REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE: ¥ESlOO CASE NUMBER: 3678/2021 OF INTEREST TO THE JUDGES: ¥eSINO
REVISED.
DATE 30 March 2026 SIGNATURE ..
i _ - .J
In the matter between :
CITIMBA {PTY) LTD PLAINTIFF
and
HENLEY CITRUS {PTY) LTD DEFENDANT
Delivered
Date heard
Coram
30 March 2026
This judgment was handed down electronically by circulation to the parties' legal representatives by e-mail. The date and time for hand down of the judgment is deemed to be 30 March 2026 at 10:00 AM.
19th to 21 st and 30th of January 2026
Chidi AJ
JUDGMENT - ABSOLUTION FROM THE INSTANCE
Chidi AJ
INTRODUCTION :
[1] The plaintiff, a macadamia grower and producer, instituted action proceedings against the
defendant claiming two contractual heads of damages amounting to R 5 485 472,20. The
cause of action is pleaded as breach of two sets of agreements. The alleged damages
arise from loss of time in and delayed production of macadamia nuts. The defendant is a
nursery, grower, grafter and dealer in Macadamia trees. Both parties are registered as
companies according to the law of the Republic of South Africa.
[2] Trial commenced. After the plaintiff's case was closed, the defendant applied for absolutio n
from the instance 1 against the plaintiff's two claims, which application the plaintiff opposes .
Following written and oral submissions , I reserved judgment.
[3] In addition to the parties, there is another enterprise , which is a partnership, namely
Citimba Estates. The partnership is relevant only to claim 1. For the moment, it suffices to
state that the plaintiff's main witness, Mr Bruce Milton (Mr Milton), was or is one of the
partners in the partnership and is also the plaintiff's director. Further, Mr Milton is a
liquidating partner, appointed to liquidate what remains of the partnership . More about the
partnership and the liquidating partner, and how the two interfaced or interface with the
parties or one of them below. At this stage, it suffices to state that the partners , in their
capacities as individuals, are part of the plaintiff. Ordinarily , I would have turned to the
evidence immediately below. However, I start with issues for determination .
ISSUES FOR DETERMINATION
[4] Issues for determination are
Claim 1
4.1. in respect of claim 1-
a. whether the plaintiff or the liquidating partner of the partnership was the one with
the title to litigate;
b. if title vests in the liquidating partner, whether the plaintiff had ceded to it the right
to litigate, and
4.2. further, whether the defendant was required to specifically plead the plaintiff's standing
to litigate as a defence;
Claim 2
4.3. whether the plaintiff should prove that the trees delivered to it by the defendant were
too small;
Both claims
4.4. whether the filed expert's document was a summary or report and whether , regardless
4.4. whether the filed expert's document was a summary or report and whether , regardless
of what it is, whether it contained factual foundation and whether such absence , if any,
may render the plaintiff's claims speculative and incapable of sustaining a judgment ,
and
4.5. whether , absent expert evidence, the Court may assess damages.
1 In terms R39 /6) of the Uniform Court Rules.
3
THE PLEADINGS
Pleadings, claim 1
[5] The parties' common cause version in respect of claim 1 is as follows:
5.1. a sale agreement was concluded during the year 2016, in terms of which Citimba
Estates, a partnership (herein after called the partnership) purchased 2000
macadamia trees called 814 (814 trees)2 from the defendant ;
5.2. the partnership paid the defendant the purchase amount (R79 000.00);
5.3. the trees were delivered by the defendant to the plaintiff on the 06th of October 2017,
and
5.4. the partnership, and subsequently the plaintiff, relied on the defendant skills, attributes
and expertise in the macadamia ecosystem in transacting with the defendant.
[6] The plaintiff's material allegations , which are neither denied nor admitted, but for which the
defendant puts the plaintiff to the proof thereof are:
6.1. that on the 31 st of August 2018, the partners of Citimba Estates resolved to sell the assets,
liabilities, creditors, movable assets and claims of the partnership to the Plaintiff with effect
from 1 September 2018;
6.2. as a result, the partnership was dissolved on 31 August 2018, and
6.3. from 1 September 2018, the plaintiff became the successor in title of the partnership as a result
of the said sale agreement and continued with the farming enterprise previously conducted by
the partnership.
[7] In her plea, the defendant pleads that the dissolution of the partnership and the subseque nt
sale of assets to the plaintiff is outside of the defendant's knowledge and the plaintiff is
placed to proof thereof. That creditors cannot be sold is obvious. Nothing turns on this.
Pleadings, claim 2
[8] As for the 2nd claim, a summary of the plaintiff's undisputed pleaded case is that-
8.1. on the 19th of October 2018, the plaintiff ordered inter alia 1000 x 814 trees from the
defendant;
8.2. on the 18th of January 2019, the defendant delivered the 1000 x 814 trees to the
plaintiff, and
plaintiff, and
8.3. at all relevant times, the plaintiff relied on the skills, attributes and expertise of the
defendant.
[9] The essence of the pleading is that the cause of action arose when the plaintiff realized
that the delivered trees were, as it pleaded, too small, which would result in loss of income.
The loss would arise from, if established , the loss of time in production betwee n the time
2 This is a tvoe of relevant onlv to auantification.
4
the small plants were supposed to have been planted and the time they were planted after
collection from and return to the plaintiff by the defendant, which has an impact on
harvesting, or alternatively, that such damages claimed flow naturally from the alleged
breach. This, the defendant denies.
[10] The loss of income suffered by the plaintiff is computed as follows and/or quantifiable from,
which is denied by the defendant-
10.1. the plaintiffs accurate and meticulous keeping of records of the planting , progress, production and harvesting of its 814 trees planted on the farm Teaklands in Block 13
(the neighbouring farm);
10.2. the neighbouring farm and the farm Matanda (Matanda farm) being in the same
geographical area and having the same soil type;
10.3. the plaintiff's application of the same management practices to the trees planted in January 2019 as those applied to the trees planted in the neighbouring farm, and
10.4. the plaintiff's planting of the same trees relevant to claim 2 on the neighbouring farm
from the year 2002 to 2004.
[11] The Matanda farm is where the trees were planted. As further pleaded , a table reflected
the plaintiffs alleged total loss of income of R 1 879 882.15 in respect of claim 2. The first
part of this reflected a summary of production of the 814 trees on the neighbouring farm.
The other part, distilled from the first part, reflects the alleged loss of income in respect of
the 400 x 814 trees that were too small to plant. The defendant denied the allegations
regarding the table.
THE LAW
[12] Under this rubric, I do only set out some aspects of law I deem appropriate. Under each
claim, I specify the applicable law and proceed to apply it. I start with expert evidence.
Courts rely on expert evidence regularly. How an expert opinion is arrived at is important.
A summary of R.M3 is apposite. It is that-
A summary of R.M3 is apposite. It is that-
12.1. an expert's work starts with the facts or data, which may either be common cause, or established by his/her own evidence or that of some other competent witness.
