Bandini Cheese v Janse Van Rensburg (68/2002) [2009] ZAFSHC 57 (7 May 2009)

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[2009] ZAFSHC 57
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Bandini Cheese v Janse Van Rensburg (68/2002) [2009] ZAFSHC 57 (7 May 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
Case No. : 84/08
Case
No. : 68/2002
In
the appeal between:-
BANDINI
CHEESE
Appellant
(Defendant
in the Court
a
quo
)
and
P
J JANSE VAN RENSBURG
Respondent
(Plaintiff
in the Court
a
quo
)
_________________________________________________
CORAM:
VAN
DER MERWE, J
et
NXUSANI,
AJ
_________________________________________________
HEARD
ON:
4
MAY 2009
_________________________________________________
JUDGMENT
BY:
NXUSANI, AJ
_________________________________________________
DELIVERED
ON:
7
MAY 2009
_________________________________________________
JUDGMENT
[1] This is an Appeal
against the decision of the Magistrate’s Court for the District of
Lindley. The Appeal relates to a claim
instituted by the Respondent
for payment of R7 433,60 for milk delivered to the Appellant [‘the
milk supply agreement’].
[2] The Appellant has
sought condonation for the condonation of the late noting of the
Appeal and the late filing of the Volume
2 of the Appeal record. The
prospects of success are good and there is no prejudice to the
Respondent. I am satisfied that there
are good grounds to grant the
application. The Respondent does not in any event oppose the grant of
condonation.
[3] It is common cause
that it was a term of this milk supply agreement that the milk had to
be of such a standard that it could
be used to manufacture cheese.
[4] The Appellant has
pleaded that the Respondent’s milk was contaminated rendering it
unsuitable for the manufacture of cheese
and related products.
[5] The Appellant pleaded
that the agreement to supply milk consisted of several express,
alternatively implied, further alternatively,
tacit terms, namely:-
5.1 the Plaintiff
[Respondent] would supply milk to the Defendant for the purpose of
manufacturing cheese and related products;
5.2 the Defendant
[Appellant] would only accept milk if it passed three tests, namely:
a) the smell test;
b) the acidity test;
and
c) the antibiotics
test.
5.3 the Plaintiff
[Respondent] warranted that the milk supplied to the Defendant would
be fit for the purpose of manufacturing cheese.
[6] Accordingly,
contended the Appellant, it was not liable to pay the amount claimed
by the Respondent. The Appellant counterclaimed
for damages it
suffered and in essence repeated the contents of its plea.
[7] The Respondent, if he
wished to succeed, had to prove, on a balance of probabilities, that
he supplied milk which was suitable
for the production of cheese. He
has, with respect, not done so.
See:
TOPAZ
KITCHENS (PTY) LIMITED V NABOOM SPAR
1976
(3) SA 470
(A).
[8] The Respondent
contended that it was unlikely that milk obtained from the same cows
during the morning could have tested positive
for antibiotics whereas
the milk expressed later that day from the same cows tested negative
for the presence of antibiotics or
“inhibitors”. This reasoning
is premised on the assumption that there is some accuracy and
reliability to the DELVO test results.
In fact the receipts put up by
the Respondent make reference to the DELVO test.
[9] It is common cause
that during the month of June 2002 the Respondent delivered milk to
the Appellant. The date when this occurred
was in dispute. The
Respondent testified that he received a telephone call on a Sunday
morning from Mr. Bandini. Mr. Bandini told
him that the milk supplied
to the Appellant had been contaminated with antibiotics. Mr. Bandini
also told him [the Respondent]
that the incident occurred on 8 June
2002. He made a note of the date in his diary. This was handed up
as Exhibit D. This Court
has not had sight thereof.
[10] The Appellant’s
witnesses testified that the incident occurred on 22 June 2002. Mr.
Bandini was regarded by the Magistrate
as an outstanding witness. I
agree. He testified that he telephoned the Respondent on the evening
of 22 June 2002 and told him
that the milk which he supplied had been
contaminated with antibiotics. The Respondent did not dispute this at
that stage. He also
telephoned the Respondent on the Sunday following
the incident.
[11] The documentary
evidence also corroborates the evidence of the Appellant’s
witnesses. I am satisfied that the incident occurred
on 22 June 2002.
