South Africa: High Courts - Gauteng Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: High Courts - Gauteng >> 2007 >> [2007] ZAGPHC 109

| Noteup | LawCite

Fantique Trade 675 CC v Eskom (14132/02) [2007] ZAGPHC 109 (20 June 2007)

Download original files

PDF format

RTF format


Not reportable

Delivered 20 June 2007


IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)


CASE NO: 14132/02



In the matter between:


FANTIQUE TRADE 675 CC Plaintiff



and




ESKOM Defendant



________________________________________________________________

JUDGMENT

________________________________________________________________


MURPHY J


1. The plaintiff, a close corporation, has instituted action against the defendant for damages in the amount of R1 902 927.37, together with interest a tempore morae arising out of damage it suffered as a result of the servants of the defendant cutting 72 Macadamia and 72 Avocado trees on the farm owned by it, being portion 12 of the farm Vergenoeg 177, Registration Division JT, Mpumalanga, in the district of Pilgrimsrest. There are currently 6000 Avocado trees and 5585 Macadamia trees on the farm.


2. The conduct of the defendant giving rise to the action occurred on 15 March 2002. At that time the orchards on the farm were in good condition and the trees were bearing fruit prior to the harvest. All the trees in question were planted prior to 23 August 1995, being the date of a relevant contract, referred to as “the way-leave agreement”.


3. The defendant is Eskom, an electricity supplier and distributor established under legislation.


4. The farm in question was previously owned by Mr WD Shackleton. On 30 October 1975 Shackleton entered into a contract with Eskom referred to as an agreement to grant way-leave. The agreement relates to overhead power lines. In terms of it Shackleton irrevocably granted to Eskom, on behalf of himself and his successors in title, the right to construct along a route agreed across his property an overhead power line for the distribution of electricity and the right to use and maintain the line. In that agreement it is recorded:


Should I decide to sell or otherwise dispose of my property on which the said power line is situated I shall use my best endeavors to advise Eskom thereof immediately so as to enable Eskom to obtain the signature of the purchaser to a similar form of agreement if Eskom so desires.”


5. The 1975 way-leave agreement also provided:


I agree that Eskom by means of its servants, agents or contractors shall at all times after the signature hereof have the right to enter upon my said property with the necessary vehicles and equipment for the purpose of erecting the poles and constructing the said power line and also for purpose of carrying out such inspection, maintenance and/or repairs of and to the said power line as Eskom may consider necessary. Eskom shall pay compensation for all damage caused by it, its contractors, and its or their servants on the said property done while erecting, laying, altering, repairing or removing any poles, towers, standards, wires, cables, pipes and other appliances used for the conveyance of electricity and also for personal injury to persons or any other damage to property caused directly or indirectly by the presence or use of the said appliances for the conveyance of electricity and not due to the wrongful act or neglect of such persons or the owner or other persons responsible for such property.”


6. Mr Peter Wood, the principal member of the plaintiff, who negotiated the sale of the farm to the plaintiff by Shackleton, testified that this way-leave agreement had never been given to him by Shackleton, nor had it at any time subsequently been brought to his attention. He testified that the way-leave agreement he accepted as applicable between the plaintiff and Eskom was one concluded between Eskom and Shackleton in August 1995. The plaintiff acquired the farm in 1999.


7. The 1995 way-leave agreement is in some respects different to the 1975 agreement. In it Shackleton binds himself as follows:


“Hereby on behalf of myself and my successors in title grant Eskom (established under the Electricity Act 1922), irrevocably and free of charge the right to erect an overhead power line together with the necessary poles, stays and anchors, on property situated along an agreed route as indicated on the attached drawing (see overleaf) and grant permission for Eskom or its representatives to enter the property at any time after this agreement has been signed with the necessary vehicles and equipment to erect the power line, including poles, stays and anchors as well as to operate, maintain, repair or replace any of Eskom’s equipment.”


8. Further in the agreement, Shackleton undertook:


“….not to plant trees in the vicinity of the power line so that the power line will not be damaged if the trees should fall or be chopped down. (Eskom shall have the right to prune trees which may hamper the safe operation of the power line after prior notification has been given to myself.)”


