Amanita Premier Oils Ltd v Praysa Trade 1069 CC t/a Jumbo Peanuts (247/2007) [2008] ZASCA 59 (29 May 2008)

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[2008] ZASCA 59
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Amanita Premier Oils Ltd v Praysa Trade 1069 CC t/a Jumbo Peanuts (247/2007) [2008] ZASCA 59 (29 May 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case : 247/2007
UNREPORTABLE
In the appeal between:
AMANITA PREMIER OILS LTD
...
Appellant
(Plaintiff)
and
PRAYSA TRADE 1069 CC t/a JUMBO PEANUTS
...
Respondent
(Defendant)
Before: Cameron JA, Navsa JA, Cachalia JA, Hurt AJA and Kgomo AJA
Heard: Tuesday 13 May 2008
Judgment: Thursday 29 May 2008
Contract of sale – delivery of groundnuts – terms of contract
– court reversing factual findings of trial court – finding
in
favour of supplier / plaintiff
Neutral citation: Amanita Premier Oils v Praysa Trade (247/07)
[2008] ZASCA 59
(29 May 2008)
JUDGMENT
_______________________________________________________
CAMERON JA:
Introduction
In the High Court in Pretoria Botha J granted the respondent
(defendant) absolution from the instance on a claim the appellant
(plaintiff) brought for payment of an amount outstanding under a
contract for delivery of groundnuts. After concluding an agreement
with the defendant on 6 August 2004, the plaintiff delivered a total
of 926.54 metric tons of nuts at a price of R4 300 per ton.
Of this,
the defendant used or on-sold 886.54 tons (mostly processing it for
peanut butter). However, against invoices for R3 984
115.08, the
defendant paid only R3 078 215.79, and then stopped paying because
of a dispute about quality. After allowing for the
forty-ton remnant
the defendant has not used, and deducting R25 488.72 for bags that
were delivered wet, the plaintiff in this
appeal – pursued with
leave granted by Botha J – seeks an order for payment of R708
417.49.
In the negotiation of the contract, the plaintiff (a
Zambian-registered corporation) was represented by a local agent,
Mrs Christie
Abrahams (operating through Cypro Consulting CC), and
defendant by its member, Mr Hein Geyser. Abrahams and Geyser agreed
on nuts
of Malawian or Zambian origin, and the written sales
contract they signed specified that their ‘quality’ would be
‘hand cleaned
farmer’s grade groundnuts’.
At the trial, the primary issues were what terms the parties agreed
and whether the quality of the nuts delivered conformed with
those
terms. Abrahams testified for the plaintiff, as well as Mr Diego
Jean Maria Casilli, the director of her principal. Geyser
testified
for the defendant, and called two employees of the Perishable
Products Export Control Board (PPECB),
1
Mr Wegner and Mr Bosman, to describe tests they performed on samples
of groundnuts to establish their quality and levels of aflatoxin
(a
dangerous fungus-produced toxin that may cause cancer in humans).
Judgment of the trial court
Botha J found that the plaintiff’s contractual performance was
deficient in that the nuts delivered were of sub-standard quality.
While the contractual specification ‘farmer’s grade’ was to
some extent ambiguous, and did not conform to an officially

recognised grading in South Africa, ‘hand cleaned’ denoted some
additional processing by hand. He endorsed Wegner’s view that
this
indicated that the nuts would be standard grade or choice grade. He
accepted Geyser’s evidence that Abrahams had provided
a sample
that he found acceptable, but that the nuts later supplied fell
short of its quality. He found that contemporaneous correspondence
undermined Abrahams’s evidence to the contrary, while
corroborating Geyser’s account that during deliveries he had
persistently
complained, with justification, about quality. In
addition, he found that PPECB tests established that the nuts had
unacceptable
levels of aflatoxin, and that the plaintiff’s
contractual performance therefore did not conform to the parties’
agreement.
Although the defendant had rejected only two loads out of 36
delivered, and used the bulk of the rest (barring 40 tons), the
trial
court found that Geyser had not accepted the nuts as adequate,
but had pressed, as he was entitled to do, for a downward price

adjustment, which the plaintiff had refused to grant. Because of the
deficient quality, the plaintiff had failed to prove that it
was
entitled to the stipulated contract price. It had also failed to
prove what it should get instead. On the pleadings and the
evidence,
it was all or nothing for the plaintiff. That it got nothing, Botha
J remarked in conclusion, was not unfair: the plaintiff
remained
free to tender adequate performance, or to offer the defendant an
adjustment of the contract price to take account of
the
deficiencies.
