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[1989] ZASCA 121
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Bayer South Africa (Pty) Ltd. and Another v Viljoen (401/88) [1989] ZASCA 121 (28 September 1989)
wlb
Case No 401/88
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal of:
BAYER SOUTH AFRICA (PROPRIETARY) LIMITED First Appellant
[Defendant in the Court
a quo
] and
W P (CO-OPERATIVE) LIMITED Second Appellant
[Third Party in the Court
a quo
]
versus
JACOBUS JOHANNES VIWOEN Respondent
[Plaintiff in the Court
a quo
]
CORAM: JOUBERT, VIVIER, MILNE, STEYN JJA et
NICHOLAS AJA
Date of Hearing
: 31 August 1989 and 1 September 1989
Date of Judgment
:
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The respondent in this appeal was the plaintiff in the court
below. The first appellant, Bayer South Africa (Proprietary) Limited
("Bayer"),
was the defendant and the second appellant, W.P. (Co-Operative) Limited ("WPK"),
was a third party who became such in
terms of Rule 13 of the Rules of Court. The
plaintiff, a farmer in the Hex River Valley, successfully sued Bayer and WPK in
the Cape
of Good Hope Provincial Division for damages arising out of blemishes
and damage to his crop of table grapes caused by an infestation
of powdery
mildew (oidium tuckeri, poeieragtige skimmel, witroes, to which I shall refer as
oidium or powdery mildew) during the
1983/84 season, it being alleged that this
infestation was due to the lack of effectiveness of a fungicide, Bayleton, which
the trial
court (BURGER J) held had been distributed by Bayer to WPK and sold by
the latter to the plaintiff. The quantum of the plaintiff's
damages was agreed
during the trial in the sum
-2-
of R111 589,05 and judgment was given in this: amount against Bayer and WPK
jointly and severally. They both appeal to this court
with leave of the court
a quo
. The plaintiff originally sued Bayer alone, founding his action on
breach of contract and alleging sales of Bayleton by Bayer to
him. Bayer filed a
plea denying,
inter alia
, that it had sold the Bayleton to the plaintiff.
The plaintiff thereafter issued a third party notice to WPK alleging that the
latter
had sold the Bayleton to him. At the same time the plaintiff amended his
pleadings so as to allege an alternative cause of action
against Bayer based
upon negligent misrepresentation.
The Claims
:
For reasons which will become apparent, the exact basis upon which the
plaintiff claimed against Bayer and WPK is important, and I
accordingly
reproduce in full the plaintiff's amended particulars of claim against Bayer,
and that portion of
-3-
the annexure to the plaintiff's third party notice to WPK which sets out the
case which the plaintiff pleaded against WPK.
The plaintiff's amended particulars of claim
:
"1. Eiser is JACOBUS JOHANNES VILJOEN, h volwasse manspersoon en boer van
'Millhurst', De Doorns, Kaap.
2. Verweerder is BAYER SUID-AFRIKA (EIENDOMS) BEPERK, 'n maatskappy met beperkte
aanspreeklikheid behoorlik ingelyf kragtens die
Maatskappywette van die
Republiek van Suid-Afrika, met sy geregistreerde hoofkantoor en/of vernaamste
plek van besigheid geleë
te Isando, Transvaal.
3. Te alle saaklike tye hierna genoem:
(1) was Verweerder, onder andere, 'n handelaar in en/of h verspreider van
giftige middels insluitende h sistemiese swamdoder bekend
as BAYLETON EK (hierna
'BAYLETON') vir die bespuiting en/of bestryding en/of beheer van poeieragtige
skimmel (
Oidium tuckeri
) op wyn en tafeldruiwe;
(2) het Verweerder teenoor die pubiiek en in besonder teenoor Eiser voorgegee
dat hy oor bekwaamheid en deskundige kennis ten opsigte
van BAYLET0N
beskik.
4. (1) Gedurende ongeveer Oktober 1983 en op Eiser
se
-4-
voormelde plaas het Verweerder BAYLETON vir aanwending en toediening aan Eiser
se wingerde aan Eiser verkoop en gelewer;
(2) Dit was 'n uitdruklike,
alternatiewelik
stilswyende, en in iedere
geval wesenlike bepaling van die gemelde ooreenkoms dat BAYLETON geskik sou wees
vir die doel waarvoor
dit verkoop is, naamlik, as 'n sistemiese swamdoder vir
die beheer van poeieragtige skimmel op wyn en tafeldruiwe in Eiser se wingerde
en dat dit nie Eiser se druiwe sou beskadig of Eiser se oes benadeel nie;
(3)
ALTERNATIEWELIK
tot onder-paragraaf 4(2) hierbo beweer Eiser soos
volg:
(a) Ten tyde van die aangaan van die voormelde
ooreenkoms was Verweerder
daarvan bewus:
(i) dat Eiser h boer is;
(ii) dat Eiser die BAYLETON
benodig vir die toediening en aanwending vir die beheer van poeieragtige skimmel
op die druiwe in Eiser
se wingerde;
(iii) dat indien BAYLETON nie die poeieragtige skimmel op die druiwe in die
wingerde beheer nie en/of die druiwe en wingerd sou beskadig
en/of Eiser se oes
nadelig sou aantas, Eiser skade sou ly;
(b) Gemelde ooreenkoms is gesluit op die basis van
die voormelde
kennis.
5. Alternatiewelik tot paragraaf 4 beweer
Eiser: (1) Verweerder as 'n instansie wat teenoor die publiek voorgee dat hy oor
bekwaamheid
en deskundige kennis ten opsigte van BAYLETON beskik was bewus
daarvan dat
-5-
Eiser op sy tegniese advies sou steun by die aankoop van BAYLETON;
(2) Daar het gevolglik 'n regsplig op Verweerder gerus om vir Eiser op 'n
bekwame en deskundige wyse en sonder nalatigheid te adviseer
aangaande die
doeltreffendheid van BAYLETON as h sistemiese swamdoder vir die beheer van
poeieragtige skimmel op wyn en tafeldruiwe;
(3) Teenstrydig met die gemelde regsplig het Verweerder nalatiglik die BAYLETON
voormeld aanbeveel terwyl dit nie geskik was vir
die doel waarvoor Eiser
dït gekoop het, naamlik as h sistemiese swamdoder vir die beheer van poeier
op wyn en tafeldruiwe nie.
6.
Gedurende Oktober 1983 tot Maart 1984 het Eiser BAYLETON-aan sy wingerde
voormeld toegedien.
7. Teenstrydig met Verweerder se verpligting as h handelaar en/of verspreider
van BAYLETON,
alternatiewelik
teenstrydig met die bepaling van die
ooreenkoms,
alternatiewelik
nalatiglik is die poeieragtige skimmel op die
druiwe nie deur die aanwending en toediening van BAYLETON beheer nie en is Eiser
se
oes nadelig aangetas.
8. As gevolg van Verweerder se voormelde kontrakbreuk,
alternatiewelik
nalatigheid het Eiser skade gely ten bedrae van R93 542,00 ten opsigte van die
betaling van welke bedrag Verweerder regtens aan Eiser
aanspreeklik is."
-6-
The plaintiff's claim aqainst WPK
:
"7. Eiser beweer gevolglik teenoor die Derde Party as volg: Te alle saaklike tye
hierna genoem:
(1) Was die Derde Party onder andere, h handelaar in of 'n verspreider van
giftige middels insluitende 'n sistemiese swamdoder bekend
as BAYLETON EK
(hierna BAYLETON) vir die bespuiting en/of bestryding en/of beheer van
poeieragtige skimmel (
Oidium tuckeri
) op wyn en tafeldruiwe.
