On 3 February 2015, Summermania Eleven (Pty) Ltd (appellant) purchased a game farm from the Billy Hattingh Trust (respondent) as a going concern. The sale agreement included an addendum prepared in December 2014 that set out the composition and estimated numbers of various game species on the farm. Clause 5 of the agreement contained a warranty by the Trust guaranteeing no material change to the composition and numbers of game from December 2014 until transfer of registration. Transfer was registered on 10 July 2015, and the appellant took occupation on 15 July 2015. On 11 July 2016, Summermania instituted proceedings claiming damages for breach of contract, alleging that there was significantly less game on the farm than stated in the addendum, particularly claiming a reduction of 150 Kudus. The claim was based on a game count report prepared by Mr Benjamin Van Niekerk, an expert game counter, who conducted an aerial count in November 2015. Due to ill health (a neuro-degenerative disease), Mr Van Niekerk could not give oral evidence and his testimony was submitted by way of affidavit dated 9 January 2020.
The appeal was dismissed with costs.
The binding legal principles established are: (1) In a breach of warranty claim, the plaintiff bears the onus of proving the breach through credible and reliable evidence. (2) While a court has discretion under Uniform Court Rule 38(2) to admit evidence by affidavit for sufficient reason, the probative value of such evidence must be evaluated against the evidence as a whole. (3) Evidence given by affidavit that cannot be tested in cross-examination must be approached with caution and evaluated for reliability and credibility considering all circumstances. (4) Where concerns exist about the methodology and reliability of expert evidence that cannot be tested in cross-examination, such evidence may carry little or no probative value, and a party relying on such evidence may fail to discharge its onus of proof.
The Court made observations regarding the plagiarism by the expert witness, noting that while use of established methodologies by experts is not unusual, the manner in which the passages were included without acknowledgment was misleading. The Court noted this created a false impression that the information was derived from the expert's own experience rather than from published literature. The Court also observed, somewhat ironically, that the very article from which the expert plagiarized actually questioned the accuracy of aerial game counts and identified numerous sources of bias and inaccuracy in such counts, including undercounting, visibility bias, and sighting probability bias. The Court further commented on the general principle that oral examination is the standard procedure in civil trials (as indicated by the words 'shall be orally examined' in Rule 38(2)), with affidavit evidence being an exception requiring the exercise of judicial discretion.
This case is significant in South African civil procedure and the law of evidence because it clarifies: (1) the approach courts should take when evaluating evidence given by affidavit in civil trials, particularly expert evidence that cannot be tested in cross-examination; (2) that admission of affidavit evidence under Rule 38(2) does not mean automatic acceptance - the court must still evaluate its reliability and credibility against the totality of the evidence; (3) the proper allocation of the onus of proof in contractual warranty cases - the party alleging breach bears the burden of proving it through credible and reliable evidence; and (4) the importance of testing expert evidence and the reduced probative value of expert evidence that cannot be challenged through cross-examination, especially where methodology and reliability concerns exist.