The evidence before the trial court
On appeal, as at the trial, the primary contest was the terms of the
parties’ agreement and the quality of the groundnuts delivered
under it. Since Casilli was out of the country for most of the
period, the plaintiff’s case on these issues rested in large

measure on the evidence of Abrahams. Conversely, since the defendant
did not call any of the staff who received or inspected the
groundnuts, nor the other authors of correspondence directed to
Abrahams and the plaintiff, the defendant’s case on these issues
rested exclusively on the account Geyser gave. Before relating
Abrahams’s and Geyser’s evidence, it may be useful first to
summarise the correspondence, since the judge attributed some
significance to it in determining the probabilities.
It was common cause that the defendant took delivery of all loads
bar two. While there were specific complaints about musty, mouldy
and wet bags (for which allowance was on the whole made in the
invoicing), only two loads were reported as wholly unacceptable,
namely those rejected on 17 September and 13 October 2004. Before
the second rejection, Geyser’s staff complained in writing
to
Abrahams on 11 October in a fax headed ‘POOR QUALITY AND MUSTY
PEANUTS’. That fax referred to loads delivered on 17 and
20
September. It also itemised 26 wet bags delivered on 7 September,
and musty peanuts delivered on 29 September.
After the second load was rejected on Thursday 14 October, Abrahams
wrote to Casilli, scolding him about quality:
‘
I am not sure what is going on,
but the truckloads we receive lately are of VERY bad quality. …
This qualifies as crush grade. The
stuff is also mouldy and wet –
this is now the 4
th
truckload we receive of this
bad quality. I will send you truck details, we demand a refund or
replacement. This does not comply with
the specifications … NO
mouldy kernels allowed. What are you guys sending us?’
(‘Crush grade’, as emerged at the trial, is the lowest grade of
groundnut, used only for oil extraction.)
On 18 October, Abrahams emailed the transporters, copying Casilli,
recording that ‘in total we received 34 truck loads, you’ll
note
load 32 … rejected. Also see the increased number of wet bags on
the last trucks.’
On 26 October, the defendant again wrote complaining to Abrahams
about sixteen musty bags of peanuts delivered the previous day.
On
12 January 2005 the defendant faxed Abrahams adding mention of a
further eleven musty bags received on 25 October, stating that
‘As
we are releasing our stock, we discover a lot of musty bags’
(making a total of 27).
The defendant made three payments for the nuts delivered: it paid
for the first ten loads (delivered according to Abrahams’s
contemporaneous hand-written notes between 25 August and 13
September) on 14 October; a second payment on 10 November (for loads
delivered from 20 to 28 September); and a third on 22 December 2004
(for loads delivered on 28 and 29 September). The payments
therefore
covered what the defendant received until the end of September. No
payments were made for loads delivered thereafter.
On 1 December 2004, before the defendant’s third payment, Abrahams
wrote to the defendant that Casilli, who was about to visit
South
Africa, was ‘not at all happy with the rate of payments [that]
have been received’: ‘He wants a written undertaking
from [the
defendant] as to when final payment can be expected’. Abrahams
added: ‘We also need to discuss the two “rejected”
loads.
Please advise where you have off-loaded and stored these two.’
On 24 January 2005, in evident response to increasing pressure from
the plaintiff, relayed through Abrahams, to settle the outstanding
amount, Geyser directed a significant communication to Casilli:
‘
Up to now we never made any
promise to anybody about payment and settlement to you before end of
January 2005.
You have not been prejudiced in this relationship as far
as we know.
What we did was to make payments to Cypro Consulting who
then distributed the money.
It will be a pity if you take this matter to a legal
status, as it will delay the settlement of the account, which I
presume nobody
wants.
As I have told your Cypro representative I can’t make
a promise of a settlement date because of unexpected late payments by
our
customers. I am prepared to make a promise for a final settlement
not later than the 21
st
of
March 2005.
I hope you will find this in order.’
On 2 February 2005, Geyser wrote to the plaintiff’s attorneys that
there was a ‘quality problem’ which was being investigated,
and
that the results would be known shortly: ‘Further I wish to draw
to your attention that your client is indeed aware of the
quality
problem and that it was pointed out to him by Cypro.’
