Hamman v Moolman

• Jurisdiction: South Africa
• Citation: 1968 (4) SA 340 (A)

Hamman v Moolman
1968 (4) SA 340 (A)

1968 (4) SA p340

Citation	1968 (4) SA 340 (A)
Court	Appellate Division
Judge	Steyn CJ, Ogilvie Thompson JA, Wessels JA, Potgieter JA and Bekker AJA
Heard	November 3, 1968
Judgment	November 30, 1968

Flynote : Sleutelwoorde

Practice — Trial — Intervention by trial Judge — Limits to be observed — Negligence — False representations inducing contract — Whether actionable.

Headnote : Kopnota

B The limits which a Judge should observe in intervening in the conduct of criminal proceedings over which he presides apply with even greater force to the conduct of proceedings in a civil trial.

In an action by a purchaser of certain land for damages arising out of certain representations as to the extent of the land sold the plaintiff C alleged a representation made 'recklessly careless as to whether it was true or false', alternatively that the representation had been made negligently. The trial Court having granted damages on the main claim, on appeal,

Held, on the facts, that the purchaser had failed to establish his claim upon the main or the alternative ground relied upon.

The question whether damages are recoverable in respect of negligent representations made inducing a contract of sale discussed but not decided.

D The decision of the Cape Provincial Division in Moolman v Hamman, reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (BEYERS, J.P.).

The action was one by the purchaser of certain land for damages arising out of certain representations alleged to have been made by the seller E and inducing the contract. The declaration, after referring to the execution of the written contract of sale and the description of the land sold, alleged in para. 4 that prior to the signing of the deed of sale the defendant represented to the plaintiff that the area of the immovable property sold included a certain swimming pool, barbecue and garden; (in para. 5) that the representations were false in that the F area of the said immovable property did not include the said swimming pool, barbecue and a large portion of the garden. Paras. 6 to 8 of the declaration were as follows:

6.

Defendant made the said representation recklessly, careless as to whether it was true or false; alternatively if defendant was not reckless as aforesaid, then the plaintiff avers:

(i)

G At the time of making such representation the defendant knew that the plaintiff was a prospective purchaser of the said property; that the plaintiff had no knowledge of the boundaries of the said property and that the plaintiff would act and/or rely upon the said representation.

(ii)

In the premises the defendant owed a duty of care to the plaintiff not to misrepresent to him the boundaries of the said property.

(iii)

The defendant, in breach of such duty, made the representation negligently.

7.

H The said representation was material and was made with the intention of inducing the plaintiff to act thereon and the plaintiff who relied upon the truth of the said representation did so act upon it and entered into the said agreement.

8.

On discovering the falsity of the said representation plaintiff cancelled the said sale, transferred the property to defendant and defendant repaid the said purchase price to plaintiff.

In answer to a request for particulars 'of the alleged recklessness and negligence' plaintiff replied:

'(i)

defendant was reckless as set out in para. 6 of the declaration;

1968 (4) SA p341

(ii)

defendant was negligent in that he failed either by himself or through his agent with due care to ascertain where the true boundary was located.'

In his plea the defendant alleged that the deed of sale did not correctly set out the oral agreement arrived at between the parties; that the deed of sale was prepared by plaintiff's attorneys; that the A verbal agreement was that the land sold was a portion of the land belonging to the seller such portion to include the dwelling, swimming pool and barbecue; that during the course of negotiations both defendant and his wife had stated that they did not know where the sub-divisional boundary line was and that the defendant's wife had expressed a bona fide opinion that it ran somewhere near a certain mole-trench. Had that B been correct the swimming pool, barbecue and garden would have formed part of the land described in the deed of sale.

The trial Judge awarded damages and the defendant appealed.

