IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – MAKHANDA )
CASE NO.: 896/2017
Matter heard on : 18 November 2024
Judgment delivered on: 18 February 2025
In the matter between: -
GIZA TECHNOLOGIES (PTY) LTD Plaintiff
and
ALBERT DE BUYS Defendant
JUDGMENT
ROSSI AJ:
[1] This action , which is based in contract, concerns two claims. Claim one is in
respect of the sale and delivery of what was supposed to be Damara Sprin gbuck , a
breed of Springbuck forming part of the ecotype or subspecies of marsupialis and
originating from the Damaraland region in northwest Namibia. Damara Springbuck
are a sought after breed given their unique morphological traits1 and their resilience
1 Which will be addressed below.
to adverse environmental conditions , and because of this they yield higher purchase
price s than their more common counterparts.2 Claim two concerns the sale of a King
Springbuck ewe certified as pregnant by a Bont Springbuck breeding ram.
[2] On account of my finding that this court is not vested with jurisdiction in
relation to claim two, it is necessary for me to pertinently distinguish between th e two
claims , whic h I do below.
[3] Prior to engaging in the merits, it must be mentioned that the defendant did
not attend the trial. He defended the action and filed a comprehensive plea .3 His
attorneys of record , both instructing and correspondent, withdrew on 6 November
2024 . The notice of withdrawal indicates that ‘In compliance with Rule 7(1) of the
Practice Directives, the defendant was informed by email on 6 May 2024 of the trial
date, on 18 October 2024 the defendant was once again reminded of the trial date
by email and telephonically and during the consultation on 23 October 2024 he
instructed his attorneys to withdraw. The defendant is aware of the trial date and is
further aware of his rights and obligations and the possible consequences if he fails
to further comply with the rule.’4
[4] In response to my query raised with the plaintiff’s legal representatives in
chambers regarding whether the defendant was aware of the trial date, which set
down date was received from the registrar in April 2024, the matter stood down. I
was later presented with two affidavits.
[5] The first affidavit is deposed to by the defendant’s erstwhile attorney of
record , Mr Willem Spangenberg, which had as an attach ment his email addressed to
the defendant’s correspondent attorney , Mr M c Callum. In the said email,5 Mr
Spannenberg confirm ed his discussions with the defendan t relating to the impending
trial date. The email concludes ‘…I received instructions from him to withdraw as
attorneys of record. Mr de Buys indicated that he does not intend to attend the trial
2 For example, the Kalahari Springbuck or the Cape Springbuck.
3 Dated 5 July 2017.
4 My own emphasis is added.
5 The email is dated 5 November 2024.
on 18 November 2024. Mr de Buys is fully aware of the fact that judgment will
probably be given in his absence on 18 Nove mber 2024.’
[6] The second affidavit was one deposed to by Mr Wynand Neveling, the
plaintiff’s attorney of record . The affidavit indicates that Mr Neveling telephonically
contacted the defendant on the morning of the trial date and during the said
telephonic conversation, the defendant confirmed that he was aware of the trial date
and the withdr awal of his attorneys but that he had no intention of attending the trial .
[7] In the circumstances I was satisfied that the defendant was indeed aware of
the trial date but had elected not to attend court. In the premise the plaintiff was
permitted to proceed .
Claim one : pleadings
[8] Claim one as particularised is as follows:
(a) During or about November/December 2015 and at Port Elizabeth (now
Gqeberha), alternatively Phillipstown, the plaintiff (represented by Daniel
Tenner) and the defendant (personally) entered into an oral agreement in
terms of which the plaintiff purchased from the defendant the following pure
bred Damara Springbuck :
i. 1 Damara Springbuck breeding ram6 with horn length of no t less than
15 inches;
ii. 19 mature Damara ewes;7
iii. 11 young Damara ewes (18 months and older); and
6 A ram is a male.
7 An ewe is a f emale .
iv. 15 Damara lambs – under 18 month (the sex of which were yet to be
determined).
(b) The purchase price was R174 420.00 (inclusive of VAT) and an invoice (No.
09/2015) in this amount was issued by the defendant to the plaintiff.8
(c) The purchase price was payable in two equal instalments. A deposit of 50%
(the amount of R87 210.00 ) was payable on acceptance of the invoice and
the balance on delivery. The plaintiff paid th e deposit on 2 December 2015.