9. Clause 3(a) of the agreement also has relevance. It reads:


Eskom is liable and shall apply compensation for all damage caused by it or its representatives on the property in the execution of the rights granted in terms of this agreement, provided that such damage shall not be the result of any unlawful act of negligence by myself or the lessee or occupier of the property.”


10. In the light of Wood’s evidence, I am satisfied that the way-leave agreement applicable in this matter is the 1995 agreement. First of all, he testified that he had not seen the 1975 agreement nor does it appear that Shackleton used his best endeavors to advise Eskom of the plaintiff’s existence as a purchaser so as to enable Eskom to obtain the signature of the corporation to the agreement as is required in the 1975 way-leave agreement. Therefore the terms of that agreement cannot apply. In any event, it is probable that the 1995 was intended to novate the 1975 agreement, and Wood accepted that the plaintiff was bound by that agreement.


11. Not long after taking transfer of the farm on 1 October 1999, according to Wood, the plaintiff made several approaches to Eskom at Kiepersol to arrange a day or days when the power supply on the lines traversing the farm would be turned of in order to allow the plaintiff the opportunity to prune back some of the trees to ensure that they would cause no interference with the Eskom power lines. As appears from correspondence dated 28 March 2000 addressed by Wood to Mr Stoltz at Eskom, his intention was to cut back the main branches that may have interfered with the lines and then after harvesting the 2000 crop to further prune the trees and maintain them at a height that would not interfere with the power lines. Unfortunately, he was unable to secure a meeting and no arrangements were made by Eskom with the plaintiff to do the necessary.


12. On 15 March 2000, Mr Johan Botha, who testified on behalf of the defendant and is currently employed in the field services department of Eskom in Sabie, arrived at the farm accompanied by three labourers in order to give effect to an instruction he had received to cut certain trees which had been identified for pruning. It is common cause that on the day in question Wood was not present on the farm, being away on business, and that the plaintiff had not received any prior notification of Eskom’s intention to prune the trees. Botha and his three companions having only pangas with them were not possessed of any pruning shears. Botha testified that neither he nor his fellow employees had received any training in pruning, nor in the cutting of trees. He conceded that he had no knowledge at all of how to prune fruit trees, particularly Avocado and Macadamia nut trees.


13. From the descriptions provided by Botha in his testimony, as corroborated by Professor Holtzhausen, an expert horticulturalist called on behalf of the plaintiff, Botha and his men hacked and cut the Avocado trees and Macadamia trees in a manner which is inconsistent with the professional and scientific methods normally applied in the pruning of trees. They cut the trees down to a height between 500 mm to 1000 mm. In following the method they did, the defendant’s employees failed to underscore the bottom of the branches which they hacked off, with the result that the bark was stripped from the trees in a damaging manner with the result (as confirmed by Professor Holtzhausen) that the trees would not be able to regenerate themselves as they would otherwise have done had they been pruned. The uncontested evidence discloses that the trees have not regenerated themselves, are rotting, and have not been productive in an economically feasible way since. From an economic perspective, all 72 Avocado trees and 72 Macadamia trees have been lost to production.


14. On 28 March 2000, Wood addressed a letter to Stoltz at Eskom which reads as follows:

Dear Mr. Stoltz,


Mrs Wood and I would like to thank you for the time you afforded us on Monday the 20th March 2000, at your offices, to discuss the cutting of Avocado and Macadamia trees, on the farm ‘Vergenoeg’ on the 15th March 2000.


In confirmation of that meeting we would like to place on record with Escom the points that were brought to your notice.


1. From the 1st of October 1999, when we took transfer of the farm, we had made several approaches to your office to arrange a day or days when the power supply on the lines traversing our farm could be turned off. The objective of this being to allow us the opportunity to prune back the trees so that they caused no interference with the Escom Power Lines. Thereafter we were prepared, once the 2000 crop was removed, to further prune the trees and maintain them at a height that could no longer interfere with the Escom Power Supply. To date we have not held a meeting or made any firm arrangements regarding this matter.


2. Your work force arrived on the farm on Wednesday the 15th March 2000, and proceeded to hack down trees under three of the power lines on the farm, using pangas or axes and leaving the debris in the lands. We also pointed out at our meeting that we were not informed of this and we were not consulted in anyway and at no time did we give permission for our trees to be cut. The damage to these trees is extensive and they will take at least two seasons to return to full production.


