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Bayer South Africa (PTY) LTD and Another v Viljoen (401/88) [1989] ZASCA 121 (28 September 1989)

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wlb Case No 401/88

SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the appeal of:

BAYER SOUTH AFRICA (PROPRIETARY) LIMITED First Appellant

[Defendant in the Court a quo] and

W P (CO-OPERATIVE) LIMITED Second Appellant

[Third Party in the Court a quo]

versus

JACOBUS JOHANNES VIWOEN Respondent

[Plaintiff in the Court a quo]

CORAM: JOUBERT, VIVIER, MILNE, STEYN JJA et

NICHOLAS AJA

Date of Hearing: 31 August 1989 and 1 September 1989

Date of Judgment:

JUDGMENT

MILNE JA/

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MILNE JA:
The respondent in this appeal was the plaintiff in the court below. The first appellant, Bayer South Africa (Proprietary) Limited ("Bayer"), was the defendant and the second appellant, W.P. (Co-Operative) Limited ("WPK"), was a third party who became such in terms of Rule 13 of the Rules of Court. The plaintiff, a farmer in the Hex River Valley, successfully sued Bayer and WPK in the Cape of Good Hope Provincial Division for damages arising out of blemishes and damage to his crop of table grapes caused by an infestation of powdery mildew (oidium tuckeri, poeieragtige skimmel, witroes, to which I shall refer as oidium or powdery mildew) during the 1983/84 season, it being alleged that this infestation was due to the lack of effectiveness of a fungicide, Bayleton, which the trial court (BURGER J) held had been distributed by Bayer to WPK and sold by the latter to the plaintiff. The quantum of the plaintiff's damages was agreed during the trial in the sum

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of R111 589,05 and judgment was given in this: amount against Bayer and WPK jointly and severally. They both appeal to this court with leave of the court a quo. The plaintiff originally sued Bayer alone, founding his action on breach of contract and alleging sales of Bayleton by Bayer to him. Bayer filed a plea denying, inter alia, that it had sold the Bayleton to the plaintiff. The plaintiff thereafter issued a third party notice to WPK alleging that the latter had sold the Bayleton to him. At the same time the plaintiff amended his pleadings so as to allege an alternative cause of action against Bayer based upon negligent misrepresentation.

The Claims:

For reasons which will become apparent, the exact basis upon which the plaintiff claimed against Bayer and WPK is important, and I accordingly reproduce in full the plaintiff's amended particulars of claim against Bayer, and that portion of

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the annexure to the plaintiff's third party notice to WPK which sets out the case which the plaintiff pleaded against WPK.

The plaintiff's amended particulars of claim:

"1. Eiser is JACOBUS JOHANNES VILJOEN, h volwasse manspersoon en boer van 'Millhurst', De Doorns, Kaap.
2. Verweerder is BAYER SUID-AFRIKA (EIENDOMS) BEPERK, 'n maatskappy met beperkte aanspreeklikheid behoorlik ingelyf kragtens die Maatskappywette van die Republiek van Suid-Afrika, met sy geregistreerde hoofkantoor en/of vernaamste plek van besigheid geleë te Isando, Transvaal.
3. Te alle saaklike tye hierna genoem:

(1) was Verweerder, onder andere, 'n handelaar in en/of h verspreider van giftige middels insluitende h sistemiese swamdoder bekend as BAYLETON EK (hierna 'BAYLETON') vir die bespuiting en/of bestryding en/of beheer van poeieragtige skimmel (Oidium tuckeri) op wyn en tafeldruiwe;
(2) het Verweerder teenoor die pubiiek en in besonder teenoor Eiser voorgegee dat hy oor bekwaamheid en deskundige kennis ten opsigte van BAYLET0N beskik.

4. (1) Gedurende ongeveer Oktober 1983 en op Eiser se

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voormelde plaas het Verweerder BAYLETON vir aanwending en toediening aan Eiser se wingerde aan Eiser verkoop en gelewer;
(2) Dit was 'n uitdruklike, alternatiewelik stilswyende, en in iedere geval wesenlike bepaling van die gemelde ooreenkoms dat BAYLETON geskik sou wees vir die doel waarvoor dit verkoop is, naamlik, as 'n sistemiese swamdoder vir die beheer van poeieragtige skimmel op wyn en tafeldruiwe in Eiser se wingerde en dat dit nie Eiser se druiwe sou beskadig of Eiser se oes benadeel nie;
(3) ALTERNATIEWELIK tot onder-paragraaf 4(2) hierbo beweer Eiser soos volg:

(a) Ten tyde van die aangaan van die voormelde
ooreenkoms was Verweerder daarvan bewus:
(i) dat Eiser h boer is;

(ii) dat Eiser die BAYLETON benodig vir die toediening en aanwending vir die beheer van poeieragtige skimmel op die druiwe in Eiser se wingerde;

(iii) dat indien BAYLETON nie die poeieragtige skimmel op die druiwe in die wingerde beheer nie en/of die druiwe en wingerd sou beskadig en/of Eiser se oes nadelig sou aantas, Eiser skade sou ly;

(b) Gemelde ooreenkoms is gesluit op die basis van
die voormelde kennis.

5. Alternatiewelik tot paragraaf 4 beweer Eiser: (1) Verweerder as 'n instansie wat teenoor die publiek voorgee dat hy oor bekwaamheid en deskundige kennis ten opsigte van BAYLETON beskik was bewus daarvan dat

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Eiser op sy tegniese advies sou steun by die aankoop van BAYLETON;
(2) Daar het gevolglik 'n regsplig op Verweerder gerus om vir Eiser op 'n bekwame en deskundige wyse en sonder nalatigheid te adviseer aangaande die doeltreffendheid van BAYLETON as h sistemiese swamdoder vir die beheer van poeieragtige skimmel op wyn en tafeldruiwe;
(3) Teenstrydig met die gemelde regsplig het Verweerder nalatiglik die BAYLETON voormeld aanbeveel terwyl dit nie geskik was vir die doel waarvoor Eiser dït gekoop het, naamlik as h sistemiese swamdoder vir die beheer van poeier op wyn en tafeldruiwe nie.

6.

Gedurende Oktober 1983 tot Maart 1984 het Eiser BAYLETON-aan sy wingerde voormeld toegedien.

7. Teenstrydig met Verweerder se verpligting as h handelaar en/of verspreider van BAYLETON, alternatiewelik teenstrydig met die bepaling van die ooreenkoms, alternatiewelik nalatiglik is die poeieragtige skimmel op die druiwe nie deur die aanwending en toediening van BAYLETON beheer nie en is Eiser se oes nadelig aangetas.

8. As gevolg van Verweerder se voormelde kontrakbreuk, alternatiewelik nalatigheid het Eiser skade gely ten bedrae van R93 542,00 ten opsigte van die betaling van welke bedrag Verweerder regtens aan Eiser aanspreeklik is."