(d) In breach of the agreement, the defendant only delivered the following
Springbuck to the plaintiff , which delivery took place at the Grootvlakte and
Schoongesicht farms9 situated in Somerset East :
i. 10 mature Springbuck ewes (1 of which was dead on arrival, 1 died
within 12 hours after arrival and a further 1 died within 7 days
thereafter ).10
ii. 10 young ewes (18 months or older) (7 of which were ewes and 3 were
rams . 1 ewe died shortly after arrival ).11
iii. 10 lambs (under 18 months) (8 of which were ewes and 2 were rams. 2
lambs died in transit and 2 more lambs died within 24 hours of
arrival ).12
(e) The defendant failed to deliver the Damara Springbuck breeding ram.
8 Which invoice formed part of the trial bundle and is dated 1 December 2015. The description on the
invoice reads ‘Deposito Damara Springbok Teelgroep’ which loosely translate s to ‘deposit Damara
Springbuck breeding group’.
9 According to the plaintiff’s evidence, delivery took place at the Grootvlakte farm in Somerset East.
10 A deficit of 9 mature Damara Springbuck.
11 A deficit of 1 ewe.
12 A deficit of 5 ewes.
(f) In further material breach of the agreement, the Springbuck delivered to the
plaintiff were not Damara Springbuck .
(g) Pursuant to the material breach of the agreement, the plaintiff elected to
cancel the agreement, which it duly did by way of its attorney’s letter dated 19
October 2016 .
(h) As presently formulated, the plaintiff’s claim is for damages arising from the
defendant’s breach of the agreement. Damages in the amount of
R356 500.0013 plus return of the deposit is sought . The amount of
R356 500.00 is calculated as follow s:
(i) Springb uck not delivered:
8.i.1. Adult ram: R25 000.00 x 1. Total R25 000.00.
8.i.2. Adult ewes: R5 000.00 x 9. Total R45 000.00.
8.i.3. Young ewes: R3 000.00 x 4. Total R12 000.0 0 (The quantification of
this line item conflicts with an earlier paragraph in the particulars of
claim where it is pleaded that 10 young ewes were delivered , not 7 .
Leaving a short -fall of only 1 young ewe as oppo sed to the 4 claimed. I
shall return to this aspect momentarily).
8.i.4. Lambs: R2 500.00 x 5. Total R 12 500.00.
Total: R94 500.00.
(j) Lambs not being born to mature and young ewes: 20 for the year 2016; 20 for
the year 2017; and 27 for the year 2018 (Total 67 lambs) . A total loss of
R207 500.00.14
13 Prior to i ts amendment on 18 November 2024, claim one was initially for the amount of
R1 277 475.00. The proposed amendment, which was presented to me at the hearing of the matter ,
substantially brought the claim down to R365 500.00. Accordingly, as there could be no prejudice to
the defendant, the amendment was duly granted.
14 R5 000.00 x 20 for the adult ewes: R100 000.00; R2 000.00 for the 20 adult rams: R40 000.00;
R2 500.00 for the young ewes and rams: R67 500.00. Total: R207 500.00
(k) Difference between the mature ewes delivered and the pure bred Damara
Springbuck: R3 000.00 x 10. Total R30 000.00.
(l) Difference between the young ewes delivered and the pure bred Damara
Springbuck: R1 500.00 x 7. Total R10 500.00.15
(m) Difference between the lamb ewes delivered and the pure bred Damara
Springbuck: R1 500.00 x 8. Total R1 2 000 .00.
(n) Difference between the lamb rams delivered and the pure bred Damara
Springbuck: R1 000.00 x 2. Total R2 000.00.
Total: R54 500.00.
Total for claim one: R356 500.00 (and return of the deposit R87 210.00 ).
[9] The defendant raise d a special plea of lack of jurisdiction in identical terms in
relation to both claims . Jurisdiction in relation to c laim two will be analysed at a later
stage. The defendant plead ed that he resides in the Phi llipstown, which is in the
Northern Cape, and furthermore, that the cause s of action arose within the
jurisdiction of the Northern Cape .16 The defendant pleads that the Kimberley Hig h
Court , or its Regional Court counterpart, has jurisdiction over the cause of action.
[10] On the merits, the defendant admits that the terms of the agreement as
pleaded by the plaintiff but pleads that the agreement was subject to the following
additional express terms:
15 The inconsistency in pleading, and which is referred to above, will be dealt with below .
16 In the plea and in relation to the conclusion of the agreement the defendant pleads that ‘ [3.2.1]
During or about November 2015 the defendant telephonically contra cted Mr Daniel [Tenner]. The
defendant was on his farm Venterspoort, Philipstown when he spoke to Mr Tenner. During the course
of the telephone discussion the defendant offered to sell to Mr [Tenner] the following … [3.2.2] In the
course of the telephonic conversation Mr [Tenner] accepted the defendant’s offer.’
