IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. CA135/18

Date heard: 18/2/19

Date delivered: 14/3/19

Not reportable

In the matter between:

Hendrik Botha 									Appellant

and

Izak Petrus Grobbelaar 							      Respondent

JUDGMENT

Plasket J

[1]	It is common cause that, on 24 April 2014, Mr Hendrik Botha, the appellant, and Mr Izak Grobbelaar, the respondent, entered into an oral agreement in terms of which Mr Botha sold to Mr Grobbelaar, for a consideration of R912 000, four weaned copper, colour variant, blesbuck. The purchase price was paid in two equal tranches on 26 April 2014 and 5 September 2014. On 5 September 2014, four animals were darted by Dr Schalk Jansen van Rensburg, a veterinarian engaged by Mr Botha. One animal was found to be too young. It was revived and released. The other three, a ewe and two rams, were loaded into a game transporting trailer and conveyed to Mr Grobbelaar’s farm a short distance away. The ewe died within minutes of arrival. The two rams were in a distressed state. One died a short while later, while the other died during the course of the night.

[2]	As a result of the deaths of these animals, Mr Grobbelaar sued Mr Botha for damages arising from what he alleged to be Mr Botha’s breach of a tacit term of their contract – his failure to deliver four animals that were in good health. Smith J, in the court below, found that the term relied upon by Mr Grobbelaar was indeed a tacit term of the contract and that it had been breached by Mr Botha because the animals had succumbed to capture myopathy, a syndrome induced by undue stress in the capture process. He awarded damages to Mr Grobbelaar in the amount of R2 850 000, the value of four copper blesbuck at the date of the breach. Mr Botha appeals against Smith J’s order and does so with the learned judge’s leave.

[3]	The issues that arise for determination in this appeal are narrow. Smith J found that there were no reasonable prospects of a court of appeal finding that the tacit term had not been established or that Mr Botha did not bear the risk of any harm befalling the blesbuck during the capture process. He granted leave to appeal on one issue only – whether the blesbuck died as a result of capture myopathy. The result of this is that if they died because of capture myopathy, the tacit term would have been breached by Mr Botha, and the appeal would fail. If they died as a result of a cause unrelated to, and posterior to, the capture process, the tacit term would not have been breached, and the appeal would succeed.  

The approach: factual findings on appeal

[4]	This appeal relates to the correctness of Smith J’s findings in respect of the cause of death of the three blesbuck. An appeal against factual findings does not involve a rehash of the evidence and a fresh decision on the facts by the court of appeal. Instead, the proper approach starts from the assumption that a trial court’s factual findings are correct. They will only be interfered with on appeal if they are shown to be the product of misdirection or are clearly wrong.

[5]	Jones J, in Meintjies v Esterhuizen & another, explained the approach and its rationale thus: 

‘A court may make incorrect findings of fact because the trial judge misdirects himself in a material respect and in a manner which prevents him from applying his mind properly to the issue before him.  Or, the court's finding of fact may be incorrect simply because the trial judge made a mistake by not evaluating the evidence properly. In either event the incorrect decision should not be allowed to stand. But it is less difficult for an appellant to persuade a court of appeal to interfere with a decision because of a misdirection in the sense set out above than in a case where the trial judge is thought to be mistaken. A trial judge who has not disqualified himself by misdirection is in a better position than a court of appeal to make a correct determination of the facts because, being steeped in the atmosphere of the trial, he has had the opportunity of seeing, hearing and appraising the witnesses. He is best able to assess the credibility of the witnesses and the reliability and honesty of their versions. This advantage is not necessarily confined to the fact-finding process, but may extend also to the correct inferences to be drawn from the facts. The result is that the trial judge's findings of fact are presumed to be correct, and it is "only in exceptional cases" that a court of appeal will interfere with his evaluation of oral testimony. It will only do so when, after making due allowance for the trial judge's advantages, it is quite satisfied that the evidence taken as a whole cannot support his conclusions.’

[6]	The result is that the focus, in an appeal against factual findings, is on the decision-making process of the trial judge, rather than primarily on the evidence. This was made clear, albeit in the context of a criminal trial, in S v Francis in which Smalberger JA held:

‘This Court's powers to interfere on appeal with the findings of fact of a trial court are limited. Accused 5's complaint is that the trial court failed to evaluate D's evidence properly. It is not suggested that the court misdirected itself in any respect. In the absence of any misdirection the trial court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused 5 must therefore convince us on adequate grounds that the trial court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial court's evaluation of oral testimony.’

