Summermania Eleven (Pty) Ltd v Hattingh N O

Summermania Eleven (Pty) Ltd purchased a game farm from the Billy Hattingh Trust as a going concern under a written sale agreement concluded on 3 February 2015. An addendum to the agreement listed the composition and estimated numbers of game as at December 2014, and the Trust warranted that there would be no material change to those numbers until transfer. Transfer was registered on 10 July 2015 and Summermania took occupation shortly thereafter. After occupation, Summermania alleged that there was a substantial shortfall in game numbers, particularly 150 fewer kudus than recorded in the addendum. Summermania relied primarily on an aerial game count conducted in November 2015 by expert Mr Van Niekerk. Due to ill health, Mr Van Niekerk could not testify orally and his evidence was admitted by affidavit under Uniform Rule 38(2). The trial court accepted this evidence and found the Trust in breach of the warranty. On appeal, a full court reversed that decision, finding the evidence insufficient. Summermania then appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs.

The case is significant for clarifying the approach to evaluating evidence given by affidavit in civil trials under Uniform Rule 38(2). It confirms that while courts may admit affidavit evidence for sufficient reason, such evidence must still be scrutinised for reliability and probative value, especially where cross-examination is impossible. The judgment also reaffirms that the party alleging breach of a contractual warranty bears the onus of proof.