About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2024
>>
[2024] ZALMPPHC 95
|
|
Kranskop Dierekliniek & Wilddieste and Another v BGM Trading CC t/a Andre Kock & Son (HCA37/2023) [2024] ZALMPPHC 95 (18 June 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: HCA37/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
DATE: 18 JUNE 2024
In the matter between:
KRANSKOP DIEREKLINIEK
&
WILDDIESTE
CC
1ST APPELLANT
DR DEWET
BARNARD
2ND APPELLANT
and
BGM
TRADING
88
CC
t/a
ANDRE
KOCK
&
SON
RESPONDENT
JUDGEMENT
MATHABATHE
AJ
Introduction
[1]
The First appellant is Kraganskop
Diereklenniek en Wilddientse CC, a close corporation, conducting
business as veterinary surgeons,
second appellant Dr De
Wet Branard, a veterinary surgeon and the
respondent is BG Trading 88 CC, a close corporation trading as
profession auctioneers.
The
appellants appeal against the whole Judgment and orders granted by
Modimolle Reginal Court on 5 May 2023 handed down by Magistrate
PT
Manthata (Court a
quo).
[2]
This appeal flows from the action which was
instituted by the respondent against the appellants claiming the sum
of R 381, 762,91,
wherein the respondent sued the first and second
appellants for damages as a result of the appellants not having been
informed
the respondent
timeously
of the fact that five bulls that were sold as breading
stock by the appellant, an auctioneer, at
an auction on 27 May 2016, actually
had
a serious disease and could only be sold at slaughter
stock price, which is lower than the
breading stock price.
[3]
The Court a
quo
granted judgement in favour of the
Respondent against the first appellant alternatively the second
appellant for payment in the
sum of R 381, 762,91 together
with
interest
calculated
therefore
at
the
rate
of
9%
per
annum
at
tempore
morae.
The facts
[4]
The respondent's claim against
the appellant is found on three different
ground and cause of action to be specific:
4.1
Firstly,
based on the agreement entered into between the parties that the
appellants would be responsible for the damages claimed
on the basis
set out in paragraph 19
[1]
,
which
meeting was held partly orally and partly in written entered into on
31 May 2016, at or near Hammanskraal.
4.2
Secondly, based on the negligent
breach of the agreement
between
appellants and the respondent, pertaining
to the rendering of professional veterinarian
services by the appellants
to the respondent, regarding
the testing of illnesses for the cattle to
be sold on the auction on 27 May 2016.
4.3
Thirdly was instituted in the
alternative to claim one, based on delict, namely breach of a legal
duty the appellants had towards
respondent
pertaining to their professional duties and
obligations, not to cause the respondent
damages and not to act negligently.
[5]
The respondent's claim relied on the
following facts, which are common cause:
5.1
The appellants provided information to the
respondent before commencement of the auction, that the five bulls
were free from any
diseases, and that the auction took place on the
basis of those facts.
5.2
Only after the auction, the respondent was
informed by the appellants that the bulls and other cattle had in
fact tested positive
for an illness called Trichomonas Foetus and
Campylobacter Fetus (commonly referred to as Trich). The seller, a
certain Mr. Wayne
van den Burgh, insisted on payment of the amounts
based on the bids
on
the auction, that
were
bids for the value
of
breading stock instead of slaughter stock. Respondent paid those
amounts to Van Den Burgh in terms of their agreement.
5.3
Slaughter
stock
is worth much less then breeding stock. The respondent
had to cancel certain sale transactions
entered into with successful bidders at the auction, as a result of
the fact that the cattle
had been infected with Trich and Van Den
Burgh claimed
full
payment
of the
price achieved at the auction for the cattle on the basis of breading
stock, in terms of his agreement with respondent.
5.4
After the auction, a meeting was held
between representatives of the respondent, the second
appellant
representing
the
first
appellant
and Van Den Burgh, pertaining
to the matter, and that it was decided
that the bulls would be sold at another
auction as slaughter stock and that the difference between the
breeding stock prices and
the slaughter stock prices would be paid to
the respondent by first and second appellants, including all the
unnecessary costs
caused as a result of the cancellation
of certain
agreements with bidders after the auction.