(a) Ownership of the Springbuck and the risk of profit and loss would pass to the
purchaser when the Springbuck were loaded onto the vehicle arranged for
transport to the plaintiff.17
(b) The animals would be caught on the defendant’s farm with the use of catchin g
nets and the final purchase price would be calculated , and payable , once
delivery ha d taken place and the number and sex of the animals had been
determined.
(c) The defendant pleaded that it delivered 10 mature Damara Springbuck; 7
young Damara Sprin gbuck ewes ; and 8 Damara Springbuck ewe lambs.18
(d) On or about 6 July 2016, the defendant informed the plaintiff that t he Damara
Springbuck breeding ram had died, and a suitable replacement of equal
quality would be provided.
(e) The purchase price for the Springbuck loaded amounts to R105 000.00 .
R87 210.00 of which has been paid and an amount of R17 790.00 remains
outstanding and payable by plaintiff .19
(f) The defendant has fulfilled his obligations in terms of the agreement and the
plaintiff had no lawful grounds to cancel the agreement.
[11] The plaintiff did not file a replication .
[12] At the trial and in support of the plaintiff’s claims, the plaintiff led the evidence
of three witnesses , Mr Daniel Tenner, Mr John Hunter (an expert witness) and Mr
Jan Jordaan.
17 This does not appear to be in dispute with reference to the plaintiff’s calculation of damages , which
excludes the dead animals.
18 On the defendant’s own version there is no dispute that there w as a short delivery as per the
agreement read together with the invoice.
19 There is however no counterclaim for this amount.
Claim one : jurisdiction
[13] I shall deal with jurisdiction first. The evidence of Mr Tenner , the owner and
managing director of the plaintiff, is that he became involved in game breeding
towards the end of 2015. He had met the defendant at an auction a year or two prior
and knew that the defendant sold Damara Springbuck . As Mr Tenner was interested
in diversifying his breeding groups , as it adds value to one’s stock and is appealing
to trophy hunters , he contacted the defendant and discussions ensued . This took
place during November/early December 2015.
[14] At the time of these discussions , which took place telephonically and via
email, the plaintiff was in Gqeberha , and the defendant was in Philipstown . In
response to these discussions, the d efendant prepared a quotation, and an
accompanying email , which he addressed to the plaintiff’s professional assistant on
30 November 2015 . It sets out the merx of the sale,20 the deposit payable and other
incidental issues .21 In this instance, the defendant is the offeror , which offer was
accepted by the offeree (Mr Tenner) by way of payment of the deposit.
[15] As explained in the authoritative works of Christie’s Law of Contract in South
Africa22 ‘(A)nalysis into offer and acceptance is also usually the most satisfactory
method of deciding…whether the court has jurisdiction...as a general proposition,
agreement is reached when each party is aware that the other is in agreement,
which will be when and where the offeror receives communication of the offeree’s
acceptance from h im.’
[16] On the evidence before me, the contract was not entered into in Gqeberha but
in Philipstown , because this is where the defendant was when acceptance of the
offer was conveyed to him by Mr Tenner . Despite the plaintiff’s counsel addressing
20 Which is recorded in paragraph 8(a) above.
21 The email formed part of the trial bundle which was utilised for the plaintiff’s evidence – pp 1 and 3.
22 GB Bradfield, Christie’s Law of Contract in South Africa, 8ed (‘Christie’s) , p 41 .
me, both in court and in written submissions and seeking to found jurisdiction based
on the conclusion of the contract , I am not bound by an incorrect submission in law.23
[17] The contract was not concluded within this jurisdiction .24 But is that the end of
the enquiry? For the reasons that follow, it is not.
[18] According to Amler’s Precedent of Pleadings,25 a contractual cause arises
where (a) the contract was entered into; (b) the contract is or was performed, wholly
or in part; or (c) the breach of contract upon which the plaintiff relies was performed.
A plaintiff has the choice of instituting action in any one of these places.26
[19] Pursuant to the agreement having been reached , and during June 2016, the
Springbuck were loaded on the defendant’s farm in Venterspoort , Philipstown, and
delivered to the plaintiff at the Grootvlakte farm in Somerset East.27 Somerset East
falls within the jurisdiction of this court. Accordingly, there was partial performance of
the contract within this court’s jurisdiction. Enough so to found jurisdiction. 28
[20] Additionally, the breach relied upon by the plaintiff also occurred in Somerset
East.29 According to Mr Tenner, i t was in Somerset West where it was established
23 Matatiele Municipality & others v President of the RSA & others 2006 (5) SA 47 (CC) para 67. The
Constitutional Court added: ‘Indeed, in Azanian Peoples Organisation (AZAPO) and others v
President of the Republic of South Africa and others, this Court firmly reject ed the proposition that it is
bound by an incorrect legal concession, holding that “if that concession was wrong in law [it] would
have no hesitation whatsoever in rejecting it.” Were it to be otherwise, this could lead to an intolerable
situation where th is Court would be bound by a mistake of law on the part of a litigant. The result
would be the certification of law or conduct as consistent with the Constitution when the law or
conduct, in fact, is inconsistent with the Constitution. This would be contra ry to the provisions of s 2 of
the Constitution which provides that the “Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid.”’
