About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1991
>>
[1991] ZASCA 85
|
|
Bayer South Africa (Pty) Ltd. v Frost (105/89) [1991] ZASCA 85; 1991 (4) SA 559 (AD); [1991] 2 All SA 444 (A) (15 August 1991)
Appeal Case No 105/89
IN THE
SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
BAYER SOUTH AFRICA
(PROPRIETARY) LIMITED
Appellant
and
HAMILTON HYLTON FROST
Respondent
CORAM
: CORBETT CJ, HEFER,
KUMLEBEN, FRIEDMAN JJA, et PREISS AJA.
DATE OF HEARING:
13 May
1991
DATE OF JUDGMENT
: 15 August
1991
JU
DG
MENT
CORBETT
CJ......
1
CORBETT
CJ :
During the period relevant to
these proceedings the respondent, Mr Hamilton Hylton Frost, was the
lessee of three farms in the Villiersdorp
district, known as
Jasonskloof, Ratelsfontein and Kykuit. The farms, Jasonskloof and
Ratelsfontein were registered in the name of
a private company, in
which the respondent and his wife held all the shares; while Kykuit
belonged to respondent's son, Mr William
Peter Frost ("Frost
Jnr"). The day-to-day management of the farms was entrusted by
respondent, who lived at Kuilsriver,
to Frost Jnr and Mr Lodewyk la
Grange. La Grange looked after Jasonskloof and Ratelsfontein and
Frost Jnr managed Kykuit. Respondent,
nevertheless, took an active
part in guiding and supervising the farming operations and each
Wednesday would travel to Villiersdorp
in order to meet with Frost
Jnr and La Grange on one or
2 other of the farms. At these
meetings the farming activities would be thoroughly discussed and
decisions taken as to future action
and the running of the farms
generally. Nothing was done on the farms without respondent's
knowledge and approval.
This case is
concerned particularly with the farm Jasonskloof. The property is 218
hectares in extent. It has its own water supply
and a number of
storage dams are located on the farm. Portion of the farm consists of
cultivated lands under irrigation. Some of
these are laid out as
vineyards; others are used for the raising of cash crops, such as
wheat and onions (for convenience
I
shall
refer to the latter as "the other lands"). Viewed on plan
all these lands present a patch-work. The lands differ greatly
in
size, but are mostly relatively small. There are eight separate
vineyards and six other lands. The vineyards and the other lands
are
intermingled and in some
3 instances lie adjacent, or
virtually adjacent, to one another. In evidence the Afrikaans term
"lappiesgrond" was aptly
used to describe the general
lay-out of the lands.
The proper
maintenance of a vineyard reguires that
the
weeds which grow between the vines should as far as possible be
eliminated. This is undertaken every year during the months of
July/August/September. In earlier days weed elimination was done
partly by hand and partly by using a disc plough, but more recently
farmers have converted to the use of chemical herbicides. Respondent
did so in 1980. The herbicides are applied before the budding
of the
vines. The poison consequently kills the weeds but has no effect upon
the vines. From the start respondent applied the herbicide
by means
of an apparatus consisting of a boom, fitted with nozzles, attached
to the front of a tractor and
connected by
a pipe to a tank containing the herbicide attached to the back of the
4 tractor. The tractor moved
through the vineyards and the herbicide was sprayed downwards by
means of the boom from about knee-height.
The herbicide used was a
mixture of Reglone and Gramaxone, produced by a manufacturer,
referred to in the evidence as "PBC".
The time taken for
the application of herbicide to the vineyards on all three farms by
this method was approximately one month. This
period included days
when the winter rains rendered the vineyards, or some of them, too
wet for the tractor to operate.
In 1985, in
circumstances which
I
shall
describe in more detail later, respondent decided to change to a new
herbicide marketed by the appellant and known as "Sting",
and also to have the herbicide sprayed onto his vineyards from the
air by means of a helicopter. This was done on 17 August 1985.
In the
course of this operation (this is common cause) certain amounts of
Sting came into contact with onions and wheat growing on
the other
lands on the
5 farm Jasonskloof and severely
damaged these crops. The resultant damages have been guantified, by
agreement, in the sum of R55 000.
Some time thereafter respondent
instituted an action against appellant in the Cape Provincial
Division claiming damages in respect
of the loss caused to his crops
by the , Sting herbicide. Four different (alternative) causes of
action were pleaded, one of which
was that the respondent had been
induced to use Sting on his vineyards, applied from the air by
helicopter, by an unlawful and negligent
misstatement made by certain
of appellant's employees, acting as appellant's authorized
representatives. The matter came to trial
before Hodes AJ, who found
for the respondent on this cause of action. He gave judgment in the
agreed sum of R55 000 and granted
certain ancillary relief, including
interest and costs of suit. With leave from the trial Judge appellant
now appeals to this Court
against the
6 whole of the judgment and the
orders for the payment of damages, interest and costs.
Much of the
argument before us focussed on the other alternative causes of
action, but because of the view which
I
take of the matter it is not neccessary to
discuss them:
I
shall
concentrate on that based on negligent misstatement. In this regard
respondent pleaded that during August 1985 respondent, duly
represented by La Grange, and appellant, duly represented by one P de
Wet, concluded an oral agreement in terms of which (i) appellant
sold
a systemic herbicide known as Sting to the respondent for the purpose
of spraying all the vineyards on the farms Jasonskloof,
Ratelfontein
and Kykuit; (ii) appellant undertook to make all the arrangements in
order to apply the Sting from the air by means
of a helicopter; (iii)
appellant undertook to exercise the necessary supervision and control
over the mixing and application of the
Sting in
7 order,
inter
alia, to
ensure that cash crops on other lands were not damaged; and (iv)
respondent accepted responsibility for the purchase price
of the
Sting, as well as the reasonable cost of its application, payment
thereof to be made by the debiting of respondent's accpunt
with the
local agricultural co-operative society. (In the event the total cost
of the Sting supplied appears to have been about R3
500.)
Respondent went on to plead
(reading par 6 of the particulars of claim together with further
particulars given) that during the negotiations
leading up to the
conclusion of this contract appellant's duly authorized
representatives, De Wet and a Mr H du Toit, acting in the
course of
their employment by appellant and in order to induce respondent to
enter into the contract, represented to La Grange and
Frost Jnr (both
acting on behalf of the respondent) that Sting was suitable to be
applied from the
8 air by means of a helicopter and
that this could be done without causing damage to cash crops on
adjacent lands. In particular (and
without derogating from the
aforegoing) appellant's duly authorized representative, Du Toit,
introduced Sting to farmers, including
respondent's authorized
representative La Grange, at a farmers' meeting held at the Brandvlei
Kelders, Worcester on 30 June 1985
by
representing that the best method
of applying Sting was from a helicopter;
representing that if Sting was so
applied there would be a clear cut-off line ("afsnylyn")
which would prevent adjacent
crops being damaged by this method of
application and that although this cut-off line would not be a
straight line it would be
not more than three to five metres from
the edge of the vineyard being sprayed;
9
representing that appellant would
arrange everything with regard to such application; and
failing to indicate any risk of
damage to adjacent crops which could arise from application by
helicopter, thereby representing
that there was no such risk.
In this way appellant's
representative induced in respondent the reasonable expectation that
appellant was able to, and in fact would,
take the necessary steps to
ensure that adjacent cash crops outside the cut-off line would not be
damaged if Sting were applied by
helicopter.
By reason of the aforegoing, so
the pleading proceeded, appellant was under a legal duty to ensure
that these representations were
correct and/or feasible; and
respondent was induced to apply the Sting purchased by him by means
of a helicopter, something he would
not otherwise have done. These
representations were, however, not
10
correct and/or feasible and they
were a direct and/or foreseeable cause of the damage suffered by the
respondent, which damage arose
because appellant, in breach of the
aforesaid legal duty, unlawfully and negligently made the aforesaid
representations without ensuring
that they were in fact correct
and/or feasible. In the premises the appellant was legally liable to
compensate respondent for the
loss thus suffered by him.
In its plea appellant made common
cause with respondent as to the conclusion of a contract and the
terms thereof, save that appellant
denied and put in issue
respondent's averment that it was a term of the contract that
appellant would exercise supervision and control
over the way in
which the Sting herbicide was to be applied, either to ensure that
cash crops on adjoining lands were not damaged
or for any reason at
all. As to the alleged representations and their consequences,
appellant pleaded a
11
total denial; and, in the
alternative, that in the event of respondent proving all the facts
pleaded by it in regard to this alleged
cause of action, appellant
would still not be liable in law to compensate respondent for its
loss.
The issues
raised are thus both factual and legal.
I
shall commence by dealing with the question
of law. The
decision of this Court in
Administrateur, Natal v Trust Bank
van
Afrika Beperk
1979 (3) SA 824
(A)
established
unequivocally that our law
recognises a delictual action for
damages
based upon a negligent misstatement which causes purely economic
loss, i e as opposed to physical injury to person or property.