3. The Farm Foreman, Mr Joseph Makutu, repeatedly asked the Team Supervisor not to cut the trees so heavily and even asked the Supervisor to phone my brother Mr Patrick Wood, which he did, and my brother asked him to leave the cutting until I returned to the farm for consultation. Your Supervisor saw fit to ignore this request and the requests of the Foreman. We pointed out to you that the uncooperative attitude and behavior of your supervisor towards our staff was out of line and unnecessary.


4. In addition to the damage to our trees, we brought to your notice the fact that your team of workmen saw fit to gain access to our home parking area, which they did by manually forcing the electrically operated gate open, causing damage to the gear mechanism. The gate no longer works and the property is now vulnerable to theft. It should be noted that the team had no right and no reason to enter the house area.


4. During the process of cutting the Avocado Trees behind our home, your Team managed to drop a large branch onto the electric security fence, causing two top wires to be broken.


5. During our meeting you confirmed that you would have the electric fence and the gate gear box repaired.


Please be advised that we reserve the right to claim all damages and resultants (sic) costs from Escom, which we have incurred or may incur as a result of the work carried out by Escom on this farm on the 15th March 2000.


At the time of writing this letter, no attempt has been made to repair our electric fence and gate.”


15. Wood testified that his at his meeting with Stoltz on 20 March 2000, Stoltz admitted that the incorrect method was used when the trees were cut. This fact is indisputable, not only by virtue of the evidence of Professor Holtzhausen, but also that of Botha himself, who, as I have said, confirmed that neither he nor his fellow employees had any training whatsoever with regard to the pruning and cutting of fruit trees.


16. Professor Holtzhausen’s evidence is of obvious relevance and offers a fuller account. He holds amongst various degrees a DSc(Agric) in horticultural science from the University of Pretoria. He has for more than 40 years been involved in horticulture and pomology. He has 56 scientific publications to his name and has attended numerous international and scientific conferences throughout the world. He has worked as Professor and Head of Department of Agricultural Sciences at the University of Pretoria, and is currently a consultant and a farmer. He owns a farm in the Nelspruit district and farms with Macadamia and other fruits. He presented his evidence in a clear, convincing and enthusiastic fashion with evident passion and deep knowledge of his subject matter. His undisputed evidence was that the cutting of the trees did not amount to pruning, but was a vandalistic approach with no consideration for the recuperation of the trees or the economic and financial interests of the farmer. The improper cutting of the trees, as I have said, caused damage to the bark of the trees, resulting in the rotting of the trees and unusual and unproductive subsequent growth of shoots that effectively rendered the trees totally uneconomical. He added that he was aware, as a farmer, that it was permissible for fruit farmers to plant trees under power lines and what was normally required was for the trees to be pruned in a manner that their tops did not reach the power lines and thus hamper the distribution of electricity.

17. Professor Holtzhausen reiterated that the correct approach to pruning is to underscore the branches before cutting them. This is a process whereby the joint of the shoots relative to the bark is cut by means of a saw in an upward motion so as to prevent the stripping of bark. This was most evidently not done on 15 March 2000 by the defendant’s employees. Where the bark is stripped in the manner done in this instance, the outcome invariably is that the bark will be unable to produce shoots and ultimately economically productive branches.


18. Professor Holtzhausen further emphasised that the purpose of pruning was to allow the sunlight into the tree to ensure the appropriate movement and production of carbohydrates necessary for the fruiting of the tree.


19. Professor Holtzhausen first visited the farm on 11 May 2005. In preparation for the trial he visited the farm again on 9 May 2007. His evidence was that seven years after the vandalistic pruning the Macadamia trees have not recuperated. He referred to photographic evidence which disclosed the core of the trees to be rotting and pointed to side shoots by which the trees themselves resort to repair the damage. However, a significant wind would be able to split the trees in two, right down to the roots. Professor Holtzhausen noted that seven years later the yield of the trees was less than 1 kilogram per tree, as opposed to an expected average yield of about 8 kilograms per tree. He thus advised the plaintiff to remove the trees and plant new trees.


