About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2019
>>
[2019] ZAKZDHC 28
|
|
Voermol Feeds (Pty) Ltd v Hattingh (13225/2010) [2019] ZAKZDHC 28 (5 November 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO. 13225/2010
In the matter between:
VOERMOL FEEDS (PTY)
LTD
PLAINTIFF
and
LOUIS DE LA REY HATTINGH
DEFENDANT
O R D E R
In
the result, the following order will issue:
1.
Judgment is granted in favour of the plaintiff
against the defendant for:
1.1
payment
of the sum of R698 891.78;
1.2
interest
on the abovementioned amount at the rate of 11,5% per annum from 30
September 2010 to date of payment; and
1.3
costs
of suit on the scale as between attorney and own client.
2.
The defendant’s
counterclaim is dismissed with costs on the scale as between attorney
and own client.
J U D G M E N T
Henriques J
Introduction
[1]
This matter was enrolled on the trial roll for hearing on 17
September 2018, to determine
an issue which the parties had agreed be
separated in terms of the provisions of Uniform rule 33(4).
[2] The issue to be
determined is whether the defendant’s counter-claim founded
in
delict is legally sustainable in the face of the written agreement
concluded between the parties and annexed to the plaintiff’s
particulars of claim as annexure “A”.
[3] The matter proceeded on
this agreed issue and the parties agreed that in the event
it is
found that the counter-claim is unsustainable in law, then judgment
ought to be entered in favour of the plaintiff as claimed
in the
particulars of claim.
[4] No evidence was led at
the proceedings. Both parties filed written heads of argument,
for
which I am indebted, and addressed me on the issue to be determined.
Pleadings
[5] In deciding the issue,
it is useful at this juncture to have regard to the pleadings,
which
led to the issue being crystallized. The plaintiff instituted action
by way of a combined summons against the defendant for
payment of the
sum of R690 891.78 together with ancillary relief. Such action
was premised on a written credit application
form (krediet
aansoekvorm) incorporating the plaintiff’s terms and conditions
(terme en voorwaardes) which was concluded
on 8 June 2006 (the
agreement).
[6] In terms of the
agreement, the plaintiff offered and the defendant accepted credit
facilities for the sale and delivery of cattle feed. The plaintiff
duly supplied the defendant with cattle feed in the amount claimed
together with interest.
[7] The defendant did not
dispute liability for the amount owing. However, he declined
to
effect payment of the amount together with the interest in lieu of
damages suffered by him amounting to R5 439 309.32.
This he
alleged was as a consequence of the alleged unlawful and negligent
conduct of the plaintiff’s servants and their
breach of a duty
of care owed to him.
[8] In his counter-claim,
the defendant alleges that the plaintiff’s servants were
negligent and breached their duty of care in one or more of the
following respects:
‘
(a)
They failed to exercise due and proper care and diligence when
advising, alternatively recommending
that the Defendant change from a
wet feed regimen to a dry feed regimen during or about the period 1
June 2010 to 10 June 2010;
(b)
They failed to properly consider the consequences of a change in the
feeding regimen
when by the exercise of due care and diligence they
could and should have done so;
(c)
They failed to advise, alternatively inform the Defendant of the
consequences of changing
from a wet feed regimen to a dry feed
regimen;
(d)
They failed to recommend an alternative wet feed regimen when they
could and should
have done so
.’
[1]
[9]
Although the defendant raised two special pleas relating to
jurisdiction and compliance
with
ss 129
and
130
of the
National
Credit Act 34 of 2005
in the plea filed, these were not persisted
with at the hearing, as the parties resolved them during a series of
pre-trial conferences
and pre-trial procedures.
[10] The plaintiff filed a plea to the
counter-claim as well as a replication in which only the special
pleas raised were canvassed. In the alternative in the event of the
court finding it liable to the defendant in respect of his
counter-claim, the plaintiff pleaded that as a consequence of the
provisions of clause 6 of the agreement and the terms and conditions,
the amount of the counter-claim was limited to the amount of any
‘direct damages suffered by the Defendant but not more than
the
purchase price of the goods or products sold to the Defendant and
from which the liability or claim arises’.
