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2014
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[2014] ZAFSHC 39
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Pieters v Edeling (A71/2013) [2014] ZAFSHC 39 (20 March 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A71/2013
In
the matter between:
LUITHA
MAGARETHA
PIETERS
........................................................
APPELLANT
versus
WILLEM
EDELING
.............................................................................
RESPONDENT
CORAM:
NAIDOO, J et MONALEDI AJ
JUDGMENT:
NAIDOO, J
DELIVERED
ON: 20 March 2014
JUDGMENT
[1]
The appellant sued the respondent in the Bloemfontein Magistrate’s
Court for payment of R70 000.00, together with interest
and costs, on
the basis of an oral agreement that she had entered into with the
respondent. Her claim was dismissed with costs.
The appellant appeals
against that judgment. She was represented in this court by Mr W
Gibbs and the respondent was represented
by Mr AJR Van Rhyn
[2]
In her summons, the appellant alleged that on 29 December 2008 she
and the respondent entered into the agreement, in terms of
which she
purchased from the respondent a horse named Sahara for R70 000.00.
She alleged that the following were the express, alternatively
tacit
terms of the agreement:
2.1
the horse must be suitable for the purpose for which it was to be
used, namely endurance racing;
2.2
a veterinarian must examine the horse within a reasonable time after
the conclusion of the contract, for the purpose of determining
whether the said horse possessed the physical strength/ability to
participate in endurance races.
2.3
the purchase price of R70 000.00 was payable upon delivery of the
horse to the appellant.
[3]
The appellant took delivery of the horse on 29 December 2008 and paid
the respondent R70 000.00. She took the horse to a veterinarian
(the
vet) on 27 January 2009 and the examination of the horse by the vet
revealed that
3.1
The horse had old injuries in the joints of her legs, and
3.2
The horse was not suitable to participate in endurance racing
[4]
The respondent denied the terms and conditions of the agreement as
alleged by the appellant. He however, pleaded in the alternative
that
it was a specific term of the agreement between him and the appellant
that, immediately upon delivery of the horse to her,
she would take
the horse to the vet for an examination to determine the general
state of its health. The respondent also pleaded
that it was
pertinently agreed between the parties that should the appellant fail
adhere to this term, then she assumed the risk
and forfeited her
right to cancel the agreement.
[5]
The respondent pleaded further that the appellant acted contrary to
the agreement between them by failing to take the horse
to the vet
immediately upon taking delivery of it, and that she kept the horse
in unsafe conditions for a month or more. Consequently,
the appellant
forfeited her right to cancel the agreement, and the respondent was
under no duty to take the horse back. I pause
to note that no
evidence was placed before the court to support the allegation that
the appellant kept the horse in unsafe conditions.
[6]
It is common cause that the appellant had the horse in her possession
for approximately a month before she took it to the vet
for the
examination agreed upon. Her evidence is that the only vet she would
allow to do an examination on any of her horses was
a Dr Roy
Gottschalk, and that it was agreed upon between the respondent and
her that Dr Gottschalk would examine Sahara. She took
delivery of the
horse during the Christmas holiday period, as a result of which she
was unable to secure an appointment with the
vet until 27 January
2009. It is apparent from her evidence that her daughter, for
whom the horse was purchased, rode the
horse once during that month
for a distance of not more than eight kilometres. This was confirmed
by the plaintiff’s daughter,
Ludrie, in her evidence. Ludrie’s
further evidence was that she was not aware if anyone else rode the
horse during that period.