5.5
The respondent alleges that this
constituted a binding agreement between appellants and the
respondent, but the appellant denied
that such an agreement was
entered into.
[6]
The appellants raised the following
defenses:
6.1
That the initial incorrect report of the
appellants that the bull not is ill, did not alter the status of the
bulls concerned, which
were at all material times diseased, and as
such the appellants did not cause the damage as alleged, being the
difference
in the
value
of breeding
stock
and
the value
of the
bulls as slaughter stock.
6.2
The agreement relied upon by the respondent
is denied and disputed by the appellants.
6.3
The appellants
deny that the respondent
was obliged to pay the full proceeds of the
cattle at breeding stock price to Van De Burgh, and that respondent
therefore failed
to mitigate its damages.
6.4
The appellant
raised a further defence and argued as not
pleaded, such as that the second appellant was coerced and threatened
into the agreement
relied upon by respondent. The respondent
submitted that the appellant
cannot
rely on such defenses.
[7]
The
evidence
that
was
placed
in
the
Court
a quo
by
the
plaintiff
("respondent")
Mr Van Vuuren:
7.1
He testified that the appellants were
requested to investigate whether the
cattle
brought by Van Den Burg had any illnesses, and especially for TB and
Trich, so that they could be sold as breeding cattle.
7.2
After the auction, and after the bulls had
been sold as breeding stock, at approximately
17h00, Van Vuuren was informed by
appellants that some of the bulls had been tested positive for Trich,
and that the previous report
that was provided that morning was
wrong.
7.3
Mr. Van Vuuren testified that he had to
phone purchasers, and that the respondent
had to cancel some of the agreements
that were entered into at the auction.
7.4
He testified that it was agreed with the
second appellant, at the meeting in Hammanskraal, acting
on
behalf
of
the
first
appellant,
that
the
cattle
that
came back to the respondent
after
cancellation
of
purchase agreements, would be thereafter auctioned as slaughter
cattle, and that the appellants would be
responsible for the difference between the value of such cattle as
breeding cattle as opposed
to slaughter cattle. That was done shortly
after the auction by way of a further auction held by the respondent.
7.5
Van Vuuren testified that the cattle had to
be transported back to the respondent
at
the
cost
of the respondent
and
had
to be held in a
feedlot
before they could be sold at the second auction.
7.7
Van Vuuren testified how the damages
calculated and as to the costs of breakdown, transport and
administrative costs.
He
personally verified the correctness
of
the amounts
utillised
to make up the damages claim, and that he had personally verified the
amounts.
7.8
An affidavit in terms of the
Electronic Communication
and
Transactions Act was also handed up as Exhibit A, pertaining to the
correctness of the documents
presented
in evidence, but
this
was
for
some
reason
not
made part of the records. However, the evidence in terms of the
Electronic Communication and Transactions Act was evidence as
to
correctness of the amounts making up the damages. This was confirmed
by a concession by evidence
of
appellants' legal representative, Mr Fyl "It seems
to me that
what
is now offered as evidence is more or less common cause in this
matter, so I will not object to it".
7.9
Van Vuuren also testified about the
discussion that was held at the meeting between himself, Van De
Burgh, and the second appellant
and others, where the
agreement
was
reached
that
the
appellants
would pay
for
the
damages
for the cattle that were retuned and that would be sold at another
auction, at slaughter cattle prices.
7.10
The respondent
provided
to
the appellant
all
the
necessary
documentation and amounts for purposes of calculation of the damages.
The appellant attempted to obtain
payment from their insures, but they were not successful. Only
thereafter they decided to dispute
the claim of the respondent.
7.11 Van Den Burgh was
paid by the respondent in terms of their agreement, the full amount
of the bids achieved at the auction,
based on the value of breeding
cattle that was obtained for his cattle at the auction.
7.12 It is recorded that
under cross-examination Van Vuuren testified that if Dr Barnard
(second appellant) had not made the mistake
and if he knew of the
status of the cattle before the auction, he would have engaged with
Van Burgh about it and the respondent
would not have sold the cattle
as breeding cattle.
7.13
Vun Vuuren also testified that he
trusted the appellants and that he would not have
sold the
cattle
as breeding
cattle, if he had
known
that
they
had
illnesses.