(2) Het die Derde Party teenoor die publiek en in die besonder teenoor Eiser
voorgegee dat hy oor bekwaamheid en deskundige kennis
van BAYLETON beskik.
(3) Gedurende ongeveer Oktober/Desember 1983 het die Derde Party BAYLETON vir
aanwending en toediening aan Eiser se wingerde aan
Eiser verkoop en gelewer.
(4) Dit was 'n uitdruklik alternatiewelik stilswyende en in ieder geval
wesenlike bepaling van die gemelde ooreenkoms dat BAYLETON
geskik sou wees vir
die doel waarvoor dit verkoop is, naamlik as 'n sistemiese swamdoder vir die
beheer van poeieragtige skimmel
op wyn en tafeldruiwe in Eiser se wingerde en
dat dit nie Eiser se druiwe sou beskadig of Eiser se oes benadeel nie.
(5) Alternatiewelik tot onder-paragraaf 7(4) hierbo beweer Eiser soos
volg:
(a) Ten tyde van
die aangaan van die voormelde ooreenkoms was die Derde Party daarvan
-7-
bewus:
(i) Dat Eiser h boer is;
(ii) Dat Eiser die BAYLETON benodig vir die toediening en aanwending vir die
beheer van poeieragtige skimmel op die druiwe in Eiser
se wingerde; en
(iii) Dat indien BAYLETON nie die poeieragtige skimmel op die druiwe in die
wingerde beheer nie en/of drúiwe en wingerd beskadig
en/of Eiser se oes
nadelig sou aantas Eiser skade sou ly. (b) Gemelde ooreenkoms is gesluit op die
basis
van die voormelde kennis.
(6) Gedurende Oktober 1983 tot Maart 1984 het Eiser
BAYLETON aan sy wingerde
voormeld toegedien.
(7) Teenstrydig met die Derde Party se verpligting
as 'n handelaar en/of
verspreider van BAYLETON,
alternatiewelik teenstrydig met die bepaling
van
die ooreenkoms is die poeieragtige skimmel op
die druiwe nie deur die
aanwending en toediening
van BAYLETON beheer nie en is Eiser se
oes
nadelig aangetas.
(8) As gevolg van die Verweerder se kontrakbreuk,
alternatiewelik nalatigheid
en/of die Derde
Party se kontrakbreuk het Eiser skade gely ten
bedrae van
R93 542,00 ten opsigte van die
betaling van welke bedrag die Verweerder en
die
Derde Party aan Eiser aanspreeklik
is."
The reference in paragraph 3(1) of
the particulars of claim to
"Bayleton EK", is a reference to Bayleton Emulsifiable
-8-
Concentrate. This was registered as an agricultural remedy in terms of s3 of
the Fertilisers, Farm Feeds, Agricultural Remedies and
Stock Remedies Act, No 36
of 1947, on 6 October 1981.
The claim aqainst BAYER
The court
a quo
found that no
privity of contract between the plaintiff and Bayer had been established and
that the plaintiff accordingly had to
prove negligence on the part of Bayer. It
found that such negligence had been established. The finding that no privity of
contract
existed between the plaintiff and Bayer was not challenged, and we are
not here concerned with a product which is alleged to have
damaged the
plaintiff's crops nor was it alleged that the product was "dangerous" or
"unsafe". It is common cause that what damaged
the plaintiff's crops was the
oidium. What we are concerned with is the alleged failure of Bayer's product to
control the outbreak
of
-9-oidium on the plaintiff's grapes.
The issue
:
The main question in the appeal is whether or not the
trial court was correct in holding that the plaintiff had established the
requisites
of an action based upon negligent misrepresentation. It was common
cause that in order to do so the plaintiff had to prove that:
(a) Bayer made a statement that Bayleton was suitable for the purpose for which
the plaintiff bought it namely, for use as a systemic
fungicide for the control
of powdery mildew on wine and table
grapes;
(b)
this
statement was incorrect;
(c)
Bayer was
negligent in making the statement; and
(d) the damage which the plaintiff suffered was caused by the making of the
statement i.e. that the plaintiff was induced to apply
Bayleton by reason of the
statement and
-10-
that the cause of the damage was the incorrectness of the statement made by
Bayer.
The representation
:
It is, I think, a necessary implication from
para.5(3) of the plaintiff's particulars of claim (set out above) that the
plaintiff
alleged a representation by Bayer that Bayleton was suitable for the
purpose for which the plaintiff bought it, namely, as a systemic
fungicide for
the control of powdery mildew on wine and table grapes. One searches in vain for
any particularity in the pleadings
or the evidence as to how, when or where such
representation was made, but it seems to be common cause that Bayer, by
labelling its
product, made the representation contained in the label to
whosoever might read it. (When I say "its" product I mean the product
in which
it was a dealer and in respect of which it
-11-
represented to the public and to the plaintiff that it had expert knowledge
and competence. It is common cause that Bayer is a company
incorporated in terms
of the Company Laws of the Republic and that it has its registered head office
in the Transvaal. It appears
from the evidence of one of its employees, one
Jacobs, that Bayleton was manufactured and formulated by the German company,
Bayer
AG, at Dormagen in Germany and then shipped in 200l containers to Cape
Town and thence to Paarl where it was packed into 25l and
5l containers by Bayer
i.e. the South African company.) The relevant portion of the label recites that
Bayleton is poisonous, that
it is a fungicide and an emulsion for agriculturai
use and that it is "a systemic fungicide for the control of powdery mildew for
wine and table grapes ...". It also recites that the active ingredient is
Triadimefon. The label also contains various warnings and
precautions and the
words in bold
-12-
letters "DIRECTIONS FOR USE: USE ONLY AS DIRECTED". These words must be taken
to refer to, or at least to include, the recommendations
which are set out in
tabular form on the label. The relevant portion of the recommendations reads as
follows:
SEE ORIGINAL JUDGEMENT PAGE
It was also argued that the "Directions" would
include advice given by Bayer's representations.
The trial court referred to the fact that in an advertisement Bayer had
extended the following invitation:
-13-
"Vir verdere deskundige advies en beplanning van u spuitprogram tree in
verbinding met u BAYER verteenwoordiger"
and the
plaintiff sought to rely upon what is described in
his heads of argument as
"... tegniese hulp in die
beplanning en in die uitvoering van sy
spuitprogram". This
appears to refer to advice given by one Jooste,
a
representative of Bayer who, according to the plaintiff,
called
regularly at his farm and with whom he consulted in
regard to his spray
programme and generally with regard to
the application of Bayleton. The
plaintiff also said, in
effect, that he regarded such advice as overriding
what
appeared in Bayer's mahual e.g. with regard to the correct
intervals
between spraying. Jooste was called by the
plaintiff as a witness and I shall
refer to the effect of
his advice later. As already indicated, the case
pleaded by
the plaintiff was that the defendant represented that
-14-
Bayleton was suitable for the control of oidium on wine and table grapes.
Subject to certain qualifications, Bayer admitted that it
made such a
representation in the label on the drums in which the Bayleton was sold. The
first qualification sought to be attached
is by the insertion of the word
"ordinarily" before the word "suitable". The second is that the representation
was subject to the
proviso that Bayleton was applied "at appropriate times,
intervals and strengths and under proper conditions and by correct methods."
Further particulars for trial supplied by Bayer stated that by "appropriate" was
meant "as directed on the Bayleton label and spray
programme". This latter
qualification is clearly correct since the representation contained in one part
of the label is qualified
by the instruction to "use only as directed" and the
directions are set out in the label.
-15-
In order to determine the ambit of the representation which is admitted to
have been made, it is necessary to consider what was known
to the parties about
the nature of the fungus disease which Bayleton was intended to control.
