Kroon v J L Clark Cotton Co (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Smalberger J
• Judgment Date: 24 December 1982
• Citation: 1983 (2) SA 197 (E)
• Court: Eastern Cape Division

Smalberger J:

A. Dramatis personae.

The plaintiff: At all relevant times a farmer of the farm "Kransplaas" near Kendrew in the Graaff-Reinet district.

A The defendant: Previously the first defendant, a company concerned with the production, processing and marketing of cotton and dealing, inter alia, in weedicides.

Lilly Laboratories SA (Pty) Ltd: Previously the second defendant, a manufacturer and purveyor of chemical products, including the weedicide "Treflan", and referred to further B herein by its commonly known name, "Elanco".

Treflan: A weedicide with its active ingredient Trifluralin, developed by Lilly Research Laboratories in 1960, and manufactured in South Africa by Elanco.

Amaranthus spinosus (thorny pigweed or doringmisbredie); C Amaranthus hybridus (Cape pigweed or Kaapse misbredie); Amaranthus thunbergei (red pigweed or rooimisbredie); Chenapodium album (white goosefoot or withondebossie); Polygonum aviculare (prostrate knotweed or voëlduisendknoop); Portulaca oleracea (common purslane or porslein); Stellaria media (chickweed or gewone sterremuur); Tribulus terrestris D (dubbeltjie): Broadleaf weeds which at all relevant times appeared on the Treflan label, and which Teflan was registered to and supposed to control. Unless the context of the judgment otherwise indicates the amaranthus species will be referred to collectively as "misbredie", chenopodium album as "hondebossie", polygonum aviculare as "voëlduisendknoop", E portulaca cleracea as "portulaca" and tribulus terrestris as "dubbeltjie". For practical purposes stellaria media can be disregarded, and any reference to the broadleaf weeds on the Treflan label must be understood to exclude stellaria media.

D J Marais: An employee of the defendant, and at all relevant times its representative in the Eastern Cape.

F W Bennie: An employee and technical representative of Elanco who was not called as a witness.

P Zietsman: The area manager of a firm dealing in agricultural implements.

B Hobson: A farmer in the Kendrew area.

G D H van Rensburg: A farmer, the owner of farms in Golden Valley and the Graaff-Reinet district.

J D Crouse: The manager of Van Rensburg's Golden Valley farm.

R A Goedhals: A farmer of the farm "Noodhulp" in the Graaff-Reinet district.

P C Nel: A doctor of science and professor of agronomy at the H University of Pretoria.

J B R Findlay: A doctor of science employed at all relevant times by Elanco as a scientist specialising in chemical compounds.

B. Introduction

The plaintiff initially instituted an action for damages against both the defendant and Elanco. During the course of the trial the action between the plaintiff and Elanco was settled on terms unknown to me.

The plaintiff's action against the defendant is based upon both delict

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and contract. In this respect the plaintiff relies in the alternative upon a fraudulent misrepresentation, a negligent misrepresentation, a negligent breach of duty, a breach of an express or implied term of a contract of sale and a breach of an express or implied warranty dehors such contract of sale. In A effect the plaintiff's action is based upon an alleged false misrepresentation concerning the efficacy of Treflan in the control and eradication of certain broadleaf weeds, and the alleged failure of Treflan to control such weeds on the plaintiff's farm, thereby damaging or partly destroying the plaintiff's cotton crop.

At the commencement of the trial an application was made by the B plaintiff for the separation of the issues of the merits and damages. The application was opposed by both the defendant and Elanco. I refused the application, intimating that I would give my reasons for doing so later. Subsequently all the parties agreed to a separation of the issues, and I allowed the C matter to proceed on the merits only. At this stage I am only called upon to decide whether liability on the part of the defendant exists. The plaintiff and the defendant are agreed that the question of costs will stand over for argument until I have made my findings in this regard.

In view of the subsequent agreement reached concerning the separation of the issues the parties are ad idem that there is D no need for me to give my reasons for originally refusing the plaintiff's application. I would, however, like to state those reasons briefly.

