BAK Storage (Private) Limited v Grindsberg Investment (Private) Limited

The plaintiff (BAK Storage) initially claimed US$174,932 from the defendant (Grindsberg Investment) for handling charges, warehousing costs and storage fees in respect of goods (bulk sugar, rice, cooking oil and soya meal) belonging to the defendant. The defendant admitted the contract but contested the quantum, claiming it had paid for all services rendered. The plaintiff amended its claim to add a further claim for storage fees at US$20,000 per month from April 2014 until the defendant's goods cleared the warehouse. The parties settled the principal claim through a Deed of Settlement in February 2015, reducing the amount to US$43,570 with a payment plan. However, the residual issue remained regarding whether the plaintiff could claim the US$20,000 per month as damages for goods held as a lien. The plaintiff had been holding the defendant's goods since April 2014 pending payment. The matter proceeded as a special case to determine whether the plaintiff was entitled to charge storage fees for goods it was holding as a lien.

• Whether a warehouse keeper is entitled to charge commercial storage fees or damages for goods retained as a lien
• Whether a lien creates a cause of action for commercial storage charges or merely provides a right of retention
• Whether the plaintiff's claim for US$20,000 per month in storage fees was properly substantiated

The plaintiff's claim for US$20,000 per month in storage fees/damages for goods held as a lien was dismissed with costs.

A lien (jus retentionis) is a right of retention that arises by operation of law and does not create a cause of action for commercial storage charges. It merely affords a defence against the owner's vindicatory action. A lien holder, including a warehouse keeper, is entitled only to reimbursement of actual costs necessarily incurred in preserving or keeping the owner's goods, not to commercial storage rates. The function of a lien is to provide security until payment is made, not to enable commercial exploitation of the retained goods. Possession of goods in exercise of a lien is for security purposes only and cannot be exploited for commercial purposes. Where a warehouse keeper exercises a lien over goods, their contractual right to charge commercial storage fees ceases, and they are limited to claiming actual preservation costs.

The court noted that it was curious that the plaintiff did not specifically address the defendant's contention that US$85,983.94 had been paid, and that it had not been explained whether the plaintiff's original claim of US$174,932 (later settled at only US$43,570) had been a mistake. The court also observed that if the only problem with the claim had been lack of substantiation of the US$20,000 monthly rate, absolution from the instance might have been appropriate, but given the fundamental flaw in the basis of the claim, the defendant was entitled to judgment. The court commented on the delay in delivering judgment, noting that the record was returned to the registry soon after arrangements were made and the matter was forgotten until the plaintiff made enquiries about five months later.

This case provides important clarification in Zimbabwean law (and applicable to South African law given the shared common law heritage) on the nature and scope of liens, particularly debtor-creditor liens held by warehouse keepers and storage facilities. It establishes clear boundaries between: (1) contractual rights to charge commercial storage fees, and (2) the right of retention (lien) which only entitles the holder to reimbursement of actual preservation costs. The judgment reinforces that a lien is a defensive mechanism providing security, not a basis for founding a commercial claim for ongoing storage charges. This is significant for the warehousing and logistics industry, clarifying that once a warehouse keeper exercises a lien, they cannot continue charging commercial rates but are limited to actual necessary costs of preservation.