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[2019] ZASCA 159
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Mike Ness Agencies CC t/a Promech Boreholes v Lourensford Fruit Company (Pty) Ltd (922/2018) [2019] ZASCA 159; [2020] 1 All SA 314 (SCA) (28 November 2019)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
In the matter
between:
Reportable
Case No: 922/2018
MIKE NESS AGENCIES CC
t/a PROMECH
BOREHOLES
APPELLANT
and
LOURENSFORD FRUIT
COMPANY (PTY) LTD
RESPONDENT
Neutral citation:
Mike Ness Agencies CC t/a Promech
Boreholes v
Lourensford Fruit Company (Pty) Ltd
(922/2018)
[2019] ZASCA 159
(28 November 2019)
Coram:
Cachalia, Leach,
Plasket and Dlodlo JJA and Gorven AJA
Heard:
5 November
2019
Delivered:
28 November 2019
Summary:
Contract – terms agreed in writing –
parol evidence rule – appellant having proved the terms of the
contract and
having satisfied its entitlement to be paid for sinking
a borehole.
ORDER
On appeal from:
The Western Cape Division of the High Court
(Baartman and Samela JJ sitting as court of appeal):
1
The
appeal is upheld, with costs.
2
The
order of the high court is set aside and substituted with the
following: ‘The appeal is dismissed, with
costs.’
JUDGMENT
Leach JA (Cachalia, Plasket and Dlodlo JJA and Gorven AJA
concurring)
[1]
The appellant, a close corporation trading under
the name of Promech Boreholes,
carries
on
business
as
a
drilling
and
borehole
contractor.
At
the
request of the respondent, the appellant gave the
respondent a written quotation to drill a borehole for it on one of
its Western
Cape farms, known as the Lourensford Wine Estate (the
farm). In its quotation, the appellant undertook ‘to guarantee
water
within 70 metres’ and that ‘if no water was found
at 70 metres we will drill
from
70 metres to 100 metres free of charge’. This quotation was
accepted and led to the appellant drilling a borehole on
the farm to
a depth of a little more than 70
metres.
[2]
It is common cause that this borehole yields
approximately 4 000 litres of water per hour, something which would
put a smile on
the face of most farmers in this country. However,
despite this and the respondent having subsequently installed a pump
in the
borehole and using its water to irrigate its fruit trees, it
refused to pay the appellant the agreed contract price or any part
thereof. Accordingly, the appellant sued for payment of its charges
in the Bellville Magistrates’ Court. Understandably,
given the
borehole’s yield and the fact that it had been used by the
respondent, the claim succeeded. Startlingly, given
these facts, an
appeal to the Western Cape Division of the High Court, Cape Town
succeeded on the basis that the appellant had
not discharged the onus
of proving it had provided sufficient water to comply with its
contractual obligations and was therefore
not entitled to receive any
payment at all. The appeal against that decision is with the special
leave of this
court.
[3]
The principal witness called on behalf of the
appellant at the trial was its sole member, Mr Mike Ness. An old hand
in the borehole
drilling trade, having carried on business in that
capacity for more than 20 years, he described how he had been
contacted by Mr
Johan West, the environmental affairs manager of the
respondent, who asked him for a quotation to provide a borehole on
the farm.
As a result, in March 2011 he went to the farm where he met
Mr West who showed him where a borehole was required. He was told
that
the water from the borehole was going to be pumped into a
storage facility and from there distributed to labourers’
cottages
on the farm. He was then left to his own devices and set
about divining for water using two steel rods. Doing so, he felt that
the place which had been pointed out to him was not suitable for a
borehole and so he extended his search until he found a nearby
site
at which, in his opinion, there was a much better prospect of
obtaining water. He then spoke to Mr West and told him that
he was
prepared to drill at that particular site on the basis of ‘no
water no
pay’,
that being the appellant’s standard policy based on the
confidence Mr Ness had in his water divining powers.