[11] In a
rule 37(4)
notice dated 26 September 2016, the
plaintiff posed the following question to the defendant:
‘
Inasmuch
as the Defendant has admitted the terms of the agreement annexed to
the Plaintiff’s particulars of claim marked “A”
and
clause 6 thereof limits the Plaintiff’s liability in damages to
the Defendant, the Plaintiff will enquire of the Defendant
on what
basis the Defendant claims to be entitled to pursue its counter claim
against the Plaintiff for an amount in excess of
the purchase price
of the SB 100 used by the Defendant during the period June 2010?
’
[2]
[12] The defendant in its written response to the
plaintiff’s notice in terms of
rule 37(4)
dated 11 January 2017
responded as follows:
‘
2.
Ad Paragraph 8
In
delict. That should be apparent from the pleadings
.’
[3]
[13] In order to decide whether or not
the defendant’s counter-claim is sustainable in law,
and in
light of the provisions of clause 6 of the terms and conditions,
which formed part of the agreement concluded between the
parties, it
is necessary to consider clause 6 and the parties’
submissions.
Clause 6 of the agreement
[14]
Clause 6 reads as follows:
‘
6.
UITSLUITING VAN EISE
6.1 Die
Verkoper en sy direkteure, werknemers, agente, verskaffers en
kontrakteurs, sal nie aanspreklik
wees teenoor die Koper nie vir
enige indirekte, toevallige of gebeurlikheidsskade (insluitende maar
nie beperk tot ‘n verlies
aan verdienste of wins), wat
voorspruit uit enige oorsaak, insluitend maar nie beperk tot die
verbreking van enige koopkontrak
wat gesluit word ingevolge hierdie
Voorwaardes, of nalatigheid aan sy of hulle kant.
6.2 Die
aanspreklikheid van die Verkoper en sy direkteure, werknemers,
agente, verskaffers en kontrakteurs sal
beperk wees tot enige direkte
skade wat deur die Koper gelei word tot ‘n bedrag nie meer as
die koopprys van die goedere
wat aan die Koper verkoop is nie en
waaruit die aanspreklikheid of eis voorspruit
.’
[15] Translated into English
[4]
,
clause 6 means the following:
‘
6.
EXCLUSION OF CLAIMS
6.1 The
Seller and its directors, employees, agents, suppliers and
contractors shall not be liable to the
Buyer for any indirect,
incidental or consequential damages (including but not limited to a
profit or loss), arising from
any cause, including but not
limited to breach of any contract of sale concluded under these
terms, or negligence on his or her
part.
6.2 The
liability of the Seller and its directors, employees, agents,
suppliers and contractors shall be
limited to any direct damages
incurred by the Purchaser to an amount not exceeding the purchase
price of the goods sold to the
purchaser and from which the liability
or claim arises.
’
Submissions of the parties
[16]
At the hearing, I heard argument from Mr
van Rooyen
on behalf
of the defendant first. The defendant’s oral and written
submissions can be summarised as follows:
(a) Relying on the decision of
Lillicrap, Wassenaar and Partners v Pilkington Brothers
(SA)
(Pty) Ltd
,
[5]
the defendant submits an aquilian action is available alongside a
contractual action only if the conduct complained of, apart from
constituting a breach of a contract, also infringes a recognised
interest, which exists independently of the contract.
(b) The defendant contends he has
pleaded an independent cause of action, unrelated to the
terms and
conditions applicable to the purchase and sale relationship and terms
and conditions concluded in the agreement between
the parties
established by annexure “A” to the particulars of claim.
(c) The plaintiff at, as a
manufacturer and seller of stock feed products through its
employees,
provided expert advice regarding a change in the defendant’s
feeding regimen. Such advice was wrong and negligently
provided.
Owing to the plaintiff’s negligent failure to exercise the
degree of care and skill which the defendant was entitled
to expect
of employees referred to in the pleadings, the plaintiff should be
held liable for such failure as he has suffered loss
as pleaded.