Second , it is the process of reasoning, which is premised on and proceeds from facts or data. Third, the reasoning should lead to the conclusion , which should be in the form of an opinion. An opinion, therefore , represents the expert 's reasoned
conclusion ;
12.2. the above is so in that the cogency of an expert opinion depends on its consistency
with proven facts and on the reasoning by which the conclusion is reached. The facts
and reasoning assist the Court in the sense of being the source for the evaluation of
3R.M v Road Accident Fund (11868/17) [2024] ZAGPPHC 137 (22 February 2024 ), paras 43 to 45. See also Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft fiir Schiidlingsbekiimpfung mbH 1976 (3) SA 352 (A) at 371, from paragraph F to bottom of the oaae.
5
expert evidence. For cogency and reliability of such evidence , an expert's report
should be reasoned, which reasons should be the basis upon which the opinion rests.
The reasoning must have a logical basis when measured against the established
facts , and
12.3. in essence, the expert's process of reasoning is affected by the facts on which it is
premised, and
[13] This Division has added its voice. R.M was quoted with approval by P.M.M4, in which the
Court, per the Honourable Marais AJ, held that expert witnesses are called upon to provide
opinions on the facts pertaining to their expertise,5 that an expert witness should state the
facts or assumptions on which his opinion is based,6 and that a factually unsupported
opinion holds no merit for the Court.7
Pleading defence
[14] A party in litigation should plead a defence it seeks to rely on8 because the purpose of the
pleadings is to define the issues9 in order to enable each side to come to trial prepared to
meet the case of the other and not be taken by surprise. Consistent with this, pleadings
must therefore be lucid and logical and in an intelligible form; and the cause of action or
defence must appear clearly from the factual allegations made. One of the considerat ions
for this position is that a party cannot be allowed to direct the attention of the other party to
one issue and then, at the trial, attempt to canvass another point.10 When this is considered ,
and in the circumstances of this case, the following are relevant-
14.1. Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC),
para 33 (Giant Concerts), where the Constitutional Court held that the interests that
confer standing to bring the challenge, and the impact the decision or law has on
them, must be demonstrated. In para 34, the Constitutional Court held that, in line
with the position of the Supreme Court of Appeal (SCA), standing determines solely
whether this particular litigant is entitled to mount the challenge . The Court went on
whether this particular litigant is entitled to mount the challenge . The Court went on
and dealt with impugned public decisions, a point not relevant in this matter ;
14.2. relying on the above judgment , the SCA's judgment in Kangra Coa/11 should be
understood to mean that issues must be pleaded expressly for the other party to
respond properly and not be ambushed , and
4 P.M.M v Road Accident Fund (873/2019) [2024) ZALMPPHC 152 (24 October 2024).
5 Para 49.
6 Para 53
7 Para 54. See also para 60. "The opinions of expert witnesses involve the drawing of inferences from facts. The inferences
must be reasonably capable of being drawn from those facts. If they are tenuous, or far-fetched, they cannot form the
foundation for the court to make any finding of fact."
8 Rule 18 (4).
9 Robinson v Randfontein Estates Gold Mines Co Ltd (1925 (AD) 173 at 198.
10 Nyandeni v Natal Motor Industries Ltd 1974 (2) SA 274 (D), p279 (B-C).
11
Kangra Coal (Pty) Ltd v The Trustees of the Time Being of the Corneels Greyling Trust and Others ( 1052/2023) [2025)
ZASCA 9 /6 Februarv 2025\. oara 22.
6
14.3. if a point not pleaded was fully canvassed in evidence by both sides in the sense that
the Court was expected to pronounce upon it, then and in that case, the Court should
make a pronouncement. See South British Insurance Co. Limited v Unicorn
Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A) at 714 F-G.
Test for absolution
[15] Turning to the test for absolution from the instance, what is required is whether there is
evidence which , considered by this Court, could or might find for the plaintiff. 12 The test is
'not should nor ought to' find for the plaintiff.13 If the test for absolution is met, then
absolution ought to be granted for the Court would have been satisfied that the interests of
justice would not be served by having the defendant to answer the plaintiffs inadequate
case. To establish whether the test is met, an evaluation of the plaintiff's evidence is
required, to which, and of course, the analysis, I turn.
EVIDENCE AND ANALYSIS
Claim 1
[16] The plaintiff's evidence, in essence, is in accordance with its pleaded case . Further, it is
common cause between the parties that during the year 2016, the agreement central to
claim 1 was reached by two entities, namely, the partnership and the defendant. Related
thereto is the plaintiffs version, which is that it is a successor in title to the partnership , and
this included the taking over of (a) the business of the partnership and (b) the right to sue
arising from the running of such business. The defendant pleaded that the plaintiff must
prove this, as set out above.
[17] The plaintiff objected to the defendant's defence on the ground that it is not pleaded. At the
trial and in its absolution application, the defendant based and still bases its defence on a
cession, namely that the right to litigate vests in Mr Milton and that the said right ought to
have been ceded to the plaintiff for the latter to have the title to litigate. It is trite law that a
defence must be pleaded. Indeed, there was no special plea of lack of locus standi raised
in this matter. The defendant's pleaded version is that for alleging that it has the right to
institute proceedings, the plaintiff must prove such.
[18] The defendant, with no knowledge of why the plaintiff alleged that it was entitled to institute
proceedings , as appears in the plea, neither denies nor admits the plaintiffs allegation and
invited the plaintiff to prove its title in litigation. It did this through non-admission , as
Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd and Others 1985 (3) SA 41 0
12 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409H , Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 26, and I.C. T.M v T.P.M (Appeal) (HCA15/2024) [2025] ZALMPPH C 169, para 21. 13 Ibid.
7
(C), page 417 authorises a defendant to plead in the manner it did. This should be read
together with Rule 22 (2) of the Uniform Court Rules, which permits a defendant to plead
'not admitted' and state the material facts relied on for the plea. In this matter, lack of
knowledge is what the defendant pleaded. Following the pleadings, the trial commenced ,
and the plaintiffs case was closed after it led evidence. Based on the defendant's non
admission, the evidence before me, and what the Court held in Giant Concerts, the
plaintiff's interest in litigation and the impact of the impugned decision on it should be
demonstrated. The view I take is that the word 'decision' should be read to mean 'conduct'
in the context of this matter.
[19) As will appear below, only after the leading of evidence was it possible to establish whether
the plaintiff was indeed entitled to institute proceedings or not. Following the plaintiff's
alleged authority to litigate, in its plea, the defer:idant invited the plaintiff to prove such
authority. This, to me, is not an ambush. See Kangra Coal, above. It does not lie in the
plaintiffs mouth that it is surprised. When Mr Milton was re-examined , the plaintiff assisted
the defendant by further canvassing the issue in that Mr Milton testified that the plaintiff
acquired 100% interests from the partnership. This was an attempt to prove title to litigate.
Although the defendant did not lead evidence, when the plaintiff's case was closed, title
was an issue before me. The plaintiff had to prove its title, although it did not plead (the
exception to paragraph 16 above, about its pleaded case) that it purchased 100% interest
from the partnership, a point never canvassed by both parties. This, to me, is sufficient for
an enquiry to be held regarding the title to institute proceedings. That then takes me to the
title enquiry.