7.14
Van Vuuren again reiterated in his
evidence, the agreement between the appellants and the respondent and
terms thereof, that was
reached at the meeting at Hammanskraal
after the auction, in cross-examination.
7.15
It is clear from reading of the
cross-examination, that no version of the appellants in particular as
to the meeting and the agreement
reached there, was ever put to Van
Vuuren is cross-examination, and therefor the version of the facts of
Van Vuuren stand uncontested.
7.17
Dr Barnard
(second
appellant)
testified
on
behalf
of
the
appellants:
He testified about the version of the agreement, without his version
understating thereof ever having been put in cross-examination,
to
Van Vuuren.
7.18
Dr Barnard testified
that
he
did not cause the disease, that he only
cause delay in the knowledge of the
disease, but that the disease was already present in the herd, and
that herd did not have breeding
value because of the presence of the
disease.
7.19
Dr Barnard disputes having entered into any
agreement as alleged by the respondent, which version was never put
to Van Vuuren.
7.20
Dr Barnard conceded
that the auctioneer
wrongly
represented
the
status
of the
cattle at the auction to prospective purchasers and that he was the
cause thereof.
7.21
Dr
Barnard
also
conceded
that
the
auctioneer
had
no
choice
but
to
cancel agreements with purchasers and to
provide credit to them.
[8]
It is apparent that the cancelled sales
were debited on the account of the first appellant by agreement, and
the affected cattle
were then sold by way of another auction, which
a
difference,
after
costs
been
taken
into
account,
of
R
381,
762,91,
on the account of the first appellant with respondent. That is the
amount that was claimed by the respondent.
[9]
That difference was due and owning by the
auctioneer to the seller, for purposes of payment
of the full purchase
price
of
the goods
advertised
and sold as breeding stock at the auction.
The full purchase price obtained at the original auction for the
affected cattle were
paid by the respondent to the seller Van De
Burgh, which meant that the respondent was out of pocket with the
claimed amount.
[10] Dr Barnard argument
is that no damages were caused by the appellants, because the cattle
had always been affected with illness,
and that there was therefore
no difference in the status of the cattle, and therefore no damages
arose.
[11]
Under South African law, claims for damages
are financial claims that are brought to compensate
a plaintiff as a result of a loss-causing
event that occurred because of the fault of the defendant.
[12]
A claim for damages may be instituted by a
plaintiff: (a) in the event of a breach of contract; (b) in the event
that the defendant
has committed a delict (tort) against the
plaintiff; or (c) where there has been a breach of a statute that
provides for an award
of damages or compensation
in the event of such a breach.
[13]
The court a
quo,
correctly noted that what is in dispute
is whether as a result of the mistaken result of the test by Dr
Barnard there was damages
caused. And if the answer is in the
positive whether expenses were incurred as a result thereof and
whether Dr Barnard is liable
for the expenses incurred. And whether
Dr Barnard was pressurized
or
put under duress to accept
he
caused
loss as a
result of his mistake,at the meeting held at Carousel and whether he
agreed to the holding of the second auction where
the cattle would be
sold as slaughtering breeds to recover the loss.
[14]
In
Country
Cloud Trading v MEC, Department of Infrastructure Development
[2]
,
the
Constitutional Court summarised the approach our law takes to
wrongfulness by pointing out that the wrongfulness
enquiry
focuses
on 'the [harm-causing] conduct and goes to whether the policy and
legal convictions of the community,
constitutionally
understood, regard it as acceptable. It is based on the duty not to
cause harm -
indeed
to respect rights -
and
questions the reasonableness of imposing liability'.
[15]
Negligence, or culpa, may be defined as the
failure to exercise towards another in given
circumstances
the
care
which the
law considers
a
reasonable
and
prudent man would exercise towards him in those circumstances.
[16]
"Legal negligence," said INNES,
C.J., in
Union
Government
v. National
Bank
of South Africa Ltd
1921,
A.O. 121, "consists in a failure to exercise that degree of care
which, under the circumstances, it was the duty of the
person
concerned to use towards
another.
It involves, therefore, the existence
of
a duty to take care owed
to
the complainant."
