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[2012] ZAFSHC 241
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Trustees vir tyd en Wyl van Amm Claassens Trust v PBD Boeredienste (Edms) Bpk (A135/12) [2012] ZAFSHC 241 (14 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A135/12
In the appeal between:-
DIE TRUSTEES VIR
TYD EN WYL VAN AMM
CLAASSENS TRUST
................................................................
Appellant
and
PBD BOEREDIENSTE
(EDMS) BPK
...................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
THAMAGE, AJ
_____________________________________________________
HEARD
ON:
8 OCTOBER 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
14 DECEMBER 2012
_____________________________________________________
[1] The matter came to us
by way of an appeal against the judgment of the district magistrate
court, which was handed down in Bloemfontein
on 1 March 2012. In the
court
a quo
judgment was granted with costs in favour
of the respondent
qua
plaintiff against the appellant
qua
first defendant in respect of two separate claims. The appeal was
opposed.
[2] The trial magistrate,
Mr. T.M. Viljoen, ordered the appellant to pay to the respondent an
amount of R66 346,46 capital interest
thereon at the rate of 1,5% per
month from 1 November 2011 and the costs, as quantified, of the
action. That was the first order
as regards the first claim.
[3] The trial magistrate
also ordered the appellant to pay to the respondent an amount of R45
482,80 capital claim, interest thereon
at the rate of 1,5% per month
from 1 November 2000 and the costs, as qualified, of the action. That
was the order as regards the
second claim.
[4] The appellant was
aggrieved by the aforesaid first and second orders in respect of the
respondent’s first and second claims
respectively - hence the
trust came to this court on appeal against the whole of the judgment
and the orders which emanated from
it.
[5] The current
respondent, previously known as Delport Beherend (Edms) Bpk, was a
successor in title. The original seller was a
corporate persona
called Plaaslike Boeredienste (Edms) Bpk, which used to trade as
Greenlands. The respondent’s acquired
rights, title and
interest in the two transactions through cession in 2004. Since that
moment of cession the respondent stepped
into the shoes of the
original seller. From now on I shall refer to the respondent as if
the respondent was a party to the conclusion
of the two transactions.
[6] The first agreement
was concluded at Vanderbijlpark on 28 March 2000. The appellant
ordered 45 tons of fertilisers from the
respondent. The transaction
was evidenced by a written document, order form 24576. The
respondent’s general terms and conditions
of sale were printed
on the reverse side of the order form (annexure “a”). At
the time the parties negotiated the first
transaction, Mr. J.H.
Beyers was the proprietor of the fertiliser enterprise. He was the
managing director, while Mr. P. Janeke
and Mr. J.S. Blignaut were the
general manager and the marketing manager respectively of the
respondent. During those negotiations
the respondent was represented
by a certain Mr. P. Bester and the appellant by Mr. Claassens.
[7] The appellant carried
on certain agricultural operations on a few farms. The chief crops
cultivated on the farms were wheat
and maize. On the wheat-fields and
mealie-fields fertilisers were used to improve the quality of the
crop. Mr. A.M.M. Claassens
was the sole trustee of the appellant
trust. The order form was signed by Mr. Claassens. The appellant
tendered a post-dated (31
October 2000) cheque as a form of payment.
See p. 4 record for precise details of the first cheque. The
respondent delivered the
first load of goods to the appellant’s
farm. The first agreement was a credit transaction. The appellant’s
farm is
the Bultfontein district and the respondent’s factory
at Vanderbijlpark.
[8] The second agreement
was concluded on 26 March 2000. On that second occasion the appellant
ordered 50 tons of fertilisers from
the respondent. However, only 30
tons were actually delivered. The delivery of the remaining 20 tons
was held back pending the
appellant’s further instructions. But
the second agreement was eventually cancelled before the final
delivery (annexure “b”).
The transaction was evidenced by
a written document, order form 24577. The respondent’s
conditions of the sale were similarly
printed on the reverse side of
the second order form (annexure “c”). During the second
round of the negotiations, the
appellant, as the purchaser, was
represented by the same Mr. Claassens and the respondent, as the
seller, by the same Mr. Bester.
Once again the order form was signed
by the appellant’s representative. The respondent then
partially delivered the second
load of goods to the appellant. The
appellant again tendered a post-dated (30 November 2000) cheque as a
form of payment. For precise
details of the second cheque – see
p. 5 record. The second agreement was also a credit transaction.
[9] In due course the
respondent presented the two cheques on two separate occasions to his
bank for collection of the sale prices
from the appellant’s
bank. The first cheque was not honoured because the appellant stopped
payment on the very same day on
which the cheque was presented. The
second cheque was later dishonoured. The stopping of the first cheque
and the dishonouring
of the second cheque prompted the respondent to
apply for provisional sentence against the appellant. The appellant
opposed the
application for the provisional sentence.
[10] The respondent’s
application was unsuccessful. The respondent then amended his
particulars of claim by broadening its
cause of action in respect of
each claim. In its amended particulars of claim the respondent
averred that the appellant was indebted
to the respondent in the
aforesaid amounts of the claims, as amended, for goods sold and
delivered in terms of the aforesaid two
agreements.
This completes the
synopsis of the respondent’s pleading.
[11] The appellant,
determined to defend the action, filed its plea to the respondent’s
action. The defence put up by the
appellant was that the respondent
did not render due performance in accordance with the agreement(s) in
that the product delivered
by the respondent did not match the
product ordered by the appellant. It was the appellant’s plea
that the contents of two
of the three chemical elements,
viz
nitrate and calcium as symbolised by the alphabetical letters “N”
and “K” respectively, in the chemical
formula V21 of the
mix ordered, were inadequate. Such deficiencies in the chemical
composition of the product(s) supplied by the
respondent, rendered
the fertiliser product(s) materially defective for the purpose for
which they were purchased.
[12] It was also the
appellant’s pleaded defence that the appellant was not legally
bound by the respondent’s general
terms and conditions of sale
seeing that the appellant was unaware of such terms and conditions on
the reverse side of the order
forms. Accordingly the appellant
pleaded that in terms of the maxim
exceptio non adempliti
contractus
, the appellant was not liable to the respondent for
the payment of the money claimed.
This in brief completes
the synopsis of the appellant’s pleading.
[13] The plea of the
appellant prompted the respondent to amend its particulars of claim
again. Having done so, the respondent alternatively
replicated that
should the court find that the fertiliser delivered was defective, as
alleged or in any other respect whatsoever,
which allegation the
respondent persistently denied - then and only in that event, the
respondent averred that seeing that the
appellant had nonetheless
utilised the respondent’s incomplete performance, in other
words, defective product(s), the appellant
was only entitled to a
partial reduction and not total retention of the price money.
Those then were the
pleadings in a nutshell.
[14] There were several
disputes, factual and legal, for adjudication by the court
a quo
.
It will serve no useful purpose to exhaustively tabulate them at this
juncture. Among them the following may be fleetingly mentioned:
Whether the respondent’s
general terms and conditions formed part of each agreement;
Whether the respondent
had properly performed in terms of the sale agreement by delivering
the correct products of the right quality
to the appellant;
Whether lack of
extensive product description by means of product tag or lack of
official product registration was indicative
of complete performance
by the respondent;
Whether there was any
value to be attached to the respondent’s performance; and
If the respondent’s
performance was found to have been defective, whether the appellant
had beneficially used the respondent’s
performance its defects
notwithstanding;
Whether the appellant’s
unilateral chemical analysis report provided sufficient proof of the
respondent’s alleged
breach of the contract(s).