20. As for the Avocado trees, he indicated that several of the trees were totally dead and the stumps had rotted away. These too showed vigorous side shoots and no crops. Here again, because of the total failure of production, he recommended that these trees be replaced.


21. Professor Holtzhausen’s evidence was not disputed in any significant way by the defendant. Nor was the evidence that the plaintiff attempted to mitigate its damages and to save the trees by whitewashing them and trimming and cutting the jagged edges left behind by the vandalistic cutting by means of pangas.


22. The defendant’s plea is to the effect that it had the right in terms of the way-leave agreement to prune the trees which hampered the safe operation of the power lines. It also contends that the plaintiff was in breach of the material term of the agreement that it would not plant trees in the vicinity of the power line so that the power line would not be damaged if the trees should fall down or be chopped down. It stated that the trees which were chopped down on 15 March were in the vicinity of the power line and as such had the potential to cause damage to the power line or to hamper the safe operation of it and thus the defendant was obliged and entitled to act in the manner in which it did.


23. In addition, the defendant pleaded that in the event that it was found that its representatives had caused damage to the plaintiffs property, then such damage was preceded by an unlawful act of negligence on the part of the plaintiff or its predecessor in that it had planted or caused trees to be planted in the vicinity of the power line and that the plaintiff was therefore precluded from claiming damages from the defendant in terms of clause 3 of the way-leave agreement.


24. I am of the view that the defences put up by the defendant cannot succeed.


25. The starting point is to recognise that Eskom did indeed have a right in terms of the way-leave agreement to prune trees which may hamper the safe operation of the power line. That right, however, may only be exercised after prior notification has been given to the owner of the farm. A vandalistic cutting (as opposed to pruning) of the trees without prior notification to the farmer, as is common cause in this instance, is prima facie wrongful conduct. Moreover, it cannot be denied that the cutting of the trees was done negligently, in the sense that the defendant ought to have foreseen that the cutting of the trees in the manner in which it was done would cause the plaintiff harm and that preventative steps to avoid that harm were neither considered nor taken.


26. The defendant’s justification, advanced in the hope of excluding the element of wrongfulness, was that the plaintiff had acted in breach of its undertaking not to plant trees in the vicinity of the power line. In my opinion, such justification is misplaced and premised upon an incorrect interpretation of the relevant clause. The undertaking by the plaintiff was not “to plant trees in the vicinity of the power line so that the power lines will not be damaged if the trees would fall or be chopped down”. The undertaking, therefore, is not to plant trees in the vicinity of the power line in such a way that in the event of them falling down or being chopped down they would damage the power line. What is contemplated is a situation where falling or chopped trees land on the power line with the resultant danger to others. That is not the situation with which we are concerned here.


27. As Professor Holtzhausen testified, it is common for fruit trees to be planted beneath the power line. In such circumstances Eskom has the right to prune such trees so as to prevent them hampering the safe operation of the power line. As already explained, that can be done only after prior notification to the owner. Obviously, the purpose of such prior notification is to afford the owner an opportunity to ensure that the pruning exercise is done in accordance with scientific methods. The plaintiff was not properly notified in this instance, and was denied the opportunity to be present on site to prevent any harm. Also, the exercise upon which Eskom embarked was by no stretch of the imagination an exercise in pruning.


28. The next leg of the defendant’s defence is that in terms of clause 3 of the way-leave agreement Eskom is not liable for any damage which is “the result of any unlawful act of negligence” by the plaintiff. The submission made is that by allowing the trees to grow to the height of the power line, the damage suffered by the plaintiff was a result of its own negligent action. The submission is that the plaintiff has engaged in an unlawful activity and should therefore be liable for all the consequences flowing from that activity irrespective of whether he acted negligently in respect of such consequences. Put slightly differently, and as argued by counsel for the defendant, but for the plaintiff’s negligence in allowing the trees to grow toward the power line, the damage the plaintiff sustained would not have happened. I agree with Mr du Preez, who appeared for the plaintiff, that the argument so made seeks to introduce the doctrine of versari in re illicita. I do not accept that such is the intention of the clause.