In
delivering the judgment of the Court Rumpff CJ made it clear that
this decision did not cover the case where the negligent misstatement
was made in a contractual context ("binne kontraktuele verband")
and, with reference to the case of
Hamman
v Moolman
1968 (4) SA
340
(A) at 348, expressly left open the question of
12
delictual liability in such a case
(at 830 C and 834 F).
Hamman v Moolman
, supra,
related to a misrepresentation made by the seller of certain
immovable property to the purchaser in the course of the negotiations
leading up to the sale. The purchaser's claim for damages was
founded, inter alia, upon the averment that the misrepresentation had
been made negligently. In regard thereto Wessels JA, who delivered
the judgment of this Court, stated (at 348 D-H):
"It would seem that, in the f
ield of contract, the making of honest but carelessly mistaken
statements of fact or opinion can
by no means be regarded as a modern
phenomenon and peculiar to present-day circumstances. The incidence
of such statements must surely
have been noted and considered long
before now, and the call to modify 'old practice and ancient
formulae' could hardly be said to
arise from any recently detected
urgent need 'to keep pace with the requirements of
13
changing conditions'. The existing
law grants what appears to be adequate protection in the field of
contract to a party to whom a
misrepresentation is made. Thus a
contracting party may safeguard himself against loss by simply taking
the elementary precaution
of requiring the representor to guarantee
the truth of his representations. Adequate remedies are available
where misrepresentations
are tainted with dolus, and in appropriate
circumstances an aggrieved party is granted relief in the case of an
innocent misrepresentation.
Although pure logic and the never-ending
development and expansion of legal ideas do not appear to be opposed
in principle to a conclusion
that in appropriate circumstances an
action might be maintained to recover pecuniary loss caused by honest
but carelessly made verbal
(or written) misrepresentations, there is
as yet in our law no authoritative determination or generally
accepted definition of the
principles to be applied in deciding in
what circumstances such an action will lie in the field of contract."
14
Wessels JA nevertheless went on to
say that even if it were to be assumed in favour of the plaintiff
(the purchaser) that such a claim
based upon negligence were
available to him, it could not succeed on the facts because, inter
alia, the evidence did not establish
negligence on the part of the
seller.
This finding negativing negligence
would seem to render the dictum in the quoted passage from the
judgment obiter. Nevertheless, in
Latham and Another v Sher and
Another
1974 (4) SA 687
(W), at 695 H - 696 A, Margo J considered
the dictum to be -
".... the clearest
affirmation of judicial policy against the extension at this time of
an action in delict through negligent
misrepresentation inducing a
contract"
and he concluded that there was no
proper basis upon which
15 that policy could be
circumvented or disregarded. Conseguently, though opining that there
was much to be said in favour of recognizing
an Aquilian action for
damages consequent upon a negligent misrepresentation inducing a
contract, he dismissed such a claim in the
case before him. This
approach to the dictum in
Hamman
's case was followed in
Du
Plessis v Semmelink
1976 (2) SA 500
(T), at 502 H - 503 F.
In
Kern Trust (Edms) Bpk v
Hurter
1981 (3) SA 607
(C) the actionability of a negligent
misstatement inducing a contract again arose for consideration. After
a full review of the authorities,
South African and foreign, the
Court (Friedman J, Schock J concurring) concluded (at 616 F-G):
"In my view, in the light of
the clear recognition by the Appellate Division in the
Administrateur, Natal
case of an action for damages for
negligent misstatements outside
16
the contractual field, there is no
sound reason based either in principle or in logic why an action for
negligent misstatements inducing
a contract, should not receive
similar recognition. Such an action fits squarely within the confines
of the lex Aquilia and, although
the precise scope of the action will
require definition, the existence of the action itself must, in
principle, be acknowledged."
I
am
in general agreement with this conclusion and with the reasons
advanced in the judgment of Friedman J for reaching it. At the risk
of some repetition of what was stated in
Kern
's
case and in other judgments,
I
would
sum up my reasons for so deciding as follows.
In terms of the case of
Administrateur, Natal
, supra, a delictual action for damages
is available to a plaintiff who can establish (i) that the defendant,
or someone for whom
the defendant is vicariously liable, made a
misstatement to the plaintiff; (ii) that in making this
17 misstatement the person
concerned acted (a) negligently and (b) unlawfully; (iii) that the
misstatement caused the plaintiff to
sustain loss; and (iv) that the
damages claimed represent proper compensation for such loss. (See
also
Siman & Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888
(A), at 911 B-C.) The defendant may, of course, have
some special defence in law, but the above-stated formulation
represents in
broad outline what a plaintiff must prove in order to
establish prima facie a cause of action on the ground of a negligent
misstatement.
And, as Rumpff CJ pointed out in the
Administrateur,
Natal
case, supra, at 832 H - 833 B, in order to avert the danger
of limitless liability and to keep the cause of action within
reasonable
bounds it is the duty of the Court (a) to decide whether
on the particular facts of the case there rested on the defendant a
legal
duty not to make a misstatement to the plaintiff (or, to put it
the other way,
18
whether the making of the
statement was in breach of this duty and, therefore, unlawful) and
whether the defendant in the light of
all the circumstances exercised
reasonable care to ascertain the correctness of his statement; and
(b) to give proper attention to
the nature of the misstatement and
the interpretation thereof, and to the question of causation.
In principle
I
can see no good reason why in the
recognition of such a cause of action based
upon a negligent
misstatement any
distinction should be drawn between a misstatement made which induces
a contract and one made outside the contractual
sphere. Obviously in
both cases the cause of action will be subject to the limitations and
strictures mentioned in the
Administrateur,
Natal
case and summarized above so that
the danger of limitless liability will be no more present in the one
case than in the other. Indeed
in many instances the contractual
negotiations
19 between the parties and the
subsequent conclusion of the contract will in themselves provide the
circumstantial matrix for a finding
that there existed a legal duty
upon the party concerned not to make a misstatement to the other. If
justice reguires a remedy for
a negligent misstatement made by and to
persons who are not in any contractual relationship, then it seems to
me that justice equally
requires that there be a remedy for a
negligent mis-statement which is made by one contracting party to the
other and which induces
the contract.
I
turn
now to examine the dictum in
Hamman
's
case,
supra. The opening remarks to the
effect that the making of "honest but carelessly mistaken
statements of fact or
opinion" was by
no means a modern phenomenon and peculiar to
present-day
circumstances and the reference to the call to modify "old
practice and
ancient formulae" were
made with regard to a submission by the plaintiff's counsel who, ci-
20
ting the remarks of Innes CJ in
Blower v Van Noorden
1909 TS 890
at 905, invited the Court to
hold that the time has come
"where old practice and
ancient formulae must be modified in order to keep touch with the
expansion of legal ideas, and to keep
pace with the requirements of
changing conditions."
It is no doubt
true that the making of negligent misstatements in the course of
contractual negotiations is not a peculiarly modern
phenomenon, but
at the same time
I
think
that it must be recognized that the novelties and complexities of
contemporary life have widened the potential scope f or misstatement
and for the damage which it may inflict. And this causes me to
guestion, with respect, the further statement (in the dictum) that
the existing law grants adequate protection to a contracting party to
whom a misrepresentation is made. Take the present case by
way of
example. The purchase and sale of a chemical herbicide for
21
application to a vineyard from a
helicopter is essentially a modern type of transaction. If the law
does not recognize a delictual
claim for damages for negligent
misrepresentation, then it would seem that in general the only relief
accorded to the representee
would be a contractual claim for the
avoidance of the contract and restitution, including in an
appropriate case an actio quanti
minoris (see
Phame (Pty) Ltd v
Paizes
1973 (3) SA 397
(A) ). In the circumstances of this case a
claim for restitution could have presented problems and would, in any
event, have been
cold comfort to the respondent.
It is also true that, as stated in
the dictum, a contracting party can safeguard himself against loss by
reguiring the representor
to guarantee the truth of his
representation. This, with respect, seems to me to be a counsel of
perfection. The realities of modern
commercial life show that many
laymen are not aware of such legal
22
niceties and contract upon terms
put forward by the other contracting party. In my opinion, the law
should provide adequate protection
for persons induced to contract by
a negligent misstatement emanating from the other contracting party
and not incorporated as a
term of the contract; and in many instances
this can only be done by granting the party concerned compensation
for consequential
loss suffered as a result of the misstatement.
Finally, as the dictum in
Hamman
's
case shows, the Court was there concerned about the practical
difficulties inherent in any extension of the law of negligence,
as
applied to conduct causing injury to persons or property, to honest
but carelessly made misrepresentations causing pecuniary loss;
and
these concerns appear to have caused the Court to adopt a
conservative approach. In my opinion, this viewpoint has been
overtaken
and its relevance largely ousted by the subsequent decision
of this Court in the
23
Administrateur,
Matal
case, which, as
I
have indicated,
specifically
dealt with the difficulties associated with the
recognition
of a delictual action for damages on account of a
negligent
misstatement and indicated how they could and should be overcome.