(d) As his claim lies in delict,
any restrictions imposed by annexure “A” to the
particulars of claim on the plaintiff’s liability do not apply
to his claim founded in delict. Consequently, his counter-claim
is
legally sustainable on the facts of the matter.
[17] In the defendant’s written heads of argument,
Mr
van Rooyen
concedes that:
(a) Clause 6.1 of annexure “A” to
the particulars of claim excludes all indirect or consequential
loss
from any cause, including but not limited to a breach of a sale
agreement or negligence on the part of the plaintiff, its
directors,
employees, agents, suppliers and contractors.
(b) Clause 6.2 of annexure “A”
limits direct loss to the purchase price of the goods sold to
the
defendant from which the liability or claim arises.
(c) The general terms and conditions of
annexure “A” to the particulars of claim applied to
the
sale of goods by the plaintiff to the defendant as is evident from
the preamble to the general terms of annexure “A”.
[18] From the pleadings and para 6 of
the written heads of argument submitted by the defendant, it
is clear
that the defendant’s counter-claim is based in delict, and that
he seeks to hold the plaintiff as manufacturer and
seller of stock
feed products, vicariously liable for the wrongful and negligent acts
of the plaintiff’s servants which he
submits is completely
unrelated to the sale of goods by the plaintiff to the defendant. He
submits the general terms and conditions
of annexure “A”
and annexure A itself “constitute the express context of the
contractual relationship between
the parties”. Consequently,
it is for these reasons that the defendant submits his counter-claim
is legally sustainable
on the facts of the matter.
[19] Mr
Hoar,
who appeared for
the plaintiff, submitted that it was not necessary for the court to
decide on the issue of the enforceability
of the contractual
disclaimer contained in clause 6 of the agreement, as the defendant
was faced with a more fundamental problem
in the pursuit of his
counter-claim founded in delict.
[20] In essence, the plaintiff
submitted:
(a) That our courts recognise a
concursus actionum
and that the same set of facts may give
rise to a claim both in contract and in delict. If a party elects to
plead their claim
in delict, it must independently satisfy all the
requirements for a delictual claim, including both pleading and
establishing wrongfulness.
(b) In this regard, the plaintiff
similarly relies on the decision in
Lillicrap
above at
496D-497B;
(c) As the defendant has not pleaded that he
suffered a loss arising directly from the damage to his property
or
injury to his person and the claim is one in essence which relates to
a loss of profits, it amounts to a claim for pure economic
loss. In
respect of a claim for pure economic loss, no presumption of
wrongfulness arises.
(d) In actual fact, in his attempts to plead
and establish wrongfulness on the part of the plaintiff, the
defendant relies on an alleged infringement by the plaintiff of its
contractual duties as pleaded in para 8(a) to (d) of his
counter-claim.
(e) In the counter-claim, the defendant did
not plead nor could he possibly contend that the plaintiff
owed him a
duty to furnish advice outside of the contractual relationship which
existed between the parties. The defendant pleads
the plaintiff’s
conduct was wrongful as it breached the contractual duty of care
which existed between them and relies exclusively
on the breach of
the contractual duty to establish wrongfulness on the part of the
plaintiff.
(f) As our courts have declined to
extend liability in delict to include a situation where wrongfulness
is based purely on the breach of a contractual duty, the defendant’s
counter-claim is legally unsustainable.
[21] It is perhaps useful at this juncture to consider
how the legal framework against which the issue is to be determined
has developed. In
Trotman & another v Edwick
,
[6]
Van den Heever JA held as follows:
‘
A
litigant who sues on contract sues to have its bargain or its
equivalent in money or in money and kind. The litigant who sues
on
delict sues to recover the loss which he has sustained because of the
wrongful conduct of another, in other words that the amount
by which
his patrimony has been diminished by such conduct should be restored
to him
.’