[7]	In Taljaard v Sentrale Raad vir Kooperatiewe Assuransie  Bpk Van Blerk JA held the issue, when factual findings of a trial court were attacked on appeal, was not whether reasonable doubt existed as to the correctness of the findings, but whether the court of appeal, for sound reasons, is convinced that those findings are incorrect. 
  
Background facts

[8]	The facts related to the capture of the blesbuck on 5 September 2014, their conveyance from Mr Botha’s farm to Mr Grobbelaar’s farm and the circumstances of their demise is, to a large extent, either common cause or not in dispute in any material sense. 

[9]	The capture of the animals was meant to commence at about 09h00 on 5 September 2014. Mr Grobbelaar arrived at about that time together with a neighbour, Mr Murray, who had given Mr Grobbelaar the use of his game-capture trailer for the conveyance from the site of capture to Mr Grobbelaar’s farm.  

[10]	The helicopter from which the animals were to be darted arrived at much the same time as Mr Grobbelaar and Mr Murray.  Dr Van Rensburg, who was to dart the animals, only arrived after 11h00. The capture of the animals commenced thereafter.  By this time, the temperature was 29 degrees Celsius.  

[11]	After the helicopter had driven a herd of blesbuck to a corner of the camp they were in, the helicopter hovered for a while before landing. Those on the ground were summoned. One darted animal was retrieved, loaded onto a vehicle and taken back to the trailer. On the way, however, Mr Murray saw another animal lying in the grass.  It too was taken to the trailer with the first animal. These animals were placed in two separate compartments in the trailer. 

[12]	Then the third and fourth animals were darted, delivered to the trailer and placed in separate compartments. At this stage, the second animal that had been captured was released because it was too young.  

[13]	The entire capture process took between 40 to 50 minutes. 

[14]	Dr Van Rensburg administered a dose of Stressnil to the three remaining animals and cleared them for transportation to Mr Grobbelaar’s farm. 

[15]	Mr Grobbelaar and Mr Murray left Mr Botha’s farm with the animals. It is a short distance between the respective farms. The journey took about 20 minutes. Along the way, they stopped to open a gate and Mr Grobbelaar inspected the animals by looking into ventilation holes, while an employee of Mr Murray looked from the top of the trailer.  Mr Grobbelaar saw two of the animals. One was standing upright while the second was lying on its sternum against the side of the trailer. All looked to be in order with the three blesbuck.  

[16]	When they stopped at the place where they were to unload the animals, however, they realized quickly that something was amiss. Mr Grobbelaar led the first animal a short distance from the trailer. When he released it, it walked another ten metres and ‘it just stood there’. He thought that the animal’s behavior was strange. 

[17]	At about the same time Mr Murrary, who was in the trailer, shouted to Mr Grobbelaar to call the veterinarian. Mr Murray told Mr Grobbelaar that one of the animals in the trailer had collapsed and was unable to stand up. He described the condition of this animal as follows: 

‘I just saw the animal hyperventilating I would say and the legs doesn’t work, she is just not, she is conscious, but if you pick her up it is like she is just lame, it is just, and she has got heavy breathing, and he just left her like that, and opened the next door so long to get the [interrupted].’ 

[18]	This was the animal that had been lying on its sternum when Mr Grobbelaar had looked through the ventilation holes. The animal died a minute or two later while still in the trailer.  

[19]	The third animal was taken out of the trailer but it was unable to stand.  Whenever Mr Grobbelaar got it onto its feet, it collapsed. He and Mr Murray carried it to a water trough where they put water on its head and back. 

[20]	Dr Van Rensburg arrived in the helicopter. He inspected the dead animal and then administered drugs to the animal at the water trough. He inserted a trocar into the left side of this animal but Mr Grobbelaar did not notice any gas being released or any sign of bloat in the animal. This animal died about a minute later.  

[21]	Dr Van Rensburg said that Mr Grobbelaar should not be concerned about the surviving animal as it was ‘fine’. He then performed rudimentary post-mortem examinations on the two dead animals. He commented on the fact that both had congestion of blood on the lungs.  He said that, as he had expected, both animals were bloated. Having been on the scene for about an hour, Dr Van Rensburg left. 