[15] Having heard the
evidence the court
a quo
found that the following was common
cause between the parties:
That the parties entered
into two agreements whereby the appellant purchased fertilisers from
the respondent;
That the respondent
delivered two loads of fertilisers to the appellant;
That the appellant used
all the fertilisers in its agricultural lands for the planted seeds;
That the respondent’s
agent, Mr. Bester, did not draw the attention of the appellant’s
agent, Mr. Claassen, to the
general terms and conditions of sale
printed at the back of the order forms;
That notwithstanding
such omission by the respondent’s agent, the appellant’s
agent nonetheless had ample opportunity
to read such general terms
and conditions.
[16] The court
a quo
found further found:
That the appellant’s
agent subsequently took a sample of fertilisers from a bag in the
fields during October 2010 and sent
it for chemical analysis;
That the fertiliser
sample taken after the respondent had initiated the action
proceedings, was analysed on 2 July 2011;
That the sampled
fertiliser was taken from the second load delivered to the appellant
;
That the outcome of the
chemical analysis revealed that the sampled fertiliser was
inconsistent with the loading script formula
;
That the extent of the
inconsistent deviation was substantial;
That even if the sample
taken from one of many bags was accepted as sufficiently
representative of the widespread general deficiency
in all the bags
delivered, all the same such fertilisers still had some useful value
when the appellant utilised it as such.
[17] The court
a quo
after analysing the evidence and on the strength of the aforesaid
findings identified two critical issues that fell to be determined.
The one was whether the respondent had delivered to the appellant a
fertiliser product which was qualitatively inferior for the
purposes
of successfully cultivating and producing good harvest of wheat. The
other was whether the appellant was contractually
bound by the
respondent’s general terms and conditions of sale that were
printed on the backside of the standard order forms
designed and used
by the respondent to evidence the two transactions.
[18] The court
a quo
concluded that the respondent had succeeded to establish on a balance
of probabilities that both issues had to be determined in
its favour.
The dispute was thus adjudicated in favour of the respondent against
the appellant - hence the appeal.
[19] The grounds of the
appeal were that the court
a quo
had erred in finding that:
19.1 the respondent had
discharged the onus that it had properly performed its contractual
obligations in terms of the sale agreement;
19.2 the respondent had
discharged the onus of proving that the fertiliser delivered to the
appellant was indeed the fertiliser
the appellant had ordered from
the respondent;
19.3 the respondent had
discharged the onus of proving that the appellant had consumed or
utilised the incomplete performance rendered
by the respondent;
19.4 the respondent had
discharged the onus of proving what the reduced price relative to the
extent of the defective product was;
19.5 there was no
admissible evidence tendered by the respondent to the effect that the
correct product was delivered to the appellant;
and
19.6 the adjudicative
conclusion ultimately reached by the court
a quo
concerning
the extent of the tolerance level of the chemical composition, the
elementary deviations and the magnitude thereof,
was contrary to the
respondent’s expert witness.
[20] The appellant’s
chief contention was that the respondent had defectively performed
its contractually obligations. It
has to be borne in mind that the
appellant had ordered the fertilisers for the planting of wheat on
500 hectares of land, which
was originally leased. The lease contract
was cancelled by the lessee shortly before the orders were made. The
orders were a prescriptive
mixture specifically formulated for the
appellant’s peculiar needs, but selected from the respondent’s
pricelist. Such
a prescriptive mixture was an exclusively mixture
prepared at the special instance and request of a specific farmer.
[21] The chemical
composition of each product ordered, was V21: 10.3.2 (25) + 0,2% Zn +
20% K in a 50 kg bag. Such a fertiliser
product consisted of:
Nitrogen (N) 16,7%
Phosphate (P) 5,0%
Potassium (K) 3,3%
Calcium (Ca) 3,2%
Magnesium (Mg) 1,9%
Sulphur (S) 8,0%
See the respondent’s
pricelist – p. 160 record.
[22] The loading script
formula numbers (laaimagtigings nommers) allocated to the orders were
39, 42 and 54 – (
vide
annexure “f2” in
respect of the first order and annexure “f3” in respect
of the second order). The label
on each of the two loads of the
fertiliser as delivered, read as follows: 10.3.2 (25) prescriptive
mix. The label or tag showed
the nitrate contents of the mix to be
“2.5”. However, no numerical figure was printed on the
tag to indicate the calcium
or magnesium contents of the mix
(annexure “b”). The tag did not contain any description
whatsoever of the product.
[23] As a result of such
lack of description Mr. Claassens, on behalf of the appellant, took
the matter up with Mr. Blignaut, on
behalf of the respondent. The
latter assured the former that the product was correctly mixed and
prepared in accordance with the
loading script formula
notwithstanding such lack of product description on the product tag.
[24] The loading script
formula specified the constituent elements of the product according
to the loading script formula and the
delivery note (annexure “f1”).
The proportions of the constituent elements were determined and
accordingly adjusted
in the chemical factory and not the respondent’s
chemical laboratory or outlet during the course of the manufacturing
process.
[25] According to the
loading script formula the product consisted of the following
elements.
“
38. Aldus
die laaimagtigings het produk bestaan uit:
38.1 N-Sulf: 357 (107,10 kg)
38.2 Ureum: 145 4350 kg)
38.3 MAP: 228 (6840 kg)
38.4 KCL: 66 (1980 kg)
38.5 Kalk: 199 (5970 kg)
38.6 Zn: 5 (150 kg)”
[26] As previously
indicated the first order of the fertiliser was on 11 February 2000
and delivery instructions 15 April 2000.
The first cheque in the
amount of R66 346,46 was presented for payment on 31 October 2000, in
other words, some seven months after
the delivery of the first load.
Mr. Janeke and Mr. Beyers had consented to the deferred payments at
the request of Mr. Claassens.
The appellant subsequently and
unilaterally stopped the first cheque on the day on which the
respondent presented it for payment.
The respondent reckoned that the
appellant thereby cancelled the first contract. Consequently the
respondent accepted that the
appellant, by stopping the cheque,
intended to cancel the first contract and accepted the conduct of the
appellant as such (annexure
“b”). That first cheque was
returned to the respondent unpaid. As I have already pointed out, the
payment of the first
cheque was stopped by the appellant. By then the
appellant had completely utilised the respondent’s first load
of fertilisers.
[27] The second order was
made on 11 February 2000. The second cheque in the amount of R72
049,22 was presented for payment on 30
November 2000, in other words,
some seven months after the delivery of the second load. This was so
because the sale agreement
was a credit transaction. The respondent
unsuccessfully sought the guarantee of payment from the bank. (
Vide
annexure “aa”.) However, Absa Bank, the appellant’s
bank, declined to guarantee payment. (
Vide
annexure “bb”.)
That second cheque was also returned unpaid to the respondent. The
second cheque was not stopped by
the appellant, but returned by the
appellant’s bank to the respondent who was referred to the
drawer for the underlying reason.