24 The plaintiff’s counsel in addressing me, both in court on this issue, and in writ ten submissions later
submitted to me, relies on the contract having been concluded in Gqeberha to found jurisdiction.
25 LTC Harms, Amler’s Precedents of Pleadings, 9ed, 105.
26 Ibid.
27 The property of Jac Jordaan – who later gave evidence.
28 This princi ple is explained in the works of DE Van Loggerenberg, Pollak – The South African Law of
Jurisdiction, 3ed, p 42 - ‘This principle entails that where one court has jurisdiction over part of a
cause, considerations of convenience, justice and good sense just ify its exercising jurisdiction over
the whole cause. The jurisdiction of a court may therefore be extended by the principle of causae
continentia.’ See also Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A).
29 In Christie’s supra p 621 the learned author explains – ‘A breach is committed in the place where
proper performance ought to have been made but was not. So if a party promises in Windhoek that a
flat in Muizenberg will be suitable for occupation at a certain date and it is n ot, the breach is
committed in Muizenberg and not in Windhoek where the unfulfilled promise is made.’
that there had been a short -delivery and additionally a malperformance in that
Damara Springbuck had not delivered. But more of this later. Accordingly, I find that
in respect of clai m one , this court is vested with jurisdiction.
Claim one: e vidence
[21] Mr Tenner’s further evidence was that one day after delivery to Grootvlakte,30
he was informed by Mr Jordaan (who accepted delivery on the plaintiff’s behalf) that
the Springbuck that had arrived did not appear to be Damara Springbuck.31 Mr
Tenner instructed Mr Hurter , a wildlife specialist , to assess the herd.
[22] On 19 August 201632 a letter of concern was se nt to the defendant by Mr
Tenner . The following is of importance and is replicated hereunder:
‘Upon delivery the Damara Springbuck, were in a poor condition, had broken
horns and some had injuries. Furthermore, we have engaged an expert, who
has advised that in his opinion the Springbuck delivered, are not Damara
Springbuck …
…
Then, once again we received the upsetting news that the 15” Breeding Ram
was found dea d in the veld, I have had some of the “ewes” and no Breeding
Ram – it is not just the case that this Ram wasn’t delivered, but then the news
that he is dead, while all along I am losing a whole season of breeding due to
not having him with the herd.
We are going to have to come to some sort of agreement/understanding and
or arrangement with these animals, as the current state of affairs and what
transpired in the past is unacceptable ... We either have to cancel this
transaction as a whole, where after you collect the remainder of the alive
30 In anticipation of delivery of the Springbuck, a specific area was cleared out at the Grootvlakte farm .
31 As they appeared to be considerably smaller in size and their horn appearance was not as
expected of a Damara Springbuck.
32 Trial bundle at p p 9 to 12.
Springbuck and you refund monies pai d to date, or you have to provide a
suitable alternative solution …’33
[23] The defendant responded on 22 August 2016 undertaking to deliver a
replacement breeding ram , and replacement ewes .34 Despite these undertakings,
the breach was never remedied. On 19 October 2016 the plaintiff’s attorneys
addressed a letter of demand in the following terms to the defendant :
‘7. Furthermore, upon a proper inspection of the alleged Damara Springbuck,
our client became suspicious that same were not in fact Damara Springbuck.
In this regard our client engaged a wildlife expert, who confirmed to our client
that in his opinion the animals delivered are in fact not Damara Springbuck.
8. We record that it was a material term of the Agreement concluded between
Giza and yourself that Giza purchased Damara Springbuck. This is evidenced
by the purchase price of the animals.
9. We record that by not de livering pure bred Damara Springbuck to Giza,
that you have breached a material term of the Agreement of sale and
accordingly, Giza elects to cancel the agreement of sale forthwith and
demands payment of the deposit amount, being R87 210.00, paid by it to
you.’35
[24] The plaintiff’s next witness was Mr John Hurter , whose expert summary36 and
field assessment report dated 26 September 201 9 forms part of the court file .37 Mr
Hurter’s evidence is summarised below:
33 My own emphasis.
34 Trial bundle p 13.
35 My own emphasis.
36 Mr Hurter’s professional qualification s, which were confirmed in his evidence, are comprehensively
set out in the expert summary . To summarise he has a National Diploma in Nature Conservation
(NMU) and has completed more than 30 training programs in the field of ecology and wildlife
management , commerce and agribusiness and firearms and professional hunting. He is the founder
of the Wild Summit Group and has been engaged in the development and management of game
farms and private game reserves for more than 20 years.
