Moe Bros v White

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 24 October 1924
• Citation: 1925 AD 71
• Hearing Date: 10 October 1924
• Court: Appellate Division

De Villiers, J, A.:

The respondent, plaintiff in the court below, a plumbing contractor, brought an action in the Natal Provincial Division against the defendants, farmers, for the price of amongst other things a cream separator erected by the plaintiff for the defendants. The plea was to the effect that the separator was not "fitted" for the purpose for which it was purchased, and that it was useless to the defendants who had refused to accept it. When the case came to trial certain questions were by consent of parties referred to Mr. Advocate Broome for enquiry and report. The reference purported to be under sec. 21 of Act 24 of 1898. The only one of the questions with which this appeal is concerned was the following: "Was the separator ever erected and handed over at any time prior to the institution of the action in terms of the written contract contained in White's letter of

De Villiers, J.A.

September 4th, .1922." The referee after hearing evidence in due course made his report answering the above question in the affirmative. The Natal Provincial Division was thereupon moved for judgment in terms of the referee's report, and the Court regarding the report as the award of an arbitrator, made it an Order of Court.

Mr. Beck, who appeared on behalf of the appellants, contended that the referee's report was not the award of an arbitrator, but fell under sec. 22 which leaves the Court free to adopt or reject it wholly or partially. It should be pointed out that the reference was by consent and could therefore, have been made under sec. 23, in which case unless set aside by the Court the award would under sec. 25 be equivalent to the verdict of a jury. But the reference purported to be under sec. 21, and I shall therefore assume in favour of the appellants that the powers of the Court are as wide as contemplated by sec. 22.

That brings me to the question whether the separator was erected and handed over in terms of the contract. That question as pointed out above was answered in the affirmative by the referee. But it was contended on behalf of the defendants that the referee's finding was erroneous and that the Court ought to reject it. It was said that for plaintiff to succeed he must satisfy the Court that he has discharged his obligations under the contract, and that he has failed to do so. No doubt this argument would have been sound if we had had a record of the evidence given before the referee. But by consent of both parties the evidence was not recorded, and without a record of the evidence it is quite impossible for the Court to say whether the plaintiff has proved that he had performed his obligations under the contract. The specific point now under consideration amongst others was referred to the referee by Consent, it was also agreed by the parties that the evidence should not be recorded and there is no suggestion of want of bona fides on the part of the referee. Under these circumstances although the Court would he entitled to reject the finding of the referee, I am of opinion that should not be done unless upon the material before it the Court is clearly of opinion that the finding of the referee is wrong. The Court cannot adopt any other course without laying itself open to the imputation of acting arbitrarily or capriciously.

The first point then that remains to be determined is what were

De Villiers, J.A.

the obligations of the plaintiff under the contract. While the pleadings make no mention of the contract, the reference was specifically to the letter of the 4th September, 1922. But in the court below the correspondence between the parties was put in by consent so that we are in a position to determine what the obligations of the plaintiff were. The terms of the contract were embodied in certain three letters which it is not necessary to...