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[2015] ZAFSHC 243
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Reynecke v Nel (A281/2011) [2015] ZAFSHC 243 (3 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION: BLOEMFONTEIN
Appeal Number: A281/2011
In the appeal
between:-
A
F
REYNECKE
Appellant
and
E
P
NEL
Respondent
CORAM:
JORDAAN,
J
et
LEKALE,
J
JUDGMENT:
LEKALE,
J
HEARD ON:
23
NOVEMBER 2015
DELIVERED ON:
3
DECEMBER 2015
INTRODUCTION AND BACKGROUND
[1]
On the 16 May 2003 the appellant and the respondent concluded a
verbal agreement in terms of which the former leased a farm
known as
Makoupan in the district of Brandfort from the latter for one year
on,
inter alia
,
the basis that upon the expiry of the lease the farm would be
restored in the same condition in which it was at the commencement
of
the contract.
[2]
During 2004 and following the expiry of the lease and evacuation of
the farm by the appellant, the respondent issued summons
against him
out of the Brandfort Magistrates’ Court for recovery of
R1 559,85 being the costs of repairs to fences,
gates and poles.
The cause of action being the alleged failure by the appellant to
restore the farm to the respondent in the same
condition in which it
was at the commencement of the lease agreement.
[3]
The appellant defended the action contending,
inter
alia
, that he
handed the farm back in a much better condition than it was when he
took it over. The trial court, however, found
against him
firstly on merits and later on quantum after separating the
litigation issues in terms of rule 29(4) of the Magistrates’
Courts Rules per agreement between the parties.
[4]
The appellant feels aggrieved by the whole judgment and now
approaches us on appeal against the same. The facts in this
appeal as to the condition of the farm when the appellant vacated the
same are effectively and largely common cause between the
parties
regard being had to the respondent’s evidence on quantum. In
the light of the view we have taken of the matter, the
judgment only
deals with issues dispositive of the appeal and not with all the
issues raised in argument by the parties.
THE
IMPUGNED JUDGMENT
[5]
In her judgment on merits the trial court found,
inter
alia,
that in the
light of contradictions in the evidence of the appellant’s
witnesses she was not convinced that the appellant
left the farm in a
better condition as alleged in his plea.
[6]
On quantum the court
a
quo
found that the
question before her was whether or not the respondent succeeded to
prove his damages on a balance of probabilities
and further that the
undisputed expert evidence tendered for and on behalf of the
respondent answered such a question in the affirmative.
THE
RESPONDENT’S EVIDENCE ON QUANTUM
[7]
The respondent effectively testified that at the commencement of the
lease the farm was livestock secure in that the fences
separating
various camps were able to keep livestock securely inside relevant
camps. Towards the end of the contract it,
however, came to his
attention that his livestock and that of his son had wandered off and
strayed onto the appellant’s land
because the fence was hanging
low and/or lying flat on the ground resulting in a confrontation
between the appellant and his son.
He proceeded to secure a
quotation from the fencing contractor and used the same to purchase
the material necessary for repairing
and/or replacing some parts of
the affected fences in the land leased out to the appellant. He
did not replace all of the
affected fences and only ensured that
livestock was controlled and kept securely inside the camps. He
did all these personally
with the help of two of his employees
although it was the appellant’s contractual responsibility to
attend to such defects.
All the work in question was done
during the currency of the lease and while the appellant was still in
occupation of the leased
property.
CONTENTIONS
FOR THE PARTIES
[8]
On behalf of the appellant Mr Greyling submits,
inter
alia,
that the
evidence tendered by the respondent went to prove a case not before
the trial court in so far as at the end of the lease
contract the
repairs had already been effected and the quantum proved, in fact,
related to an enrichment claim
and not to the
alleged failure by the appellant to return the land in the condition
in which it was at the commencement of the
lease.
[9]
Mr Roux, on the other hand, contends for and on behalf of the
respondent,
inter
alia,
that
paragraph 4 of the Particulars of Claim to the effect that the
appellant failed to return the farm in the same condition in
which it
was at the commencement of the lease does not restrict the
respondent’s claim to the condition of the farm when
the lease
terminated and that, properly interpreted, it accommodates the
respondent’s evidence as to the repairs and/or replacements
effected prior to the expiry of the contract.
APPLICABLE
LEGAL PRINCIPLES
[10]
In our law the trial court’s factual findings are presumed to
be correct unless and until they are demonstrably shown
to be clearly
wrong. (See
S
v Hadebe and Other
1997 (2) SACR 641
(SCA).)
[11]
In a civil action parties stand and fall by their pleadings as filed
with the trial court insofar as pleadings define issues
between
litigants. The
onus
on the plaintiff is to prove his claim on the balance of
probabilities by adducing evidence in support of his alleged cause of
action as set out in the summons to the extent disputed by the
defendant in his plea. (See generally
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977(3) SA
534 (A) 548)
[12]
Absolution from the instance is an appropriate order where, at either
the close of the plaintiff’s case or the close
of the case when
both parties have had the opportunity to present whatever evidence
they consider to be relevant, the evidence
available before the court
is insufficient for a finding to be made against the defendant.
