Bester v Van Niekerk

• Jurisdiction: South Africa
• Judge: Schreiner JA, Beyers JA, Malan AJA, Botha AJA and Holmes AJA
• Judgment Date: 29 March 1960
• Hearing Date: 18 March 1960
• Court: Appellate Division

Holmes, A.J.A.:

In the Eastern Cape Division the present respondent successfully sued the appellant and one Maurice Carr jointly and severally for £2,516 5s. 2d. with interest at 6 per cent from 1st August, 1957, to date of payment, and costs. The said amount was claimed as being

Holmes AJA

the balance of the price of £5,067 in respect of 182 head of cattle said to have been sold and delivered by the respondent to the appellant and Carr on 16th March, 1957.

According to the declaration and further particulars, the basis of the claim for joint and several liability was that the latter was implied A from the facts, inter alia, that the appellant informed the respondent, during the negotiations, that he would look for a partner, that thereafter the appellant and Carr inspected and bought the cattle and, still acting in concert, asked for time in which to pay the price, and made it clear that they were acting together in a joint venture. I pause B here to say that Mr. Addleson, for the appellant, criticised this pleading as affording too slender a basis for joint and several liability. However that may be, the relationship between the appellant and Carr was fully canvassed in evidence, to which I shall refer later.

The appellant in his plea denied that he was a party to the sale or that C he was liable for the price, either jointly and severally or at all. He averred that, to the knowledge of the respondent, Carr was sole purchaser.

Carr in his plea admitted that he and the appellant purchased the cattle. But he averred that the liability was joint, and not joint and D several. Hence he admitted liability for half the amount claimed by the respondent. Later however Carr withdrew his defence and he gave evidence for the respondent to the effect that he and the appellant bought the cattle as a joint venture, with a view to making and sharing a profit on a re-sale.

At the trial, the issues were (a) whether the appellant was a party to the sale and (b) whether the defendants' liability was joint and E several. The trial Judge found in favour of the plaintiff (now respondent) on both these issues. The appellant attacks both these findings. I shall deal first with the question whether the appellant was a party to the sale.

The respondent gave evidence at the trial. He is a 64-year-old farmer F and general dealer in the Lusikisiki district. He had long known and often visited the appellant, who is a farmer in the Komgha district. It is common cause that on one of these visits, during March, 1957, they discussed the question of the appellant buying some oxen from the respondent. The latter's version is that the appellant said that the transaction would be too big for him to handle alone, and that he would look for a 'maat'. The appellant's version is that he told the G respondent at the outset that he was not interested, but that he might be able to introduce a buyer from some cattle-selling organisation. It is common cause that some days later the appellant and Carr (who is a partner in a garage at Komgha and is an agent for a company handling the H sale of livestock) met the respondent in Kokstad and proceeded to two of the respondent's farms. The visitors inspected the oxen and 182 were selected. The price was agreed at £5,067, of which £2,567 was to be paid by 30th April, and the balance by 31st July, 1957. The respondent says that the appellant took an active part in the discussions, and that the sale was to him and Carr, and that the date for delivery was to be fixed by them. Thereafter the party returned to Kokstad. There the respondent asked for some record of the prices, and Carr wrote a few lines, to which I shall refer later. About 4th April, 1957, the respondent

Holmes AJA

delivered the cattle to the appellant and Carr at Umtata. The respondent said that he then asked for a letter reflecting the number of cattle delivered, and the prices and terms, and that Carr typed a letter. I shall refer to it later. The cattle were railed to Komgha. There they A were grazed on the commonage for a few days. Thereafter they were sold, unhappily at a grievous loss, at various sales. Only £2,550 14s. 10d. was paid to the respondent.

The factors which led the trial Judge to hold that the appellant was a party to the sale may be summarised as follows:

1.

The respondent said so. He created a very favourable impression as B a witness. Although his memory did not appear to be completely reliable on some details, his evidence was accepted on the salient points.

2.

The appellant accompanied Carr to the respondent's farm where the sale was concluded.

3.

The appellant was present at Umtata when the cattle were delivered.

4.

C The appellant was present at Komgha when most of the cattle arrived by train from Umtata.

5.

One Petzer, a checker on the railways at Komgha, said that the appellant (who is his brother-in-law) was occupied with the D offloading of the cattle there, and that he only saw Carr there at a later stage.

6.

Petzer, on seeing the appellant untrucking the cattle at Komgha, entered into conversation with him about them. The appellant told him that he had bought them from Oom Gert (meaning the respondent). The learned Judge accepted the evidence of Petzer, who made a good impression as a witness.

7.

E One Crous, the municipal overseer at Komgha (also a brother-in-law of the appellant) noticed the cattle grazing on the commonage and saw the appellant there. Crous told the appellant that no permission had been granted for the grazing. The appellant replied: F 'Kyk, dit is ons osse; ry huis toe en sê niks.' The learned Judge accepted the evidence of Crous.

8.

All the cattle were sold by auction in the name of the appellant. He admitted that at one of the auctions, about mid-May when 30 oxen were sold, he alone attended the sale and made the necessary...