Griesel and Others v Haasbroek and Another (09/2015) [2016] ZANWHC 8 (10 March 2016)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CIVIL APPEAL HC: 09/2015

DATE: 10 MARCH 2016

In the matter between:

DR DAVID GRIESEL......................................................................................................First Appellant

GLAUDINA BOERDERY (E DMS) BEPERK.........................................................Second Appellant

DEVENCO INVESTMENTS 60 (EDMS) BEPERK..................................................Third Appellant

And

PIET HAASBROEK....................................................................................................First Respondent

DR J M VAN WYK...................................................................................................Second Respondent

J U D G M E N T

LEEUW JP:

Introduction

[1] This appeal raises a question of the passing of risk in a contract of sale of a buffalo which died during the sedation process before the actual delivery to the purchaser.

[2] Buffalo are carriers and transmitters of certain diseases such as foot-and-mouth disease, bovine tuberculosis and brucellosis.

Prevention measures regulating the movement of buffalo are promulgated in the Animal Disease Regulations[1], which provide for certain movement protocols for buffalo as well as prescribed tests, which must be negative, before transfer of the buffalo to a purchaser can take place.

[3] The first appellant, (Dr Griesel) is a game farmer and owner of Nuutbegin Nature Reserve (Nuutbegin) which farm is registered for keeping of buffalo. According to Dr Griesel, the buffalo at Nuutbegin belong to the third appellant (Devenco Investments). The role of the second appellant (Glaudina Boerdery) in these proceedings was not clearly defined. The first respondent (Mr Haasbroek) is a game farmer and occupies a game farm not far from Nuutbegin. The second respondent (Dr Van Wyk) is a Veterinarian.

Background information

[4] On 14 October 2009 Dr Griesel allegedly sold a buffalo bull to Mr Haasbroek, which contract was concluded when 4 buffalo were delivered at Nuutbegin but before they were off-loaded. The buffalo were off-loaded and kept in a Boma for some time and later released to join other buffalo at Nuutbegin. There is a dispute regarding the terms of the sale agreement. Dr Griesel alleges that Mr Haasbroek agreed to buy the buffalo for R1 million plus 25% of the transportation costs of the buffalo from Grobberlaasdal to Nuutbegin. Mr Haasbroek disputes that they concluded a contract of sale, and avers that they agreed that he would indicate his intention to buy the buffalo only after the required tests for diseases had been conducted and after measuring the horns of the buffalo. They, however, agreed that Mr Haasbroek would conduct the sedation process at his own expense and utilize his veterinarian in that regard. Mr Haasbroek denies that he agreed to carry the risk of the incidental (“toevallig”) injury or death of the buffalo which was likely to occur during the sedation process.

[5] On the 29 October 2009, a week after their meeting, Mr Haasbroek came in a helicopter with his wife and son, accompanied by Dr Van Wyk who was to sedate the buffalo and draw blood for testing. They met at Dr Griesel’s house. They then proceeded to the farm for the purpose of darting the buffalo. They were with Dr Boshoff, the state veterinarian and other persons who were to assist in the process. Dr Griesel instructed Mr Haasbroek and Dr Van Wyk to fly with their helicopter to the location of the buffalo, whilst he followed in his Land Rover together with his team. On joining them at the scene, he advised that they all drive in the Land Rover for the purpose of darting the buffalo, the reason being that if they use the helicopter, it will scare the buffalo and cause them to scatter in the farm, whereas if they use the Land Rover, the buffalo will remain calm because they know his vehicle.

[6] Dr Van Wyk succeeded in sedating the buffalo through the darting process. Dr Griesel, who was driving the Land Rover, intimated that they should wait for approximately 3 to 4 minutes before they could pursue the buffalo. Mr Haasbroek and Dr Van Wyk did not agree with him, but Dr Griesel switched off the Land Rover. After waiting for about 5 minutes, they drove into the bush to locate the buffalo, but could not find it. It was found dead later in the afternoon.

In the Court a quo

[7] Mr Haasbroek disputed that there was a contract of sale concluded, and averred that the contract of sale was not perfecta because he first wanted to measure the horns of the buffalo as well as get the results of the prescribed tests and only then could he decide whether or not to buy the buffalo. Dr Griesel claimed that there was a contract of sale concluded with the further

agreement that the risk for the injury or death of the buffalo during the darting process would pass to Mr Haasbroek. He therefore claimed payment of the purchase price from Mr Haasbroek. In respect of Dr Van Wyk, he claimed that he was liable for the loss of the buffalo on the basis that he was negligent in the execution of the darting process, which negligence resulted in the death of the buffalo.