[7]
The transcript of a telephone conversation between the parties on 27
January 2009 forms part of the record. The telephone conversation
was
apparently recorded by the respondent without the knowledge or
consent of the appellant, such transcript having been introduced
into
the record without objection from the appellant. During the said
conversation the respondent said that he had asked the appellant
to
have the horse examined by a vet within three days. This was denied
by the appellant, and during the conversation, the agreed
time period
for the examination of the horse by the vet seems to have
metamorphosed from “dadelik” (immediately) to
“so
gou as moonlik” (as soon as possible) to “binne ‘n
redelike tyd” (within a reasonable time) after
the appellant
took delivery of the horse. At one point during this conversation,
the respondent alleged that he had said to the
appellant that she
must take the horse immediately for the vet check and that she should
not come back after a month and say that
there is a problem with the
horse. She then placed in context that he had made this statement in
justification of his refusal,
when she requested him to lend her the
horse so that her daughter could ride it, and that the respondent did
not make this statement
in relation to the purchase of the horse.
[8]
Dr Roy Gottschalk, whose expertise was undisputed, practises, with
his wife as a veterinarian in Gauteng. Although his wife,
Dr Murray,
performed the examination on Sahara, he was present and they were in
agreement regarding the findings in respect of
Sahara’s
condition. In summary, Dr Gottschalk testified that the horse was
found to be lame and unsuitable to participate
in endurance racing
competitions. The main finding was that in the left hind fetlock
joint there was bone fragment which resulted
in a condition called
osteochondrosis. Dr Gottschalk’s evidence is that this was a
longstanding problem that could not have
occurred in a few weeks or
months. It is a condition that would probably have existed since the
horse was very young. He also opined
that this could be due to a
fracture that had occurred a long time ago. A fresh fracture would
appear differently to what he had
observed. He found other problems
which were chronic and longstanding, namely changes in the sesamoid
bones and ligaments related
thereto. He described these as old
lesions, which occur over months, and not days or weeks. His
conclusion is that these were pre-existing
injuries. Another
injury he noticed was bruising under the hoof wall on the front leg
of the horse. His view was that bruising
takes several months to
clear and he could not say that this was a fresh bruise. Put
differently, he could not say it occurred
in the month prior to his
examining Sahara, in spite of being pressed to do so under cross
examination.
[9]
The respondent in his evidence asserted that the agreement between
him and the plaintiff was that she would take the horse immediately
upon delivery for the vet check, as the examination was referred to
in the evidence. He warned her that this must be done because
he does
not want her to come back in a month and say that there is a problem
with the horse. He denied that there was any talk
or agreement that
Dr Gottschalk would be tasked with undertaking the examination of
Sahara. He also testified that in view of her
taking delivery of
Sahara on 29 December, he realised she may not be able to take the
horse immediately to a vet and hence agreed
that it would be within a
reasonable time after taking delivery thereof.
[10]
In summary, therefore, the following are common cause between the
parties:
10.1 The horse,
Sahara, was sold by the respondent to the appellant for R70 000.00;
10.2 Sahara was
purchased for the purpose of participating in endurance racing.
10.3 The appellant
was obliged to have the horse examined by a vet “as soon “as
possible” or “within a reasonable
time” after she
took delivery of the horse.
10.4 The appellant
took delivery of the horse on 29 December 2008 and took the horse for
the vet check on 27 January 2009.
10.5 The vet, Dr Roy
Gottschalk, found certain injuries on the legs of the horse, which
rendered it unsuitable for the purpose of
participating in endurance
racing.
10.6 The injuries
that were observed by Dr Gottschalk were old injuries.
[11]
The respondent disavows the appellant’s claim largely on the
basis of the time frame within which the vet check was done,
after
the appellant took delivery of the horse, alleging that one month
thereafter was not a reasonable time or could not be said
to have
been “as soon as possible” after delivery. As mentioned
earlier, the respondent in his plea, alleged in the
alternative to
his denial of the terms of the contract as alleged by the appellant,
that a specific term of the agreement was that
the horse would be
taken immediately upon delivery to the vet for the examination
mentioned above. From the evidence, however,
it was clear that the
respondent had intended, and the appellant understood, that the vet
check should be done within a reasonable
time or as soon as possible
after delivery of the horse. The judgment of learned magistrate
also appears to hinge on his
interpretation of what was a reasonable
time, leading him to conclude that the appellant had not fulfilled
that term of the agreement
between her and the respondent.
