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[2016] ZAWCHC 191
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Swanepoel v Joco Wildboerdery (Edms) Bpk (A903/2015) [2016] ZAWCHC 191 (14 December 2016)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
In
the matter between
Case
No: A903/2015
JOHANNES
STEPHANUS MARAIS SWANEPOEL
APPELLANT
And
JOCO
WILDBOERDERY (EDMS) BPK
RESPONDENT
Coram
:
ALLIE & ROGERS JJ
Heard:
9 DECEMBER 2016
Delivered:
14 DECEMBER 2016
JUDGMENT
ROGERS
J (ALLIE J concurring):
[1]
The appellant (‘Swanepoel’) appeals
against the dismissal of his action in the court a quo. The
appellant, who provides
borehole drilling services, sued the
respondent for R45 383,40 in respect of a borehole sunk on the
respondent’s farm
during June 2014. The respondent’s sole
shareholder and representative in its dealings with the appellant was
a Mr JH Coetzee
(‘Coetzee’).
[2]
The factual dispute between the parties was
whether, as Swanepoel alleged, the mandate was for him to sink a
borehole three meters
from an existing dilapidated well or whether,
as the respondent alleged, the mandate was for him to clean the old
well.
[3]
The respondent had recently purchased the farm
for the purpose of carrying game. Water was, however, a problem.
Coetzee engaged
a geologist who marked a particular spot which he
thought promising for a borehole. Coetzee asked Swanepoel to sink the
borehole.
They agreed a rate per metre. When Swanepoel arrived at the
farm it turned out that his equipment could not reach the geologist’s
spot unless the road was cleared of vegetation.
[4]
Since this would take some time, Coetzee drove
Swanepoel to a dilapidated well. This was near a small church. A
disused windmill
stood above the well. Coetzee told Swanepoel that
this well was about 40 to 60 meters deep and according to the local
community
had once been a source of water. The idea was to utilise
Swanepoel’s services at this location while the road to the
other
spot was cleared.
[5]
A discussion between Swanepoel and Coetzee ensued
at the old well. Coetzee asked Swanepoel whether he could clean it
out. There
is a dispute as to what happened next. Coetzee’s
version is that Swanepoel agreed to do so, whereupon Coetzee left,
giving
his foreman, Mr Cheslin Muis (‘Muis’),
instructions about assisting Swanepoel in the provision of water and
diesel.
Swanepoel’s version is that he told Coetzee that he was
not prepared to clean the old well. They then agreed that he would
drill a borehole three meters away in the hope that they would strike
the same source as had once fed the well.
[6]
What is common cause is that Swanepoel and his
workers proceeded to sink a borehole three meters away from the
opening of the old
well. They did not strike water at 60 meters. They
drilled to about 100 meters. Swanepoel then phoned Coetzee (this was
on the
next day) to say that he had still not found water but the
signs were promising. Coetzee came back to the site and they agreed
that he could go a little deeper. The enterprise was abandoned at a
depth of 120 meters.
[7]
By this stage the road to the geologist’s
spot had been cleared. Swanepoel relocated his equipment there. With
Coetzee in
attendance, drilling began. Unfortunately this too was
unsuccessful, operations eventually being abandoned at a depth of 160
meters.
[8]
Swanepoel issued separate invoices for the two
boreholes. Coetzee paid the second invoice but not the first.
[9]
In support of his claim Swanepoel testified and
called his foreman, Mr Joseph Snoek (‘Snoek’). The
respondent’s
witnesses were Coetzee and Muis. The magistrate
did not make adverse credibility findings against any of them. She
considered that
the matter needed to be resolved with reference to
the inherent probabilities. She mentioned two factors which in her
view favoured
the respondent’s version:
(i)
The
geologist had been very particular that the borehole contractor
should sink the hole in the exact spot marked by him. It was
unlikely
in the circumstances that Coetzee would have agreed to sink a whole
three meters away from the old well in the belief
that water would be
as likely to be found there as at the exact location of the old well.
(ii)
There
was a factual dispute as to whether Coetzee was present during the
drilling operations at the site of the old well. If he
was, and
raised no complaint, this would be destructive of his version. On
this aspect the magistrate thought that the probabilities
favoured
Coetzee’s version. If the mandate was simply to clean the old
well, it was unlikely that Coetzee would have hung
around to observe
the works. Furthermore, if – as Swanepoel testified –
Coetzee returned to the location four or five
times during the
drilling works, it would not have been necessary for Swanepoel to
phone him to say they had reached 100m without
finding water.