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The plaintiff's claim aqainst WPK:

"7. Eiser beweer gevolglik teenoor die Derde Party as volg: Te alle saaklike tye hierna genoem:

(1) Was die Derde Party onder andere, h handelaar in of 'n verspreider van giftige middels insluitende 'n sistemiese swamdoder bekend as BAYLETON EK (hierna BAYLETON) vir die bespuiting en/of bestryding en/of beheer van poeieragtige skimmel (Oidium tuckeri) op wyn en tafeldruiwe.
(2) Het die Derde Party teenoor die publiek en in die besonder teenoor Eiser voorgegee dat hy oor bekwaamheid en deskundige kennis van BAYLETON beskik.
(3) Gedurende ongeveer Oktober/Desember 1983 het die Derde Party BAYLETON vir aanwending en toediening aan Eiser se wingerde aan Eiser verkoop en gelewer.
(4) Dit was 'n uitdruklik alternatiewelik stilswyende en in ieder geval wesenlike bepaling van die gemelde ooreenkoms dat BAYLETON geskik sou wees vir die doel waarvoor dit verkoop is, naamlik as 'n sistemiese swamdoder vir die beheer van poeieragtige skimmel op wyn en tafeldruiwe in Eiser se wingerde en dat dit nie Eiser se druiwe sou beskadig of Eiser se oes benadeel nie.
(5) Alternatiewelik tot onder-paragraaf 7(4) hierbo beweer Eiser soos volg:

(a) Ten tyde van die aangaan van die voormelde ooreenkoms was die Derde Party daarvan

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bewus:

(i) Dat Eiser h boer is;

(ii) Dat Eiser die BAYLETON benodig vir die toediening en aanwending vir die beheer van poeieragtige skimmel op die druiwe in Eiser se wingerde; en

(iii) Dat indien BAYLETON nie die poeieragtige skimmel op die druiwe in die wingerde beheer nie en/of drúiwe en wingerd beskadig en/of Eiser se oes nadelig sou aantas Eiser skade sou ly. (b) Gemelde ooreenkoms is gesluit op die basis

van die voormelde kennis.

(6) Gedurende Oktober 1983 tot Maart 1984 het Eiser
BAYLETON aan sy wingerde voormeld toegedien.
(7) Teenstrydig met die Derde Party se verpligting
as 'n handelaar en/of verspreider van BAYLETON,
alternatiewelik teenstrydig met die bepaling van
die ooreenkoms is die poeieragtige skimmel op
die druiwe nie deur die aanwending en toediening
van BAYLETON beheer nie en is Eiser se oes
nadelig aangetas.
(8) As gevolg van die Verweerder se kontrakbreuk,
alternatiewelik nalatigheid en/of die Derde
Party se kontrakbreuk het Eiser skade gely ten
bedrae van R93 542,00 ten opsigte van die
betaling van welke bedrag die Verweerder en die
Derde Party aan Eiser aanspreeklik is."

The reference in paragraph 3(1) of the particulars of claim to

"Bayleton EK", is a reference to Bayleton Emulsifiable

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Concentrate. This was registered as an agricultural remedy in terms of s3 of the Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, No 36 of 1947, on 6 October 1981.

The claim aqainst BAYER
The court a quo found that no privity of contract between the plaintiff and Bayer had been established and that the plaintiff accordingly had to prove negligence on the part of Bayer. It found that such negligence had been established. The finding that no privity of contract existed between the plaintiff and Bayer was not challenged, and we are not here concerned with a product which is alleged to have damaged the plaintiff's crops nor was it alleged that the product was "dangerous" or "unsafe". It is common cause that what damaged the plaintiff's crops was the oidium. What we are concerned with is the alleged failure of Bayer's product to control the outbreak of
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The issue:
The main question in the appeal is whether or not the trial court was correct in holding that the plaintiff had established the requisites of an action based upon negligent misrepresentation. It was common cause that in order to do so the plaintiff had to prove that:

(a) Bayer made a statement that Bayleton was suitable for the purpose for which the plaintiff bought it namely, for use as a systemic fungicide for the control of powdery mildew on wine and table grapes;

(b)	this statement was incorrect;
(c)	Bayer was negligent in making the statement; and

(d) the damage which the plaintiff suffered was caused by the making of the statement i.e. that the plaintiff was induced to apply Bayleton by reason of the statement and

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that the cause of the damage was the incorrectness of the statement made by Bayer.

The representation:
It is, I think, a necessary implication from para.5(3) of the plaintiff's particulars of claim (set out above) that the plaintiff alleged a representation by Bayer that Bayleton was suitable for the purpose for which the plaintiff bought it, namely, as a systemic fungicide for the control of powdery mildew on wine and table grapes. One searches in vain for any particularity in the pleadings or the evidence as to how, when or where such representation was made, but it seems to be common cause that Bayer, by labelling its product, made the representation contained in the label to whosoever might read it. (When I say "its" product I mean the product in which it was a dealer and in respect of which it

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represented to the public and to the plaintiff that it had expert knowledge and competence. It is common cause that Bayer is a company incorporated in terms of the Company Laws of the Republic and that it has its registered head office in the Transvaal. It appears from the evidence of one of its employees, one Jacobs, that Bayleton was manufactured and formulated by the German company, Bayer AG, at Dormagen in Germany and then shipped in 200l containers to Cape Town and thence to Paarl where it was packed into 25l and 5l containers by Bayer i.e. the South African company.) The relevant portion of the label recites that Bayleton is poisonous, that it is a fungicide and an emulsion for agriculturai use and that it is "a systemic fungicide for the control of powdery mildew for wine and table grapes ...". It also recites that the active ingredient is Triadimefon. The label also contains various warnings and precautions and the words in bold

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letters "DIRECTIONS FOR USE: USE ONLY AS DIRECTED". These words must be taken to refer to, or at least to include, the recommendations which are set out in tabular form on the label. The relevant portion of the recommendations reads as follows:

SEE ORIGINAL JUDGEMENT PAGE
It was also argued that the "Directions" would include advice given by Bayer's representations.

The trial court referred to the fact that in an advertisement Bayer had extended the following invitation:

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"Vir verdere deskundige advies en beplanning van u spuitprogram tree in verbinding met u BAYER verteenwoordiger"

and the plaintiff sought to rely upon what is described in
his heads of argument as "... tegniese hulp in die
beplanning en in die uitvoering van sy spuitprogram". This
appears to refer to advice given by one Jooste, a
representative of Bayer who, according to the plaintiff,
called regularly at his farm and with whom he consulted in
regard to his spray programme and generally with regard to
the application of Bayleton. The plaintiff also said, in
effect, that he regarded such advice as overriding what
appeared in Bayer's mahual e.g. with regard to the correct
intervals between spraying. Jooste was called by the
plaintiff as a witness and I shall refer to the effect of
his advice later. As already indicated, the case pleaded by

the plaintiff was that the defendant represented that

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Bayleton was suitable for the control of oidium on wine and table grapes. Subject to certain qualifications, Bayer admitted that it made such a representation in the label on the drums in which the Bayleton was sold. The first qualification sought to be attached is by the insertion of the word "ordinarily" before the word "suitable". The second is that the representation was subject to the proviso that Bayleton was applied "at appropriate times, intervals and strengths and under proper conditions and by correct methods." Further particulars for trial supplied by Bayer stated that by "appropriate" was meant "as directed on the Bayleton label and spray programme". This latter qualification is clearly correct since the representation contained in one part of the label is qualified by the instruction to "use only as directed" and the directions are set out in the label.

