Newstadt v H Amm (Pty) Limited (2328/2002) [2005] ZAFSHC 20 (20 January 2005)

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[2005] ZAFSHC 20
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Newstadt v H Amm (Pty) Limited (2328/2002) [2005] ZAFSHC 20 (20 January 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 2328/2002
In
the matter between:
ALLAN
HENRY NEWSTADT
PLAINTIFF
and
H
AMM (PTY) LIMITED
DEFENDANT
HEARD
ON:
24
NOVEMBER 2004
_____________________________________________________
JUDGMENT:
MUSI
J
DELIVERED ON:
20
JANUARY 2005
[1] The plaintiff is an
adult married man of Clarens in the Eastern Free State. He has been
self-employed as an irrigation technician
and operated under the firm
style of Agrisec. He is essentially an electrician who specialises
in installation of electrical systems
on water irrigation systems on
farms, as well as working on the computer program systems of the
irrigation works. He is suing in
his personal capacity. The
defendant is a company with limited liability registered in terms of
the company laws of the Republic
of South Africa, with its head
office in Bloemfontein. It conducts farming operations at Ladybrand
under the name of Alpha Estates.
It specialises in the production of
vegetables, fruit, bean sprouts, beef and wheat. It is a large scale
producer of these products
and supplies big chain stores like
Woolworths and exports some of its products. It is represented in
these proceedings by Mr. Bernard
Alex Amm its sole shareholder and
director.
[2] During 1999 the
defendant had been engaged in construction of a bean sprout
processing plant at its place of operations in Ladybrand.
It had put
up the necessary buildings as can be seen on the photos in the bundle
of photographs, exhibit “B”. In about June
to July 1999 the
plaintiff came on to the site to attend to installation of the
electrical connections to the bean processing plant
(the plant). He
was assisted by his handyman and sole employee Kgala Isaac Miya
(Miya). He travelled daily from his home to the
defendant’s farm
in a bakkie. He used a small ladder that he normally carried in his
bakkie. At some point he had to go up to
the roof of the building to
connect wires there, but for that his small stepladder could not do,
so he would get bigger stepladders
from the defendant. One morning
he got a stepladder from the defendant and climbed up. When he
wanted to climb down, the stepladder
collapsed causing him to fall.
As a result of the fall, the plaintiff got injured.
[3] The plaintiff’s
case is that he was engaged by the defendant to do the electrical
work on the plant. He alleges that this was
in terms of an oral
agreement entered into by and between himself and Mr. Bernard Amm
(Amm), representing the defendant. The gist
of the plaintiff’s
case is set out in paragraph 4 and 5 of his particulars of claim
which read as follows:
4. It was a material term of the
agreement that the defendant would supply all the necessary
scaffolding and ladders required for
the performance of the
plaintiff’s work in terms of the agreement.
5. The defendant accordingly owed
plaintiff a duty of care to furnish scaffolding and ladders that were
fit for plaintiff’s intended
use.”
The plaintiff goes on to
aver that the specific stepladder that caused him to fall is a metal
tripod ladder which was given to him
by an employee of the defendant,
one Isaac Maile, who was then acting within the course and scope of
his employment, alternatively,
was acting in the furtherance of the
defendant’s business. It is alleged that the said Maile was
negligent in that he supplied
a defective stepladder when he ought
reasonably to have foreseen that it would malfunction. It is alleged
in the alternative that
the defendant was negligent in that he failed
to see to it that the ladders supplied to the plaintiff were in a
proper functioning
condition and safe to use and allowed defective
stepladders to be supplied to the plaintiff.
[4] The defendant denies
the existence of any contract with the plaintiff. Its case is
essentially that it had had a verbal contract
with a firm called Aqua
Irrigation to carry out the work that the plaintiff did on the plant;
that the plaintiff was subcontracted
to Aqua Irrigation. The
defendant specifically disputes the existence of the term in terms of
which it had to provide the plaintiff
with ladders. It is
unnecessary to give further details of the defendant’s plea.
Suffice it to say that it denies any negligence
on its part and
further denies that Isaac Maile was its employee at all material
times.