[20) The plaintiff called two witnesses. The first was Mr Milton, who testified in support of both
claims. He is the only witness who testified about the title to litigate. His evidence was that
together with his mother and father, the Miltons ran Macadamia business under a
partnership. Under the partnership, they bought macadamia trees from the defendant
under the 2016 agreement. Claim 1 rests on this agreement.
[21] Mr Milton, the plaintiffs director, testified that on the 31 51 of August 2018, the partners
resolved to dissolve the partnership. On the written resolution (resolution ), there appear to
be four partners . Nothing, however, turns on the number of partners. The resolution is at
the centre of the applicant's application concerning claim 1. Based on the evidence before
the Court, the essential terms of the resolution for the purpose of this judgment are that-
the liquidating partner (Mr Milton) shall have authority to:
21 .1. sell and transfer partnership assets ;
21.2. record a statement of dissolution of the partnership ;
8
21 .3. distribute the partnership assets to the respective partners;
21.4. to pursue any legal action if needed;
21.5. complete liquidation of the partnership by 28 February 2019, and
the purchasing partner:
21 .6. is recorded as having 'received all assets, orchards , stock, trade receivable'. (For
completeness purposes, the purchasing partner is stated in the resolution as the
plaintiff).
[22] Mr Milton further testified that the plaintiff took the position of the partnership. From the 1 st
of September 2018, the plaintiff ran the business of the partnership , since the latter was
dissolved as a result of the resolution. In support of this, the document relied upon to
establish the pleaded transfer of business from the partnership to the plaintiff was the
resolution.
[23] The defendant denied the above under cross-examination. Both under cross-examination
and in the application for absolution from the instance, the defendant's version was, and it
was argued, respectively, that there had to have been a cession for the plaintiff to have
title to institute proceedings.
[24] On the other hand, Ms Green, for the plaintiff, submitted, in answer to the application , that
the right to sue was based on the sale of the partnership assets , including the orchards on
Matanda farm on which the trees were planted. Under re-examination, Mr Milton testified
that the plaintiff had purchased 100% of the interests in the partnership. Part of the
orchards were the trees herein concerned.
[25] During cross-examination , the defendant's version , in different forms, was put to Mr Milton.
It was that the dissolution is denied and that, for the plaintiff to institute proceedings in
respect of claim 1, there had to have been a cession of rights to litigate from the liquidating
partner to the plaintiff, and none existed. Further, considering that there was no such
cession and since there was no evidence of the dissolution of the partnership , the plaintiff
cession and since there was no evidence of the dissolution of the partnership , the plaintiff
was not entitled to litigate, a version put to Mr Milton.
[26] While Mr Milton conceded during cross-examination that the only document relied upon to
establish the transfer of the right to litigate under claim 1 was the resolution , his view was
that the partnership was dissolved. His evidence is that on the dissolution of the
partnership, he relied on the resolution to hold that the plaintiff was entitled to institute legal
proceedings. Sufficient time was spent on the resolution. Regarding same, during cross
examination , the defendant's Counsel put a version to Mr Milton, to wit- that the right to
pursue legal action vested in Mr Milton, not the plaintiff. Mr Milton so agreed. Beyond the
answer, more should be considered .
9
[27] When he conceded, Mr Milton was referred to a part of clause 4 of the resolution. The said
clause is summarized in paragraphs 21.1. to 21.4, above. It bears repeating that Mr Milton
has the authority to (a) sell and transfer partnership assets (b) record a statement of
dissolution of the partnership, and (c) distribute partnership assets to the respective
partners. Above all, Mr Milton has the authority to "pursue any legal action". The right to
litigate was regulated by the partners to pass from the partners to Mr Milton.
[28] Mr Milton had until the 2ath of February 2019 to complete the liquidation/ winding up of the
partnership. No evidence was led on winding up. The summons was issued on the 05th of
October 2021. The defendant's argument is that, as on the date of the initiation of these
proceedings , it was not the plaintiff who should have instituted claim 1.
[29] Mr Milton was to execute and record a statement of the dissolution of the partnership. In
my view, this, after all, is the last stage of winding-up of a partnership , scheduled on or
before the 281h of February 2019, possibly subject to approval by all the partners. I n
paragraph 22 of its heads of argument, the defendant comes close to this point, without
arriving at it. Mr Milton conceded that the only document relied upon to establish transfer
was the resolution . Reliance, in my view, should also have been based on a statement of
dissolution because only on dissolution could, if all the liquidating partner's work was
completed , the liquidating partner's mandate possibly end.
[30] From the evidence , it is the liquidating partner who may have suffered damages , if any
damages at all. The damage regarding the trees was noticed in January/February 2019.
At that stage, Mr Milton, a liquidating partner, stood in the position of the partnership. He
was to, not later than the 2ath of February 2019 , produce a statement of dissolution.
was to, not later than the 2ath of February 2019 , produce a statement of dissolution.
[31] At no stage was evidence led to show at what stage, if any, was Mr Milton, in his capacity
as a liquidating partner, divested of the right to pursue legal proceedings . As pointed out
above, the purchasing partner is recorded as having 'received all assets, orchards, stock,
trade receivable '. At the risk of repetition, the plaintiff is recorded in the resolution as such
a purchasing partner. However, nowhere does the plaintiff acknowledge receipt of all
assets, orchards, stock, trade receivable and did not-
31.1. plead that following the resolution, it proceeded to agree to what was to the partners
a resolution , but to it a potential intended sale;
31.2. lead evidence on whether the liquidating partner did express its intention to sell to it
and whether it purchased the relevant subject-matter of sale, and
when a reading of Giant Concerts and Kangra Coal should be understood to require the
plaintiff, in the circumstances of this case, to expressly plead and demonstrate that, in the
-1-
10
end, the partnership's sale and its purchase by the plaintiff were the basis of and for title to
litigate.
[32] The defendant , in its plea, notified the plaintiff to prove the transfer of the right to litigate.
Mr Milton remains, on the evidence before me, the person with the title to litigate in respect
of claim 1.
[33] Mr Milton's concession that the right to litigate vests with him, the lack of proof of dissolution
of the partnership and the lack of evidence of the transfer of the right mean that the rights
vesting in Mr Milton were, on the evidence before the court, never transferred to the plaintiff.
[34] The form of transfer of the right to litigate should only come as a cession , the defendant
argued. In my view, cession is not the only basis for acting for and on behalf of someone
else. It is just one of the grounds. Section 38 of the Constitution of the Republic of South
Africa records the basis upon which one person may act on behalf of another. Those
grounds are codification of the common law. I, therefore, do not have to address myself to
the defendant in its "cession" version in its absolution application .