Before us appellant's counsel
referred to the case of
Lillicrap, Wassenaar & Partners v
Pilkington Bros SA (Pty) Limited
1985 (1) SA 475
(A) in which, so
it was submitted, a conservative approach to the extension of
remedies under the lex Aquilia was stressed; and to
the case of
Ericsen v Germie Motors (Edms) Bpk
1986 (4) SA 67
(A), at 91
E-G, where, counsel said, the "apparent conflict" between
the
Kern Trust
case, supra, and the
Lillicrap
case was
left open. The words, "apparent conflict", are counsel's.
The Court in
Ericsen
's case merely stated that the plaintiff's
advocate, in advancing a case based upon negligent misstatement
inducing a contract, relied
upon
Kern
's case
24
and that
defendant's advocate, in opposing it on legal grounds, cited
Lillicrap
's
case; and that because the misstatement had not been shown to be
negligent it was not necessary to decide this legal issue.
Lillicrap
's
case itself was concerned with an entirely different issue, viz
whether the breach of a contractual duty to perform professional
work
with due diligence is per se a wrongful act for the purposes of
Aquilian liability, with the
corollary that
if the breach were negligent damages could be
claimed
ex delicto. The Court decided, mainly for reasons of policy, that it
was not desirable to extend the Aquilian action to the
duties
subsisting between the parties to such a contract of professional
service.
Kern
's
case was not discussed in either the majority judgment or the
minority judgment in
Lillicrap
's
case and
I
do not
consider the latter case to constitute any impediment to the
recognition of a cause of action founded upon a negligent
misstatement
25 inducing a contract.
For these
reasons
I
hold
that in principle a negligent misstatement may, depending on the
circumstances, give rise to a delictual claim f or damages at
the
suit of
the person to whom it was made,
even though the misstatement
induced such
person to enter into a contract with the party who made it. The
circumstances will determine the vital issues of unlawfulness
and
whether there is a causal connection between the making of the
misstatement and the loss suffered by the plaintiff. There is
no
ready formula for determining unlawfulness. Each case must be decided
on its own facts in the light of the principles discussed
in the
Administrateur, Natal
case, supra, at 833 B - 834 E. The principles for determining
causation have been discussed by this Court in, for example,
Siman
& Co (Pty) Ltd v Barclays National Bank Ltd
,
supra, and
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A), at 694
26
I
-
704 A.
In
Kern
'
s case reference was made in the judgment
to
English and Commonwealth authority on the point.
I
do not propose to discuss these cases. It
suffices to say that a measure of reassurance is to be gained from
the fact
that, prior to the introduction of
the Misrepresentation Act
of 1967, the
English courts had also given recognition at common law to an action
for damages in tort on the ground of a negligent
misrepresentation
inducing the conclusion of a contract; and that this is the trend of
the development of the common law in Canada,
Australia and New
Zealand. (See also Fleming, The Law of Torts, 7 ed, 610 - 611, and
especially the cases cited in note 28.)
In the light of the aforegoing
principles the questions which arise in this case are:
(1) whether appellant's
representatives made the statements attributed to them in
respondent's
27 pleadings;
whether these statements were
materially false;
whether there rested upon
appellant's representatives a legal duty to take reasonable steps to
ensure that the statements made were
correct (this being pertinent
to the question of unlawfulness);
whether appellant's
representatives failed to carry out this legal duty, i e acted
negligently in the making of the statements;
and
if appellant's representatives
did negligently fail in the carrying out of the legal duty referred
to in (3) above, whether such
failure caused respondent's loss.
I
shall
deal with each of these questions in turn, but before doing so
I
wish to make some general observations
about the evidence led at the trial.
28
The respondent himself gave
evidence and the following persons were called as witnesses to
support his case: Frost Jnr, La Grange,
Mr J L Olivier, Mr J Myburgh
and Mr M. W Purcell. Frost Jnr did not have anything to do with the
negotiation of the contract, but
he was present when the spraying
operation took place on 17 August 1985. La Grange was respondent's
main witness in regard to the
negotiation and conclusion of the
contract and the making of the alleged negligent misstatements. He
also deposed to the spraying
operation. Olivier was in 1985 a
technical adviser ih the employ of the appellant and was based in
Paarl. He gave expert evidence
about herbicides, including Sting,
their effectiveness, methods of application and marketing. Myburgh is
an agricultural meteorologist
in the employ of the Department of
Agriculture and Water Affairs. He gave expert evidence on air
movement in general, the conditions
on Jasonskloof on 17 August 1985
and
29
the likelihood of Sting having
drifted during spraying onto adjacent areas. Purcell, a chartered
accountant who acted for respondent
and his companies, deposed to the
business arrangements in regard to the farms. His evidence is no
longer of importance.
On appellant's side the only
witness called was Dr J B R Findlay, a technical expert in the field
of herbicides in the employ of Monsanto
SA (Pty) Ltd, a subsidiary of
Monsanto Incorporated of the United States of America. Monsanto
manufactures Sting and distributes
it through the appellant. Dr
Findlay deposed to the ingredients and qualities of Sting, its uses
and the methods appropriate for
its application. Appellant's two
representatives, Du Toit and De Wet, who played important roles in
the negotiation and/or conclusion
of the contract, were not called as
witnesses. There is no indication that they were not available to
give evidence.
30
I
turn
now to the questions posed above.
The Representation (Statement)
In evidence La Grange stated that he first heard about Sting
early in 1985. His informant was De Wet, who visited him on the farm.
De Wet told him that Sting was cheaper than Gramaxone and Reglone,
which he was using at the time. On the evening of 30 June 1985
and on
instructions from respondent La Grange attended a farmers' meeting at
Brandvlei Kelders, at which both De Wet and Du Toit
were present. Du
Toit, appellant's technical adviser in the area, addressed the
meeting on the merits of Sting and demonstrated its
application and
effectiveness by means of photographic slides. He stated that Sting
could safely be sprayed from the air by means
of a helicopter and
that this method was much quicker than application from the ground.
With reference to one of the slides Du Toit
31 pointed to the cut-off line
along the edge of the area of application and stated that "they"
(meaning appellant) had
done tests to demonstrate how accurately the
herbicide could be sprayed and controlled where there were adjacent
crops. La Grange,
conscious of the fact that on the respondent's
farms the vineyards were surrounded by cash crops, asked Du Toit
after the slide presentation
what the maximum distance was over which
one could expect damage outside the vineyard which was being sprayed.
With reference to
the slide Du Toit assured him that though the
cut-off line would not be a straight line it would not be more than
three to five metres
beyond the edge of the vineyard. La Grange
regarded this as the most important statement made that evening. With
regard to the modus
operandi of application, Du Toit told the farmers
that it would be by means of a helicopter, that appellant would make
all the necessary
arrangements and that all that the farmer had to do
was to provide persons with
32
flags in order to act as markers
for the guidance of the helicopter pilot during the spraying
operation. That evening Du Toit gave
no indication of any dangers
inherent in the application of Sting from a helicopter.
La Grange thereafter reported on
this presentation at a weekly Wednesday meeting on the farm.
Respondent's reaction was favourable,
but he was somewhat concerned
about the danger of damage to cash crops, particularly in a certain
portion of Jasonskloof, and it
was decided to ask De Wet to come to
look at conditions on the farm.
Shortly thereafter, at La Grange's
invitation, De Wet came to Jasonskloof. La Grange told him that
"they" were interested
in spraying their vineyards from the
air with Sting. Quantities and costs were discussed. De Wet was taken
round the farm and shown
the cash crops adjacent to the vineyards. La
Grange asked his opinion as to the possibility of damage to these
cash crops. De Wet
assured
33
him that there was no cause for
concern and he repeated Du Toit's asertion that there would be a
cut-off line three to five metres
beyond the edge of the vineyard. He
stated further that "they" would be present at the spraying
operation and would make
all the arrangements ("alles reël").
La Grange understood this to mean that appellant's employees would be
in charge
of the whole operation and would exercise control over the
mixing of the Sting and its application.
On the evening of Friday, 16
August 1985 De Wet telephoned La Grange and told him that he was
coming to spray the following morning.
At 6 a m on the Saturday De
Wet again telephoned to find out about the weather. On being told
that it was a fine, still day, he announced
that he was coming. In
due course, he arrived, as also did a helicopter owned and operated
by Court Helicopters (Pty) Ltd. It was
decided to commence with
Ratelsfontein,
34 followed by Kykuit and ending
with Jasonskloof. As far as La Grange was concerned, De Wet was in
charge ("die leierfiguur")
that day. He gave instructions.
to La Grange in regard to the transportation and placing of markers
and to the helicopter pilot in
regard to the spraying process. In
this respect his evidence is confirmed by that of Frost Jnr who was
present on Jasonskloof on
the Saturday morning and testified as
follows:
"Did Mr De Wet at that time
give you any indication as to the supervision and/or otherwise and
his presence on the farm at that
time and during the spraying
operation?