Evidence was given in this regard by
Gordon and Leibold who were called by Bayer
as expert witnesses. An attack was launched both in the court
a quo
and
in argument on appeal on the reliability of these two witnesses. Some of the
problems experienced by the former in the witness
box may have been due in part
to what seems to have been an unnecessarily aggressive cross-examination of a
witness whose honesty
was not shown to be in any way suspect, and by the fact
that on a number of important aspects he was not permitted to complete his
answers - quite frequently being interrupted by the trial judge (on one occasion
no less than f ive times during the course of one
page of evidence) . Be that as
it may, I do not think that the evidence of Gordon
-16-
and Leibold as to the incidence of oidium on grapes in the Western Cape, its
life cycle and the history of how the problem was tackled,
is open to serious
question. Furthermore, various published articles by independent experts were
put in through Gordon, two of them
by the plaintiff and one by Bayer. Their
views which were accepted as correct by Gordon, and the evidence of Gordon (and,
to a lesser
extent Leibold) establish that, at all relevant times when Bayleton
was sold under this label:
(a) oidium was present in the vineyards of the Western Cape (and had been for at
least a hundred years);
(b) oidium was the "... grootste probleem-siekte in die wingerdbedryf";
(c) the application of sulphur, originally by dusting and subsequently by
spraying with wettable sulphur was the standard remedy
for
oidium;
(d)
sulphur
had the advantage of being reasonably cheap
but
-17-
it also had serious drawbacks such as, for example, its ineffectiveness in
the absence of certain minimum temperature conditions at
a certain stage, its
tendency to damage the crop if the temperature exceeded a certain level,
irritation of the eyes and mucus membranes
of workers applying it etc;
(e)
during the winter months
the oidium spores remained in the buds on the vineyard shoots and it was
necessary to spray sufficiently
early (i.e. soon after the buds started to
shoot) to prevent the fungus spreading to other parts of the vine to avoid
serious infestation
of the grapes themselves which would be difficult to control
except by means of a contact spray;
(f)
in the
circumstances successful control depended to a large extent on how thoroughly
the particular substance being used as a remedy
was
applied.
-18-
Various other remedies for oidium were mentioned in evidence such as "Tilt",
"Rubigan" and "Karathane". The plaintiff said that late
in the 1983/84 season he
did apply Rubigan to his grapes which were infected with oidium and that it
"killed" the fungus but by then
it was too late as the damage had already been
done. Rubigan was, however, not registered at that time nor in fact had it been
registered
even by the time the trial was concluded, and it is worth noting that
in one of the articles which was relied upon by the plaintiff
it was recommended
that unregistered remedies should not be used. There was some evidence as to the
effectiveness of Tilt but also
evidence that certain farmers were dissatisfied
with Tilt as a fungicide and had at least contemplated suing the manufacturer of
that substance for damages as a result of its alleged inability to control
oidium. S C Rossouw, a witness called by the plaintiff,
said that he had
eventually controlled oidium on
-19-
his grape crops in the 1983/84 season with Karathane but, on the other hand,
the tests carried out by Gordon in 1973/4 and 1976/7
showed that Bayleton was a
more effective remedy against oidium than Karathane. I shall deal later with the
question of the effectiveness
of sulphur treatment in conjunction with Bayleton.
Suffice it to say that there was no evidential basis for the finding by the
court
a quo
that "It was also accepted that there were alternative
remedies available which if used in combination or even by itself, would have
prevented the loss."
The plaintiff is an experienced wine farmer who originally commenced farming
with his father in 1969 and started farming on his own
account some years later.
I do not think that it can be doubted that the facts relating to the incidence,
and manner of treatment
of the disease, and the effectiveness, or lack of it, of
the various
-20-
remedies available, were well-known to him.
Against this background it appears to me that all that the statement on the
label could have been taken to mean was that Bayleton
was suitable for
combating
powdery mildew. The learned trial judge appears to have
thought, however, that the words appearing on the label meant that, regardless
of weather conditions in any particular season, the pressure of infestation or
any other factors, Bayleton would be "a complete remedy".
In fact, it was
neither pleaded nor proved that the representation meant that Bayleton would,
regardless of circumstances, be a complete
remedy. This misconception as to the
meaning and ambit of the representations contained in the label pervades the
judgment of the
court
a quo
. A few examples will suffice:
"In cross-examination it was elicited from Mr Jooste
that in the previous season Bayleton was very effective and the farmers thought
that it was a wonderful remedy.
-21-
That the remedy works in another season and under difference conditions does,
however, not help."
"
Mr Bowman
, on behalf of defendant, criticised Rossouw's evidence because
he continued to apply Bayleton after he discovered that it was ineffective.
It
seems to me that his explanation that he had the stocks and continued to spray
Bayleton together with other remedies is quite
reasonable. Although Bayleton was
not completely effective
it may have had some effect and he had stocks
already paid for available and that is probably the reason why he used it." (my
underlining)
"When once it has been proved that the product, Bayleton, was not effective in
controlling oidium on grapes in some seasons or under
certain circumstances,
then on the application of the principle of
res ipsa loquitur
, it seems
to me that an inference that defendant was negligent can be
drawn."
And finally:
"The conclusion is that the representation that Bayleton EC
was a complete
remedy
Was too wide and should have been suitably qualified." (my
underlining)
Whether the representation was incorrect
(a)
Generally
:
-22-
The proper approach in this case was to ascertain whether or not the
plaintiff had proved, on a balance of probabilities: that Bayleton
was not
suitable
for the control of oidium on grapes. This he signally failed to
do. In fact, much of the evidence adduced on behalf of the plaintiff,
showed the
converse. The plaintiff's own evidence established that Bayleton was completely
effective (and therefore,
a fortiori
, "suitable") on his own farm early
in 1981 and in the 1981/82 and 1982/83 seasons. The evidence of Bayer's
representative, Jooste,
who was called as a witness by the plaintiff, was also
to the effect that, during those seasons, Bayleton had been generally used
with
great success by wine and grape farmers in the Hex River Valley.
I leave aside, for the moment, the evidence of successful tests of Bayleton
by Gordon for the purpose of
-23-
registering the Bayleton wettable powder and the Bayleton emulsifiable
concentrate. Once it was established that Bayleton was effective
in controlling
oidium on wine and table grapes in the Hex River Valley in the 1981/82 and
1982/83 seasons then, given an absence
of any proof whatsoever that the Bayleton
supplied in the 1983/84 season was in any way different to, or inferior to that
supplied
in the preceding two seasons, I have difficulty in seeing how it can
possibly be said to have been proved that Bayleton was "not
suitable for the
control of oidium on wine and table grapes in the Hex River Valley" merely
because it failed to control oidium effectively
in the 1983/84 season. (There
is, incidentally, no evidence that it was totally ineffective. On the contrary,
it is clear that the
plaintiff was able to export some of his table grapes in
the 1983/84 season and of those that were too badly blemished for export,
some
were sold f or local consumption and the
-24-
rest used for pressing for brandy.)