Conduct
[17]
Conduct
is
a voluntary
human
act or omission.
It
has to be done by a person himself or through a person using an
instrument.
It
also has to be done through the free will of a person.
Wrongfulness
[16]
Without
wrongfulness, a defendant may not be held liable even if his conduct
may have been negligent and caused harm to the plaintiff
[3]
.
The general test for determining whether conduct
[4]
which causes harm to another is wrongful is the legal convictions of
the community
(bani
mores)
[5]
.
[17]
The
basic principles underlying the element of wrongfulness have been
summarised as follows by the Constitutional Court in
Le
Roux
and
Others v Dey
[6]
"In the more recent
past our courts have come to recognise, however, that in the context
of the law of delict: (a) the criterion
of wrongfulness ultimately
depends on a judicial determination of whether - assuming all the
other elements of delictual liability
to be present - it would be
reasonable to impose liability on the defendant for the damages
flowing from specific conduct; and
(b) that the judicial
determination of that reasonableness would in turn depend on
considerations of public and legal policy in
accordance with
constitutional norms. Incidentally, to avoid confusion it should be
borne in mind that, what is meant by reasonableness
in the context of
wrongfulness has nothing to do with the reasonableness of the
defendant's conduct (which is part of the element
of negligence), but
it concerns the reasonableness of imposing liability on the defendant
for the harm resulting from that conduct."
(emphasis added)".
[18]
In
determining the reasonableness or unreasonableness of the defendant's
conduct for purposes of wrongfulness, various factors may
play a
role. These factors include inter alia: (a) the nature and extent
of
the harm; (b) whether
the
harm was subjectively foreseen or reasonably foreseeable
[7]
;
(c)
the possible value to the defendant or society of the harmful
conduct; (d) the costs and effort of steps which could
have
been
taken
to
prevent
the
loss;
(e)
the
degree
of
probability
of
the
success of preventative measures; (f) the nature of the relationship
between the parties; (g)
whether
the
costs
of
preventing
the
harm
would
have
been
proportional
to
the
harm
that
the
plaintiff
could
suffer;
(h)
the
motive
of
the
defendant;
(i) economic
considerations;
U)
the
legal position
in
other
countries;
(k) ethical and moral issues; (I) as well as other considerations of
public interest or public policy, including the
values and norms
underpinning the Constitution, 1996 and the Bill of Rights.
Fault
[19]
Fault exists either in the form of
intention or in the form of negligence. Negligence refers to when a
person is blamed for an attitude
or conduct of carelessness,
thoughtlessness or imprudence
because,
by giving insufficient
attention
to his actions, he
failed
to
adhere
to
the
standard
of
care
that
is
legally
required
of
him.
The criterion that has been adopted by our law to establish whether a
person has acted
carelessly
and
therefore
negligently
is
the
objective
standard
of
the reasonable
person. The appellants
are to be held negligent if the reasonable
person in their position would have acted
differently, and according to the courts, the reasonable person would
have acted differently
if
the unlawful causing
of
damage was reasonably foreseeable and preventable.
Causation
[20]
There has to be a casual nexus between
conduct and damage that is required for a delict. The Court
a
quo
correctly found that the respondent
incurred costs forms a causal connection, between the negligent
conduct and/or misrepresentation
by the appellants, resulting in
damages suffered by the respondent.
Damage
[21]
A harmful consequence
has to have occurred. Furthermore, damages
are a monetary equivalent of damage that is
awarded to a person with the aim of
eliminating as fully as possible his past
as well as his future patrimonial and non patrimonial
damage. Therefore, money
is
an
equivalent
to
damages. One
of
the ways in which damage takes place is
when the utility value (expressed in monetary terms) of a positive
element of an estate
is reduced.
[22]
In
casu
the
second appellant "Dr Barnard conceded that the auctioneer
wrongly represented the status of the cattle at the auction to
prospective purchasers and that he was
the
cause thereof
and
conceded
further
that
the
auctioneer
had
no choice but to cancel agreements with
purchasers and to provide credit to them".
[23]
Misrepresentation may be actionable where
there is a materially false statement of fact
made
by
one
party
(or
their
agent)
that
is intended
to,
and
does, induce
the other party to enter the contract.