[35] Above all, the resolution records the partners' decision. It is the partnership 's resolution ,
not binding on anyone save the partners. In addition to the lack of evidence , it does not
appear, understandably , from the resolution, that the plaintiff agreed to buy the business
of the partnership, including the orchards. Although the resolution records that the
dissolution agreement is between the partnership and the plaintiff, and lists the plaintiff as
a purchasing partner, it is a partnership agreement , entered into by and between Mr Milton
and the other partners. It is not between the partnership and the plaintiff. It does not appear
from the resolution that the plaintiff knew about the agreement. An agreement concluded
by the Miltons under the partnership is not an agreement reached by the same people
by the Miltons under the partnership is not an agreement reached by the same people
under the plaintiff. I need to mention that the partners were also part of the plaintiff, the
share model of which is not relevant for the defendant's application .
[36) That, therefore, the plaintiff purchased 100% of the interests in the partnersh ip could not
be and is not supported by the resolution. The plaintiff's version that it is the successor in
title to the partnership falls to be rejected. Further, there is no evidence of Mr Milton, as a
liquidating partner, having transferred the partnership rights to the plaintiff. Interest in
litigation not demonstrated , I do not have to conduct the second leg of the inquiry, which is
one into the 'impact of the impugned' conduct on the plaintiff, as was held in Giant
Concerts.
[37) Resultantly , the defendant succeeds in respect of claim 1 in its absolution from the
instance. I turn to the application for absolution under claim 2.
11
CLAIM 2
[38] Unlike claim 1, under claim 2 there is no dispute regarding whether the plaintiff is properly
before the Court. Having agreed with the partnership in 2016, the defendant does not
dispute that it agreed with the plaintiff in 2018 in respect of claim 2. That said, two sets of
agreements were operative simultaneously , under which the defendant supplied the trees
to the partnership and the plaintiff, respectively. Indeed, nothing stopped the defendant
from agreeing with two different entities, respectively , for the similar supply of trees.
[39] I need to pause to indicate that the plaintiffs evidence under this claim was as it pleaded.
Further, that evidence similar to the one on the table in paragraph 11 above and more
tables in support of loss of income was led, a point to which I revert, below.
[40] The main issue under claim 2 in the defendant's absolution application is the plaintiff's
version. It cruxes on the phrase "too small", referring to the delivered trees. The defendant
raised objections respecting this issue, and I reserved a ruling on it. The objective size was
not pleaded, the defendant submitted. It further submitted that the nursery grade,
measurement threshold or agreed contractual standard against which "too small" can be
assessed was not pleaded. Indeed, 'too small' is a relative phrase. It must be measured
against some yardstick. This, however, is not the end.
[41] The fact is that the defendant admitted that the "1 +-400" trees were small and needed to
be brought back to it. This was in an email dated the 14th of March 2019, from the defendant
to the plaintiff. That the trees were small was admitted by the defendant before litigation
commenced. This was after delivering the said trees. The 400 trees were indeed collected
by the defendant. Later, they were redelivered to the plaintiff.
[42] I did rule during the trial that no evidence could be led on the standard size of the trees in
that same was not pleaded. The standard size of a Macadamia tree is, therefore, not an
issue before the Court. That said, that the parties, who are in the Macadamia business
agreed that the trees were small should be and was enough for the plaintiff to be said to
have established his case on the small tree aspect.
[43] The word "too" is immaterial. The trees were small. The degree to which they were small
is insignificant. A turn to the dictionary meaning of the word 'small' may be of help. It means
a size that is less than normal or usual.14 The parties in this matter are on the same page,
and this manifests in the parties regulating the small trees being returned to the defendant.
14 Online dictionary: Of a size that is less than normal or usual. See link
https://www.binq.com/search?g:;::dictionary%2C+oxford%2C+meaning+of+small&form-ANNHO 1 &refig-69b91 ef3405f4 113a6 4aba3872a435d2&oc:;::HCTS
The latter was to and delivered the trees back to the plaintiff when they had reached the
acceptable level of growth. The standard size the parties know would have informed a
conclusion that the normal size standard was not met. The trees were below par, hence
the defendant had to collect the '400' trees from the plaintiff and return them later.
Consequently, the defendant's ground for the application regarding small trees falls to be
rejected.
Evidence on both claims-quantification
[44] Already, the defendant has succeeded in respect of claim 1. Only claim 2 remains.
[45] The defendant mainly grounded his application on the 'too small tree'. The other and last
issue under claim 2 that falls to be decided is whether the plaintiff may be able to prove
that it suffered future loss of harvest, and consequently, loss of future income. Or, at best,
whether the Court may, considering the plaintiff's evidence, be able to assess loss of
income, if any. I have had to address myself, at length, to this issue, which, on the
defendant's application, is a secondary ground of the application.
[46] The question is whether the evidence before me provides the basis for the assessment of
damages. I proceed to that enquiry. In doing so, I start with the factual foundation and
proceed on the assumption , without conclusion , that future loss of harvest is established.
[47] The plaintiff's claim is based on an allegation that it would have made the same income as
on the neighbouring farm over the lost one-year period of non-production . Evidence to that
effect was led; the status and possibly the weight of which I still have to determine. Also,
evidence on what appears to have been intended to prove overheads for the running of
the plaintiff's business was led.
Mr Milton
[48] Mr Milton testified that Dr Joubert collected data from an entity called Royal Macadamia ,
which receives Macadamia nuts from growers of the nuts, processes and sells some of the
which receives Macadamia nuts from growers of the nuts, processes and sells some of the
nuts to the market. Royal Macadamia is, therefore, a trading entity through which the
plaintiff's and other growers' Macadamia nuts find their way into the market. For this, Mr
Milton relied on Dr Joubert's version. His testimony that Dr Joubert's collection of data
being hearsay evidence, such evidence was admitted provisionally, subject to the latter's
corroboration. The information from Royal Macadamia involved (a) the costs of processing
the nuts and (b) the value of the trees and nuts.
[49] A second source of foundational material was Mr Milton. This was two-fold . The summary
of Mr Milton's evidence is that there was consultation between Dr Joubert and him when
13
Dr Joubert visited Mr Milton at Matanda farm. He further testified that Dr Joubert obtained
the records and data physically from him.
[50] Further evidence from Mr Milton was that the landscape on the neighbouring and
Matanda farms is the same, leading to the same yields. Under cross-examination , he
stated that there were no photos, when pressed about this, to demonstrate the similarities
between the two farms. The established evidence is that the two farms are about 100
metres apart. The version put to Mr Milton was that there was nothing before the Court to
demonstrate that the landscape on the two farms is the same. The defendant denied that
the landscape on the two farms was the same.
[51] Mr Milton testified that the results of harvesting on the neighbouring farm show what the
yield on Matanda farm would have been. The soil type on the two farms is the same, he
testified. The defendant denied that the soil type is the same. Under cross-examination, Mr
Basson, Counsel for the defendant, put a version to Mr Milton, specifically that there was
no expert report filed to that effect. In answer, the latter agreed.
[52] Thirdly, the other form of information was computer data. Whilst some records and data
were collected physically, the computer data was transmitted by Mr Milton to Dr Joubert
through electronic mail (email), he testified.
