Crest Poultry Group (Private) Limited v Hamish Cameron (Private) Limited

Plaintiff, a poultry breeding company, purchased a veterinary drug called Tiamulin 12.5% (Poultry) from Defendant in December 2010 to prevent microplasmosis in its poultry flocks. The drug was administered to various poultry sections (grandparent and parent stock) from 2-4 December 2010 according to Defendant's instructions (1g per litre for prevention). Shortly after administration, Plaintiff experienced high mortality rates, reduced egg production, and decreased cock fertility in the treated flocks. Birds displayed symptoms including leg paralysis, sitting on hocks, splayed feet, weakness, and inability to walk to feed and water. Post-mortem examinations by Plaintiff's veterinarian Dr. Hwingwiri revealed necrotic spots on livers, mucoid enteritis, and mild hemorrhage—all symptoms of chemical toxicity. Defendant had manufactured the Tiamulin itself but had failed to register it with the Medicines Control Authority of Zimbabwe (MCAZ) as required by law. Plaintiff had previously used Tiamulin from a South African supplier in August 2010 without problems, but experienced mild symptoms with Defendant's first batch in October 2010. Plaintiff claimed damages of US$178,294.00.

• Whether the Plaintiff administered the drug in accordance with Defendant's instructions
• Whether the Tiamulin 12.5% supplied by Defendant was defective
• Whether the defective drug caused the increased mortality, decreased cock fertility, and decreased egg production
• Whether Defendant breached the contract of sale by supplying defective goods
• Whether an implied warranty of soundness existed in the contract
• Whether Defendant is liable for consequential damages as an expert manufacturer
• The quantum of Plaintiff's loss
• Admissibility of business records under the Civil Evidence Act

Judgment for Plaintiff. Defendant ordered to pay: (1) US$178,294.00 in damages; (2) Interest at the prescribed rate from 15 April 2011 to date of payment; (3) Costs of suit.

The binding legal principles established are: (1) Even when there is no express warranty of soundness in a contract of sale, the law implies such a warranty (applying Erasmus v Russel's Executor 1904 TS 365 and Wessels' Law of Contract). (2) Where an article is sold by a manufacturer or expert for a specific purpose, the seller is liable not only for difference in value but also for consequential damages that could reasonably have been foreseen (applying Voet 21.1.10). (3) Business records kept in the ordinary course of business are admissible under section 14 of the Civil Evidence Act when produced by persons with current custody and management responsibility, regardless of who authored specific entries. (4) In civil cases, courts may select the most natural, plausible, and credible conclusion from among several conceivable ones by balancing probabilities, even if not the only reasonable conclusion (applying Ebrahim v Pittman NO 1995 (1) ZLR 176(H)). (5) Failure to register medicines as required by section 30 of the Medicines and Allied Substances Control Act can constitute evidence of defectiveness and breach of implied warranty.

The court made several non-binding observations: (1) The registration requirement under the Medicines and Allied Substances Control Act serves the important purpose of testing safety, quality, and therapeutic effect of veterinary medicines, and regulating manufacturing environments to minimize contamination. (2) The court expressed approval of Plaintiff's meticulous record-keeping practices as demonstrating credibility. (3) The court noted with some criticism that Defendant's managing director Mr. Cameron was not candid with the court and engaged in prevarication regarding the source of toxicity, despite being a self-professed poultry expert. (4) The court observed that Dr. Hwingwiri demonstrated "courage under fire" during vigorous cross-examination and was "an impressive witness" who gave balanced, honest, and fair testimony. (5) The court suggested that while independent chemical testing and post-mortems might have been desirable, their absence did not fatally undermine Plaintiff's case given the expert veterinary evidence and compelling circumstantial evidence. (6) The court noted that Defendant had opportunity to inspect documents after discovery but failed to do so, and therefore was precluded from objecting at trial.

This case establishes important principles regarding the sale of veterinary medicines and implied warranties in Zimbabwean contract law. It affirms that: (1) sellers of goods, particularly expert manufacturers, are subject to implied warranties of soundness even absent express warranties; (2) expert manufacturers are liable for reasonably foreseeable consequential damages when selling for specific purposes; (3) failure to comply with statutory registration requirements (Medicines and Allied Substances Control Act) can be evidence of defectiveness; (4) business records are admissible under section 14 of the Civil Evidence Act when produced by persons with custody and management responsibility, not necessarily the original authors; (5) in civil cases, courts may draw inferences and select the most plausible conclusion among several conceivable ones on a balance of probabilities. The case demonstrates judicial willingness to protect purchasers from unregistered and potentially dangerous products, particularly in commercial contexts involving technical expertise.