[10]
The magistrate’s observations are not
compelling. As to the first factor, if – as Swanepoel testified
– he made
it clear that he was not willing to clean out the old
well, the problem would have remained as to what Swanepoel would do
with
his time until the road to the geologist’s spot was
cleared. Coetzee was anxious for Swanepoel not to leave the farm
since
he was afraid it might be some time before he could get him
back. Coetzee was desperate for water. He could not be certain that
water would be found at the geologist’s spot. However
pernickety the geologist may have been about his precise spot, the
geologist had said nothing about the old well. He had not identified
it as a spot where water could still be found. The people
who had dug
the old well decades before (Swanepoel thought it might have been a
hundred years old) would not have had advanced
technology to identify
a precise spot. Most people would think it a matter of common sense
that if there was still water beneath
the old well there would also
be water nearby.
[11]
The other factor mentioned by the magistrate begs
the question. The magistrate based her probability finding on an
assumption that
the mandate was to clean out the old well but that
was the very point in issue. Even on the magistrate’s
question-begging
assumption, I do not see why it should be supposed
that Coetzee would not have been interested in the operations. He was
desperate
for water. It was not known that the old well would still
have water. He says he assumed that the cost of cleaning the old well
would be the same rate per metre as drilling a new hole so it was not
as if the cleaning of the old well was a comparatively cheap
operation. The cleaning of the old well would, in the circumstances,
have been every bit as interesting and commercially significant
as
drilling a new hole three meters away.
[12]
More significantly, however, there are important
inherent probabilities which the magistrate failed to consider. The
first and most
striking is the undisputed evidence that almost
immediately after the conclusion of the oral agreement Swanepoel
proceeded to start
drilling a hole three meters away from the old
well. He did not even try to remove the old windmill. In other words,
he did not
do the very thing which according to Coetzee he had just
agreed to do. On Coetzee’s version, Swanepoel’s conduct
was
incomprehensible. Even if Coetzee was not present when the
drilling operations began or at any time before they reached 100
metres,
Swanepoel was not going to be able to hide from Coetzee that
he had drilled a new hole rather than cleaned the old well. While
Coetzee might have been happy if water had been found in the new
hole, Swanepoel knew that there was no guarantee of finding water.
He
would thus have been at material risk of non-payment for his time,
labour and materials (the latter in the form of the metal
casings
inserted to prevent the borehole from caving) if he deviated so
obviously from his mandate without delivering results.
[13]
There are only three possibilities:
(i) Swanepoel, without notifying Coetzee, decided to ignore the
mandate and drill a new
hole; (ii) there was a misunderstanding
between Swanepoel and Coetzee about the mandate; (iii) the
mandate was as Swanepoel
alleged. I have shown why the first of these
possibilities is wholly implausible. The second is ruled out by the
evidence of the
parties – neither Swanepoel nor Coetzee’s
versions would be consistent with a misunderstanding. Each of them
regarded
the mandate as quite clear. This leaves the third of the
three possibilities as the most inherently plausible.
[14]
We asked Mr Claassen, who appeared for the
respondent in the appeal, what in his submission was going on in
Swanepoel’s head
when he ignored the mandate and drilled a new
hole. All that Mr Claassen could suggest was that Swanepoel, as a
seasoned driller,
had simply decided that he knew what was best.
There would, however, have been no reason for Swanepoel not to make
his view known
from the outset.
[15]
Then there is the fact that if Swanepoel was to
clean the old well the disused windmill had to be removed. It was
apparently bolted
to cement blocks. Swanepoel testified that he did
not have equipment to remove it. Coetzee’s evidence on the
issue was equivocal.
His attorney put to Swanepoel that Coetzee would
testify that they had discussed the removal of the windmill and that
Coetzee had
said to Swanepoel that it would not be difficult to
dismantle. When Coetzee testified, however, he did not claim that the
removal
of the windmill was expressly discussed. He testified that he
had simply assumed that Swanepoel would remove the windmill.