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In order to determine the ambit of the representation which is admitted to have been made, it is necessary to consider what was known to the parties about the nature of the fungus disease which Bayleton was intended to control. Evidence was given in this regard by Gordon and Leibold who were called by Bayer as expert witnesses. An attack was launched both in the court a quo and in argument on appeal on the reliability of these two witnesses. Some of the problems experienced by the former in the witness box may have been due in part to what seems to have been an unnecessarily aggressive cross-examination of a witness whose honesty was not shown to be in any way suspect, and by the fact that on a number of important aspects he was not permitted to complete his answers - quite frequently being interrupted by the trial judge (on one occasion no less than f ive times during the course of one page of evidence) . Be that as it may, I do not think that the evidence of Gordon

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and Leibold as to the incidence of oidium on grapes in the Western Cape, its life cycle and the history of how the problem was tackled, is open to serious question. Furthermore, various published articles by independent experts were put in through Gordon, two of them by the plaintiff and one by Bayer. Their views which were accepted as correct by Gordon, and the evidence of Gordon (and, to a lesser extent Leibold) establish that, at all relevant times when Bayleton was sold under this label:

(a) oidium was present in the vineyards of the Western Cape (and had been for at least a hundred years);
(b) oidium was the "... grootste probleem-siekte in die wingerdbedryf";
(c) the application of sulphur, originally by dusting and subsequently by spraying with wettable sulphur was the standard remedy for oidium;

(d)	sulphur had the advantage of being reasonably cheap but

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it also had serious drawbacks such as, for example, its ineffectiveness in the absence of certain minimum temperature conditions at a certain stage, its tendency to damage the crop if the temperature exceeded a certain level, irritation of the eyes and mucus membranes of workers applying it etc;

(e)	during the winter months the oidium spores remained in the buds on the vineyard shoots and it was necessary to spray sufficiently early (i.e. soon after the buds started to shoot) to prevent the fungus spreading to other parts of the vine to avoid serious infestation of the grapes themselves which would be difficult to control except by means of a contact spray;
(f)	in the circumstances successful control depended to a large extent on how thoroughly the particular substance being used as a remedy was applied.

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Various other remedies for oidium were mentioned in evidence such as "Tilt", "Rubigan" and "Karathane". The plaintiff said that late in the 1983/84 season he did apply Rubigan to his grapes which were infected with oidium and that it "killed" the fungus but by then it was too late as the damage had already been done. Rubigan was, however, not registered at that time nor in fact had it been registered even by the time the trial was concluded, and it is worth noting that in one of the articles which was relied upon by the plaintiff it was recommended that unregistered remedies should not be used. There was some evidence as to the effectiveness of Tilt but also evidence that certain farmers were dissatisfied with Tilt as a fungicide and had at least contemplated suing the manufacturer of that substance for damages as a result of its alleged inability to control oidium. S C Rossouw, a witness called by the plaintiff, said that he had eventually controlled oidium on

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his grape crops in the 1983/84 season with Karathane but, on the other hand, the tests carried out by Gordon in 1973/4 and 1976/7 showed that Bayleton was a more effective remedy against oidium than Karathane. I shall deal later with the question of the effectiveness of sulphur treatment in conjunction with Bayleton. Suffice it to say that there was no evidential basis for the finding by the court a quo that "It was also accepted that there were alternative remedies available which if used in combination or even by itself, would have prevented the loss."

The plaintiff is an experienced wine farmer who originally commenced farming with his father in 1969 and started farming on his own account some years later. I do not think that it can be doubted that the facts relating to the incidence, and manner of treatment of the disease, and the effectiveness, or lack of it, of the various

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remedies available, were well-known to him.

Against this background it appears to me that all that the statement on the label could have been taken to mean was that Bayleton was suitable for combating powdery mildew. The learned trial judge appears to have thought, however, that the words appearing on the label meant that, regardless of weather conditions in any particular season, the pressure of infestation or any other factors, Bayleton would be "a complete remedy". In fact, it was neither pleaded nor proved that the representation meant that Bayleton would, regardless of circumstances, be a complete remedy. This misconception as to the meaning and ambit of the representations contained in the label pervades the judgment of the court a quo. A few examples will suffice:

"In cross-examination it was elicited from Mr Jooste
that in the previous season Bayleton was very effective and the farmers thought that it was a wonderful remedy.

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That the remedy works in another season and under difference conditions does, however, not help."
"Mr Bowman, on behalf of defendant, criticised Rossouw's evidence because he continued to apply Bayleton after he discovered that it was ineffective. It seems to me that his explanation that he had the stocks and continued to spray Bayleton together with other remedies is quite reasonable. Although Bayleton was not completely effective it may have had some effect and he had stocks already paid for available and that is probably the reason why he used it." (my underlining)
"When once it has been proved that the product, Bayleton, was not effective in controlling oidium on grapes in some seasons or under certain circumstances, then on the application of the principle of res ipsa loquitur, it seems to me that an inference that defendant was negligent can be drawn."

And finally:

"The conclusion is that the representation that Bayleton EC was a complete remedy Was too wide and should have been suitably qualified." (my underlining)

Whether the representation was incorrect (a) Generally:

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The proper approach in this case was to ascertain whether or not the plaintiff had proved, on a balance of probabilities: that Bayleton was not suitable for the control of oidium on grapes. This he signally failed to do. In fact, much of the evidence adduced on behalf of the plaintiff, showed the converse. The plaintiff's own evidence established that Bayleton was completely effective (and therefore, a fortiori, "suitable") on his own farm early in 1981 and in the 1981/82 and 1982/83 seasons. The evidence of Bayer's representative, Jooste, who was called as a witness by the plaintiff, was also to the effect that, during those seasons, Bayleton had been generally used with great success by wine and grape farmers in the Hex River Valley.

I leave aside, for the moment, the evidence of successful tests of Bayleton by Gordon for the purpose of

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registering the Bayleton wettable powder and the Bayleton emulsifiable concentrate. Once it was established that Bayleton was effective in controlling oidium on wine and table grapes in the Hex River Valley in the 1981/82 and 1982/83 seasons then, given an absence of any proof whatsoever that the Bayleton supplied in the 1983/84 season was in any way different to, or inferior to that supplied in the preceding two seasons, I have difficulty in seeing how it can possibly be said to have been proved that Bayleton was "not suitable for the control of oidium on wine and table grapes in the Hex River Valley" merely because it failed to control oidium effectively in the 1983/84 season. (There is, incidentally, no evidence that it was totally ineffective. On the contrary, it is clear that the plaintiff was able to export some of his table grapes in the 1983/84 season and of those that were too badly blemished for export, some were sold f or local consumption and the

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rest used for pressing for brandy.)