[22]	Mr Grobbelaar later noticed that the surviving animal ‘started lying down and then it will swing its neck back right back to where it touched its body, and then it will swing it forward and he will be drifting with his mouth and his nose right in the sand, and it looked like [he] pauses for a moment and then it will pick up his head and swing it back, like he is confused…’.

[23]	Mr Grobbelaar and Mr Murray decided to place the carcasses of the dead animals in Mr Grobbelaar’s cold room. They did so by placing the carcasses in separate marked bags and the intestines of the animals in other separate marked bags. They left the third animal where it was lying.  Mr Grobbelaar returned to Mr Botha’s farm and spoke to Mr Botha about the problem that had arisen. Mr Botha said that he wanted to speak to Dr Van Rensburg before committing himself to anything. 

[24]	As the sun was setting, Mr Grobbelaar went to check on the surviving animal.  It was lying in the same spot where it had been earlier, and in the same position.  When he returned the next morning the animal was dead. He took its carcass to his home, gutted it and placed the carcass and the intestines in separate marked bags in the cold room.   

[25]	Two days after the capture of the animals, Mr Grobbelaar met with Mr Botha. Mr Grobbelaar said that he wanted the animals to be replaced by Mr Botha or to be given his money back. Mr Botha assured him that he would sort the problem out but said that he had no intention of replacing the animals or reimbursing Mr Grobbelaar what he had paid for them.

[26]	After consulting with his veterinarian, he arranged for Dr Eddie Snyman, the Chief Veterinarian of Grootfontein Agricultural College in Middelburg to conduct post-mortem examinations on the three animals. He was present when the post-mortem examinations were conducted. Dr Snyman concluded from his observations that the animals had died as a result of capture myopathy. He took a number of samples from each of the carcasses and sent these to Dr Elizabeth Du Plessis, the Head of the Diagnostic Anatomical Pathology Laboratory at IDEXX Laboratories. 

[27]	Dr Du Plessis’ analysis of the samples confirmed Dr Snyman’s finding that the animals had died as a result of capture myopathy. 

The defence

[28]	Mr Botha pleaded that the cause of the death of the three blesbuck was not capture myopathy but bloat. Presumably, this defence had its origin in the opinion expressed by Dr Van Rensburg when he conducted rudimentary post-mortem examinations on the first two animals to die.

[29]	This defence did not last. First, Mr Grobbelaar, an experienced sheep farmer, saw no symptoms of bloat in the animals and when Dr Van Rensburg inserted a trocar into one of them, he heard no escape of gas. Secondly, Dr Snyman, who had been alerted to Dr Van Rensburg’s opinion, found no evidence to support it when he conducted post-mortems on all three of the animals. Thirdly, Mr Botha’s own expert witness, Dr Johan Steyl, a specialist in wildlife pathology, disavowed bloat as a cause of death. Finally, Dr Van Rensburg appeared to accept that his initial diagnosis had been incorrect when he conceded that the specialist reports indicated that the animals died as a result of ‘stress’.

[30]	With the ‘bloat defence’ in tatters, Mr Botha turned to Dr Steyl for an alternative theory as to the cause of the deaths of the three blesbuck.

[31]	While Dr Steyl took issue with certain of Dr Du Plessis’ findings and criticized Dr Snyman for having taken samples from too close to the dart sites on the rumps of the animals, he too was of the view that the animals had died of heart failure induced by stress.

[32]	Dr Steyl differed from the expert witnesses called on behalf of Mr Grobbelaar in one fundamental respect: he expressed the view that the stress-inducing event was not the capture but the conveyance from Mr Botha’s farm to Mr Grobbelaar’s farm. Something, he said, must have occurred during this trip to trigger the fatal stress in all three animals. He based his theory on one fact – that the young animal that had been darted and released had survived. Ultimately, he surmised that what had caused the fatal stress was the placing of the animals in separate compartments in the trailer, rather than together. 

Smith J’s judgment

[33]	Smith J found that the case had been established that the animals had died as a result of capture myopathy. He rejected Dr Steyl’s theory as speculative and based on a non sequitur. It is to Smith J’s reasoning that I now turn.

[34]	Smith J’s finding that Mr Grobbelaar had established that the animals died as a result of capture myopathy is based on an acceptance by him of three inter-related aspects of the evidence.