To put it frankly the second cheque
was dishonoured because, according to the appellant’s bank,
there were no sufficient
funds to meet the cheque. By then the
appellant had used all of the respondent’s fertiliser product.
[28] The non-payment of
the two cheques led to a meeting between the parties. The meeting
held at Kroonstad during December 2000,
was attended by Mr.
Claassens, on behalf of the appellant, and Mr. Janeke, Blignaut and
Bester on behalf of the respondent. Mr.
Claassens was very upset. He
accused the respondent’s representatives of presenting the
cheques too early. He alleged the
appellant had suffered damages as a
result of the respondent’s actions. He threatened the
respondent’s representatives
that the appellant was going to
sue the respondent for the recovery of damages. He insisted that the
respondent acknowledge that
it had made a mistake by presenting the
cheques too early.
[29] As a result of the
appellant’s threat, Mr. Janeke undertook to do everything in
his power to resolve the matter. He specifically
agreed to write a
letter to the appellant’s bank in which he, on behalf of the
respondent, would explain that there was a
misunderstanding and that
due to such a misunderstanding the two cheques were presented earlier
than they were supposed to have
been (annexure “f’).
[30] For his part Mr.
Claassens tendered on behalf of the appellant to pay the sum of R113
819,65 to the respondent on condition
that the respondent would see
to it that the appellant’s dented creditworthiness was repaired
by the respondent (annexure
“e”).
[31] The aforesaid
meeting was important. By that time the appellant had already
harvested the wheat. The appellant’s agent,
Mr. Claassens, was
very pleased with the harvest. He expressed his satisfaction with the
respondent’s product. He showed
the bank statements of the
appellant’s current account to the respondent’s
representatives. The idea was to indicate
to them that the appellant
was in a healthy financial position to pay. That meant that after the
harvest the financial position
of the appellant had tremendously
improved. By so saying and doing, the appellant acknowledged that the
respondent’s product
had positively produced the desired
effect. It is of vital importance to note that the appellant did not
at all complain about
the inferior quality of the respondent’s
product during the meeting held at Kroonstad during December 2000.
[32] Still at the
Kroonstad meeting the respondent’s representatives showed to
the appellant’s representative the outstanding
balance
(annexure “e”). Mr. Claassens perused, confirmed and
admitted the respondent’s total outstanding balance
due by the
appellant. Notwithstanding the admission, Mr. Claassens told the
respondent’s representatives that the appellant
was in no hurry
to settle the respondent’s claims.
[33] After the meeting
the respondent addressed a letter to the appellant’s bank in
accordance with Mr. Janeke’s undertaking.
On the strength of
the respondent’s letter (annexure “g”) Absa Bank
rectified the appellant’s credit record,
which had been
adversely affected by the second cheque which was dishonoured.
Although the appellant had earlier made a conditional
offer to pay
the undisputed debts, the respondent claims were not paid, despite
the fulfilment of the condition.
[34] The recalcitrant
attitude of the appellant and its apparent unwillingness to pay for
the respondent’s goods sold and
delivered, caused the
respondent to sue and to apply for judgment against the appellant by
way of a provisional sentence. Thereupon
the appellant signed an
affidavit on 1 March 2001 in support of its opposition. Nowhere in
that affidavit did the appellant complain
that the respondent had
delivered a defective product. I hasten to point out that the
affidavit was deposed to almost twelve months
after the delivery of
the first load and eleven months after the second load. The omission
was not without significance.
So much about the
historical background. I turn to the hearing now.
[35] The version of the
appellant consisted of the testimonies of three witnesses. The first
was Mr. C.J. Claassens. He testified
that the identification of the
suitable fertiliser for agricultural purposes required an analysis of
the soil, taking into account
the objectives of the harvest, as well
as the particular crop. Those were important considerations. The
insufficient application
of fertilisers negatively affected the crop
output. The discolouring of the plants was a symptom of inadequate
minerals in the
soil.
[36] Both orders of the
fertilisers were chiefly used for the planting of wheat and the
residue was later used for the planting
of maize. The wheat was
planted toward the end of April 2000. Two weeks later the wheat
germinated. Defects in the wheat became
visible about three to four
months after the planting. However, he did not complain to the
respondent about the quality of the
fertiliser during that period.
[37] The wheat crop was
harvested from 20 November 2000. The rain during that particular
wheat season was very good. It was above
average on other farmlands
where the proceeds of the harvest were also above average. However,
the appellant’s wheat harvest
on the farm where the specific
wheat-fields were fertilised with the fertilisers purchased from the
respondent, was below average.
The actual proceeds of the harvest
were 0.6 to 0.8 ton per hectare in comparison to the proceeds of the
harvest on the other wheat
farms approximately 25 km away. The poor
harvest on the specific farm was attributable to nitrate deficiency
which retarded good
growth and healthy bud formation.
[38] In spite of Mr.
Claassens knowledge that the respondent had supplied him with an
inferior and defective product, the appellant
went ahead to use the
remaining defective fertiliser during October 2000 by fertilising its
mealie-fields. About 20 bags of the
alleged defective fertilisers
were used to cultivate maize. The conduct of the appellant clearly
demonstrated that the respondent’s
fertiliser had some relative
value and that it was not absolutely useless in spite of its alleged
defect. The extent of the defect,
he averred, was at least 10% and at
most 12% of the value of the proper product.
[39] The appellant’s
second witness was Ms M.J.D. Riftel. She testified that registered
products had registration numbers.
The regulations required that such
registration number of the product be reflected on the product tag.
The tagging requirements
of the product were only applicable to
registered mixtures and not prescriptive mixtures. Although the
elements which made up the
prescriptive mixture must be registered,
it was not compulsory to have a special prescriptive mixture
registered.
[40] There was no
statutory regulation which required that the ordering of prescriptive
mixtures should be made in a written form.
The product which the
respondent supplied to the appellant was supposed to have been
registered, seeing that such prescriptive
mixtures, on the
respondent’s pricelists, were widely marketed to the general
public and not sold to a specific farmer only.
The responsible
registrar had circulated a letter to that effect in line with the
regulation which required such registration.
[41] The evidence of the
witness as to the precise regulation left much to be desired. The
precise details of the letter were vague.
There was no concrete
evidence that a copy of such circular letter was ever factually
delivered to the respondent. Moreover there
was no basis laid on
which such a letter derived its official, let alone statutory, force.
[42] The witness conceded
that the product tagging requirements were only applicable to
registered mixtures, but not unregistered
or prescribed mixtures. She
added that the unregistered mixtures were exempted from such
requirements on condition that there was
to be no written reference
on their product tags to the applicable legislation, in other words,
Act No. 36 of 1947 on the product
tags.
[43] The third and last
witness who testified for the respondent was Mr. J. van Vuuren. He
was a Ph.D graduate in agricultural science.
His experience in
quality control of fertilisers dated as far back as 1982.