[5] The parties agreed at
the commencement of the trial to a separation of issues in terms of
rule 33(4) and asked the court to order
that only the issue of
liability be determined at this stage. I granted the application, so
that this judgment is confined to the
question of whether the
defendant is liable for the plaintiff’s injuries sustained as a
result of the fall from a stepladder whilst
working at the
defendant’s farm during July 1999.
[6] It will be noted that
the plaintiff’s claim is not based on negligence arising
ex
delicto
but rather on negligence arising
ex
contractu
.
It is based on breach of the term of the contract that stipulated
that the defendant would supply ladders to the plaintiff to enable
the plaintiff to perform its part of the contract. Implied in the
term is that the ladders would be in a proper, functioning condition
and safe for the intended use, which imposed a duty of care on the
defendant to ensure that the ladders supplied were in a safe and
proper working condition. Breach of such duty would amount to
negligence.
[7] The critical issue
therefore is proof of the existence, not only of the contract but
also of the material term alleged in paragraph
4 of the plaintiff’s
particulars of claim. It is trite law that the onus rests on the
plaintiff to prove the terms of the contract
on a balance of
probabilities. If the plaintiff fails to discharge such onus, that
will be the end of the matter. If he succeeds,
then the further
issues to be resolved would be whether Isaac Maile was an employee of
the defendant and, if so, whether he supplied
a defective stepladder
to the plaintiff and whether his conduct constituted negligence
attributable to the defendant.
[8] The plaintiff’s
case in this regard rests on the evidence of himself and the brothers
Mr. Johannes Marthinus Spamer, popularly
known as Thys (Thys) and Mr.
Hendrik Jacobus Venter Spamer (Kobus). The plaintiff’s employee or
assistant, Miya, made it known
from the onset that he did not know
whether they were doing the job on behalf of Aqua Irrigation or for
the account of his employer.
Nor did he hear what was discussed
between his employer and Amm. His evidence relates to the goings on
whilst they worked on the
plant and the furnishing of the stepladders
to them.
[9] Now all these three
witnesses were, in my view, honest and credible. Though there are
discrepancies in the evidence of each one
of them, these are not such
as to detract from the credibility of each of them. The plaintiff
himself admitted that he occasionally
had blank periods. By that I
understood him to mean that he often became absent minded and lost
concentration in the course of his
evidence. He also admitted that
he could not recall everything due to the long lapse of time, coupled
with the dramatic experience
he has had to endure due to his
drastically deteriorating state of health. He is now wheelchair
bound and at some point he experienced
some kind of seizure during
the course of the trial as a result of which the court had to adjourn
whilst he was being attended to.
He was adamant though that the
events leading to and surrounding his fall remain embedded in his
mind. It is largely what happened
thereafter that he could not fully
recall. In spite of his poor health condition, the plaintiff largely
stuck to the core of his
version notwithstanding extensive
cross-examination.
[10] The plaintiff’s
version is that Kobus, who ran Aqua Irrigation and for whom the
plaintiff had done a lot of subcontracting
work, had recommended him
to Amm for the job of doing the electrical connections on the plant.
Kobus had told the plaintiff to himself
contact Amm and see if they
could agree terms. He had given the plaintiff directions to the farm
and the plaintiff then went and
met Amm who, in the presence of Thys,
showed to him the plant and what the plaintiff needed to do. He
agreed to do the work and
was duly engaged by Amm. Plaintiff had
told Amm that he did not have long ladders that will be needed to
work on the roof of the
plant and Amm agreed that the plaintiff could
use the ladders on the farm as there were plenty of them. No price
was, however, fixed
for his work, but it was nonetheless agreed with
Amm that he should carry on with the work, he believing that the
price would be
fixed later. However, Amm kept on delaying the fixing
of a price and up until the plaintiff got injured and stopped work,
no price
had been fixed. The plaintiff subsequently submitted an
account to the defendant for the work he had done, but got no
response and
no payment to date.
