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[2021] ZANCHC 15
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Robertson v Fourie (CA&R 8/2019) [2021] ZANCHC 15 (26 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: CA&R 8/2019
Date
heard: 16-11-2020
Date
delivered: 26-03-2021
In
the matter between:
Tommy
Robertson
Appellant
And
Schalk Willem Fourie
Respondent
CORAM:
WILLIAMS J et LEVER AJ:
JUDGMENT
WILLIAMS
J:
1.
The respondent (plaintiff in the court
a
quo)
had instituted an action in the
Magistrates Court, Kimberley against the appellant/defendant for
payment of the balance of the purchase
price of two Tsessebe cows in
terms of an oral agreement entered into between the parties during
September 2015. The salient
terms of the agreement were that
the respondent would deliver to the appellant two Tsessebe cows, both
of which were to be pregnant
and in good condition, for the purchase
price of R80 000, 00 (exclusive of VAT) per animal. The
respondent alleged that
the appellant had waived the requirement of
pregnancy on 28 September 2015 and despite performance in terms of
the amended agreement
the appellant failed to pay the full purchase
price.
2.
The appellant denied that he had waived the
requirement of pregnancy. He pleaded that the respondent had
breached the agreement
by failing to deliver two pregnant animals and
tendered payment of the full purchase price upon delivery of two
pregnant Tsessebe,
alternatively the return of the purchased animals
and further alternatively payment of the reasonable and fair market
value of
two Tsessebe cows not pregnant and not in a good condition,
taking into account the payment already made to the respondent.
3.
After hearing evidence the court
a
quo
found in favour of the respondent that
the appellant waived the requirement that the animals be pregnant and
ordered that he pay
the amount of R71 200,00 (the balance of the
purchase price) plus interest and the costs of suit. The
appellant thereafter
filed a notice to appeal the judgment and orders
of the court
a quo
.
4.
On appeal before us the only issue to be
determined was whether the court
a quo
was correct in finding that the appellant had waived the contractual
requirement of pregnancy.
Background
5.
The appellant, Mr Tommy Robertson, henceforth
referred to as Robertson approached, Mr Schalk Fourie (Fourie), the
respondent, who
is a livestock agent, to procure and deliver two
certified pregnant Tsessebe cows, in good condition. Fourie
found a seller,
Mr Julius Gers, and proceeded to negotiate the
purchase price with Robertson. The parties agreed to R80 000,
00 per
Tsessebe, exclusive of VAT. It was further agreed that
Robertson would pay for one Tsessebe, inclusive of VAT, equalling
R91 200, 00 within a few days of delivery, plus R20 000, 00
deposit on the second Tsessebe. The balance of the purchase
price,
would be paid by Robertson by the first week of December 2015.
6.
On the morning of 28 September 2015 the parties
arrived at the farm of Gers, where the Tsessebes were to be darted
and certified
pregnant by the veterinarian employed by Gers for this
purpose, Dr Janine Porter. The ensuing events, largely common
cause
between the witnesses, Fourie, Gers and Porter for the
respondent and Robertson for the appellant follows.
7.
Porter darted and anaesthetised two Tsessebes on
the farm from a helicopter. The Tsessebes were loaded onto a
vehicle and
taken to a shed to keep them out of the sun. When
Porter arrived at the shed to examine the animals she realised that
she
had left her scanner in her vehicle some 15 to 20 kilometres
away. The half an hour or so it would take to get the scanner
would be too long to leave the animals anaesthetised as Tsessebes are
apparently very sensitive creatures. Effectively this
meant
that Potter would not be able to certify that the animals were
pregnant.
8.
Robertson insisted that he wanted the Tsessebes
certified pregnant. Gers then suggested that Robertson did not
have to take
the animals and that they could be put back in the veld
– the camp fence was only about 100 meters away – and be
given
the antidote, which would awaken them. Robertson was not
keen on this idea. Porter then examined the Tsessebes and found
them to be healthy. Both Porter and Gers said that the animals
were probably pregnant, given the time of year and the fact
that they
came from a breeding herd. They could however not confirm or
guarantee pregnancy without the animals being scanned.