A statement may be made in writing, orally
or even by conduct (making the goods tell a
lie about themselves). A mere statement of opinion, provided
it is
genuinely
held, is not
a
statement
of
fact. However, a statement of opinion by someone who is in a position
to know the facts will be regarded as a statement of fact.
[24]
In
Hansa
Silver (Pty) Ltd and Others v Obifon (Pty) Ltd tla
The
High Street Auction Company (192/2014)
[2015] ZASCA 54
at para 26,
van der Merwe AJA stated:
"In my view the
enquiry should center on whether the non-disclosure of a vendor bid
in any given case constituted a misrepresentation.
That question must
of course be decided on the facts and circumstances of each case. If
the failure to identify a vendor bid as
such does constitute a
misrepresentation in the particular circumstances, an auction sale
may in terms of general principles of
contract be avoided if the
misrepresentation was material and induced the sale."
[25]
In
Agri
Operations Limited v Hamba Fleet (Pty) Limited
2021
(1) SA 91
(SCA) the following was stated:
"[11] As to the
general principles concerning the exercise of a discretion by a
court, the Constitutional Court's judgment
in the
National
Coalition
for
Gay and
Lesbian
Equality
&
others
v
The
Minister
of
Home
Affairs
&
Others
has made it clear that an appeal court will not interfere with a
lower court's discretion unless that court was influenced by wrong
principles or a misdirection of the facts or that court reached a
decision the result of which could not reasonably have been made
by
the court properly directing itself to all the relevant facts and
principles. The court
a
quo
was mindful
of the fact that its discretion must be 'exercised on judicial
grounds'."
Conclusion
[26]
In my view, appellants have not established
reasonable prospects of success, that the appeal court will come to
different conclusion.
The appeal falls to be dismissed with costs.
[27]
It is undisputed
that the appellants provided information to
the respondent before commencement
of
the auction, that the five bulls were free from any diseases, and
that the auction took place on the basis of those facts, the
appellants wrongly represented the status of the cattle at the
auction to prospective purchasers.
[28]
In view of the fact that the respondent
incurred costs forms a causal connection, between the negligent
conduct
and/or
misrepresentation by the appellants, resulting in damages suffered by
the respondent. The appellants attempted to obtain
payment from their
insures, but they were not successful, this demonstrate that the
appellants acknowledge
their
shortcoming, and
only
thereafter
they
decided
to
dispute
the claim of the respondent, which
afterthought.
[29]
In the result, the following order is made:
The appeal must fail, and
it is accordingly dismissed with costs.
Mathabathe A.J
Acting Judge of the High
Court of South Africa Limpopo Division
Polokwane
I agree
Kganyago J
Judge
of the High Court
of
South Africa
Limpopo Division
Polokwane
Appearances
For
the appellants:
M
Van Aarde
Instructed
by:
Gouse
Van Aarde Incorporated
E-mail:
mareli@.gvainc.co.za
For
the respondent:
G
Cooper
Instructed
by:
JJ
Jacobs Attorneys Inc
E-mail:
hannes@illcobsinc.co.za
Date
of Hearing:
1
March 2024
Date
of Judgement:
1
June 2024
[1]
Vol
I
of
5 page 62-63 of the records
[2]
Country
Cloud
Trading
v
MEG,
Department
of
Infrastructure
Development
[2014]
ZACC
28;
2015
(1)
SA
1
(CC)
[3]
Neethling,
Potgieter
and Visser (2015)
Law
of Delict
7th
Edition 33 (Neethling).
[4]
Conduct
for purposes of determining
delictual
liability can take the form of either a positive act or an omission.
Neethling 30. It is important to distinguish between
positive acts
and omissions when enquiring, whether conduct is wrongful since the
enquiry into wrongfulness
is
normally more intricate in the event of an omission.
[5]
Minister
van Polisie v Ewels
1975
3 SA 590
(A) 597 (Ewels). Neethling 36.
[6]
Le
Roux and Others v Dey
2011
(3) SA 274
(CC) para 122 (Dey).
[7]
MTO
Forestry (Pty) Ltd v Swart NO
2017
5 SA 76
(SCA) (MTO), Leach JA