He said to me
- well, as
I
understood
it from him, he said, we've got
nothing to worry about, that he will take care of everything.
Right?
By that
I
understood
- well,
that was to see that - mixing of
the poison, checking that the pilot would fly correctly, applý
it correctly and that there
would be no damage.
35
COURT
Did the discussion
take place in the
context of the possibility of
damage?
That's correct."
The Court a quo
found that the representations
pleaded by
respondent had been established. In view of the
evidence
of La Grange and the absence of any evidence from Du Toit or De Wet
to controvert what he said, this finding seems to me
to be
unassailable and
I
did
not understand appellant's counsel to question it in his oral
argument.
What
appellant's counsel did question, however, was whether appellant's
representatives ever undertook to provide supervision and
control
over the spraying operation
and whether De
Wet in fact did exercise such supervision and
control.
(As
I
have
indicated, this was also denied on the pleadings.) In my view, in so
far as it may be relevant to do so, these issues should
be decided in
favour of the respondent. While it is true that the evidence does not
establish that the words "supervision"
or "control"
were
36 expressly used in the
contractual discussions, it was clearly implicit in what was said
that appellant would supervise and control.
La Grange was told that
appellant would "alles reël"; that the appellant's
employees would be there on the day; and
that respondent merely had
to supply the markers and had nothing else to worry about. Moreover,
in fact appellant's employees had,
or purported to have, know-how and
experience concerning the application of Sting from the air, whereas
respondent and his employees
had none and were not in a position to
control the operation. The uncontradicted evidence of La Grange and
Frost Jnr of the role
assumed and played by De Wet on 17 August 1985
establishes that the latter did supervise; and this strengthens the
conclusion that
this was his agreed function.
37
Falsity of
the Representation (Statement)
Appellant's
counsel submitted that there was no, or insufficient, evidence to
show that the representations made, or any of them,
were false.
I
do not agree. What these representations,
in their cumulative effect, amount to is the following: that despite
the presence of cash
crops (vulnerable to Sting) on adjacent lands
Sting could be applied to the vineyards from the air without danger
to such cash crops
because, when so applied, there was a cut-off line
three to five metres from the edge of the vineyard beyond which the
Sting would
not fall. And here
I
would
state in parenthesis that this representation satisfied respondent
because, apart from one small land where special precautions
would
have to be taken, there was sufficient space between the vineyards
and adjacent lands to accommodate the strip alongside the
vineyard up
to the cut-off line. In my opinion, the falsity of this
38
representation may be deduced
from:-
the actual damage sustained by
cash crops;
the evidence that the helicopter
pilot performed his duties satisfactorily;
the evidence in regard to "drift"
given by Myburgh;
the concessions made by Dr
Findlay under cross-examination.
As to (1), La Grange gave evidence
as to the damage to adjacent cash crops which became apparent some
weeks after the spraying operation
and which it is common cause was
caused by Sting then sprayed. The wheat turned yellow in elongated
flame-like patches; and the onion
plants changed colour and became
deformed. Reading La Grange's evidence in conjunction with the
large-scale map of the farm and its
lands (RSC3), it is evident that
to cause the damage which eventuated some of the Sting sprayed must
39. have fallen up to 100 metres
and more from the edge of the vineyards into the adjacent lands.
As to (2), it was suggested in
argument by appellant's counsel that this damage may have been caused
by pilot error. There is no evidence
to support this. On the
contrary, the uncontradicted evidence of La Grange was that the pilot
appeared to be doing his job efficiently,
that he flew about two
metres above the vine trellises and that De Wet expressed complete
satisfaction with the pilot's performance.
As to (3), Myburgh's evidence was
to the effect that natural air turbulence and turbulence occasioned
by the helicopter could cause
some of the Sting herbicide released
from the spray apparatus to move upwards and to remain in suspension
as small droplets for some
time. Factors influencing how long such
droplets would so remain in suspension would include the presence of
an inversion
40 layer, the air temperature
gradient, how high they were carried up into the air in the first
place, natural air turbulence, the
size of the droplets, and the
degree of humidity (which may also affect the size of the droplets).
Myburgh further explained that
even on what appears to the layman to
be a calm day there is a certain measure of air movement. The weather
bureau regards air movement
of one metre per second (3,6 kms per
hour) as "calm"; but even air movement of 0,5 metres per
second would mean that in
the space of one minute the air would be
carried a distance of 30 metres. This lateral air movement was
referred to in evidence as
"drift". Droplets of Sting held
in suspension would tend to be caught up in and follow this drift. In
the light of these
factors Myburgh stated that he would not be able
to aver that it would be safe to apply Sting to small vineyards where
there were
adjacent cash crops: it was almost certain that some of
the Sting would fall on the cash crops.
41
And as to (4), Dr Findlay conceded
under cross-examination that the damage to the onion land could be
attributed to "drift of
some form or another". He also
stated, both in evidence-in-chief and under cross-examination, that
in his view 70 per cent of
the farm vineyards could be safely sprayed
from the air. It would follow that in his view 30 per cent of the
vineyards could not
safely be sprayed. It appears, however, that this
was a "calculated guess" because he had not seen f our of
the vineyards.
In all the
circumstances,
I
am
satisfied that the falsity of the representation was proved.
Legal Duty (Unlawfulness)
In my opinion the following
facts
and
circumstances placed upon
appellant, acting
through its
representatives Du Toit and De
Wet, a legal
duty, before
42
making the representation, to take
reasonable steps to ensure that it was correct:-
the contractual relationship
between the parties and the fact that the representation was
material and induced the respondent to
agree to purchase Sting and
to contract to have it applied from the air by helicopter;
in the circumstances under which
the representation, especially that aspect of it relating to the
so-called cut-off line, was initially
made by Du Toit and later
repeated by De Wet, it must have been obvious to appellant' s
representatives that respondent was placing
reliance on what was
told him, that the correctness of the representation was of vital
importance to respondent and that if it
were incorrect the execution
of the contract could
43 cause him serious damage; and
(c) the representation related to technical matters concerning a new
product about which respondent
as a lay customer would necessarily be
ignorant and appellant as the distributor would, or should, be
knowledgeable.
A failure on appellant's part to
take reasonable steps to ensure the accuracy of its representation (i
e negligence) would consequently
render its conduct unlawful.
Negligence
According to La
Grange, Du Toit stated at the farmers' meeting at Brandvlei Kelders
that they (meaning the appellant) had done tests
to establish how
accurately spraying could be done from the air in the event of there
being adjacent crops and that these had shown
that there was a
definite cut-off line. The application of the herbicide
44 could thus be controlled. It
appears from the evidence of Olivier that this was untrue. At that
stage no tests had been done to
determine drift action in the case of
aerial application. This was not disputed by appellant.
In the circumstances the
appellant's representatives had no reasonable basis for making the
representation and their actions in doing
so were negligent, to say
the least.
Causation
This is not
really in dispute. The evidence clearly establishes that but for the
misrepresentation made by appellant's representatives
respondent
would not have gone in for the application of the Sting herbicide
from the air by helicopter and consequently would not
have sustained
the damage caused by aerial application to his cash crops. There ïs
thus a direct factual link between the misrepresentation
and the loss
suffered. By reason of the facts that
45
respondent was technically a
lessee of the farms and that the crops did not become his property
until separated from the soil, there
might be some debate in
classifying respondent's loss: whether it be damage to property or
economic loss. In either event respondent's
claim is covered by the
Aquilian action.
For these
reasons
I
am of
the view that the decision of the Court a
quo
was the correct one.
The appeal is dismissed with
costs, including the costs of two counsel.
M M CORBETT
105/89 /mb
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
BAYER SOUTH AFRICA
(PROPRIETARY) LIMITED
......Appellant
and
HAMILTON HYLTON FROST
.
Respondent
CORAM
:
CORBETT CJ, HEFER, KUMLEBEN, FRIEDMAN
JJA
et PREISS AJA
HEARD
:
13 MAY 1991
DELIVERED
: 15 AUGUST 1991
JUDGMENT
HEFER JA
:/...
1.
HEFER JA
:
Although
I
agree that a negligent misstatement in a
contractual context is actionable as set out in the majority
judgment,
I
concur
in the judgment prepared by my Brother
Kumleben.
For the reasons stated therein, and for the additional ones that
follow,
I
agree
that the appeal ought to be dismissed with costs including the costs
of two counsel. My remarks will be limited to the falsity
of the
representations relied upon in the claim based on negligent
misstatement.
As stated in the majority judgment
the cumulative effect of the representations was that Sting could be
applied to a vineyard by means
of a helicopter without endangering
crops on adjacent lands because, when so applied, it would not fall
beyond a line (the "cut-off
line") three to five metres
beyond the edge
2/...
2.
of the vineyard. What, in
practical terms, the respondent had to prove was that it was
physically impossible to contain the Sting
released from the aircraft
in the form of a fine spray within the area comprising the vineyard
and the adjoining strip of land along
its edges up to the cut-off
line.