These facts are, in my judgment, sufficient to make it clear that the
plaintiff failed to prove that the representation made in the
label was
incorrect. In any event, there is quite a considerable body of evidence to the
effect that even in the 1983/84 season Bayleton
did control oidium effectively
on some grapes grown in the Hex River Valley. In considering this evidence it is
important to bear
in mind the particular means chosen by the plaintiff in
attempting to prove the incorrectness of the representation. He could have
sought to do so by adducing expert evidence of controlled tests showing that,
when properly applied, Bayleton did not combat or control
oidium on wine or
table grapes. (There is, in fact, evidence that was adduced on behalf of WPK
which shows that in the 1983/84 season
just such a test was, on a small scale,
carried out with a
-25-
different primary purpose on the farm of one of the plaintiff's witnesses
which showed that Bayleton in fact controlled oidium on
the grapes grown by that
witness. I refer here to the evidence of the witness Slabbert, to which I shall
return in due course.) The
plaintiff did not however seek to discharge the
onus
in this way. He sought to do so by means of circumstantial evidence
namely, the evidence of himself and three other farmers in the
Hex River Valley
to the effect that although they applied Bayleton correctly it failed to control
oidium in the 1983/84 season. From
this evidence it was sought to draw the
inference that Bayleton was not suitable for the control of oidium. Where it is
sought to
reason by inference, one of the cardinal rules of logic is that the
inference sought to be drawn must be consistent with all the
known facts.
Certain facts emerge from the evidence adduced on behalf of the plaintiff which
are inconsistent with such an inference.
I deal
-26-
firstly with the evidence of the plaintiff himself. The effect of his
evidence was that at all material times he had vines planted
on three separate
farms namely Volmoed, Milhurst and Papland. Milhurst and Papland were adjacent
to one another but Volmoed was about
three and a half kilometers away from them.
The plaintiff said that he applied Bayleton to the vines on all three of the
farms in
exactly the same manner in the 1983/84 season, but on Volmoed the
Bayleton controlled the oidium whereas on Papland and Milhurst
it did not.
As already mentioned, the plaintiff called Jooste,
Bayer's representative in the Hex River Valley in the 1983/84 season, who
also said that he knew of certain farmers namely, Crafford,
Brodie and Porter,
who used Bayleton in the Hex River Valley that season and who only had "min
skade". It was sought to explain the
fact that in
-27-
the very year in question, these farmers and, the plaintiff himself on the
farm Volmoed, had successfully controlled oidium with Bayleton
by saying that
the plaintiff had applied sulphur to the grapes on Volmoed whereas he had not
done so on the other two farms, and
that the other farmers mentioned had also
used sulphur early in the season. The plaintiff's explanation as to why he had
applied
sulphur on Volmoed and not on Milhurst and Papland does not bear
scrutiny. In any event, Jooste, upon whose advice the plaintiff
said he relied,
said that his standard recommendation to farmers in the Hex River Valley was
"... dat ons in die begin swael opsit
en dan vanaf 10cm lootlengte het ons begin
met Bayleton" - yet the plaintiff admits that he did not apply sulphur and in
fact contradicts
his own witness by saying that he was not advised to do so. In
any event the evidence of Mr De Wet Conradie, one of the other farmers
called by
the plaintiff and upon whose
-28-
evidence he relied to prove this part of his case, was to the effect that he,
Conradie, had applied sulphur twice to his grapes at
an early stage as well as
Bayleton and that nevertheless he suffered serious damage to his grapes from
oidium.
(b)
Whether the Plaintiff used the Bayleton "as directed
"
There is
a further difficulty in the plaintiff's way. As already mentioned, the
representation in the label was qualified by the admonition
to "Use only as
directed". In the circumstances, if he wished the court to infer that Bayleton
was not suitable from the fact that
it did not control oidium in the 1983/84
season, then the
onus
was upon the plaintiff to prove that he applied the
Bayleton in that season as directed (a) on the label and (b) by Bayer's
representative
in the field.
-29-
It was submitted on behalf of Bayer that the trial court erred in accepting
the plaintiff's evidence as to how he sprayed in the 1983/84
season, and that,
in any event, assuming that the plaintiff's evidence as to how he carried out
his spray programme was truthful,
it was nevertheless clear that he had failed
to use the Bayleton as directed on the label and as directed by Jooste.
The respects in which it is alleged that he failed to spray as directed on
the label are firstly, that he started spraying too late,
that is to say when
the shoots were substantially more than 10cm long, and that he sprayed at too
great intervals, bearing in mind
the direction to spray highly susceptible table
grape cultivars at two weekly intervals. The plaintiff's further particulars
alleged
that he commenced spraying on 17 October 1983 and that thereafter he
sprayed at three-weekly intervals. The
-30-
respects in which he is alleged to have failed to comply with the advice
given by Bayer's representative, Jooste, are firstly, that
he did not travel
each row of vines when spraying but only travelled every alternate row for the
first three sprays, and thereafter
only sprayed on one side, namely the side
where the bunches of grapes were, although he did travel each row and secondly,
that he
did not apply sulphur at the early stage i.e. before the shoots reached
the 10cm length when spraying should have commenced.
The learned trial judge seems to have adopted an unduly suspicious approach
to the evidence adduced by Bayer and WPK in this regard.
It áppears from
the joint monthly report of Bayer for the period November/December 1983 which
was put in by the plaintiff,
that some months before a letter of demand was sent
on behalf of the plaintiff, various representatives of Bayer were aware of the
fact that
-31-
oidium was prevalent in that particular year and recorded the fact that in
their opinion this was "... gewoonlik 'n toedieningsprobleem".
It was,
furthermore, the evidence of S C Rossouw, one of the witnesses upon whom the
plaintiff relied heavily, that it was general
practïce throughout the Hex
River Valley to travel each row of vineyards with the sprayer. What is more, as
already mentioned,
it is plain that the
onus
was on the plaintiff to
prove that he had properly applied the Bayleton. Nevertheless, at the conclusion
of the evidence of Gordon,
the expert wïtness called by Bayer, the
following passage occurs in the record. This passage is also relevant to the
further
question, namely, as to whether the plaintiff discharged the
onus
of provïng negligence on the part of Bayer.
"COURT: Before you stand down, you voiced certain
-32-
criticism of Mr Viljoen's method of applying, namely
this
alternate rows and also in regard to the intervals
and starting late. Those
are the three criticisms you
had. Is that so? Yes.
Anything else? No, those are the three.
Those are the three? Well the other factor
which played a part
here I think is that that particular year was a heavier infection pressure than
other years.
How can I be certain that your criticism of his method was not
thought up later to cover yourselves, cover your employer's case and
that you
genuinely feel[1] that the whole reason for the failure in this
particular
year, are due to those three factors? I
have thought the one thing that I
have tried to point out is that it is not just always my own opinion. I am
supported by general
feelings that....
I appreciate that, but you know after
these failed, one can go and look for - use a magnifying glass and see whether
you can get sort
of points to see whether they failed in applying it correctly
and then [2 one obviously uses every point you can get, even though
you don't
think it is genuinely the case? The other
thing which makes me feel that
something happened is that the results which I had in comparative tests were
generally - gave me good
control and that why in this case was there not good
control. My experience in trials showed it can give good control.
Your experienced trials were in Paarl Valley?
Mostly in the
Paarl Valley yes.
Anything else? Well also tests done by the
Viticultural Research
Institute and overseas ...
When? Those tests were - can I just look it
-33-
up?
Yes, certain. Take your time. Don't rush it?
There is a test
done by Tromp and Marais that was published in 1981, but the test was done in
the 1978/79 season.
With Bayleton? It was with Bayleton.
Powder or ...? Bayleton powder yes. And he
also - so he did a
test in that year and in his discussion and conclusion, he said:
'Triadimefon
gave excellent control of
Uncinula necator
...' which is another name for
powdery mildew -
'in field trials on grape vines. In the case
of heavy
infection in these trials, vine
sulphur proved quite inadequate to
control
the disease, while Triadimefon was still
effective. This is in
accordance with the
finding of Braun (1974)'
Which was an American test.
There are three names
here, they are Italian names, a test done in 1977
and
then he mentions a third author, Mancini and Cotroneo,
who are also
Italian, I think. So that was now an
independent test.
If they sprayed every row, and if they had sprayed at more frequent
intervals, two weeks, are you certain [3]
that the damages would not have
occurred at all? I
would be fairly sure ...