37 Trial bundle pp 34 to 50.
(a) He was approached in 2016 by Mr Tenner to conduct a field assessment of
the Springbuck herd located on the Grootvlakte farm . He conducted the
assessment, which was then reviewed by his colleague, Mr Danie Jordaan.38
(b) A field assessment by way of camera trapping s was conducted . This is non -
detrimen tal to the animals and also cost effective.39
(c) The camera trappings were used to establish the shoulder height of the
female Springbuck in question , which is a distinguishing feature : ‘Damara
spring[buck] may be an ecotype or subspecies of A . marsupialis, originating
from the Damaraland region in northwest Namibia. Sought after because of
their particular morphological traits and exceptional resilience to adverse
environmental conditions, breeding stock is/was regularly translocated to
game fa rms in South Africa, either to breed in isolation (‘pure’), or to
interbreed with existing stock.’
(d) There are two distinguishing features (or morphological traits) of the Damara
Springbuck. Firstly, the adult ewes typically have substantially thicker horn
bases , which results in Damara ewes being easily mistaken as rams. This trait
is observable in the ewes at a young age (i.e 12 months onwards). Secondly,
adult ewes have a mean shoulder height of 816mm compared to 714mm (A.m
hofmeyri/ Kalahari Springbuck) and 724mm (A.m marsupialis /Cape
Springbuck).40
(e) The camera trappings were set up at a water trough from 5 February to 21
March 2019 (45 calendar days).41 Three cameras were mounted with the
centre of their lenses at 700mm above ground level to capture the nominal
shoulder height of the ewes. Two mineral/ salt licks were placed in view of the
cameras to encourage viable capture events. Four purpose -made gauging
38 This is common practice in his field.
39 As opposed to , for example, euthanising the animals.
40 The more common Springbuck in South Africa is the Cape Springbuck.
41 No other water supply was available during the assessment period save for temporary rain water.
rods, with 100mm demarcations , were placed 4 and 8 metres from the
camera lenses to gauge the shoulder height.
(f) Photographs of s everal viable capture events form part of the report.42 The
photographs illustrate the ewe’s shoulder height in relation to the gauging rod
which is shown as an artificial yellow line on the photographs.
(g) His results read ‘A total of 9275 unspoiled photos were collected during the
assessment period, averaging 2 06 activities captured per day …Approximately
300 clear spring[buck] photos were individually assessed, and 4 7 viable
capture events selected for further examination . These 47 events yielded a
total of 51 viable samples for realistic estimation of shoulder height. It must be
noted that identification of in dividual animals was not within the scope of this
assessment, and duplicate samples may exist. However, the sample is
considered sufficient for the purpose of deriving a mean shoulder height for
this isolated herd of female spring[buck]. Thirty eight (38) samples were
estimated at the 650 -700mm increment, while only thirteen (13) are potentially
over 700mm s houlder height. Of the thirteen (13) samples in the 700 -750mm
increment, none are potentially over 750mm . Therefore, the mean shoulder
height of the Tenner spring[buck] herd is considered well below the mean of
816mm stated for A.m an golensis , of which Dam ara spring[buck] are
regarded as a repre sentative sub -population. Furthermore, in the entire
sample, no evidence was observed of the typical and distinctive horn
development (thickened horn bases) of female Damara spring[buck] .’43
(h) The report concludes ‘Based on the morphological parameters examined in
this assessment, there is no evidence to suggest that the Tenner spring[buck]
herd (females only) is likely to have originated from the Damara spring[buck]
sub-population, or from the A.m angolensis entire ly. This position is further
supported by the absence of the typical and distinctive enhanced horn
development of female Damara spring[buck]. Subsequently, the author is of
42 Figures 5 to 8 appearing at pp 43 to 46 of the trial bundle.
43 My own emphasis.
the option that further investigation in respect of the regional origin of the
Tenn er spring[buck] herd is unlikely to yield different results, and therefore is
not warranted.’44
[25] The plaintiff’s last witness was Mr Jan Jordaan , formerly a farmer at the
Grootvlakte farm , who now practices as an accountant . Mr Jordaan has over 15
years’ exper ience as a farmer and accepted delivery of the Springbuck on behalf of
the plaintiff. His evidence deals with two keys aspects . Firstly, his observations
relating to the Springbuck , and secondly, the calculation and quantification of t he
plaintiff’s damages. His evidence was that:
(a) When the Springbuck were delivered , he saw to it that they were isolated from
other animals and kept in the Skoongesig and Withek camps (Grootvlakte) .
