Bandini Cheese v Janse Van Rensburg (68/2002) [2009] ZAFSHC 57 (7 May 2009)

Bandini Cheese v Janse Van Rensburg (68/2002) [2009] ZAFSHC 57 (7 May 2009)

The respondent bore the onus to prove that the milk supplied was suitable for cheese production. The evidence presented, including the DELVO test results and witness testimony, established that the milk delivered on 22 June 2002 was contaminated with antibiotics and thus unsuitable. The respondent's recollection was unreliable, and the presence of separate containers for contaminated milk supported the appellant's version. The probabilities were at best evenly balanced, and the respondent failed to discharge the onus. The magistrate should have granted absolution from the instance. The appellant's counterclaim was correctly dismissed, but for different reasons. Condonation for the late...

Citation
[2009] ZAFSHC 57
Parties
Appellant: Bandini Cheese; Respondent: P J Janse Van Rensburg
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 May 2009
Case Number
68/2002
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Decision
Outcome
Appeal upheld with costs; absolution from the instance granted in respect of the main claim; counterclaim dismissed.
Judges
Nxusani, Van der Merwe
Legal Topics
Sale of Goods, Fitness for Purpose, Onus of Proof, Absolution From the Instance
Commercial and Corporate Sale of Goods Fitness for Purpose Onus of Proof Absolution From the Instance

Case Brief

Summary, issues, holding and outcome

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Parties

Bandini Cheese

Appellant

P J Janse Van Rensburg

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Decision

Legal Issues

  1. 1 Whether the respondent supplied milk suitable for the manufacture of cheese as required by the agreement.
  2. 2 Whether the appellant was liable to pay for the milk delivered.
  3. 3 Whether the appellant's counterclaim for damages should succeed.

Ratio Decidendi

The respondent bore the onus to prove that the milk supplied was suitable for cheese production. The evidence presented, including the DELVO test results and witness testimony, established that the milk delivered on 22 June 2002 was contaminated with antibiotics and thus unsuitable. The respondent's recollection was unreliable, and the presence of separate containers for contaminated milk supported the appellant's version. The probabilities were at best evenly balanced, and the respondent failed to discharge the onus. The magistrate should have granted absolution from the instance. The appellant's counterclaim was correctly dismissed, but for different reasons. Condonation for the late...

Court Disposition

Appeal upheld with costs; absolution from the instance granted in respect of the main claim; counterclaim dismissed.

Orders

  • The appellant is granted condonation for the late noting of the appeal.
  • The appellant is granted condonation for the late delivery of Volume 2 of the appeal record.