THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case : 247/2007
UNREPORTABLE

In the appeal between:

AMANITA PREMIER OILS LTD

Appellant

(Plaintiff)

and

PRAYSA TRADE 1069 CC t/a JUMBO PEANUTS Respondent

(Defendant)

Before:
Cameron JA, Navsa JA, Cachalia JA, Hurt AJA and
Kgomo AJA
Heard:

Tuesday 13 May 2008
Judgment:
Thursday 29 May 2008

Contract of sale – delivery of groundnuts – terms of contract – court
reversing factual findings of trial court – finding in favour of supplier /
plaintiff

Neutral citation: Amanita Premier Oils v Praysa Trade (247/07)
[2008] ZASCA 59 (29 May 2008)

CAMERON JA:
Introduction
[1] In the High Court in Pretoria Botha J granted the respondent
(defendant) absolution from the instance on a claim the appellant
(plaintiff) brought for payment of an amount outstanding under a
contract for delivery of groundnuts.  After concluding an
agreement with the defendant on 6 August 2004, the plaintiff
delivered a total of 926.54 metric tons of nuts at a price of R4 300
per ton.  Of this, the defendant used or on-sold 886.54 tons
(mostly processing it for peanut butter).  However, against
invoices for R3 984 115.08, the defendant paid only R3 078
215.79, and then stopped paying because of a dispute about
quality.  After allowing for the forty-ton remnant the defendant has
not used, and deducting R25 488.72 for bags that were delivered
wet, the plaintiff in this appeal – pursued with leave granted by
Botha J – seeks an order for payment of R708 417.49.
[2] In the negotiation of the contract, the plaintiff (a Zambian-
registered corporation) was represented by a local agent, Mrs
Christie Abrahams (operating through Cypro Consulting CC), and
defendant by its member, Mr Hein Geyser.  Abrahams and
Geyser agreed on nuts of Malawian or Zambian origin, and the

written sales contract they signed specified that their ‘quality’
would be ‘hand cleaned farmer’s grade groundnuts’.
[3] At the trial, the primary issues were what terms the parties agreed
and whether the quality of the nuts delivered conformed with
those terms.  Abrahams testified for the plaintiff, as well as Mr
Diego Jean Maria Casilli, the director of her principal.  Geyser
testified for the defendant, and called two employees of the
Perishable Products Export Control Board (PPECB),1 Mr Wegner
and Mr Bosman, to describe tests they performed on samples of
groundnuts to establish their quality and levels of aflatoxin (a
dangerous fungus-produced toxin that may cause cancer in
humans).

Judgment of the trial court
[4] Botha J found that the plaintiff’s contractual performance was
deficient in that the nuts delivered were of sub-standard quality.
While the contractual specification ‘farmer’s grade’ was to some
extent ambiguous, and did not conform to an officially recognised

1 Perishable Products Export Control Act 9 of 1983, s 2 of which provides that notwithstanding the
repeal of the Perishable Products Export Control Act 53 of 1926, the Board, established in terms
of that Act, continues to exist and to be a juristic person.

grading in South Africa, ‘hand cleaned’ denoted some additional
processing by hand.  He endorsed Wegner’s view that this
indicated that the nuts would be standard grade or choice grade.
He accepted Geyser’s evidence that Abrahams had provided a
sample that he found acceptable, but that the nuts later supplied
fell short of its quality.  He found that contemporaneous
correspondence undermined Abrahams’s evidence to the
contrary, while corroborating Geyser’s account that during
deliveries he had persistently complained, with justification, about
quality.  In addition, he found that PPECB tests established that
the nuts had unacceptable levels of aflatoxin, and that the
plaintiff’s contractual performance therefore did not conform to the
parties’ agreement.
[5] Although the defendant had rejected only two loads out of 36
delivered, and used the bulk of the rest (barring 40 tons), the trial
court found that Geyser had not accepted the nuts as adequate,
but had pressed, as he was entitled to do, for a downward price
adjustment, which the plaintiff had refused to grant.  Because of
the deficient quality, the plaintiff had failed to prove that it was
entitled to the stipulated contract price.  It had also failed to prove

what it should get instead.  On the pleadings and the evidence, it
was all or nothing for the plaintiff.  That it got nothing, Botha J
remarked in conclusion, was not unfair:  the plaintiff remained free
to tender adequate performance, or to offer the defendant an
adjustment of the contract price to take account of the
deficiencies.