The defendant gets absolved from
the instance if upon an evaluation
of the evidence as a whole, the plaintiff’s onus of proof has
not been discharged because
the plaintiff has not proved his claim
against the defendant. It is not a bar to the plaintiff
reinstituting the action in
so far as it has not prescribed. As
opposed to a positive finding that no claim exists against the
defendant “
it
is the appropriate order when after all the evidence the plaintiff
has failed to discharge the normal burden of prove
”.
(See
PRINCIPLES OF
EVIDENCE
Revised
3
rd
Edition, P J Schwikkard and S E Van der Merwe, at chapter 32, page
578.)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[13]
The respondent’s cause of action was the alleged failure on the
part of the appellant to restore the farm to the respondent
in the
same condition in which it was when he took the same over at the
commencement of the lease. The determinative stage
for the
purposes of the claim in the instant matter was, therefore, the end
of the lease when the appellant handed the farm back
to the
respondent as the lessor.
[14]
On the salient facts of the respondent’s case and in order to
succeed in his claim, it was essential for the respondent
to show
that at the commencement of the lease the fence around the relevant
camps could keep livestock securely inside the camps
in question and
that at the end of the contract that was no longer the case.
[15]
It was common cause between the parties that the relevant camps were
livestock secure at the commencement of the lease.
The question
before the court below was, therefore, whether or not at the end of
the lease the camps were still in that condition.
A reading of
the respondent’s evidence on quantum shows that the relevant
camps were in fact still secure when the appellant
vacated the farm
at the end of the lease because the respondent had repaired and/or
replaced low hanging or flat lying fences at
the cost of R1 559,85
some few weeks before the lease terminated. The court below,
thus, clearly and demonstrably misdirected
herself materially in her
finding that the respondent, as the plaintiff, proved his claim
against the appellant, as the defendant,
on a balance probabilities.
[16]
It follows, thus, that the evidence tendered in support of the claim
was insufficient to prove the cause of action relied upon
in the
summons. Mr Roux’s contention that the relevant cause of
action was wide enough to entitle the respondent to
the relief
claimed on the basis of his evidence to the effect that he incurred
the relevant costs in repairing and/or replacing
the fence some few
weeks before the farm was restored to him is, with respect, without
merit regard being had to the clear and
unequivocal wording of the
relevant paragraph read in the context of the Particulars of Claim as
a whole. In order for such
evidence to be relevant and to
entitle the respondent to the relief claimed, law and equity as well
as rules of natural justice
demanded that the cause of action be
amended in accordance with applicable Magistrates’ Courts
Rules. No such amendment was
effected and the parties were bound by
their pleadings as they stood and served before the court below.
As Mr Greyling correctly
and effectively submits, the respondent’s
evidence before the trial court established a cause of action which
was not before
the court and did not sustain the one properly before
that court.
[17]
On the evidence available to the trial court it could not positively
be said that the respondent had
no claim against the appellant.
The appellant’s prayer for dismissal of the claim was, with
respect, not supported
by available evidence. In our view
absolution from the instance was an appropriate order in the
circumstances.
COSTS
[18]
On the 2 March 2015 the appeal was removed from the roll with the
question of costs standing over for argument at a later stage.
The parties are
ad
idem
that the
reason for the removal was that copy of the impugned
judgment of the trial court on quantum was not before
the court on
that day. It is not in dispute between the parties that the
duty to place such a document before the court of
appeal was on the
appellant as
dominus
litis
in the
instant matter. Mr Roux correctly submits that fairness demands
that the appellant carry the relevant wasted costs.
On the part
of the appellant Mr Greyling effectively leaves the matter in the
hands of the court.
[19]
In conclusion it is apposite to mention
en
passant
that it is
unfortunate, regrettable and unacceptable that this matter, which
clearly and properly belonged in the Small Claims
Court, eventually
found its way to this court at, no doubt, exorbitant costs to the
parties. A lot of valuable court time
was expended on the
matter all because parties allowed their emotions to dictate their
conduct to the extent that they thought
more with their hearts than
with their heads. The matter served before members of this
division on at least three occasions
inclusive of the present
sitting. First when it was taken on appeal prematurely before
the quantum of damages was determined
and later when judgment on
quantum was not before the appeal court. It can only be hoped that
the parties learnt their
lesson and would, in future, not
burden the courts with trifles at the risk of being confronted with
the
de minimis non
curat lex
rule when
they can sort out their differences amicably between themselves.
ORDER
[20]
In consequence the appeal succeeds with costs excluding wasted costs
of the 2 March 2015 which shall be borne by the appellant.
[21]
The order of the court
a quo
is set aside and in its place and
stead is substituted the following:
“
Absolution
from the instance is ordered in favour of the defendant and the
plaintiff is to pay the costs of the action.”
_______________
L. J. LEKALE, J
I concur.
_________________
A.
F. JORDAAN, J
On behalf of
the appellant:
Adv.P DU P Greyling
Instructed by:
Steenkamp De Villiers & Coetzee
Inc.
BLOEMFONTEIN
On behalf of
the respondent:
Adv. L A Roux
Instructed by:
Symington & De Kock
BLOEMFONTEIN