[4]
It was pursuant to this and Mr West’s
request that, on 9 March 2011, the appellant forwarded by email a
written quotation
to the respondent. Being annexure ‘POC 1’
to the particulars of claim, it reads as
follows:
‘
Further
to your enquiry, we have the pleasure in detailing our quotation for
drilling of borehole, supply and installation of pump.
1.
Drilling of Borehole
Divine for water on premises
Establishment set up, etc.
30 m mud
drilling
30 m 177 mm steel casing 30 m steel installation
40 m
percussion drilling
70 m 125 mm class 12 PVC casing Drilling additive
70 bags
gravel pack Borehole development Compressor and diesel usage
SUB
TOTAL
73 350.00’
Below this, the costs of a borehole pump and electrical installation
(totalling R28 500) as well as the provision of electrical
boards (R5 500) were set out. Then followed a clause that for
convenience I shall refer to as ‘the deposit clause’.
It
read:
‘
A
payment of 50 % of the total will be transferred to Promech’s
account as soon as a sufficient water supply has been found
and the
said water breaches the surface of the drilling site. The balance
will be paid on completion . . . . Promech has a
No
water, No pay policy
.’
[5]
Mr Ness explained that normally the appellant
insisted upon payment of a deposit of 50% of the quoted contract
price before commencing
work, but that in the present case the
respondent was not prepared to pay until it was shown that
water had been found. The deposit clause was therefore
inserted at the respondent’s insistence to extend to it the
benefit
of only paying the deposit on water being struck, something
he was confident would occur. I shall return to this clause later.
[6]
In any event, at the foot of ‘POC 1’
the appellant provided a space for the respondent to sign in
acceptance of its
terms and conditions. On 18 March 2011, a little
over a week after it had been sent to the respondent, Mr West sent an
email to
Mr Ness asking him to particularise the individual drilling
costs set out in ‘POC 1’ and to give a written guarantee
that the appellant ‘will go down to 100 metres free of charge
in the event of not finding water at 70 metres . . . .’
Mr Ness
responded the same day by way of an email, annexure ‘POC 2’
to the appellant’s particulars of claim,
providing the
necessary details and guarantee. It reads as follows:
‘
Hi
Johan,
Drilling
30 m mud
drilling
R250/m
40 m percussion drilling
R250/m
Casing
:
30 m 177 mm
steel casing
R395/m
30 m steel
installation
R65/m 70 m 125 mm class 12 PVC
casing
R250/m
Other
:
Devine for
water on premises
R3 000
Establishment set up, etc.
R5 000
Drilling
additive
R5 000
70 bags gravel
pack
R4 550
Borehole development
R3 000
Compressor and diesel usage
R4 000
Promech Boreholes will undertake to guarantee water
within 70 m and undertakes if no water is found at 70 m we will drill
from 70
m to 100 m free of charge.’
[7]
Mr West had no authority to bind the respondent
(he had been mandated solely
to
make enquiries and obtain quotations) and so he emailed both
annexures ‘POC 1’ and ‘POC 2’ to the
respondent’s
financial and managing directors, respectively Mr
Jaco Avenant and Mr Philip du Plessis, who were authorised to
contract on behalf
of the respondent. He also passed on to them the
quotations he had received from several other borehole contractors.
After considering
these competing quotations, they decided to accept
that of the appellant. Mr Avenant indicated the respondent’s
acceptance
by
signing the
quotation on its behalf at the space provided. He then returned the
signed document to Mr West who subsequently also
signed it,
purportedly as a witness to Mr Avenant’s
signature.
[8]
Within days of the respondent’s acceptance
of its quotation, the appellant moved its drilling rig and staff onto
site on the
farm and commenced drilling. At a depth of just over 20
metres, some water was struck. The appellant continued to drill
deeper
and at approximately 58 metres a break in the underlying
granite was reached which provided considerable water. Despite this,
as
the appellant had undertaken
to
drill down to
70
metres,
it
continued
to
drill
further.