[22] In
Lillicrap
above at 496F-I the court held
the following:
‘
In
modern South African law we are of course no longer bound by the
formal actiones of Roman law, but our law also acknowledges
that
the same facts may give rise to a claim for damages
ex
delicto
as well as
one
ex contractu
,
and allows the plaintiff to choose which he wishes to pursue. See
Van
Wyk v Lewis
1924 AD
438
;
Hosten (op cit
at 262); R G McKerron
Law
of Delict
7th ed at
3; J C van der Walt in Joubert
The
Law of South Africa
vol 8 para 5 at 7 - 11. The mere fact that the respondent might
have framed his action in contract therefore does not
per
se
debar him from
claiming in delict. All that he need show is that the facts pleaded
establish a cause of action in delict. That
the relevant facts may
have been pleaded in a different manner so as to raise a claim for
contractual damages is, in principle,
irrelevant.’
[23] In
Holtzhausen v ABSA Bank Ltd
,
[7]
Cloete JA explained the
ratio decidendi
of
Lillicrap’s
case as follows:
‘
Lillicrap
decided that no claim
is maintainable in delict where the negligence relied on consists in
the breach of a term in a contract.
That is quite apparent from
what was said by Grosskopff AJA at 499A–501H. The passage
begins:
“
In applying the test of
reasonableness to the facts of the present case, the first
consideration to be borne in mind is that the
respondent does not
contend that the appellant would have been under a duty to the
respondent to exercise diligence if no contract
had been concluded
requiring it to perform professional services.”
The learned judge emphasised at
499D–F:
“
The only infringement of
which the respondent complains is the infringement of the appellant’s
contractual duty to perform
specific professional work with due
diligence; and the damages which the respondent claims, are those
which would place it in the
position it would have occupied if the
contract had been properly performed. In determining the
present appeal we accordingly
have to decide whether the infringement
of this duty is a wrongful act for purposes of Aquilian liability.”
The following passage written by
JC van der Walt in Joubert (ed)
The Law of South Africa
vol 8
para 5 was approved (at 499I):
“
The same conduct may
constitute both a breach of contract and a delict. This is the
case where the conduct of the defendant
constitutes both an
infringement of the plaintiff’s rights
ex
contractu
and a
right
which he had independently of the contract
.”
(The italics were added by the
learned judge.)
The judgment went on to point
out (as 500A–B) that:
“
Apart from the judgments
in
Van Wyk v Lewis
(supra) this Court
has never pronounced on whether the negligent performance of
professional services, rendered pursuant to a contract,
can give rise
to the
action legis
Aquiliae
.”
The learned judge then gave
reasons why Aquilian liability should not be extended to cover the
respondent’s claim (at 500F–501G)
and concluded (at
501G–H):
“
To sum up, I do not
consider that policy considerations require that delictual liability
be imposed for the negligent breach of
a contract of professional
employment of the sort with which we are here concerned.”’
[24]
In
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
,
[8]
Harms JA held the following in regard to pure economic loss:
‘“
Pure
economic loss” in this context connotes loss that does not
arise directly from damage to the plaintiff’s person
or
property but rather in consequence of the negligent act itself, such
as a loss of profit, being put to extra expenses, or the
diminution
in the value of property
.’
(Footnote
omitted)
[25] In
Viv's Tippers (Edms) Bpk
v Pha Phama Staff Services (Edms) Bpk h/a Pha Phama Security
,
[9]
Lewis JA held as follows:
‘
Where
economic loss arises from a breach of contract, loss will of course
be limited. But a negligent breach of contract will not
necessarily
give rise to delictual liability. This court has held that where
there is a concurrent action in contract an action
in delict may be
precluded:
Lillicrap,
Wassenaar and Partners v Pilkington Brothers SA (Pty) Ltd
.
But that case held only that no claim is maintainable in delict when
the negligence relied on consists solely in the breach of
the
contract. Where the claim exists independently of the contract (but
would not exist, but for the existence of the contract),
a delictual
claim for economic loss may certainly lie
.’
(Footnote
omitted)
Analysis
[26]
The issue to be decided is whether the defendant relies on a
negligent breach of the contract,
which will not necessarily give
rise to delictual liability, or whether his counter-claim exists
independently of the contract.
As mentioned earlier on, it is common
cause that the defendant’s counter-claim is based in delict and
more importantly constitutes
a claim for pure economic loss.