[16]
Coetzee testified that he had not thought it
would be very hard to saw through the windmill’s legs and tow
it away with a
rope. It was not suggested, however, that Swanepoel
had a rope. When questioned on this aspect, Swanepoel said that to
saw the
legs off and tow the windmill would have been a dangerous
operation which could have injured his staff and damaged his
equipment.
He thought one would need apparatus to lift the windmill
vertically off its base. The metal casing used in the boreholes is
thin.
His cutting torch would not have been suitable to tackle the
windmill. Another preparatory step would have been to remove the old
casings from the well, which might not have been an easy exercise.
[17]
There is also Swanepoel’s uncontested
evidence that he does not clean out old wells because he has
expensive imported equipment
which could be damaged. His foreman,
Snoek, who has worked with him since 1981, confirmed this, referring
to an incident where
his equipment had got stuck in an old hole. They
have various drill-bit sizes. Existing wells sunk by other people may
not match
their equipment for size. Both Coetzee and Muis confirmed
in their evidence that Swanepoel told them that he did not clean
other
people’s wells. But on their version Swanepoel only gave
this explanation after being challenged about having sunk a new hole
rather than cleaning the old well. I find it difficult to believe
that if Swanepoel’s attitude in general was that he would
not
clean old wells, he would have reached the agreement which Coetzee
claims.
[18]
Assuming that Coetzee, as he testified, was not
present when the drilling began or at any time before a depth of 100
metres was
reached, his reaction upon being phoned by Swanepoel was
not what one would have expected if the mandate was to clean out the
old
well. One would have anticipated an immediate challenge as to how
Swanepoel could have reached a depth of 100 meters if he was merely
cleaning out a well with a depth of 40 to 60 meters. This is not to
say that Coetzee was pleased with the news. Nobody would want
to
spend money on a borehole and not find water. He came to the site.
According to Swanepoel, Coetzee agreed that they could drill
a bit
deeper in view of the encouraging signs. There was no complaint that
Swanepoel should not have been drilling a new hole.
[19]
Coetzee’s version was that on arrival he
immediately asked Swanepoel why he had not cleaned out the old well.
Swanepoel’s
response was that he does not clean old wells or
remove old windmills. The discussion continued. Coetzee told
Swanepoel that he
had drilled too deep. Swanepoel replied that the
little stones which were being extracted at a depth of 100 meters
were promising
signs of water beneath. Coetzee questioned him as to
how he would know if he had struck water: he was pumping so much
water into
the hole that he could not know whether the water coming
out was this water or fresh water. He says he did not know what to do
and in the end just turned around and went back to his bakkie. He did
not tell Swanepoel that he would not be paying for the borehole.
He
was reticent to confront Swanepoel because he still needed his
services to drill the borehole at the geologist’s spot.
[20]
Whatever his subjective reasons, Coetzee did not
behave like someone who had just discovered that his borehole
contractor was not
to be trusted and had ignored his mandate.
[21]
I do not intend to delve at length into the
disputed questions as to whether drilling at the site of the old well
began on the day
of the discussion or only on the following morning
and whether Coetzee was present when the drilling began or at any
stage prior
to a depth of 100 metres being reached and as to when it
was that Coetzee’s wife accompanied him to the site. If it be
assumed
that the evidence of Coetzee and Muis is correct and that
Swanepoel and Snoek’s contrary recollections were mistaken, it
would not alter my conclusion on the probabilities. I nevertheless
observe that there was no good reason for Swanepoel not to have
begun
drilling that same day. And Coetzee does not seem to have had other
business that would have detained him and prevented him
from visiting
the works to see how things were coming along.
[22]
In my opinion, therefore, the appeal must
succeed. I would thus grant the following order:
(a)
The
appeal succeeds with costs.
(b)
The
order of the court a quo is set aside and replaced with the following
order:
(i)
Judgment is granted in the plaintiff’s
favour for R45 383,40 and interest thereon at 9% a tempore morae
from 21 April
2015 to date of payment.
(ii)
The defendant is to pay the plaintiff’s
costs of suit.
ALLIE
J:
[23]
I concur and it is so ordered.
______________________
ALLIE J
______________________
ROGERS J
APPEARANCES
For
Appellant
Mr
A de V la Grange SC
Instructed
by
Du
Bois Attorneys
23
Church Street
Robertson
For
Respondent
Mr
James Claasen
Raubenheimers
Inc
60
Cathedral Street
George