Why are you sure of that? Because I think it
seems that the
critical period is in the early period and that also seems to be the period in
which most of the things which we would
like to have happened, didn't seem to
happen. The early start, in other words start as soon as possibie.
-34-
Apparently he started early enough. He started with
indications at 10cm lengths in that year, round
about there? Yes, I think he wasn't far out, not so
far out perhaps, I think. He might have found shoots. It is a debatable point
whether there were some shoots longer.
Than 10cm? Than 10cm. I think that there were
shoots longer,
but there were probably a lot of shoots at 10cm.
Was any test conducted or is it just a matter of opinion and it looks to me
like an
ex post facto
opinion? Well it is mainly a conclusion that I
have
drawn from looking at the demonstration and also it is generally asked
that every row be sprayed by all people talking about applications
for powdery
mildew control. Anybody would recommend, I think, that you should drive every
row, that is including the institutes,
the companies.
Apart from this general
recommendation is there any scientific basis to say that if you don't you
will
get an infestation and you will get a failure? Well[4]
it is just a matter of getting the product onto the
Isn't it perhaps a couhsel of imperfection? (
sic
)
What is
that?
Well if you want it perfect, then you say every row, but it is quite
adequate and good practice to go
every other row, provided that you spray
every row?
Yes, but it seemed to me that it wasn't adequate doing it that
way, because I saw very little deposit landing on the second row.
Isn't it
possible that something else could have
gone wrong? Well anything is
possible. A lot of
-35-
things could happen but I don't know what else could
have.
You say the vital thing is the first spray?
I
think it is important to start early because you have a snowball effect of the
disease."
There was, with respect, no justification for
approaching
the evidence adduced on behalf of the defendant in
this
fashion.
I have numbered certain questions in the above passage for convenience and I
comment on them as follows:
(1) The question for decision was whether the criticisms were well-founded.
There was no justification for the suggestion of dishonesty
implicit in the
learned judge's question.
(2)
This emphasises the point made in
(1).
(3) The learned judge misplaced the
onus
. It was not for the witness to
be certain of anything; it was for the plaintiff to prove that he applied
Bayleton in accordance with
instructions, or, failing that, to satisfy the court
(if he could) that non-compliance would not have made any difference.
(4) Here again the
onus
was misplaced. The question should more
appropriately have been addressed to the plaintiff: "Is there any scientific
basis to say
that if you travel every row you will still get a
failure?"
-36-
I deal firstly with the question of the length of
the shoots at the time when the plaintiff (on his own case)
started spraying with Bayleton in the 1983/84 season. The
trial court
accepted the plaintiff's evidence that the
shoots were about 10cm in length firstly because:
"In the same season Gordon sprayed vines in the Paarl area on 8 October when he
said shoots were then 10cm long and he agrees that
the De Doorns area is
approximately two weeks later than the Paarl area."
This is
incorrect in two respects. What Gordon said was
that the shoots were then
12,5cm long and secondly, it was
not in the same season - the damage
complained of occurred
in the 1983/84 season whereas Gordon's observation of the
length of the
shoots in the Paarl area was on 8 October 1984
i.e. the 1984/85 season. The court also found support
for the plaintiff's
evidence in the evidence of Jooste
"... who says the spraying was properly done and he
says this not by way
of inference, but based presumably on
actual observations at the time."
Jooste did say, in answer
to a leading question put to him by plaintiff's
counsel,
-37-
that he was satisfied that the spraying was properly done but, in the first
place, he only called at the plaintiff's farm every two
weeks and was obviously
not there to observe spraying all the time and, in any event, this very general
evidence is hardly potent
support for the plaintiff's evidence that the shoot
lengths were 10cm at the time when spraying commenced. The court also ignored
Gordon's evidence that, at the time when the first video, which was put before
the court, was taken, namely 15 October 1987, some
of the shoots on the
plaintiff's farm were 25cm long, and also totally ignored the independent
evidence of Slabbert to the effect
that on Conradie's farm, in the same vicinity
as the plaintiff's farm, the shoot lengths were 15cm on 10 October 1983. I am
not satisfied
that the plaintiff discharged the
onus
in this regard.
With regard to the intervals between spraying, the
-38-
trial court relied upon the evidence of Gordon that when he carried out his
tests he got satisfactory results with Bayleton although
he allowed three weeks
between spraying, and found there was a difference between Gordon's evidence and
Leibold's evidence as to
the proper period to allow between sprays for the
various varieties of grapes. I do not think there is any material difference
between
the evidence of Gordon and Leibold as to which are sensitive varieties
of table grapes. Gordon's evidence is that virtually all the
varieties grown by
the plaintiff were "sensitive" and should therefore have been sprayed every two
weeks. With regard to Gordon's
tests, he repeatedly made the point that the
reason why he had allowed three weeks and even longer in the tests was in order
to see
whether, on a "worst case scenario", Bayleton would be successful in
controlling oidium. The fact that these tests were successful
in the particular
year in which they were carried
-39-
out namely, 1979, does not appear to be a particularly material consideration
in the light of the overwhelming evidence to the effect
that the 1983/84 season
was a year in which there was a very heavy infestation of oidium throughout the
area, and in which the trial
court found it probable that the conditions of
temperature were optimal for the development of oidium in the Hex River Valley.
What
is more, the trial court appears to have overlooked the evidence of Gordon
that it is to the cumulative effect of applying the spray
"a bit late" and at
too great intervals and without travelling every row of vines when spraying that
regard must be had.
I deal now with the evidence regarding the admitted failure of the plaintiff
to travel every row with the tractor and sprayer. The
first three sprays applied
by him were applied with the tractor travelling only alternate rows. Thereafter,
when spraying he travelled
every row but
-40-
sprayed only the sides where the bunches of grapes were.
One of the
witnesses relied upon by him, a Mr S C Rossouw,
said that "normale
bespuiting" involved "elke ry, albei
kante". The evidence continues:
"Alle rye albei kante? Ja, korrek.
Van die begin af? Ja.
Is dit die gewone? Dit is die normale gewone wyse
soos ons al die jare maar volg.
Ja, en tot u wete is dit die normale prosedure in die
Hexvallei? Dit is reg."
The evidence of Jooste,
who was also called by
plaintiff, was that he unsuccessfully tried to persuade the plaintiff to
travel every row. Jooste was also questioned about the plaintiff's
evidence,
that:
"... van die vierde bespuiting is elke ry ... net aan
die troskant bespuit."
When asked to comment on the effectiveness
of this, Jooste said:
"Edelagbare, dit hang af. As ek by gewees het of
dit
-41-
moes gesien het sou ek moes myself vergewis dat die
blare aan die bokant ook nat is. As hy nie die blare
aan die bokant natgespuit het nie was dit
ondoeltreffend.
Wat is die prosedure, die gewone prosedure? Om beide
kante te bespuit of nie? Ja, ons beveel aan dat
hulle beide kante bespuit.
HOF
: Beide kante, beteken dit van bo en onder? Ja,
die ....
Of met 'n skuinste? Die hele
blaaroppervlakte
moet benat word."
I come now to the evidence of Gordon as to the
effectiveness of the plaintiff's method of spraying (i.e. travelling only
alternate
rows) as he observed it when the court held an inspection
in
loco
on 11 November 1987. Gordon's evidence was to the effect that what was
sprayed at the inspection included a substance called "Dithane",
which was
deliberately used because it is slightly yellow and would thus enable observers
to see where the spray reached
-42-
from the Dithane residue left on the leaves. As not much of the visible
residue of the Dithane could be seen on the side of the vines
that were not
directly sprayed, that indicated that not much of the spray had come through to
that side of the vines. His evidence
is supported by the photographs which he
took at the time and which were put in as exhibits. It also clearly appears from
Gordon's
evidence under cross-examination, that, at the inspection
in loco,
there were two tractors or spray cars, one a yellow one and one a green one.