These facts are, in my judgment, sufficient to make it clear that the plaintiff failed to prove that the representation made in the label was incorrect. In any event, there is quite a considerable body of evidence to the effect that even in the 1983/84 season Bayleton did control oidium effectively on some grapes grown in the Hex River Valley. In considering this evidence it is important to bear in mind the particular means chosen by the plaintiff in attempting to prove the incorrectness of the representation. He could have sought to do so by adducing expert evidence of controlled tests showing that, when properly applied, Bayleton did not combat or control oidium on wine or table grapes. (There is, in fact, evidence that was adduced on behalf of WPK which shows that in the 1983/84 season just such a test was, on a small scale, carried out with a

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different primary purpose on the farm of one of the plaintiff's witnesses which showed that Bayleton in fact controlled oidium on the grapes grown by that witness. I refer here to the evidence of the witness Slabbert, to which I shall return in due course.) The plaintiff did not however seek to discharge the onus in this way. He sought to do so by means of circumstantial evidence namely, the evidence of himself and three other farmers in the Hex River Valley to the effect that although they applied Bayleton correctly it failed to control oidium in the 1983/84 season. From this evidence it was sought to draw the inference that Bayleton was not suitable for the control of oidium. Where it is sought to reason by inference, one of the cardinal rules of logic is that the inference sought to be drawn must be consistent with all the known facts. Certain facts emerge from the evidence adduced on behalf of the plaintiff which are inconsistent with such an inference. I deal

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firstly with the evidence of the plaintiff himself. The effect of his evidence was that at all material times he had vines planted on three separate farms namely Volmoed, Milhurst and Papland. Milhurst and Papland were adjacent to one another but Volmoed was about three and a half kilometers away from them. The plaintiff said that he applied Bayleton to the vines on all three of the farms in exactly the same manner in the 1983/84 season, but on Volmoed the Bayleton controlled the oidium whereas on Papland and Milhurst it did not.

As already mentioned, the plaintiff called Jooste,

Bayer's representative in the Hex River Valley in the 1983/84 season, who also said that he knew of certain farmers namely, Crafford, Brodie and Porter, who used Bayleton in the Hex River Valley that season and who only had "min skade". It was sought to explain the fact that in

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the very year in question, these farmers and, the plaintiff himself on the farm Volmoed, had successfully controlled oidium with Bayleton by saying that the plaintiff had applied sulphur to the grapes on Volmoed whereas he had not done so on the other two farms, and that the other farmers mentioned had also used sulphur early in the season. The plaintiff's explanation as to why he had applied sulphur on Volmoed and not on Milhurst and Papland does not bear scrutiny. In any event, Jooste, upon whose advice the plaintiff said he relied, said that his standard recommendation to farmers in the Hex River Valley was "... dat ons in die begin swael opsit en dan vanaf 10cm lootlengte het ons begin met Bayleton" - yet the plaintiff admits that he did not apply sulphur and in fact contradicts his own witness by saying that he was not advised to do so. In any event the evidence of Mr De Wet Conradie, one of the other farmers called by the plaintiff and upon whose

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evidence he relied to prove this part of his case, was to the effect that he, Conradie, had applied sulphur twice to his grapes at an early stage as well as Bayleton and that nevertheless he suffered serious damage to his grapes from oidium.

(b) Whether the Plaintiff used the Bayleton "as directed"
There is a further difficulty in the plaintiff's way. As already mentioned, the representation in the label was qualified by the admonition to "Use only as directed". In the circumstances, if he wished the court to infer that Bayleton was not suitable from the fact that it did not control oidium in the 1983/84 season, then the onus was upon the plaintiff to prove that he applied the Bayleton in that season as directed (a) on the label and (b) by Bayer's representative in the field.

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It was submitted on behalf of Bayer that the trial court erred in accepting the plaintiff's evidence as to how he sprayed in the 1983/84 season, and that, in any event, assuming that the plaintiff's evidence as to how he carried out his spray programme was truthful, it was nevertheless clear that he had failed to use the Bayleton as directed on the label and as directed by Jooste.

The respects in which it is alleged that he failed to spray as directed on the label are firstly, that he started spraying too late, that is to say when the shoots were substantially more than 10cm long, and that he sprayed at too great intervals, bearing in mind the direction to spray highly susceptible table grape cultivars at two weekly intervals. The plaintiff's further particulars alleged that he commenced spraying on 17 October 1983 and that thereafter he sprayed at three-weekly intervals. The

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respects in which he is alleged to have failed to comply with the advice given by Bayer's representative, Jooste, are firstly, that he did not travel each row of vines when spraying but only travelled every alternate row for the first three sprays, and thereafter only sprayed on one side, namely the side where the bunches of grapes were, although he did travel each row and secondly, that he did not apply sulphur at the early stage i.e. before the shoots reached the 10cm length when spraying should have commenced.

The learned trial judge seems to have adopted an unduly suspicious approach to the evidence adduced by Bayer and WPK in this regard. It áppears from the joint monthly report of Bayer for the period November/December 1983 which was put in by the plaintiff, that some months before a letter of demand was sent on behalf of the plaintiff, various representatives of Bayer were aware of the fact that

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oidium was prevalent in that particular year and recorded the fact that in their opinion this was "... gewoonlik 'n toedieningsprobleem". It was, furthermore, the evidence of S C Rossouw, one of the witnesses upon whom the plaintiff relied heavily, that it was general practïce throughout the Hex River Valley to travel each row of vineyards with the sprayer. What is more, as already mentioned, it is plain that the onus was on the plaintiff to prove that he had properly applied the Bayleton. Nevertheless, at the conclusion of the evidence of Gordon, the expert wïtness called by Bayer, the following passage occurs in the record. This passage is also relevant to the further question, namely, as to whether the plaintiff discharged the onus of provïng negligence on the part of Bayer.

"COURT: Before you stand down, you voiced certain
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criticism of Mr Viljoen's method of applying, namely
this alternate rows and also in regard to the intervals
and starting late. Those are the three criticisms you
had. Is that so? Yes.

Anything else? No, those are the three.
Those are the three? Well the other factor

which played a part here I think is that that particular year was a heavier infection pressure than other years.
How can I be certain that your criticism of his method was not thought up later to cover yourselves, cover your employer's case and that you genuinely feel[1] that the whole reason for the failure in this
particular year, are due to those three factors? I
have thought the one thing that I have tried to point out is that it is not just always my own opinion. I am supported by general feelings that....
I appreciate that, but you know after these failed, one can go and look for - use a magnifying glass and see whether you can get sort of points to see whether they failed in applying it correctly and then [2 one obviously uses every point you can get, even though
you don't think it is genuinely the case? The other
thing which makes me feel that something happened is that the results which I had in comparative tests were generally - gave me good control and that why in this case was there not good control. My experience in trials showed it can give good control.

Your experienced trials were in Paarl Valley?

Mostly in the Paarl Valley yes.

Anything else? Well also tests done by the

Viticultural Research Institute and overseas ...

When? Those tests were - can I just look it
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up?

Yes, certain. Take your time. Don't rush it?

There is a test done by Tromp and Marais that was published in 1981, but the test was done in the 1978/79 season.

With Bayleton? It was with Bayleton.
Powder or ...? Bayleton powder yes. And he

also - so he did a test in that year and in his discussion and conclusion, he said:
'Triadimefon gave excellent control of Uncinula necator ...' which is another name for powdery mildew -

'in field trials on grape vines. In the case
of heavy infection in these trials, vine
sulphur proved quite inadequate to control
the disease, while Triadimefon was still
effective. This is in accordance with the
finding of Braun (1974)'
Which was an American test. There are three names
here, they are Italian names, a test done in 1977 and
then he mentions a third author, Mancini and Cotroneo,
who are also Italian, I think. So that was now an
independent test.

If they sprayed every row, and if they had sprayed at more frequent intervals, two weeks, are you certain [3]
that the damages would not have occurred at all? I
would be fairly sure ...