[44] The important
aspects of the witness’ evidence were:
that scheduled or listed
fertilising products which were marketed, had to be registered;
that all bags of
fertiliser products had to be properly tagged;
that a farmer who
required a special mixture, in other words, a prescriptive mixture,
had to expressly make such a request, expressly
give such an
instruction in writing that the so-called “laai magtigings”
issued pursuant to a product vendor’s
receipt of special
request for a mixture from a product consumer, was a special
chemical formular whereby a special fertiliser
product was
manufactured or chemically mixed;
that sometimes control
samples were taken in order to verify that the chemical formula of
the special mixture was correct;
that retention samples
must be preserved; that there were statutory formalities which
regulated the taking and analysing of fertiliser
samples;
that the sample taken by
and ultimately analysed for and on behalf of Mr. Claassens did not
comply with the legislative requirements.
[45] The witness went
further and testified that 20 bags of fertiliser which are carefully
monitored would constitute a fairly representative
sample. According
to the fertiliser analysis report (annexure “j”) as
compiled by the Central Analytical Laboratories
on 2 July 2001, the
sampled mix consisted of the following percentages of the elements:
Fertiliser Analysis
Report Fertiliser Loading Script
Nitrogen
:
N
13,3%
16,7%
Phosphate: P 4,98%
5,0%
Potassium: K 3,62%
3,3%
Calcium: Ca 5,34% 3,2%
Magnesium: Mg 3,0% 1,9%
Sulphur: S 9,02% 8,0%
I added the loading
script values here for comparative purposes.
[46] Deviation from the
NPK percentage (
vide
annexure “j”) indicated that
the product was defective. The sum of the first three elements
nitrogen, phosphate and
potassium, in other words NPK, according to
the loading script was supposed to be 25%. However, according to the
analysis report
the total sum of those three elements was 21,9% =
13,3% + 4,98% + 3,62%. Therefore, the shortfall between the
respondent’s
loading script and the appellant’s analysis
report was 25% - 21,9% = 3,1%. The shortfall of 3,1%over 25,0%
represented the
equivalent of 12,4% chemical deficit.
[47] The permissible
tolerance as regards chemical deficit was 1,2% and not 3,1%. The
witness was of the opinion that a chemical
deficit of 3,1% in the
chemical composition of the fertiliser mix supplied to the appellant
was substantially excessive, since
it was far beyond the tolerance
level. This was the essence of the appellant’s case.
[48] The previous
regulations were not available. They were not exhibited during the
course of the trial in the court
a quo
. Seemingly they were
unknown to the witness. Consequently the evidence of the witness as
far as the regulations were concerned,
lost a great deal of steam.
[49] The version of the
respondent in connection with the fertiliser was narrated by Mr. P.
Janeke first. He denied that the fertiliser
analysis report (annexure
“j”) was accurate. The product supplied to the appellant
was correct and in accordance with
the product ordered. There was a
match between such a product and the loading script. The consistency
between the two rendered
the incomplete description as per the
product tag irrelevant.
[50] As regards
registered products, the witness testified, that the chemical
composition of the fertiliser must be written on the
product tag.
Such requirement did not apply to prescriptive mixtures exclusively
made at the special request and instance of a
particular consumer.
The product ordered by the appellant fell in the latter category of
mixtures.
[51] The second witness
for the respondent was Mr. J.S. Blignaut. His evidence was that the
alkaline component in the fertiliser
mixture did not substitute a
farmer’s soil alkalinisation program. Such a program was a
matter within a farmer’s personal
knowledge. A farmer was
supposed to have knowledge of his soil composition.
[52] The third witness
who gave evidence on behalf of the respondent was Mr. G.S.C.H.
Venter. He was an expert in the field of fertilisers.
In his opinion
the regulations were unclear as far as the registration of mixtures
was concerned. The correct fertiliser analysis
was one done in
accordance with a recognised protocol. The salient features of the
protocol were:
that the sample must be
a truly representative specimen where at least 20 bags are sampled;
that a sample must be
taken from a properly sealed bag of fertiliser;
that a few sub-samples
must be taken from each main sample taken from a bag;
that samples must be put
together and repeatedly reduced;
that the entire process
of taking, analysing and monitoring fertilisers must be transparent;
that the samples must be
sent to three laboratories, at least.
[53] The witness
testified further that a sample which did not comply with the
aforegoing protocol was not chemically representative.
Such a sample
was unreliable. Although such a sample would have an analytic value,
it would not, however, serve as a useful qualitative
yardstick. The
loading script formula (annexure “f”3”) and the
fertiliser order form (annexure “f2”)
contained the
constituent elements and chemical compositions of the product as set
out on the respondent’s pricelist and
the appellant’s
order. He confirmed that a correct product with the correct “NPK”
ingredients was delivered to
the appellant’s representative.
[54] He stated his
opinion that annexure “j” was consistent with the product
which was ordered by the appellant because:
firstly, the chemical
values of the constituent elements P, K and Zn were correct; and
secondly the chemical values of the following
constituent elements,
though inaccurate, were not all entirely inaccurate: nitrogen (N),
calcium (Ca) and magnesium (Mg).
However, the inaccuracies
pertaining to calcium and magnesium were not to the disadvantage, but
rather advantage of the appellant,
seeing that the chemical values of
those two elements were higher and not lower than they were supposed
to be according to the
appellant’s fertiliser analysis report –
vide
the comparative table in para [44]
supra
.
[55] According to the
witness the alleged deficiency in nitrate would have brought about a
shortage of 3 kg of nitrate per 1 hectare
of wheat and not 100 kg and
150 kg in respect of wheat and maize respectively as pleaded by the
appellant. He stated that it was
extremely difficult to determine the
impact of 3 kg deficiency in the nitrate on the ultimate harvest. At
most such chemical deficiency
could negatively lead to a 12%
reduction in the anticipated harvest. However, at times such
deficiency would have virtually no
adverse impact at all on the
anticipated harvest. The only basis on which to determine a price
reduction in the matter was by way
of considering the adverse impact,
if any, attributable to the deficiency of nitrate in the mixture.
[56] Additional
information was required about a great variety of factors in order to
make an accurate assessment of the real impact
the nitrogen deficit
could have had on the proceeds of the harvest. Among others, the
following factors were important:
time of planting;
climatic conditions;
soil comparisons;
weed-killer; and
temperature.
[57] The tolerance
differential of zinc was 7% in respect of simple fertilisers and 4%
in respect of compound fertilisers. The current
regulations allow
somewhat greater tolerance differential for zinc because it is a
micro-element. According to the witness tolerance
levels apply rather
to deficits and not to excesses. The alleged nitrogen deficit and the
alleged calcium excess in this matter
demonstrated the practical way
in which the principle of chemical tolerance levels operated.
[58] The deviation of
nitrogen on the plant from the previous norm would not have been
necessarily measurable by means of a naked
eye. There existed
comparable quantities of the right type of product against which it
can be so measured. If annexure ”j”
was regarded as
correct, then, in that event, the deviation from the normal chemical
composition, occasioned by the nitrate deficiency,
was substantial.
The nitrate deficit as we have seen went beyond the tolerance level.
This then completes the respondent’s
evidence in the court
a
quo
.
[59] In my view the
issues were correctly identified by the trial magistrate. However, I
deem it expedient to deal with the issue
of defective performance
first. Before I do so, I want to give a cursory overview of the
applicable principles of law.