The yellow spray car was spraying water combined with
Dithane and the green
spray car only water. The rows which Gordon observed and the photographs he took
were in respect of the rows
sprayed by the yellow spray car and not the green
spray car. It was specifically put to him that it may have been the case that he
had not seen a deposit on the rows which were sprayed only by the green spray
car i.e. with water and
-43-
he said quite specif ically that this was
not
the position.
It is
also apparent from questions put by the court during
the cross-examination of
Gordon that the learned trial
judge's recollection of what he had observed at
the
inspection
in loco
differed from what Gordon said he
observed. This
difference of opinion recurs in the judgment
where the learned judge referred
to the evidence of Gordon:
and said:
"He (Gordon) said that on the demonstration one should have noticed the remains
of the yellowish powder used for spraying and that
he saw none on the leaves on
the side away from the tractor. I pointed out to him that I observed leaves
finely covered with a mist,
but saw no yellowish. powder spots afterwards. It
then transpired that two tractors and spray pumps were used in the demonstration
and only one was charged with the yellow powder. Apparently the one that I
looked at was the row sprayed by the uncharged tractor,
it may be that Mr Gordon
also' looked at the leaves sprayed by the uncharged
tractor."
This is directly in conflict with the evidence of
Gordon.
There is, furthermore, an earlier passage in the judgment
-44-
which is also relevant on this aspect of the case. It reads
as follows:
" On the 11th November the Court was given a demonstration of how the vines were
sprayed. A tank mounted on a trailer is filled with
water to which the chemical
to be sprayed is added and mixed. The tractor tows the trailer through the
vineyard in alternate rows
and a high pressure pump on the trailer forces the
water from the tank through four or six nozzles spaced vertically on each side.
The result is a very fine mist which is sprayed onto the vines to both sides of
the row. In fact, the vines on both sides are for
a short period while the
tractor passes enveloped in an all pervasive fog. I particularly looked at
leaves on the side of a row away
from the side travelled by the tractor, and
noticed that the leaves were all extensively covered by small droplets just as
one would
expect with a thick mist or fog. Hence it was clear that the mist
penetrated through or around the trellis and covered the leaves
on the awayside
of both rows."
This is, once more, in conflict with the evidence
of Gordon.
The proper method of recording the observations of the court at an inspection
in loco
was set out in
Kruger v Ludick
1947(3) SA 23 (A) at p31 as
follows:
-45-
"That may be done by means of a statement framed by the Court and intimated to
the parties who should be given an opportunity of
agreeing with it or
challenging it and, if they wish, of leading evidence to correct it. Another
method, which is sometimes convenient,
is for the Court to obtain the necessary
statement from a witness, who is called, or recalled after the inspection has
been made.
In such a case, the parties should be allowed to examine the witness
in the usual way."
See also
R v Barnado
1960(3) SA 552 (A)
at 554E-H.
No statement was framed by the court in this case, nor was the statement
obtained by the court from a witness. The plaintiff's counsel
said that the
reason for this omission was that a video recording had been made of the
inspection
in loco
and put in as an exhibit, and that the plaintiff had
given evidence as to what was visible on the recording. The video recording
was,
for some unknown reason, not available at the hearing of the appeal but, in any
event, there is nothing in the plaintiff's evidence
-46-
about the inspection
in loco
which could be said to reflect
or
record the trial judge's observations. In these
circumstances, all that is
available to us, is the evidence
of the witnesses in this regard. One is left
with the
evidence already referred to of Gordon and the following,
rather
tentative, evidence of the plaintiff:
"Op die video-band word nou die ry getoon waar die
trekker nie loop nie. Wat
neem u daar waar? Ek
neem aan dat die spuitstof deur die blaardak dring en ook deurgaan na die
volgende ry toe."
In this respect also, I am not satisfied that
the plaintiff
discharged the
onus
of showing that he followed
the
directions of Bayer's representative in the field.
It is also quite clear that the plaintiff did not apply sulphur to Millhurst
and Papland although Jooste says that that was his standard
recommendation.
-47-
The plaintiff sought to counter the evidence that he had, on his own version,
not shown that he had applied the Bayleton as directed,
by arguing that on the
evidence of three other wine farmers namely, J M Rossouw, S C Rossouw and De Wet
Conradie, Bayleton did not
work in the 1983/84 season even where the directions
had been followed . This evidence was of little real assistance to the
plaintiff.
The evidence of J M Rossouw was that Bayleton did control the oidium
on part of his farm but not on the remainder of his farm. The
object of J M
Rossouw's evidence seems to have been, in part, to show that a product that he
bought as Bayleton in fact turned out
to be "Dedevap", an insecticide, and in
part, in an attempt to show that the Bayleton supplied in the 1983/84 season,
which was supplied
in green tins, was inferior to the Bayleton supplied in the
preceding season, which was in blue tins. With regard to the mislabelling
point,
I am satisfied that the evidence
-48-
excludes any possibility of mislabelling other than with regard to one or two
containers and certainly excludes the possibility with
regard to any of the
Bayleton supplied to the plaintiff. In fact, it was not submitted on behalf of
the plaintiff that an insecticide
had been delivered to him and not Bayleton.
With regard to the theory (if it can be dignified by that title) that the
1982/83 Bayleton
in the blue tins was superior to the 1983/84 Bayleton in the
green . tins, this was completely exploded by reason of the following:
(a) The evidence of the plaintiff's witness Conradie that 751l of the total of
821l used by him in the 1983/84 season were bought
in the previous season and
yet, according to him, the Bayleton was unable to control the oidium on his
farm.
(b) Samples were taken and tested on behalf of the plaintiff and the results of
these tests were known to
-49-
the plaintiff at the time of the trial. Nevertheless, no evidence was adduced
as to what they showed. Had they showed that the Bayleton
was below standard in
any way, I have no doubt that the results would have been produced. (c) Fairly
extensive testing was done by
Bayer which showed that the Bayleton in the
1983/84 season was up to standard. The trial court in any event found that the
product
complied with its specification and it was not argued on behalf of the
plaintiff on appeal that the 1983/84 Bayleton was inferior
in any way. J M
Rossouw's evidence simply shows, therefore, that Bayleton was able to control
oidium on one part of his farm in the
1983/84 season and did not control it on
another part. His explanations for this are shown to be unfounded and do not
afford a firm
base for the drawing of inferences as to whether or not the
Bayleton was
-50-properly applied.
There are two problems with regard to the evidence of Conradie. The first is
that on his own evidence he started spraying a month
too late and the second is
the evidence of Slabbert. Slabbert's evidence was that in the year in which the
plaintiff suffered the
damage complained of, namely the 1983/84 season, he
carried out certain tests of various sprays on Conradie's farm to test them for
phytotoxicity (tendency to burn the leaves). For this purpose he used a number
of fungicides including Bayleton. Although it was
not the purpose of his test to
see whether or not the sprays he used controlled oidium, the clear effect of his
tests, as recorded,
was that oidium was controlled by Bayleton on Conradie's
farm that year.
This leaves the plaintiff only with the support of
-51-
the evidence of S C Rossouw and, in the light of the substantial evidence
already referred to that the Bayleton was successful in
controlling oidium in
the Hex River Valley in the 1983/84 season, I do not think his evidence
materially assists the plaintiff in
discharging the
onus
of proving that
he applied the Bayleton properly.