[53] He further testified that-
53.1. the computer contained more data than the book he used for record-keeping. This
computer data was posted from the book. In addition to posting, it was processed
material and contained more than what was in the book. It was an improved version
of the entries in the book;
53.2. as for irrigation records, they were not on the computer. No record exists of
irrigation. Usually, there are six months of rain in a year. The region is very rainy.
Therefore , there are no irrigation activities;
53.3. he is the one who did handwritten entries in the book;
53.3. he is the one who did handwritten entries in the book;
53.4. regarding harvesting, Mr Milton collected information from each person who
harvested as and when they harvested. Harvesting was done by several people. He
would then post such information on the computer, and
53.5. although he referred to the table in paragraph 11, above, he indicated that Dr
Joubert will testify on calculations.
[54] Mr Milton further testified that the transmitted data to Dr Joubert was material generated
from the Matanda farm. His further evidence is that the computer to which data was
14
transmitted from Matanda Farm's records, from which it was uploaded to the email facility
before it was transmitted to Dr Joubert and following transmission, was stolen during the
year 2024. A Police cas number was issued after the incident was reported to the Police.
[55] Since the data was transmitted through email, I inquired from Mr Milton what happened to
the data on the sent item in the email facility. Mr Milton simply indicated that what he did
was to send the data to Dr Joubert . He further testified that some of the data was sent back
to him by Dr Joubert. Not all of it was sent back, though, he testified.
[56] The book from which the data on the computer was posted and processed still existed as
on the date of trial, Mr Milton testified.
[57] The fourth form of foundational material is information from the neighbouring farm. The
plaintiffs approach is that the yields on the two farms would have been the same. He
testified that a table reflecting figures of production and income concerning the
neighbouring farm demonstrates loss of income under claim 2, and deferred calculations
to Dr Joubert.
[58] Mr Milton further testified that he provided Dr Joubert with information concerning planting,
planting dates, variety of trees, number of trees and when harvesting commenced. This
information was intended, by Mr Milton, to be used for quantification purposes and was
sourced from his book. It is the information pleaded by the plaintiff to have been kept
accurately and meticulously , and a record of the neighbouring farm.15 It was processed
and summarized as data in a tabulated form, which table was attached to the particulars
of claim and Dr Joubert's report. Evidence was led based on it.
[59] The plantation on the above farm commenced during the year 2002 and ended in 2004,
he testified.
[60] A Macadamia nuts dispute, involving evidence on, which was led, the types of trees,
different stages of grafting, re-grafting plantation, nurturing, growth, detection of the type
different stages of grafting, re-grafting plantation, nurturing, growth, detection of the type
of the trees, maturity of those trees, harvesting and breakeven , is a scientific matter, within
the realm of agriculture. Although the evidence set out in this judgment is focused on
aspects relevant to the defendant's absolution application , more detailed evidence was led
during the trial concerning aspects not relevant to the defendant's absolution application.
The plaintiff led expert evidence.
Dr Joubert
15 Paraaraoh 10.1. above.
15
[61] The plaintiff's second witness was Dr Joubert, who testified as an independent expert, in
her capacity as an Agricultural Research and Ecological Scientist. She studied towards
and obtained Bachelor of Science degree and PhD in Environmenta l and Physiology ,
amongst others. She is highly qualified and experienced in the Macadamia ecosystem
(Macadamia expert). She contributes to publications and public speaking in the Republic
of South Africa and elsewhere. She laid out her academic and professional basis for her
expertise , and I proceeded on the basis that it is sufficient. From time to time during her
testimony, Dr Joubert had to and explained some aspects of her evidence , to which I
express gratitude. This assisted me, for the purpose of this matter, to understand the
scientific aspects of the trees and processes leading up to the nuts stage.
[62] As per her testimony, she relied on, as and for facts, the plaintiff, Royal Macadamia.
feasibility study, the particulars of claim and pleadings (pleadings) and plaintiffs attorneys.
As for the last two, she did not specify how they were relevant for quantification.
[63] When she attempted to testify on certain aspects, the defendant objected on a number of
grounds. The underlying factors for the objections were that the factual foundation was not
laid out in the report, and some of the aspects of her testimony were not based on the
report. Regarding the reports, there were two of those filed. The expert proceeded on the
basis of one filed on the 1st of December 2025.
[64] To the objections , I ruled, enjoined by settled law, that Dr Joubert could testify on any
aspect which required foundation to have been laid out in her opinion expressed in her
report, for as long as such testimony was based on the report. For lack of foundational
basis in the expert's report, I disallowed any such evidence from Dr Joubert on quantum
for as long as it was not based on foundational grounds. Due to the ruling, Dr Joubert did
for as long as it was not based on foundational grounds. Due to the ruling, Dr Joubert did
not testify on the loss of income, save in respect of the table in paragraph 58, above, other
tables attached to her report and some aspects which I specify below. She testified that
the tables were prepared based on data from the neighbouring farm. She is the one who
prepared them.
[65] The witness testified on some aspects which were grounded in the report, as in the case
of the tables, and at some points deviated, which led to a number of objections. Counsel
for the defendant expressed his reluctance to object from time to time as though he were
obstructive. The approach he ended up adopting was that he would deal with what he
would have objected to under cross-examination. In addition to that approach , I ruled that
I would deal with Dr Joubert's testimony in the judgment that may result from the
proceedings.
10
[66] Dr Joubert's evidence was that the weather conditions on the two farms were the same.
The farms were nearer to each other. The weather may have been the same, considering
that the farms were separated by 100 m distance . Weather has, as Dr Joubert testified, an
effect on the life of trees, and I do not see how such should be disagreeable.
[67] As for the email data, Dr Joubert confirmed receipt of same. Her evidence was that she
could not use the data for the calculation of the loss of income. She did not disclose why
that was so. Dr Joubert further corroborated Mr Milton's testimony regarding her collection
of data from the Royal Macadamia.
[68] Dr Joubert's evidence regarding Royal Macadamia, Mr Milton's neighbouring farm record,
the close proximity of the two farms, weather on the two farms and how the latter should
be relied on for computation of claim 2 mirrors that of Mr Milton. When Dr Joubert was
pressed about not disclosing her consultation with Mr Milton in her report, she answered
that Mr Basson did not know the extent of her research.
[69] As for the feasibility study, it is information from SAMAC, an association of Macadamia in
South Africa. The study consists of the costs of maintenance per tree, labour and electricity,
as she testified. It also contains what goes on, on a farm where the trees are planted,
issues such as trees' spacing, understanding a hectare on which trees are planted and
costs per tree.
[70] In addition to the above, Dr Joubert's evidence on the nature of the information is the
same as the evidence of Mr. Milton, to wit the costs of processing the nuts and the value
of the trees and nuts.16 Dr Joubert further testified that the costs of maintenance of the
trees were sourced by her from SAMAC. Further, she testified that the information relevant
herein is downloadable from SAMAC website.
[71] Dr Joubert testified that Banks .and insurance companies rely on the study. It is used for
planning in the Macadamia industry.
planning in the Macadamia industry.
[72] Dr Joubert testified that no research was conducted in the Levubu region (the region
where the trees were planted), let alone on Matanda farm. The study was conducted in
other regions. She further testified that the regions in Limpopo are not the same.