[60]
It is incumbent upon a plaintiff who alleges that he has performed in
terms of a bilateral agreement to aver and prove that
he duly
rendered proper performance or to aver and prove that, although he
did not duly render proper performance, the defendant,
with the full
knowledge of the defect, nonetheless accepted the defective
performance -
BK TOOLING (EDMS) BPK v SCOPE PRECISION
ENGINEERING (EDMS) BPK
1979 (1) SA 391
(A) at 419.
[61]
Adequate proof of a disputed issue is established whenever a
plaintiff can show, by means of credible evidence, that his evidence
on the point in issue is more probable than that of the defendant.
The judicial exercise to determine credibility and probability
is
contained in a single investigation and not separate and parallel
investigation -
MABONA AND ANOTHER v MINISTER OF LAW AND
ORDER AND OTHERS
1988 (2) SA 654
(SE).
[62]
The court has to decide a case on the real issues which were
ventilated during the course of the trial and ultimately addressed
during the course of closing argument -
SENTRACHEM
BPK v WENHOLD
1995 (4) SA 312
(A).
[63] A
witness’ evidence on a point in dispute has to be challenged
during cross-examination by an adversary. Where the relevant
evidence
of a witness on a real point in dispute is not attacked during
cross-examination, it entitles the party in whose favour
a witness
testified, to believe and indeed to accept that the unchallenged
evidence of his witness is correct. An adversary who
obviously gets
hurt by uncontested evidence would unsuccessfully argue to persuade a
court to disbelieve such evidence -
SMALL v SMITH
1954 (3) SA 434
(SWA) and
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS v SOUTH AFRICAN RUGBY FOOTBALL UNION AND OTHERS
2000 (1) SA 1
(CC).
[64]
The evidence as a whole has to be considered in order to resolve an
issue. The court has held that the evidence of an expert
witness
should not be preferred to that of an eye-witness and that the
opinion of an expert witness should only be used provided
the
evidence of an eye-witness, often a lay-person, on a specific point
is unacceptable. However, if the evidence of an eye-witness
is
acceptable, it does not necessarily render the evidence of an expert
witness useless. In such an event a court has to determine
whether
the evidence of an expert witness may be used to water down the
factual evidence of an eye-witness in any manner -
STACEY
v KENT
1995 (3) SA 344
(E). Direct
evidence of a proximate witness on the scene is preferred to the
indirect evidence of a distant witness of the scene
-
MOTOR
VEHICLE ASSURANCE FUND V KENNY
1984 (4) SA 432
(E) at 436 –
437.
[65] A
court is not bound by an opinion of an expert – Schmidt,
BEWYSREG
,
Second Edition, from p. 427 especially p. 433 – 434 where the
learned author discusses the criminal case of
S
v GOUWS
1967 (4) SA 527
(E). See
also Schwikkard-Van der Merwe,
PRINCIPLES
OF EVIDENCE
, Second Edition from p. 84.
In our law a court is regarded as an expert and the evidence of an
expert on a particular point may
be found inadmissible –
Schmidt,
supra
,
p. 431 footnote 11 where the case of
EX
PARTE SMITH
EN ANDERE
1970 (4) SA
122
(O
) at 125H was cited.
[66]
The contractual principle of “
quantis
minoris
”
is not only supposed to
be ascertained on the strength of the actual monetary costs of the
supplement required to cure a defect
in the original performance. The
remedy of price reduction may also be determined on the strength of
another accurate measure which
may be found to be applicable on the
peculiar facts of a specific matter at hand -
THOMPSON
v SCHOLTZ
[1998] ZASCA 87
;
1999 (1) SA 232
(SCA) at 249 – 250.
[67]
Now
I proceed to examine the evidence. The respondent contended that the
loading script formula was correct; that the mixing of
the product
was correct and that the product ultimately delivered was also
correct.
[68]
The appellant contended, on the contrary, that the chemical mixing of
the product was defective and that, as a result of such
incorrect
chemical mix, a chemically defective product was ultimately delivered
by the respondent to the appellant. Consequently
it was submitted
that the contrary finding of the court
a
quo
was a material misdirection.
[69] The evidence of Mr.
Janeke, Mr. Blignaut and Mr. Venter, as regards the correctness of
the loading script formula (laai magtiging)
was not attacked or
contradicted. After the chemical mixing of the product at the
appellant’s special request and instance,
there existed no
chemical imbalance in the respondent’s factory. There was no
intolerable discrepancy between the loading
script and the stock
after the mixing and actual loading of the product. The two readings
or figures balanced quite well after
the stocktaking, according to
the undisputed evidence of Mr. Janeke.
[70]
Since the evidence of the aforesaid three witnesses on those
important aspects of the dispute was not challenged, the respondent
was entitled to accept that their evidence on those aspects was
correct -
SMALL v SMITH
,
supra
.
The absence of a detailed description of the product on the product
tag fastened to each bag of fertiliser, did not, on its own,
rebut
such evidence.
[71] The products sold to
the appellant were a special prescriptive mix. I accept the
respondent’s evidence that it was not
subject to compulsory
registration. The fact that the product was on the respondent’s
pricelist, the fact that it was marketed
to the farmers in general
and not a particular farmer and the fact that it was formulated by
the respondent in its chemical outlet
did not alter the nature of the
chemical mix. The fact of the matter was that the appellant, on its
own accord, specially selected,
from a great variety of listed
chemical mixtures, the one which the appellant itself, considered
peculiarly suitable for his particular
needs.
[72] If two or more
farmers should select the same chemical mix V21, as formulated by the
respondent, because their individual farming
needs are identical as
regards the type of plants, the season of planting, the conditions of
climate, the type of soil and the
temperature – that in itself
would not automatically transform a chemical mix which is ordinarily
not registrable into one
which is.
[73] Accordingly I am of
the view that the tagging requirements that were peremptory in
respect of registrable chemical products,
were not applicable to the
products we were here concerned with.
[74] The test sample on
which the appellant heavily relied for its contention that the
product was defective, did not comply with
the standards of the
recognised protocol in the fertilising industry. The two experts, Mr.
Venter and Dr. Van Vuuren were in agreement.
The taking of the
fertiliser sample relied upon, violated all the safety precautions
and preservative measures of the applicable
protocol of the industry.
Such lack of protocolically reliable analysis and lack of supporting
evidence in respect of the handling
of the bag of fertiliser from
which the test sample was taken, left a great deal of doubt
concerning the adequacy, correctness
and reliability of annexure “j”.
It follows, therefore, that the fertiliser sampled by the appellant –
vide
annexure “j” – had no evidential value
that could practically serve as conclusive proof of the alleged
defect
to underscore the alleged breach of the contract. It was
simply not representative and reliable enough.
[75] Mr. Pienaar’s
main argument was that there was no evidence given by the respondent
that the product delivered by the
respondent to the appellant was, in
fact, mixed in accordance with the chemical formula as specified in
the loading script.
[76] Mr. Buys sharply
differed. He argued that the respondent delivered to the appellant a
product that had been chemically mixed
in accordance with the
fertiliser product as specified in the loading script.
