REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case No: I 1/2009
DATE: 01 DECEMBER 2014
In the matter between:
NAMIB ALLIED MEAT COMPANY (PTY)
Neutral citation: Labuschagne v
Namib Allied Meat Company (Pty) Ltd (I 1-2009)  NAHCMD 369 (1
Coram: VAN NIEKERK J
Heard: 7, 8, 9 November 2011; 17, 18
February 2012; 13 March 2012; 26 July 2012
Delivered: 1 December 2014
Flynote: Application for absolution
from the instance at close of plaintiff’s case –
Applicable legal principles restated – Application dismissed.
1. The application for absolution from
the instance is dismissed with costs, such costs to include the costs
of one instructing and one instructed counsel.
2. The matter is set down for a status
hearing in Chambers on Monday, 8 December 2014 at 14h30 to determine
dates for continuation of trial.
VAN NIEKERK J:
 This is an application for
absolution from the instance at the close of the plaintiff’s
case. In his amended particulars of claim the plaintiff sets out the
cause of action as follows:
‘3. During July/August 2007 the
plaintiff, acting personally, and the defendant, then and there
represented by one Chris Harmse, concluded a written agreement
(hereinafter referred to as “the sale agreement”) in
terms of which the plaintiff sold to the defendant 418 sheep for
slaughter purposes. An unsigned copy of the sale agreement as well
as a sworn translation thereof is annexed hereto marked “A1”
and “A2” respectively, the terms and conditions of which
are incorporated herein as if specifically traversed and pleaded.
3A. In the alternative to paragraph 3
above and in the event of the honourable Court finding that such
agreement was concluded orally instead of in writing then the
plaintiff avers that the terms and conditions embodied in annexure
“A1” and “A2” constituted the terms of the
agreement so concluded between the parties.
4. The following were express,
alternatively tacit, in the further alternative implied terms of the
sale agreement so concluded between the parties:
4.1 The defendant undertook to pay to
the plaintiff the best possible price for slaughter small stock in
the form of:
(a) A comparative market related price
for the grading obtained plus the appropriate premium as mentioned in
(b) A contract performance bonus as
contained in the appropriate contract options.
4.2 The advance price would be payable
in collaboration with the normal slaughter price as arranged in
paragraph 4.4 hereunder.
4.3 The contract performance bonus
would be payable within 15 calendar days after the date whereupon the
applicable contract expired.
4.4 The defendant guaranteed payment to
the plaintiff in consideration of the payment period which currently
amounts to 10 calendar days from the date on which the transaction
4.5 The defendant would as long as
possible in advance announce a slaughter date to the plaintiff and
allocate it to the Meatco abbatoir (sic) as close as possible to the
schedule as set out in the agreement, but the date would not be
announced to the plaintiff less than fourteen days before the
4.6 The plaintiff would at his own
costs deliver the agreed small stock to the slaughter location not
later than 18h00 on the day before the allocated slaughter date.
4.7 The risk and ownership of all
delivered small stock for the (sic) slaughter purposes transfers to
Namco upon slaughtering.
5. The plaintiff duly complied with his
obligations in terms of the aforesaid agreement and more in
particular by delivering 418 head of sheep to the defendant.
6. The defendant however breached the
agreement so concluded between the parties by inter alia by (sic)
virtue of the following:
6.1 By failing to make payment to the
plaintiff in respect of the sheep so sold and delivered;
6.2 By refusing and prohibiting the
plaintiff from retaking possession of the sheep carcasses in order
for the plaintiff to mitigate his losses.
7. In and as a result of the
defendant’s breaches as aforesaid the plaintiff suffered
damages to the tune of N$164 000-00 which amount constitutes the fair
and reasonable replace (sic) value of the sheep carcasses so sold and
delivered to the defendant.
8. Notwithstanding proper demand for
payment of the aforesaid amount, the defendant fails and/or refuses
and/or neglects to pay to the plaintiff the amount of N$164 000-00 or
any part thereof.’