The evidence before the trial court
[6] On appeal, as at the trial, the primary contest was the terms of the
parties’ agreement and the quality of the groundnuts delivered
under it.  Since Casilli was out of the country for most of the
period, the plaintiff’s case on these issues rested in large measure
on the evidence of Abrahams.  Conversely, since the defendant
did not call any of the staff who received or inspected the
groundnuts, nor the other authors of correspondence directed to
Abrahams and the plaintiff, the defendant’s case on these issues
rested exclusively on the account Geyser gave.  Before relating
Abrahams’s and Geyser’s evidence, it may be useful first to
summarise the correspondence, since the judge attributed some
significance to it in determining the probabilities.

[7] It was common cause that the defendant took delivery of all loads
bar two.  While there were specific complaints about musty,
mouldy and wet bags (for which allowance was on the whole
made in the invoicing), only two loads were reported as wholly
unacceptable, namely those rejected on 17 September and 13
October 2004.  Before the second rejection, Geyser’s staff
complained in writing to Abrahams on 11 October in a fax headed
‘POOR QUALITY AND MUSTY PEANUTS’.  That fax referred to
loads delivered on 17 and 20 September.  It also itemised 26 wet
bags delivered on 7 September, and musty peanuts delivered on
29 September.
[8] After the second load was rejected on Thursday 14 October,
Abrahams wrote to Casilli, scolding him about quality:
‘I am not sure what is going on, but the truckloads we receive lately are of
VERY bad quality.  … This qualifies as crush grade.  The stuff is also mouldy
and wet – this is now the 4th truckload we receive of this bad quality.  I will
send you truck details, we demand a refund or replacement.  This does not
comply with the specifications … NO mouldy kernels allowed.  What are you
guys sending us?’

(‘Crush grade’, as emerged at the trial, is the lowest grade of
groundnut, used only for oil extraction.)
[9] On 18 October, Abrahams emailed the transporters, copying
Casilli, recording that ‘in total we received 34 truck loads, you’ll

note load 32 … rejected.  Also see the increased number of wet
bags on the last trucks.’
[10] On 26 October, the defendant again wrote complaining to
Abrahams about sixteen musty bags of peanuts delivered the
previous day.  On 12 January 2005 the defendant faxed
Abrahams adding mention of a further eleven musty bags
received on 25 October, stating that ‘As we are releasing our
stock, we discover a lot of musty bags’ (making a total of 27).
[11] The defendant made three payments for the nuts delivered: it
paid for the first ten loads (delivered according to Abrahams’s
contemporaneous hand-written notes between 25 August and 13
September) on 14 October; a second payment on 10 November
(for loads delivered from 20 to 28 September); and a third on 22
December 2004 (for loads delivered on 28 and 29 September).
The payments therefore covered what the defendant received
until the end of September.  No payments were made for loads
delivered thereafter.
[12] On 1 December 2004, before the defendant’s third payment,
Abrahams wrote to the defendant that Casilli, who was about to
visit South Africa, was ‘not at all happy with the rate of payments

[that] have been received’: ‘He wants a written undertaking from
[the defendant] as to when final payment can be expected’.
Abrahams added: ‘We also need to discuss the two “rejected”
loads.  Please advise where you have off-loaded and stored these
two.’
[13] On 24 January 2005, in evident response to increasing
pressure from the plaintiff, relayed through Abrahams, to settle
the
outstanding
amount,
Geyser
directed
a
significant
communication to Casilli:
‘Up to now we never made any promise to anybody about payment and
settlement to you before end of January 2005.
You have not been prejudiced in this relationship as far as we know.
What we did was to make payments to Cypro Consulting who then
distributed the money.
It will be a pity if you take this matter to a legal status, as it will delay the
settlement of the account, which I presume nobody wants.
As I have told your Cypro representative I can’t make a promise of a
settlement date because of unexpected late payments by our customers.  I
am prepared to make a promise for a final settlement not later than the 21st
of March 2005.
I hope you will find this in order.’