[77] The appellant’s
contention was based on the following segment of Mr. Janeke’s
evidence:
“
Laai
magtiging nommer 42 dui die produk aan as 10.3.2(25)plus sink, plus
kalk en dan onder gee dit die produk samestelling. Die
produk
samestelling is ammonium sulfaat korrels 375, ureum 145, MAP 228, KCL
66, sink 5 en kalk 199. As ek net vir die Hof kan
verduidelik. Ons
meng die produk in batches van 1 ton op ‘n slag. So hierdie is
samestelling van die verskillende grondstowwe
om 1 ton te maak.
Hierdie laai magtiging is die instruksie wat na die aanleg toe gaan,
hoe om daardie produk te vervaardig en dit
moet so saamgestel word.
dit is wat daardie syfers beteken.”
[78] The thrust of the
appellant’s contention was that the evidence of Mr. Janeke did
not go far enough to show that the product
ordered was, as a fact,
chemically mixed according to the formula. The critique was that the
evidence of the witness was that the
product ordered had to be mixed
and not that it was mixed. I am not so persuaded. The point was not
persistently pursued at the
trial. The witness steadfastly asserted
that what was delivered was what was ordered. It logically followed
from the steadfast
assertion that between the ordering and the
delivery, the correct chemical processes were adhered to. Implicit in
the assertion
was the averment that the elements that had to be
chemically mixed, were factually mixed as the order was formulated.
[79] The law was clear.
The respondent was not required by law to establish his claim(s) by
means of absolute and perfect masterpiece
of evidence. The law
required the respondent to provide adequate and not absolute proof of
his case by means of honest and trustworthy
evidence that his version
was more probable than that of the appellant. In my view the
respondent did –
MABONA
,
supra
.
[80] The following
snippets of probabilities refute the contention that the respondent
had rendered defective performance to the
appellant:
The appellant fertilised
all his wheat-fields with the respondent’s product in spite of
his knowledge or suspicion of the
alleged defect.
The appellant went a
step further after the harvesting of the wheat, by utilising the
surplus product for the purpose of cultivating
a different crop,
maize in spite of his knowledge of the alleged defective performance
by the respondent.
The appellant did not
complain about the poor or inferior quality of the respondent’s
product although he had ample opportunity
to raise such an objection
before during or after the wheat harvest. Perhaps the best
opportunity he had presented itself to
him at the meeting he called
and attended at Kroonstad during December 2000.
The appellant’s
version was greatly weakened by sheer lack of credible and reliable
evidence in respect of the soil samples,
defective harvest proceeds,
comparable previous harvests on the specific lands, in connection
with the wheat-fields and mealie-fields.
[81] The Kroonstad
meeting was very important. The meeting was convened by the
appellant’s sole trustee. He scheduled the
meeting, for one and
for one specific purpose only,
viz
to repair his
creditworthiness dented by the unpaid cheque. During the meeting he
expressed his willingness, intentions and ability
to pay the
respondent’s claim(s). He demanded written apology from the
respondent to Absa Bank Ltd. That was the way he wanted
to have the
credit record repaired. He made the demand a condition for the
payment of the debts he owed to the respondent. During
the meeting he
forewarned the respondent’s representative that they would have
to wait for a long time for the payment, because
he wanted to play
the respondent a fool for some time.
[82] It has to be
repeated and stressed that no allegation of any sort was made by the
appellant’s trustee, during the course
of that meeting, about
any defect whatsoever in the fertiliser. At the time the meeting was
held, the harvesting of wheat was an
accomplished fact. Both the
quality and the quantity of the proceeds of the harvest were known to
the appellant. Yet he hardly
complained about any crop failure let
alone a disastrous harvest of the magnitude, as pleaded. He demanded
no compensation for
the poor harvest of wheat occasioned by the
respondent’s nitrate deficient fertiliser.
[83] On the contrary, the
appellant’s trustee verbally and without any reservation,
expressed his satisfaction with the harvest.
The conduct and comments
of the trustee gave substantial credence to the version of the
respondent that the product purchased was
correctly formulated; that
the chemical ingredients thereof were correctly mixed and that the
merx ordered was correctly delivered.
The testimony of the
appellant’s trustee cannot be reconciled with the verbal
statements he made at that meeting. The one
is as different from the
other as night-time is to day-time. Such substantial evidential
discord significantly diminished the merits
of the appellant’s
version. In my view such version is less probable than that of the
respondent –
MABONA
,
supra
.
[84] The respondent
subsequently complied with its Kroonstad undertaking by apologising
to the appellant’s bank for prematurely
presenting the two
cheques, as the appellant dictated. The appellant’s credit
record was thus not blemished by the dishonoured
cheque drawn in
favour of the respondent. Notwithstanding the favourable reaction of
the bank to the respondent’s apology
and its decision not to
hold the dishonoured cheque against the appellant, the appellant
would still not pay its debt(s). The failure
of the appellant to pay,
after the condition it had imposed on the respondent had been met,
was in breach of the Kroonstad undertaking.
It demonstrated that the
appellant’s trustee was not a trustworthy witness. A man of his
word would not have acted in that
fashion.
[85] The appellant
subsequently made a sworn statement in support of his opposition to
the respondent’s application for provisional
sentence against
the appellant. Nowhere in that affidavit did the appellant’s
deponent say a word about the alleged inferior
quality of the product
supplied by the respondent. Once again the omission was telling
against the appellant. Once again the appellant
lost yet another
golden opportunity to complain about the product which, as alleged,
had drastically reduced its expected harvest
margins. Once again the
failure fortified the respondent’s contention that there never
was any defect in the product as alleged
or at all.
[86] The allegation that
the product was defective and the performance incomplete, was raised
in the appellant’s plea for
the very first time. On the facts,
the allegation had all the hallmarks of an afterthought fabrication.
[87] It has to be borne
in mind that hardly one bag of the first load of fertilisers was at
all sampled and tested. Therefore even
if defective performance by
the respondent was established by the appellant, the scope of the
contractual breach of performance
would have had to be factually and
legally confined to the second order or load of fertilisers. In such
a scenario the appellant
would have been entitled to a price
reduction of at least 10% and at most 12% of the costs relative to
the value of the 30 ton
second load in accordance with the remedial
exceptio quantis monoris
–
BK TOOLING
,
supra
.
[88] However, the
appellant would still have had an insurmountable mountain to climb.
Obviously the greatest difficulty of the appellant
in that regard
would be adequacy of proof. One out of tens of bags was not enough to
conduct a conclusive scientific analysis.
That one bag had been left
in the open veld for some time and exposed to sharply differing
day-time and night-time temperatures
and other weather elements.
Therefore it was not adequately representative. The proverb that “one
swallow does not make a
summer” seemed appropriate in this
instance. The exposure of the one bag could possibly have made the
sample less reliable
than otherwise would have been the case.
Moreover the appellant took his time to have the sample analysed. The
analysis was done
on 2 July 2001, some fifteen or so months after the
appellant had used the bulk of the fertiliser. There was no
satisfactory evidence
of how such a sample was preserved and how the
entire analysis process was monitored. The whole sampling exercise
was done in breach
of the protocol.
[89] The appellant’s
trustee discovered four weeks or so after the wheat plants had come
out of the soil that there was something
wrong. The appellant’s
witness, Dr. Van Vuuren, stated that nitrate deficiency in the plant
becomes immediately noticeable.