 The plaintiff’s claim is for
payment of the sum of N$164 000.00, interest a tempore morae at the
rate of 20% p.a. and costs of suit. During the trial the plaintiff
accepted that the defendant’s calculation of the claim, being
N$160 733.83, is correct. However, during cross-examination the
plaintiff agreed that the claim should be further reduced by
subtracting certain amounts charged by the abattoir. As I understand
it the total amount charged is N$3,089.02, meaning that the amount
actually claimed is N$157,644.81.
 Although not highlighted by
specific mention in the particulars of claim, clause 7 of the
agreement attached to the particulars of claim as “A1”
and “A2” provides that the agreement is subject to the
general conditions attached thereto. Clause 6 of the general
conditions relates to quality and reads as follows:
6.1 The seller carries the risk that
all livestock delivered in terms of this agreement shall be free from
any diseases and parasites and shall be preventatively vaccinated
against such diseases as prescribed in terms of legislation from time
to time and if not, such carcasses which are rejected shall be for
the seller’s loss.
6.2 The purchaser shall not be obliged
to accept delivery of any livestock which does not conform to the
quality as set out in 6.1 unless the parties agree otherwise.
6.3 The mass and quality of livestock
delivered by the seller shall be determined by the purchaser’s
experts on the date of slaughter and shall be final and binding upon
 The defendant pleaded as follows to
the relevant part of the amended particulars of claim:
AD PARAGRAPH 3 THEREOF
2.1 The defendant admits that it
entered into an agreement with the plaintiff in terms of which the
plaintiff would supply it with 418 sheep for slaughter purposes
subject to the terms and conditions set out below.
2.2 The remaining allegations in this
paragraph are denied. The defendant specifically denies that the
parties signed any written agreement or a written agreement
containing the terms and conditions set out in annexure “A1”
and “A2” during July/August 2007.
2.3 The defendant denies that the
agreement entered between it and the plaintiff was subject to the
terms and conditions contained in annexure “A1” and “A2”.
2.4 The defendant further pleads that
it only introduced written agreements during or about October 2008.
AD PARAGRAPH 3A THEREOF
3.1 The defendant denies that the
agreement entered between it and the plaintiff was subject to the
terms and conditions contained in annexure “A1”.
3.2 The defendant instead pleads that
the terms and conditions agreed between the parties are the terms and
conditions set out in detail below.
AD PARAGRAPH 4 THEREOF
4.1 The defendant admits the
allegations contained in paragraph 4.6 thereof.
4.2 Each and every other allegation
contained in these paragraphs is denied as if separately set out, and
the plaintiff is put to the proof thereof. In amplification of its
denial, the defendant pleads that the express, alternatively implied
alternatively tacit material terms of the oral agreement were limited
to the following:
4.2.1 the plaintiff agreed to deliver
to the defendant sheep that were healthy and fit for human
consumption and to this end represented to the defendant that his
sheep are healthy and fit for human consumption;
4.2.2 the defendant would supply the
sheep to the Meatco Abattoir for slaughter on a specified date
determined by the defendant;
4.2.3 after the slaughter of the sheep,
upon medical inspection by the state veterinarian, the carcasses
would officially be certified as fit for human consumption;
4.2.4 the prices of the sheep per
carcass, duly certified as fit for human consumption, would be paid
by the defendant in accordance with the classification by grade of
the sheep as determined by the Meat Board of Namibia;
4.2.5 the defendant would pay the
plaintiff in accordance with the defendant’s weekly pricing
schedule, annexed hereto and marked “B”;
4.2.6 the plaintiff would be paid the
above amounts within 10 days of certification of the sheep carcasses
as fit for human consumption by the State Veterinarian;
4.2.7 the risk in and ownership of all
sheep delivered for slaughter purposes would remain vested in the
plaintiff until certification of the sheep as fit for human
consumption took place.