The negligence
:
There is no evidence that any representation made
by Bayer was negligently made. There was a very substantial body of evidence
available
to Bayer at all material times which indicated that Bayleton
emulsifiable concentrate was indeed suitable for controlling oidium
on wine and
table grapes.
-52-
On the facts, Bayleton had been extensively tested in its wettable powder
form and found successful; it had been tested in its emulsifiable
concentrate
form and found effective, and the registrar had registered both such substances
in terms of s3 of the Fertilisers, Farm
Feeds, Agricultural Remedies and Stock
Remedies Act, No 36 of 1947, as agricultural remedies. In terms of s3(2)(a) the
registrar
must be satisfied,
inter alia
, that the agricultural remedy
"... is suitable and sufficiently effective for the purposes for which it is
intended ..." before registering
it. The evidence of Gordon established that the
active ingredient in the Bayleton wettable powder (which was registered in 1977)
was precisely the same as that in Bayleton emulsifiable concentrate namely,
Triadimefon, and Gordon said that the tests relating
to the powder were also
material in gauging the reliability of the concentrate. There was no evidence to
the contrary and no
-53-
reason not to accept his evidence on this point.
Furthermore, the Bayleton
emulsifiable concentrate had
worked extraordinarily well on the plaintiff's
own vineyards
in January 1981 and in the 1981/82 and 1982/83 seasons and,
in fact, had worked extremely well on vineyards in the Hex
River Valley
generally. In addition, Bayer was aware of an
article published in a journal
(S.Afr. J. Enol. Vitic, Vol.2
No.1 1981) entitled Triadimefon, A Systemic
Fungicide
Against
Uncinula Necator
(Oidium) on Wine Grapes:
Disease
Control, Residues and Effect on Fermentation and Wine
Quality by
A Tromp and P G Marais
of the Oenological and
Viticultural Research
Institute, Stellenbosch, which
contained the following conclusions:
"Triadimefon gave excellent control of
Uncinula necator
infection in
field trials on grape vines. In the case of heavy infections in these trials,
vine sulphur proved quite inadequate to
control the disease, while triadimefon
was still effective."
Reference was also made to the findings of
foreign
-54-
researchers who published findings in 1974, 1977 and 1978, who also found
Triadimefon an effective fungicide for the control of powdery
mildew. It was
also concluded that Triadimefon applied, as recommended by the manufacturers,
"... is very effective in controlling
powdery mildew (
Uncinula necator
)
infection on grapes." Gordon's evidence was that
Uncinula necator
and
Oidium tuckeri
are sexual and vegetative phases of the same fungus.
There was some suggestion that Bayer should have indicated that Bayleton was
systemic only in a limited way. This was not the negligence
pleaded and, in any
event, the
evidence establishes that it is systemic before heavy
lignification ("verhouting") has taken place in the vines, and there was
certainly
no suggestion that Bayer ever represented that Bayleton was equally
effective as a systemic fungicide throughout the season.
-55-
I have already referred to the application by the court
a quo
of the
process of reasoning which is embodied in the words
res ipsa loquitur
.
There may well be good reasons of policy for allowing this process of reasoning
to be applied to the case where a merchant/seller
is being sued on the grounds
of a defect in his product which has caused damage (provided of course the facts
are such as to give
rise to an inference of negligence). These policy
considerations have formed the basis of a number of learned discussions-dealing
with defects in the thing sold which are conveniently. referred to and analysed
in
Boberq
: THE LAW OF DELICT Vol 1 p 195
et seq
.
It is not clear to me that, where the complaint is that the thing sold did
not have the attribute it was represented to have, the
same considerations apply
as in the case where it is "unreasonably dangerous" or unsafe cf
-56-
Prosser
: Law of Torts 4th Ed p659. The trial court, however,
after
referring to certain of these discussions concluded
(without giving any reasons for such conclusion) that what
was said by
certain of those writers in connection with a
defect in the product itself
applied also where a person "...
with expert knowledge makes a representation
in regard to a
product and it turns out to be a
misrepresentation."
Assuming, without deciding, that the same principles
apply
and that accordingly, as a matter of policy, as
Boberg
puts
it "... proof of negligence should be facilitated by applying-
res ipsa
loquitur
where appropriate . ..", there was no basis
for finding it
appropriate on the facts of this case. As
pointed out by one of the learned
authors referred to by the
court
a guo
, de Jager
(Produkte-aanspreeklikheid)
(1978) 41
THRHR 347
at 363:
"
Res ipsa loquitur
beteken slegs dat [van] die skadestigtende gebeure op
sigself beskou 'n afleiding van nalatigheid gemaak kan word. So 'n afleiding
is
-57-
slegs geregverdig indien die skadestigtende gebeure volgens algemene ervaring
nie sou plaasvind indien iemand nie nalatig was nie."
The
evidence in this case precludes any possibility that the Bayleton supplied to
the plaintiff was not up to standard or did not
comply with
its
specifications. (It also precludes any possibility that what was supplied
to the plaintiff was not Bayleton but some other substance).
We are dealing here
with the situation where, some time after the product had left the control of
Bayer (we do not know precisely
how long), it was applied by the plaintiff to
his crops in order to control a fungus disease - a situation, furthermore, where
the
evidence was that the ability of the product to control the disease was, to
a large extent dependent upon it being properly applied.
Furthermore the court
found that the conditions of temperature in the season in question were optimal
for the
-58-
development of oidium and indeed the plaintiff himself
described that season in the following terms:
"... In al die jare wat ek boer of wat ek gehoor het van boere wat langer boer,
was daar nog nooit so 'n oidium-besmetting gesien
nie ..."
In
these circumstances there was, in my view, no room for the operation of
res
ipsa loquitur
.
Causation
:
I should also add that in my judgment the
plaintiff
failed to prove that he was induced to apply
Bayleton by reason of the
statement. He certainly did not
say in his evidence that he had been so induced. The manner
in which he first became acquainted with Bayleton appears
from the following passage:
"Nou kan ons net teruggaan mnr Viljoen. Hoe lank boer u reeds vir u eie
rekening? -- Sedert 1980 boer ek vir my eie
rekening.
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In daardie jare, tot en met die 1983/84-oes, welke spuitmiddel het u gebruik
vir die beheer van witroes? - Tot en met Januarie 1981,
uitsluitlik swael en
sedert Januarie 1981 Bayleton tot en met die skade begin opduik het.
Hoe het
u die eerste keer gedurende 1981 van Bayleton te hore gekom? — U Edele, op
25 January 1981 was die Laingsburg-vloed
en my gedeelte grond op Millhurst wat
teen die rivier lê is oorstroom. Die grond was geweldig nat en ek kon vir
'n lang tyd
nie daar inkom nie. Daar het geweldige uitbraak van Oidium
plaasgevind, veral in die Waltham Cross op daardie plaas. Ek het met 'n
vriend
van my, mnr Jaap le Roux, gesels oor die probleem. Hy het my toe verwys na mnr
Pierre de Wet, wat, volgens sy inligting -
en hy het ook ondervinding daarvan
gehad - 'n sekere middel het wat baie goed is vir die beheer van Oidium.
Pierre de Wet van wie? -- Pierre de Wet van die firma Bayer.