Eventually, at a depth of 76 metres, Mr Ness and
Mr West agreed that drilling should
stop.
[9]
The casing itemised in the quotation was fitted
as the borehole was drilled but, notwithstanding water having been
struck, when
Mr Ness asked if the appellant should go ahead and
install the pump and other equipment mentioned in the quotation, he
was told
that the respondent would first like to do a yield test.
This was done, but the results did not meet the respondent’s
approval.
The opinion it obtained at that stage was that the yield
was 1 600 litres per hour. The respondent thus refused to pay,
claiming
the borehole did not produce ‘sufficient water’
as envisaged by the deposit clause. The appellant contended it had
done all that it had undertaken to do, and that ‘sufficient
water’ had been struck
which
had
breached
the
surface.
And
in
due
course,
as
already
mentioned,
when
the
respondent persisted in refusing to
pay, it instituted action claiming payment of the charges it had
quoted for drilling the hole
and fitting its casing.
[10]
For present purposes it is unnecessary to analyse
the evidence led in regard to the debate which raged at the trial
concerning the
quantity of water this borehole produced and the
appropriate method by which the rate of production should properly be
measured.
Suffice it to say that the parties eventually accepted the
evidence of one of the respondent’s expert witnesses that it
yielded some 4 000 litres per hour which, as I
remarked at the outset, would probably have heartily satisfied
most
farmers.
[11]
So why did the respondent refuse to pay? Its
position on going to trial is somewhat confusing. First, in its plea,
after alleging
that the parties had agreed that the appellant would
not be paid unless sufficient water was found, it further alleged
that it
had been agreed that 6 000 to 9 000 litres per hour would be
sufficient water, and that the capacity of the borehole was a
‘measly’
1 600
litres
per hour which did not qualify as sufficient water. Secondly,
however, and although it had not been pleaded, Mr West stated
when
testifying on behalf of the respondent that the borehole was not only
a dry hole but that it had not been fitted with casing
as Mr Ness
claimed. This, he alleged, he had ascertained when he had inspected
the borehole at about the time the summons was issued
in 2011. He
stated that the hole had been lined with no more than a short piece
of PVC piping which, when he drew it out caused
the hole to collapse.
He marked the spot with a red pole. Photographs of the spot and the
red pole were handed in during the course
of the trial.
[12]
The respondent was obliged to backtrack from both
of these contentions during the course of the trial. First, on its
own case it
became clear that the contract
had
not been
concluded
on
the
basis of
the
yield pleaded
in
the
particulars of claim.
Instead its case was that it had been agreed between Mr Ness and
Mr West at the outset
that the borehole would have to deliver 10 000
litres per hour, that being what it needed to provide the 100 or so
labourers’
cottages on the farm with water: and that it was
only when it became apparent during the course of the drilling
operations that
such a yield was unlikely, that it told the appellant
it would accept a lower yield of 6 000 to 9 000 litres per hour.
Secondly,
after
an
adjournment and an inspection on the farm held before Mr West had
finished giving evidence, he was obliged to concede not only
that the
dry hole that he had marked with a red pole was not the borehole the
appellant had drilled, but also that the appellant’s
borehole
had since been equipped with a permanent pump and
electrical installation and was gaily being used by the respondent to
irrigate
its orchards (albeit, so Mr West alleged, this had been done
without his knowledge).
[13]
The respondent’s case thus morphed into a
contention that the appellant had guaranteed to provide a minimum
water supply of
10 000 litres and that, as it had not done so, the
respondent was excused from paying any sum at all. Of course, as the
appellant
had indeed struck water and the borehole it drilled and
encased was subsequently fitted with a pump and used by the
respondent,
the latter should have been held liable for at least a
substantial portion of the appellant’s claim even on its own
version
– as was held by this court in
Van
Rensburg v Straughan
,
[1]
a decision of which both parties were for some reason
blissfully unaware before it was raised with them in this appeal.
After all,
as is commonly said, there is no such thing as a free
dinner.
