. The 
plaintiff reached the stage when a higher rate could
be and was charged for the crane and the last four
months' figures reflected a figure which in effect,
in my view, favoured the defendant rather than the plain-
tiff.
A 3,4% deduction in respect of running ex-
penses of the crane and other contingencies was initially,
in the computation of the claim, made from the
figure of the gross earnings. During the trial
this percentage was increased to 15% by the plain-
tiff. After this increased deduction the figure
claimed amounted to R186 034,91. Counsel for .
 the/	

 61.  the defendant argued that a further deduction of
1,8% which the witness Rabinowitz conceded as a
saving on insurance premlums which were not paid
during the repair period should have been made.
The 1,8% was indeed conceded but the witness sai-d
that that percentage was included in the 15%. This
assertion was an afterthought, counsel put to the
witness and submitted in argument to the court a quo
and to this Court. 1 do not agree. The witness
Rablnowitz did not specify how the 15% was arrived
at but he did say, generally, that that percentage
represented the maximum saving while the crane was
standing. In any event, 15% in respect of contingen-
cies seems to me to be a generous concession.
 Further/	

62.
Further concessions were made which reduced
the amount claimed in respect of loss of earnings to ,R179 764,91. These concessions included an amount of R2 778,00 in respect of a saving of labour to the plaintiff while thercrane was out of order. Instead of this flgure it was suggested on behalf of the defendaht that a percentage of 3,5 should be deducted from the gross monthly turnover. I have considered the evidence on this aspect of the case but in my view, without entering into details, the deduction of R2 778,00 suggested by the plaintiff appears to be reasonable.
Another concession made by the plaintiff was that an amount of R3 492 should be deducted in
 respect/	

 63.  respect of depreciation to which the crane was
not subjected while it was being repaired. Defen-
dant's counsel argued that a much bigger amount
should be set-off against theamount of loss of earnings.
In their submission the amount which is reflected in
the plaintiff's books of account as monthly depre-
ciation should, for the period during which the crané
was out of action, be deducted. In my view the
plaintiff's witness Rabinowitz was right in the view
he propounded that the non-use of the crane might
have given it an extra life of a few months and that
he would, for the purposes of calculation of the
amount representing the retarded depreciation, pro-
long the expected life span of the crane by adding
 the/	

64.
the period of inaction and adjust the depreciation
to cover the prolonged period on a reducing balance
basis taking into account the inflation factor.
After some argument defendant's counsel agreed that
that was the right approach and virtually conceded
that an amount of R3 492 only should be deducted in
thls respect.
Another deduction which should, in counsel's submission, be made relates to the period 19 January and 23 January 1981 on which latter date the repair work on the crane commenced and the five days after the completion of the repairs and the commencement of use of the crane. These periods, argued counsel, repre-sented unexplained delays. I do not agree that there were any delays which were unexplained. The crane had to be taken from the Iscor premises at Vanderbijlpark
to/.....

65.
to the premises of Demag at Boksburg which was'
commissioned to repair the crane. The crane with
the broken boom was driven there. There is evi-
 dence  that the undercarriage (or the "lorry", as
it was referred to) broke down on the way and
arrived at Boksburg later than expected. No de-
tails of the breakdown were supplied. Whether the
breakdown of the undercarriage was unrelated to the
 collapse of the boom was not investigated. What is
more, one assumes that arrangements had to be made
between the plaintiff and the defendant, the plain-
tiff and the insurance company (this being a subro-
gation matter) and the plaintiff and Demag - arrange-
ments which must have taken some time. These and
other circumstances which might have caused a
 period/	

66.
period of a few days to elapse before the repair work
was put in hand were never properly inquired into durlng the trial and I did not get the impression when I read the evidence that this delay was a major issue in the court a quo. The five days delay at the end of the repair period was occasioned by the discovery that the lift cylinders had to be replaced because they also were damaged when 'the crane broke down. After the crane had been dismantled the cylinders were sent by Demag to a firm of hydraulic engineers to be examined by them. They reported back that the cylinders were in order but when the crane was reassembled it was ascertained that the pistons did not fit snugiy in the cylin-ders with the resuit that oil escaped which affected
 the/	

 67.  the compression. New cylinders had to be flown
in from Germany which caused a delay of approxima-
tely five days. The defendant should have mitigated
its damages, argued counsel, by avoiding the delay 
which could have been achieved if Demag had displayed
proper care. I cannot uphold counsel's argument.
In what respect and to what extent the outside en-
gineering firm was negligent has not been investigated
and Demag acted with due expedition in getting the
new cylinders in this country. In the course of
the repair of the extensive damage to a big sop-
histicated machine like the crane in question it
would be remarkable if everything went so smoothly as
not to resuit in a hitch here and there. It has
 not/	