[8] Landman J, having made an unfavourable credibility finding against Mr Haasbroek rejected his evidence on the facts related to the sale and held that there was a contract of sale concluded, and further that Mr Haasbroek agreed to carry the risk of injury or death of the buffalo. He further held that even though Dr Griesel failed to prove that the contract was subject to a suspensive condition, which would render the contract non perfecta, he nevertheless found that the agreement regarding the passing of risk to Mr Haasbroek entitled Dr Griesel to claim payment for the sale of the buffalo.

[9] He further held the view that Mr Haasbroek and Dr Van Wyk were not forewarned by Dr Griesel that the buffalo would not be pursued

immediately after the darting operation. He consequently held that Dr Griesel’s conduct, of not allowing Mr Haasbroek and Dr Van Wyk to immediately follow the buffalo with the Land Rover when he was in full control of the Land Rover, contributed to the death of the buffalo, that this was unfair and tantamount to a repudiation of contract. He further held that Dr Griesel’s interference with the darting process caused the buffalo to land on its side and not in a sternal position. This resulted in the buffalo suffocating in the contents of its stomach, because it did not receive assistance immediately when it landed.

[10] The claim against Dr Van Wyk was dismissed and the court ordered absolution from the instance with costs in respect of the claim against Mr Haasbroek. Leave to appeal his judgment having been refused by Landman J, the Supreme Court of Appeal granted the appellants leave to appeal the order made in the claim against Mr Haasbroek.

In this Court

[11] The appellants submit on the law that the Court a quo, having made a finding that the contract of sale was concluded between Dr Griesel and Mr Haasbroek, erred in law to mero motu hold that ex contractu, the risk was subject to 1) non-interference by Dr Griesel whereas that condition was not a term of the contract, it was neither pleaded by Mr Haasbroek, nor raised on behalf of Mr Haasbroek during argument; 2) that this qualification or condition cannot be implied as a term of the contract; 3) that the Court a quo erred in law in finding that Dr Griesel repudiated the contract; and 4) in deciding the issues of the case on the basis of fairness.

[12] The appellants further submit on the facts, that the Court a quo erred in

1) not rejecting the evidence of Mr Haasbroek as unreliable in respect of the issues that transpired during the darting of the buffalo;

2) not finding that the risk of death of the buffalo had passed to Mr Haasbroek;

3) making a finding that Dr Griesel imposed limitations on the darting procedure; and

4) holding that the conduct of Dr Griesel caused the death of the buffalo.

[13] The respondent’s counsel submits that the contract of sale was not perfecta and thus the risk did not pass to Mr Haasbroek. He further submits that the identity of the seller has not been established by Dr Griesel.

Issues

[14] The issues to be determined are whether:

(1) there was a contract of sale concluded between Dr Griesel and other two appellants and Mr Haasbroek which was perfecta. If the answer is yes, whether the risk of loss of the buffalo passed to Mr Haasbroek as the purchaser;

(2) whether Dr Griesel’s conduct during the darting process affected the issue of risk;

(3) whether the Court a quo was entitled to raise the question of risk mero motu.

Analysis

[15] Landman J held that a contract of sale was concluded between Dr Griesel and Mr Haasbroek, on the following grounds:

(1) Dr Griesel took steps to prepare the necessary documentation required for the movement of the buffalo from Nuutbegin to Mr Haasbroek’s farm;

(2) When Mr Haasbroek came to inspect the buffalo on its arrival from Grobelaarsdal, he requested his wife to take photos of the buffalo he was interested in;

(3) Mr Haasbroek appointed the services of Dr Van Wyk to perform the darting process for the purpose of conducting the blood tests prescribed by the law, at his own expense.

[16] This finding was made after an analysis of the total evidence.The Court made an unfavourable credibility finding against Mr Haasbroek and his witnesses with regard to the facts surrounding the sale of the buffalo bull. Having considered the evidence, tendered in its totality on the facts and both Counsels’ submissions relating to the sale of the buffalo, I am satisfied that there exist no grounds on which to fault Landman J’s credibility finding as well as his assessment of the evidence in that regard.

