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[2016] ZAGPPHC 763
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Grobler v Greenfeed Growing Systems (Pty) Ltd (61116/2013) [2016] ZAGPPHC 763 (25 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 61116/2013
DATE:
25 AUGUST 2016
In
the matter between:
GERT
FREDERICK
GROBLER
.......................................................................................
PLAINTIFF
And
GREENFEED
GROWING SYSTEMS (PTY)
LTD
......................................................
DEFENDANT
JUDGMENT
Fabricius
J,
Plaintiff
instituted action against Defendant based on the breach of an oral
agreement in terms of which it purchased a complete
semi-automated
grow-room unit. Defendant undertook to install this unit on
Plaintiff’s farm, and it was to be used to cultivate
feed in
order to feed Plaintiff’s cattle. It was alleged in the
Particulars of Claim, that at all times prior to - and at
the time of
concluding - the agreement, the Defendant represented to the
Plaintiff that the green-feed, which the Plaintiff would
be able to
cultivate in the unit, “shall”:
1.1
Contain a protein content of
21%;
1.2
Depending upon the size of
the particular cattle, a daily feed required by the cattle would be
3% - 3.5
X
of its own weight;
1.3
The cattle would show an
increase in weight of at least 2kg per day;
1.4
The production of the green-feed in the unit would be a better and
cheaper alternative to conventional dry-feed.
It
was accordingly pleaded that it was an implied term through the
operation of law that this unit would be fit for the purpose
for
which it was sold by the Defendant. Plaintiff paid the purchase price
and alleged that it planted feed in accordance with the
instruction
furnished by the Defendant, and utilised this feed in order to feed
his cattle.
It
was pleaded that the unit sold and delivered was however not fit for
the purpose for which it was sold to the Plaintiff in that:
2.1
The green-feed cultivated in
the system did not contain a protein content of 21
%,
but
only contained a protein content of approximately
2%;
2.2
The cattle did not gain 2kg
weight per day, but in fact gained no weight;
2.3
The unit could therefore not
be utilised for the purpose to cultivate green- feed for Plaintiff’s
cattle.
In
addition, so it was alleged, the unit was not fit for the purpose for
which it was sold to the Plaintiff, because the Defendant
made the
material representations that I have set out. Plaintiff acted on
these representations, so it was pleaded, and, but for
those
representations, the Plaintiff would not have entered into the
agreement with the Defendant.
Accordingly,
Plaintiff was entitled to cancel the agreement and demand restitution
upon delivery of the unit.
In
its plea, Defendant relied on a written agreement which was however a
“proforma invoice”, dated 23 November
2012. It
described the unit as a “complete semiautomated grow-room
1800kg capacity green-feed growing system excluding
building:
The
production capacity of your semi-automated grow-room unit will be I,
800 tons per day. This quote excludes the flooring, building
and
isolation requirements...”
It
is common cause that 1, 800 tons correctly meant 1, 8 tons per day.
Defendant
pleaded that the terms of the agreement were that Defendant would
supply and install this unit in an insulated building
supplied by the
Plaintiff. Plaintiff was further required to supply the necessary
water, electrical power connection, cement slab
and feed seed.
Defendant would supply a water reticulation system, grow-racks with
trays, an automated air-conditioner, automated
grow-lights,
thermometers, a floor scale and a water recycling system. The
relevant agreement was also entered into subject to
Defendant’s
prevailing terms and conditions. Defendant pleaded, and that was in
essence its case at the trial as well, that
the grow-room so
purchased and installed was in fact fit for such purpose at the time
of final commissioning of the grow-room.
It was therefore denied that
the Plaintiff had the right to cancel the agreement and demand
repayment of the purchase price.
Plaintiff
called an expert, Dr W. A. Schultheiss. His special expertise was the
relationship between nutrition, nutritional management
and health in
ruminants. Prior to the trial he delivered an Expert Notice with
reasons, dated 21 June 2015. He did not inspect
the grower on
Plaintiff’s premises. He also did not see Plaintiff's feed. He
read the Particulars of Claim and had a conversation
with Plaintiff.
His Expert Notice, significantly is introduced by the following
preamble: “My understanding is that, at the
time:
a)
The Defendant positioned
themself as an expert in the field of ruminant nutrition, and,
b)
The Plaintiff accepted, in
good faith, the claims that the Defendant made - most likely as a
result of personal communication and
claims made on the webpage of
the Defendant”.