68.
not been shown that Demag acted unreasonably in
its cholce of the outside firm to give it a report
on the cylinders nor has it been shown that it
 failed to  adopt, with the necessary urgency,
remedial measures when it became aware of this
further defect.
The schedule compiled to reflect the 
earnings for the period March to December 1980
shows that in a number of instances the rate at
which the crane was hired out was below R200,00
per hour. To this fact the defendant's counsel
linked an argument that another lighter crane
could have been used to do the work concerned.
The plaintiff's witnesses did not and, I deduce,
 could/	

69.
could not say why such a low rate of hire was
charged but what they did say was that all the	,
other cranes were fully occupied. There might have been good reasons why the plaintiff was pre-pared to hire the crane out at a lower rate. One such reason which suggests itself is that the weight to be llfted was light but because no other'weaker crane was available the 180 ton crane was used. The schedule shows that for the months September to December 1980 the hiring out of the crane at charges below R200 occurred increasingly less frequently which supports the inference that there was an in-creasing demand for the big crane as time passed. After careful consideration of the argu-
 ments/	

 70.  ments addressed to this Court by counsei for the
defendant I have come to the conclusion that an
amount of R179 764,91 should be allowed under
the head of loss of earnings.
In so far as the repairs to the crane
are concerned the background must be taken into
consideration. The crane was manufactured by
Mannesmann Demag (hereinafter slmply referred to
as Demag) of Germany. The local branch of Demag
at Boksburg undertook the repairs but was unable
to repair the boom in this country. A complete
breakdown of the items of repalr and the cost
thereof appears in what was referred to as the
Demag file. According to the witness Van der
 Mescht/	

 71.  Mescht who was at the time the workshop foreman
at the local Demag branch this file contained a
detailed summary of the work undertaken by the
local Demag to repair the crane. The file was
compiled by one Schneider, then an employee of
Demag, who has since left the Republic permanent-
ly and who at the time of the trial was working
for Demag in Germany. The file was compiled by
Schneider to demonstrate to the plaintiff and
the insurance assessor, Vass, who represented
 the insurance company concerned, the necessity
and reasonableness of the repairs carried out
and the charges therefor . At a late stage in
 the trial defendant  indicated through its counsel
 that/	

72. that, save in three respects, this file was accep-
table as proof of the damage and the cost of repairs.
The exceptions related to the repairs to the boom,
the replacement of the slew ring and the boom hoist
cylinders. These three items comprised the bulk of
the plaintiff's claim under this head.
A few days after the damage to the crane
one Zimmer, an expert attached to Demag in Germany,
arrived in this country and with Schneider, Van der
Mescht and other interested persons inspected the
damage. It was then decided that the boom could
not be repaired in this country and had to be sent
to Germany for repairs. The history of the boom
hoist cylinders I have retailed above. During the
 repairs/	

73.	
repairs it was found that the slew ring had, due
to the accident, become oval and had to be replaced
by a new one which was only obtainable in Germany.
Counsel for the defendant submitted that
the plaintiff advanced no evidence to prove the
precise nature of the repairs, the cost thereof
or that the cost was reasonable. Vass, he argued,
relying on the conclusions of Zimmer and Schneider
simply accepted the overall price which he received
from Germany; he could not exclude the possibility 
that parts could have been pirated; he had no way of
satisfying himself that the parts charged for were in
fact used for the repairs; he had no way of satisfying himself
 that/	

74. that the parts used were new and he had no personal
knowledge of the labour actually expended in carrying
out the repairs on the boom. It is true that Vass
was not in Germany where and while the repairs were
done, but Vass was,according to the evidence, not
only an experienced assessor but he had considerable
experience in the very field of assessing damage to
cranes. Demag is a big international name as manu-
facturer of cranes and a concern with a high repu-
tation. There is no suggestion that plrate parts	:
had been used. Why would a firm which is the manu- '
facturer of the Demag crane use pirate parts if it
manufactured those parts itself? From whom would
it acquire those pirate parts? It is entirely
 improbable/	

 75.  improbable that such a firm would put its own
reputation at stake. Vass was intimately in-
volved with discussions regarding the ways and
means of repalring the crane. He was well aware
that there were two policies, one f or damage to
 the crane and the other for loss of use. He was	
therefore conscious of the necessity, in the inte-
rests of the insurance company which he advised, to
balance more expensive methods of repair against the
need to have the crane restored as soon as possible.
Through negotiation he was able to reduce the
amount originally charged by Demag to the amount ciaimed
 in/	