Ja? -- Ek het
toe mnr Pierre de Wet geskakel en vir hom gevra of ek van die middel kan kry
aangesien ek desperaat is want swael sal
op daardie stadium nie meer werk nie en
ek kan ook nie met my swaelbalke inkom in daardie blok nie. Hy het toe
gesê hy kan
dit vir my bring maar hy kan dit nie vir my aanbeveel op
tafeldruiwe nie want dit is nie geregistreer nie. Ek het toe vir hom gesê
'Goed, ek is bereid om dit op my eie risiko te spuit.' Hy het nog die opmerking
gemaak, hy het gesê Goed, as jy pampoene het
op jou plaas kan ek dit vir
jou bring want dit kan wel op pampoene gespuit word.' Ek het toe vir hom
gesê 'Maar jy weet ek
het mos 'n klomp pampoene hier.' Hy het toe die vyf
liter Bayleton - wat ek later uitgevind het wel
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Bayleton blyk te wees, dit het toe bekend gestaan as Nommer 8 - vir my gebring
en hy het vir my gesê 'Spuit die druiwe goed
nat, veral op die trosse'
want dit is waar die Oidium op daardie stadium voorgekom het. Ek het my
kettingtrekkertjie gevat - dit
is al trekker wat ek in die nat wingerd mee kon
inkom en die druiwe goed natgespuit aan die troskant en dit veertien dae later
opgevolg.
Daardie druiwe was geheel-en-al vry van Oidium binne die twee weke.
Dit was iets ongeloofliks, 'n mens kan dit nie glo nie, nadat
dit totaal besmet
was, as jy die tros oopmaak is hy spierwit van die spore binne-in en na 14 dae
was daar geen teken van spore nie."
It is thus clear that it was
the plaintiff who approached
Bayer, that Bayer's representative said that he
could not
recommend what the plaintiff subsequently learned was
Bayleton
for use on grapes because it had not yet been
registered, but that it could
be used on pumpkins. It was
on that basis that the plaintiff used Bayleton on
his
infected grapes with miraculously successful results. He
also said
that in the 1981/82 season and in the 1982/83
season he used only Bayleton to
spray his grapes "met baie
goeie resultate". When cross-examined by counsel
for WPK the
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plaintiff said that even at the stage where a meeting was
held on 5 March
1984 and complaints were made to Bayer's
representatives about Bayleton:
"... Ek persoonlik het nog altyd geglo dat dit moet 'n goeie produk wees want
hy het vir my wonderlike resultate gegee die vorige lare
". (my
underlining)
Furthermore, when cross-examined as to why he was still
buying Bayleton in January 1984, he said "Ek kon nie glo dat
die middel nie werk nie want dit het in die verlede altyd
gewerk." The plaintiff's counsel sought to explain these
passages by arguing that the evidence showed that in 1981/82
and 1982/83 there was no oidium in the Hex River Valley and
this is why the Bayleton had "worked" in those years. The
evidence, when read in context, does not support that
suggestion. The plaintiff would not have said that the
Bayleton had "worked" or had given "wonderlike resultate" if
there had been no oidium for Bayleton to work on or contend
with. Furthermore, the evidence establishes clearly that it
-62-
is an expensive substance. The plaintiff paid R5 657,47 for the Bayleton
purchased by him in the 1983/84. That the plaintiff, an experienced
wine and
table grape farmer, would have spent this sort of money to counteract oidium
when there was no disease to counteract is
in the highest degree improbable. In
any event, this argument is wholly inconsistent with the evidence of the expert
witnesses called
by Bayer to the effect that oidium is, and has apparently for
at least a hundred years been, endemic in vineyards in the Western
Cape and that
it is always present. In some years outbreaks are worse than others but the
evidence is all one way to the effect that
it is always necessary in the Western
Cape in general, and in the Hex River Valley in particular, to apply fungicides
to counteract
oidium.
The position is therefore that the plaintiff
found
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Bayleton a "wondermiddel" in an emergency situation early in 1981 and that he
used it with complete success on its own to counteract
oidium in the 1981/82
season and the 1982/83 season. In these circumstances the probabilities are
strong that it was his previous
experience with Bayleton that caused him to use
it in the 1983/84 season. He certainly said nothing to suggest that this was not
the case. The plaintiff accordingly failed to prove that he was induced to apply
Bayleton by reason of any statement on the part
of Bayer.
For all these reasons the trial court should have found that the plaintiff's
action against Bayer failed.
The claim against WPK
:
This can be briefly disposed of. The court
a quo
held that WPK "... was also sued in delict." Had that been correct,
the action should have failed for reasons similar but not in
-64-
all respects identical to those dealing with Bayer's
liability. (e.g. I am by no means certain that any
representation by WPK
was proved) In fact, it was not correct
to say that WPK was sued in delict.
It is plain from the
particulars of claim against WPK and in particular
para.7(8)
that, whereas the claim against Bayer was on the grounds of
an
alleged breach of contract alternatively, negligence, the
only claim against
WPK was one based on breach of contract.
Furthermore,
"Even if a breach of contract should properly be classified as a form of delict,
that would not alter its essential characteristics
or eliminate the differences
which exist between an action for damages arising
ex contractu
and
liabiiity pursuant to the extended Aquilian action which the respondent has
sought to invoke in the present case."
Lillicrap, Wassenaar
and Partners v Pilkington Brothers (SA)
(Pty) Ltd
1985(1) SA 475 (A) at 496B.
The term of contract alleged to have been
breached
-65-
was that it was "... 'n uitdruklike alternatieweiik
stilswyende bepaling van die ooreenkoms" that Bayleton was
suitable as a systemic fungicide for the control of powdery
mildew on
grapes. There is a complete answer to this claim.
It was common cause that
the contract between the plaintiff
and WPK was governed by the conditions on
the delivery note
to the following effect:
"No GUARANTEES. We give no guarantee, express or implied (and none of our
representatives are authorised to vary this condition in
any way) as to the
effectiveness of any agricultural preparations, sprays, insecticides or
veterinary preparations, and of any seed,
which we sell. We are not in any way
responsible for the results obtained. All guotations are given and orders
accepted on the understanding
that these conditions are agreed on. IF THE
PURCHASER DOES NOT ACCEPT THE GOODS ON THESE TERMS THEY ARE TO BE RETURNED AT
ONCE."
The Afrikaans text is slightly less extensive and reads
as
follows:
"GEEN WAARBORGE. Ons gee geen waarborg uitdruklik of stilswyend (en geen van ons
verteenwoordigers is gemagtig om hierdie voorwaarde
in enige opsig te
wysig
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nie), aangaande die doeltreffendheid van enige-landbouvoorbereidings,
spuitmiddels, insekgiwwe, of veeartsenykundige preparate en
die beskrywing,
gehalte of vrugbaarheid van enige saad wat ons verkoop nie. Alle prysopgawes
word gegee en bestellings aanvaar op
die veronderstelling dat op hierdie
voorwaardes ooreengekom is, INDIEN DIE KOPER NIE DIE GOEDERE OP HIERDIE TERME
NEEM NIE, MOET
DIE GOEDERE ONMIDDELLIK TERUGGESTUUR WORD."
(There
is also a limitation of liability clause but it is
unnecessary to deal with this.)
Even on the basis of the slightly less extensive exclusion of liability
contained in the Afrikaans version, it clearly excludes liability
based on a
breach of a "stilswyende bepaling" of the agreement and there was certainly no
proof of an express term to the effect
alleged. Insofar as the claim could be
said to be based on WPK's liability as a dealer/seller, which professed to have
expert knowledge
and skill, the simple answer is that it was not alleged that
Bayleton was defective nor was it proved that
-67-
In the case of both Bayer and WPK, the appeal is upheld with costs, such
costs to include the costs consequent upon the employment
of two counsel. The
order of the court
a quo
is set aside and there will be substituted,
therefor, the following order:
"In the claim against the defendant there will be absolution from the instance
with costs, such costs to include the costs consequent
upon the employment of
two counsel; in the ciaim against the third party there will be absolution from
the instance with costs."
A J MILNE
Judqe of Appeal
JOUBERT JA ]
VIVIER JA ]
STEYN JA ]
NICHOLAS AJA ]