[27] That being so, it is incumbent on
the defendant to satisfy all the requirements for a delictual
claim,
including establishing wrongfulness on the part of the plaintiff. In
a claim based on pure economic loss, there is no presumption
of
wrongfulness. As correctly submitted by Mr
Hoar
, the defendant
in an attempt to establish wrongfulness on the part of the plaintiff,
relies on the alleged negligent breach of
the contract by the
plaintiff,
alternatively,
the breach of the duty of care (a
form of negligence) to establish wrongfulness.
[28] The defendant consequently relies
on the contractual relationship between him and the plaintiff
to
sustain his counterclaim. He has not pleaded an independent cause of
action unrelated to the terms and conditions of the contract
concluded between the parties. In addition, clause 6.1 of the
agreement clearly excludes any claim for loss of profits based on
negligent conduct by the plaintiff and/or its employees, and its
contractual damages are limited to those set out in clause 6.2
of the
agreement. This much the defendant concedes.
[29] From the pleadings and from para 6 of the written
heads of argument submitted by the defendant, it is clear that
his
counter-claim is based in delict. Apart from the fact that his claim
is unsustainable in law, the defendant cannot, in my view,
escape the
consequences of clause 6.1 of the agreement and more importantly, he
has failed to plead any wrongfulness on the part
of the plaintiff
other than a breach of the contractual duties owed by it to him,
which is impermissible. The counter-claim is
therefore unsustainable
in law, as it is a claim based in delict relying on the breach of
contractual terms, which is unsustainable
based on the facts of this
matter.
Conclusion
[30]
The matter was argued on 17 September 2018 and judgment reserved. At
the hearing of the matter,
I requested an enlarged and clearer copy
of the agreement annexed to the particulars of claim. Such copy was
provided in October
2018.
[31] As the parties agreed that in the
event of this court finding the defendant’s counter-claim
being
unsustainable, then the plaintiff is entitled to judgment in the
amount claimed in the summons together with interest and
costs.
[32] In the result, the following order
will issue:
[32.1] Judgment is
granted in favour of the plaintiff against the defendant for:
1.1
payment of the sum of R698 891.78;
1.2
interest on the abovementioned amount at the rate
of 11,5% per annum from 30 September 2010 to date of payment; and
1.3
costs of suit on the scale as between attorney
and own client.
[32.2] The
defendant’s counterclaim is dismissed with costs on
the scale
as between attorney and own client
Henriques J
CASE
INFORMATION
APPEARANCES
Counsel for
the Plaintiff
: Advocate
Stuart Hoar
Instructed
by
: Cox
Yeats
21 Richefond Circle
Ridgeside Office Park
Umhlanga Ridge
Ref: S Watson/ja/3V395/074
Tel: 031 536 8500
Fax: 031 536 8088
Email: swatson@coxyeats.co.za
Counsel for
the Defendant
: Adv R M
van Rooyen
Instructed by
: Venns
Attorneys
Suite 301 A
3
rd
Floor, Cowey Park
91 to 123 Problem Mkhize Road
Essenwood, Durban
Tel: 033 355 2189
Email: gaild@venns.co.za
Dates of Hearing
: 17
September 2018
Date
of Judgment
: 5
November 2019
[1]
See defendant’s conditional claim-in-reconvention para 8, page
57 of the index.
[2]
See plaintiff’s notice in terms of 37(4) para 8, page 19 of
the index to
rule 37
documents.
[3]
See defendant’s reply to plaintiff’s notice in terms of
rule 37(4)
, page 32 of the index to
rule 37
documents.
[4]
My translation
[5]
Lillicrap, Wassenaar and Partners v Pilkington Brothers
(SA)
(Pty) Ltd
1985 (1) SA 475 (A),
[6]
Trotman & another v Edwick
1951 (1) SA 443
(A) at 449A-C.
[7]
Holtzhausen v ABSA Bank Ltd
2008 (5) SA 630
(SCA) para 6.
[8]
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 1.
[9]
Viv's Tippers (Edms) Bpk
v Pha Phama Staff Services (Edms)
Bpk h/a Pha Phama Security
2010 (4) SA 455
(SCA) para 7.