Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd

• Jurisdiction: South Africa
• Judge: Holmes JA, Corbett JA, Hofmeyr JA, De Villiers JA and Kotzé JA
• Judgment Date: 22 May 1977
• Citation: 1977 (3) SA 670 (A)
• Hearing Date: 05 May 1977
• Court: Appellate Division

Corbett, J.A.:

The appellant company carries on business in the F district of Standerton as the manufacturer and seller of bricks. Appellant's brickfield and quarry are situated about 16 km from the town of Standerton. The managing director of the appellant is a Mr. L. H. Bowker. He and his son own all the shares in appellant. The respondent company carries on business G as building and engineering contractors, with its registered head office in Johannesburg. Respondent sued appellant in the Transvaal Provincial Division for damages arising from the purchase of certain bricks by the respondent from the appellant and the appellant counterclaimed for the amount of R2 192, being the balance of the purchase price of the bricks. The trial Court (HIEMSTRA, J.) granted judgment in favour of the H respondent and awarded damages in the sum of R27 086,24 and costs of suit. The appellant's counterclaim was dismissed with costs. The appellant appeals to this Court against the decision of the trial Court that appellant was liable to respondent in damages (the quantum of damages awarded is not challenged) and against the dismissal of its counterclaim.

The pleadings in this case are detailed and voluminous and tend to obscure rather than to elucidate the real issues. Respondent's case, as finally formulated before this Court, is in essence -

(a)

that during June and July 1971 it purchased from appellant some

Corbett JA

212 000 bricks, most of which were of the variety known as "fair face" and the remainder being what are known as "stock" bricks, for use in the erection of certain factory buildings at Standerton for Nestlé (S.A.) Ltd. ("Nestlé");

(b)

that these bricks were delivered to respondent at the A construction site in a number of loads over the period 1 July to 30 November 1971 and were in fact used in the erection of the factory buildings;

(c)

that in January 1972, after the completion of all the brickwork, it was found that a substantial proportion of the bricks so used were defective in that they B manifested a condition known as "efflorescence" and were beginning to crumble and decompose;

(d)

that in order to remedy the position respondent demolished the walls containing the defective bricks and rebuilt them with other bricks obtained from a different source (the cost of such demolition and reinstatement being assessed by the trial Court C at R27086,24); and

(e)

that appellant, as the manufacturer and seller of bricks containing a latent defect, was bound to compensate respondent for the consequential loss suffered in the aforementioned sum of R27 086,24.

To this claim appellant raised a number of defences, both on the law and on the facts. It will be convenient to consider D these defences in their appropriate context. Before coming to them, however, it is necessary to sketch the salient facts as revealed by the evidence.

The story commences with a visit by a Mr. J. O. Lubke to the appellant's place of business. Lubke, a building supervisor in the employ of the respondent, had been sent to establish the E building site at the Nestlé factory and one of his instructions was to obtain samples of bricks in the Standerton area. He did not have authority to conclude any contract for the supply of bricks. His visit to appellant's brickfield took place on 13 May 1971. He saw Bowker and asked him for samples of bricks suitable for the construction of a factory. He was shown and given samples of three different types of brick - F fair face, stock and rustic. Prices were discussed and a quotation given by Bowker. Lubke states that he also asked Bowker whether the bricks conformed to the standards laid down by the South African Bureau of Standards ("S.A.B.S.") and that Bowker stated that they did. Bowker himself denies this. According to him Lubke asked whether the bricks had been tested G by the S.A.B.S. and was told that they had not been passed by the Bureau. Mrs. Bowker, who was present, gives a slightly different version of the conversation. Nothing vital turns on this conflict however. Although respondent originally relied upon a false representation that the bricks conformed to S.A.B.S. standards, this was not ultimately pursued.