[11] Now, this version
was largely corroborated by Kobus and Thys safe in one respect, to
which I shall revert shortly. Kobus confirmed
that he had
recommended the plaintiff for the electrical work on the plant and
made it clear that the plaintiff was not to do work
on behalf of Aqua
Irrigation. He denied specifically that the plaintiff was his
subcontractor on the plant. Indeed he denied ever
having any work to
do on that project. Thys confirmed that he was present when the
plaintiff first arrived on the scene and that
he and Amm had shown
the plaintiff around the plant and what would be required of him to
do. He emphatically denied that Kobus had
anything to do with the
work for which the plaintiff was engaged or that Kobus did any work
on the plant. He said that after the
plaintiff had been shown around
the plaintiff and Amm went into Amm’s office and he understood that
they had there agreed terms,
but he did not take part in the
discussions and does not know the exact terms. He did hear, however,
that the plaintiff would use
the stepladders on the farm.
[12] One aspect of the
evidence of the plaintiff that caused much probing by Mr. Ploos van
Amstel, for the defendant, is an invoice
issued to the defendant by
Aqua Irrigation on 31 August 1999, and handed in as exhibit “D”.
In that invoice appears an item
entitled “arbeid Allan R2 000,00”.
It is not disputed that the item refers to labour costs due to the
plaintiff. The defendant
suggested that that shows that the
plaintiff was a subcontractor of Aqua Irrigation on the work he did
on the plant. The plaintiff’s
explanation was that he had made a
personal loan from Kobus and Kobus knew that he was doing work for
the defendant for which the
plaintiff was entitled to remuneration.
In other words, Kobus was claiming his refund from the money that
would be due to the plaintiff
from the defendant. The other items on
the invoice relate exclusively to materials to be used on the
defendant’s project by people
working thereon. For example, the
electrical components were meant for use by the plaintiff. It had
been a standing arrangement
for the defendant to order materials for
its projects through the account of Aqua Irrigation which got
substantial discounts from
suppliers. In this way the discounts were
passed on to the defendant and all that it had to do, was pay Aqua
Irrigation, which in
turn would pay the suppliers. The defendant did
not dispute this arrangement. However, the defendant referred to a
similar invoice
exhibit “C” which was issued to F D Lotz. There
too appears an item referring to Allan for visits and transport and
another
item for the amounts of R1 050,00 and R1 350,00
respectively. Defendant’s contention was that this confirms the
plaintiff’s
status as a subcontractor of Aqua Irrigation. But the
plaintiff conceded that he was indeed a subcontractor on that
project.
[13] The plaintiff was
fully corroborated by Kobus on the inclusion of R2 000,00 relating to
Allan’s labour in exhibit “D”.
To some extent Thys also
corroborates them. He says that Kobus had phoned him and inquired
about the plaintiff’s progress with
his work on the plant and Kobus
had indicated that the plaintiff had approached him for a personal
loan and Kobus would rely on being
repaid out of the plaintiff’s
remuneration. Thys saw nothing wrong with such arrangement and he
remarked as follows:
“
So
hy het nie meer brandstof, toe het hy ‘n voorskot gevra of Kobus
hom nie sal help nie. Toe het Kobus dit nou maar nou net hier
afgetrek. Ja, dit is nou seker moeilik, groot besighede werk nie op
hierdie manier nie, maar as ‘n mens maar so hier help en daar,
dan
stuur ‘n mens maar ‘n rekening so deur.”
This is typical of Thys’
frankness and honesty and there are numerous such examples in his
evidence.
In my view, the contents
of exhibit “D” have been fully and satisfactorily explained. The
fact that the plaintiff was a subcontractor
in respect of exhibit “C”
does not mean that he would be a subcontractor of Aqua Irrigation in
all other works. He is fully
corroborated by Kobus that he did not
work exclusively as subcontractor, but that on certain projects he
worked independently on
his own contracts.
[14] But what is the
defendant’s version in regard to the alleged contract with the
plaintiff? Amm is a single witness on this
aspect. His two
witnesses, Mrs. Lynette Esme Ramsay and Mr. Isaac Maile could not
throw any light on what was discussed between
him and the plaintiff.