[35]	First, Smith J referred to the SABS Code of Practice: Translocation of Certain Species of Wild Herbivore which provided inter alia that it was not advisable to dart animals in ambient temperatures in excess of 25 degrees Celsius; that in order to protect darted animals from the effects of high temperatures, shade should be provided and water should be available to cool animals that had become hypothermic; and that while tranquilisers should be used to facilitate translocation of animals and to reduce stress in captured animals, tranquilisers should not be administered to animals that are stressed due to heat or over-exertion (as they have the effect of increasing body temperature).

[36]	It is clear from the judgment that Smith J did not, as Mr Murphy, counsel for Mr Botha, argued, regard the SABS Code of Practice as the law of the Medes and the Persians. In keeping with the evidence before him, he regarded it as a guideline for those involved in the game capture industry.  

[37]	It is common cause that when the blesbuck were captured, the temperature was 29 degrees Celsius at least, the animals were not cooled down with water and a tranquiliser was used as part of the cocktail of drugs in the darts and was administered to them before they were conveyed to Mr Grobbelaar’s farm. These factors all increased the risk of capture myopathy.

[38]	Secondly, Mr Grobbelaar gave detailed evidence of what he observed when he and Mr Murray offloaded the two surviving animals from the trailer. On the basis of the evidence of Dr De Bruyn, Smith J accepted that the behaviour of the animals that Mr Grobbelaar had observed was consistent with the symptoms of capture myopathy.

[39]	Thirdly, Smith J accepted the expert opinions of Dr Snyman and Dr Du Plessis that, from their scientific investigations, they were of the view that all three animals were likely to have died as a result of capture myopathy.

[40]	As against this consistent factual framework, the defence pleaded by Mr Botha was effectively blown out of the water: Dr Steyl, when pressed, was not prepared to express an opinion that the animals died as a result of bloat; the facts testified to by Mr Grobbelaar render it all but impossible for bloat to have been a credible cause of death; and Dr Van Rensburg’s insistence that he saw signs of bloat in the animals is, in the light of all of the evidence, improbable.

[41]	Instead, Dr Steyl’s explanation for the cause of the deaths of the animals was consistent with that of Dr Snyman and Dr Du Plessis. He was of the view that they died as a result of ‘acute splanchnic shock resulting in fatal ruminal intestinal hypoxia or acute heart failure as a result of exhaustion’. (The bloat aspect of this finding can safely be ignored.) In other words, as I understand it, as a result of exhaustion, the animals’ internal organs began to shut down, they began to suffer an acute shortage of oxygen and their hearts stopped beating. This conclusion as to the mechanics of the deaths of the animals is, for all intents and purposes, similar to the conclusions drawn by Dr Snyman and Dr Du Plessis. What remained in issue was what induced the stress – the capture or the conveyance.    

[42]	Smith J’s reasons for his rejection of Dr Steyl’s theory of why the animals died is contained in the following passage in his judgment:

‘[81]	It is in my view manifestly improbable that the translocation of the tranquilised animals in separate compartments for between 20 and 30 minutes could have caused sufficient stress to result in their deaths. In the event, Dr Steyl’s speculative theory in this regard was also debunked by Dr Janse Van Rensburg who said that it was good practice to transport animals in separate compartments. Moreover the SABS standards do not prescribe mass translocation of Blesbuck, but merely permit it under certain circumstances.

[82]	Dr Steyl’s theory is accordingly no more than mere conjecture, and he did not provide any scientific or factual foundation for it. So also is his reasoning that the mere fact that the youngest ram which had been released survived, compels the inference that the trauma which caused the animals to die could only have been inflicted during the process of their translocation. This argument is in my view a non sequitur and speculative.’

[43]	Smith J was critical of Dr Steyl as a witness: while the other witnesses were willing to make concessions when necessary, Dr Steyl had unreasonably and, at times, obstinately ‘refused to admit the obvious and reasonable alternative theory, namely that the animals could have died from exertion or hypothermia inflicted during the course of their capture’.

[44]	Smith J concluded that the evidence had established that ‘it is more probable that the animals had died as a result of capture myopathy caused by the manner of their capture’ than it was that they died as a result of trauma caused by their relocation.   

Conclusion

[45]	I turn now to the core question that arises in this appeal – whether it can be said that Smith J misdirected himself as to the facts or that good grounds exist to show that Smith J’s factual findings were incorrect.

[46]	Once the ‘bloat defence’ was removed from play, the experts were ad idem as to the mechanics of death of the animals – that their systems shut down as a result of stress, resulting in heart failure. The central issue Smith J had to decide was whether that stress was induced by the capture process or by the translocation process.