Rule 33 (4) provides for the separation of issues at a trial when it is convenient to do so. Where parties are not ad idem that a piecemeal hearing is convenient (as was originally the E case in the present matter) the separate trial of the merits as a separate issue will only be ordered where substantial grounds justify such a course (Sharp v Victoria West Municipality 1979 (3) SA 510 (NC), and authorities there quoted). The function of the Court is to gauge to the best of its ability the advantages and disadvantages which would flow from the granting of a separation of issues. An application for separation will only be granted if,

F "with due regard to the divergent interests and considerations of convenience... affecting the parties, it appears that such advantages would outweigh the disadvantages"

(per MILLER J in Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 364E). See also Grindrod Cotts Stevedoring (Pty) Ltd and Another v Brock's Stevedoring Services 1979 (1) SA 239 (D).

G The application was refused as, in the face of well-founded opposition by both the defendant and Elanco, there were no substantial grounds to justify the separation of the issues, and it was not shown to my satisfaction that the advantages of doing so in the present matter would have outweighed the disadvantages.

H C. The background to the present action

The farm "Kransplaas" is approximately 4440 hectares in extent. The plaintiff commenced farming it at the end of 1958, after graduating with a BSc degree in agriculture at the University of Natal in Pietermaritzburg. At all relevant times about 305 hectares of the farm were under irrigation. The plaintiff had prior to 1977 planted both summer and winter crops on the lands under irrigation.

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In about July 1977, Marais visited the plaintiff and aroused in him an interest in growing cotton. Marais, who had previously been the defendant's technical representative in the Marble Hall area, was sent to the Eastern Cape with the specific A purpose of establishing cotton production in this area. Marais commenced employment with the defendant in 1967, and is a man of considerable experience in relation to the technical side of cotton production.

In the course of two visits by Marais the growing of cotton and the problem of weeds in cotton production were discussed by B Marais and the plaintiff. Marais recommended the use of Treflan as a weedicide. I shall deal in more detail later with the precise ambit of the representation made by Marais in respect of Treflan. Ultimately the plaintiff decided to put 170 hectares under cotton. It was agreed that the defendant would sell to the plaintiff the necessary seeds, fertilizer, weedicides, insecticides and whatever else was needed for the C production of a cotton crop. In addition the defendant was to provide the plaintiff with technical advice in regard to the planting, cultivation and harvesting of cotton, as well as hire out to him certain mechanical implements to facilitate cotton production. In return the plaintiff was to sell all the cotton D he produced to the defendant at a fixed price. On 7 September 1977 the plaintiff and the defendant entered into a written cotton growing contract for the 1977 - 78 season (exh "A").

Sometime later in September 1977 a meeting was held at the Kendrew Country Club attended by various farmers interested in growing cotton. The meeting, arranged by Marais, was addressed by Bennie, on behalf of Elanco, in regard to the correct method E of applying Treflan. Treflan is a pre-emergent weedicide which is incorporated into the soil and attacks weeds in the soil at the time of germination. The correct method of incorporation into the soil is all-important for Treflan's proper function. At this meeting reference was also made to what broadleaf weeds F Treflan was registered to control. No suggestion was made that Treflan should be used in conjunction with any other weedicide.

The defendant duly sold and delivered a large quantity of Treflan to the plaintiff, and debited the plaintiff with the cost thereof. In due course the plaintiff himself applied Treflan to his lands. It was ultimately not in dispute that the G spray used for the application of such Treflan was properly calibrated, and the Treflan incorporated into the soil in keeping with Elanco's requirements and recommendations in this regard.

In time a multitude of weeds sprang up. The weeds created enormous problems in regard to the cultivation of, and H constituted a grave threat to, the plaintiff's cotton crop. Eventually a number of lands had to be abandoned because of the weed infestation. In the end the area of land on which cotton was harvested by the plaintiff was considerably less than that originally planted.

The above facts are either common cause, or not in dispute. What is in issue is the precise ambit of the representation made by Marais in respect of Treflan when recommending its use to the plaintiff, and whether or not Treflan satisfied what was said about it by Marais (in

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other words, was the representation false). It is basically on a determination of these issues that the defendant's liability turns. It is accepted that the onus rests on the plaintiff to establish both the terms of the representation made and the falsity thereof.

D. The representation made by Marais

A It is common cause that in 1977 Treflan was registered for the control of the grasses and broadleaf weeds listed on the label on the Treflan tin (exh "1").

The plaintiff...