Isolation was necessary as the Damara Springbuck are far more valuable
than their counterparts and did not want cross -breeding.
(b) The Springbuck remained separated from other animals whilst the
assessment by Mr Hunter was undertaken.
(c) When he observed the Springbuck, he immediately noticed that they were
significantly smaller than anticipated . He consulted a colleague/farmer, Mr
Kasper de Klerk, who agreed that they did not appear to be of the Damara
variety . He immediately informed Mr Tenner of his observations . This
ultimately led to the appointment of Mr Hurter .
(d) In respect of damages for claim one, he prepared a schedule of calculations.
The damages are based on the Damara Springbuck which were not delivered
as well as a breeding forecast for the ram . No purpose will be served in
repeating the schedule at any great length as it coincides with the plaintiff’s
amended particulars of claim, which I have dealt with above.
44 My own emphasis.
(e) The schedule reflects of the short -deliver y of 1 adult ram ;45 9 adult ewes ;46 4
young ewes ;47 and 5 lambs ,48 which results in a total loss of R94 500.00 .
Values attached to each line item are the values agreed upon by the parties
and recorded in the quotation. (I again reference the inconsistency with the
plaintiff’s pleaded case .)
(f) The difference between the value of the Springbuck delivered by the
defendant in comparison to the value of Damara Springbuck amounts to a
total of R54 500.00 .
(g) He estimates that the 20 lambs would have been born from the adult ewes
had the breeding ram been delivered for the 2016 year; 20 for the 2017 year
and 27 for the 2018 year. A total loss of 67 lambs , which is a 75% lambing
percentage . According to Mr Jordaan this is a conservative estimate .
(h) The values that Mr Jordaan has used in his calculations are based either on
his 15 years ’ exper ience as a farmer in the industry , the amounts agreed upon
by the parties in the quotation, and the market related prices.
Claim one: analysis
[26] A few remarks stand to be made in relation to the evidence of Mr Hurter . The
duties of an expert witness , which , derived from English law have been adopted into
our jurisprudence,49 are adumbrated in National Justice Compania Naviera SA v
Prudential Assurance Co Ltd (“The Ikarian Reefer”).50 An expert’s evidence must
be uninfluenced by the exigencies of litigation either in its form or content. An expert
must not assume the role of an advocate and must give an unbiased opinion on
matters falling within his/her expertise; he/she should state t he facts or assumptions
45 Which was never delivered.
46 Of the 19 agreed upon , only 10 were delivered. A short -fall of 9.
47 Of the 11 agreed upon, only 7 were delivered. A short -fall of 4.
48 Of the 15 agreed upon, 10 were delivered. A short -fall of 5.
49 See for example PriceWaterhouseCoopers Inc and Others v National Potato Co -operative Ltd
[2015] ZASCA 2; [2015] 2 All SA 403 (SCA) par 98.
50 [1993] Lloyd’s Rep 68.
upon which the opinion is based; he/she should not omit to consider matter that
would detract from the opinion; he/she should make it clear when a particular
question is outside of his/her expertise; if he /she has not fully research ed his/her
opinion, it must be stated that the opinion is provisional; and if something stated in
his/her opinion requires clarification, this must be disclosed.51
[27] In order to assess the value of an expert’s opinion, it is necessary for the
expert to d isclose the process of reasoning which led to the conclusion reached.52
An expert’s bald statement of opinion is of no assistance to a court.53 When experts’
opinions are in conflict, a court must determine to what extent their opinions are
founded on logi cal reasoning.54 This is so because an expert’s opinion must
represent their reasoned conclusion based on certain facts or data which are either
common cause or established by his/her own evidence or that of some other
competent witness.55
[28] Having regard t o the authorities cited above, I accept Mr Hurter’s
qualifications, as well as his opinion and evidence . I have found his evidence to be of
appreciable help and interest to the court. I accept , based on what is before me, that
the defendant, in breach of the agreement, delivered to the plaintiff Springbuck which
were not of the Damara ecotype .56 As there is no dispute on the pleadings as to the
merx of the sale , this results in the finding of a material breach of the agreement.
The p laintiff was thus entitled to cancel, which it duly did.
[29] What is left is the assessment of the plaintiff’s damages , and whether such
damages are sufficiently linked to the breach. This involves a two -step enquiry,
firstly, into factual causation and then into legal causation.57 The factual enquiry is
51 Ibid.
52 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3)
SA 352 (A) at 371F -H.
