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[2010] ZASCA 107
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Crots v Pretorius (2010 (6) SA 512 (SCA); [2011] 3 All SA 10 (SCA)) [2010] ZASCA 107; 34/10 (17 September 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 34/10
In the matter between:
PIETRICH FREDERICH GERHARDT CROTS Appellant
and
JACQUES PRETORIUS Respondent
Neutral citation:
Crots v Pretorius
(34/10)
[2010]
ZASCA 107
(17 SEPTEMBER 2010)
Coram:
HARMS DP, NAVSA, SNYDERS, MHLANTLA JJA AND
K PILLAY AJA
Heard:
1 SEPTEMBER 2010
Delivered: 17 SEPTEMBER 2010
Summary:
Condictio furtiva
–
dolus eventualis
sufficient to establish -Defamation – insufficient proof.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from
: Free State High Court (Bloemfontein) (Van der
Merwe J and Ploos van Amstel AJ sitting as court of appeal):
The appeal is upheld with costs.
The order of the court below is replaced with the following:
‘The appeal is upheld with costs;
The order of the court a quo is replaced with the following:
The defendant is ordered to pay the plaintiff the amount of R45
000;
The defendant is ordered to pay interest on the amount of R45 000
at the rate of 15,5% per annum from 30 October 2006 until
date of
final payment;
The defendant is ordered to pay the costs of suit, including the
costs of 7 April 2006 and 8 September 2006;
The defendant’s counterclaim is dismissed with costs.’
______________________________________________________________
JUDGMENT
Snyders JA (Harms DP, Navsa, Mhlantla JJA and Pillay AJA concurring)
[1] On 5 August 2005 the appellant discovered that he had become a
victim of stock theft when he found that nine of his gravid
heifers
had been stolen. His subsequent investigations led him to institute
action in the Kroonstad Magistrate’s Court against
the
respondent for payment of R45 000, the alleged value of the heifers.
He alleged that the respondent had stolen and slaughtered
his
heifers. In response the respondent instituted a counterclaim in the
amount of R50 000, alleging that the appellant defamed
him by telling
third parties that he had stolen the heifers.
[2] The magistrate dismissed the appellant’s claim and upheld
the counterclaim in the amount of R20 000. An appeal to the
Free
State High Court (Bloemfontein), (Ploos van Amstel AJ, Van der Merwe
J concurring) was dismissed. Leave to appeal was refused
by the high
court, but granted on petition to this court.
[3] The
condictio
furtiva
is a delictual action for the
recovery of patrimonial loss as a result of theft. It is available to
an owner or anyone who has an
interest in the stolen thing, against a
thief or his heirs.
1
[4] The respondent’s version offers all the facts on which this
case is to be decided. He is a stock speculator of seven
years’
standing. He knows about the provisions of the Stock Theft Act 57 of
1959 (the Act). A man who only introduced himself
as Petrus,
telephoned him. Petrus offered to sell nine head of cattle to him. He
agreed on the basis that he would pay Petrus the
price the cattle
would fetch upon slaughter at the abattoir, less his commission.
Petrus was satisfied with this arrangement. As
Petrus had no
transport available for the cattle, the respondent arranged for the
collection of the cattle by a private transporter.
Petrus did not
disclose and the respondent did not ascertain the collection point
for the cattle. They arranged that Petrus would
send somebody to meet
the truck driver at a rendezvous point and accompany him to where the
cattle had to be loaded. Pursuant to
the respondent’s
arrangements nine of the appellant’s gravid heifers were
collected from his farm on 5 August 2005,
taken to Country Meat
abattoir in Kroonstad and slaughtered.
[5] Despite the respondent’s usual practise
to make payment to his customers seven days after the sale, Petrus
telephonically
asked him the very next day for an advance on the
money and he agreed. On 5 August 2005 he paid a R2000 cash advance to
Petrus,
without obtaining any form of acknowledgement of the payment.
Needless to say, that was the last that was seen or heard of Petrus.
[6] The respondent did not involve himself in the
transaction beyond making the arrangements for the collection of the
cattle and
delivery to the abattoir. He made no attempt to comply
with the Act. He did not ask for any of Petrus’ details or
credentials,
nor of the cattle, their breed, age, whether or how they
were branded or ear marked, or the place for collection of the
cattle.
2
In fact, he left the Kroonstad area to attend to business in
Johannesburg.
[7] The provisions of ss 6 and 8, and potentially
s 7, of the Act applied to the transaction and obliged the respondent
to obtain
a removal certificate from the owner of the cattle and to
supply a document of identification, signed by him, to the abattoir.
The removal certificate and document of identification are designed
to contain the details of, at least, the owner, the identifying
features of the cattle and their destination.