It was unclear as to why if there was
such immediately noticeable deficiency the trustee had failed to
immediately notice its symptoms.
I have already alluded to the
appellant’s failure or neglect or omission to promptly take the
matter up with the respondent
and his subsequent use of the surplus
fertilisers to boost his maize crop. The mere fact that the
mealie-fields were fertilised
after the wheat harvest defied logic.
An experienced farmer, like the trustee, aware of the enormous
adverse impact of the defective
product on his wheat output, would
not have gone further to utilise the same harmful fertiliser on his
mealie-fields.
[90] The most logical
step one would have expected from the trustee after the alleged
pathetically dismal harvest of wheat was the
return of the harmful
surplus to the supplier. Instead of doing damage control in that
manner, the appellant surprisingly went
ahead to spread the harmful
surplus on his mealie-fields. The question was why did a seemingly
level-headed farmer of note widely
and indiscriminately contaminate
his agricultural lands with the full knowledge of the havoc the
fertiliser had already caused?
[91] In his evidence the
trustee made no mention of the proceeds of the maize harvest or
ultimate output at the end of the maize
season. Instead he made
unsubstantiated comparisons between the wheat harvest on the
particular farm and the wheat harvest on some
other farms
approximately 25 km away. In my view there was plainly no comparison.
There was no evidence of the harvesting on those
farms for a period
of about five years immediaely preceding the harvest we were here
dealing with. Between 1995 and 2000 the appellant’s
farms were
leased to a third party.
[92] All those aspects of
the appellant’s conduct materially strengthen the respondent’s
case and materially weakened
the appellant’s defence, which was
why no counterclaim was ever filed as the appellant had threatened to
do.
[93] The appellant’s
expert, Dr. Van Vuuren, gave direct evidence to the effect that a
chemical supplier, such as the respondent,
was legally obliged to
retain a chemical mix sold to a chemical consumer, such as the
appellant, for a minimum period of two years
after the mixing
process. During his indirect evidence, however, the witness could not
say on which specific provision of the applicable
statute or its
regulations his evidence was based.
[94] Until the new
regulations, as published in Government Gazette R250 on 25 March 2007
came into operation, the applicable regulations
which were operative
at the time of the two transactions were the previous regulations as
were published in the Government Gazette
R799 of 20 May 1977. Those
previous regulations of 1977, unlike the current regulations
proclaimed in 2007, contained no prescripts
to regulate standardised
practices which had to be followed by chemical outlets in connection
with the keeping of records.
[95] The appellant’s
orders for the supply of fertilisers were for a specific mix, which
was adjusted according to the particular
farmer’s special needs
regard been had to the soil analysis which the consumer itself had
done or caused to be done for cultivation
of specific plants. Ms
Riftel and Dr. Van Vuuren were of the same opinion that the
particular fertilisers supplied by the respondent
to the appellant
did not qualify as a special prescriptive mix. According to them, the
particular chemical mix was supposed to
be a registered chemical mix,
seeing that it was, firstly, described and included on the chemical
supplier’s pricelist and
secondly, that it was marketed for
sale to all interested farmers in general and not to one particular
farmer.
[96] In the chemical
industry a distinction is seemingly made between legally registrable
products and unregistrable products. In
the case of the former class
of products, the law requires that the chemical composition of the
fertilisers had to be printed on
the product tag. In the case of the
latter class of products, however, there is no such peremptory legal
requirement.
[97] Ms Riftel’s
opinion was grounded on a certain official circular by the
responsible registrar of chemicals. The difficulty
I had with her was
that the circular letter which was central to the witness’
opinion was not discovered and exhibited in
the court
a quo
during the trial. Consequently no evidence concerning its contents
was vouched. In her direct evidence the expert had averred that
the
letter was informed by the regulations. On behalf of the respondent
it was suggested that the witness confused the letter with
the
regulations. The critique seemed fair. This was so because even her
fellow witness, Dr. Van Vuuren, though adamant that the
question of
prescriptive chemical mixtures was very clearly addressed by the
statute and its regulations, could not specify any
relevant provision
to beef up his and her opinion. Accordingly the opinions were not
helpful at all.
[98] The respondent’s
expert witness, Mr. Venter, was not in agreement with the opinions of
the aforesaid witnesses for the
appellant. According to him there
were no clear prescripts in either the statute or the regulations.
During his cross-examination
it was put to him by Mr. Pienaar, who
also appeared in the court
a quo
for the appellant, that the
appellant as a consumer, did not have any choice besides the
pricelist which was shown to him. He disagreed
with the suggestion.
He explained that he saw, in the pleadings, that the appellant had
ordered a prescriptive mix which, according
to his special analysis
of his soil, would be suitable for his particular needs.
[99] Mr. Buys submitted
that even the 2007 regulations contained no provisions in line with
the opinions of the appellant’s
expert witnesses. Mr. Pienaar
made no submission to the contrary. I am therefore persuaded to find
that the expert evidence tendered
by the respondent on the point was
preferable to that tendered by the appellant.
[100] In order to succeed
with its claim(s) the respondent was required to aver and prove
either that it rendered the performance
in terms of the contract of
sale to the appellant or that, although the performance it rendered
was somewhat defective in certain
respect(s), the appellant with the
full knowledge of such defect, nonetheless utilised the defective
performance –
BK TOOLING
,
supra
.
[101] On the peculiar
facts of this particular matter, I have come to the conclusion that
the respondent established, on a balance
of probabilities, that the
fertiliser product as ordered was correctly formulated; that the
product was, in all probabilities,
correctly mixed and that the
product was correctly delivered to the appellant. The onus was
discharged.
[102] The court
a quo
made the following finding in respect of the issue of the quality of
the performance rendered by the respondent to the appellant:
“
In die lig
van die voormelde faktore word bevind dat die eiser op ‘n
oorwig van waarskynlikhede aangetoon het dat die kunsmis
wat aan die
1ste Verweerder gelewer was, nie substandaard was nie. Bygevolg moet
die eiser se eis ook op hierdie grond slaag.”
[103] That cardinal
finding of the trial magistrate is one which we, sitting as we are in
an appellate mode, cannot hold to be wrong.
I would, therefore,
determine the first and main issue in this appeal in favour of the
respondent. In my view the appeal had no
substance as regards the
first issue. There was virtually no credible and reliable evidence
tendered by the appellant on whom the
onus rested to show that there
was substance in his defence that the respondent had rendered undue,
defective and incomplete performance.
I am inclined, therefore, to
dismiss as false and highly improbable the appellant’s defence
that the respondent had supplied
him with a product so defective that
it boiled down to an undue performance which constituted material
breach of the contract.
[104]
Now I turn to the second issue. First I want to restate a few
applicable principles of law. He who signs a contract without
reading
it is bound by the terms and conditions thereof. This is so because
the appending of a signature to a contract presupposes
that the
signatory knowingly signed such document and that he was prepared to
be bound by its terms and conditions without reading
them. This
salient principle of the law of contract is briefly encapsulated in
the maxim “caveat subscriptor” –
the reader beware
-
HOME FIRES TRANSVAAL CC v VAN WYK AND ANOTHER
2002 (2) SA 375
(W) from 381E.