[73] On the costs of electricity, Dr Joubert testified about how water is used, affecting
electricity usage. Asked under cross-examination whether she dealt with the aspect in her
report, she answered that she did not. She further indicated that she used industry figures
from SAMAC. On the costs of labour, she testified that it was difficult to determine same
16 Paraaraoh 48. above.
1 /
and that she could not have and did not utilize the feasibility study. I turn to the analysis. In
doing so, some aspects of evidence not set out above are contextually dealt with under the
analysis.
Analysis- claim 2
[74] Save the tabulated material and some aspects I specify below, Dr Joubert's main evidence
set out above does not rest on her report. Counsel for the defendant raised objections
reluctantly, for he indicated that he did not want to be obstructive. Neither the objections
were, nor Counsel obstructive. As a factual foundation , Dr Joubert did not state in her report
that she visited Matanda farm, interacted with Mr Milton, relied on the plaintiff's attorneys
and collected data from Royal Macadamia. She did not state in her report that she relied
on SAMAC feasibility study.
[75] When asked why Dr Joubert did not state in her report that she visited Mr Milton, Dr
Joubert said that Mr Sasson did not know the research she conducted. Although she
commented , Dr Joubert did not answer the question put to her.
[76] Having testified that she relied on pleadings, those cannot be factual material. The
pleadings may play a role in helping a reader to understand the dispute between the
parties. That would be all. As for the plaintiff's attorneys , I do not see how the attorneys
may be a source of facts or data. They act for the plaintiff. Their role, if any, would be in
their capacity as the representatives of the plaintiff. If, therefore , the attorneys may have
played a role, that role would have been the plaintiff's role. Whatever the attorneys may
have played as a role, it is not specified in the report.
[77] In addition to not specifying reliance on the feasibility study, reliance on it was misplaced.
No research was conducted on Matanda nor the Levubu region, when the regions in
Limpopo are different. There is no evidence before me whether the region or regions where
research was conducted is/are the same as Levubu. Dr Joubert , having indicated that the
research was conducted is/are the same as Levubu. Dr Joubert , having indicated that the
feasibility study is on the SAMAC website, it is not clear whether the Court was expected
to look away from its file, download and print the material and admit it into evidence after
the trial. Whatever may have been the intention, in the end, the Court does not have the
said study. Nothing from the study serves as evidence before me.
[78] The information from Matanda farm was ignored. This was primary information. The data
in the computer processed from the primary information was, too, ignored , even though it
was said to be an improved version of the primary information . No reason was provided by
Dr Joubert why this was the case. Instead, she relied on material not from Matanda farm.
18
[79] Having set out the law, in paragraphs 12 and 13 above, upon which I made the ruling
regarding evidence on the loss of income and considering that the expert's report relating
to quantum is objected to by the defendant , I need to state that the facts and/or data should
always be the first to be obtained by an expert. They constitute the foundation. The
reasoning, which is a process which flows from the facts, connects the foundation and the
opinion. Without reasoning, the factual and/or data foundation, if established , serves no
purpose. Absent the facts and/or data, there cannot be proper and sound reasoning, for
they will be without a base, a wall or house without foundation type of a situation. Absent
logical reasoning, an opinion can never be sound.17
[80] As appears from the preceding paragraph, I had already ruled as summarized. Further, I
made a ruling that I would consider Dr Joubert's entire evidence in the judgment that would
follow. In this judgment, I must do so, relating to some of the evidence set out in paragraphs
66-73, above. This is more relevant considering that the plaintiff seeks to make a case in
argument to the effect that the expert's filed document on the loss of income is a summary
in accordance with Rule 36 (9) (b).To avoid confusion, I must state that during the trial, this
expert's document was referred to as a report. See paragraphs 63-73, above.
[81] The plaintiff submitted that the manner in which the evidence was tendered by Dr Joubert
was the best possible one. This begs the question whether what served before me was a
summary or report. The plaintiff relied on Cooper SA, 18 a judgment that is seminal on the
Rule 36(9)(b) summaries, distinguished from an opinion. An understanding of the said Rule
requires consideration of Rule 36 (8) (b). Before proceeding any further, the two Rules
provide, respectively:
81.1. Rule 36(8)(b) - a party who obtains an expert report must, 'within five days after receipt of
such report, inform all other parties in writing of the existence of the report, and upon
request immediately furnish any other party with a complete copy thereof' , and
81 .2. Rule 36 (9) (b) - 'the summary of the expert's opinion and reasons ... shall be compiled by
the expert himself or herself.'
[82] In my view, and for practical purposes, a summary may not be filed without the report from
which it derives. The textual interpretation is that a report is served 19 or given to the other
party in terms of Rule 36(8) (b) after a request from the party notified by the one who
obtained the report. On the other hand, a summary is delivered in terms of Rule 36 (9) (b).
[83] Ms Green's submission is that Dr Joubert's document is a summary . The plaintiff's
submission from its heads of argument, quoted in the form it appears from the heads, is:
17 Paras 12-13, above.
18
Coopers (SA) (Pty) Ltd v Deutsche Gesel/schaft fiir Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at 371. 19 Thouah the word used is 'furnish'.
19
' ... the testimony that the expert witness intends to give need not be fully set out in the summary .'
[84] Of course, there is a notice titled Rule 36(9) (b) filed by the plaintiff. However, attached to
the notice is a CV and a report. A reading of the attached documentation , other than the
CV, confirms that it is a report which served before me. In the document , Dr Joubert states
that 'I affirm that the contents of this report are based on' and then she states what she
says she relies on. When the defendant filed Rule 36 (9) (b) notice, it was aware that it was
filing a report, although the Rule is meant for filing a summary . Other than the plaintiff's
awareness that it was filing a report, Cooper SA assists in assessing whether Dr Joubert's
document is a summary or a report.
[85] The Court in Cooper SA20 dealt with the difference between an opinion and summary . It is
that:
85.1. 'summary' means a brief account, abridgement' and with no needless details. The evidence
the expert intends to give ought to be set out in the summary , although not fully. The facts
or data on which the expert premises his opinion must be included in the summary , and
85.2. 'opinion' means a judgment or belief based on grounds short of proof of a formal statement
by expert when consulted on what he holds to be the fact. It represents the expert's
reasoned conclusion based on certain facts or data.
(86] The judgment further discusses reasons for the opinion. The court held that reasons mean,
or at least include, the facts or data on which the opinion is based. They serve as the
justification for the opinion. As I have shown, reasoning flows from facts and/or data.
(87] From the above, the opinion expressed in the form of a report and summary are two
different documents. The two sub-rules are clear. Rule 36 (8) (b) regulates reports and
Rule 36 (9) (b) regulates summaries. That what served before me was a summary is not
Rule 36 (9) (b) regulates summaries. That what served before me was a summary is not
borne of the evidence. In addition to this, Dr Joubert testified, as I recorded above, that
there were two reports and proceeded on the basis of the December 2025 one. This is
the same document the plaintiff calls a summary under the absolution applicat ion.