2
On the same day, the plaintiff’s attorneys advised Casilli of this
communication. Casilli replied indignantly that ‘There is
now no
compromise’, and ‘We have case of FRAUD by Cypro’.
On 4 February 2005, Abrahams, Geyser and Geyser’s wife met the
plaintiff’s attorney at Abrahams’s home. The attorney relayed
to
Casilli the defendant’s offer from this meeting:
‘
On Monday 7 February 2005 R100 000
will be paid into my trust account.
On 3 February 2005 the peanuts were “smoked” and
they have to be kept under sails for ten days, which means that on 14
February
2005 the peanuts will be uncovered.
On 15 February ACE [the inspection arm of the bankers
financing the defendant’s transaction] will go to the storing
facilities and
grade the peanuts. Apparently 10%-15% of the peanuts
cannot be used. Mr Geyser is meeting with the bank as we speak.
Total losses of peanuts that cannot be used will be
given to us via the grading of ACE and an independent grader and the
amount outstanding
will then be reduced with the amount of peanuts
that cannot be used. I received samples of the batches of peanuts
delivered, according
to ACE the [toxin] amount is too high.
I am advised that these losses (initially) of peanuts
not used by Jumbo can be recovered by you, according to the contract
that you
have with your suppliers … is this correct?
Once the amount is reduced one third of the amount
outstanding will be paid to you (includes the R100 000 on trust), on
18 February
2005.
On 20 March 2005 the rest outstanding will be paid over
to us.
This is what is on the table. Is this acceptable to
you?’
This offer the plaintiff rejected. An email he directed on 5
February 2005 jointly to Geyser and Abrahams indicated that he
blamed
them both for the unacceptable offer, and that he planned to
institute action against both of them. The next day, Sunday 6
February,
Abrahams wrote a reproving letter to Casilli:
‘
You knew the quality of the
product was not as per the contract. It was even pointed out to
Farmer’s World [the plaintiff’s supplier].
Please do yourself a
favour and read the [joint venture] you have with Farmer’s World
with emphasis to quality aspects. They NEVER
cleaned the groundnuts,
it was farmer’s grade stuff they supplied and you were made aware
of it.’
The next day, the plaintiff’s attorneys sent a letter of demand to
Cypro, rejecting further negotiations, and demanding payment
of the
full outstanding amount by the next day. The defendant itself
responded to this letter, through a letter from its attorneys
dated
8 February 2005. It claimed that the groundnuts were defective
because they did not conform to the ‘hand picked select’
quality; instead, ‘the supply delivered to our client was
“farmer’s stock”’. The latter term was novel to the parties’
interactions. In evidence, Geyser explained that it denoted peanuts
merely shelled by the farmer, but not cleaned, nor cleared
of broken
or halved kernels, skins, shells, sticks, stones; so ‘any thing’
(‘
enige ding’
) could be inside the bags. The letter
proposed that the disputed stock be sifted and sorted, and that an
accounting be done thereafter.
The plaintiff found this unacceptable. Summons was issued and served
just over two weeks later. The defendant pleaded that the
parties
had agreed that the nuts would be hand-selected and choice grade,
that they would conform to specified sizes, and be fit
for human
consumption. (The defendant initially counter-claimed for a price
reduction of 20%, plus labour costs of R894 250 incurred
because of
the disputed deficiencies, but abandoned this on the first day of
trial.)
Against this background of written evidence, I now return to the
parties’ conflicting accounts of what occurred when the contract
was concluded and while the nuts were being delivered. Abrahams
testified that ‘farmer’s grade’ groundnuts emanated from
small-scale farmers in Malawi or the bordering areas of Zambia who
produced cash crops on farms smaller than a hectare. The relevance
of this lay in the quality of the nuts, and the state in which they
were shipped. The producers hand-shelled the nuts, and separated
foreign matter from them. Later, the product was again hand cleaned
by women workers at central collecting depots, who removed
twigs,
shells, leaves, stones. Casilli testified that these were
hand-shelled nuts, sorted and cleaned by hand to the minimum

specification, ‘as low as you can get from the field’; it was
not a graded, sorted product. Farmer’s grade, Abrahams emphasised,
was to be distinguished from other grades such as crush and choice,
and grades that specified different sizes. She was emphatic
that it
was not equivalent to choice grade.