3
The Act aims at preventing the removal and transport of livestock by
persons with no legal entitlement to do so. By his own admission
the
respondent knew his obligations in terms of the Act. No less is to be
expected of a livestock speculator. Mr de Waal, the transporter
who
testified for the appellant, said that he specifically mentioned to
the respondent that there were no pre-printed removal certificates
with the driver of his vehicle as they had run out. The respondent
undertook to arrange for De Waal’s driver to be furnished
with
the appropriate removal certificate, but he failed to do so.
[8] The respondent claimed that he had no direct
knowledge about the theft or direct intent to steal the appellant’s
heifers.
This stance served him well in both the magistrate’s
and the high court. The magistrate’s court and the high court
only investigated whether the respondent’s version established
direct intent to steal and concluded that it did not. Therein
lies
the misdirection that entitles this court to interfere. The presence
of
dolus eventualis
satisfies the requirements of theft. The court below did not assess
the probabilities in order to test whether the requirements
of
dolus
eventualis
were satisfied.
[9] The respondent will be liable if, on a balance
of probabilities, he recognised the real possibility that Petrus did
not have
the right to deliver the cattle to him or that it was
somebody else’s cattle and he deliberately shut his eyes and
entered
into the transaction, thereby taking the risk of the
consequences if the cattle were being stolen. Knowledge in the form
of
dolus eventualis
is present if all the objective, factual circumstances justify the
inference on a balance of probabilities that the respondent
actually
and subjectively foresaw that someone else had title to the cattle.
4
[10] The transaction between the respondent and Petrus arouses grave
suspicion. The question why Petrus involved the respondent
at all
when he could have earned all of the money paid by the abattoir for
the cattle, remains unanswered. If Petrus was a legitimate
seller of
the cattle who had no transport, a mere phone call to a transporter
was required to arrange the necessary transport.
The respondent
offered no explanation. He also did not explain why the lack of
information about Petrus and the cattle did not
arouse his suspicion,
or why he made no attempt to ensure compliance with the Act. The
irrational payment of a R2000 cash advance
to Petrus without any
acknowledgement of the payment also remains unexplained.
[11] By ensuring that he knew as little as possible about Petrus and
the nine cattle sold to him and by not complying with the
Act, the
respondent facilitated the theft of the appellant’s cattle. His
failure to make any of the necessary enquiries overwhelmingly
suggests that he was deliberately avoiding information that would
have revealed that Petrus had no rights to the cattle or that
the
cattle were owned by someone else. It is inconceivable that the
respondent, a livestock speculator in the area, would not have
been
able to ascertain the ownership of the cattle from the earmarks and
tattoos that they carried or the location from which they
were
collected. The evidence was that all the cattle were earmarked and
tattooed with the registered marks of the appellant and
were
collected from the appellant’s farm.
[12] The respondent proceeded with the transaction recklessly and
deliberately failed to comply with the provisions of the Act.
His
professed ignorance of the theft in these circumstances is so
unreasonable that it cannot be accepted. The respondent deliberately
shut his eyes to the real and glaring possibility that he was
facilitating the theft of cattle, reconciled himself to the risk
and
took it. By so doing he participated in the theft.
[13] The appellant, after due expert notice testified as a farmer and
someone who used to be in the business of marketing and selling
livestock. He stated the value of his nine gravid heifers to have
been R5 000 each. He also testified that at an auction in the
area
shortly after the theft heifers of a similar age, but not with calf,
fetched prices of over R5000 each. The evidence was not
disputed and
no alternative value was suggested. The only dispute raised was a
denial that the heifers were recently with calf.
As the respondent
did not attempt to show how this denial would affect the value of
R5000, the dispute is irrelevant.
[14] The respondent’s counterclaim for
defamation was granted in the amount of R20 000. There are three
problems with this
conclusion. First the respondent did not plead to
whom the defamation was published, second it was never put to the
appellant who
the third parties were that publication was allegedly
made to and third the evidence tendered does not establish the cause
of action.
[15] Publication is an essential requirement of
defamation that must be pleaded and proved. The names of the persons
to whom the
defamatory remarks were made and who were to be called as
witnesses have to be pleaded and disclosed during cross-examination.
5
The reasons are apparent. Apart from avoiding surprise the identity
of the persons involved is also relevant to enable the defendant
to
raise appropriate defences. For instance, depending on who the person
is, the defendant may rely on privilege. The respondent
attempted to
meet this obligation by pleading that the appellant made defamatory
remarks to third parties to the effect that the
respondent stole his
heifers. Who the third parties were, was not alleged. During his
evidence the respondent also did not disclose
the identity of the
third parties. During cross-examination the appellant denied that he
made defamatory statements to third parties.
The following broad
allegation was then put to him:
‘
. . . indien nodig gaan daar getuies
geroep word wat gaan kom sê u het ook teenoor hulle hierdie
bewering [dat die verweerder
u verse gesteel het] gemaak, ek wil hê
u moet mooi dink, Karoo Ochse byvoorbeeld?’