AD PARAGRAPH 5 THEREOF
Each and every allegation contained in
this paragraph is denied as if separately set out and the plaintiff
is put to the proof thereof. In amplification of this denial, the
defendant pleads that the plaintiff’s sheep were declared by
the state veterinarian to be unfit for human consumption. A copy of
this declaration dated 10 August 2007 is annexed hereto and marked
AD PARAGRAPH 6 THEREOF
6.1 The defendant admits refusing to
pay the plaintiff any amount for his sheep carcasses. The defendant
pleads that it is not liable to the plaintiff in any amount or at all
for the reasons pleaded above.
6.2 The defendant denies refusing or
prohibiting the plaintiff from retaking possession of the carcasses
in order for the plaintiff to mitigate his loss.
6.3 The defendant pleads that the sheep
carcasses were not, nor have they previously been its custody.
6.4 The defendant pleads that the
plaintiff had an opportunity to mitigate his losses but failed to do
AD PARAGRAPH 7 THEREOF
7.1 The defendant denies that the
plaintiff suffered damages in the amount as claimed or at all and
puts the plaintiff to the proof thereof.
7.2 The defendant further denies that
the amount claimed constitutes the fair and reasonable replacement
value of the sheep carcasses and puts the plaintiff to the proof
7.3 Should the Court find that the
plaintiff is entitled to payment, which is still denied, the
defendant pleads that plaintiff’s claim should be reduced with
an amount of N$120,713.59 which amount is made up of the slaughter
fees, grading fees, inspection fees, Meat Board levy, NCA levy and
cooling fees charged by Meatco Namibia. These fees are ordinarily
deducted from any payment due to the plaintiff when plaintiff
supplies sheep to the defendant for slaughter purposes. A copy of the
tax invoice received from Meatco Namibia is annexed hereto marked
annexure “D” and a copy of the proof of payment of the
tax invoice is annexed hereto marked annexure “E”.
AD PARAGRAPH 8 THEREOF
The defendant admits demand but denies
that it is liable to pay the plaintiff in the amount or at all.
WHEREFORE the defendant prays that the
plaintiff’s claim be dismissed with costs.”
 The plaintiff testified in person
and presented evidence by several other witnesses. An inspection in
loco was held at the Meatco abattoir in Windhoek to observe the
slaughtering line and the various steps along the process from
delivery until preservation of the slaughtered carcasses in the
 At the close of the plaintiff’s
case, Ms Bassingthwaighte on behalf of the defendant moved for
absolution from the instance.
 The test to be applied in
applications of this kind is well known. In Bidoli v Ellistron t/a
Ellistron Truck & Plant 2002 NR 451 (HC) it was set out as
follows (at 453D-F):
“In Claude Neon Lights (SA) Ltd v
Daniel 1976 (4) SA 403 (A) the Court of Appeal held that when
absolution from the instance is sought at the end of the plaintiff's
case, the test to be applied is not whether the evidence led by the
plaintiff established what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should or ought to) find for the plaintiff.
The phrase 'applying its mind
reasonably' requires the Court not to consider the evidence in vacuo
but to consider the admissible evidence in relation to the pleadings
and in relation to the requirements of the law applicable to the
(Approved in Kaese v Schacht and
Another 2010 (1) NR 199 (SC) at 205C-E).
 In Gordon Lloyd Page &
Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92F – G
Harms JA referred to the above formulation as set out in Claude Neon
Lights (SA) Ltd v Daniel (supra) and went on to explain at 92H –
“This implies that a plaintiff
has to make out a prima facie case — in the sense that there is
evidence relating to all the elements of the claim — to survive
absolution because without such evidence no court could find for the
plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972
(1) SA 26 (A) at 37G – 38A; Schmidt Bewysreg 4 ed at 91 –
2). As far as inferences from the evidence are concerned, the
inference relied upon by the plaintiff must be a reasonable one, not
the only reasonable one (Schmidt at 93). The test has from time to
time been formulated in different terms, especially it has been said
that the court must consider whether there is ''evidence upon which a
reasonable man might find for the plaintiff'' (Gascoyne (loc cit)) —
a test which had its origin in jury trials when the ''reasonable
man'' was a reasonable member of the jury (Ruto Flour Mills [(Pty)
Ltd v Adelson (2) 1958 (4) SA 307 (T)]). Such a formulation tends to
cloud the issue. The court ought not to be concerned with what
someone else might think; it should rather be concerned with its own
judgment and not that of another ''reasonable'' person or court.