There are two ways in which this
could be proved. The first would entail expert evidence to the effect
that there is no way of controlling
the lateral movement of the spray
and thus to contain it within the desired bounds. Another method
would be to lay a sufficiently
strong factual foundation for an
inference as a matter of probability that the representations were
false. This could be done eg
by proving that Sting actually applied
from a helicopter in perfect weather conditions by a competent pilot
who performed the task
skilfully and properly with suitable
3/...
3.
eguipment, fell beyond the cut-off
line despite all precautionary methods having been taken.
Respondent seems to have selected
the first method. Instead of proving that the weather conditions were
favourable he sought to establish
through Myburgh that they were not;
and instead of proving that precautionary measures were taken he
sought to establish that the
direction or strength of the wind was
not even tested. He did so presumably because he had an alternative
claim based on the negligence
of appellant's employees in supervising
the operation in which it was alleged
inter alia
that it was
carried out in unfavourable conditions. Be that as it may, it is
clear that the meagre information about the way in which
the
operation was conducted does not justify an inference that the
representations were false. The importance of the correct setting
of
the nozzles on the
4/...
4.
helicopter boom through which the
Sting was released is manifest; yet there is no evidence that they
were properly set. And there
is evidence that the risk of drift could
have been reduced by using an additive; yet we do not know whether
such an additive was
used or not. In the absence of evidence on
matters like these it cannot be said that there is a sufficiently
strong preponderance
of probability that the Sting fell beyond the
cut-off line because it could not be contained in the target area.
This conclusion
is not affected by the evidence about the way in which the pilot
performed his duties. Even if it were to be accepted
that he did so
satisfactorily there are still the short-comings in respondent's case
that
I
mentioned.
But
I
share my
Brother
Kumleben's
misgivings about the cogency of the evidence in this regard. He
refers in his judgment to
5/...
5.
what appears to be the erratic
pattern of the damage caused by the Sting to respondent's onions and
wheat. Bearing this in mind and
that some of the Sting fell about 100
metres from the edge of the nearest vineyard and even beyond some
fairly high trees on a day
on which there was no noticeable wind,
there is a serious question about the way in which the pilot
performed his duties.
I
turn
to the evidence of Mr Myburgh. His assertion that "'n mens amper
kan aanneem dat daar sal van die stof op nabygele
ë
plante te lande kom" when Sting is sprayed from a helicopter in
the vicinity of sensitive plants is based entirely on his knowledge
that there is always some movement of air in the atmosphere although
it may not be noticeable. The following passage contains a neat
summary of his evidence:
6/...
6.
" .. .. die hele strekking
van my getuienis is dat daar altyd verwag sal kan word dat daar 'n
mate van 'drift' sal voorkom en
dat h mens onder geen omstandighede
kan sê dat omdat op daardie oomblik die 'drift' so min was dat
dit nie saak gemaak het
nie dit onder ander omstandighede so sal wees
nie."
This may be so but his experience
of actual spraying from the air is limited to one occasion when he
attended a demonstration of water
being sprayed from a helicopter and
another one when he witnessed from a distance a wheat field being
sprayed from a fixed-wing aircraft.
He is not aware that, as Dr
Findlay testified, skilled pilots know how to handle drift; they know
that they must allow for it and
how to do so; at times they even
"drift" the substance being sprayed into inaccessible
places. At best for the respondent
Myburgh's evidence suggests that
some margin should always be left for error. He was not asked to
express
7/...
7.
an opinion on the extent of such a
margin nor on the suffiency of the three to five meter margin of
error for which the representations
allowed. His evidence does not
justify a finding that the representations were false.
JJF HEFER
JUDGE OF APPEAL
105/89
/mb
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
BAYER SOUTH AFRICA
(PROPRIETARY) LIMITED
Appellant
and
HAMILTON HYLTON FROST
Respondent
CORAM
:
CORBETT CJ, HEFER, KUMLEBEN, FRIEDMAN
JJA et PREISS AJA
HEARD
:
13 MAY 1991
DELIVERED
: 15 AUGUST 1991
JUDGMENT
KUMLEBEN JA
/...
1.
KUMLEBEN JA:
I
share
the view that the appeal ought to be dis-missed but not on the ground
that there was a negligent
misstatement.I
do, however, agree with the conclusion that
a
negligent misstatement inducing a contract does give rise to a cause
of action in the circumstances, and for the reasons, stated
in the
majority judgment. To succeed on this cause of action the respondent
had to prove that the allegations relied upon were incorrect
statements of existing fact or an expression of an incorrect opinion.
For the purposes of this case the distinction between
these
two forms of misrepresentation is immaterial.
The representations relied upon
were first made by Mr Du Toit to farmers, including Mr La Grange, at
the meeting held at the Brandvlei
Kelders and subsequently by Mr De
Wet to La Grange on the farm Jasonskloof. In substance they were the
same. At Brandvlei Kelders
Du Toit, a technical adviser of the
appellant, explained with the use of colour slides the aerial
application of Sting by helicopter.
In doing so, and in answer to
guestions, he
2/...
2.
said that it was cheaper than
ground application by means of a tractor; that it was very safe; that
tests had been carried out to
determine the accuracy of spraying by
helicopter; that "they" (Bayers) were in a position to
control and supervise its
application; and that if a vineyard is thus
sprayed the maximum spread of the herbicide beyond the target would
be three to five
metres (the "stated limit"). This
assurance was repeated by De Wet to La Grange at Jasonskloof:
"Hy het my verseker ek moenie
bekommerd wees nie. Die maksimum skade sou wees drie tot maksimum vyf
meter, soos mnr Du Toit ook
by die vergadering gesê het. Hy het
gesê ons moenie bekommerd wees nie, hulle sal alles reël
voor hy daar weg is."
It was La Grange's understanding,
on the strength of what De Wet had told him, that the appellant would
supervise the spraying so
that the stated limit would not be
exceeded. As he put it:
3/...
3.
"Dat hulle sal sorg dat
hierdie produk op so h manier toegedien word op my plaas dat daar nie
skade verder as 5 meter sou wees
nie en dit is hoekom die vrae aan
mnr Hein du Toit so gestel is en hy het geweet wat rondom daardie
blokke is."
Thus the uncontradicted evidence
fully substantiated the representations pleaded:
"... dat die beste metode vir
die toediening van die produk Sting vanuit 'n helikopter sou wees;
. . . dat indien Sting aldus
toegedien word daar 'n duidelike af snylyn sou wees wat sou verhoed
het dat aangrensende gewasse beskadig
sou word weens hierdie metode
van toediening, en dat alhoewel nie 'n reguitlyn nie, hierdie
afsnylyn 'n maksimum van 3 tot 5 meter
vanaf die rand van 'n blok
wingerd, wat aldus gespuit word, sou wees;
. . . dat Verweerder alles sou
reël met betrekking tot sodanige toediening."
Against the background of this
evidence it is to my mind clear that the assurance given in respect
of the stated limit could not have
been intended to be, or
4/...
4.
understood to be, an unqualified
one, namely,
that whatever the circumstances
the stated limit would
not be exceeded. If any of the
listeners at the
Brandvlei Kelders meeting had
asked Du Toit whether
this assurance held good should
the application take
place in windy conditions, or
should Sting be
discharged from too great a height
or with the ejecting
nozzles not properly set, the
reply would surely have
been:
"Obviously not.
I
did
not trouble to say that;
it is too clear." The same
answer would have been
given by De Wet had La Grange put
any such question to
him. It is to my mind not a case
of Du Toit or De Wet
failing to gualify an absolute
statement: the
qualification is inherent. It is
moreover confirmed by
the stress laid on the fact that
the appellant would
and should supervise the
operation. In the nature of
things no reasonable limit could
be assured in absolute
terms. In the appellant's heads of
argument it is
5/...
5.
submitted that "the
representation could only have been
made in the context of the STING
being properly
applied."
I
agree. If the
reasoning thus far is sound
it follows that to prove the
falsity of the statement
it must be shown that in
favourable weather conditions
and with proper application and
supervision the spray
could not be contained within the
stated limit.
The evidence makes it plain that
Sting
applied by helicopter could go
beyond the intended
target and cause damage as a
result of one or more of
the following extraneous factors:
weather conditions,
air movement primarily caused by
wind; application
above the prescribed height;
incorrect adjustment of
the spray nozzles resulting in
smaller droplets than
recommended; and incorrect
application on the part of
the pilot by failing to ensure
that the spray mechanism
is turned on and off at the
appropriate times..
Avoidance of damage due to such
causes thus depends
6/...
6.
upon the
knowledge and judgment of the supervisor and the skill and experience
of the pilot. There was no direct evidence tendered
- as one might
have expected there to have been - to prove that Sting had an innate
propensity to drift beyond the stated limit if
applied by helicopter.
This is deduced from the evidence
considered
in the majority judgment under four heads.
I
turn to them.