[12]
As correctly argued by Mr Van Rhyn in his Heads of Argument, the
determination of what is a reasonable time depends on the
facts and
circumstances of every case. It is common cause that the appellant
took delivery of the horse two days before the end
of December, which
is during the Christmas holiday season. Her evidence is that the
first opportunity she had to contact the vet
was on 2 January 2009,
and was given 27 January 2009 as the earliest appointment. Dr
Gottschalk testified that while his practice
is open all year round,
the December holiday period is reserved for emergency work. He was
unable to say if the 27
th
January 2009 was the earliest appointment that could be given to the
appellant, as he does not usually make the appointments. In
any
event, it was not suggested by anyone, nor was there any evidence
that the vet check that had to be done could or would have
been
treated as an emergency. It is also common cause that the appellant
had the additional problem of not being able to transport
the horse
to Johannesburg. In interpreting words, whether in statutes or in a
contract, it is trite that they should be given their
ordinary
meaning, unless doing so would lead to an absurdity or would be in
conflict with the rest of the contract. As indicated
the agreement
between the parties was that the vet check had to be done within a
reasonable time or as soon as possible. Given
that the earliest
appointment that the appellant could secure was 27 January 2009,
coupled with the transport problems that she
experienced, that was
the soonest possible date she could have the examination done on the
horse. In the circumstances that would
also have been within a
reasonable time, absent any evidence that the horse suffered any
injury while in the possession of the
appellant.
[13]
It was argued, and in fact the magistrate relied on this in making
his finding, that the appellant did not specifically plead
that it
was a term of the contract that the vet check had to be done by Dr
Gottschalk. She testified, and was supported by her
daughter, that
she mentioned to the respondent when she took delivery of the horse
that Dr Gottschalk would be the vet conducting
the examination. Dr
Gottschalk himself testified that he treats and examines all the
appellant’s horses. In my view, the
essential term of the
contract was that a veterinarian would do the examination. The
appellant’s testimony that Dr Gottschalk
would be the vet,
simply amplifies and explains a term of the contract. If the argument
on behalf of the respondent and the magistrate’s
reasoning in
this regard were to cast doubt on the probability of the appellant’s
version, then the same can be said for
the version of the respondent,
who pleaded that the specific term of the contract was that the vet
check would be done immediately,
while his viva voce evidence
revealed otherwise, namely that the agreement was that the
examination would be done as soon as possible
or within a reasonable
time.
[14]
The magistrate, in his judgment, made no mention whatsoever of the
expert testimony of Dr Gottschalk, the only expert that
testified in
this matter. His evidence was that the injuries to the joints and
legs of the horse were old injuries which would
not have occurred in
the month or so prior to the examination. As indicated above, he
testified that these injuries could have
existed from the time the
horse was young, and may have been aggravated by hard exercise, but
that it was difficult to tell. He
said that it was also possible that
the bruise observed on the hoof of the horse could have been an old
bruise which was healing,
as the nature of bruises is that they take
several months to clear. The bruise was visible to the naked eye. Dr
Gottschalk also
said that a horse may injure itself, although this
may not be a usual occurrence.
[15]
In this regard, it is perhaps a convenient time to mention the
allegation of the respondent that the horse, Sahara, was kept
in
unsafe conditions during the month that it was in the appellants
possession. No evidence was tendered in this regard. The appellant’s
daughter Ludrie testified that she rode the horse once for a distance
of not more than eight kilometres prior to the vet check.