Having said this, absolution at the end of a plaintiff's case, in the
ordinary course of events, will nevertheless be granted sparingly but
when the occasion arises, a court should order it in the interest of
justice. . . .”
(Applied in Stier and Another v Henke
2012 (1) NR 370 (SC) at 373F-I.)
 The reasoning at this stage is to
be distinguished from the reasoning which the Court should apply at
the end of the trial. At that stage the enquiry is: ‘Is there
evidence upon which a Court ought to give judgment in favour of the
 In Barker v Bentley 1978 (4) SA
204 (N) (at 206C) the approach to be followed is set out as follows:
“In approaching an application
for absolution at the close of the plaintiff's case it is necessary
to bear in mind the test which the court must apply at that stage,
which is whether there is evidence on which a reasonable man might
give judgment for the plaintiff. If there is such evidence then
absolution must be refused even if the court itself considers that
the evidence produced by the plaintiff is open to question. At this
stage it must not seek to resolve the matter upon the balance of
probabilities. See Gafoor v Unie Versekeringsadviseurs (Edms) Bpk
1961 (1) SA 335 (A); Gascoyne v Paul and Hunter 1917 TPD 170.”
 It should further be borne in mind
that it must be assumed that in the absence of very special
considerations, such as the inherent unacceptability of the evidence
adduced, the evidence is true (Atlantic Continental Assurance Co of
SA v Vermaak 1973 (2) SA 525 (E) at 527C-D). Except where a witness
has clearly broken down and where it is clear that their evidence is
not the truth, questions of credibility should normally not be
investigated at the stage of proceedings when absolution from the
instance is considered at the close of the plaintiff’s case.
(Erasmus, Superior Court Practice, B1-292-293 and cases cited in
fn.1) The Court should also refrain from unnecessary discussion of
the evidence to avoid the appearance that it is taking a view of its
quality and effect that should only be reached at the end of the
whole case (Gafoor v Unie Versekeringsadviseurs (Edms) Bpk 1961 (1)
SA 335 (A) at 340D-E).
 In De Klerk v Absa Bank Ltd 2003
(4) SA 315 (SCA) the court observed as follows at 320H-321A):
“ Counsel who applies for
absolution from the instance at the end of a plaintiff's case takes a
risk, even though the plaintiff's case be weak. If the application
succeeds the plaintiff's action is ended, he must pay the costs and
the defendant is relieved of the decision whether to lead evidence
and of having his body of evidence scrutinised should he choose to
provide it. But time and time again plaintiffs against whom
absolution has been ordered have appealed successfully and left the
defendant to pay the costs of both the application and the appeal and
with the need to decide what is to be done next. The question in this
case is whether the plaintiff has crossed the low threshold of proof
that the law sets when a plaintiff's case is closed but the
defendant's is not.”
 Mr Strydom who appears on behalf
of the plaintiff set out in paragraphs 20.1 - 20.6 of the plaintiff’s
head of argument what is, on the pleadings, common cause between the
parties: (i) that the parties have locus standi; (ii) that the
parties concluded an agreement of sale in respect of 418 sheep for
slaughtering purposes; (iii) that the plaintiff delivered 418 sheep
to the Meatco abattoir; (iv) that the defendant refused to pay for
the sheep sold and delivered; (v) the quantum of the plaintiff’s
losses; and (vi) that the plaintiff made demand for payment.
 In the amended particulars of
claim the plaintiff relied on two breaches as set out in paragraph
6.1 and 6.2 thereof. He conceded during cross-examination that the
defendant is not responsible for the breach alleged in paragraph 6.2.
This issue therefore falls away.
