The Supreme Court of Appeal Today Upheld an Appeal by Tangeni Boerdery Nr 2 and Erf 1435

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA STATEMENT – JUDGMENT DELIVERED IN SUPREME COURT OF APPEAL

From:The Registrar, Supreme Court of Appeal

Date:15 March 2005

Status:Immediate

GERT LEOPOLD EHLERS NO & OTHERS v HENDRIK GRAPHORN NO & OTHERS

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal.

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The Supreme Court of Appeal today upheld an appeal by Tangeni Boerdery Nr 2 and Erf 1435 Sinoville (Edms) Bpk against the Kwazulu-Natal Nature Conservation Board and held that the Board had negligently misrepresented that buffalo sold by the Board at a game auction held on 20 June 1998 were disease free whereas they were infected with corridor disease. Disease free buffalo are substantially more valuable than buffalo infected with corridor disease.

The infected buffalo were moved to a cattle farm as a result of which some 200 cattle got infected and died.

Corridor disease is transmitted by a tick known as a brown ear tick from infected buffalo to non-infected buffalo or cattle. The brown ear tick is endemic to the Weenen and Spioenkop Game Reserves from where the buffalo were sourced. It was established that the buffalo became infected at the Spioenkop Game Reserve. The Board contended that it could not reasonably have foreseen that an infected buffalo or infected brown ear tick could have been introduced to the Spioenkop Game Reserve.

The SCA held that a reasonable person in the position of the Board would have foreseen the possibility that two buffalo previously introduced to the Spioenkop Game Reserve from the Pretoria Zoo may have been infected as also the possibility that an infected brown ear tick may unwittingly have been introduced to the Game Reserve. It held that a reasonable person would in the circumstances not have made the representation that the buffalo were disease free for the following reasons:

(a)The aforesaid possibility could not be quantified.

(b)The consequences, in the event of the buffalo being infected could be catastrophic in respect of disease free buffalo herds as well as cattle.

(c)The disease status of the buffalo could have been determined at minimal costs.

In the result it was held that the Board acted negligently in making the misrepresentation.