(1)
The
damage as such cannot point to any
inherent unsuitability in the
product rendering its
application by helicopter dangerous or
ill-advised.
The damage could as feasibly have been caused by one
or
more of the extraneous causes to
which
I
have
referred.
(2) As stated in the majority
judgment, no
evidence was adduced indicating that lack
of
proficiency on the part of the pilot caused (or
contributed
to) the damage. La Grange said that De Wet
told him that he (De
Wet) was satisfied from what he
had seen of the aerial spraying
that the pilot was
7/...
7. carrying out
this operation satisfactorily. This answer could only have reference
to what De Wet had observed up until the question
was put to him and
there is no evidence to indicate at what stage this answer was
elicited. Moreover, it would not necessarily include
confirmation
that the spray nozzles were correctly set unless their setting could
be determined from the ground whilst the actual
spraying took place.
In any event this answer can only serve as proof that there was no
pilot error if De Wet's expression of opinion
is to be accepted as
accurate. In the circumstances, although not contradicted,
I
doubt that this evidence of La Grange
eliminates pilot error as a cause, or the cause, of the damage.
(3) Mr Myburgh, a climatologist in
the employ of the Department of Agriculture and Water Affairs, was
called as a witness by the respondent.
He has both theoretical and
practical knowledge of air movement but in no way professed to be an
expert in the field of
8/...
8.
aerial crop-spraying. He visited
Jasonskloof and other farms where such spraying had caused damage and
saw a video-tape recording
of crop-spraying from a helicopter.
Various factors, he explained,
influence the degree of air movement and the period during which a
droplet of herbicide (or any other
particle for that matter) remains
in suspension. Such factors are its size (and, as other evidence
indicated, its density); the height
at which it is released; wind;
turbulence due to the upward movement of warm air and the operation
of the helicopter; and the relative
humidity (the lower the degree of
humidity, the greater the rate of evaporation and the rate of
decrease in the size of a droplet).
Myburgh also said that there is
always some air movement even on what would normally be described as
a calm day and that the Weather
Bureau regards a day on which air
movement does not exceed 1 metre per second as a "calm day".
9/...
9.
I
mean no disrespect in commenting that there
is little
in his testimony which really
amounts to expert evidence. His contribution, the gist of which
I
have
summarised,
is largely a matter of common knowledge and
inferences
which any layman would draw. The Weather Bureau's
classification
of what is to be regarded as calm weather with reference to
air
movement has in my view no bearing upon an enguiry concerned with the
movement of a particular
substance
which was in suspension on a particular day.
Myburgh was
also asked about the weather conditions on the morning in question,
Saturday 17 August 1985. He referred to the records
kept at two
weather stations more or less on opposite sides of
Jasonskloof
and each about 15 kilometres from the farm.
They
were equipped with a maximum and minimum thermometer and an
instrument which records what the witness
described as the "windrun" over a 24 hour
10/...
10.
period. This device did not record
the wind-speed at any particular time over such period. By use of
these instruments records were
kept of the maximum and minimum
temperatures and the wind velocity over a 24 hour period from 8 am to
8 am. Clearly these statistics
could not possibly serve to prove the
weather conditions at the time of spraying cm Jasonskloof. The same
must be said of even more
general hearsay evidence led from this
witness relating to what the weather forecast was at D F Malan
Airport (some 80 kilometres
from Jasonskloof) for the wind and
weather conditions in the Western Cape on that day.
In the course of his evidence
Myburgh was asked to make some general observations on this form of
aerial crop-spraying. For instance,
in his evidence-in-chief there
was this exchange of question and
11/...
11.
answer:
"Ek wil net vir u dit vra.
Gestel mnr Myburgh in 1984 en/of vroeg in 85, is u geneem na h
perseel toe wat gespuit word uit 'n
helikopter soos wat ons dit
gesien het op die Mosanto video en u is na aanleiding daarvan gevra
uit 'n weerkundige oogpunt, of mens
hierdie produk uit h helikopter
op klein lande waar daar aangrensende kontantgewasse is wat beskadig
mag word, kan toedien, hoe sou
u na aanleiding van wat u gesien het
en u kennis as weerkundige, gereageer het op daardie navraag?"
"U Edele, ek sal baie bang
gewees om so 'n bewering te maak dat hy absoluut veilig sal wees.
Hoekom? Omdat as die stof,
wanneer hy op 'n
plant kom kan skade aanrig, is die
- kan h mens amper aanneem dat daar sal van die stof op nabygeleë
plante te lande kom. Die
omvang van skade sal dan net afhang van die
konsentrasie, wat 'n mens nie sal kan voorspel met baie groot
sekerheid nie en dan ook
die kragtigheid van die stof om dood te
maak.
MNR NELSON
: Dan
weersomstandighede self? -- Wel, beslis weersomstandighede ja."
And under cross-examination:
"... die hele strekking van
my getuienis is is dat daar altyd verwag sal kan word dat daar 'n
mate van 'drift' sal voorkom en
dat 'n mens onder geen
12/...
12.
omstandighede kan sê dat
omdat op daardie oomblik
die 'drift' so min was dat dit nie saak
gemaak het
nie dit onder ander omstandighede so sal wees nie.
I'm
sorry? Dit is die strekking van my betoog.
So what you are saying is because
there is always the possibility of some drift, therefore you should
never use a helicopter to spray
the fields?
Wel, jy kan nooit enige aparaat
gebruik wat
nie gunstig is of wat - laat ek
dit so stel, 'n helikopter sal waarskynlik - hoe hoër jy die
goed vrylaat soos ek netnou gesê
het, hoe groter sal die
waarskynlikheid van 'drift' wees maar dit het nie gegaan daaroor nie.
Dit gaan as jy die - uit 'n helikopter
waar jy dit hoog vrylaat
teenoor waar met 'n trekker waar jy dit laag vrylaat sal jou kans op
'drift' minder wees - anderste om ek
bedoel."
Apart from the
fact that, as
I
have
said, he has no expert knowledge of crop-spraying, this sort of
evidence in my opinion cannot carry weight.
In the result
I
do not consider that reliance
ought
to be placed on the evidence of this witness to prove that the
statement was false.
13/...
13. (4) It remains to examine the
evidence of Dr Findlay. He was the only witness called on behalf of
the appellant. After graduating
he was employed as an entomologist by
a State department involved with the registration of insecticides and
the instructions and
other details to be stated on the labels of such
products. At a later date he was employed by an American company
called Monsanto.
It manufactured Sting, which was then supplied to
the appellant amongst other distributors. Sting was registered in
March 1985 after
certain tests on the effectiveness and safety of the
product had been carried out for about two and a half years.
Towards the conclusion of his
evidence-in-
chief Findlay was asked about the
suitability of
applying Sting to vines on
Jasonskloof from a
helicopter. It soon emerged that
he had not carried
14/...
14. out the necessary
investigation to be able to deal authoritively with this aspect of
the case. His evidence is as follows:
"
MR
BOWMAN
: Right. Now if
I
were to ask you whether that farm that we
went to see, Jasonskloof, whether the recommendation could suitably
be made that its vineyards
be sprayed by
means of a helicopter, what would
you say?
Certainly
I
think the majority of it can. There're one
or two areas that
I
think
you would need to think very closely about.
I
wouldn't take the decision to ...
Well let's deal with it directly.
COURT
: You're just talking
about now vineyards,
right? The too much spray in the
vineyards?
Well the areas that we saw that
are marked yellow on the map of the farm.
Yes, those are vineyards, yes.
MR BOWMAN
: Can we deal with
those areas with which you would have some difficulty. You have a
reference to the map which is behind you or as
page 1 of the
bundle. Right.
I
have
a little
one here,
I
assume it's the ...
Which areas
would you have some difficulty with
making
the recommendation for? -
I
think as
15/...
15.
previously was
mentioned
I
think
where there're power lines and telephone lines, you know, that's
always a problem in any aerial application
see.
COURT
:
Well nobody has really yet mentioned it being a problem. So you say
there's a problem? --- Well it's not insurmountable. And certainly
I
think that field no 2, that little one
where there
were - next to the river.
MR BOWMAN
: Next to the
river? River, where
there were the
big wattle trees and there were two
power
lines crossing.
I
wouldn't
recommend that for spraying, ...."
This evidence is to be read in
conjunction with the map (RSC 3) on which 8 vineyards and 6 lands
adjoining or close to them are depicted.
Vineyard No 2 has 5 segments
as shown on this map. This vineyard taken as a whole cannot be
described as "that little one":
at least three others are
smaller and three larger. His evidence suggests that he was referring
to a segment No 26 (.3 hectares in
extent) of this vineyard No 2. On
further questioning by the court he said:
16/...
16.
"So which was the other
vineyard you were unhappy
with? Because of power lines?
There's some
corners where,
you know, there's telephone wires and power lines crossing, which
I
think you can't expect a helicopter to get
in there.
MR BOWMAN
: Get into the
corners or get into the
vineyard as a
whole?