Why are you sure of that? Because I think it

seems that the critical period is in the early period and that also seems to be the period in which most of the things which we would like to have happened, didn't seem to happen. The early start, in other words start as soon as possibie.

-34-

Apparently he started early enough. He started with indications at 10cm lengths in that year, round

about there? Yes, I think he wasn't far out, not so

far out perhaps, I think. He might have found shoots. It is a debatable point whether there were some shoots longer.

Than 10cm? Than 10cm. I think that there were

shoots longer, but there were probably a lot of shoots at 10cm.

Was any test conducted or is it just a matter of opinion and it looks to me like an ex post facto
opinion? Well it is mainly a conclusion that I have
drawn from looking at the demonstration and also it is generally asked that every row be sprayed by all people talking about applications for powdery mildew control. Anybody would recommend, I think, that you should drive every row, that is including the institutes, the companies.
Apart from this general recommendation is there any scientific basis to say that if you don't you will
get an infestation and you will get a failure? Well[4]

it is just a matter of getting the product onto the

Isn't it perhaps a couhsel of imperfection? (sic)
What is that?
Well if you want it perfect, then you say every row, but it is quite adequate and good practice to go
every other row, provided that you spray every row?
Yes, but it seemed to me that it wasn't adequate doing it that way, because I saw very little deposit landing on the second row.
Isn't it possible that something else could have
gone wrong? Well anything is possible. A lot of

-35-

things could happen but I don't know what else could have.

You say the vital thing is the first spray? I

think it is important to start early because you have a snowball effect of the disease."

There was, with respect, no justification for approaching
the evidence adduced on behalf of the defendant in this
fashion.

I have numbered certain questions in the above passage for convenience and I comment on them as follows:

(1) The question for decision was whether the criticisms were well-founded. There was no justification for the suggestion of dishonesty implicit in the learned judge's question.

(2)	This emphasises the point made in (1).

(3) The learned judge misplaced the onus. It was not for the witness to be certain of anything; it was for the plaintiff to prove that he applied Bayleton in accordance with instructions, or, failing that, to satisfy the court (if he could) that non-compliance would not have made any difference.
(4) Here again the onus was misplaced. The question should more appropriately have been addressed to the plaintiff: "Is there any scientific basis to say that if you travel every row you will still get a failure?"

-36-

I deal firstly with the question of the length of

the shoots at the time when the plaintiff (on his own case)

started spraying with Bayleton in the 1983/84 season. The
trial court accepted the plaintiff's evidence that the

shoots were about 10cm in length firstly because:

"In the same season Gordon sprayed vines in the Paarl area on 8 October when he said shoots were then 10cm long and he agrees that the De Doorns area is approximately two weeks later than the Paarl area."

This is incorrect in two respects. What Gordon said was
that the shoots were then 12,5cm long and secondly, it was
not in the same season - the damage complained of occurred

in the 1983/84 season whereas Gordon's observation of the
length of the shoots in the Paarl area was on 8 October 1984

i.e. the 1984/85 season. The court also found support
for the plaintiff's evidence in the evidence of Jooste

"... who says the spraying was properly done and he
says this not by way of inference, but based presumably on
actual observations at the time." Jooste did say, in answer
to a leading question put to him by plaintiff's counsel,

-37-

that he was satisfied that the spraying was properly done but, in the first place, he only called at the plaintiff's farm every two weeks and was obviously not there to observe spraying all the time and, in any event, this very general evidence is hardly potent support for the plaintiff's evidence that the shoot lengths were 10cm at the time when spraying commenced. The court also ignored Gordon's evidence that, at the time when the first video, which was put before the court, was taken, namely 15 October 1987, some of the shoots on the plaintiff's farm were 25cm long, and also totally ignored the independent evidence of Slabbert to the effect that on Conradie's farm, in the same vicinity as the plaintiff's farm, the shoot lengths were 15cm on 10 October 1983. I am not satisfied that the plaintiff discharged the onus in this regard.

With regard to the intervals between spraying, the
-38-

trial court relied upon the evidence of Gordon that when he carried out his tests he got satisfactory results with Bayleton although he allowed three weeks between spraying, and found there was a difference between Gordon's evidence and Leibold's evidence as to the proper period to allow between sprays for the various varieties of grapes. I do not think there is any material difference between the evidence of Gordon and Leibold as to which are sensitive varieties of table grapes. Gordon's evidence is that virtually all the varieties grown by the plaintiff were "sensitive" and should therefore have been sprayed every two weeks. With regard to Gordon's tests, he repeatedly made the point that the reason why he had allowed three weeks and even longer in the tests was in order to see whether, on a "worst case scenario", Bayleton would be successful in controlling oidium. The fact that these tests were successful in the particular year in which they were carried

-39-

out namely, 1979, does not appear to be a particularly material consideration in the light of the overwhelming evidence to the effect that the 1983/84 season was a year in which there was a very heavy infestation of oidium throughout the area, and in which the trial court found it probable that the conditions of temperature were optimal for the development of oidium in the Hex River Valley. What is more, the trial court appears to have overlooked the evidence of Gordon that it is to the cumulative effect of applying the spray "a bit late" and at too great intervals and without travelling every row of vines when spraying that regard must be had.

I deal now with the evidence regarding the admitted failure of the plaintiff to travel every row with the tractor and sprayer. The first three sprays applied by him were applied with the tractor travelling only alternate rows. Thereafter, when spraying he travelled every row but

-40-

sprayed only the sides where the bunches of grapes were.
One of the witnesses relied upon by him, a Mr S C Rossouw,
said that "normale bespuiting" involved "elke ry, albei
kante". The evidence continues:

"Alle rye albei kante? Ja, korrek.
Van die begin af? Ja.
Is dit die gewone? Dit is die normale gewone wyse
soos ons al die jare maar volg.
Ja, en tot u wete is dit die normale prosedure in die
Hexvallei? Dit is reg."

The evidence of Jooste, who was also called by

plaintiff, was that he unsuccessfully tried to persuade the plaintiff to travel every row. Jooste was also questioned about the plaintiff's evidence, that:

"... van die vierde bespuiting is elke ry ... net aan
die troskant bespuit."

When asked to comment on the effectiveness of this, Jooste said:

"Edelagbare, dit hang af. As ek by gewees het of dit

-41-

moes gesien het sou ek moes myself vergewis dat die
blare aan die bokant ook nat is. As hy nie die blare
aan die bokant natgespuit het nie was dit
ondoeltreffend.
Wat is die prosedure, die gewone prosedure? Om beide
kante te bespuit of nie? Ja, ons beveel aan dat
hulle beide kante bespuit.
HOF: Beide kante, beteken dit van bo en onder? Ja,
die ....

Of met 'n skuinste? Die hele blaaroppervlakte

moet benat word."