This
rather surprising preamble clearly indicates that this witness relied
on hearsay evidence and personal impressions. There is
certainly no
factual basis laid for these allegations. It is clear from his
written reasons that he repeatedly arrived at conclusions
based on
his own impressions in the absence of personal knowledge as to what
in fact had occurred on the farm when the cattle were
fed. He
purported to give a definition of what was meant by the term “fit
for purpose”. He made conclusions as to what
was communicated
by the Defendant to the Plaintiff, in the absence of any personal
knowledge thereof whatsoever. He concluded that
cattle lost weight
and remained hungry, again without any personal knowledge thereof. He
concluded in this written reasoning, again
without any evidence, that
Defendant “acted as a nutritional advisor”. He stated
that information provided by Defendant
“is seriously lacking
precision", in contradiction to everything that he had stated
previously, he then also concluded
that “hypothetically given a
perfectly installed SGRU by the Defendant, operated perfectly by the
Plaintiff, the unit could,
under these circumstances, not termed
“DEFECT” as stated in paragraph 13.7 of the Combined
Summons document”.
He then also concluded, again, without
having had any personal knowledge thereof, the following: “Rather,
the fact that it
did not comply with the requirements ( =
EXPECTATIONS) of the Plaintiff, is, in my opinion, due to most likely
a DEFECT COMMUNICATION
by the Defendant on the exact nutritional
value of the green-feed required for a defined number of cattle
within a defined nutrient
requirement based on defined body mass and
defined production status...” The obvious question is: how
would he know this
in the absence of any personal knowledge or
investigation? He concluded that in the field of ruminant nutritional
advice and consultancy,
in particularly for cattle, there is no room
for vague, generic guidelines and sloppy communication. Again,
without having had
any personal knowledge whatsoever of the relevant
facts, he stated the following at the end of his written summary: “It
is
my opinion that the Defendant did not fully understand the exact
requirements/needs/feed resource capabilities of the Plaintiff,
or
failed to gain an insight into the needs of the cattle as a herd on a
daily basis as a whole. The sale of the SGRU was merely
pushed
through - not taken responsibility for any post-sale scientific
support and abdicating all responsibility for failures that
result
from pure communication initially, to the farmer, the Plaintiff. His
final conclusion then was that Defendant failed to
comply with his
company's own undertaking which stated that it would render a
professional service and strive to ensure that the
purchaser was
completely satisfied.
It
is almost not necessary to state that these generalisations,
moralising admonishments and opinions, are not based on any facts
that he could have been aware of at the time or even at the time of
the trial. The written reasons given for him are a good (bad)
example
of what an expert witness should not do. He should confine his
evidence, by way of assistance to the Court, to matters
within his
expertise and experience, and should rely on facts, not inferences,
assumptions and conclusions. In the absence of facts
of which he had
personal Knowledge, his views cannot even be said to be founded on
logical reasoning.
He
was examined in some length on the content of what appeared on
Defendant's website. I do not intend dealing with that, because
his
evidence as a whole is subject to the same criticism that I have
already formulated. Neither on the facts, nor in law, is there
any
basis for him concluding that Defendant held himself out as an expert
on nutrition in the present context, and that as a result
thereof he
was subject to certain duties
vis a vis
the
Plaintiff. It is therefore my view that the evidence of Dr
Schultheiss, in this instance, is of no value whatsoever. That he
usurped the function of an Advocate and even of this Court.
The
information that appears on Defendant’s website was put before
me and it is not in issue. (Bundle C page 10 to 21). Plaintiff
himself testified that he only read the part pertaining to cattle. If
this document is read as a whole, it is clear that the Defendant
warranted its product. When it gave information pertaining to
“barley/oats analysis”, by way of example, it stated
that
this information had been obtained from a third party. Similarly,
when it referred to “CATTLE FEED LOT ~ WESTERN CAPE”,
it
referred to figures supplied by a client farmer from the Western Cape
with the effective date being
]U
November
2012. It also referred to certain “feeding rations” in
the context of a table for a semi-automated device and
in such table
referred to “number of feed lot beef fed per day (1^kg per
head) for 1U3 cattle”.
Beneath
that table the following appears: “Please note, the prescribed
GFGS rations herein simply represent the normal wet-feed
ration
applied across the board on various farms by green-feed clients. It
only represents barley/oats high protein sprouts and
does not include
ad-lib access to DM (Dry Matter) like hay, straw or baled grass or
concentrates that might be included in animal
feed rations depending
on the specific animal needs”, in the context of “feeding
green-feed to beef cattle”,
it is stated on the same page
beneath that column that: “In our experience, feeding
green-feed daily at a rate of 3% to 3.5
%
of
the animal’s body weight then supplementing it with a
good-quality roughage will yield the best results”. It is clear
to me from the information on the website as a whole, that the onus
is placed on the farmer to ensure that his animals are properly
fed,
and that it is Defendant’s duty only to supply an actual unit
which was fit for that purpose. Defendant would have no
personal
knowledge of all the details surrounding a farmer’s
requirements in the context of the number of cattle, their age,
their
weight, their requirements, when and how they feed, by way of example
only, and when it referred in that document to “enhanced
nutritional value”, it gave facts which it obtained from third
party sources, and these were quite clearly stated. There
is no
evidence that these topics formed the basis of the contract between
the parties.