9.
After being informed that the Tsessebes were
probably pregnant and after being given another opportunity to have
the animals released
into the veld, Robertson decided to take the
Tsessebes. Thereafter the animals were loaded onto Fourie’s
trailer, administered
the antidote and transported to Robertson’s
farm.
10.
Robertson made the first payment as per the
agreement with Fourie, but failed to pay the balance of the purchase
price. Upon
enquiry Robertson informed Fourie that one of the
Tsessebes had died on the farm and the other had failed to calve.
Fourie
had obtained legal advice and refused to pay the balance of
the purchase price.
Discussion
11.
The only issue to be determined is whether the
magistrate was correct in finding that Robertson had waived the
requirement of pregnancy.
I must at this stage mention that the
Tsessebe which died on Robertson’s farm was of no consequence
at the trial. Robertson
accepted that he bore the risk once the
Tsessebes were removed from Gerses farm.
12.
There is a presumption against waiver. This
is so since in general it is unlikely that a party, having acquired
contractual
rights, would give it up. The onus is thus on the
party asserting waiver to prove it. In
Laws
v Rutherford
1924 AD 261
, Innes CJ said at
263”
“
The
onus is strictly on the appellant. He must show that the
respondent, with full knowledge of her right, decided to abandon
it,
whether expressly or by conduct plainly inconsistent with an
intention to enforce it.”
13.
Both counsel for Robertson, Mr Eillert and counsel for Fourie, Mr
Olivier, referred us to
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA), a most useful judgment wherein Nienaber JA
discusses inferred waiver and distills from the cases the test to
determine whether
there was an intention to waive. At
paragraphs 15 to 19 the following is stated:
“
Waiver
is first and foremost a matter of intention. Whether it is the waiver
of a right or a remedy, a privilege or power, an interest
or benefit,
and whether in unilateral or bilateral form, the starting point
invariably is the will of the party said to have waived
it. . .
. . . . . .
[16]
The
test to determine intention to waive has been said to be objective
(cf
Palmer
v Poulter
1983
(4) SA 11
(T) 20C-21A;
Multilateral
Motor Vehicle Accidents Fund v Meyerowitz
1995
(1) SA 23
(C) 26H-27G;
Bekazaku
Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd
1996
(2) SA 537
(C) 543A-544D).
That
means, first, that intention to waive, like intention generally, is
adjudged by its outward manifestations
(cf
Traub
v Barclays National Bank Ltd
1983
(3) SA 619
(A) 634H-635D;
Botha
(now Griessel) and Another v Finanscredit (Pty) Ltd
1989
(3) SA 773
(A) 792B-E);
secondly,
that mental reservations, not communicated, are of no legal
consequence
(
Mutual
Life Insurance Co of New York v Ingle
1910
TS 540
, 550);
and
thirdly, that the outward manifestations of intention are adjudged
from the perspective of the other party concerned, that is
to say,
from the perspective of the latter’s notional
alter
ego
,
the reasonable person standing in his shoes.
[17]
The third aspect has not yet been finally settled by this court, or
so it would seem (cf
Thomas
v Henry and Another
1985
(3) SA 889
(A) 896G-898C). What the one party now says he
then intended and what his opposite number now says he then believed,
may still
be relevant (
Thomas
v Henry and Another, supra,
898A-C)
although not necessarily conclusive.
The
knowledge and appreciation of the party alleged to have waived is
furthermore an axiomatic aspect of waiver
(
Martin
v De Kock
1948
(2) SA 719
(A) 732-733). With those two qualifications I
propose, in this judgment, to apply the test of the notional
alter
ego
.
. . . . . .
[18]
The outward manifestations can consist of words; of some other
form of conduct from which the intention to waive is inferred; or
even of inaction or silence where a duty to act or speak exists.
. . . . . . . .
[19]
Because
no one is presumed to waive his rights (cf
Ellis
and Others v Laubscher
1956
(4) SA 692
(A)
702E-F), one, the onus is on the party alleging it and, two, clear
proof is required of an intention to do so
(
Hepner
v Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A) 778D-9A;
Borstlap
v Spangenberg en Andere
1974
(3) SA 695
(A) 704F-H).