76.
 in the summons.	
In regard to the damage to the slew ring
it was submitted that Vass could not dispute the
significance of a telex addressed by one John
Watson of Grenam, England, to Harold Johnson ( I
assume he is a director of the plaintiff company)
setting out certain prices in German marks at
which a slew ring and necessary accessories could
be obtalned from Grenam. It appears that Grenam
would itself have had to buy everything from the
Demag factory in Germany. The telex concerned is
dated 20 July 1981 which suggests that enquiries
were made by the plalntiff subsequent to the repair
of the crane. This document was disclosed by the
plaintiff but under what circumstances and for
 what/	

77.
what reason the enqulries were made has not been
disclosed. Vass said he knew the firm Grenam but
he was apparently unaware of the enquiries made
by the plaintiff. There is not much dlfference
between the basic price quoted by Grenam and the
account he received from Demag. The difference,
he said, was in the "mark-up" of 20%. He objected
to the high mark-up and the amount was twice reduced 
by Demag after repeated objections on his part until
eventually they refused to discuss with him a
further reduction. His evidence was that even
though he thought that the mark-up was somewhat
high he stlll regarded the price as being within
the bounds of reasonableness. He had no option,
he said, but pay the prices charged by Demag
 because/	

78.
 because the parent company, Demag Germany, was the manufacturer and it was logical to entrust the repair work to Demag in this country.
The price of the cylinders amounted to R78 552,56. In counsel's submission it was not proved by plaintiff that the new cylinders were necessary and that the cost was reasonable. He pointed out that the engineerlng concern which was consulted found the cylinders to be usable whereas Schneider found them to be un-usable. There was consequently a conflict of opinion and the person to tell the court about all this was
 Schneider/	

 79.  Schneider and his failure to testify was fatal,
submitted counsel. I do not agree. Van der Mescht
testified in thls regard that when the cylinders
were tested the desired compression result was not
obtained. Van der Mescht said he at first suspected
that the oil seals had not been properly inserted 
but after the pistons had been removed and inspected
it was found that the seals were in order. When 
the cylinders were measured, it was found that they
had bulged ("gevind die hele silinder het opgeblaas").
It was impossibie to repair these cylinders, testi-
fied Van der Mescht. This evidence by Van der Mescht
amply proves that it was necessary to replace the old
cylinders. The price which was paid for these cy-
 linders/	

 80.  linders was not seriously challenged.
I have come to the conclusion that the
damages relatlng to the boom.(Rl25 189,14), the
slew ring (R84 165,10) and the cylinders (R78 552,56)
have been adequately proved. In the result the
plaintlff is entitled to damages in the followlng
amounts:
Loss of earnings	R179 764,91
Cost of repairs	R379 122,38
R558 887,29
The plaintlff has asked for mora interest on this sum at the rate of. 15% p a from the date of judgment of this Court, to which, in my view, it is entitled.
In the result the appeal succeeds, with
costs, includlng the costs occasloned by the
 employment/	

81.
 employment of two  counsel and the following order	
is substituted f or the order of the court a quo:
 1.	Judgment is decreed in favour of the
plaintiff in the amount of R558 887,29
with intereat on the said amount at the	
rate of 15% pa from the date of judg-ment of this court.
 2.	Costs of suit including the costs
occasioned by the employment of two
counsel.
JUDGE OF APPEAL SMALBERGER, JA – agrees