The Respondent’s recollection of when this phone call occurred and
when he took samples suggests that his evidence
may be susceptible to
mistake.
[12] On the 24 June 2002
the Appellant’s driver arrived at the Respondent’s premises. He
saw two 25 litre drums containing discoloured
milk. In his experience
the colour of the milk indicated the presence of antibiotics. The
Respondent confirmed in his evidence
that whenever cows were
administered with antibiotics their milk would be collected
separately in containers. This would be used
to feed the calves. The
presence of these two 25 litre drums suggests that, contrary to his
recollection, the Respondent probably
treated cows with antibiotics
in June 2002. The milk which was contaminated must have been
collected as feed because there is no
other plausible explanation for
their presence. Given the Respondent’s failing memory, the Court
cannot exclude this as a probability.
[13] It is common cause
that the milk which was delivered to the Appellant on 22 June 2002
tested positive on the DELVO test. It
is common cause that the
Appellant notified the Respondent that the milk in question contained
antibiotics and that the contents
of the entire compartment mixed
with the Respondent’s milk was not going to be used in the
manufacturing of cheese. It is common
cause that the Appellant
relied upon the DELVO test to prove its defence.
[14] The Appellant did
not bear the onus of proving that the milk was contaminated. It
attempted, however, to lead considerable
evidence about the use and
reliability of the test. I accept, for purposes of this judgment,
that the Appellant has not led expert
evidence to show the workings
of the DELVO test. What the evidence does however demonstrate is that
the Appellant’s conduct is
consistent with its assertion that the
milk was not suitable for use in the production of cheese.
[15] It must follow
therefore that the Respondent failed to discharge the onus resting on
him.
[16] In my view there are
two mutually destructive versions about the reason why the milk was
not used in the manufacture of cheese.
The Respondent could only
have succeeded in his claim if he showed that his version was true
and that of the Appellant false.
He was not able to do so.
See:
NATIONAL
EMPLOYERS’ MUTUAL GENERAL INSURANCE ASSOCIATION V GANY
1931 AD
187.
[17] There is some merit
in the submission that the Respondent could not have administered
antibiotics which would have shown positive
in the morning and then
negative in the afternoon of the day of the incident and for several
weeks thereafter. It is equally improbable
that the Appellant would
have sold the milk as “bottle milk” when it was in a position to
sell the milk profitably to Clarabelle’s
for the production of
cheese. The evidence of the Appellant’s driver does suggest that
the Appellant may well have administered
antibiotics to one or more
cows but due to an oversight this milk ended up in the milk tank. The
Respondent may well have forgotten
that this occurred.
[18] The probabilities
are, at best, evenly balanced. In my judgment, this Court cannot make
a finding on the relative credibility
of the witnesses.
[19] In my judgment, the
Magistrate ought to have arrived at the conclusion that the
Respondent failed to discharge the onus resting
on him.
See:
NATIONAL
EMPLOYERS’ GENERAL INSURANCE COMPANY LIMITED V JAGERS
1984 (4) SA 434
(E) at 444.
[20] There remains the
question of the Appellant’s counterclaim. The Appellant set off
its damages by deducting the amount of
R7 433,60 from the June 2002
payment schedule. The counterclaim must therefore fail. In my
judgment the Magistrate ought to have
granted absolution as against
the Respondent with costs. He correctly dismissed the counterclaim
but for different reasons.
[21] The Appellant has
submitted that the complexity and duration of the action was of such
a nature that the presence of Counsel
was necessary. He submitted
that the Court should make a special order allowing Counsel’s fee.
I am not satisfied that Counsel
was necessary or that the action was
a complicated one justifying the granting of a fee higher than that
allowable in the Magistrate’s
Court.
[22] Consequently, I make
the following order:
1. The Appellant is
granted condonation for the late noting of the Appeal;
2. The Appellant is
granted condonation for the late delivery of Volume 2 of the Appeal
record;
3. The Appeal is upheld
with costs.
4. The Order of the
Magistrate in respect of the main claim is altered to one of
absolution from the instance with costs.
_____________
J.
NXUSANI, AJ
_______________________
C.H.G.
VAN DER MERWE, J
On
behalf of the appellant: Adv. L.J. Engelbrecht
Instructed
by:
Webbers
BLOEMFONTEIN
On
behalf of the respondent: Adv. S.J. Reinders
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
JN/sp