 The issues to be determined
include (i) whether the agreement was concluded orally or in writing;
(ii) whether the terms of the agreement between the parties are the
terms as set out in “A1” and “A2” to the
amended particulars of claim; (ii) when risk and ownership would pass
from the plaintiff to the defendant; (iii) whether the plaintiff
complied with his obligations under the agreement; and (iv) whether
the defendant was entitled to refuse payment.
 The onus is on the plaintiff to
prove the terms of the contract on which he relies. The onus is also
on him to prove that the contract does not include the terms alleged
by the defendant (Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk
1976 (3) SA 470 (A) 474A-C).
 I now turn to a consideration of
the evidence. In this regard I shall concentrate on the parts
relevant to the enquiry before me and not deal with the evidence as a
 In summary the salient facts of
the plaintiff’s evidence are as follows: He resides in the
Karas Region and farms mostly with sheep. From 1997 he acted as an
agent for various entities, namely Agra, Just Lamb and later for the
defendant. His duty was to recruit clients, i.e. farmers, also
referred to during evidence as producers, to provide sheep for
slaughter by Meatco. If such producers entered into an agreement with
the said entities, whereby they undertook to provide a certain number
of sheep at different times of the year when called upon to do so,
they would obtained certain advantages and a higher price per kilo
for the sheep they provided. The plaintiff also entered into such
agreements as a producer. I shall deal later with the evidence about
the terms of the agreement.
 On 23 July 2007 the plaintiff
gathered together a group of sheep for delivery inter alia to the
defendant to be slaughtered. The animals were loaded onto a truck
early on the morning of 24 July 2007. During the handling of the
animals he detected that one of the last lambs to be loaded had a
symptom which raised his suspicion that the sheep possibly have
contracted a disease called scab.
 After the truck had departed for
Windhoek, he telephoned Dr Dakwa, the State veterinarian at
Keetmanshoop, to report the suspicion and to obtain advice about the
dosage of a substance called Ivermectin with which to inject the
remaining sheep on the farm.
 Late on 25 July 2007 he received a
report from Mr Isaacs behalf of the defendant that all 418 sheep
slaughtered had been condemned by the State veterinarian at Meatco.
On 27 July 2007 the defendant confirmed this in writing and informed
the plaintiff that Namco would “not be liable for any costs
 The plaintiff was informed that
the reason for the condemnation of the carcasses was that some
injection marks had been found on the animals, which clearly had
scab, and that Dr Hemberger, the State veterinarian, had taken
samples from five of the carcasses to test for any reside of
Ivermectin. It is common cause that scab is not a disease which
would normally lead to rejection for human consumption as it is a
disease of the skin and not of the meat. It is also common cause
that it is prohibited to deliver sheep for slaughter which have been
injected with Ivermectin before a certain period, termed the
withdrawal period of the substance, had passed.
 The plaintiff from the start
denied both to the defendant and to Dr Hemberger that he had injected
any of the sheep delivered. He obtained permission to take his own
samples for testing. As the local laboratory had problems with its
equipment, the samples were sent to South Africa, which caused some
delay. Eventually the results were orally released on 16 July 2007
and later in writing. The results were negative.
 The plaintiff embarked on various
attempts to have the carcasses released for use other than export to
South Africa for human consumption in order to mitigate any losses,
but all came to naught for various reasons.
 I return now to the agreement
between the parties. The plaintiff testified that he entered into a
written agreement with the defendant during 2007. The blank
agreement was faxed to him. He made copies and distributed the
agreement to other producers to sign, where after they sent the
documents back to him, as I understand it, in his capacity as agent.
He also signed such an agreement in his capacity as producer and
later sent all the signed agreements to the defendant in Windhoek.
He did not keep a copy of the agreement and could not provide the
Court with such an agreement. However, he identified the blank
agreement attached as “A1” and “A2” to the
amended particulars of claim as being the ‘typical’
contract like, or ‘similar’ contract as, the one he
signed in 2007. It is common cause that “A1” and “A2”
is the contract used by the defendant during 2008 (Exhibit “B”).