It
is also common cause that Defendant sent an attachment to an email to
Plaintiff which also appears in the trial bundle. (C page
22 to 26)
It is clear from the first page of this document, the author of which
is N. Kemp, who also testified on behalf of Defendant,
that Defendant
only guarantees its unit that is supplied.
Mr
Grobier testifying could in my view not contend that any single or
particular fact contained in the website document or in the
information sheet emailed to him by Mr Kemp were factually incorrect
or a misstatement of the truth. His evidence amounts to the
fact that
the Defendant successfully installed a 1.8 ton producing grow-room
unit, that he was able to grow and convert 1kg of
seed in 6.5kg of
sprouted fodder and that the grow-room delivered and installed by
Defendant did deliver in fact i.8 tons of green
fodder per day.
Mr
Kemp denied that there were a number of telephonic conversations
between him and Plaintiff during which all possible implications
were
discussed and during which he gave Plaintiff expert opinions or
advice. These calls and their content were strictly limited
to
discussions regarding seed for the grow-room unit. I am unable, on
the limited evidence before me in this context, and the conflicting,
but vague versions presented to me, arrive at any conclusions as to
what exactly was said by whom and when, and in which context
at any
particular time.
During
argument, Plaintiff’s Counsel, in the context of the cause of
action, relied on an innocent misrepresentation. As far
as the
misrepresentations are concerned, useful reference can be made to
Standard Bank
54
v
Coetzee
1981 1 SA 1131
(A) at 1135 D to G.
In
this decision, the Appellate Division held that an allegation of this
type of representation must be tested in the same way as
an
allegation of an implied or tacit term. There must therefore be
clarity concerning the exact content of the misrepresentation,
and it
must be capable of clear and exact formulation. Furthermore,
Christie, The Law of Contract, (?
H
Edition 2011 at
285,
says the following, and I
agree with that statement: “An expression of opinion which
turns out to be mistaken is not a representation,
nor is it
speculation or prophesy concerning the future, which is simply one
form of expression of opinion, so if the future does
not unfold as
forecast the other party normally has no remedy, except possibly in
delict if he can show that the statement was
made negligently”.
In the same vein, the dictum of Feetham J in
Adam v Curiewis
Citrus Farms Ltd
1930 TPD 68
, at 82 to 83,
is
relevant.
A
negligent misrepresentation was not pleaded, nor was Plaintiff’s
cause of action founded thereon. To the contrary, it is
clear from
the Particulars of Claim that Plaintiff's cause of action was based
on the allegation that the feeding unit that was
delivered was not
fit for purpose inasmuch as it did not deliver the results that
Plaintiff required, or allegedly expected. In
the absence of precise
and concise evidence as to what Plaintiff was promised or assured of
by way of telephonic conversations,
I cannot find merely from the
information provided to Plaintiff or from that contained in the
website, that Mr Kemp on behalf of
Defendant, made promises which
form the basis of the agreement between the parties, and which
induced Plaintiff to purchase the
particular feed unit. In the
absence of such evidence relating to what was discussed, or promised,
I cannot find that Plaintiff’s
cause of action has been
established. It must be remembered that what was contained in the
website, although it may have been confusing
to Plaintiff, was not of
such a nature that it can be said, and this was not even argued, that
jt formed the basis of the subsequent
agreement between the parties.
Furthermore, on the evidence as a whole, it is clear that Defendant
would not have had the requisite
knowledge of a purchaser’s
activities, and would in the nature of things have no control
thereof. Brief reference was made
to one important fact in that
context: stronger animals, when they feed at a troth, push weaker
animals aside. A Defendant would
therefore also not know, when and
how often per day an animai feeds, nor would it know what mixture a
farmer supplies to his animals.
There are numerous other examples in
this context which I do not need to refer to.
In
my view Plaintiff has not established the cause of action relied on
and accordingly absolution from the instance is granted with
costs.
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA DIVISION
Case
number: 61116/13
Counsel
for the Plaintiff: Adv A. F. Arnoldi SC
Instructed
by: Jasper van der Westhulzen & Bodenstein inc
Counsel
for the Defendant: Adv W. J. Bezuidenhout
Instructed
by: McCabe Attorneys
Date
of Hearing: 1 - 4 August 2016
Date
of Judgment: 25 August 2016 at 10:00