Bayer South Africa (Pty) Ltd v Frost

• Jurisdiction: South Africa
• Judge: Corbett CJ, Hefer JA, Kumleben JA, Friedman JA and Preiss AJA
• Judgment Date: 15 August 1991
• Hearing Date: 13 May 1991
• Court: Appellate Division

I Corbett CJ:

During the period relevant to these proceedings the respondent, Mr Hamilton Hylton Frost, was the lessee of three farms in the Villiersdorp district known as Jasonskloof, Ratelsfontein and Kykuit The farms Jasonskloof and Ratelsfontein were registered in the name of a private company in which the respondent and his wife held all the shares; while Kykuit belonged to respondent's son, Mr William Peter J Frost

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A ('Frost Jnr'). The day-to-day management of the farms was entrusted by respondent, who lived at Kuilsriver, to Frost Jnr and Mr Lodewyk la Grange. La Grange looked after Jasonskloof and Ratelsfontein and Frost Jnr managed Kykuit. Respondent, nevertheless, took an active part in guiding and supervising the farming operations and each Wednesday would B travel to Villiersdorp in order to meet with Frost Jnr and La Grange on one or other of the farms. At these meetings the farming activities would be thoroughly discussed and decisions taken as to future action and the running of the farms generally. Nothing was done on the farms without respondent's knowledge and approval.

This case is concerned particularly with the farm Jasonskloof. The C property is 218 hectares in extent. It has its own water supply and a number of storage dams are located on the farm. Portion of the farm consists of cultivated lands under irrigation. Some of these are laid out as vineyards; others are used for the raising of cash crops such as wheat and onions (for convenience I shall refer to the latter as 'the D other lands'). Viewed on plan, all these lands present a patchwork. The lands differ greatly in size, but are mostly relatively small. There are eight separate vineyards and six other lands. The vineyards and the other lands are intermingled and in some instances lie adjacent, or virtually adjacent, to one another. In evidence the Afrikaans term 'lappiesgrond' was aptly used to describe the general lay-out of the lands. E

The proper maintenance of a vineyard requires that the weeds which grow between the vines should as far as possible be eliminated. This is undertaken every year during the months of July/August/September. In earlier days weed elimination was done partly by hand and partly by using a disc plough, but more recently farmers have converted to the use F of chemical herbicides. Respondent did so in 1980. The herbicides are applied before the budding of the vines. The poison consequently kills the weeds but has no effect upon the vines. From the start respondent applied the herbicide by means of an apparatus consisting of a boom, fitted with nozzles, attached to the front of a tractor and connected by a pipe to a tank containing the herbicide attached to the back of the G tractor. The tractor moved through the vineyards and the herbicide was sprayed downwards by means of the boom from about knee-height. The herbicide used was a mixture of Reglone and Gramaxone, produced by a manufacturer referred to in the evidence as 'FBC'. The time taken for the application of herbicide to the vineyards on all three farms by this H method was approximately one month. This period included days when the winter rains rendered the vineyards, or some of them, too wet for the tractor to operate.

In 1985, in circumstances which I shall describe in more detail later, respondent decided to change to a new herbicide marketed by the appellant and known as 'Sting', and also to have the herbicide sprayed I onto his vineyards from the air by means of a helicopter. This was done on 17 August 1985. In the course of this operation (this is common cause) certain amounts of Sting came into contact with onions and wheat growing on the other lands on the farm Jasonskloof and severely damaged these crops. The resultant damages have been quantified, by agreement, J in the sum of R55 000.

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A Some time thereafter respondent instituted an action against appellant in the Cape Provincial Division, claiming damages in respect of the loss caused to his crops by the Sting herbicide. Four different (alternative) causes of action were pleaded, one of which was that the respondent had been induced to use Sting on his vineyards, applied from the air by helicopter, by an unlawful and negligent misstatement made by certain of B appellant's employees, acting as appellant's authorised representatives. The matter came to trial before Hodes AJ, who found for the respondent on this cause of action. He gave judgment in the agreed sum of R55 000 and granted certain ancillary relief, including interest and costs of suit. With leave from the trial Judge appellant now appeals to this Court against the whole of the judgment and the orders for the payment C of damages, interest and costs.