For the sake of convenience I shall refer to it as annexure “A”.
 The plaintiff at first testified
during examination in chief that in years prior to the signing of
these agreements the risk and ownership in the sheep sold passed from
the producer to the purchaser upon delivery and signature in respect
of such delivery by the purchaser.
 His attention was drawn to clause
6.4 of annexure "A”, which states that the “risk and
ownership of all delivered small stock for slaughter purpose
transfers to Namco upon slaughtering.” He stated that he
understood slaughtering to mean when the animal is killed, i.e. when
he cannot get his animal back, then risk and ownership passes. He
further agreed with his counsel that this provision “is a bit
different, than what you just indicated earlier as to prior to these
agreements what the farmers understood when risk could pass”.
Later he stated that in the case of the farmers who did not sign this
type of agreement, the risk and ownership would pass to the purchaser
on delivery and signature in respect thereof.
 However, near the end of his
evidence in chief, the plaintiff testified that the risk clause
contained in the 2008 (and 2009) agreement did not apply to the 2007
agreement. He testified that the risk and ownership passed at
delivery upon signature at the Meatco abattoir. The plaintiff also
gave evidence to this effect at various stages during
cross-examination. It is clear from this evidence that the plaintiff
was referring to the written 2007 agreement. In this respect the
plaintiff differed from his earlier testimony and from the
allegations contained in the amended particulars of claim.
 During re-examination the
plaintiff’s counsel established that the plaintiff is not sure
if the risk clause contained in paragraph 4.7 of the amended
particulars of claim is the same as the risk clause in the 2007
 The plaintiff also repeatedly
during his testimony stated that he did not properly study the 2007
agreement because, as agent, he was in a hurry to collect signed
agreements from as many producers as possible. .
 During cross-examination the
plaintiff admitted that it was a term of the agreement that he should
deliver sheep that are healthy and fit for human consumption. At
first he stated that it was an oral agreement, but later he appeared
to state that it was always a term, whether the contract was written
 Ms Bassingthwaighte submitted that
the evidence presented by the plaintiff about the terms of the
contract is such that one is left wondering what the plaintiff’s
case is at the close of his case. The reasons for this, according to
counsel are, in summary, (i) that the pleadings have been amended
several times to make varying allegations about whether the agreement
is oral or written; (ii) the plaintiff deviated from the pleadings
when testifying about the terms of the agreement without moving for
leave to amend; (iii) the plaintiff testified about certain terms
which were orally agreed without relying on a partially written and
partially oral agreement; (iv) the plaintiff admitted in
cross-examination that it was always a term, whether oral or written,
that he had to deliver animals that were fit for human consumption
(which term is not contained in his particulars of claim, but is a
term pleaded by the defendant); and (v) the plaintiff repeatedly
stated that he was not 100% sure of the contents of the 2007 contract
he signed as he did not study it properly.
 Counsel also submitted that the
combined effect of the various amendments and the evidence presented
is to show that the plaintiff either does not know what the agreement
between the parties was or that he is being dishonest about it.
 Bearing in mind the approach to be
followed in an application such as this as set out in the various
authorities cited above, I am wary to analyse and comment upon the
credibility of the plaintiff or the cogency of his evidence, except
where it might be inherently unacceptable. The Court should rather
consider these aspects, including any contradictions and deviations
at the end of the trial. This would include considering whether any
contradictions may be reconciled, whether all or only parts of the
plaintiff’s evidence may be accepted, and if so, what weight
they are to be given.
 Counsel for the defendant further
submitted that it must have been an “implied” term (in
the sense of the term having been tacitly agreed) of the contract, as
alleged by the defendant, that the fitness of the sheep for human
consumption be determined by the State veterinarian. Apart from
submitting that the existence of such a term is prima facie
established by applying the standard tests employed by the Courts in
such cases, she pointed to certain answers given by the plaintiff
during cross-examination, e.g. that if the State veterinarian had not
certified the animals as fit for human consumption, the defendant
“could do nothing”.