The Law

[17] It is trite law that for a valid contract of sale to exist, the parties must have agreed on the purchase price and the property sold. In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[2], the Court held that:

“It is a general rule of law that there can be no valid contract of sale unless the parties have agreed expressly or by implication upon a purchase price. They may do so by fixing the amount of the price in their contract or they may agree upon some external standard by the application whereof it will be possible to determine the price without further reference to them.”

[18] It is argued by counsel for Mr Haasbroek that the contract of sale can only become perfecta if there is consensus as to the identity of the parties to the contract. For this he places reliance on Scheepers v Strydom[3]. He further submitted that Dr Griesel did not make an allegation in the pleadings nor lead any evidence explaining that he was contracting as an undisclosed principal of the second and or third appellants. The facts in the authorities cited are

distinguishable. Here, in the particulars of claim, the plaintiffs were cited in the alternative. Dr Griesel gave evidence that he sold the buffalo to Mr Haasbroek and that Devenco Investment owned the animals at Nuutbegin. This issue was not fully ventilated by the parties when Dr Griesel testified. I am of the view that the seller was identified and known to the purchaser as Dr Griesel. The case of Durity Alpha (Pty) Lt v Vagg[4] does not support the point raised by counsel for Mr Haasbroek.

Was the sale perfecta?

[19] In South Era Resources Ltd v Fardell NO[5], Mpati P, stated that:

“A sale is perfecta if it is absolute, in the sense that it is not subject to a suspensive condition. It becomes perfecta once there is agreement on the merx (the thing sold) and the pretium (price) and any condition resolutive or suspensive, has been fulfilled.”

He goes further to state in para [11] that:

“Fulfilment of a suspensive condition results in the contract being enforceable. And normally, if the condition fails and the parties have not agreed otherwise, the contract is rendered void.”

[20] The question therefore is whether the alleged contract of sale between Dr Griesel and Mr Haasbroek regarding the sale of the

buffalo, is subject to a suspensive condition when one considers that the buffalo was to undergo certain blood tests in order to determine whether the results would be negative of any disease before delivery could take place. If after testing, the results turned out positive for the diseases, the contract would be rendered void.

[21] Because of the uncertain event, whether the buffalo would test negative of any disease, the contract cannot be said to be perfecta. The fulfilment of the condition was dependent on the blood test results which requirement is prescribed by the Regulations. If after the tests, the buffalo tested negative of any disease, the sale would have been perfecta. Unfortunately here, the status of the buffalo was not established because no blood tests were conducted on the dead buffalo, thus rendering the sale imperfecta. Compare Fourie v CDMO Homes (Pty) Ltd[6].

The issue of risk

[22] If it were to be found that the sale was perfecta based on the alleged agreement between Dr Griesel and Mr Haasbroek that the risk of the incidental injury or death of the buffalo during the darting process, was to pass to Mr Haasbroek as the purchaser, then this begs the question whether in that case the loss was as a result of fault on the part of Dr Griesel as the seller.

[23] The general rule is that the risk of destruction of the merx passes to the buyer as soon as the agreement of sale has been concluded, and before delivery of the merx. See Van Wyk v Herbst[7]. In Isando Foods (Pty) Ltd Fedgen Insurance Co Ltd[8] Nugent AJA (as he then was) stated: “Generally, when property is sold the risk that the property might be damaged passes to the purchaser once the sale is perfected even though delivery has not yet taken place, but that does not mean that all risk passes to the purchaser irrespective of how it is caused. The risk that passes upon sale is the risk of damage through no fault of the seller. In other words, it is only the risk of damage by vis major or casus fortuitous or damage caused by third parties through no fault of the seller that passes to the purchaser”.

[24] It is common cause that during the darting process:

(1) Dr Griesel directed the darting process by not allowing Mr Haasbroek to use the helicopter, the reason being that the helicopter will cause the animals to scatter. He even informed them that his animals were tame and that they were familiar with his Land Rover and thus it would be easier to dart the buffalo from his vehicle;

(2) Dr Griesel was in control of the Land Rover from where Dr Van Wyk darted the buffalo, and did not immediately follow the buffalo after the darting;

(3) It is common knowledge between all parties who were involved in the darting process that the buffalo bull had to be followed immediately. However, it was not done at the instance of Dr Griesel, who was the driver of the Land Rover and had decided to switch off the vehicle until after a period of approximately 3 to 4 minutes, when he decided to drive and follow the buffalo;

(4) Dr Griesel agrees that it would not have been possible to follow the buffalo on foot, but intimated that Mr Haasbroek should have insisted that they follow the buffalo immediately because he was now the owner. He was just expressing an opinion that they should wait for a few minutes before pursuing the buffalo.