[105]
Such conduct demonstrates an attitude which entitles the other
contracting party to accept that the signatory who appends
his
signature to an unread contract considers himself bound by such
contract -
DLOVO v BRIAN PORTER MOTORS LTD t/a PORT
MOTORS NEWLANDS
1994 (2) SA 518
(C) at 524D – H and
AETIOLOGY TODAY CC t/a SOMERSET SCHOOLS v VAN ASWEGEN AND
ANOTHER
1992 (1) SA 807
(W) at 810G – H.
[106]
There is no authority to the effect, as regards substantive law, that
a party cannot derive an advantage from his own breach
of contract -
CHUBB FIRE SECURITY (PTY) LTD v GREAVES
1993 (4)
SA 358
(W) at 326G.
[107]
The
second issue in the appeal was whether or not the respondent’s
conditions of the contract of sale were binding on the
appellant as
the purchaser. The court
a quo
also determined the issue in favour of the
respondent.
[108]
On behalf of the appellant it was submitted that the court
a
quo
erred in making the findings it
made pertaining to the issue at hand and in reaching the conclusion
that the appellant was bound
by the conditions of the contract
printed on the reverse side of the order form(s).
[109]
On behalf of the respondent it was submitted that the court
a
quo
did not misdirect itself as
contended or in any other manner and that the findings and the
conclusions were justified by the evidence.
[110]
The court
a quo
made
two crucial findings. The first was that Mr. Bester, the respondent’s
representative, did not draw the attention of Mr.
Claassens, the
appellant’s representative, to the reverse side of the order
form(s) at the time each of the two transaction(s)
was concluded.
This finding was favourable to the appellant. The second finding was
that, even so, the appellant’s representative
had ample
opportunity to read the conditions of the contract of sale printed at
the back of the order form(s) but that he freely
chose not to read
them. This finding was favourable to the respondent.
[111] The trial
magistrate had this to say about the conditions:
“
Mnr
Claassens wat die bestelvorms namens die eerste verweerder onderteken
het was ten alle tye bewus van die feit dat daar agterop
die
bestellings ‘n geskrif was en hy het op sy eie weergawe
voldoende geleentheid gehad om dit te bestudeer. Op die bestelvorm
by
die plek waar die 1ste verweerder moes teken was in ‘bold’
geskryf dat gelet moes word op die verkoopvoorwaardes
op die keersy.
Mnr Claassens het die 1ste bestelvorm vir ‘n maand of meer in
sy besit gehad voordat die 2 bestellings afgelewer
is. Mnr Claassens
wat ‘n ervare boer is, moet uit die aard van die saak kennis
dra dat die bestelvorms kontraksterme bevat.
Mnr Claassens het ook
getuig dat hy nie deur Mnr Bester op enige datum verhinder is om die
kontraksterme agterop die bestelvorms
te lees nie.”
[112] During the appeal
argument before us it was never contended that the aforesaid
summation of the evidence by the trial court
was factually incorrect.
That been factually the case, nothing of significance turns on the
omission by the respondent’s
representative to expressly draw
the attention of the appellant’s representative to the
conditions of the contract of sale
printed on the reverse side of the
order form(s). In reaching this conclusion I am formed by the point
in the next paragraph.
[113] Upon my perusal of
the two order forms I noticed that the appellant’s
representative, Mr. Claassens, did not have to
provide the
respondent’s representative, Mr. Bester, with the appellant’s
value-added tax certificate. In the appellant’s
special
instructions to the respondent, it was specially noted that such
certificate was already in the file. That could only have
meant the
respondent’s file. Implicit in that special note was the fact
that the parties had previous business dealings.
The appellant was an
old customer, it would seem. Therefore, the probabilities seemed to
suggest that the appellant’s representative
did not bother to
read the respondent’s conditions, because he had probably read
them before. He probably ignored them because
he knew there was
nothing new to read there.
[114] The conditions of
sale in respect of each order or load of fertilisers was subject to
the following conditions:
“
7 Other
conditions
7.1. The seller warrants that the NPK
content of the goods will comply with the requirements as prescribed
by legislation from time
to time and that the weight of the goods
will materially be as represented by the seller.
7.2. Save as provided in 7.1 above
the
goods are sold without any warranty in terms of the common law or
otherwise containing (sic) quality and suitability for any
purpose
.
7.3. Should the goods not comply with
any or both of the warranties in 7.1 or
should the goods be
defective in any other respect the seller shall replace or supplement
the defective goods free of charge
but the seller shall not be
liable for any loss or damage to crops, soil or property or injury
resulting from the use or handling
of the goods.”
[115] The seller’s
protection and the purchaser’s procedural rights were also
spelt out on the same reverse side. The
sale of each load of
fertilisers was subject to the following conditions:
“
8 Claims
8.1.
No claim resulting from
damage of goods or containers or
shortages
arising during
delivery
shall be considered unless
the delivery note has been
signed by or on behalf of the purchaser and the damage have been
specified on the delivery note and
the claim is received by the
seller within 7 days after receipt by the purchaser
.
8.2.
No other claim shall be
considered unless
the delivery note has been signed by or on
behalf of the purchaser
the goods have been stored under cover and
protected against the elements and the claim is received within 4
months after receipt
of the goods by the purchaser
.”
[116] If it is accepted,
and I think it should, that the conditions were binding upon the
appellant, then it follows, as a matter
of logic, that the appellant
was contractually precluded from complaining about the quality of the
respondent’s product because
the respondent had guaranteed no
quality thereof for any purpose – (clause 7.2). The defective
goods were returnable, replaceable
or supplementable free of charge –
(clause 7.3). There were no goods returned. Implicit in the
appellant’s omission
was the legitimate inference that the
goods supplied were not defective. The respondent was not
contractually obliged to entertain
a belated claim or a claim where
the goods had not been stored under a protective cover - (clause 8).
[117] In the appellant’s
heads of argument, Mr. Pienaar correctly captured the thrust of the
matter. He wrote:
“
Die Hof
a
quo
bevind dat, vanweë die feit dat dit uit die getuienis van die
appellant se getuie, mnr CJ Claassens, nie in dispuut was dat
hy
geleentheid gehad het om die agterkant van die bestelling te lees en
wel geweet het dat daar kontrakvoorwaardes daarop was,
die appellant
wel gebonde is aan die kontrakvoorwaardes.”
[118] I am of the firm
view that the court
a quo
correctly determined the second
issue as well in favour of the respondent. There was no misdirection
to warrant any appellate inference.
[119] Having considered
the findings made in the matter as a whole, the conclusions reached
in the matter as a whole, as well as
the grounds of appeal relied
upon, I am not persuaded that the court
a quo
materially
misdirected itself as alleged or in any other respects. None of the
grounds of appeal relief upon had substance in my
view. In the
absence of any material and thus appealable misdirections on any
matter of fact or any question of law, we are not
at liberty to
interfere. On the facts I am inclined to dismiss the appeal.
[120] Accordingly I make
the following order:
120.1. The appeal is
dismissed.
120.2. The appellant is
directed to pay the costs of the appeal.
______________
M.H. RAMPAI, J
I concur and it is so
ordered.
________________
S.J. THAMAGE, AJ
On behalf of appellant:
Adv. C.D. Pienaar Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of respondent:
Adv. Piet Uys
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/spieterse