South Africa: Supreme Court of Appeal

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

CASE NO. 45/89 In the matter between:

JAN PAULUS BEAN APPELLANT

AND
APELDOORN LIGHTHOUSE NET & TWINE (Pty) LTD RESPONDENT

CORAM: HOEXTER, VIVIER et GOLDSTONE JJA

DATE HEARD: Thursday 28 February 1991

Transcript of extempore judgment delivered by Goldstone JA and concurred in by Hoexter and Vivier JJA on Thursday 28 February 1991.

1

JUDGMENT

GOLDSTONE, JA:

The respondent, Apeldoorn Lighthouse Net and Twine (Pty) Limited ("Alnet") instituted an action against the appellant, Johannes Paulus Bean ("Bean"). The trial was heard by Esselen J sitting in the Transvaal Provincial Division. Alnet claimed payment of damages arising from the delivery by Bean of allegedly defective industrial knitting machines. The learned Judge a quo held in favour of Alnet and ordered Bean to pay to it the amount of R23 478,97, interest thereon at the rate of 20% per annum from date of judgment to date of payment and costs. When it opposed Bean's application for leave to appeal,

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Alnet conceded that interest should have been allowed at the rate
of 12% per annum and to that extent abandoned the higher rate awarded in the judgment. In the event, leave to appeal was refused by Esselen J and Bean was ordered to pay the costs of the application therefor. An application to the Chief justice for leave to appeal succeeded. The costs of the application as well as the costs of the application for leave to appeal in the Court a quo were reserved for decision by this Court.
It was common cause between the parties that on 24 July 1985, at the farm of Bean in White River, they entered into an oral agreement relating to the purchase by Alnet from Bean of six second-hand Karl Mayer industrial knitting machines. The purchase price was R9 000,00 for each machine, ie a total consideration of R54 000,00. Alnet alleged in its particulars of claim that it was an express or alternatively an implied term of the agreement that the machines, upon delivery thereof, "would be complete". It alleged further that in breach of that term of the agreement, four of the machines were without gearboxes and

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that a fifth machine was delivered with a defective gearbox.

According to the plea filed on behalf of Bean, the sale related to the frames ("raamwerk") of six Karl Mayer knitting machines together with a large quantity of.loose and damaged parts which were in a number of heaps on Bean's farm and all of which was sold "voetstoots" as they were. It was specifically denied that the agreement related to six "complete" machines. At the trial it was not in issue that four of the machines were without gearboxes and that a fifth was delivered with a defective gearbox.

Alnet calculated its damages on the basis of the costs of repairing the defective gearbox and purchasing four new gearboxes from Karl Mayer in Germany. The cost of the former was agreed in the amount of Rl 562,60. It was further agreed that the cost of four new gearboxes was R26 119,49. Esselen J considered that the last-mentioned amount should be reduced by 20% because in terms of the agreement Alnet was entitled to second-hand and not new gearboxes. On the basis of those

4 amounts the quantum of Alnet's damages was assessed in the

aforementioned amount of R23 478,97.

On appeal, counsel for Bean raised three issues:

1.	That Alnet did not establish the terms of the agreement alleged by it;
2.	That Alnet failed properly to establish the quantum of its damages; and
3.	That Esselen J conducted the trial in a fashion prejudicial to Bean and on that account the entire proceedings should be set aside.

The learned Judge a quo decided the first issue, one of fact in favour of the respondent. He did so having regard to both the demeanour of the witnesses and the probabilities. In my opinion there is no basis for criticising the assessment by Esselen J of the credibility of the respective witnesses. The probabilities were clearly in favour of the respondent. In

5 particular I would refer to the following factors:

1.	If the purchase related to six frames and an unspecified number and type of parts, the parties would not have expressly agreed to a specified number of "machines".
2.	There is much to be said for the point made during his evidence by Rose-Innes that at all times the subject-matter of his negotiations with Bean related to complete knitting machines. Whereas initially they were to be assembled and commissioned by Bean, the agreement placed the responsibility upon Alnet.
3.	The written documents of both Bean and Alnet, i e the purchase order and ihvoice, both refer to a specific number of "machines". No reference is made to the purchase of frames and parts. These documents, therefore, afford strong support for the version of Alnet.

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4. It is unlikely that Alnet would have purchased loose parts
without any knowledge of what they were. It was common
cause that neither Rose-Innes nor Clauss had any knowledge of
the contents of the piles of loose parts that they saw on
Beans' farm in May 1985. Furthermore those piles would
hardly have been described as "six machines".

5. It is unlikely that Bean would have looked for and delivered
the additional gearbox casing if he was under no obligation
to do so. Indeed, according to the witnesses of Alnet he
had expressly accepted such an obligation.

6. It is unlikely that Bean, faced with repeated written
demands for the gearboxes, would not have recorded his
version if, indeed, he was not obliged to supply the gear-
boxes. Furthermore, if Bean, as alleged by him, had
repeatedly denied liability orally, it is unlikely that in

7 its letter, Alnet would not have referred thereto. It did

not do so.

With regard to the guantum of damages, there is also no reason to

interfere with the finding of the Court a guo. If anything the

appellant was treated generously by the reduction by 20% of the

expenditure incurred by the respondent importing four new gear-

boxes.

Finally, with regard to the manner in which the trial

was conducted, I have given my careful consideration to the

submissions made on behalf of the appellant. Although the

learned trial Judge played an active role in the proceedings, in
my judgment, he did not thereby prejudice either of the parties
and in doing so he did not display any bias one way or the other.

There is no basis for setting aside proceedings on this ground.
8 The appeal is dismissed with costs.

R J GOLDSTONE