I
didn't
see all the
vineyards, the
ones at the top, the six, seven and
eight,
but
I
would
guess that a helicopter could probably treat,
I
don't know
,
70, 75 percent of
the areas we saw
excluding number two.
COURT
: So if you had your
way you - forget
anybody else now - you would say to them, we
can
do 70, 80 percent aerially? 70 ...? Ja, right
All right,
roughly 70.
I
hazard
a guess on
that
.
Yes okay. Well nobody's holding
you to any exactitude. Roughly 70 percent, and the rest you must go
and do by conventional methods.
Is that
what you would do? You see
that
would be
again
determined by the pilot
because he's going, as he's flying then he's going to say, well look,
he can' t get as close to that power line as he thought he
could."
And under cross-examination:
"
MR NELSON
: Would you
just turn to document No.
1? That's a map?
17/...
17.
Yes. You
indicated in your evidence that you would recommend that
approximately 70 per cent of this farm be sprayed from the air if
you
were making a recommendation. Is that correct? ... By
let's
say a sort of calculated guess
.
I
haven't seen all the lands."
(I
emphasise.)
The further questioning under
cross-examination fails to elucidate his evidence but certainly
confirms that it was vague and speculative.
The only reliable
inference to be drawn is that Findlay had not really applied his mind
to what vineyards or portions of a vineyard,
if any, ought not to
have been sprayed by helicopter due to the presence of obstructions
such as trees and power lines. His evidence,
as he more than once
said or implied, was largely guess-work. When asked whether the
damage could have been caused by spillage rather
than drift he said
that he would have expected the latter to have been the cause but
added:
"You know,
I
am not all that
familiar with the pattern of the damage and all that, so
I
don' t
18/...
18.
know that
I
am - whatever
I
say there is,
I
think,
a bit
speculative."
But even on an interpretation of
his evidence most
favourable to the respondent it
does not prove the
falsity of the representation. It
establishes at best
that certain vineyards, or
sections thereof, ought not
to have been subjected to aerial
spraying and that
proper supervision on the part of
the appellant, or the
exercise of sound judgment on the
part of the pilot,
would have insured that this risk
was not taken. The
stated limit,
as
I
have said,
could never have been
intended to apply if such
obstructions obliged the
pilot to discharge the Sting from
an excessive height.
Finally, it ought to be mentioned
that,
perhaps because the amount of
damages was not in
dispute, exact details of the
extent and locality of
the cash crops affected were not
furnished. These
facts cannot be determined from
the record with any
19/...
19. degree of
accuracy. The damage would appear to have been erratic rather than a
general or reasonably consistent drift of the herbicide
beyond each
vineyard and the stated limit on its perimeter. This, it would seem,
lends some support -
I
put
it no higher - to the view that what
I
have
referred to as extraneous factors, or one such factor, probably
caused the damage.
The question of the falsity of the
representation is dealt with in the following two paragraphs of the
judgment of the court a
quo
:
"It appeared from the
evidence of Olivier, a former employee of Defendant, and of Findlay,
an expert in the employ of Monsanto,
the manufacturer of 'Sting', who
testified on behalf of Defendant, that at no stage had Defendant
carried out tests with a view to
determining whether or not 'Sting'
could be applied accurately. The one and only test application of
this herbicide was done in 1984
on the farm of a Mr Wium, but this
was not performed with a view to ascertaining the accuracy whereunder
or the circumstances in
which it would be safe to apply the product
aerially.
20/...
20.
Drift damage is not uncommon and
can occur even in calm conditions. This was borne out by the
testimony of Findlay and Myburgh, an
agricultural meteorologist
employed by the Department of Agriculture and Water Affairs. Findlay,
who clearly has a great deal of
expertise in this field, indicated
that he would not have recommended aerial application on 30% of the
lands inspected by the Court
during the inspection in
loco
.
Furthermore, as appeared from the evidence of both Findlay and
Myburgh, it is wholly inappropriate, and possibly even irresponsible,
to predict the extent of drift which will occur in a given instance
with reference to the absence of drift in another area at another
moment in time."
As to the first
paragraph, the fact that no tests were carried out, takes the matter
no further. A statement that tests were conducted
is not one of the
representations pleaded. Apart from that, the failure to carry out
tests beforehand cannot contribute to the conclusion
that the stated
limit assurance was false. As to the second paragraph,
I
have given my reasons for concluding that
the falsity of the statement cannot be founded on the evidence of
Findlay or Myburgh.
21/...
21 . In the
result
I
am
unable to conclude that the factual basis has been laid for a cause
of action founded on negligent misstatement.
One of the alternative causes of
action, relied upon by the respondent, was breach of contract. The
relevant pleadings in this regard
are contained in two separate
paragraphs of the particulars of claim.
In paragraph 3 the respondent
alleges that in
August 1985 he, represented by La
Grange, entered into
an (express) oral agreement with
De Wet, acting for the
appellant, in terms of which the
respondent undertook
to buy Sting from the appellant
for its application by
helicopter to the vineyards on
inter alia
Jasonskloof;
the appellant was to make all the
necessary
arrangements in this regard; and
it undertook to
exercise the necessary supervision
and control, through
22/...
22.
its servants, over the mixing and
application of the herbicide to ensure that cash crops on the
adjoining lands would not be damaged.
In return the respondent was to
pay for the Sting used and the reasonable costs of applying it. Such
payment would be made by debiting
these costs to the respondent's
account with his agricultural co-operative society, which would in
turn make the necessary payments
on his behalf. In the plea the sale,
supply and method of payment of the Sting are admitted. However, it
is alleged that the appellant
undertook, on behalf of the respondent
and as his agent, to arrange for its application by helicopter. The
other averments in this
paragraph are denied.
In paragraph 8.1. of the
particulars of claim
the respondent alleges, in
amplification of the
agreement pleaded, that the
appellant expressly, or
alternatively tacitly, warranted
that Sting could be
23/...
23.
applied by helicopter to the
various vineyards on Jasonskloof without this method of spraying
causing damage to the existing cash
crops on adjoining lands; and
that the appellant's staff had the necessary skill and experience to
ensure such safe application.
Thus, with some duplication, the
term and warranty relied upon were (i) that the appellant undertook
to supervise and control the
proposed form of application in such a
way as would ensure that the adjoining cash crops were not damaged -
at least not beyond the
stated limit; and (ii) that the appellant
warranted that Sting was a herbicide suited for aerial application by
helicopter and in
particular that this method could be successfully
used to spray the vineyards on Jasonskloof.
As to (i) above there can, in my
view, be no
24/...
24.
doubt that the duty to supervise
was a tacit, if not an express, term of their agreement; and that to
supervise obviously means to
do so properly and effectively. Though
the respondent was not a direct party to the agreement his
understanding was that the appellant
would control the way in which
the herbicide was to be applied: "would do everything", as
the respondent put it. According
to La Grange at the meeting of the
farmers and later on Jasonskloof De Wet gave the assurance that the
appellant would make all the
arrangements and supervise the
operation, implicitly in a proficient manner. When this question was
canvassed in cross-examination
the evidence of La Grange was to this
effect:
"Bayer, dit wil sê mnr
De Wet al weer, het dus nooit vir u gesê in terme, hy het nie
die woorde gebruik, dat hulle
enige beheer of kontrole sal
uitoefen oor die toediening van
die Sting nie?
Hy het vir my gesê hulle sal
teenwoordig wees, ek moet nie bekommerd wees nie en weer genoem hulle
25/...
25.
reël alles.
Maar wat u verstaan het met wat hy
gesê het, is
dat hulle daardie kontrole of beheer sal
uitoefen?
Hulle sou na alles kyk.
Dit is wat u ook op bladsy 301 van
die oorkonde gesê het, Bayer het vir my laat verstaan hulle
reël alles. Wat ek verstaan
as iemand vir my sê hy sal
alles reël, as mnr Frost vir my sê, spuit Sting op
Jasonskloof en ek sê vir hom
ek sal alles reel, dan word daar
van my verwag dat ek honderd persent kontrole uitoefen oor hoe
daardie gif gemeng en toegedien word
in die wingerd en as daar enige
fout is, dan sal ek die verantwoordelike wees wat dit gereël
het. Dit was u verstand van die
posisie, dit is nie wat mnr De Wet
vir u gesê
het nie? Ek het aangeneem omdat
ek hom die
blok gaan wys het waar die
gevaarstrook was, het hy my laat verstaan dat hulle deskundiges is
die gebied waar daardie produk neergesit
word ...
Maar hy het nooit vir u gesê
dat hulle, Bayer, die toesig en beheer oor die metode van die
bespuiting sal uitoefen nie?
HOF
: Hy het dit in soveel
woorde gesê, dit is
eintlik die vraag? Hy het dit
kort maar
kragtig gesê."
That an undertaking to supervise
was a term of their agreement is of course borne out by what actually
took
26/...