 LL	Case No 207/1985
 IN THE SUPREME COURT OF SOUTH APRICA APPELLATE DIVISION
In the matter between:
R.H. JOHNSON CRANE HIRE (PTY) LTD Appellant
and
S.A. IRON & STEEL INDUSTRIAL
CORPORATION LTD	Respondent
CORAM :	VILJOEN, BOTHA, SMALBERGER, VIVIER JJA
et KUMLEBEN AJA
HEARD :	24 PEBRUARY 1987
DELIVERED: 31 MARCH 1987
JUDGMENT
/BOTHA JA ...
2.
BOTHA JA:-
I have had the advantage of reading the judg=
ment of my Brother VILJOEN. I agree with his reasoning
and findings in relation to the proof by the plaintiff
of the written conditions of contract and their interpre=
tation. I agree also with his conclusion that the	|
defendant is liable to compensate the plaintiff for the damage it suffered, but I have arrived at that conclusion along a different route.
 On the evidence, it was common cause that the damage to the crane was caused by the fact that, in the process of attempting to lift the torpedo, it was sub=  jected to a massive overload, coupled with one or the other of the following two further facts, either (a) that the safety device was not in proper working order, or (b) that the operator, Mkhize, had pressed the so-called by-pass button of the device. In my view, the facts in (a) and (b) constitute, for the defendant, the
/horns ...
3.
horns of a dilemma: in neither event can it escape liability to the plaintiff.
As my Brother VILJOEN has pointed out, the plaintiff's claim was based simply on the defendant's failure to return the crane to the plaintiff in the same good order and condition in which it was when delivered to the defendant. In essence, the cause of action was that the crane was delivered to the defendant in an un= damaged condition and returned by the defendant in a damaged condition. These facts are common cause. The onus was on the defendant, therefore, to prove that there was no negligence on its part, or on the part of its ser= vants or persons for whose acts it is liable, in relation to the causation of the damage. The case of Frenkel v v Ohlsson's Cape Breweries Ltd 1909 T S 957, cited by my Brother VILJOEN, was concerned with a failure to return the leased article, but the same principle applies to the case where the article is returned in a damaged condition:
 /see ...	
4.
 see e g Eensaam Syndicate v Moore 1920 A D 457 at 458, where INNES CJ said:
"In the absence of agreement to the contrary
a lessee who returns the leased property in
a damaged condition is liable unless he can
prove that the injury was not caused by his
negligence or wrongful act. The authorities
quoted by Mr Hoexter are clear on this point;
and I have nothing to add to what was stated
in Frenkel v Ohlsson's Breweries (1909 T S, 
at p 962). The rule of course is based upon 
the idea that the property was undamaged when
taken over."
With regard to the fact mentioned in (a) above (that the safety device was not in proper working order), I do not see how that can avail the defendant. No evidence was led on its behalf as to the state of mind of its rigger when he gave the operator the sign to pro= ceed with the lift. If th'e rigger did not know that the crane was fitted with a safety device, but knew that the weight of the torpedo was beyond the rated capacity of the crane, he would clearly have been negligent in giving Mkhize the sign to carry out the lift. In order 
/to ... 
5.
to prove that its rigger was not negligent, thérefore, the defendant was required to prove, inter alia, that the rigger knew, or had reason to believe, that the crane was fitted with a safety device. There was no evidence at all to suggest that the rigger was entitled to, or did in fact, assume that the crane was equipped with a safety device. Accordingly the defendant failed to . prove that the damage to the crane was not caused by the negligence of its rigger.
With regard to the fact mentioned in (b) above (that Mkhize pressed the by-pass button of the device), that cannot avail the defendant either. Mkhize would clearly have been negligent in doing so, and in terms of the conditions of contract the defendant was liable for his acts.
 On the footing of the findings stated above,  there is no need to examine the evidence with a view to deciding whether the probabilities favour the fact mentioned
/in ...
6.
in (a) or the fact mentioned in (b) above, and I shall refrain from doing so. In particular, I express no view on whether Mkhize was actually proved to have been negligent.
The crux of the argument on behalf of the defen= dant in this Court was that the plaintiff could not suc= ceed in its claim unless it proved that the crane, in= cluding its safety device, was in good working order and condition when delivered to the defendant, and that it | failed to discharge that onus in respect of the safety ' device. In my view this argument is misconceived. The plaintiff alleged delivery of the crane to the defendant in good order and condition only in relation to its further allegation that when it was "returned by the defendant it was not in the same good order and condition. As I have said, the gist of the cause of action waa delivery in an undamaged state and return in a damaged state. It was no part of the plaintiff's cause of action that the safety
/device ... 
7.
 device was in proper working condition when the crane was delivered to the defendant and there was no onus on the plaintiff to prove that. The plaintiff relied  simply on a breach by the defendant of its obligation. to return the crane in the same conditionin which it re= ceived it. The possibility of the device having been defective became relevant only in the context of whether that contributed to the causation of the damage to the crane. But in that context the onus was on the defen= dant. The obligation of the defendant to return the crane in the condition in which it was received was not reciprocal to any obligation on the part of the plaintiff to deliver a crane with a properly functioning safety de= vice. To the extent that the defendant sought to avoid liability for the damage to the crane on the basis that such damage was caused by a defective safety device, the onus was on the defendant. That this is the correct ap= proach to the matter is borne out by the remarks of INNES CJ
/in ...
8.
in the Eensaam Syndicate case supra. There the lessee of a machine returned it to the lessor in a damaged con= dition. The learned CHIEF JUSTICE said (at 458):
"Here the defendant not only took over
the engine without objection, but there
is evidence to show that so far as could
be ascertained by ordinary inspection the
machine was in working order. The onus
was therefore clearly on him to show that 
its defective condition when re-delivered	
was not due to his default. But this	
onus would be discharged if he proved that	
the damaqe was caused not by illtreatment
or neglect on his part, but by defective
conditions which existed at the date of 
the lease but were then undetected."
(My emphasis.)
The above are my reasons for concluding that
the defendant is liable to the plaintiff in damages.
As to the quantum of the plaintiff's damages, I agree with what has been said in the judgment of my Brother VILJOEN.
/Accordingly ...
9.
Accordingly I concur in the order made by my Brother VILJOEN.
A.S.BOTHA JA
VIVIER JA
 CONCUR KUMLEBEN AJA