[14]
Leaving that aside for the moment, I turn to
consider the validity of the respondent’s defence to the claim,
albeit not pleaded,
relating to the quantity of the borehole’s
yield. As I understood its counsel, the respondent’s case was
that the appellant had guaranteed a borehole with
a yield of 10 000 litres per hour and that as the hole did not
deliver such a
yield, it was not obliged to
pay.
[15]
The first and obvious answer to this is that this
is not what the agreement says, and to find that there was agreement
on such a
guarantee would breach the rule of parol evidence which
prescribes that where the parties to a contract have reduced their
agreement
to writing, it becomes the exclusive memorial of the
transaction; and no evidence may be led to prove its terms other than
the
document itself, nor may the contents of the document be
contradicted, altered, added to or varied by oral evidence. This is
trite.
[2]
Thus in
National Board
[3]
this court referred with approval to the statement in
Wigmore,
Evidence
(1940)
3 ed 2425:
‘
In
other words: when a jural act is embodied in a single memorial, all
other utterances of the parties on that topic are legally
immaterial
for the purpose of determining what are the terms of their act.’
[16]
Thus the considerable volume of evidence led by
both sides in regard to their negotiations and what their intention
had been was
all clearly inadmissible, even as part of the context in
which the agreement was concluded – cf
Van
Aardt v Galway
2012 (2) SA 312
(SCA) para 9.
Although the parol evidence rule is trite,
[4]
it seems often to be ignored. That was noted by this
court in
KPMG v Securefin
[5]
where Harms DP, in a passage which is also relevant to
other issues that arise in the present matter, said:
‘
First,
the integration (or parol evidence) rule remains part of our law.
However, it is frequently ignored by practitioners and
seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence may
not
contradict, add to or modify its meaning . .
. Second, interpretation is
a matter
of law and not of fact and,
accordingly, interpretation is a matter for the
court and not for
witnesses (or, as said in common-law jurisprudence, it is not a jury
question . . .).’
[6]
(Authorities omitted.)
[17]
As is self-evident, ‘POC 1’ contains
no guarantee of the yield for the borehole. Its terms are clear and
unambiguous.
It did not make provision for payment only in the event
of a minimum of 10 000 litres per hour being obtained. Instead it
provided
that he appellant would not charge for drilling if it was a
dry hole. The obvious connotation is that if the hole was not dry
there
would be payment. Thus the ‘no water, no pay’
phrase in the deposit clause is wholly inconsistent with there being
agreement on a specified yield and provides for the appellant
becoming entitled to its charges, save in the event of no water being
obtained. In the light of that clause, the ‘sufficient water’
requirement properly interpreted (which as pointed out
in the passage
in
KPMG
quoted above
is a matter for the court, not witnesses) clearly means no more than
sufficient water to avoid the borehole being regarded
as a dry hole.
And if there is ‘sufficient water’ for that to be the
case, the appellant would be entitled to payment,
no matter what the
actual yield might be.
[18]
In an attempt to meet this, and to overcome the
parol evidence rule, it was argued on behalf of the respondent that
the agreement
was partly in writing and partly oral. In
Affirmative
Portfolios v Transnet
[7]
this court held that where an agreement is partially
written and partially oral, then the parol evidence rule ‘prevents
the
admission only of extrinsic evidence to contradict or vary the
written portion without precluding proof of the additional or
supplemental
oral agreement. This is often referred to as the
“partial integration” rule’. The respondent
therefore contended
that the rule did not exclude proof of what it
alleged had been orally agreed between Mr Ness and Mr West when the
former visited
the farm before the quotation was
prepared, namely, that the
borehole
would have to provide 10 000 litres per hour and that was the
‘sufficient water’ referred to in ‘POC1’.
[19]
This defence faces numerous difficulties. The
first is that, as is set out in the passage from
Affirmative
Portfolios v Transnet
quoted above, this
evidence would only be admissible if it did not serve to contradict
or vary the written terms of the agreement.