26.
place. De Wet supervised the
operation throughout and La Grange, even had he been asked to do so,
lacked the necessary knowledge.
All that La Grange was reguired to do
was to provide labourers as markers.
In my view the warranty ( (ii)
above) was
likewise proved. La Grange
explained that the most
important question asked at the
farmers' meeting was
whether there would be peripheral
damage since all the
farmers present had vines
interspersed with other
crops. The assurance of the stated
limit was thus of
vital concern to them. Later on
the farm De Wet and La
Grange inspected the areas which
were to be sprayed and
De Wet was especially shown those
lands where there was
no road separating a vineyard from
an adjacent land
with cash crops on it. The
assurance of the stated
limit was again given. In
Naude
v Harrison
,
1925 CPD
84
at 90 it is stated that:
27/...
27.
"We have to ascertain whether
both parties intended to contract that the thing sold should be as
represented, whether the seller
intended to bind himself in law that
the thing would comply with what he had stated, or at any rate so
acted as to estop himself
from denying such intention. It is not
sufficient that the purchaser relied on the statement - that may be
enough for a
dictum
, but not for a
promissum
- it must
also be shown that the seller contracted that the statement would be
made good."
The warranty was not expressly
given in that at no
stage did De Wet in so many words
say that the
appellant "warranted" or
"guaranteed" that the stated
limit would not be exceeded. What
the respondent
relied upon was a tacit term to
that effect. The
degree of proof required to prove
a tacit agreement,
and a
fortiori
a tacit term
or warranty forming part
of an agreement, is discussed in
Joel Melamed and
Hurwitz v Cleveland Estates
(Pty) Ltd; and Joel
Melamed and Hurwitz v Vorner
Investments (Pty) Ltd
1984(3) SA 155 (A) at 164 G -
165
F:
28/...
28.
"As to tacit contracts in
general, in
Standard Bank of South Africa Ltd and Another v Ocean
Commodities Inc and Others
1983 (1) SA 276
(A) it was stated (at
292B - C):
'In order to establish a tacit
contract it is necessary to show, by a preponderance of probabilites,
unequivocal conduct which is
capable of no other reasonable
interpretation than that the parties intended to, and did in fact,
contract on the terms alleged.
It must be proved that there was in
fact
consensus ad idem
. (See generally
Festus v Worcester
Municipality
1945 CPD 186
at 192-3;
City of Cape Town v
Abelsohn's Estate
1947 (3) SA 315
(C) at 327-8;
Parsons v
Langemann and Others
1948(4) SA 258(C) at 263;
Bremer Meulens
(Edms) Bpk v Floros and
Another, a decision of this Court
reported only in Prentice Hall, 1966(1) A 36;
Blaikie-Johnstone v
Holliman
1971 (4) SA 108
(D) at 119B - E;
Big Dutchman (South
Africa) (Pty) Ltd v Barclays National Bank Ltd
1979 (3) SA 267
(W) at 281E - F;
Muhlmann v Muhlmann
1981 (4) SA 632
(W) at
635B - D.)'
This is the traditional statement
of the principle, as is borne out by the cases cited; and it was
accepted as being correct by appellant's
counsel. The correctness of
this general formulation has nevertheless been questioned on the
ground that it would appear to indicate
a higher standard of proof
than that of preponderance of probability as regards the drawing of
inferences from proven facts (see
Christie
The Law of Contract in
South Africa
at 58
29/...
29.
- 61; cf also
Fiat SA v Kolbe
Motors
1975(2) SA 129 (0) at 140;
Plum v Mazista Ltd
1981
(3) SA 152
(A) at 163-4;
Spes Bona Bank Ltd v Portals Water
Treatment South Africa (Pty) Ltd
1983(1) SA 978 (A) at 981A - D).
In this connection it is stated that a court may hold that a tacit
contract has been established
where, by a process of inference, it
concludes that the most plausible probable conclusion from all the
relevant proved facts and
circumstances is that a contract came into
existence (see
Plum's
case
supra
at 163 - 4). It may be
that in the light of this the principle as quoted above from
Standard
Bank of S A Ltd v Ocean
Commodities Inc (supra)
requires
reformulation. In this regard, however, there is this point to be
borne in mind. While it is perfectly true that in finding
facts or
making inferences of fact in a civil case the court may, by balancing
probabilities, select a conclusion which seems to
be the more natural
or plausible one f rom several conceivable ones, even though that
conclusion is not the only reasonable one,
nevertheless it may be
argued that the inference as to the conclusion of a tacit contract is
partly, at any rate, a matter of law,
involving questions of legal
policy. It appears to be generally accepted that a term may not be
tacitly imported into a contract
unless the implication is a
necessary one in the business sense to give efficacy to the contract
(see
Van den Berg v Tenner
1975(2) SA 268 (A) at 276H - 277B
and the cases there cited). By analogy it could be said that a tacit
contract should not be inferred
unless there was proved unequivocal
conduct capable of no other reasonable interpretation
30/...
30.
than that the
parties intended to, and did in fact, contract on the terms alleged.
Be that as it may, this is not the occasion to
resolve these
problems. The point was not argued and, on the view
I
take of the facts, it is not necessary to
decide what real difference, if any, there is between the viewpoints
outlined above or to
express a preference for one or the other."
The approach in
Plum v Mazista
Ltd
has been endorsed
by this court in
Muhlmann v
Muhlmann
1984(3) S.A. 102
(A), a judgment delivered on 30
September 1983 but only
reported in the law reports just
short of a year later.
On
either approach
I
consider
that the tacit
warranty was proved. The test is
an objective one.
Spraying by tractor was the
conventional and safe
method hitherto used by farmers in
that area on their
vineyards. The saving in time and
money gained by
converting to aerial spraying
would never have been
contemplated in the absence of a
guarantee that beyond
the stated limit.any damage to
other crops could and
would be averted. In the absence
of any such
31/...
31 .
warranty the danger of
conseguential loss, even as a remote risk, far outweighs the
advantages of this proposed form of application.
There can be little
doubt that this was fully realised by both parties when the assurance
of the stated limit was repeatedly sought
and given and when the
agreement was concluded and carried out.
In considering the remaining
question, whether
there was a breach of the
agreement pleaded, one must
in the first place examine the
position of the pilot.
It was submitted on behalf of the
appellant that he
was the agent of the respondent or
at least not the
servant or employee of the
appellant for the purpose of
the spraying operation. The
evidence shows that he was
ad hoc
its servant. In
Ongevalle Kommissaris v
Onderlinge
Versekerings-Genootskap A.V.B.O.B.
1976(4)
S.A. 446 (A) at 456 G - H it was
stressed that:
32/...
32.
"... die kwessie van beheer
gewoonlik die sterkste oorweging is by die beslissing van die vraag
of h besondere verhouding dié
van heer en dienaar is of nie,
maar dat daar ook ander geldige oorwegings kan wees en dat elke
besondere geval in die lig van sy
eie omstandighede beslis moet
word."
Everything points to the fact that
the pilot was exclusively under the control of De Wet during the
entire operation. He was under
De Wet's orders and exercised no
independent judgment at any stage, though obviously in the carrying
out of instructions his experience
and skill as a pilot was involved.
Neither the respondent nor La Grange had any part in the selection of
the pilot. They did not
know his identity, or even the name of the
crop-spraying firm the appellant had engaged, until the helicopter
arrived on the scene.
Had the pilot been in any way their
responsibility this would not have been the case. The fact that the
respondent was to pay for
the cost of the
33/...
33.
spraying direct to the aircraft
firm and that such
fee
was not part of a composite charge
made by
the
appellant is not in the
circumstances of
any
importance.
In carrying out this operation the pilot
was clearly on the same footing as
any person in
the
permanent
employ of the appellant.
It remains to consider whether
there was a
breach of the term and warranty
pleaded. In
discussing the evidence in
relation to the other cause
of action (negligent misstatement)
the possible reasons
for the damage to adjoining lands
were listed. In sum,
it could only have been caused by
Sting being
inherently unsuitable for aerial
spraying; pilot
error which would include the
incorrect setting of the
nozzles; the unsuitability of the
farm or portions of
it to be sprayed in that manner as
a result of the
layout of the lands and vineyards
or the presence of
34/...
34. obstructions; or lack of
supervision on the part of De Wet, for instance, in allowing the
spraying to take place, or to continue,
in unfavourable weather
conditions.
Prima facie
, in fact as a probability, one of
these causes, or more than one, operating jointly or intermittently,
must have been responsible
for the damage. It was not for the
respondent to attempt to identify the cause or causes in respect of
the damage to each adjoining
land. This was, or ought to have been,
within the peculiar knowledge of De Wet or the pilot. Neither was
called as a witness to explain
the precise cause or to suggest any
other which would exonerate the appellant for what must otherwise be
taken to have been a breach
of the agreement between the parties.
For this reason
I
agree that the
appeal
should be disallowed and with the
order proposed in the
35/...
35. majority judgment.
M E KUMLEBEN
JUDGE OF
APPEAL