Amm’s version that the plaintiff was a subcontractor of Aqua
Irrigation has been vigorously denied by both
Kobus and Thys. Now
Kobus is the man who was supposed to have engaged the plaintiff and
Thys was the defendant’s farm manager
at the time and these two men
emphatically denied the defendant’s version. Thys was at the time
in charge of the day to day operations
and he has testified that he
himself put up the building of the plant with the assistance of his
farm labourers including Isaac Maile.
He should surely know who was
engaged on that project. He contradicted Amm completely where Amm
said that the construction of the
plant was a so-called turnkey
operation. It is interesting that Amm says that Kobus would have
provided a quotation for the whole
turnkey operation, but he was not
sure what was the overall price. All he says is that it was not more
than what he could afford
and gives an estimation of about R100
000,00. He initially suggested that Kobus would have given a verbal
quotation. But when confronted
with the evidence of Kobus that Kobus
issues written quotations for every work he does Amm somersaulted and
said there was a written
quotation but he could not produce it. Just
like the register of his permanent employees during 1999 it has
vanished without trace.
[15] Amm
was not a satisfactory witness at all. He was generally vague and
uncertain. For example, take the following passage:
“
When the plaintiff arrived on the
farm, when he came there the first time, did he commence work on that
very same day or not? ---
I seem to recall that he did. He came here
to do what he was supposed to do.
So
he came with all his tools? ---To the best of my knowledge he did.”
And when asked whether he
had discussed providing the plaintiff with ladders, this is how he
responds:
“
You
did not have such a discussion? --- No. It would not be appropriate,
because we would have expected his company to issue him
with whatever
he was required to do.”
The problem is that Amm
could not controvert the plaintiff’s evidence as to the terms of
the contract because he alleges that he
never discussed a contract
with him, it is a matter between the plaintiff and Aqua Irrigation,
about which he knows nothing as well.
In the same breath he could
not recall discussing certain things with the plaintiff. For
example, he could not recall any discussion
regarding ladders.
“
Now, Mr Newstadt maintains that he
believes that he spoke to you on that occasion, do you remember
anything or was there any discussion
regarding ladders with you, sir?
--- I do not recall any discussion regarding ladders at all.”
“
But
you do not recall anything regarding ladders? --- No, I do not.”
But then he denies what
the plaintiff says was discussed. It is a contradiction in terms.
[16] I find that in the
face of the testimony of three credible witnesses who corroborated
each other in material respects, the defendant’s
version cannot
stand and has to be rejected.
[17] Now, it is so that
no price had been fixed for the work that the plaintiff did. In this
regard I refer to my judgment on the
application for absolution from
the instance at the close of the plaintiff’s case.
“
The
work was done with the full knowledge and approval of the defendant.
That a price could not be fixed was due purely to the evasive
tactics
of the defendant’s representative.
In
such circumstances, the only reasonable inference to be drawn is that
the plaintiff would be paid a reasonable and fair remuneration.
The
contract herein is a
locatio
conductio operis
. There is
authority for the view that in that kind of contract, if a price is
not fixed, it is implied that the independent contractor
is entitled
to a reasonable remuneration.
See
in this regard, Wille,
Principles
of South African Law,
1
st Ed. at page 574.”
Nothing has since
transpired in this case that detracts from the validity of that
statement. I hold therefore that the plaintiff
has discharged the
onus of proving the existence of a verbal contract with the defendant
for the carrying out of the electrical connections
to the bean
sprouts processing plant at the defendant’s farm in July 1999 and
it was an implied term of the contract that the plaintiff
would be
paid a reasonable and fair remuneration for his work.
[18] The matter does
not, however, end there. The next question is: Has the plaintiff
proved on a balance of probabilities the
alleged material term that
the defendant was to supply him with stepladders? Put otherwise, has
it been shown that the defendant
undertook to provide the plaintiff
with stepladders? The defendant has specifically disputed that it
had undertaken to supply stepladders.