[14] On 2 February 2005, Geyser wrote to the plaintiff’s attorneys
that there was a ‘quality problem’ which was being investigated,
and that the results would be known shortly:  ‘Further I wish to
draw to your attention that your client is indeed aware of the

quality problem and that it was pointed out to him by Cypro.’2  On
the same day, the plaintiff’s attorneys advised Casilli of this
communication.  Casilli replied indignantly that ‘There is now no
compromise’, and ‘We have case of FRAUD by Cypro’.
[15] On 4 February 2005, Abrahams, Geyser and Geyser’s wife met
the plaintiff’s attorney at Abrahams’s home.  The attorney relayed
to Casilli the defendant’s offer from this meeting:
‘On Monday 7 February 2005 R100 000 will be paid into my trust account.
On 3 February 2005 the peanuts were “smoked” and they have to be kept
under sails for ten days, which means that on 14 February 2005 the peanuts
will be uncovered.
On 15 February ACE [the inspection arm of the bankers financing the
defendant’s transaction] will go to the storing facilities and grade the peanuts.
Apparently 10%-15% of the peanuts cannot be used.  Mr Geyser is meeting
with the bank as we speak.
Total losses of peanuts that cannot be used will be given to us via the
grading of ACE and an independent grader and the amount outstanding will
then be reduced with the amount of peanuts that cannot be used.  I received
samples of the batches of peanuts delivered, according to ACE the [toxin]
amount is too high.
I am advised that these losses (initially) of peanuts not used by Jumbo can
be recovered by you, according to the contract that you have with your
suppliers … is this correct?
Once the amount is reduced one third of the amount outstanding will be paid
to you (includes the R100 000 on trust), on 18 February 2005.
On 20 March 2005 the rest outstanding will be paid over to us.
This is what is on the table.  Is this acceptable to you?’

[16] This offer the plaintiff rejected.  An email he directed on 5
February 2005 jointly to Geyser and Abrahams indicated that he

2 ‘Ook dat daar ‘n kwaliteitsprobleem is wat tans ondersoek word en dat die uitslag daarvan
eersdaags bekend sal wees.
Verder wil ek onder u aandag bring dat u klient wel bewus is van die kwaliteitsprobleem en dat dit
deur Cypro aan hom uitgewys is.’

blamed them both for the unacceptable offer, and that he planned
to institute action against both of them.  The next day, Sunday 6
February, Abrahams wrote a reproving letter to Casilli:
‘You knew the quality of the product was not as per the contract.  It was even
pointed out to Farmer’s World [the plaintiff’s supplier].  Please do yourself a
favour and read the [joint venture] you have with Farmer’s World with
emphasis to quality aspects.  They NEVER cleaned the groundnuts, it was
farmer’s grade stuff they supplied and you were made aware of it.’

[17] The next day, the plaintiff’s attorneys sent a letter of demand to
Cypro, rejecting further negotiations, and demanding payment of
the full outstanding amount by the next day.  The defendant itself
responded to this letter, through a letter from its attorneys dated 8
February 2005.  It claimed that the groundnuts were defective
because they did not conform to the ‘hand picked select’ quality;
instead, ‘the supply delivered to our client was “farmer’s stock”’.
The latter term was novel to the parties’ interactions.  In evidence,
Geyser explained that it denoted peanuts merely shelled by the
farmer, but not cleaned, nor cleared of broken or halved kernels,
skins, shells, sticks, stones; so ‘any thing’ (‘enige ding’) could be
inside the bags.  The letter proposed that the disputed stock be
sifted and sorted, and that an accounting be done thereafter.
[18] The plaintiff found this unacceptable.  Summons was issued
and served just over two weeks later.  The defendant pleaded that