 However in my view it should also
be borne in mind that the plaintiff repeatedly denied that
certification by the State veterinarian was a term of the contract.
Furthermore, it seems to me that the plaintiff qualified the
admission that the animals had to be fit for human consumption and
the role to be played by the State veterinarian in determining this
condition by emphasizing that it would depend on (i) the stage of the
slaughtering process at which the determination is done (e.g. “before
the scales” or “after the scales”); (ii) whether
the carcasses have been graded and weighed; and (iii) the reason why
the carcasses are condemned.
 In view hereof I do not think it
can be said at this stage that there is no evidence upon which a
reasonable Court might decide that the “implied” term
(i.e. the tacit term) contended for by the defendant did not come
tacitly into being. In this regard I also bear in mind Mr Strydom’s
valid submission that the existence of otherwise of a term tacitly
agreed upon by the parties (the existence of which is alleged by the
defendant) is more appropriately determined at the end of the trial.
 As I understand the evidence, the
plaintiff did not accept that, if the reason for the condemnation was
not attributable to his conduct, the mere fact that the animals are
not declared fit for human consumption meant that he had not
fulfilled his obligations under the contract. He was also of the
view that the State veterinarian made mistakes, that she was
inconsistent, that she abused her powers and that she failed to stop
the slaughtering process in time.
 In this context his persistent
denials of the risk clause pleaded by the defendant are relevant.
Although it is so that the plaintiff gave two versions of the terms
of the risk clause on which he relies, his evidence indicates that,
on whichever version, the risk passed to the defendant before the
carcasses were certified to be healthy and fit for human consumption.
 The plaintiff’s evidence is
to the effect that, although some of the animals delivered may have
presented with scab, the disease does not affect the meat and that
this was no reason to declare the carcasses condemned. He was
adamant that he did not inject the sheep; that he knew very well that
he was not supposed to deliver animals which had been injected before
expiry of the withdrawal period of the substance injected and that he
never ever had done so in all the years that he has delivered animals
for slaughter. The evidence presented is that samples were only
taken from five of the carcasses on which injection marks had
allegedly been found, yet all 418 carcasses were eventually rejected.
There is evidence that both the plaintiff’s samples and those
taken by the State veterinarian tested negative for the presence of
 In my view there is evidence upon
which a reasonable Court might find that the animals delivered were
fit for human consumption in spite of the condemnation by the State
veterinarian. There is evidence upon which a reasonable Court might
find that the risk had passed to the defendant at the latest upon
slaughtering, meaning that the risk of any mistakes made by the State
veterinarian would fall upon the defendant, there being no evidence
or argument presented that the term “slaughtering”
includes the certification process.
 There is also sufficient evidence
at this stage given by the plaintiff (and to some extent by his
witness, Mr Smith) that the agreement between the parties was in
writing, except that the plaintiff put a figure to the premium
mentioned in paragraph 4.1(a) of the amended particulars of claim of
N$1 per kilo, which figure he stated was orally agreed. In light
thereof that the calculation of the plaintiff’s damages has
become the subject of agreement between the parties, the fact that
the plaintiff testified about on alleged oral term relating to the
premium the defendant had to pay is not such to upset the plaintiff’s
claim at this stage.
 It was submitted on behalf of the
defendant that the plaintiff on his own evidence failed to mitigate
any damages he may have suffered. However, to the extent that
mitigation of damages might be relevant, the plaintiff’s
evidence is to the effect that, all his attempts to mitigate the
damages were frustrated by the State veterinarian’s conduct,
which includes inconsistent decisions on her part.
 In conclusion, it seems that the
plaintiff has put forward sufficient evidence to ward off the
application. The result is that it is dismissed with costs, such
costs to include the costs of one instructing and one instructed
K van Niekerk
For the plaintiff: Adv J A N
Instr. by Delport Attorneys
For the defendant: Adv N
Instr. by LorentzAngula Inc