[25] Landman J found the conduct of Dr Griesel reprehensible, especially that he had not forewarned Mr Haasbroek and Dr Van Wyk that he was not going to allow them to pursue the buffalo immediately after darting. Although he described Dr Griesel’s conduct as being unfair and tantamount to a repudiation of the contract, which is not the correct legal approach in the circumstances, it is evident from the evidence presented that Dr Griesel, by not immediately pursuing the buffalo, to a great extent contributed to the death of the buffalo. He was the driver in control of the Land Rover in his Game Reserve. His attitude is that he was not concerned as he was not the owner of the buffalo. The impression created is that he did not care about the consequences of his conduct.

[26] I agree with the finding by Landman J, that the risk to the damage of the buffalo in the circumstances, did not pass to the Mr Haasbroek as the purchaser.

Was the Court a quo entitled to raise the question of risk?

[27] The appellants submit that Landman J was wrong in mero motu raising the issue of interference with the darting process by Dr Griesel, which fault on his part resulted in the risk not passing to Mr Haasbroek as the purchaser.

[28] Landman J raised this issue after hearing the evidence of both parties in relation to what transpired during the darting process. Parties testified and extensively dealt with the interference by Dr Griesel with the darting process, which had a bearing on the issue of the passing of the risk of death or loss of the buffalo. Counsel were afforded an opportunity to make submissions on the issue before a finding was made in that regard.

[29] It is a well-known principle of our law that the court may raise a point of law mero motu at any time and decide a matter on the basis of that point if by so doing would not involve any unfairness to any of the parties. This principle was articulated in CUSA v Tao Ying Metal Industries and Others[9] that:

“Where the point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court was entitled mero motu to raise the issue of the Commissioner’s jurisdiction and require arguments.” (Footnotes omitted)

[30] I am of the view that the appellants should be non-suited. In the result, for the above reasons, the appeal should fail.

Order

[31] The following order is made.

The appeal is dismissed with costs, such costs shall include the costs of the application for leave to appeal in the Supreme Court of Appeal.

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION

I agree

SAMKELO GURA

JUDGE OF THE HIGH COURT

T J DJAJE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING: 09 OCTOBER 2015

DATE OF JUDGMENT: 10 MARCH 2016

COUNSEL FOR THE APPELLANTS: ADV MARITZ SC

COUNSEL FOR THE RESPONDENTS: ADV BERGENTUIN SC with ADV KORF

ATTORNEYS FOR THE APPELLANTS: MAREE & MAREE ATTORNEYS

ATTORNEYS FOR THE RESPONDENTS: VAN ROOYEN TLHAPI & WESSELS INC.

[1] Regulation 20 of the Animal Disease Regulations, Promulgated in terms of section 31of Animal Diseases Act 35 of 1984 read with the Disease Risk Management Directive for Buffalo of South Africa (para 3)

[2] 1986 (2) SA 555 (A) at 574 B-C

[3] 1994 (3) SA 101 (A) at 107 C-D

[4] [1991] ZASCA 20; 1991 (2) SA 840 (A)

[5] 2010 (4) SA 200 (SCA) at para [9]; see also Kootbodien and Another v Mitchell”s Plain Electrical Plumbing and Building CC and Others 2011 (4) SA 624 (WCC) at para [44]; BCPlant Hire CC t/a B C Carriers v Grencor SA (Pty) Ltd 2004 (4) SA 550 CPD at para 41

[6] 1982 (1) SA 21 (A) at para [9]

[7] 1954 (2) SA 571 (TPD); Gengar v Pathur 1977 (1) SA 826 D & CU) at 830A; and Mulder v Van Eyk 1984 (4) SA 204 (A) at 204 (A) at 207 C-F

[8] 2001 (3) SA 1278 (SCA) at para 13

[9] 2009(2) SA 204(CC); 2009(1) BCLR 1 (CC) at para 68; See also Nedbank Ltd v Mendelow and Another NNO 2013 SA BOSCA at 136 F-G.