And as I have just
pointed out, the agreement clearly does not provide a guarantee as to
a yield quantity and is merely to the
effect that there would be no
charge if the borehole should be dry. The oral portion contended for
would thus vary or contradict
the written agreement, and evidence
thereof would accordingly offend the parol evidence rule and be
inadmissible. On this basis
alone there is no room for the operation
of the alleged oral
guarantee.
[20]
Another difficulty facing the respondent is the
fact that despite the appellant for some reason having admitted on
the pleadings
that Mr West was authorised to contract on behalf of
the respondent, it was clear from the evidence both from Mr West
himself,
and of the respondent’s chief executive, Mr Philip du
Plessis, that he was not. Indeed, this was the very reason why the
quotations Mr West had obtained had to be forwarded to Messrs Avenant
and Du Plessis for their consideration. Consequently, even
if one was
to accept that there had been an oral agreement concluded by Mr West,
it could not bind the
respondent.
[21]
Furthermore, there is nothing to show that Mr
Avenant, who concluded the agreement on behalf of the respondent,
knew of any undertaking
by Mr Ness to provide 10 000 litres per hour.
For some reason he was not called to testify. Mr Du
Plessis, who
did testify, approved the appellant’s quotation
and authorised Mr
Avenant to sign it on behalf of
the respondent. It appears from his evidence that he had informed Mr
West when mandating him to
obtain quotations that the respondent
needed 10 000 litres per hour, but had not himself had any
dealings with Mr Ness
until after water had been found. All he
and Mr Avenant did was to discuss the quotations after they had been
received from Mr
West and take a decision on which should be
accepted. But that does not mean that the desire to procure 10 000
litres per hour
became incorporated into the parties’
agreement. Mr Ness never offered to them to contract on any other
basis than the terms
in his quotation. The agreement contained the
terms on which he had tendered to contract which, other than the no
water, no pay
provision, made no mention of any quantity of water.
Thus irrespective of what may have been pleaded by the parties, the
contract
terms were solely contained in the appellant’s
quotation ‘POC 1’.
[22]
Even if it was permissible to have regard to the
negotiations between the parties prior to the signing of the
appellant’s
quotation, there is no merit in the contention
that
Mr
Ness
in
fact
undertook
to
deliver
a
borehole
that would
provide
the yield of 10 000 litres per hour. He flatly denied any suggestion
of that having been the case. As I have said, he is
an old hand in
the borehole drilling game and, although he had faith in his own
water divining abilities (and thus prepared to
give an undertaking of
no water, no pay), he stated that it was impossible to know exactly
what was going on underground or what
yield would be forthcoming.
This evidence was accepted by the trial court who found him to have
been a good and credible witness.
[23]
An appeal court’s powers to review findings
of fact are necessarily restricted, the trial court having had the
benefit of
seeing the witnesses and thus being in a better
position
to
judge their demeanour and credibility. Whilst because of this,
deference must be paid to the trial court’s findings on
fact,
this must not be over-emphasised, particularly where a finding of
fact depends upon inferences from other facts
and
upon the probabilities.
[8]
But in the present case the
probabilities are inherently in favour of Mr
Ness on this issue. Not
only is it simply a matter of common sense that a person cannot know
with any precision what a borehole
is likely to yield before it is
drilled (particularly when called on to prognosticate in respect of
so substantial a yield as 10
000 litres per hour) but Mr Ness was
supported in this regard by the experts who were called in regard to
the technology of boreholes
and measurement of their yields.
For example, Mr Conrad, a hydrogeologist called by
the respondent, stated that
in certain settings there might be some
assurance of getting water but that to guarantee quantities is almost
impossible.