She explained that she negotiated price, grade, quality and delivery
with Geyser for a first, near-identical, supply contract that
she
concluded with him in Cypro’s own name. When Geyser said he needed
more nuts, she concluded a second contract with him –
the one in
issue – on behalf of the plaintiff. She was adamant that though
she knew that the defendant wanted the nuts to process
into peanut
butter, there was no agreement that they would be choice grade, or
‘hand picked select’. The nuts had been hand
cleaned, but not
sorted – that remained to be done after delivery. ‘Farmer’s
grade’ was all that the plaintiff undertook
to deliver, and that
was what it did indeed deliver.
Abrahams insisted that to Geyser’s knowledge it was impossible to
determine or control aflatoxin levels in groundnuts imported
from
Africa: it was for this reason that the written agreement made no
reference to it.
Geyser testified that he needed groundnuts during mid-2004, which
was a time of great shortage (‘… ’
n baie groot skaarste aan
grondbone. Die oes daardie jaar was nie na wense nie’
). He
expressly ordered edible grade (‘
eetgraad’
) nuts. This
entailed that they would be choice grade. He also specified that
aflatoxin levels had to be acceptable: Abrahams assured
him this
would not be a problem. He showed her exactly what ‘choice grade’
was, and she brought him samples that were excellent,
top-grade. He
was prepared to pay R4 300 per ton because no cent would be required
for further cleaning.
Yet, Geyser recounted, he realised at the time of the very first
deliveries (‘
van meet af
’, that is from 25 August 2004)
that the nuts delivered were quite different from those previously
supplied under the contract
with Cypro: they were much smaller, with
many shrunken kernels and a tremendous level of impurities such as
sticks, stones, insects
and other objects. He telephoned Abrahams to
object. On various occasions he told her that he was extremely
unhappy with the quality
– the nuts were at face value (‘
op
sigwaarde’
) not what had been agreed. He told her that the
product delivered must be removed (‘
die goed moet weg’
);
he declined her request to store them for her, but she responded
that she had no place to do so, and the delivery trucks were
now
being used elsewhere.
Geyser recounted that Abrahams visited his plant to inspect samples
of the unsatisfactory nuts (he mentioned 11 September as the
date of
the first such visit, which, as the cross-examiner pointed out to
him, was early, after the first nine deliveries; though
the samples
are first mentioned in defendant’s fax of 11 October). Abrahams
repeatedly assured him that she would sort out the
quality issue and
that he could trust her. He should first process the previous
contract’s nuts; they would then negotiate when
he needed to
process the unsatisfactory nuts and put the matter right (‘
en
dit regstel’
). However, he made no payments after the December
payment because of the quality objections.
He refused to accept the two expressly rejected loads because their
standard was of an ‘extremely clear, obvious, terribly bad
quality’ (‘
uiters duidelik, ooglopende, verskriklike swak
kwaliteit’
). Their rejection was designed to make a
‘statement’ because Abrahams had disregarded his previous
complaints.
Geyser testified that apart from the 40 tons still extant, he
processed about half of the nuts delivered, mixing them with ‘clean’
nuts sourced elsewhere to bring down aflatoxin levels. The remainder
(420 tons) he sold to a farmer for R200 000 (barely one-tenth
of the
purchase price). His financing bankers, to whom Abrahams (acting for
Casilli) had introduced him, had advanced the (discounted)
financing
for all 36 loads received, bar the two expressly rejected.
Assessment of the evidence
The onus rested on the plaintiff to establish the terms of the
contract it sought to enforce – that is, the written contract
Geyser and Abrahams signed. The first question is thus whether, as
the defendant sought to establish, the parties’ agreement
in fact
provided that the nuts would be hand-selected and choice grade.
Geyser testified that his express stipulation with Abrahams
was for
first-grade, top-grade, choice nuts of ‘hand-picked select’
quality. The major obstacle to this version lies in the
express
written terms: ‘hand cleaned farmer’s grade groundnuts’.
Geyser stated in cross-examination that he was a careful
businessman: ‘Normally we would have set out every jot and tittle,
because that is how I normally do my business’.
3
On this occasion, however, he did not: ‘The conditions from my
side, these are not written here, like many things are not written
here’.
4
The reason, he testified, was that ‘I said to her, shouldn’t we
rather set out everything, and she said to me, but then you
make it
very complicated and later that will cause problems … she assured
me that I did not need to worry because after all we
would not have
problems’.
5
This highly damaging detail – which, as counsel rightly conceded,
essentially entailed that Abrahams lied to Geyser and cheated
him –
was never put to Abrahams during an extensive cross-examination.