[47]	Convincing evidence was adduced on behalf of Mr Grobbelaar to establish capture myopathy: the capture was conducted in circumstances that increased the risk of capture myopathy; when the last two surviving animals were in the throes of death, the symptoms they displayed were consistent with capture myopathy; the post-mortems and pathological examinations revealed that all three animals had died of the same cause, that they displayed signs consistent with capture myopathy and to the extent that there may have been doubt, that doubt was removed by the presence of myoglobin in the last dying animal’s kidneys (and possible traces of it in the others); and of the two events – the capture and the translocation – the former was clearly the more traumatic and likely to induce high levels of stress in the animals.

[48]	Dr Steyl’s theory that the blesbuck died because they were separated in the trailer ignores the fact that self-evidently the capture of the animals was far more traumatic than their conveyance to Mr Grobbelaar’s farm a short distance away. It is based on one fact – that the youngest animal that was darted and released survived. That does not serve as a logical starting point because there may have been any number of reasons why it survived and the other three animals did not. It may have been stronger. It may have been made of sterner genetic material than the others. It may have exerted itself less than the others, as it appears to have been the first animal to have been darted. In any event, it was also placed in a separate compartment in the trailer for about an hour before a decision was taken to release it.

[49]	Dr Steyl’s theory is, by his own admission, speculative. He testified that he believed that ‘something must have happened in the period from where the trailer left to where it was offloaded’. As the evidence of Mr Grobbelaar shows an entirely uneventful journey, no such event could be pointed to. As a result, Dr Steyl said that he had a ‘strong suspicion’ that the animals’ extreme stress levels were caused by them being ‘taken away from their herd and weaned, individually placed not together, so they did not have any company as a herd animal’. This, he thought, ‘may have been just enough stress to in fact put them into cardiac shock which basically ended then in the death of the animals’.

[50]	The speculative nature of the theory was exposed in cross-examination. First, when Dr Steyl was asked whether his evidence was that had the animals been placed together in the trailer, they would not have died, he said that he could not say that that would have been the case. Secondly, he knew of no study or research that had found that transporting blesbuck separately could cause them to die. Thirdly, he conceded reluctantly that the administration of the tranquiliser Stressnil (whatever its other effects may have been) before the trailer left Mr Botha’s farm would have reduced the levels of stress in the three animals. Finally, his theory flies in the face of the evidence of Dr Van Rensburg that placing blesbuck in separate compartments is good practice and that the movement of the vehicle tends to have a soothing effect on animals.

[51]	In my view, there is simply no indication in the record of Smith J having misdirected himself. There is, likewise, no sign of error on his behalf. As I have demonstrated with reference to the evidence of Dr Steyl, Smith J was correct in his assessment of that evidence as speculative and based on a non sequitur. That being the case, the appeal must fail. Before I make an order to that effect, I believe it is necessary to say something of Dr Steyl as an expert witness.

[52]	Dr Streyl was criticised by Smith J for his unreasonable reluctance to make concessions when concessions ought to have been made. I have read his evidence with care and am of the view that Smith J’s criticisms of him are valid. The function of an expert witness, Addleson J held in Menday v Protea Assurance Co Ltd, ‘is to assist the Court to reach a conclusion on matters on which the Court itself does not have the necessary knowledge to decide’. In order for an expert to be of assistance, a court must be able to have faith in his or her objectivity. In Schneider NO & others v AA & another Davis J said the following of the role and responsibility of expert witnesses:
‘In short, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.’

[53]	Dr Steyl’s evidence displayed a marked tendency to promote and argue the case for the defendant, rather than to give objective scientific evidence that would assist the court to ascertain where the truth lay. As a result, his evidence was of little value.  

The order

[54]	The appeal is dismissed with costs, including the costs of the application for leave to appeal.

_________________________
C Plasket
Judge of the High Court

I agree.

_________________________
M Lowe
Judge of the High Court

I agree.

__________________________
B Tokota
Judge of the High Court

APPEARANCES

For the appellant:				A J Murphy
Instructed by:
Whalley & Van Der Lith Inc, Johannesburg
Wheeldon Rushmere & Cole, Grahamstown

For the respondent:				D H De La Harpe
Instructed by:
Coetzee & Venter Inc, Cradock
McCallum Attorneys, Grahamstown