Bayer South Africa (Pty) Ltd and Another v Viljoen

• Jurisdiction: South Africa
• Citation: 1990 (2) SA 647 (A)

Bayer South Africa (Pty) Ltd and Another v Viljoen
1990 (2) SA 647 (A)

1990 (2) SA p647

Citation	1990 (2) SA 647 (A)
Court	Appellate Division
Judge	Joubert JA, Vivier JA, Milne JA, M T Steyn JA and Nicholas AJA
Heard	August 31, 1989; September 1, 1989
Judgment	September 28, 1989

Flynote : Sleutelwoorde B

Practice — Trial — Inspection in loco — Recording of Court's observations at — Should be done by means of a statement by Court with parties given an opportunity of agreeing with it or challenging it — Alternatively, necessary statement can be obtained from a witness C called, or recalled, after the inspection — Parties should be allowed to examine such witness in the usual way.

Negligence — Action for damages — Proof of negligence — Res ipsa loquitur — Damages claimed for losses suffered as a result of a product allegedly not having attribute it was represented to have — Semble: D Although there may be good policy reasons for allowing process of reasoning embodied in words 'res ipsa loquitur' to be applied to case where merchant/seller is sued on grounds of a defect in his product having caused damage provided facts are such as to give rise to an inference of negligence, it is not clear that the same considerations apply where the complaint is that the product did not have the attribute E it was represented to have.

Negligence — Action for damages — Claim for damages suffered as a result of a product allegedly not having the attributes it was represented to have by dealer therein and distributor thereof — Plaintiff proving that label of product could mean that it was suitable F for combating powdery mildew on vines (purpose for which plaintiff had purchased product) — But plaintiff failing to prove inaccuracy of representation or that he had used the product as directed by manufacturer on label and latter's representatives in the field — Negligence in making the statement on the label also not proved — Action dismissed. G

Headnote : Kopnota

The Court reaffirmed the following dictum in Kruger v Ludick1947 (3) SA 23 (A) at 31 as to the proper method of recording the observations of the Court at an inspection in loco: 'That may be done by means of a statement framed by the Court and intimated to the parties who should be given an opportunity of agreeing with it or challenging it, and, if they wish, of leading evidence to correct it. Another method, which is sometimes convenient, is for the Court to obtain the necessary statement H from a witness, who is called, or recalled, after the inspection has been made. In such a case, the parties should be allowed to examine the witness in the usual way.'

Semble: There may well be good reasons of policy for allowing the process of reasoning which is embodied in the words 'res ipsa loquitur ' to be applied to the case where a merchant/seller is being sued on the grounds of a defect in his product which has caused damage (provided, of I course, the facts are such as to give rise to an inference of negligence). It is not clear, however, that where the complaint is that the thing sold did not have the attribute it was represented to have, the same considerations apply as in the case where the product is 'unreasonably dangerous' or unsafe. If the same principles apply, res ipsa loquitur should only be applied where it is appropriate on the facts of the case.

The respondent had successfully sued the first appellant, a dealer in and distributor of, inter alia, fungicides, and the second appellant, J the seller of a particular fungicide

1990 (2) SA p648

A distributed by the first appellant, for damages arising our of damage to his crop of table grapes caused by an infestation of powdery mildew, it being alleged that the infestation was due to the lack of effectiveness of a fungicide distributed by the first appellant and sold by the second appellant to the respondent. In an appeal, the Court found that the label on the fungicide container could have been taken to mean that it was suitable for combating powdery mildew. The Court found, however, that the evidence made it clear that the respondent had failed to prove B that the representation made on the label of the product was incorrect (in fact there was considerable evidence to the effect that the fungicide did, in fact, control powdery mildew effectively). The Court also found that the respondent had not proved that he had used the fungicide as directed on the label of the product and by the first appellant's representative in the field. It was furthermore found that there was no evidence that any representation made by the first C appellant had been negligently made and that the res ipsa loquitur principle could not appropriately be applied to the case. In addition, the Court held that the respondent had failed to prove that he had been induced to use the fungicide by reason of the statement contained in the label of the product. The appeal was accordingly allowed and the award of damages made by the trial Court was set aside.

The decision in the Cape Provincial Division in Viljoen v Bayer South Africa (Pty) Ltd and Another reversed. D

Case Information

Appeal from a decision in the Cape Provincial Division (Burger J). Facts not material to this report have been omitted from the judgment of Milne JA.

L G Bowman (with him D J du Toit) for the first appellant referred to E the following authorities: Kroon v J L Clark Cotton Co Ltd1983 (2) SA 197 (E) at 210 - 12; Administrateur, Natal v Trust Bank van Afrika Bpk1979 (3) SA 824 (A); Administrator, Natal v Stanley Motors Ltd1960 (1) SA 690 (A) at 700E - 701B.