53 Louwrens v Oldwage 2006 (2) SA 161 (SCA) par 27.
54 Ibid.
55 Roman’s Transport v Zihwele [2015] ZASCA 13 (SCA) par 9.
56 DF Mostert, DJ Joubert & G Viljoen, Die Koopkontrak, p 118, the learned authors state the following
‘Die verkoper moet die koopsaak aan die koper lewer. Wanneer ‘n besondere saak verkoop is, moet
die verkoper daardie besonder e saak lewer, en nie ‘n ander nie, al is die ander een identies aan die
koopsaak, of van ‘n beter gehalte of meer doeltreffend’.
57 Christie’s supra p 678.
best understood by applying the ‘but -for’ test: would the plaintiff have suffered the
loss ‘but-for’ the breach?58
[30] The plaintiff who can show no more than a probability that it would not have
suffered the loss if the contract had been properly performed will succeed u nless the
defendant can discharge the onus of pro ving that there is no such probability.59 If the
plaintiff meets the ‘but -for’ test the second enquiry arises which is ‘whether the
wrongful act (in a contract case, the breach of contract) is linked sufficiently closely
or directly to the loss for legal liability to ensue or whether, as it is said, the loss is too
remote. This is basically a ju ridica l problem in the soluti on of which considerations of
public policy play a part. This is sometimes called “legal causation”.’60
[31] Damages for breach of contract are intended to put that party in the position it
would have been in if the contract had been properly performed (positi ve
interesse).61
[32] We can deal with the short -delivery of Damara Springbuck swiftly. On the
defendant’s own pleadings, there was a short -delivery of Springbuck. Despite the
inconsistency in the plaintiff’s pleadings regarding the short -delivery of young
ewes,62 the defendant effectively admits that it delivered 7 young ewes , not 11 . This
result s in a shortfall of 4 young ewes , which is reflected and claimed in the plaintiff’s
schedule. In terms of the plaintiff’s schedule a total loss of R94 500.00 has be en
suffered by the plaintiff in total under this head of damage . The amount is comprised
of the sale values agreed upon by the parties , which are recorded in the quotation.
There can be no question that th e amount is due , provided that provision is made for
58 It is important to rememb er as Nugent JA aptly said in Minister of Safety and Security v
Duivenboden 2002 (6) SA 431 (SCA) at 449 , a plaintiff ‘is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct (or breach of contract) was probably a cause
of the loss, which calls for a sensible retrospective analysis of what would probably have occurred,
based upon the evidence and what can be expected to occur in the ordinary course of human affairs
rather than an exercise of metaphysics.’
59 Christie’s supra p 679.
60 International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700I.
61 Christie’s supra p 680. See also Victoria Falls and Transvaal Power Co Ltd v Consolidated
Langlaagte Mines Ltd 1915 AD 1 22.
62 Pleading that 10 were d elivered, and not 7.
payment of the balance of the purchase price. This will be dealt with at a later stage.
Factual and legal causation are found to be met.
[33] The next head of damage is the difference in value between the Springbuck
delivered and the Damara Springbu ck agreed upon . Once again Mr Jordaan uses
the purchase price of the Damara Springbuck as per the quotation and deducts the
value of the Springbuck delivered, which value s he arrives at based on his
experience and the market -related prices . I accept th ese values to be fair and
reasonable. There is an appreciable difference in price between the Springbuck
delivered (seemingly of the Cape Springbuck ecotype ) and Damara Springbuck. This
results in a further loss of R54 500.00. My findings already made in the paragraph
directly above apply equally to this head of damage.
[34] Lastly, we turn to the loss of the lambs not born during the 2016 to 2018
birthing seasons. The plaintiff claims for the loss of 67 lambs, quantified at
R207 500.00. The evidence of Mr Tenner is that he intend ed to diversify and expand
his herd. He naturally sought a return on his investment. Given that the purchase
and sale was not only for ewes but for a breeding ram as well, it can hardly come as
a surprise that the birthing of future lambs was within the plaintiff’s contemplation .63
The defendant, with experience in the sale of game and wildlife, would have been
alive to this expectation. For this reason, I do not believe that this damage is too
remote. I am satisfied that this head of damage, albeit prospective in form, is a
sound o ne and is recoverable from the defendant on account of the breach . The
evidence of Mr Jordaan that a 75% birthing rate is con servative and appropriate is
accepted. There is, in any event, no other evidence to countervail what is before me.
I am also satisfied that the value ascribed to the se lambs, as per the schedule, is fair
and reasonable.