W. J. Vos, S.C., for the appellant. The learned Judge a quo descended C into the arena and had his view clouded by the dust of conflict. See Jones v National Coal Board, (1957) 2 All E.R. 155 at p. 159A - H; Halsbury, 3rd ed., vol. 10, sec. 773; vol. 30, sec. 889; R v Roopsingh, 1956 (4) SA 509 at pp. 513G - 514B. The learned Judge's impression of the witnesses cannot be reliable, and his findings as to D credibility must be unconvincing. See S v Wood, 1964 (3) SA 103 at pp. 104B - 105H; S v Adriantos, 1965 (3) SA 436 at p. 438C - F; S v Kellner, 1963 (2) SA 435. Fraud exists if a person affirms a fact while he has no knowledge whether it is true, and is reckless hether it is true or false. The fraud lies therein that he represents that he believes whereas he does not believe. If he does believe, there is no E fraud, no matter how carelessly he arrived at that belief. See Angus v Clifford, (1891) 2 Ch. 449 at pp. 468 - 9, 470, 471, 472, 477 - 478; Derry v Peek, 14 App. cases 337; Tait v Wicht, 7 S.C. 158 at pp. 166 - 167; Wessels, Contract, secs. 1109, 1111, 1110, note 6; Voet, 4.3.1; Grotius, 48.7; Van Leeuwen, Roman Dutch Law, 4.2.2 note (c); van der F Linden, Institutes, Ch. 14.2. If a defendant gives an honest answer, he cannot be guilty of fraud, no matter how blunderingly he arrived at his conclusion. See Dickson and Co v Levy, 11 S.C. 33 at p. 36; Vereeniging Consolidated Mills v Newman, 1958 (2) SA 20 at pp. 23G - 24E; Ruto Flour Mills v Adelson, 1959 (4) SA 120 at p. 122G - H; Akenheilm v de Mare, (1959) 3 All E.R. 485 at p. 503C - D; R. v. G Meyers, 1948 (1) SA 375 at pp. 382, 383, 384. The law in regard to a negligent misrepresentation inducing a contract appears to be as follows: such a misrepresentation no doubt constitutes a ground for setting the contract aside. It does not, however, constitute a ground for recovering damages. In our law damages are only recoverable if the H misrepresentation inducing a contract was fraudulent. See Norman on Sale (Belcher's ed.) pp. 66 - 69; McKerron, Delict, 6th ed., p. 210; Wille, Principles of SA Law, 6th ed., pp. 323, 324; Wessels, Contract, secs. 1105, 1109; De Wet & Yeats, Kontraktereg, 3rd ed., pp. 40, 234; MacKeurtan, Sale, 2nd ed., pp. 131 - 2. It would appear from Herschel v Mrupe, 1954 (3) SA 464, that it is undecided whether there is liability in our law for a negligent statement. See van der Merwe & Olivier, Die Onregmatige Daad in SA Reg, pp. 181 - 192; Western Alarm System v Coini, 1944 CPD 271 at p. 277; Perlman

1968 (4) SA p342

v. Zoutendyk, 1934 CPD 151. There can be no liability for a negligent statement in our law; alternatively, liability cannot arise on grounds of a negligent misrepresentation which induces a contract.

A A. P. Burger, S.C. (with him H. C. Nel), for the respondent: Ten opsigte van die regsposisie is daar twee moontlike gronde vir aanspreeklikheid: (1) aanspreeklikheid vir skade omrede van (a) bedrieglike, of (b) roekelose wanvoorstelling, of (2) nalatige wanvoorstelling. Die Verhoorhof het die aanspreeklikheid erken op die basis van 'n roekelose wanvoorstelling. Skadeloosstelling vir 'n B bedrieglike wanvoorstelling word algemeen erken, dit word egter beleefd betoog dat 'n roekelose wanvoorstelling op dieselfde voet as 'n bedrieglike wanvoorstelling staan. Sien MacKeurtan, supra, 3de uitg., bl. 119; Narunsky v Michel, 1903 T.H., 351; Digesta, 19.1.13.3; Koenig v Johnson, 1935 AD op bl. 271; 'Causation and Legal Responsibility,' S.A.L.J., Mei 1945, bl. 131. Dit word betoog dat appellant roekeloos was C toe hy die wanvoorstelling gemaak het. Indien die Hof sou vind dat die appellant nie aanspreeklik is op grond van roekeloosheid nie, dan word beleefd betoog dat hy klaarblyklik skuldig is aan 'n nalatige wanvoorstelling. Die actio legis aquiliae het reeds in ons regstelsel so ver ontwikkel dat 'n aksie op grond van nalatige wanvoorstelling toegestaan word. Sien Herschel v Mrupe, supra; de Wet, Estoppel by D Misrepresentation, bl. 100 et seq., Price, Aquilian Liability for Negligent Statements, 67 S.A.L.J., 138, 257, 411; 68 S.A.L.J. 78 - 88; Perlman v Zoutendyk, supra, 151 te bl. 157; Western Alarm Systems v Coini & Co., 1944 CPD 271 op bl. 277, 278; Fichardts Motors v Nienaber, 1936 OPD 22; Currie Motors v Motor Union Ins. Co., 1961 E (3) SA 872 op bl. 875 - 878. In die Engelse en Amerikaanse regstelsels word hierdie aksie erken. Sien Prosser, Law of Torts, 3de uitg., bl. 720 et seq.; Hedley Byrne & Co v Heller, (1963) 2 All E.R. 575 op bl. 583, 584.

Vos, S.C., in reply.

F Cur. adv. vult.

Postea (November 3rd).

Judgment

Wessels, J.A.:

This is an appeal against the judgment of the Cape of G Good Hope Provincial Division (BEYERS, J.P.) awarding the respondent (plaintiff in convention) damages in an agreed amount of R2,249, dismissing the appellant's counterclaim for damages and ordering the appellant to pay the respondent's costs (including the fees of two counsel). For convenience I refer hereafter to appellant and respondent as defendant and plaintiff respectively...