the parties had agreed that the nuts would be hand-selected and
choice grade, that they would conform to specified sizes, and be
fit for human consumption.  (The defendant initially counter-
claimed for a price reduction of 20%, plus labour costs of R894
250 incurred because of the disputed deficiencies, but abandoned
this on the first day of trial.)
[19] Against this background of written evidence, I now return to the
parties’ conflicting accounts of what occurred when the contract
was concluded and while the nuts were being delivered.
Abrahams testified that ‘farmer’s grade’ groundnuts emanated
from small-scale farmers in Malawi or the bordering areas of
Zambia who produced cash crops on farms smaller than a
hectare.  The relevance of this lay in the quality of the nuts, and
the state in which they were shipped.  The producers hand-
shelled the nuts, and separated foreign matter from them.  Later,
the product was again hand cleaned by women workers at central
collecting depots, who removed twigs, shells, leaves, stones.
Casilli testified that these were hand-shelled nuts, sorted and
cleaned by hand to the minimum specification, ‘as low as you can
get from the field’; it was not a graded, sorted product.  Farmer’s

grade, Abrahams emphasised, was to be distinguished from other
grades such as crush and choice, and grades that specified
different sizes.  She was emphatic that it was not equivalent to
choice grade.
[20] She explained that she negotiated price, grade, quality and
delivery with Geyser for a first, near-identical, supply contract that
she concluded with him in Cypro’s own name.  When Geyser said
he needed more nuts, she concluded a second contract with him
– the one in issue – on behalf of the plaintiff.  She was adamant
that though she knew that the defendant wanted the nuts to
process into peanut butter, there was no agreement that they
would be choice grade, or ‘hand picked select’.  The nuts had
been hand cleaned, but not sorted – that remained to be done
after delivery.  ‘Farmer’s grade’ was all that the plaintiff undertook
to deliver, and that was what it did indeed deliver.
[21] Abrahams insisted that to Geyser’s knowledge it was
impossible to determine or control aflatoxin levels in groundnuts
imported from Africa:  it was for this reason that the written
agreement made no reference to it.

[22] Geyser testified that he needed groundnuts during mid-2004,
which was a time of great shortage (‘… ’n baie groot skaarste aan
grondbone.  Die oes daardie jaar was nie na wense nie’).  He
expressly ordered edible grade (‘eetgraad’) nuts.  This entailed
that they would be choice grade.  He also specified that aflatoxin
levels had to be acceptable: Abrahams assured him this would
not be a problem.  He showed her exactly what ‘choice grade’
was, and she brought him samples that were excellent, top-grade.
He was prepared to pay R4 300 per ton because no cent would
be required for further cleaning.
[23] Yet, Geyser recounted, he realised at the time of the very first
deliveries (‘van meet af’, that is from 25 August 2004) that the
nuts delivered were quite different from those previously supplied
under the contract with Cypro: they were much smaller, with many
shrunken kernels and a tremendous level of impurities such as
sticks, stones, insects and other objects.  He telephoned
Abrahams to object.  On various occasions he told her that he
was extremely unhappy with the quality – the nuts were at face
value (‘op sigwaarde’) not what had been agreed.  He told her that
the product delivered must be removed (‘die goed moet weg’); he

declined her request to store them for her, but she responded that
she had no place to do so, and the delivery trucks were now being
used elsewhere.
[24] Geyser recounted that Abrahams visited his plant to inspect
samples of the unsatisfactory nuts (he mentioned 11 September
as the date of the first such visit, which, as the cross-examiner
pointed out to him, was early, after the first nine deliveries; though
the samples are first mentioned in defendant’s fax of 11 October).
Abrahams repeatedly assured him that she would sort out the
quality issue and that he could trust her.  He should first process
the previous contract’s nuts; they would then negotiate when he
needed to process the unsatisfactory nuts and put the matter right
(‘en dit regstel’).  However, he made no payments after the
December payment because of the quality objections.
[25] He refused to accept the two expressly rejected loads because
their standard was of an ‘extremely clear, obvious, terribly bad
quality’ (‘uiters duidelik, ooglopende, verskriklike swak kwaliteit’).
Their rejection was designed to make a ‘statement’ because
Abrahams had disregarded his previous complaints.