[24]
Moreover, as Mr Ness tellingly stated, if he had
been informed that a yield of 10 000 litres per hour was a
requirement, he would
have put it in his quotation. There is no
mention in the quotation of a yield, although he amended its terms in
‘POC 2’
at Mr West’s request in the email of 18
March 2011, by undertaking to drill free of charge if needs be from
70 metres to
100 m to obtain sufficient water. Despite the initial
quotation having failed to mention the required yield, no mention was
made
thereof in this email although a detailed breakdown of the
appellant’s charges was requested as well as. According to Mr
West, this was done as the respondent required ‘everything’
to be in writing. If such a yield had been agreed as the
respondent contends, and if
the
respondent
required everything to be in writing, it is inexplicable that at that
stage no request was made to amend the quotation
to refer to the
agreed yield. It is similarly inexplicable that the quotation would
have been accepted without a yield being specified.
The respondent’s
version in this regard is thus inherently improbable whilst that of
the appellant, conversely, is inherently
probable.
[25]
Furthermore, but fatal to the respondent’s
case, is the fact that Mr West himself never
stated that Mr Ness had guaranteed that the
borehole would provide 10 000 litres per hour. The closest he came to
this was a statement
that he
had
informed Mr Ness that the respondent
had
a
reservoir which it required
to fill with water in order to supply labourers
cottages, and that it was seeking a minimum of
10
000 litres per hour
to do so.
But he never stated that Mr Ness
had
undertaken to provide that yield from the single borehole he was
contracted to drill. There is substantial difference between
what the
respondent desired to have and what the appellant was contracted to
provide. And of course what may have been said as
to the respondent’s
intentions is irrelevant.
[26]
Mr West was driven to concede that there was no
documentation recording a requirement that the borehole had to
provide 10 000 litres
per hour or a guarantee that such a yield would
be provided. Despite this, he stated that he was sure that that was
what the respondent
wanted and that was what Mr Ness was told. But
even if during his inspection Mr Ness had said that he felt that he
could get 10
000 litres per hour as Mr West testified that did not
amount to a guarantee that such a yield would be provided nor an
undertaking
that if such a yield was not forthcoming no payment would
have to be made. The simple truth of the matter is there is no
evidence
that Mr Ness ever gave such a guarantee, either verbally or
in writing. And the quotation which he gave is wholly inconsistent
with such a guarantee.
[27]
In the light of all of this the trial court
correctly concluded that the respondent’s defence to the
appellant’s claim,
namely that the appellant had guaranteed a
yield of 10 000 litres per hour, could safely be dismissed. All the
appellant had to
provide was sufficient water for the borehole not to
be regarded as being dry and that, clearly, it did. As Mr Weaver, a
highly
qualified and experienced hydrologist, commented ‘every
single household in Cape Town would love a borehole like this on
their property’ and that in certain areas it would be regarded
as being a ‘really good borehole’. The trial court
therefore correctly concluded that the appellant was entitled to be
paid its
charges.
[28]
The reasoning of the court a quo, in concluding
otherwise, is confusing to say the least. It held that at best for
the appellant,
‘sufficient water’ meant sufficient for
the labourers’ cottages; that Mr Weaver had said that the
boreholes yield
was insufficient for a 100 households; that the
appellant had made no attempt to show the number of cottages involved
and had failed
to indicate the capacity of the dam or reservoir that
was going to be used to store water for those cottages; and that,
without
doing so, it had simply not discharged its onus. However, Mr
Weaver, whose evidence on this was undisputed, had in fact said the
very opposite. On his evidence the borehole’s yield was more
than sufficient for a 100 households, which would have required
60
000 litres per day (it yielded more than 90 000 litres a day)
although he went on to state that he would not regard it as a
sole
source of water as a borehole’s yield may vary from time to
time. On the evidence of the respondent’s chief executive
officer, Mr du Plessis, water for about 80 cottages was needed. So
the very issues the high court stated were not established were
proved. But more importantly, it is clear from what I have said that
even the respondent did not seek to advance a case that the
appellant
had contracted to supply water to a specific number of houses and
that there was an obligation on its part to prove the
number of
cottages and the quantity of water they needed. Its case was
simple; that an oral guarantee of
10 000 litres had
been given. Not surprisingly, counsel for the respondent did not
attempt to rely on the high court’s reasoning
in this
court.