6
The appellant not only denied the allegation, he
challenged the respondent to call the witnesses. The appellant was
never given
the opportunity to respond to the identity of those to
whom he allegedly published the alleged defamatory remarks. If a
witness
is not given the opportunity to respond to an aspect, it
would be unfair to reject his evidence on that aspect.
7
The respondent failed to adequately plead publication to the persons
to whom it was allegedly made, to testify to that or to confront
the
appellant with the identity of that person or persons to allow the
appellant a fair opportunity to respond.
[16] Mr Hanekom testified to the alleged
publication for the respondent. He was in the employ of a business
previously known as
Karoo Ochse. His vague evidence was that a ‘long
time ago’ he had a conversation with the appellant which he
‘could
not really remember’ or could not contextualise,
but that it ‘became apparent’ during the conversation
that the
respondent stole nine of the appellant’s heifers, that
was ‘more or less’ what the appellant ‘alluded
to’.
8
The evidence of Hanekom is simply too vague to support the defamation
pleaded.
[17] For these reasons the respondent’s counterclaim should not
have been upheld.
[18] In the result I make the following order:
18.1 The appeal is upheld with costs;
18.2 The order of the court below is replaced with the following:
a. ‘The appeal is upheld with costs;
b. The order of the court a quo is replaced with the following:
The defendant is ordered to pay the plaintiff the amount of R45 000;
The defendant is ordered to pay interest on the amount of R45 000 at
the rate of 15,5% per annum from 30 October 2006 until date
of final
payment;
The defendant is ordered to pay the costs of suit, including the
costs of 7 April 2006 and 8 September 2006;
iv. The defendant’s counterclaim is
dismissed with costs.’
_________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
For
appellant: N Snellenburg
Instructed by Du Randt & Louw, Kroonstad,
Rosendorff Reitz Barry, Bloemfontein.
For
respondent: J G Gilliland
Instructed by Grimbeek van Rooyen & vennotte, Kroonstad,
Quinton
Grimbeek Prokureurs, Bloemfontein.
1
C G van der Merwe ‘Things’
Joubert
(ed)
The Law of South Africa
(2
ed) vol 27 para 387;
Minister van
Verdediging v Van Wyk en andere
1976
(1) SA 397
(T) at 400C and 402G-403B;
Clifford
v Farinha
1988 (4) SA 315
(W) at
322G-323F.
2
GN R1685 published in GG 15990 on 30 September 1994 in terms of s 16
of the Act, prescribes the details aimed at identification
of
individual animals with reference to features like colour, breed,
brandmark, earmark, tattoo and sex, which are to be contained
in the
documentation required by ss 6, 7 and 8 of the Act.
3
S 6(1) obliges any person, including any agent,
who sells any stock to any other person on his own behalf or on
behalf of any
other person, to, at the time of delivery of the
stock, furnish such other person with a document of identification
which includes
details of his full name and address or the full name
and address of the person on whose behalf he was selling,
particulars of
the stock, the full name and address of the person to
whom the stock was sold, the date on which the stock was sold and
certifying
that such stock is his property or that he is duly
authorized by the owner thereof to deal with or dispose of it.
S
7(1) obliges any person who acquires or receives into his possession
for the purpose of sale, from a person who has no known
place of
residence, any stock, to receive with it a certificate of no older
than 30 days from a person of authority, like a headman,
as listed
in the section, which certificate describes the stock and declares
that the relevant person is entitled to dispose
of or deal with such
stock.
S 8(1)
obliges a person who conveys or transports stock of which he is not
the owner along any public road to carry a removal
certificate
issued to him by the owner of the stock which certificate is to
include the name and address of the owner of the
stock, the
particulars of the stock, the place from and to which the stock is
being conveyed, the name of the conveyer and the
date of issue.
4
See
Frankel Pollak Vinderine Inc v Stanton NO
2000 (1) SA 425
(W) at 438E-439J for a useful discussion of
dolus
eventualis
in a similar context, the
actio ad exhibendum
.
5
International Tobacco Co (SA) Ltd v United
Tobacco Co (South) Ltd (4)
1955 (2) SA
40
(W);
Mograbi v Miller
1956 (4) SA 239
(T).
6
My translation:
‘.
. . if necessary, witnesses are going to be called that would say
you made the allegation [that the defendant stole your
heifers] to
them as well, I want you to think carefully, for example, persons
from Karoo Ochse?’
7
President of the Republic of South Africa and
others v South African Rugby Football Union and others
2000 (1) SA 1
(CC) paras 61 to 63.
8
The phrases quoted are my translations for the
following: ‘lank terug’, ‘kan nie rêrig
onthou’ ,
‘aan die lig gekom’, ‘min of meer’
and ‘gesinspeel’.