[26] Geyser testified that apart from the 40 tons still extant, he
processed about half of the nuts delivered, mixing them with
‘clean’ nuts sourced elsewhere to bring down aflatoxin levels.
The remainder (420 tons) he sold to a farmer for R200 000 (barely
one-tenth of the purchase price).  His financing bankers, to whom
Abrahams (acting for Casilli) had introduced him, had advanced
the (discounted) financing for all 36 loads received, bar the two
expressly rejected.

Assessment of the evidence
[27] The onus rested on the plaintiff to establish the terms of the
contract it sought to enforce – that is, the written contract Geyser
and Abrahams signed.  The first question is thus whether, as the
defendant sought to establish, the parties’ agreement in fact
provided that the nuts would be hand-selected and choice grade.
Geyser testified that his express stipulation with Abrahams was
for first-grade, top-grade, choice nuts of ‘hand-picked select’
quality.  The major obstacle to this version lies in the express
written terms: ‘hand cleaned farmer’s grade groundnuts’.  Geyser
stated in cross-examination that he was a careful businessman:

‘Normally we would have set out every jot and tittle, because that
is how I normally do my business’.3  On this occasion, however,
he did not: ‘The conditions from my side, these are not written
here, like many things are not written here’.4  The reason, he
testified, was that ‘I said to her, shouldn’t we rather set out
everything, and she said to me, but then you make it very
complicated and later that will cause problems … she assured me
that I did not need to worry because after all we would not have
problems’.5
[28] This highly damaging detail – which, as counsel rightly
conceded, essentially entailed that Abrahams lied to Geyser and
cheated him – was never put to Abrahams during an extensive
cross-examination.  That is the first obstacle to its acceptance.
The second is that it is inherently improbable.  The basis on which
Geyser claimed Abrahams persuaded him not to record his
express stipulation for ‘choice’ nuts – that it would ‘complicate’
matters – is hard to credit.  Geyser was a sound and self-reliant

3 ‘Normaalweg sou ons beskryf het elke jota en tittel want dit is hoe ek normaalweg my besigheid
doen’.
4 ‘Die voorwaardes van my kant af, dit is nou nie hier geskryf soos baie dinge nie hier geskryf is
nie’.
5 ‘Die voorwaardes van my kant af, dit is nou nie hier geskryf nie, soos baie dinge nie hier geskryf
is nie, want ek het vir haar gesê moet ons nie maar alles beskryf nie toe se sy dan maak jy dit
nou baie ingewikkeld en later gaan dit probleme veroorsaak … maar sy het my verseker ek hoef

businessman.  That he would defer to Abrahams on such an
important issue, for such a flimsy reason, is difficult to accept.
[29] In short, if securing choice grade nuts was as vital to Geyser as
he claimed, and he told Abrahams this, the likelihood is that the
written agreement would have reflected it.  Instead, it contained
something very different.  It is therefore probable that the parties
agreed only, as the contract recorded, that the nuts were to be
‘hand cleaned, farmer’s grade’ quality.
[30] What did this demand of the supplier?  As Botha J rightly
observed, the description contains some ambiguity, predictably
reflected in the parties’ differing accounts at the trial.  Abrahams
insisted that it meant something different from, and inferior to,
choice grade, or ‘hand-picked select’ (the category familiar to the
PPECB): they would be something less than the best.
[31] Wegner’s evidence in this regard was that ‘hand cleaned
farmer’s grade’ was not a known term within the grading
regulations the PPECB applies.  The weight his evidence can
carry in relation to the parties’ own characterisation of their
contractual specification is thus limited.  However, he regarded

nie bekommerd te wees nie want ons gaan mos nou nie probleme hê nie’.