(88] In my view, a summary would have been an abridgment of earlier and larger work. In
essence, a summary would have been a short version of a report, in the manner and form
set out in Cooper SA.
[89] In this matter, only a document that was titled a report and of December 2025 was filed
and relied on. Not any other document relating to expert evidence. If I were to accept that
Dr Joubert's document was a summary, I would have to state what the document was a
short version of, when it was not an abridgment of any other document. There was no other
document which the December 2025 document was a summary of. If it had been a
20 Pa 371.
summary, it would have been a summary of an existing report, let alone that a summary
should be a synopsis also of the reasons for an opinion.
[90] It goes without saying that there must be an opinion and its reasons before a summary of
the two. In this case, only a report was filed, and the matter proceeded on that basis.
[91] My view is that the said document was a report, not a summary. I am fortified in my view in
that both under evidence in chief and cross-examination, the plaintiff approached the
document as a report and expressly stated that it was a report. To an objection during the
trial, I made a ruling, accepting that the December 2025 document was a report. The ruling
I made was that any evidence not grounded in the said report is inadmissible. The plaintiff's
approach is- during evidence the document is a report and under an application, a
summary. I reject this.
[92] Even if I were to assume in favour of the plaintiff, for a moment, that the document was a
summary, it still would have lacked regarding the contents of a summary , as per Cooper ,
namely, the sum and substance of facts and data which led to the reasoned conclusion
(opinion). In short form, a summary, filed after an opinion, ought to contain foundationa l
material. Therefore, both the opinion and summary must set out foundational material. Dr
Joubert did not set out any facts in her report, save the tables and some aspects in
paragraph 94, below.
[93] Turning to the next alleged facts, the costs of maintenance, of electricity and of labour,
and industry figures from SAMAC are not set out in Dr Joubert's report as the material
relied upon or considered for the purposes of her report. The defendant learned for the first
time during the trial that such material was relied upon, a form and nature of surprise
discouraged by Cooper. The very Cooper judgment relied on by the plaintiff does not
assist its case since it requires foundational material to avoid surprise at trial.
assist its case since it requires foundational material to avoid surprise at trial.
[94] The ruling I made concerning the lack of foundational basis applies herein and need not
be repeated. Save the tables-evidence , the soil and weather conditions (which I shall still
decide on), Dr Joubert's evidence falls within the category of inadmissible evidence I ruled
on during the trial. I confirm its inadmissibility.
[95] On the defendant's approach and considering the above, this should be the end for the
Court may not be able to determine the value of the loss, if any. The basis for this is that
there is no expert evidence on the loss of income, whether from Dr Joubert, who is
Macadamia expert or actuarial calculations . I do not agree.
- -.---
[96] I am enjoined to state that it does not necessarily mean that, absent expert evidence, the
Court may not be able to assess damages (loss of income), a point I ruled on during the
trial when the defendant argued that since Dr Joubert could not testify on loss of income,
there was no need to proceed further with the trial. That notwithstanding , the nature of
science herein concerned required expert evidence. That said, there is still tables-evidence
from Dr Joubert . Mr Milton testified on one table, the soil and landscape. Of course, he
deferred calculations to Dr Joubert.
[97] There are, of course, instances when Courts may admit opinion evidence from a witness
who is not an expert. R v Vilbro21 is instructive in this regard. In the matter, a certain
Inspector had had reason to apply his mind to a specific issue than the Court. He was a
layperson on the issue. The Court ruled that the witness was in a better position than itself
to form an opinion, and the opinion was admitted into evidence based on its relevance.
Relevance, therefore, is central.22
[98] Depending on circumstances , an opinion from a litigant-witness may be admitted into
evidence. General rules, such as academic study of the subject and independence, must
remain in the case of qualified witnesses. As for laypersons , Vi/bro provides guidance .
Inherently, caution, in my view, should be exercised against such a litigant-witness. In the
circumstances of this matter, Mr Milton did testify about the table, but deferred calculation
for loss of income to Dr Joubert. His, therefore, is not a laypersons ' opinion evidence or
evidence I could base the ruling I shall make on.
[99] If, therefore, Mr Milton was the only person with the knowledge and experience herein
concerned, or had not deferred calculations to Dr Joubert after referring to the table in
paragraph 11 , above, his table evidence may have been admissible , subject to the caution
which must be exercised. He was not a person with sufficient knowledge on the subject
which must be exercised. He was not a person with sufficient knowledge on the subject
matter more than Dr Joubert. Dr Joubert was a qualified expert, though her report and
evidence were not admitted, subject to consideration of her tables-evidence. One table
was attached to the particulars of claim, and others were attached to her report. Of course,
also soil and landscape evidence ought to be considered .
[100] The assessment of damages that is based on expert opinion filed in terms of Rule 36 (8)
(b) and per summaries in terms of Rule 36 (9) (b), which meet all the requirements , turns
to be helpful to the Courts. In the absence of such evidence, for one reason or another,
21 [1957] 3 All SA 200 (A) at 228-9. ·
22 Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the
Republic of South Africa and Others (CCT 07/14, CCT 09/14) [2014] ZACC 32; 2015 (1) BCLR 1 (CC); 2015 (2) SA 1
ICC\ /27 November 2014 \. footnote 30. Confirmina that a lavoerson mav aive ooinion evidence. orovided it is relevant.
Courts which have to assess damages must still do so. For this, consideration should be
had to Esso Standard SA v Katz-23
'These principles have been conveniently summarized by DE VILLIERS J in Lazarus v Rand
Steam Laundries (1946) (Pty) Ltd 1952 (3) SA (T). It has long been accepted that in some types
of cases damages are difficult to estimate and the fact that they cannot be assessed with certainty
or precision will not relieve the wrongdoer of the necessity of paying damages for his breach of
duty ... In the case of Arendse v Maher 1936 TPD 162 GREENBERG J was faced with the problem
of assessing damages claimed by a wife arising out of the death of her husband owing to the
defendant's negligence. As there was no actuarial or other expert evidence before the Court, it
was argued that absolution from the instance should be granted. Having refused absolution the
learned Judge went on to say at 165:
It remains, therefore, for the Court, with the very scanty material at hand, to try and assess the
damage. We are asked to make bricks without straw, and if the result is inadequate, then it is a
disadvantage which the person who should have put proper material before the Court should
suffer.'
[101) The above paragraphs show that the mere absence of expert evidence on loss is not a
ground to grant absolution from the instance. There is more needed for such an
application to be granted. In Mutual & Federal Insurance Co Ltd v Da Costa 2008
(3) SA 439 (SCA) the SCA held-
'Monetary damage having been suffered, it is necessary for the Court to assess the amount and
make the best use it can of the evidence before it. There are cases where the assessment by the
Court is very little more than an estimate; but even so, if it is certain that pecuniary damage has
been suffered, the Court is bound to award damages. It is not so bound iri the case where evidence
is available to the plaintiff which he has not produced; in those circumstances the Court is justified
in giving, and does give, absolution from the instance. But where the best evidence available has
been produced, though it is not entirely of a conclusive character and does not permit of a
mathematical calculation of the damages suffered, still, if it is the best evidence available, the
Court must use it and arrive at a conclusion based upon it.'24
[102] The Court is not bound to award damages and will be inclined to grant absolution from
the instance where-
102.1. evidence is available to the plaintiff, which he/she has not produced; or
102.2. the best evidence available has not been produced.