I come now to the evidence of Gordon as to the effectiveness of the plaintiff's method of spraying (i.e. travelling only alternate rows) as he observed it when the court held an inspection in loco on 11 November 1987. Gordon's evidence was to the effect that what was sprayed at the inspection included a substance called "Dithane", which was deliberately used because it is slightly yellow and would thus enable observers to see where the spray reached

-42-

from the Dithane residue left on the leaves. As not much of the visible residue of the Dithane could be seen on the side of the vines that were not directly sprayed, that indicated that not much of the spray had come through to that side of the vines. His evidence is supported by the photographs which he took at the time and which were put in as exhibits. It also clearly appears from Gordon's evidence under cross-examination, that, at the inspection in loco, there were two tractors or spray cars, one a yellow one and one a green one. The yellow spray car was spraying water combined with Dithane and the green spray car only water. The rows which Gordon observed and the photographs he took were in respect of the rows sprayed by the yellow spray car and not the green spray car. It was specifically put to him that it may have been the case that he had not seen a deposit on the rows which were sprayed only by the green spray car i.e. with water and

-43-

he said quite specif ically that this was not the position.
It is also apparent from questions put by the court during
the cross-examination of Gordon that the learned trial
judge's recollection of what he had observed at the

inspection in loco differed from what Gordon said he
observed. This difference of opinion recurs in the judgment
where the learned judge referred to the evidence of Gordon:
and said:

"He (Gordon) said that on the demonstration one should have noticed the remains of the yellowish powder used for spraying and that he saw none on the leaves on the side away from the tractor. I pointed out to him that I observed leaves finely covered with a mist, but saw no yellowish. powder spots afterwards. It then transpired that two tractors and spray pumps were used in the demonstration and only one was charged with the yellow powder. Apparently the one that I looked at was the row sprayed by the uncharged tractor, it may be that Mr Gordon also' looked at the leaves sprayed by the uncharged tractor."

This is directly in conflict with the evidence of Gordon.

There is, furthermore, an earlier passage in the judgment

-44-

which is also relevant on this aspect of the case. It reads

as follows:

" On the 11th November the Court was given a demonstration of how the vines were sprayed. A tank mounted on a trailer is filled with water to which the chemical to be sprayed is added and mixed. The tractor tows the trailer through the vineyard in alternate rows and a high pressure pump on the trailer forces the water from the tank through four or six nozzles spaced vertically on each side. The result is a very fine mist which is sprayed onto the vines to both sides of the row. In fact, the vines on both sides are for a short period while the tractor passes enveloped in an all pervasive fog. I particularly looked at leaves on the side of a row away from the side travelled by the tractor, and noticed that the leaves were all extensively covered by small droplets just as one would expect with a thick mist or fog. Hence it was clear that the mist penetrated through or around the trellis and covered the leaves on the awayside of both rows."

This is, once more, in conflict with the evidence of Gordon.

The proper method of recording the observations of the court at an inspection in loco was set out in Kruger v Ludick 1947(3) SA 23 (A) at p31 as follows:

-45-

"That may be done by means of a statement framed by the Court and intimated to the parties who should be given an opportunity of agreeing with it or challenging it and, if they wish, of leading evidence to correct it. Another method, which is sometimes convenient, is for the Court to obtain the necessary statement from a witness, who is called, or recalled after the inspection has been made. In such a case, the parties should be allowed to examine the witness in the usual way."

See also R v Barnado 1960(3) SA 552 (A) at 554E-H.

No statement was framed by the court in this case, nor was the statement obtained by the court from a witness. The plaintiff's counsel said that the reason for this omission was that a video recording had been made of the inspection in loco and put in as an exhibit, and that the plaintiff had given evidence as to what was visible on the recording. The video recording was, for some unknown reason, not available at the hearing of the appeal but, in any event, there is nothing in the plaintiff's evidence

-46-

about the inspection in loco which could be said to reflect
or record the trial judge's observations. In these
circumstances, all that is available to us, is the evidence
of the witnesses in this regard. One is left with the
evidence already referred to of Gordon and the following,
rather tentative, evidence of the plaintiff:

"Op die video-band word nou die ry getoon waar die
trekker nie loop nie. Wat neem u daar waar? Ek
neem aan dat die spuitstof deur die blaardak dring en ook deurgaan na die volgende ry toe."

In this respect also, I am not satisfied that the plaintiff
discharged the onus of showing that he followed the
directions of Bayer's representative in the field.

It is also quite clear that the plaintiff did not apply sulphur to Millhurst and Papland although Jooste says that that was his standard recommendation.

-47-

The plaintiff sought to counter the evidence that he had, on his own version, not shown that he had applied the Bayleton as directed, by arguing that on the evidence of three other wine farmers namely, J M Rossouw, S C Rossouw and De Wet Conradie, Bayleton did not work in the 1983/84 season even where the directions had been followed . This evidence was of little real assistance to the plaintiff. The evidence of J M Rossouw was that Bayleton did control the oidium on part of his farm but not on the remainder of his farm. The object of J M Rossouw's evidence seems to have been, in part, to show that a product that he bought as Bayleton in fact turned out to be "Dedevap", an insecticide, and in part, in an attempt to show that the Bayleton supplied in the 1983/84 season, which was supplied in green tins, was inferior to the Bayleton supplied in the preceding season, which was in blue tins. With regard to the mislabelling point, I am satisfied that the evidence

-48-

excludes any possibility of mislabelling other than with regard to one or two containers and certainly excludes the possibility with regard to any of the Bayleton supplied to the plaintiff. In fact, it was not submitted on behalf of the plaintiff that an insecticide had been delivered to him and not Bayleton. With regard to the theory (if it can be dignified by that title) that the 1982/83 Bayleton in the blue tins was superior to the 1983/84 Bayleton in the green . tins, this was completely exploded by reason of the following:

(a) The evidence of the plaintiff's witness Conradie that 751l of the total of 821l used by him in the 1983/84 season were bought in the previous season and yet, according to him, the Bayleton was unable to control the oidium on his farm.
(b) Samples were taken and tested on behalf of the plaintiff and the results of these tests were known to

-49-

the plaintiff at the time of the trial. Nevertheless, no evidence was adduced as to what they showed. Had they showed that the Bayleton was below standard in any way, I have no doubt that the results would have been produced. (c) Fairly extensive testing was done by Bayer which showed that the Bayleton in the 1983/84 season was up to standard. The trial court in any event found that the product complied with its specification and it was not argued on behalf of the plaintiff on appeal that the 1983/84 Bayleton was inferior in any way. J M Rossouw's evidence simply shows, therefore, that Bayleton was able to control oidium on one part of his farm in the 1983/84 season and did not control it on another part. His explanations for this are shown to be unfounded and do not afford a firm base for the drawing of inferences as to whether or not the Bayleton was
-50-properly applied.

There are two problems with regard to the evidence of Conradie. The first is that on his own evidence he started spraying a month too late and the second is the evidence of Slabbert. Slabbert's evidence was that in the year in which the plaintiff suffered the damage complained of, namely the 1983/84 season, he carried out certain tests of various sprays on Conradie's farm to test them for phytotoxicity (tendency to burn the leaves). For this purpose he used a number of fungicides including Bayleton. Although it was not the purpose of his test to see whether or not the sprays he used controlled oidium, the clear effect of his tests, as recorded, was that oidium was controlled by Bayleton on Conradie's farm that year.

This leaves the plaintiff only with the support of

-51-

the evidence of S C Rossouw and, in the light of the substantial evidence already referred to that the Bayleton was successful in controlling oidium in the Hex River Valley in the 1983/84 season, I do not think his evidence materially assists the plaintiff in discharging the onus of proving that he applied the Bayleton properly.