the specification as ‘a little misleading’ (‘’n bietjie misleidend’)
since ‘farmer’s grade’ would refer to a product that was not
necessarily selected into classes or grades.  He added however
that ‘hand cleaned’ would suggest to him (‘sou weer vir my vat
na’) a product that was not merely machine cleaned, but hand
cleaned, thus suggesting choice or standard grade (‘wat dus op
die keur of standaard graad spesifikasies ‘n aanduiding sou gee’).
[32] A factor bearing considerably on the probabilities here is
Geyser’s own account that there was a severe shortage of
groundnuts in mid-2004 because of crop shortages.  This explains
why the nuts were sourced from central Africa (and not from
Geyser’s previous suppliers, all of whom seem to have been
South African), and it points to his being willing to accept a
contract embodying what Abrahams was able to supply, on the
terms she offered, and at the price Casilli quoted.   It also points
away from Geyser’s insistence that the agreed price (R4 300 per
ton) necessarily denoted top-grade nuts.
[33] Also significant is Geyser’s own conversance with what he
termed ‘farmer’s stock’, a grade he explained included impurities
along with shelled nuts.  The terminological resonance between

‘farmer’s grade’ and ‘farmer’s stock’ does not appear incidental.  It
seems likely that Geyser must have known when terms were
agreed that ‘farmer’s grade’ entailed less than choice grade.
‘Hand cleaned’ suggests an additional process of manual
cleansing, as Abrahams described in her evidence.  But it does
not mean ‘hand selected’, which necessarily connotes a measure
of sorting, since it was common cause at the trial that the nuts
were not expected to be sorted.
[34] The crucial question is to what extent the nuts delivered
conformed with what the plaintiff undertook to supply.  Two things
are beyond contest.  First, at least two loads did not conform:
those Geyser rejected on 17 September and 13 October.
Second, Geyser’s staff expressly complained in writing, on more
than one occasion, about wet bags and mouldy peanuts: but each
time they did so they specified precisely the details of the loads
and numbers of affected bags.
[35] The written details bear on whose testimony is more probable.
Geyser testified that from the outset he complained repeatedly
about the quality of the nuts that were delivered.  A difficulty is
that this account did not square with what defendant’s counsel put

to Abrahams.  She was told in cross-examination that Geyser
would testify that he had complained continually from about the
end of September (‘van ongeveer einde September af
deurlopend’).  This suggests not only that the complaints started
later, but that they were more isolated, than Geyser’s evidence
sought to portray, and thus that he coloured his account with
some measure of overstatement.
[36] Abrahams confirmed that she visited Geyser’s plant north of
Pretoria to inspect samples of deficient nuts, though she was not
present when they were drawn.  She linked her recollection of this
visit to receipt of the defendant’s letter of 11 October, where the
samples are first mentioned, and which complained about ‘poor
quality and musty peanuts’.  Abrahams testified that she accepted
that the complaints and samples were related to the specific loads
itemised in that letter, namely the expressly rejected load of 17
September, and the load delivered three days later on 20
November.  As she bluntly stated, ‘There was no reason not to
accept this.’6  As against this, it is difficult to accept Geyser’s

6 ‘Daar was geen rede om dit nie te aanvaar nie.’

evidence, lacking entirely in documentary back-up, that his
complaints were insistent from the first delivery.
[37] A further difficulty with Geyser’s evidence is that, while he
insisted that there were pronounced differences between the
loads previously supplied under Cypro’s direct contract, and those
supplied on behalf of the plaintiff, he had difficulty in articulating
what his problem was:
‘I can only tell you that samples were in fact drawn [from every load] and that
I saw … here is a problem with the quality and I could not say how big the
problem was and I could not tell you what the problem was.  I showed them
to Mrs Abrahams, each sample.  My people were there, we looked at them,
we talked about it and then she promised to get something done and that it
all I can say to you, but I do not know what is in the loads before I have put
them through the [processing] machines.’7