In any
event, she herself was recovering from an operation so she was not
able to ride the horse hard. She was not aware of anyone
else that
may have ridden the horse. She also said the that horse was kept in a
camp with a number of other horses. From the appellant’s
telephone conversation, it appears that one of the trainers may have
ridden the horse but the evidence is that it would have been
ridden
in a ring. That was the evidence with regard to the circumstances of
the horse in the time that it was in the appellant’s
possession. There was much speculation that the horse was injured or
injured itself during that period. It is perhaps also useful
to point
out that during the telephone conversation with the appellant, she
was totally unaware that the call was being recorded,
while the
respondent, being the party recording the call, was eminently in a
position to tailor his conversation and remarks to
give him maximum
benefit, especially in view of the fact that he is a practising
advocate and would have been well aware that he
intended to use the
recording to his advantage in court.
[16]
It is significant that during this telephone conversation, the
respondent mentioned that two days prior to the appellant taking
delivery of the horse, it was ridden for fifteen kilometres by
“Jorrie”, who appears to be somewhat heavier than Ludrie,
with no ill effects or sign of any problem with the horse. Ludrie’s
evidence as well as that of the appellant is that everyone
was happy
with the horse, so that it is not unreasonable to infer that the
horse was not ridden hard and hence presented with no
problems while
in the appellant’s possession. In this regard it must also be
borne in mind that the appellant took the horse
for the examination
because that was a term of the contract and not because it was
showing signs of injury. She only became aware
of the injuries after
the examination by Dr Gottschalk, which could explain her emotional
and somewhat animated state during the
telephone conversation with
the respondent. It is true that the respondent may not have known
what the appellant would say during
this conversation, but the fact
that he chose to record that particular conversation, on the day he
knew that the horse was being
taken to the vet, seems to suggest that
he was expecting some negative feedback with regard to the condition
of the horse. While
it may be so that the appellant had been told by
Mr Dingling that he would not buy a horse like Sahara, and that she
herself had
noticed some thickening in the legs, this must be seen in
the light of Dr Gottschalk’s evidence that a horse could go for
years with the sort of injury that Sahara presented with, and not
manifest signs of problems. The respondent’s evidence is
that
the horse had previously participated in endurance racing and had
been ridden for about one thousand kilometres. It had not
participated in endurance races for over a year prior to the
appellant buying it. There is nothing to suggest that Sahara’s
previous participation in such races caused the injury to the horse.
The most important aspect of Dr Gottschalk’s evidence
is that
the injuries he observed on Sahara were old injuries which would have
been present for much more than a month prior to
his examination. The
import of this evidence is that at the time the appellant took
delivery of the horse, it was not fit for the
purpose for which it
was bought, being the participation in endurance racing. Therefore,
the time when the horse was taken for
the vet check becomes less
important in the face of this circumstance.
[17]
In my view, the magistrate erred in not taking into account the
expert evidence of Dr Gottschalk, and in attaching too much
weight to
the time when the horse was taken for the examination, to the
exclusion of the expert testimony. In weighing the probabilities
in
this matter, I find the version of the appellant to be more probable,
and consequently that she has proved that, on a balance
of
probabilities, she is entitled to the relief that she seeks.
[18]
In the circumstances, I make the following order:
18.1
The appeal is upheld
18.2 The order of
the court a quo is set aside and substituted with the following:
The Defendant is to
pay to the Plaintiff:
18.2.1 the sum of
R70 000.00;
18.2.2 Interest on
R70 000.00 at the rate of 15.5% per annum from date of summons to
date of payment;
18.2.3
Costs of suit
18.3
Respondent to pay the costs of the Appeal.
18.4
The Appellant is ordered to return the horse, Sahara, to the
Respondent.
S.
NAIDOO, J
I
agree.
MONALEDI
AJ
And
it is so ordered.
Counsel
for Appellant: Mr W W Gibbs
Instructed
by: Symington & De Kok
169B
Nelson Mandela Drive
Bloemfontein
(S
Visser)
Counsel
for Respondent: Mr AJR Van Rhyn SC
Instructed
by: Stander & Partners
58 Victoria Road
Willows
Bloemfontein
(HJ
Stander)