[29]
In any event, as appears from what I have said,
the number of households the respondent wished to supply with water,
the capacity
of the storage dam or reservoir, and the actual yield of
the borehole, were wholly irrelevant to the contractual obligation
that
rested upon the appellant, and which it had clearly discharged.
The high court’s decision was clearly wrong and it had no
reason to interfere with the trial magistrate’s
careful analysis of the evidence and
the
conclusion that court reached. The appeal to the high court
ought therefore to have been dismissed.
[30]
Unfortunately, it is necessary to say something
about the manner in which the trial was conducted. It was a drawn-out
affair, with
issues being explored at great depth in evidence which
was either wholly inadmissible or which was of no relevance to the
true
issues. The parol evidence rule was observed only in its breach,
each side having led witnesses, and cross-examined those of the
other, on the meaning of the words used in the appellant’s
quotation, all of which was both impermissible and irrelevant.
There
was a welter of evidence from experts on both sides in regard to the
techniques to be used in testing borehole yields and
what this
particular borehole delivered. Much of this was contradictory. Indeed
experts on both sides contradicted each other.
Interesting though
this may have been, it was mostly irrelevant to the determination of
the matter. Furthermore, a whole day was
devoted to an objection
in
limine
, wholly without merit, relating to the
identity of the appellant as the contracting party. Consequently, the
trial lasted 9 court
days with judgment being given on the 10
th
.
It resulted in a record of almost 1 000 pages, and all for a small
claim falling within the jurisdiction of the district magistrates’
court which in truth ought to have been capable of being disposed of
in one or two days at the most. It is the handling of litigation
in
such a way that gives the law and lawyers a bad name, especially in a
case like this where the outcome was inevitable and on
the
defendant’s own case it was clearly liable.
[31]
What makes this all the more unfortunate is the
fact already mentioned that the
capacity
of
the
borehole
the
appellant
drilled
was
probably
sufficient
to
supply the 80 or so labourers’ cottages on
the farm, which the respondent wished it to do. The entire trial was
thus, to adopt
Shakespeare’s famous description, ‘much
ado about nothing’.
[32]
Be that as it may, the appeal to this court must
succeed and the magistrate’s order reinstated in effect. That
is reflected
in the order below. Despite the entreaty of appellant’s
counsel, this is a straight forward matter which does not warrant
the
employment of two counsel.
[33]
It is ordered
1
The
appeal is upheld, with costs.
2
The
order of the high court is set aside and substituted with the
following: ‘The appeal is dismissed, with
costs.’
L E Leach Judge of Appeal
Appearances
For the Appellants:
J K Felix (with him H E Hansen)
Instructed by:
C & A
Friedlander Inc, Cape Town
Honey and Partners Inc, Bloemfontein
For
the Respondents: A M Heunis
Instructed by:
J P Joubert Attorneys,
Strand
Symington & De Kok, Bloemfontein
[1]
Van Rensburg v Straughan
1914 AD 317
– which despite
its age was referred to with approval by this court in
BK Tooling
(Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA
391
(A) .
[2]
Johnston v Leal
1980 (3) SA 927
(A) at 938 and 943.
[3]
National Board (Pretoria) (Pty) Ltd & another v Estate
Swanepoel
1975 (3) SA 16
(A) at 26.
[4]
See further
City of Tshwane Metropolitan v Blair Atholl
Homeowners Association
2019 (3) SA 398
(SCA);
[2019] All SA 291
(SCA) paras 64-69.
[5]
KPMG Chartered Accountants (SA) v Securefin Ltd & another
2009 (4) SA 399 (SCA).
[6]
Ibid para 39.
[7]
Affirmative Portfolios CC v Transnet Ltd t/a Metrorail
[2008] ZASCA 127
;
2009
(1) SA 196
(SCA) para 14.
[8]
Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd &
another
2002 (4) SA 408
(SCA) para 24.