The negligence:
There is no evidence that any representation made by Bayer was negligently made. There was a very substantial body of evidence available to Bayer at all material times which indicated that Bayleton emulsifiable concentrate was indeed suitable for controlling oidium on wine and table grapes.

-52-

On the facts, Bayleton had been extensively tested in its wettable powder form and found successful; it had been tested in its emulsifiable concentrate form and found effective, and the registrar had registered both such substances in terms of s3 of the Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, No 36 of 1947, as agricultural remedies. In terms of s3(2)(a) the registrar must be satisfied, inter alia, that the agricultural remedy "... is suitable and sufficiently effective for the purposes for which it is intended ..." before registering it. The evidence of Gordon established that the active ingredient in the Bayleton wettable powder (which was registered in 1977) was precisely the same as that in Bayleton emulsifiable concentrate namely, Triadimefon, and Gordon said that the tests relating to the powder were also material in gauging the reliability of the concentrate. There was no evidence to the contrary and no

-53-

reason not to accept his evidence on this point.
Furthermore, the Bayleton emulsifiable concentrate had
worked extraordinarily well on the plaintiff's own vineyards

in January 1981 and in the 1981/82 and 1982/83 seasons and,

in fact, had worked extremely well on vineyards in the Hex
River Valley generally. In addition, Bayer was aware of an
article published in a journal (S.Afr. J. Enol. Vitic, Vol.2
No.1 1981) entitled Triadimefon, A Systemic Fungicide
Against Uncinula Necator (Oidium) on Wine Grapes: Disease
Control, Residues and Effect on Fermentation and Wine
Quality by A Tromp and P G Marais of the Oenological and
Viticultural Research Institute, Stellenbosch, which
contained the following conclusions:

"Triadimefon gave excellent control of Uncinula necator infection in field trials on grape vines. In the case of heavy infections in these trials, vine sulphur proved quite inadequate to control the disease, while triadimefon was still effective."

Reference was also made to the findings of foreign

-54-

researchers who published findings in 1974, 1977 and 1978, who also found Triadimefon an effective fungicide for the control of powdery mildew. It was also concluded that Triadimefon applied, as recommended by the manufacturers, "... is very effective in controlling powdery mildew (Uncinula necator) infection on grapes." Gordon's evidence was that Uncinula necator and Oidium tuckeri are sexual and vegetative phases of the same fungus.

There was some suggestion that Bayer should have indicated that Bayleton was systemic only in a limited way. This was not the negligence pleaded and, in any event, the
evidence establishes that it is systemic before heavy lignification ("verhouting") has taken place in the vines, and there was certainly no suggestion that Bayer ever represented that Bayleton was equally effective as a systemic fungicide throughout the season.

-55-

I have already referred to the application by the court a quo of the process of reasoning which is embodied in the words res ipsa loquitur. There may well be good reasons of policy for allowing this process of reasoning to be applied to the case where a merchant/seller is being sued on the grounds of a defect in his product which has caused damage (provided of course the facts are such as to give rise to an inference of negligence). These policy considerations have formed the basis of a number of learned discussions-dealing with defects in the thing sold which are conveniently. referred to and analysed in Boberq: THE LAW OF DELICT Vol 1 p 195 et seq.

It is not clear to me that, where the complaint is that the thing sold did not have the attribute it was represented to have, the same considerations apply as in the case where it is "unreasonably dangerous" or unsafe cf

-56-

Prosser: Law of Torts 4th Ed p659. The trial court, however,
after referring to certain of these discussions concluded

(without giving any reasons for such conclusion) that what
was said by certain of those writers in connection with a
defect in the product itself applied also where a person "...
with expert knowledge makes a representation in regard to a
product and it turns out to be a misrepresentation."
Assuming, without deciding, that the same principles apply
and that accordingly, as a matter of policy, as Boberg puts

it "... proof of negligence should be facilitated by applying-
res ipsa loquitur where appropriate . ..", there was no basis
for finding it appropriate on the facts of this case. As
pointed out by one of the learned authors referred to by the
court a guo, de Jager (Produkte-aanspreeklikheid) (1978) 41
THRHR 347 at 363:

"Res ipsa loquitur beteken slegs dat [van] die skadestigtende gebeure op sigself beskou 'n afleiding van nalatigheid gemaak kan word. So 'n afleiding is

-57-

slegs geregverdig indien die skadestigtende gebeure volgens algemene ervaring nie sou plaasvind indien iemand nie nalatig was nie."

The evidence in this case precludes any possibility that the Bayleton supplied to the plaintiff was not up to standard or did not comply with its
specifications. (It also precludes any possibility that what was supplied to the plaintiff was not Bayleton but some other substance). We are dealing here with the situation where, some time after the product had left the control of Bayer (we do not know precisely how long), it was applied by the plaintiff to his crops in order to control a fungus disease - a situation, furthermore, where the evidence was that the ability of the product to control the disease was, to a large extent dependent upon it being properly applied. Furthermore the court found that the conditions of temperature in the season in question were optimal for the

-58-

development of oidium and indeed the plaintiff himself

described that season in the following terms:

"... In al die jare wat ek boer of wat ek gehoor het van boere wat langer boer, was daar nog nooit so 'n oidium-besmetting gesien nie ..."

In these circumstances there was, in my view, no room for the operation of res ipsa loquitur.

Causation:

I should also add that in my judgment the

plaintiff failed to prove that he was induced to apply
Bayleton by reason of the statement. He certainly did not

say in his evidence that he had been so induced. The manner

in which he first became acquainted with Bayleton appears

from the following passage:

"Nou kan ons net teruggaan mnr Viljoen. Hoe lank boer u reeds vir u eie rekening? -- Sedert 1980 boer ek vir my eie rekening.

-59-

In daardie jare, tot en met die 1983/84-oes, welke spuitmiddel het u gebruik vir die beheer van witroes? - Tot en met Januarie 1981, uitsluitlik swael en sedert Januarie 1981 Bayleton tot en met die skade begin opduik het.
Hoe het u die eerste keer gedurende 1981 van Bayleton te hore gekom? — U Edele, op 25 January 1981 was die Laingsburg-vloed en my gedeelte grond op Millhurst wat teen die rivier lê is oorstroom. Die grond was geweldig nat en ek kon vir 'n lang tyd nie daar inkom nie. Daar het geweldige uitbraak van Oidium plaasgevind, veral in die Waltham Cross op daardie plaas. Ek het met 'n vriend van my, mnr Jaap le Roux, gesels oor die probleem. Hy het my toe verwys na mnr Pierre de Wet, wat, volgens sy inligting - en hy het ook ondervinding daarvan gehad - 'n sekere middel het wat baie goed is vir die beheer van Oidium.