The
conduct from which waiver is inferred, so it has frequently been
stated, must be unequivocal, that is to say, consistent with
no other
hypothesis.”
14.
Mr Eillert correctly contended that the outward manifestation of the
choice that Robertson made that day can
be found in the words that he
used at the time and the fact that he decided to take delivery of the
Tsessebes and had it transported
to his farm.
15.
Robertson’s own evidence was that he knew that an animal can
only be certified pregnant it it had been
confirmed by a scan.
He was also aware that no other pregnancy test had been performed on
the animals. He was given
the option, on his own evidence, not
to take the animals. Fourie, Gers and Porter testified that
this option was willingly
extended by Gers several times.
Despite being aware that there was no guarantee that the animals were
pregnant, Robertson
decided to accept them.
16.
During his evidence in the court
a quo
, Robertson appeared to
blame pressure of circumstances on his decision. That the
trailer was standing at the ready, that
the day was getting hotter,
that the animals had to be revived without undue delay and that he
had been guided by the opinions
of experts in the field such as Gers,
Dr Porter and Fourie, that the animals were most likely pregnant.
He however denied
having waived his right to delivery of pregnant
Tsessebes.
17.
Mr Eillert, during argument before us, reiterated the circumstances
under which Robertson had to make the
choice of taking or leaving the
animals and contended that at most Robertson had waived his right to
have the Tsessebes
certified
pregnant. He based this
argument partly on the fact that Gers had testified that he had told
Robertson that he had one of
two options. Either that “
ons
maak die diere wakker en ons sit hulle terug in die kamp”
or “
hy aanvaar hulle as hulle dragtig is soos hulle nou daar
is.”
Whereupon Robertson apparently answered “
ek
aanvaar hulle so”.
For the other part, Mr Eillert
argued that the fact that Robertson did not negotiate a reduced price
for the animals was
evident of his intention not to waive the
requirement of pregnancy. It was common cause among Fourie,
Gers and Robertson,
who were all farmers, that a pregnant animal
commanded a higher price than one which was not.
18.
This argument by Mr Eillert could have been persuasive had it not
been for the fact that Robertson knew that
there could be no
guarantee of pregnancy without the animals being scanned and that
neither Gers nor Porter were willing to commit
themselves to that
effect without the animals being scanned. The argument also
disregards what was termed in
Mothupi supra
as the outward
manifestation of intention as adjudged from the perspective of the
other party concerned. From the perspective
of Fourie and Gers
the acceptance of the animals and the fact that Robertson did not
negotiate a reduced price, should the animals
turn out not to be
pregnant, could reasonable have been interpreted, in the midst of the
uncertainty as to pregnancy, that he had
accepted the risk of the
animals not being pregnant. This was in effect their evidence.
19.
What makes matters worse for Robertson is that it would reasonably
have been expected of him, if he intended
to enforce his right to
pregnant Tsessebes, to have been proactive in having them scanned for
pregnancy within a reasonable time
after taking delivery of the
animals or, as suggested by Gers, to keep them enclosed in a boma, to
monitor their progress instead
of letting them roam freely in the
veld on his farm and complaining after about six weeks that the
remaining Tsessebe had failed
to calve. In Christie’s Law
of Contracts in South Africa; 7th ed, at 515 it is stated “
If
delay in enforcing a right conferred by the terms of a contract has
induced a reasonable belief that there is an agreement not
to enforce
the right, then enforcement has been waived by quasi-mutual assent.”
20.
In my view and in the circumstances of this matter, the court
a
quo
was correct in finding that Robertson had waived the
contractual requirement of pregnancy and in the event the appeal
should be
dismissed.
The following
order is made:
The appeal is
dismissed with costs.
CC
WILLIAMS
JUDGE
I
concur
LG
LEVER
ACTING
JUDGE
For
Appellant:
Adv A Eillert
Engelsman Magabane
Inc
For
Respondent:
Adv. D Olivier
Van de Wall Inc