That is the first obstacle to its acceptance. The second
is that it
is inherently improbable. The basis on which Geyser claimed Abrahams
persuaded him not to record his express stipulation
for ‘choice’
nuts – that it would ‘complicate’ matters – is hard to
credit. Geyser was a sound and self-reliant businessman.
That he
would defer to Abrahams on such an important issue, for such a
flimsy reason, is difficult to accept.
In short, if securing choice grade nuts was as vital to Geyser as he
claimed, and he told Abrahams this, the likelihood is that
the
written agreement would have reflected it. Instead, it contained
something very different. It is therefore probable that the
parties
agreed only, as the contract recorded, that the nuts were to be
‘hand cleaned, farmer’s grade’ quality.
What did this demand of the supplier? As Botha J rightly observed,
the description contains some ambiguity, predictably reflected
in
the parties’ differing accounts at the trial. Abrahams insisted
that it meant something different from, and inferior to, choice
grade, or ‘hand-picked select’ (the category familiar to the
PPECB): they would be something less than the best.
Wegner’s evidence in this regard was that ‘hand cleaned farmer’s
grade’ was not a known term within the grading regulations
the
PPECB applies. The weight his evidence can carry in relation to the
parties’ own characterisation of their contractual specification
is thus limited. However, he regarded the specification as ‘a
little misleading’ (‘’
n bietjie misleidend’
) since
‘farmer’s grade’ would refer to a product that was not
necessarily selected into classes or grades. He added however
that
‘hand cleaned’ would suggest to him (‘
sou weer vir my vat
na’
) a product that was not merely machine cleaned, but hand
cleaned, thus suggesting choice or standard grade (‘
wat dus op
die keur of standaard graad spesifikasies ‘n aanduiding sou gee’
).
A factor bearing considerably on the probabilities here is Geyser’s
own account that there was a severe shortage of groundnuts
in
mid-2004 because of crop shortages. This explains why the nuts were
sourced from central Africa (and not from Geyser’s previous
suppliers, all of whom seem to have been South African), and it
points to his being willing to accept a contract embodying what
Abrahams was able to supply, on the terms she offered, and at the
price Casilli quoted. It also points away from Geyser’s insistence
that the agreed price (R4 300 per ton) necessarily denoted top-grade
nuts.
Also significant is Geyser’s own conversance with what he termed
‘farmer’s stock’, a grade he explained included impurities
along with shelled nuts. The terminological resonance between
‘farmer’s grade’ and ‘farmer’s stock’ does not appear
incidental. It seems likely that Geyser must have known when terms
were agreed that ‘farmer’s grade’ entailed less than choice
grade. ‘Hand cleaned’ suggests an additional process of manual
cleansing, as Abrahams described in her evidence. But it does
not
mean ‘hand selected’, which necessarily connotes a measure of
sorting, since it was common cause at the trial that the
nuts were
not expected to be sorted.
The crucial question is to what extent the nuts delivered conformed
with what the plaintiff undertook to supply. Two things are
beyond
contest. First, at least two loads did not conform: those Geyser
rejected on 17 September and 13 October. Second, Geyser’s
staff
expressly complained in writing, on more than one occasion, about
wet bags and mouldy peanuts: but each time they did so
they
specified precisely the details of the loads and numbers of affected
bags.
The written details bear on whose testimony is more probable. Geyser
testified that from the outset he complained repeatedly about
the
quality of the nuts that were delivered. A difficulty is that this
account did not square with what defendant’s counsel put
to
Abrahams. She was told in cross-examination that Geyser would
testify that he had complained continually from about the end
of
September (‘
van ongeveer einde September af deurlopend’
).
This suggests not only that the complaints started later, but that
they were more isolated, than Geyser’s evidence sought to
portray,
and thus that he coloured his account with some measure of
overstatement.
Abrahams confirmed that she visited Geyser’s plant north of
Pretoria to inspect samples of deficient nuts, though she was not
present when they were drawn. She linked her recollection of this
visit to receipt of the defendant’s letter of 11 October, where
the samples are first mentioned, and which complained about ‘poor
quality and musty peanuts’. Abrahams testified that she accepted
that the complaints and samples were related to the specific loads
itemised in that letter, namely the expressly rejected load
of 17
September, and the load delivered three days later on 20 November.
As she bluntly stated, ‘There was no reason not to accept
this.’