Pierre de Wet van wie? -- Pierre de Wet van die firma Bayer.
Ja? -- Ek het toe mnr Pierre de Wet geskakel en vir hom gevra of ek van die middel kan kry aangesien ek desperaat is want swael sal op daardie stadium nie meer werk nie en ek kan ook nie met my swaelbalke inkom in daardie blok nie. Hy het toe gesê hy kan dit vir my bring maar hy kan dit nie vir my aanbeveel op tafeldruiwe nie want dit is nie geregistreer nie. Ek het toe vir hom gesê 'Goed, ek is bereid om dit op my eie risiko te spuit.' Hy het nog die opmerking gemaak, hy het gesê Goed, as jy pampoene het op jou plaas kan ek dit vir jou bring want dit kan wel op pampoene gespuit word.' Ek het toe vir hom gesê 'Maar jy weet ek het mos 'n klomp pampoene hier.' Hy het toe die vyf liter Bayleton - wat ek later uitgevind het wel

-60-

Bayleton blyk te wees, dit het toe bekend gestaan as Nommer 8 - vir my gebring en hy het vir my gesê 'Spuit die druiwe goed nat, veral op die trosse' want dit is waar die Oidium op daardie stadium voorgekom het. Ek het my kettingtrekkertjie gevat - dit is al trekker wat ek in die nat wingerd mee kon inkom en die druiwe goed natgespuit aan die troskant en dit veertien dae later opgevolg. Daardie druiwe was geheel-en-al vry van Oidium binne die twee weke. Dit was iets ongeloofliks, 'n mens kan dit nie glo nie, nadat dit totaal besmet was, as jy die tros oopmaak is hy spierwit van die spore binne-in en na 14 dae was daar geen teken van spore nie."

It is thus clear that it was the plaintiff who approached
Bayer, that Bayer's representative said that he could not
recommend what the plaintiff subsequently learned was
Bayleton for use on grapes because it had not yet been
registered, but that it could be used on pumpkins. It was
on that basis that the plaintiff used Bayleton on his
infected grapes with miraculously successful results. He
also said that in the 1981/82 season and in the 1982/83
season he used only Bayleton to spray his grapes "met baie
goeie resultate". When cross-examined by counsel for WPK the

-61-

plaintiff said that even at the stage where a meeting was
held on 5 March 1984 and complaints were made to Bayer's
representatives about Bayleton:

"... Ek persoonlik het nog altyd geglo dat dit moet 'n goeie produk wees want hy het vir my wonderlike resultate gegee die vorige lare". (my underlining)

Furthermore, when cross-examined as to why he was still

buying Bayleton in January 1984, he said "Ek kon nie glo dat

die middel nie werk nie want dit het in die verlede altyd

gewerk." The plaintiff's counsel sought to explain these

passages by arguing that the evidence showed that in 1981/82

and 1982/83 there was no oidium in the Hex River Valley and

this is why the Bayleton had "worked" in those years. The

evidence, when read in context, does not support that

suggestion. The plaintiff would not have said that the

Bayleton had "worked" or had given "wonderlike resultate" if

there had been no oidium for Bayleton to work on or contend

with. Furthermore, the evidence establishes clearly that it

-62-

is an expensive substance. The plaintiff paid R5 657,47 for the Bayleton purchased by him in the 1983/84. That the plaintiff, an experienced wine and table grape farmer, would have spent this sort of money to counteract oidium when there was no disease to counteract is in the highest degree improbable. In any event, this argument is wholly inconsistent with the evidence of the expert witnesses called by Bayer to the effect that oidium is, and has apparently for at least a hundred years been, endemic in vineyards in the Western Cape and that it is always present. In some years outbreaks are worse than others but the evidence is all one way to the effect that it is always necessary in the Western Cape in general, and in the Hex River Valley in particular, to apply fungicides to counteract oidium.

The position is therefore that the plaintiff found

-63-

Bayleton a "wondermiddel" in an emergency situation early in 1981 and that he used it with complete success on its own to counteract oidium in the 1981/82 season and the 1982/83 season. In these circumstances the probabilities are strong that it was his previous experience with Bayleton that caused him to use it in the 1983/84 season. He certainly said nothing to suggest that this was not the case. The plaintiff accordingly failed to prove that he was induced to apply Bayleton by reason of any statement on the part of Bayer.

For all these reasons the trial court should have found that the plaintiff's action against Bayer failed.

The claim against WPK:
This can be briefly disposed of. The court a quo held that WPK "... was also sued in delict." Had that been correct, the action should have failed for reasons similar but not in

-64-

all respects identical to those dealing with Bayer's

liability. (e.g. I am by no means certain that any
representation by WPK was proved) In fact, it was not correct
to say that WPK was sued in delict. It is plain from the
particulars of claim against WPK and in particular para.7(8)
that, whereas the claim against Bayer was on the grounds of
an alleged breach of contract alternatively, negligence, the
only claim against WPK was one based on breach of contract.
Furthermore,

"Even if a breach of contract should properly be classified as a form of delict, that would not alter its essential characteristics or eliminate the differences which exist between an action for damages arising ex contractu and liabiiity pursuant to the extended Aquilian action which the respondent has sought to invoke in the present case."

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)

(Pty) Ltd 1985(1) SA 475 (A) at 496B.

The term of contract alleged to have been breached

-65-

was that it was "... 'n uitdruklike alternatieweiik

stilswyende bepaling van die ooreenkoms" that Bayleton was

suitable as a systemic fungicide for the control of powdery
mildew on grapes. There is a complete answer to this claim.
It was common cause that the contract between the plaintiff
and WPK was governed by the conditions on the delivery note
to the following effect:

"No GUARANTEES. We give no guarantee, express or implied (and none of our representatives are authorised to vary this condition in any way) as to the effectiveness of any agricultural preparations, sprays, insecticides or veterinary preparations, and of any seed, which we sell. We are not in any way responsible for the results obtained. All guotations are given and orders accepted on the understanding that these conditions are agreed on. IF THE PURCHASER DOES NOT ACCEPT THE GOODS ON THESE TERMS THEY ARE TO BE RETURNED AT ONCE."

The Afrikaans text is slightly less extensive and reads as

follows:

"GEEN WAARBORGE. Ons gee geen waarborg uitdruklik of stilswyend (en geen van ons verteenwoordigers is gemagtig om hierdie voorwaarde in enige opsig te wysig

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nie), aangaande die doeltreffendheid van enige-landbouvoorbereidings, spuitmiddels, insekgiwwe, of veeartsenykundige preparate en die beskrywing, gehalte of vrugbaarheid van enige saad wat ons verkoop nie. Alle prysopgawes word gegee en bestellings aanvaar op die veronderstelling dat op hierdie voorwaardes ooreengekom is, INDIEN DIE KOPER NIE DIE GOEDERE OP HIERDIE TERME NEEM NIE, MOET DIE GOEDERE ONMIDDELLIK TERUGGESTUUR WORD."

(There is also a limitation of liability clause but it is

unnecessary to deal with this.)

Even on the basis of the slightly less extensive exclusion of liability contained in the Afrikaans version, it clearly excludes liability based on a breach of a "stilswyende bepaling" of the agreement and there was certainly no proof of an express term to the effect alleged. Insofar as the claim could be said to be based on WPK's liability as a dealer/seller, which professed to have expert knowledge and skill, the simple answer is that it was not alleged that Bayleton was defective nor was it proved that

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In the case of both Bayer and WPK, the appeal is upheld with costs, such costs to include the costs consequent upon the employment of two counsel. The order of the court a quo is set aside and there will be substituted, therefor, the following order:

"In the claim against the defendant there will be absolution from the instance with costs, such costs to include the costs consequent upon the employment of two counsel; in the ciaim against the third party there will be absolution from the instance with costs."

A J MILNE

Judqe of Appeal

JOUBERT JA ]
VIVIER JA ]
STEYN JA ]
NICHOLAS AJA ]