R S van Riet (with him W J Louw) for the second appellant referred to F the following authorities: Administrateur, Natal v Trust Bank van Afrika Bpk1979 (3) SA 824 (A) at 832 - 3; Joubert(ed) The Law of South Africa vol 24 para 78; Stocks & Stocks (Pty) Ltd v T J Daly & Sons (Pty) Ltd1979 (3) SA 754 (A) at 765F - G, 766A - G; Agricultural Supply Association v Olivier1952 (2) SA 661 (T); Hall-Thermo Tank Natal (Pty) Ltd v Hardman1968 (4) SA 818 (D) at 835B; Micor Shipping (Pty) Ltd v G Treger Golf & Sports (Pty) Ltd1977 (2) SA 709 (W) at 713B; AA Onderlinge Assuransie-Assosiasie Bpk v De Beer1982 (2) SA 603 (A) at 614H - 615B; De Wet and Another v President Versekeringsmaatskappy Bpk1978 (3) SA 495 (C) at 500E - G; Motor Vehicle Assurance Fund v Dubuzane1984 (1) SA 700 (A) at 706B - C; Heneke v Royal Ins Co Ltd1954 (4) SA 606 (A) H at 614F; Esso Standard SA (Pty) Ltd v Katz1981 (1) SA 964 (A) at 969G - 970H; Holmdene Brickworks Ltd v Roberts Construction Co Ltd1977 (3) SA 670 (A) at 682H - 683B; Dibley v Furter1951 (4) SA 73 (C) at 82D - E; Ornelas v Andrews Café and Another1980 (1) SA 378 (W) at 388H - 390D; OK Bazaars Ltd and Others v Stern and Ekermans1976 (2) SA 521 (C).

J van der Berg SC (with him W R E Duminy) for the respondent referred I to the following authorities: Herschel v Mrupe1954 (3) SA 464 (A) at 486G - 487B; Kruger v Coetzee1966 (2) SA 428 (A) at 430E - G; Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd1977 (3) SA 670 (A) at 686G - 687B; Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd1985 (1) SA 475 (A); Kern Trust (Edms) Bpk v Hurter1981 (3) SA 607 (C) at 614E - 616G; Ericsen v Germie Motors (Edms) Bpk1986 (4) SA 67 (A) J

1990 (2) SA p649

at 91F; Boberg The Law of Delict vol 1 (Juta, 1984) at 62 - 3; Administrateur, Natal v Trust Bank van Afrika Bpk A 1979 (3) SA 824 (A) at 832 in fin - 833B; Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd1978 (2) SA 794 (A) at 803F - 805G; Essa v Divaris1947 (1) SA 753 (A) at 766; Cairns (Pty) Ltd v Playdon & Co Ltd1948 (3) SA 99 (A) at 12; South African Railways and Harbours v Lyle B Shipping Co Ltd1958 (3) SA 416 (A) at 419B - F; Galloon v Modern Burglar Alarms (Pty) Ltd1973 (3) SA 647 (C) at 650 in fin - 651 in fin, 652F - 654B; Faure en 'n Ander v Joubert en 'n Ander NO1979 (4) SA 939 (A) at 947A - C; Atlantic Harvesters of Namibia (Pty) Ltd v Unterweser Reederei GmbH of Bremen1986 (4) SA 865 (C) at 874G - 875F; Christie The C Law of Contract in South Africa (Butterworths, 1981) at 194 - 6; Kerr The Principles of the Law of Contract 3rd ed (Butterworths) at 259 - 64; Agricultural Supply Association v Olivier1952 (2) SA 661 (T); Wijtenburg Holdings t/a Flaming Dry Cleaners v Bobroff1970 (4) SA 197 (T) at 206G; Esso Standard (SA) (Pty) Ltd v Katz1981 (1) SA 964 (A) at 969G - 970H.

Bowman in reply. D

Cur adv vult.

Postea (September 28).

Judgment

Milne JA:

E The respondent in this appeal was the plaintiff in the Court below. The first appellant, Bayer South Africa (Pty) Ltd ('Bayer'), was the defendant and the second appellant, WP (Co-Operative) Ltd ('WPK'), was a third party who became such in terms of Rule 13 of the Rules of Court. The plaintiff, a farmer in the Hex River Valley, successfully F sued Bayer and WPK in the Cape of Good Hope Provincial Division for damages arising out of blemishes and damage to his crop of table grapes caused by an infestation of powdery mildew (oidium tuckeri, poeieragtige skimmel, witroes, to which I shall refer as oidium or powdery mildew) during the 1983/84 season, it being alleged that this infestation was due to the lack of effectiveness of a fungicide, Bayleton, which the trial Court (Burger J) held had been distributed by Bayer to WPK and G sold by the latter to the plaintiff. The quantum of the plaintiff's damages was agreed during the trial in the sum of R111 589,05 and judgment was given in this amount against Bayer and WPK jointly and severally. They both appeal to this Court with leave of the Court a quo. The plaintiff originally sued Bayer alone, founding his action on breach H of contract and alleging sales of Bayleton by Bayer to him. Bayer filed a plea denying...