6
As against this, it is difficult to accept Geyser’s evidence,
lacking entirely in documentary back-up, that his complaints were
insistent from the first delivery.
A further difficulty with Geyser’s evidence is that, while he
insisted that there were pronounced differences between the loads
previously supplied under Cypro’s direct contract, and those
supplied on behalf of the plaintiff, he had difficulty in
articulating
what his problem was:
‘
I can only tell you that samples
were in fact drawn [from every load] and that I saw … here is a
problem with the quality and I
could not say how big the problem was
and I could not tell you what the problem was. I showed them to Mrs
Abrahams, each sample.
My people were there, we looked at them, we
talked about it and then she promised to get something done and that
it all I can say
to you, but I do not know what is in the loads
before I have put them through the [processing] machines.’
7
Geyser’s inability to specify the problems with the loads other
than those he rejected outright (and the specific complaints
about
wet and mouldy bags) suggests that quality problems, as Abrahams
indeed inferred, related only to those.
The evidence thus established that at least two of the loads and
some bags in addition did not conform with the parties’
contractual
specification; but Geyser’s evidence that virtually
all the nuts, from the outset, so deviated, cannot in my view be
accepted.
Botha J rightly considered that two of Abrahams’s written
communications to Casilli – both of which she supplied to the
defendant
when she thought the plaintiff planned to sue her – lent
support to Geyser’s complaint about the general standard of the
nuts.
These were her scolding message of 14 October 2004, in which
she claimed that Casilli had sent ‘crush grade’ nuts; and her

message of 6 February 2005 in which she stated ‘They NEVER cleaned
the groundnuts, it was farmer’s grade stuff they supplied
and you
were made aware of it’.
Of the first, Abrahams said that she was referring to the rejected
loads (given substance by the reference to ‘the truckloads
we
receive lately’), and was in any event intended to exhort the
plaintiff’s suppliers do their best amidst possible quality
variances. She pointed out moreover that she could speak with
authority only about the samples she herself had inspected (which
she believed came from the rejected loads) – she had not been
present when all the deliveries were off-loaded, and could therefore
not pronounce on them.
Regarding the January message. Abrahams reiterated that it referred
only to the rejected consignments, and that she had no personal
experience of the loads delivered, adding that she wished to get
Casilli off her back (given substance by the fact that the previous
day Casilli threatened her with legal action).
The insufficiencies in these explanations must be weighed against
the documents that undermine Geyser’s own account. That evidence
is in my view even weightier. First, it is notable that on 8
October, in finalising the financing deal with the bank, the
defendant
described the nuts that were then being delivered as
‘choice’ (the warehouse documentation records: ‘”Said to be”
Ground
Nuts (choice grade)’). Though he blamed Abrahams for this
description, the fact is that at a time when he later claimed there
were wholesale quality deficiencies he was happy to nail down a
substantial (R4.3 million) credit deal on the basis that the overall
quality being delivered was good.
Particularly destructive of Geyser’s account of long-standing and
severe quality problems is his willingness on 24 January to
offer
the plaintiff ‘final settlement’ of the amounts owed by 21 March
(with no word of complaint about quality). Eleven days
later, on 4
February, the stakes having been raised, Geyser put less on the
table: but he was still offering an immediate R100
000 plus the rest
after a price adjustment based on quality testing; this letter
recorded that ’10-15% of the peanuts cannot
be used’ – with no
suggestion that from the outset the shipment had been deficient in
its totality. In the midst of this, it
must be remembered, the
defendant on 2 February alluded only to a ‘quality problem that is
currently being investigated’ (‘’
n kwaliteitsprobleem …
wat tans ondersoek word’
). It was only on 8 February, after
open hostilities had commenced, that the defendant recorded for the
first time that the nuts
were defective because they did not conform
to the ‘hand picked select’ grade. This was also at a time when
Geyser’s own
correspondence indicated that he was experiencing
cash flow problems.
Geyser’s explanation of his 24 January message – that he was
merely coming to the aid of Abrahams because she begged him (‘
my
kom soebat’
) to make a (necessarily false) promise in order to
get Casilli off her back – reeks of improvisation. His explanation
of the
R100 000 offer – that he was amenable to settlement – is
plainly true; and perhaps the matter might have reached a juster
resolution
had the plaintiff also been amenable; but the fact that
he was willing to make this offer at all is a further indication
against
his account of general and pronounced deficiencies.