29. As I read it, the damage sought to be excluded by clause 3, is direct damage caused to the plaintiff’s property by its own unlawful negligence. It does not contemplate indirect damages such as that caused by Botha and his team. For instance, were the trees to grow to the power line and thereby cause a short setting the orchard on fire, then Eskom would be indemnified against such damage. It is inconceivable, in light of the terms of the way-leave agreement, that the plaintiff, on the assumption that he was a wrongdoer, would have foreseen the damage that actually occurred at the instance of the defendant’s team. The arrival of Botha and his labourers was a novus causa interveniens which broke the causal chain started by any wrongful or negligent conduct on the part of the plaintiff in allowing the trees to grow to the extent that they did. The evidence furthermore, while pointing to the fact that the trees were approaching the power lines in an unacceptable way, does not establish that they had in fact reached a point where they were hampering the safe operation of the power line. But again, even if they did, the right of the defendant was to prune them after prior notification. There was no justification for chopping them down completely, using a vandalistic approach. In short, there was not a sufficiently close connection between the plaintiff’s conduct in allowing the trees to grow to the extent that they did and the unlawful consequence, being the damage inflicted upon the trees by the defendant.


30. In the premises I am persuaded that the defendant’s actions were wrongful and at the very least negligent, and that such wrongful negligent conduct caused harm to the plaintiff, entitling it to claim damages.


31. The plaintiff called Dr Willem Lubbe, who testified as an expert to determine the quantum of the plaintiff’s damages. Dr Lubbe has a PhD in agricultural economics and in statistics from the University of Pretoria and has testified in more than 400 agricultural and business related legal disputes as an expert witness. His uncontested testimony is that he inspected the orchards and damaged trees on 9 May 2007 and had access to the plaintiff’s yields and prices as well as his own data base created over the years relating to the prices and costs incurred in Macadamia and Avocado farming.


32. He set out his methodology in determining the quantum of damages. The basic principle, he testified, is that the plaintiff must be placed in the same position as before the trees were damaged and this then implied that the 144 damaged trees should be replaced. The method and parameters used to calculate the losses are that the gross margin of the damaged trees must be determined as if they were not damaged. This in turn necessitated that the same number of young trees should be established to replace the damaged trees. The damaged trees were 10 years old when damaged and the established trees will then take 10 years in future to provide the plaintiff with 10 year old trees and thus put him in the same position as before. The gross margins are then determined for the trees as if there were no damages (inflated by the consumer price index inflation rate and then discounted at 10% to values for the year 2000). The establishment costs for the young trees are determined as well as the gross margins for 11 years (to replace the damaged trees). The gross margin per tree (as if not damaged) minus the gross margin of the established trees is thus the quantum. These figures are discounted to 2000 values, and then afterwards converted to 2007 values. The losses from March 2000 to May 2007 are the accrued losses, while the future losses are from 2008 and subsequent years. Using these methods, Dr Lubbe arrived at a figure of R1 516, 599.56 for the Macadamias and R386 327.84 for the Avocados, thus a total quantum of damages in the amount of R1,973,763.37. The defendant did not dispute the plaintiff’s evidence and did not present any evidence rebutting this quantum.


33. There is no reason why Dr Lubbe’s evidence should be rejected because he quite evidently possesses sufficient skill, training and experience to assist the court as an expert witness to establish the extent and quantum of the damages.

34. In the result, having rejected the defendant’s plea of justification, the plaintiff is entitled to succeed in the action.


35. Interest on the damages should run in terms of the provisions of the Prescribed Rate of Interest Act 55 of 1975 as from the date of the issue of summons, being 29 May 2002.


36 In the premises the following order is issued:


i) The defendant is ordered to pay the plaintiff an amount of R1 973 763.37 together with interest at a rate of 15.5% per annum as from 29 May 2002 until date of payment.


ii) The defendant is ordered to pay the costs of suit.





JR MURPHY

JUDGE OF THE HIGH COURT



Date Heard: 25,29 and 30 May 2007

For the Plaintiff: Adv N du Preez, Pretoria

Instructed By: Tom Dreyer Attorneys c/o Ross & Jacobsz Inc., Pretoria

For the Defendant: Adv R Thulare, Pretoria

Instructed By: Ledwaba Mazwai Attorneys, Pretoria