[35] These damages will not result in the plaintiff being overcompensated save
that the balance of purchase price , being the amount of R 87 210.00 should be
deducted from the damages awarded . The plaintiff seeks damag es in the amount of
63 It is also expressly re ferenced in the plaintiff’s letter of concern dated 19 August 2016.
R356 500.00 as well as a refund of the deposit already paid.64 This approbat ion and
reprobat ion would result in the plaintiff being overcompensated. As the plaintiff is
claiming positive interesse, the plaintiff must be taken to have fully performed in
terms of the co ntract. That would involve payment by it of the remaining 50% of the
purchase price. To account for this, the amount of R87 210.00 is to be deducted
from the amount of R356 500.00.
[36] Accordingly, in respect of claim one an amount of R269 290.00 is awarded to
the plaintiff . Interest at the legal rate shall run from date of issue of summons (02
March 2017) and not date of demand (19 October 2016) . As the letter of demand
calls for the refund of the deposit only, it would , to my mind, be un just for interest to
run from such date.
[37] As the quantum awarded in respect of claim one falls within the Magistrate ’s
Court jurisdiction, c osts shall be recoverable on the applicable Magistrate ’s Court
tariff.
Claim two: jurisdiction
[38] The plaintiff’s second claim can be dealt with swiftly . Claim two is respect of
an oral agreement reached during or about November/December 2015 between the
plaintiff (represented by Mr Tenner) and defendant at Port Elizabeth ( now Gqeberha)
alternatively , Phillipstown for the sale of a King Springbuck ewe certified as pregnant
by a Bont Springbuck breeding ram. The purchase price for the King Springbuck ewe
was the amount of R342 000.00 (Vat inclusive). The purchase price was duly paid to
the defendant on 2 December 2015.
[39] My findings in relation to the contract having been concluded in Phillipstown
are equally apposite to claim two . A distinguishing feature of claim two is that,
according to the evidence of Mr Tenner, delivery of the King Springbuck ewe never
took place . His further evidence was that he does not even think that the ewe was
ever even pregnant .
64 This is evident from the plaintiff’s written submissions.
[40] The plaintiff pleads at paragraph 8.4 of its particulars of claim , in relation to
the agreed terms of the agreement , that ‘The plaintiff and the defendant agreed that
the relevant King Springbuck ewe would remain on the farm in Venterspoort,
Phillipstown until she delivered t he lamb, alternatively until plaintiff elected to move it
to another destination .’65
[41] To my mind, based on the pleading s,66 delivery ha d already taken place in
Philipstown in accordance with the doctrine of constitutum possessorium.67 This
accords with the defendant’s plea.68
[42] The plaintiff led no evidence that another destination was chosen and that this
was conveyed to the defendant. Nor can any further insight be gleaned from the
pleadings.
[43] On the basis of my finding above , it follows that neither the performance
(wholly or in part) nor the breach took place within the jurisdiction of this court. It is
thus unnecessary for me to discuss the evidence in respect of claim two any further.
[44] Accordingly, the defendant’s special plea in respect of claim two is upheld.
Claim two is accordingly dismissed with costs on the applicable Magistrate ’s Court
tariff.
[45] In the result , the following order is issued:
1. The defendant is ordered to pay to the plaintiff the amount of
R269 290.00 in respect of claim one together with interest
65 My own emphasis. It is noteworthy that t his is in effect admitted by the defendant in his plea at par
4.2.2 thereof .
66 If regard is had to the plaintiff’s pleadings.
67 H Mostert, P Badenhorst, J Pienaar et al, The Principles of the Law of Property in South Africa, p
203, ‘Constitutum possessori um can be used when the parties agree that the transferor will retain
possession following transfer, but on the basis of a contractual arrangement between them. In other
words, the transferor continues to possess the property, but does so with permission of the transferee
(who is now the owner) and in terms of the newly established contractual relationship between them.’
68 At paragraph 4.2.7 of the plea, it is pleaded that delivery took place on or about 3 December 2015.
thereon at the legal rate from 02 March 2017 to date of payment
in full.
2. The defendant is ordered to pay the plaintiff’s costs in respect of
claim one on the applicable Magistrate’s Court tariff .
3. The defendant’s special plea in respect of claim two is upheld
and the plaintiff’s claim two is dismissed with costs on the
applic able Magistrate’s Court tariff.
________________________
T ROSSI
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Mrs H Bakker
Counsel for the plaintiff
Instructed by:
Pieterse Sneller Erasmus Attorneys
The Elvee, 227 Main Road
Walmer
GQEBERHA
Ref: WEN/LTM063
Care of: Whitesides
53 African Street
Makhanda
Ref: R Asmal/mb/C10983
For the defendant : Mr A de Buys
Acting personally/ no appearance