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[2010] ZAFSHC 64
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Mpumelelo Projects Construction CC v Sasol Wax (Pty) Ltd (720/2007) [2010] ZAFSHC 64 (1 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 720/2007
In
the matter between:
MPUMELELO PROJECTS
CONSTRUCTION CC
Applicant
and
SASOL WAX (PTY) LTD
Respondent
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
17 MAY 2010
_____________________________________________________
DELIVERED ON:
1 JULY 2010
_____________________________________________________
[1] These proceedings are
about an application for leave to appeal. The applicant is aggrieved
by my judgment which was delivered
on the 14
th
January 2010. In that judgment I granted the respondents application
for absolution from the instance with costs. The application
is
opposed.
[2] On behalf of the
applicant, Mr Bokaba argued that I misdirected myself in many
respects. Among others, he contended that I
made incorrect findings
in connection with existence or otherwise of the supply agreement;
the representation the respondent allegedly
made as to the quality of
the liquid product; the nature of the agreement in terms of which the
respondent supplied the liquid
product; the crucial issue in the
case; the defendant’s general terms of sale; the insufficiency
of the evidence as a whole
tendered in support of the plaintiff’s
cause of action; the summary of the pleadings; the applicable
caselaw; the grant of
the order and many other aspects too numerous
to mention. He submitted, therefore, that a reasonable prospect of
success on appeal
existed.
[3] On behalf of the
respondent, Mr Leeuwner argued that save for the misdirection I
committed in respect of the amount of the plaintiff’s
claim,
the rest of the grounds of the appeal had no substance. He contended
that my findings were correct in respect of all the
matters now
attacked by the applicant. His submission was that no other
reasonable court would have come to a different conclusion.
[4] It is so that four of
the five witnesses testified about the adverse effects they
experienced when they burned the particular
liquid product. However,
the matter was not properly investigated. No scientific tests were
carried out to ascertain that the
liquid product indeed had inferior
qualities complained of. The witnesses, including the chemical
expert, jumped to a conclusion
which had not been properly
investigated. In my view no evidence was tendered which conclusively
established that the respondent’s
product had latent defects
which made it unsuitable for the agreed purpose. This much the
expert conceded during cross-examination.
[5] The smoking and the
bad odour which the consumers complained of could have been
attributed to other factors other than the bad
properties of the
respondent’s product for instance, the wick of an oil lamp.
But the case was not decided on this point.
In my judgment I did not
consider the evidence in respect of the quality of the product
because it was not a decisive issue.
(judgment para [14].) Be that
as it may, this is the conclusion I would have reached had it become
necessary for me to consider
the secondary issue.
[6] Whether the product
was latently defective as the applicant contended was not the main
issue. Let met assume in favour of the
applicant, for the sake of
this application that there was credible and reliable evidence to
support the contention that the respondent
had supplied a liquid
product with inferior qualities to the plaintiff. But even if it was
indeed so it would not have simply
followed from such a finding that
the applicant was therefore entitled to a judgment against the
respondent. The respondent’s
plea, and this was the
cornerstone of the respondent’s argument, was that it made no
representation to the applicant as to
the qualities of the product,
as the applicant alleged it did. It can therefore be seen that the
quality of the product was not
the crucial issue in the case. It was
not disposive of the entire dispute - hence I labelled it a
secondary issue (judgment para
[14]).
[7] The decisive issue,
as I saw it, was whether or not the respondent represented to the
applicant the alleged good qualities of
its liquid product and
warranted such qualities. The determination of this issue required
consideration of the respondent’s
credit application form,
signed by Dr Chalera on behalf of the applicant, and any other
document incorporated therein by reference.
A document with the
heading the general terms of sale applicable to the domestic sales
was an integral part of the credit application
form. Clause 7
thereof deals with liability and expressly excludes any warrantees in
respect of the respondent’s product
(judgment para [25] and
[30]).
[8] I found that the
defendant’s general terms of sale were expressly incorporated
through reference into the credit facility
application (judgment para
[26]); that the plaintiff was bound by clause 7 thereof (judgment
para [29]) and that the primary issue
had to be decided in favour of
the defendant (judgment para [30])
BURGER
v CENTRAL SOUTH AFRICAN RAILWAYS
1903 TS 571
on 578. If I had found in favour of the applicant in
respect of these very important issues then I would have proceeded to
consider
the evidence relative to the quality of the product as was
placed before me by the applicant’s four witnesses. I did not
do so because the primary issue, in my view, was decisive.
[9] I was at pains to
reconsider my judgment after I had had an opportunity of hearing and
digesting the critique levelled against
it as well as the support
given for it. I am not persuaded that I committed any appealable
misdirection as more fully set out
in the notice of appeal and
amplified during argument by counsel for the applicant.
[10] It follows from the
aforegoing that I am of the view that the matter has no single
reasonable prospect of success on appeal.
Therefore I am inclined to
refuse the application.
[11] In
BURGER’S
case,
supra
,
Innes CJ had this to say on p 577:
“
Can
a man who has signed a document in the form of the one now before the
Court claim that he is not bound by it, simply because
he did not
read what he signed, and did not know what the document referred to?
Had the regulations alluded to in the consignment
note been annexed
to it or printed upon it, there could surely have been no doubt as to
the signatory being bound. And the fact
that though referred to in
the contract, they were not actually printed as part of it, cannot
alter the legal position of the consignor.
The appellant could easily
have acquainted himself with the regulations;”
On p 578:
“
All
that can be said is that the consignor did not choose to read what he
was signing, and after he signed did not know the particulars
of the
regulations by which he had agreed to abide. For the Court to hold
upon these facts that the appellant is legally justified
in
repudiating his signature would be a decision involving far-reaching
consequences, and it would be a decision unsupported by
any principle
of our law.”
[12] Accordingly I make
the following order:
12.1 The applicant is
refused leave to appeal.
12.2 The applicant is
directed to pay the costs hereof.
______________
M. H. RAMPAI, J
On behalf of
applicant: Adv. G. L. M Bokaba
Instructed by:
Naudes Attorneys
BLOEMFONTEIN
On behalf of
respondents: Adv. P. G. Leeuwner
Instructed by:
Hill, McHardy &
Herbst
BLOEMFONTEIN
/em