[38] Geyser’s inability to specify the problems with the loads other
than those he rejected outright (and the specific complaints about
wet and mouldy bags) suggests that quality problems, as
Abrahams indeed inferred, related only to those.
[39] The evidence thus established that at least two of the loads and
some bags in addition did not conform with the parties’ contractual

7 ‘Ja, ek kan net vir u se dat daar wel monsters getrek was [van al die vragte] en dat ek gesien
het dat die kwaliteit, hier is fout met die kwaliteit en ek kon nie se hoe groot die fout is nie en ek
kon nie vir u se wat die probleem is nie.  Ek het dit vir Mev Abrahams gewys, die monsters apart.
My mense was by, ons het daarna gekyk, ons het daaroor gepraat en toe het sy belowe om werk
te maak daarvan en dit is al wat ek vir u kan se maar ek weet nie wat is in die vragte voor ek dit
nie deur die masjiene gegooi het nie.’

specification; but Geyser’s evidence that virtually all the nuts, from
the outset, so deviated, cannot in my view be accepted.
[40] Botha J rightly considered that two of Abrahams’s written
communications to Casilli – both of which she supplied to the
defendant when she thought the plaintiff planned to sue her – lent
support to Geyser’s complaint about the general standard of the
nuts. These were her scolding message of 14 October 2004, in
which she claimed that Casilli had sent ‘crush grade’ nuts; and her
message of 6 February 2005 in which she stated ‘They NEVER
cleaned the groundnuts, it was farmer’s grade stuff they supplied
and you were made aware of it’.
[41] Of the first, Abrahams said that she was referring to the
rejected loads (given substance by the reference to ‘the
truckloads we receive lately’), and was in any event intended to
exhort the plaintiff’s suppliers do their best amidst possible quality
variances.  She pointed out moreover that she could speak with
authority only about the samples she herself had inspected (which
she believed came from the rejected loads) – she had not been
present when all the deliveries were off-loaded, and could
therefore not pronounce on them.

[42] Regarding the January message. Abrahams reiterated that it
referred only to the rejected consignments, and that she had no
personal experience of the loads delivered, adding that she
wished to get Casilli off her back (given substance by the fact that
the previous day Casilli threatened her with legal action).
[43] The insufficiencies in these explanations must be weighed
against the documents that undermine Geyser’s own account.
That evidence is in my view even weightier.  First, it is notable that
on 8 October, in finalising the financing deal with the bank, the
defendant described the nuts that were then being delivered as
‘choice’ (the warehouse documentation records: ‘”Said to be”
Ground Nuts (choice grade)’).  Though he blamed Abrahams for
this description, the fact is that at a time when he later claimed
there were wholesale quality deficiencies he was happy to nail
down a substantial (R4.3 million) credit deal on the basis that the
overall quality being delivered was good.
[44] Particularly destructive of Geyser’s account of long-standing
and severe quality problems is his willingness on 24 January to
offer the plaintiff ‘final settlement’ of the amounts owed by 21
March (with no word of complaint about quality).  Eleven days

later, on 4 February, the stakes having been raised, Geyser put
less on the table: but he was still offering an immediate R100 000
plus the rest after a price adjustment based on quality testing; this
letter recorded that ’10-15% of the peanuts cannot be used’ – with
no suggestion that from the outset the shipment had been
deficient in its totality.  In the midst of this, it must be remembered,
the defendant on 2 February alluded only to a ‘quality problem
that is currently being investigated’ (‘’n kwaliteitsprobleem … wat
tans ondersoek word’).  It was only on 8 February, after open
hostilities had commenced, that the defendant recorded for the
first time that the nuts were defective because they did not
conform to the ‘hand picked select’ grade.  This was also at a time
when Geyser’s own correspondence indicated that he was
experiencing cash flow problems.
[45] Geyser’s explanation of his 24 January message – that he was
merely coming to the aid of Abrahams because she begged him
(‘my kom soebat’) to make a (necessarily false) promise in order
to get Casilli off her back – reeks of improvisation.  His
explanation of the R100 000 offer – that he was amenable to
settlement – is plainly true; and perhaps the matter might have