So that the onus remains on
the plaintiff to prove the specific term on a balance of
probabilities and the fact that I have rejected
the defendant’s
version regarding the existence of the contract as a whole, does not
relieve him of such onus.
[19] The first hurdle is
that the plaintiff is a single witness in this regard. In fact there
is a contradiction between his evidence
and that of Thys. The
plaintiff says that Thys was present in the initial discussions
covering this aspect whereas Thys says that
the terms of the contract
were not discussed in his presence. He only heard after the
plaintiff and Amm had discussed terms in Amm’s
office that the
plaintiff could make use of the ladders on the farm. The plaintiff’s
assistant, Miya, was not present when the
contract was discussed and
could not throw any light on what the terms were. As said previously
he was candid that he could not
even say whether they were
subcontracting for Aqua Irrigation or not.
[20] The matter therefore
falls to be decided on the evidence of the plaintiff alone. The
problem in this regard is that such evidence
is rather vague and
lacks cogency. The gist of his evidence is that he only had a five
foot four legged aluminium ladder which he
carried in his bakkie.
This ladder was, however, not long enough for work on the roof and
for that he would need longer ladders
which, at any rate, his bakkie
could not carry. He says that he told the defendant about this
problem in the following terms:
“
I
asked, I do believe it was Mr Amm if they had ladders I could use and
the reply was more than, we have got more ladders here than
will ever
be necessary. He then said when can you start.”
This is essentially the
gist of the plaintiff’s evidence on the alleged term. It does not
say that this amounted to an undertaking
or that the defendant bound
itself to provide ladders, only that the plaintiff could use the
defendant’s ladders. I think that
the plaintiff’s counsel, Mr.
Camp, realised this and put the following interesting question to the
witness:
“
And so if I understand you
correctly, you would not need to worry about ladders, those would be
furnished by the defendant? --- That
is correct. The only thing I
would have to do was bring the equipment, install it and that would
be it.”
In my view, what the
plaintiff says is a material term is no more than a loose arrangement
in terms of which he could use the defendant’s
long stepladders
whenever he needed them. This conclusion is borne out by the
probabilities in the case. The plaintiff was an independent
contractor who would normally be expected to provide the tools of his
own craft. It is improbable that the defendant would burden
itself
with the contractual duty sought to be imputed to it. A contrary
conclusion would lead to absurd consequences. For instance,
if the
suitable ladders that the defendant had broke down, would it mean
that the plaintiff would stop work until such time that
new ones are
bought? Would defendant be obliged to buy new ones?
[21] I find that the
plaintiff has failed to prove on a balance of probabilities the
existence of the material term averred in paragraph
4 of his
particulars of claim.
[22] Even if it may be
that such a term was agreed upon, in my view, it could only have
related to the two ladders that were used
in construction of the
plant. The evidence is that these two long ladders had been on site.
They were readily available and were
the only ladders suitable for
the plaintiff’s work. Indeed the plaintiff used them prior to the
day of the falling incident.
It could not have been within the
contemplation of the parties that ladders other than those two would
be used. The evidence is
clear that the type of ladder that caused
the plaintiff to fall was not suitable for use on hard or concrete
floors. The plaintiff
disputed this but his evidence in this regard
is contradicted by his witness Thys Spamer, who made it clear that
the tripod ladders
were meant for use only in the orchard. Thys is
in agreement with Amm on this score.
[23] This raises the
further question of negligence. In my view, the plaintiff was
himself negligent in using the particular stepladder.
At any rate,
he should have properly and fully tested it to see if it would hold
before using it. Of course, the issue of negligence
is irrelevant in
view of my finding that the plaintiff has failed to prove the
material term of the contract which allegedly gave
rise to a duty to
furnish ladders that were fit and safe for the plaintiff’s use.
[24] In the same breath,
the question of whether Isaac Maile, who according to the plaintiff’s
version, provided the defective stepladder,
was an employee of the
defendant is rendered irrelevant by my finding aforesaid.
It is my view though,
that Isaac Maile was indeed an employee of the defendant and was
acting within the course and scope of his
employment as such for the
reasons set out hereunder.
