Pioneer Foods (Pty) Ltd v Bekker [2016] ZAECGHC 103 (20 September 2016)

The case involves a dispute between Pioneer Foods (the appellant) and Johannes Marthinus Bekker (the respondent) over the death of a substantial number of the respondent's livestock. The respondent claimed that the deaths were caused by ingesting screenings (a by-product of maize milling) supplied by the appellant, which were allegedly contaminated with a respiratory metabolic nerve toxin called aluminum phosphide or botulism toxin. The matter was heard by Lowe J, who found in favor of the respondent, concluding that the respondent had established the existence of a latent defect in the product at the time of delivery. The appellant was granted leave to appeal against this ruling.

The respondent's claim was based on an oral contract for the purchase of 1.94 tons of screenings from the appellant. The claim was founded on the actio ex empto, with the appellant admitting to being a manufacturer of the product and publicly professing to have the necessary skill and expert knowledge. The appellant's defense centered on the argument that its supplied product was not latently defective by contamination at the time of sale and delivery.

The respondent presented evidence from five witnesses, including himself, an animal scientist, a senior research technician, an attending veterinarian surgeon, and a retired professor of chemistry. The evidence revealed that the respondent farmed on two separate farms, Amazango and Floukraal, located 120km apart. The respondent began exercising his rights under a tender awarded by the appellant in 2008, where he was supplied with screenings and a by-product called "hominychop." These products were mixed with other products depending on the type of livestock being fed.

On Friday, August 26, 2011, the respondent collected the feed from the appellant's mill and noted a sharp smell associated with the feed that burned his nose and eyes. The feed was mixed the next day under his supervision and fed to the animals on both farms. The following day, a bull and some cows on Amazango were found dead, and a post-mortem was performed, with samples taken for analysis. Despite re-inoculation against botulism and remixing the feed, the animals continued to die over the next week and a half, with many stock at Floukraal also dying.

The respondent's witnesses confirmed that the toxins were not present in the additional products used in the feed mix and that the sharp smell emanating from the feed indicated the possible presence of phosphine. Analyses confirmed the presence of phosphine in the feed, although in a relatively small amount. Expert witnesses testified that phosphine has a relatively short "half-life" and dissipates over time when exposed to air and moisture. They concluded that the presence of a small amount of phosphine in the analysed sample indicated a higher concentration at the time of mixing and ingestion, sufficient to cause death.

The appellant called several witnesses, including experts, who maintained that botulism was the cause of death and that there was no evidence of phosphine poisoning. They based their diagnosis on the fact that the animals died over an extended period, indicating acute death from phosphine ingestion would have occurred within 24 hours. The appellant also presented evidence on the fumigation process and the measures taken to prevent the presence of phosphine in the screenings and hominychop.

The trial court found that the poison in the mixed feed was either phosphine or botulism and that the source of the poison could only have originated from the appellant's premises. The court accepted the respondent's and Dr. Troskie's evidence, finding them to be credible and reliable. The court concluded that the respondent had established its case on a balance of probabilities and dismissed the appellant's claim. The appellant's appeal was subsequently dismissed, with costs awarded to the respondent.

The court's decision focused on evaluating the credibility of witnesses and expert opinions to determine the cause of the livestock deaths. The respondent's claim was based on the actio ex empto, asserting that the appellant was a manufacturer who publicly professed expertise and skill in producing the product. The court's analysis centered on whether the respondent proved that the product was latently defective due to contamination at the time of sale and delivery.

The court considered the respondent's evidence, including eyewitness accounts and expert opinions, and found them credible and reliable. It accepted the respondent's version of events and the conclusions of his expert witnesses, particularly regarding the presence of phosphine and the exclusion of botulism as the cause of death. The court also assessed the appellant's expert evidence and found it less persuasive, concluding that their opinions were not capable of withstanding logical analysis.

The court applied the principle that a court of appeal should not interfere with a trial court's findings of fact and credibility unless they are patently wrong or vitiated by irregularity. It recognised the advantages of the trial court in observing and hearing witnesses firsthand. The court also emphasized the importance of expert evidence being unbiased, logically reasoned, and scientifically supported.

In conclusion, the court upheld the trial court's findings and dismissed the appellant's claim, establishing the core legal principle that in product liability cases, the assessment of evidence, including eyewitness accounts and expert opinions, is crucial in determining liability for alleged latent defects in manufactured products.

The case law referenced in the judgment provides insights into the court's reasoning and analysis. Here is a summary of the key cases cited and their relevance to the decision:
1. Kroonstad Westelike Boere Vereniging Bpk v Botha 1964 (3) SA 561 (A): This case established the principle that a manufacturer who sells goods and professes expertise is liable for consequential damages caused by latent defects in the goods.
2. D and H Piping Systems (Pty) Limited v Trans Hex Group Ltd 2006 (3) SA 593 (SCA): This case affirmed the principle of manufacturer's liability for latent defects and emphasized the irrebuttable nature of this liability unless expressly or impliedly contracted out of.
3. Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A): This case further elaborated on the principle of manufacturer's liability and the irrebuttable nature of such liability.
4. S v Leve 2011 (1) SACR 87 (ECG): This case provided guidance on the approach of an appellate court in assessing and evaluating an appeal, emphasising the presumption of correctness of the trial court's findings of fact and credibility.
5. Bernert v ABSA 2011 (3) SA 92 (CC): This case acknowledged the fundamental rule for appellate courts but also highlighted the flexibility in its approach depending on the type and nature of the evidence under review.
6. Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another: This case outlined the approach to evaluating expert evidence, emphasising the need to determine if the opinions advanced by experts are founded on logical reasoning.
7. Motor Vehicle Assurance Fund v Kenny: This case favored the credible evidence of an eyewitness over that of an expert in accident reconstruction, highlighting the importance of eyewitness testimony.
8. Roux v Hatting: This case supported the preference for eyewitness evidence over expert opinions, particularly when the experts were not present at the incident and based their opinions on video clips and photographs.
9. Putzier v Union and South West Africa Insurance Company Limited: This case provided guidance on the evaluation of eyewitness testimony and expert evidence, suggesting that eyewitness evidence should be considered first unless it is unacceptable.