reached a juster resolution had the plaintiff also been amenable;
but the fact that he was willing to make this offer at all is a further
indication against his account of general and pronounced
deficiencies.
[46] It is in my view not possible to accept Geyser’s account that he
was on the verge of rejecting all the loads all along, and wanted to
do so, but was diverted from this intention by the repeated
blandishments of Abrahams.   The likelihood is that as a strong-
minded businessman he would, on the contrary, have rejected
product unacceptable to his needs, and that he in fact did so
when the product fell short – though only on the occasions
recorded in the written exchanges with Abrahams.  His inability to
explain under cross-examination why, in the light of his detailed
descriptions of poor quality, he had not rejected subsequent
loads, bears this out.
[47] Geyser testified that for practical reasons relating to his store-
room layout he used the Cypro-supplied nuts first, and started
using those supplied on behalf of the plaintiff after they had been
depleted: it was only then that he realised the extent of the
problem.  This, as already indicated, is difficult to square with his

evidence that he was aware of the problem, and complained
insistently, from the outset.  It is also difficult to square with the
fact that some loads and bags were at an earlier stage expressly
rejected.  This, again, points away from the conclusion that there
was a general and acute quality deficiency.
[48] These considerations lead to the conclusion that it is not
possible to accept Botha J’s findings on the probabilities.  These
were based on the trial judge’s view of the inherent probabilities in
the contesting versions, with strong reliance on the written
evidence.  In my respectful view, this court is in as good a position
as the trial judge to assess these.
[49] It follows in my view that the trial court should have found that:
(i)
the plaintiff established that the sole terms relating to the
product to be delivered were those contained in the parties’
written agreement of 6 August 2004;
(ii)
those terms entailed that the plaintiff would deliver farmer’s
grade nuts that were hand cleaned, but which were less than
choice grade or hand picked select;
(iii)
there was no specification regarding aflatoxin levels;

(iv)
barring the rejected loads and the expressly specified wet
and mouldy bags, the plaintiff in fact delivered according to
specification.
[50] These findings make it unnecessary to consider the parties’
submissions on the difficult questions that may have arisen
regarding the exceptio non adimpleti contractus and the attendant
possibility of price-reduction.
[51] There is an order in the following terms:
1. The appeal succeeds with costs.
2. The order of absolution from the instance is set aside and in its
place there is substituted:
‘(a) The claim succeeds with costs.
(b) There is judgment for the plaintiff in the amount of R708 417.49
plus interest at the rate of 15.5% on this amount from the date of
judgment to date of payment.’

E CAMERON
JUDGE OF APPEAL

CONCUR:
NAVSA JA
CACHALIA JA
HURT AJA
KGOMO AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  Thursday 29 May 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

Amanita Premier Oils v Praysa Trade (247/07) [2008] ZASCA 59 (29 May 2008)

In a judgment delivered today, the Supreme Court of Appeal has reversed the factual
findings of the Pretoria High Court in a case in which a Zambian-registered
corporation, the appellant (plaintiff), sued the defendant for the rest of the purchase
price for more than 900 metric tons of groundnuts delivered under an agreement of
sale concluded in August 2004.
After analysing the parties’ transactions and the oral and documentary evidence, the
SCA concluded that the High Court should have found that:
(i)
the plaintiff established that the sole terms relating to the product to be
delivered were those the parties recorded in their written agreement of 6 August
2004;
(ii)
those terms entailed that the plaintiff would deliver ‘farmer’s grade’ nuts that
were hand cleaned, but which were of lower quality than choice grade or ‘hand
picked select’;
(iii)
there was no specification regarding aflatoxin levels;
(iv)
barring the loads the defendant rejected, and excepting the wet and mouldy
bags the defendant expressly specified, the plaintiff in fact delivered according to
specification.
The SCA accordingly upheld the appeal with costs, and set aside the order of the
High Court.  In its place, the defendant was ordered to pay the plaintiff R708 417.49
plus interest.