Lubke took the samples away with him and they were submitted to H Mr. A. Michael, respondent's contracts manager in charge of the Nestlé contract at Standerton. He was satisfied and passed them on to Mr. C. F. Beguin, the consulting engineer who designed and supervised the building work. Beguin subjected the samples to a water absorption test and, this being satisfactory, he approved of them and requested respondent to order the bricks in accordance with the quantities stated in the bill of quantities. On 8 June 1971 respondent sent to appellant a written buying order for

Corbett JA

"125 000 red semi-face bricks" at R20 per 1 000, delivery to be as and when required by the agent on the site and to commence on 28 June 1971. This was followed in July by a second written order for "±100 000 only stock bricks" at R16 per 1 000, delivery again to be as and when required by the agent on the site. (The prices stated were those quoted by Bowker.)

At this point I must digress and refer to some of the evidence relating to the manufacture of bricks, the different varieties of bricks which may be produced and some of the problems that may be encountered with the finished product. The appellant B manufactures bricks by the open clamp kiln method - as opposed to the closed kiln. The process starts with the removal of the brick-making clay from the quarry. Coal dust is added to the raw clay and this mixture is then crushed by being put through roller mills. It is thereafter fed into a mixer, where water is added, and from there the mixture is passed through an extruder, which produces a column of wet clay. This column is C passed on a conveyer belt through a wire cutter which cuts it into individual bricks. The bricks are then put into drying kilns. Once dry, they are packed into clamp kilns about 30 bricks high for burning, or firing. In the kiln are put layers of coal, known as "skindles". The bricks in the kiln are closed off by side walls and a top covering of old bricks and the side D walls are plastered with a mud mixture. Firing of the kiln commences at one end of the kiln before the clamp is complete. It is the particles of coal in the clay which actually do the burning of the bricks. The purpose of the coal skindles is to start and maintain the burning process. Once the firing process, which takes between two and three weeks, is complete E and the bricks have cooled down, the clamp is opened up. The bricks are then ready for marketing.

There are many variations in the colour, general appearance and quality of the finished product. This will depend upon the type of clay used and upon the process of manufacture, particularly the degree of firing to which the brick is subjected. For the purpose of laying down standards for compressive strength and F efflorescence, the S.A.B.S. divides bricks into four classes. These, listed in a descending order as to the stringency of the requirements, are engineering, facing, general purpose (special) and general purpose. In this case the terms "semi-face" and "fair face" figure frequently. The bricks described in the first order form were semi-face, whereas the G vast majority of bricks actually delivered were described as fair face - the balance being stock bricks. There was no unanimity among the experts as to the meaning of these terms. According to some they denoted different types of brick: the semi-face being a face brick of a poorer or cheaper type and falling into the S.A.B.S. category of general purpose (special); and the fair face being a stock brick with one smooth, or fair, face which enabled it to be used in an H unplastered wall and failing into the S.A.B.S. category of general purpose. Others considered that semi-face and fair face meant the same thing. Nothing of real importance hinges on this difference of opinion but it shows that these terms are loose ones and it seems to go a long way to explain why an order for semi-face bricks was executed by the delivery of fair face bricks. Appellant itself manufactures only fair face, stock and rustic bricks. These are all made in the same way save that in the case of fair face there is a die fitted to the end of the extruder which produces smooth faces, whereas in the case of the

Corbett JA

stock brick the die has points on it which produce grooves in the sides of the brick. Rustic bricks are produced with a special machine which is inserted between the extruder and the cutter and roughens up the edges.

One of the main requirements of a satisfactory finished product is that the brick should be properly fired. During the firing A process various reactions take place. At about 500° to 600° C the brick loses its crystalline water. At about 950° to 1 000° C new minerals are formed in a process termed vitrification. A lump of clay is converted into a ceramic product. It is this process which gives a properly made brick its hardness, strength, durability and characteristic colour. The precise B temperature at which these reactions take place depends upon the type of clay used and may vary considerably. According to Mr. K. D. Eaton, an expert called on respondent's behalf, a well-fired brick is one that has been fired to such a degree that it "reaches its optimum properties in strength, size, colour, ferocity (sic)." It is then that the clay "matures". C Some clays mature at 1 000°, some at 950° and some at 1 600° C. The proper firing of a brick depends partly on the temperature attained and partly on the time for which it is subjected to that temperature. Bricks are often underfired. This occurs particularly in the case of open clamp kilns in which it is difficult to control the...