It is in my view not possible to accept Geyser’s account that he
was on the verge of rejecting all the loads all along, and wanted
to
do so, but was diverted from this intention by the repeated
blandishments of Abrahams. The likelihood is that as a strong-minded
businessman he would, on the contrary, have rejected product
unacceptable to his needs, and that he in fact did so when the
product
fell short – though only on the occasions recorded in the
written exchanges with Abrahams. His inability to explain under
cross-examination
why, in the light of his detailed descriptions of
poor quality, he had not rejected subsequent loads, bears this out.
Geyser testified that for practical reasons relating to his
store-room layout he used the Cypro-supplied nuts first, and started
using those supplied on behalf of the plaintiff after they had been
depleted: it was only then that he realised the extent of the
problem. This, as already indicated, is difficult to square with his
evidence that he was aware of the problem, and complained
insistently, from the outset. It is also difficult to square with
the fact that some loads and bags were at an earlier stage expressly
rejected. This, again, points away from the conclusion that there
was a general and acute quality deficiency.
These considerations lead to the conclusion that it is not possible
to accept Botha J’s findings on the probabilities. These
were
based on the trial judge’s view of the inherent probabilities in
the contesting versions, with strong reliance on the written
evidence. In my respectful view, this court is in as good a position
as the trial judge to assess these.
It follows in my view that the trial court should have found that:
the plaintiff established that the sole terms relating to the
product to be delivered were those contained in the parties’
written
agreement of 6 August 2004;
those terms entailed that the plaintiff would deliver farmer’s
grade nuts that were hand cleaned, but which were less than choice
grade or hand picked select;
there was no specification regarding aflatoxin levels;
barring the rejected loads and the expressly specified wet and
mouldy bags, the plaintiff in fact delivered according to
specification.
These findings make it unnecessary to consider the parties’
submissions on the difficult questions that may have arisen
regarding
the exceptio non adimpleti contractus and the attendant
possibility of price-reduction.
There is an order in the following terms:
The appeal succeeds with costs.
The order of absolution from the instance is set aside and in its
place there is substituted:
‘
(a) The claim succeeds with costs.
(b) There is judgment for the plaintiff in the amount of R708 417.49
plus interest at the rate of 15.5% on this amount from the date
of
judgment to date of payment.’
E CAMERON
JUDGE OF APPEAL
CONCUR:
NAVSA JA
CACHALIA JA
HURT AJA
KGOMO AJA
1
Perishable
Products Export Control Act 9 of 1983, s 2 of which provides that
notwithstanding the repeal of the Perishable Products
Export Control
Act 53 of 1926, the Board, established in terms of that Act,
continues to exist and to be a juristic person.
2
‘
Ook
dat daar ‘n kwaliteitsprobleem is wat tans ondersoek word en dat
die uitslag daarvan eersdaags bekend sal wees.
Verder wil ek onder u aandag bring dat u klient wel bewus is van die
kwaliteitsprobleem en dat dit deur Cypro aan hom uitgewys
is.’
3
‘
Normaalweg
sou ons beskryf het elke jota en tittel want dit is hoe ek
normaalweg my besigheid doen’.
4
‘
Die
voorwaardes van my kant af, dit is nou nie hier geskryf soos baie
dinge nie hier geskryf is nie’.
5
‘
Die
voorwaardes van my kant af, dit is nou nie hier geskryf nie, soos
baie dinge nie hier geskryf is nie, want ek het vir haar gesê
moet
ons nie maar alles beskryf nie toe se sy dan maak jy dit nou baie
ingewikkeld en later gaan dit probleme veroorsaak … maar
sy het my
verseker ek hoef nie bekommerd te wees nie want ons gaan mos nou nie
probleme hê
nie’.
6
‘
Daar
was geen rede om dit nie te aanvaar nie.’
7
‘
Ja,
ek kan net vir u se dat daar wel monsters getrek was [van al die
vragte] en dat ek gesien het dat die kwaliteit, hier is fout
met die
kwaliteit en ek kon nie se hoe groot die fout is nie en ek kon nie
vir u se wat die probleem is nie. Ek het dit vir Mev
Abrahams gewys,
die monsters apart. My mense was by, ons het daarna gekyk, ons het
daaroor gepraat en toe het sy belowe om werk
te maak daarvan en dit
is al wat ek vir u kan se maar ek weet nie wat is in die vragte voor
ek dit nie deur die masjiene gegooi
het nie.’