Dr Griesel (first appellant) conducted a game farming operation and purchased four bull buffaloes from a distant seller. The buffaloes were tested disease-free and their horns measured. Dr Griesel offered one buffalo (the disputed buffalo) to Mr Haasbroek (respondent) for R1 million plus VAT and 25% of transport costs. The buffaloes were delivered to Dr Griesel's farm on 14 October 2009. Dr Griesel testified that on top of the transport vehicle, he and Mr Haasbroek concluded a sale agreement for the disputed buffalo, with Mr Haasbroek expressly agreeing to assume the risk of death or injury arising from the darting, sedation and blood testing operation needed to obtain a transport permit. Mr Haasbroek contested this, claiming he only expressed interest and agreed to testing but did not agree to assume the risk. On 27 October 2009, during the operation to sedate and test the disputed buffalo, it was darted by Dr Van Zyl (a veterinarian). After being darted, the buffalo ran behind acacia bushes. Dr Griesel suggested waiting a few minutes before following. The buffalo was later found dead, having suffocated from regurgitated stomach contents after lying on its side while sedated. Dr Griesel sued for the purchase price. The trial court found a sale agreement was concluded with an express risk term, but dismissed the claim on the basis that Dr Griesel's conduct during the operation was reprehensible and amounted to repudiation. The full court upheld the dismissal on different grounds, finding Dr Griesel contributed to the buffalo's death.
The appeal was upheld with costs. The order of the full court dismissing the appeal was set aside. Judgment was granted in favour of Dr Griesel (first plaintiff/appellant) against Mr Haasbroek (first defendant/respondent) for payment of R1,146,302.53 plus interest at 15.5% per annum from 27 October 2009 to date of payment. Mr Haasbroek was ordered to pay the costs.
Where parties to a sale agreement expressly agree that the purchaser will assume a specific identified risk (such as the risk of death or injury to an animal during a necessary operation), and that risk eventuates, the purchaser bears the loss arising from it and remains liable for the purchase price, notwithstanding that delivery cannot be effected. Such an express risk allocation term varies the common law requirement that the seller deliver the goods. The seller does not bear an onus to prove that his conduct did not cause the loss where the parties have expressly allocated that specific risk to the purchaser. The principles of supervening impossibility of performance and whether any impossibility was self-created do not apply in such circumstances because the case is not based on excuse from performance but rather on the agreed allocation of a known risk.
The court observed that neither a sale nor a lease is void merely because the seller or lessor is not the owner of the property sold or leased, citing established authority. The court noted that it is common in the game farming industry for buffaloes to require sedation at least twice when purchased - first for blood testing and second for loading onto transport - and that the risk of death or injury increases with each sedation. The court commented that evidence can broaden issues beyond the pleadings only when the issues are squarely and fully raised and dealt with in the evidence, but this did not occur in the present case. The court also observed that the full court erred in applying common law principles regarding risk in perfecta contracts and principles of vis major or casus fortuitus, which were not relevant given the express contractual allocation of risk.
This case establishes important principles regarding the allocation of risk in sale agreements under South African law. It confirms that parties are free to expressly agree on the allocation of specific risks, thereby varying the common law default position on when risk passes. The case clarifies that where parties have expressly agreed that a purchaser assumes a specific identified risk (here, death or injury during a necessary operation), and that risk eventuates, the purchaser bears the loss and remains liable for the purchase price despite non-delivery. The seller does not bear an onus to prove he did not cause the loss where an express risk allocation term applies. The case also illustrates the importance of pleadings in defining the issues for trial and the limited circumstances in which issues can be expanded through evidence. It demonstrates that courts will not readily find conduct to be reprehensible or causative of loss without clear evidence and proper pleading of such issues. The judgment reinforces the principle of freedom of contract and party autonomy in commercial transactions, particularly in specialized contexts such as game farming where parties are aware of inherent risks in dealing with wildlife.