Much of the argument before us focussed on the other alternative causes of action, but because of the view which I take of the matter it is not necessary to discuss them: I shall concentrate on that based on negligent misstatement. In this regard respondent pleaded that during D August 1985 respondent, duly represented by La Grange, and appellant, duly represented by one P de Wet, concluded an oral agreement in terms of which (i) appellant sold a systemic herbicide known as Sting to the respondent for the purpose of spraying all the vineyards on the farms E Jasonskloof, Ratelfontein and Kykuit; (ii) appellant undertook to make all the arrangements in order to apply the Sting from the air by means of a helicopter; (iii) appellant undertook to exercise the necessary supervision and control over the mixing and application of the Sting in order, inter alia, to ensure that cash crops on other lands were not damaged; and (iv) respondent accepted responsibility for the purchase price of the Sting, as well as the reasonable cost of its application, F payment thereof to be made by the debiting of respondent's account with the local agricultural co-operative society. (In the event the total cost of the Sting supplied appears to have been about R3 500.)

Respondent went on to plead (reading para 6 of the particulars of G claim together with further particulars given) that during the negotiations leading up to the conclusion of this contract appellant's duly authorised representatives, De Wet and a Mr H du Toit, acting in the course of their employment by appellant and in order to induce respondent to enter into the contract, represented to La Grange and Frost Jnr (both acting on behalf of the respondent) that Sting was H suitable to be applied from the air by means of a helicopter and that this could be done without causing damage to cash crops on adjacent lands. In particular (and without derogating from the aforegoing) appellant's duly authorised representative, Du Toit, introduced Sting to farmers, including respondent's authorised representative, La Grange, at a farmers' meeting held at the Brandvlei Kelders, Worcester, on 30 June I 1985 by:

(a)

representing that the best method of applying Sting was from a helicopter;

(b)

representing that if Sting was so applied there would be a clear cut-off line ('afsnylyn') which would prevent adjacent crops being damaged by this method of application and that, although J this

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A cut-off line would not be a straight line, it would be not more than three to five metres from the edge of the vineyard being sprayed;

(c)

representing that appellant would arrange everything with regard to such application; and

(d)

failing to indicate any risk of damage to adjacent crops which could arise from application by helicopter, thereby representing B that there was no such risk.

In this way appellant's representative induced in respondent the reasonable expectation that appellant was able to, and in fact would, take the necessary steps to ensure that adjacent cash crops outside the cut-off line would not be damaged if Sting were applied by helicopter.

C By reason of the aforegoing, so the pleading proceeded, appellant was under a legal duty to ensure that these representations were correct and/or feasible; and respondent was induced to apply the Sting purchased by him by means of a helicopter, something he would not otherwise have done. These representations were, however, not correct and/or feasible and they were a direct and/or foreseeable cause of the damage suffered D by the respondent, which damage arose because appellant, in breach of the aforesaid legal duty, unlawfully and negligently made the aforesaid representations without ensuring that they were in fact correct and/or feasible. In the premises the appellant was legally liable to compensate respondent for the loss thus suffered by him.

E In its plea appellant made common cause with respondent as to the conclusion of a contract and the terms thereof, save that appellant denied and put in issue respondent's averment that it was a term of the contract that appellant would exercise supervision and control over the way in which the Sting herbicide was to be applied, either to ensure F that cash crops on adjoining lands were not damaged or for any reason at all. As to the alleged representations and their consequences, appellant pleaded a total denial; and, in the alternative, that in the event of respondent proving all the facts pleaded by it in regard to this alleged cause of action, appellant would still not be liable in law to compensate respondent for its loss.

The issues raised are thus both factual and legal. I shall commence by G dealing with the question of law. The decision of this Court in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) established unequivocally that our law recognises a delictual action for damages based upon a negligent misstatement which causes purely economic loss, ie as opposed to physical injury to person or property. In H delivering the judgment of the Court, Rumpff CJ made it...