[103) This Division has added its voice to the above, per the Honourable Makgoba JP, as he
then was, with the Honourable Madavha AJ, as she then was, in an appeal matter in Le
Roux.25
[104) Part of the evidence believed to be reasonably available to the plaintiff was led. Dr Joubert
led evidence based on tabulated information from the neighbouring farm. This was per
the plaintiff's pleaded version. I still have to deal with the status of her report read together
with the tables. That I did not admit certain evidence that was not based on the report
23 This is an extract from 1981 (1) SA 964 (A}, at 969H- 971A.
24 Para 20, SAFLII version.
25
Le Roux v Zeitsman and Another (HCA 10/2020\ [2021 l ZALMPPHC 79 (2 November 2021 \. from oaras 38.
23
does not mean that the report does not stand. It is the rejected evidence which does not
stand, not the report, until I do not admit it into evidence, if I shall.
[105] The plaintiffs computation of its claim would, it was submitted, be based on the yield from
the neighbouring farm. Having kept accurate and meticulous records of plantation,
progress, production and harvesting on the neighbouring farm, such records, on Mr
Milton's evidence, should be utilized to compute quantum in respect of the 400 trees. The
basis for this is that the yield on the neighbouring farm would have been the same as on
Matanda farm. The returned trees were planted on the latter farm. The other related
aspects are the soil type and landscape. Immediately after addressing myself to the two,
I revert to the records.
[106] The plaintiffs evidence is that the soil type and the landscape were the same on both
farms, which was disputed by the defendant. As for the soil, none of the plaintiff's
witnesses is an expert on soil. No expert report was filed. As a result, the soil issue is
disposed of negatively against the plaintiff.
[107] Turning to the landscape, in my view, photos taken of the farms may have assisted in
demonstrating whether the landscape is the same on both farms. Without photos or any
material to support Mr Milton's oral evidence, the similarities, if any, are not apparent to
the Court. The Court is not assisted in assessing whether the landscape is the same.
[108] Back to the records, whilst the plaintiff kept accurate and proper records of the
neighbouring farm, there is no evidence before the Court of the 'accurate and proper '
records of Matanda farm. This was not explained, when there were primary and secondary
sources of facts relevant to and directly from the Matanda farm. There was in no way
material not based on the facts of Matanda farm could reasonably have been relied on
when there was factual material obtained and/or obtainable from the said farm. In my
when there was factual material obtained and/or obtainable from the said farm. In my
view, reliance on indirect material when direct material is available is neither sound nor
acceptable, especially when such an approach is not explained . In the language of Mutual
and Le Roux, direct material would be the best evidence.
[109] Further, the neighbouring farm's macadamia trees were planted during the years 2002 -
2004. It has been, at least, 22 years since the last year of plantation. Whilst macadamia
trees mature from the 1 oth year after plantation, which is evidence from both witnesses ,
no basis was laid for the records of the 2002 to 2004 trees to be utilized for the 2019 trees
for the assessment of loss.
[110] This is a typical case of 'very scanty material' at hand, and of being asked to try and
assess the damage from such material. The Court is asked to make bricks without straw.
Unfortunately for the plaintiff, the scanty material is drawn from the neigh boring farm. The
24
neighbouring farm projected as the source of calculating the loss of income on the
Matanda farm does not assist the plaintiff's case. It was not the best available evidence,
and in addition, it was irrelevant. Given that the pool (farm) from which the data is sourced
is irrelevant, the conclusion reached by the expert is baseless and unsound.
(111] The best factual evidence available to the plaintiff was in Mr Milton's book. As stated
elsewhere, this was the primary source. Mr Milton still kept the book. I mention this in
order to get to the secondary evidence. I will revert to the best available factual evidence
below.
(112] The secondary evidence was book-record processed as data in the computer. As Mr
Milton testified, the data contained more than what was in the book. In my view, secondary
evidence appears to have stood a chance of supporting the plaintiff's case. Neither did
such factual material form part of the expert's report, nor served before me.
(113] From Mr Milton, there is no evidence before me as to what happened to the secondary
data evidence in the sent- items in his email. Not to mention that Mr Milton testified that
some of the data was sent back to him by Dr Joubert. Not all of it was sent back, as
testified by Mr Milton, and it was argued by Ms Green, Counsel for the plaintiff. No
evidence led by both witnesses as to whether the data in the folders 'in box' and 'sent', of
both Mr Milton and Dr Joubert, no longer existed, I am bound to find that the evidence
was available when the plaintiff closed its case.
(114] When, during the trial, I enquired from Mr Milton about what happened to the data in his
email, I did so because an email facility is a common feature. Various items exist in the
said facility. When Mr Milton sent the data via his email facility, the same material would
have remained saved on the email. Unless deleted, it remains in the sent items folder.
Daily use of email bases this, which I take judicial notice of.
Daily use of email bases this, which I take judicial notice of.
(115] Back to the best factual evidence, the evidence in the book was not l./tilized. Consistent
with this, under cross-examination, Mr Milton conceded that he could have prepared the
record and elected not to. Dr Jourbert's report fails the foundational test. The primary
records from Matanda, the email data and consultation with Mr Milton were not set out
her report. Further, reliance on material from the neighbouring farm was misplaced.
Consequently, the Court is justified in granting and does grant absolution from the
instance. See Mutual in paragraph 101, above
[116] For the above reasons, I agree with the defendant. I cannot assess the damages. I am
bound to follow the SCA and the Appeal Court of this Division.26 I do not have any material
26 Paraaraohs 100-103. above.
25
on the basis of which to assess the damages. Although there is evidence which,
considered by this Court, could or might find for the plaintiff on the trees being small, that
is not the case in so far as the quantum of damages, if any, is concerned.
CONCLUSION
[117] The plaintiff did not have the title to institute and prosecute claim 1. Although the plaintiff
may, without concluding that it shall succeed in proving that the defendant was in breach
in delivering small trees under claim 2, even then, there is no evidence before the Court
for the assessment of damages. The evidence before the Court, considered, I cannot find
for the plaintiff. Resultantly, the defendant succeeds in its application.
COSTS
[118] As a general rule, a successful party is entitled to costs. I follow the general rule as
there are no grounds to deviate from same.
ORDER
[119] The defendant's application for absolution from the instance is granted with costs,
including costs of Counsel.
APPEARANCES:
FOR THE PLAINTIFF
INSTRUCTED BY
R THE DEFENDANT
INSTRUCTED BY
M CHIDI AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. SS GREEN
Coxwell, Steyn, Vise & Naude Inc
Louis Trichard
legal13@csvn.co.za
Adv. AA BASSON
Thomas and Swanep oel Inc, Tzaneen
marlene@suneduples ,isattornc_ys.c .:t.