[25] The evidence of Thys
Spamer is clear that he was at the relevant time so employed. Thys
was the manager of the defendant at
the time and he surely must have
known who was employed by the defendant. I have found Thys to be a
credible witness and insofar
as there is a conflict between his
evidence and that of Amm and Maile, on the other hand, I would prefer
Thys’s version.
[26] Isaac Maile’s
resignation on 31 May 1996 as per exhibits “J” and “K”
appears to have been a ploy to circumvent the
provisions of the
labour laws. According to Thys it was done on the advice of a labour
consultant. Isaac Maile himself does not
seem to know precisely what
was happening. All he knows is that he was told that there was no
money or work and that he had to go
but that he could return when
work or money was available. He was made to sign exhibits “J”
and “K”, which he did not comprehend,
as he is an illiterate who
only knows how to sign his name. He says that he had no option in
the matter. Interestingly, under cross
examination he initially
denied that he had voluntarily resigned but then quickly somersaulted
and said that he could not recall
fully what happened. What he was
certain about was that he went away and did some independent work at
Marseilles. In 1999 he returned
to Alpha Estate and was virtually
reinstated on the farm. I say this because in spite of his
insistence that he was now an independent
contractor, the evidence
shows that his position was the same as that of other permanent
employees on the farm:
(a) He worked the normal
hours, was given similar benefits, was paid on a monthly basis, was
reinstated in a house on the farm and,
according to Thys he was
subject to Thys authority like all other employees. The only
difference was that Maile earned more than
the others, to wit R800,00
or R1 000,00 per month. According to Thys, this was because he was a
versatile worker and led the group
that worked with him. No wonder
that Miya regarded him a foreman.
(b) Significantly, Maile
was given his unemployment insurance fund card (UIF) only when he
finally left Alpha Estates after 1999.
[27] Isaac Maile did not
impress as a witness. He worked on the very plant that the plaintiff
and Maile were working for at least
two weeks according to his own
evidence. Yet he claimed that he had no contact with them and never
saw them using stepladders.
This is so improbable that it is safe to
say that he was lying. He also claimed that he only heard of the
plaintiff’s fall from
Mahlako Maile after the latter had attended
this trial during 2003, when he himself had been working on the same
plant as the plaintiff.
It is clear that he is falsely distancing
himself from the plaintiff’s fall. I accept the plaintiff’s
version that he was the
one that provided the stepladders or
instructed his juniors to supply them. The fact that the defendant’s
register of employees
for the relevant period has inexplicably
disappeared without trace puts a question mark on the credibility of
its case in this regard.
[28] In conclusion, I
wish to summarise my findings as follows:
(a) The plaintiff has
proved on a balance of probabilities the existence of an oral
contract with the defendant in terms of which
the plaintiff did the
electrical connections on the bean sprout processing plant at Alpha
Estates in July 1999.
(b) The plaintiff has,
however, failed to prove on a balance of probabilities the material
term averred in paragraph 4 in his particulars
of claim, as a result
of which there was no contractual duty of care on the defendant to
provide the plaintiff with stepladders that
were fit and safe for the
plaintiff’s intended use.
(c) Isaac Maile was an
employee of the defendant during the relevant period and did cause
stepladders to be supplied to the plaintiff,
including the stepladder
that caused the plaintiff to fall.
(d) There was, however,
no negligence on the part of the defendant’s employees in providing
the plaintiff with the particular stepladder,
in view of the finding
in (b) above. Furthermore it could not have been within the
contemplation of the parties that the particular
stepladder would be
supplied and the plaintiff was negligent in using it without having
first properly tested it.
[29] In the result, the
issue to be determined in this part of the case is decided in favour
of the defendant. Absolution from the
instance is granted with
costs.
___________
H.M. MUSI, J
On behalf on the
plaintiff: Adv. A C Camp
Instructed
by:
Webbers
BLOEMFONTEIN
On behalf of the
defendant: Adv. C Ploos van Amstel SC
Instructed by:
Honey
Attorneys
BLOEMFONTEIN
/sp