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[2015] ZAGPJHC 187
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Bergh v Robson and Others (40823/2013) [2015] ZAGPJHC 187 (3 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 40823/2013
DATE: 03 AUGUST 2015
In the matter between:
ROBERT BENJAMIN
BERGH
..............................................................................................
Applicant
And
SIDNEY CAWOOD
ROBSON
....................................................................................
First
Respondent
KHANDA SEATING (PTY)
LTD
...........................................................................
Second
Respondent
DITTO DESIGNS (PTY)
LTD
...................................................................................
Third
Respondent
J U D G M E N T
KEIGHTLEY, AJ
:
INTRODUCTION
[1] The applicant in this matter is Robert Benjamin Bergh (“Bergh”).
The active respondents in the litigation are Sydney
Cawood Robson
(“Robson”) and Khanda Seating (Pty) Ltd (“Khanda”).
The third respondent, Ditto Design (Pty)
Ltd (“Ditto”),
is an entity under Bergh’s control. It has not participated in
the proceedings.
[2] Bergh seeks an order directing the first and second respondents,
jointly and severally, to pay an amount of R500 000. 00, together
with interest, and costs on an attorney and client scale.
[3] Bergh’s cause of action is based on a sale of shares
agreement (“the agreement”) entered into between him
and
Robson. In terms of the agreement, Bergh sold his shares in
Khanda to Robson for the amount of R4 million. The
purchase
price was payable in tranches. It is common cause that Robson
has failed to pay a tranche in the amount of R500
000. 00.
Payment of this tranche fell due on 30 September 2013.
[4] Robson opposes the application on his own and on Khanda’s
behalf. He has also instituted a counter application
against
Bergh and Ditto. As regards the counter application, Robson
relies on a cession by Khanda of its rights to him.
[5] Before dealing with the legal issues that arise from the
application and counter application, I briefly set out the background
facts.
[6] Bergh and Robson previously were co-shareholders in Khanda.
The company specialises in fixed or mass seating. It
supplies
seating products to institutions like churches, theatres, hospitals
and universities.
[7] For economic reasons, Bergh and Robson decided that Bergh would
exit from the business. This gave rise to the agreement
providing for the sale of Bergh’s shares in Khanda to Robson.
[8] The agreement was signed on 18 October 2012. For present
purposes, the relevant terms of the agreement included the following:
[8.1] Bergh sold his shares to Robson for R4 million.
[8.2] Payment of the purchase price was structured so as to include
various amounts to be paid in trances over a period of time.
One of these was the amount of R500 000. 00, payment of which was due
on the 30 September 2013. The remaining details regarding
the
structure of the payment are not relevant.
[8.3] Second respondent bound itself as surety and co-principal
debtor for all monies owed by Robson to Bergh under the agreement.
[8.4] The agreement provided for the auditors to prepare and execute
the necessary share transfer forms to enable Bergh’s
shares to
be registered to Robson.
[8.5] Bergh undertook to resign as a director of Khanda.
[8.6] Both parties were required to sign the necessary documents to
give effect to the agreement.
[8.7] Robson undertook to use his best endeavours to procure the
release of Bergh as a surety of Khanda within 30 days of the
agreement.
[8.8] The agreement included a number of provisions under the heading
“
Specific conditions agreed upon between the parties
pursuant to signing of this agreement
” (“the clause 6
terms”). Essentially, they laid the groundwork for the
terms on which Bergh, through his
entity Ditto, could operate from
Khanda’s premises and make use of some of Khanda’s
facilities.
[8.9] These specific conditions also included terms on which the
parties were to deal with work to be completed by Khanda and Ditto
after signature of the agreement. Two of these terms are
relevant.
[8.10] The first relates to existing contracts regarding the De Aar
and Boitumelo hospitals. Bergh undertook to provide Khanda
with
the products for these contracts.
[8.11] The second term of relevance was clause 6.4. It provided
that:
“
Insofar as it is not expressly recorded or implied
elsewhere in this agreement, and for the duration thereof, it is
specifically
agreed that neither (Ditto), nor (Bergh)
shall
either directly or indirectly approach any of (Khanda’s) former
or existing customers with the aim of procuring business
from them
and shall in general refrain from soliciting business from such
customers in any manner whatsoever
.
” (emphasis
added)
[8.12]Any legal costs incurred by either party in enforcing its
rights under the agreement were to be on the scale as between
attorney and own client.
[9] There is some dispute as to the date of Bergh’s resignation
as a director of Khanda, and the termination of his employment
with
the company. Bergh’s contention is that his employment
terminated on 30 September 2012, and that the effective
date of his
resignation as director was 1 October 2012. This is based on
the effective date of the sale of shares agreement,
being 1 October
2012. Robson contends that Bergh resigned on 24 October 2012.
This contention is based on the formal
letter of resignation prepared
by the auditors, which is headed with the latter date.
[10] For reasons that will become clear later, the exact date of
Bergh’s resignation as director and employee of Khanda is
not
material to a determination of this matter. I do not deal with
it any further.
[11] There is no dispute that Bergh signed all the appropriate
resolutions to give effect to the agreement and to the transfer
of
shares. Consequently, Robson became the holder of Bergh’s
shares.
[12] While Robson complied with certain of his payment obligations,
he defaulted on his obligation to pay an amount of R400 000.
00 that
fell due on 30 November 2012. Robson undertook to make the
payment by 28 February 2013 at the latest. However,
he sent an
email to Bergh on that date indicating that he could not make the
payment. He explained that Khanda was experiencing
financial
and cash flow strains. Robson made an alternative repayment
proposal.
[13] Consequently, in March 2013 the parties reached agreement on a
restructured payment schedule. This covered the outstanding
amount of R400 000. 00. It also covered the amount of R500 000.
00, which was to fall due on 30 September 2013. The
revised
payment schedule reduced this latter payment to R402 165.75.
[14] It was also agreed to cancel Khanda’s order from Ditto in
respect of the De Aar and Boitumelo hospital contracts, although
the
underlying reason for this is disputed.
[15] Bergh’s attorneys prepared a written addendum to the sale
of shares agreement to give effect to these amendments.
This
was required under the non-variation clause included in the sale of
shares agreement. While Bergh and Ditto signed the
addendum on
8 March 2013, Robson and Khanda never did so. In the
circumstances, the amendments agreed between the parties
did not take
effect.
[16] In June 2013 Robson’s attorneys wrote to Bergh’s
attorneys asserting that Ditto had failed to deliver to Khanda
the
products ordered in respect of the De Aar and Boitumelo hospital
contracts under the clause 6 terms of the agreement.
In this
letter, the attorneys stated that insofar as Robson’s delayed
payments under the sale of shares agreement may have
influenced
Ditto’s failure to supply the product, “
the
payment
of the purchase price
for the shares and the
supply
of the goods
are two distinctive matters between different
parties and should not be confused
” (emphasis in the
original).
[17] Relying on the March 2013 agreement, Ditto asserted that the
order had been cancelled and it was not under any obligation
to
deliver.
[18] Despite this, Robson paid the outstanding amount of R400 000. 00
in accordance with the agreement. This was the amount
originally due on 30 September 2012. However, Robson failed to
pay the amount that fell due on 30 September 2013, i.e. the
amount of
R500 000. 00 that the parties had agreed would be reduced to R402
165.75.
[19] It was this breach by Robson that gave rise to Bergh’s
application. Bergh claims payment of the amount of R500
000. 00
from Robson rather than the amount of R402 165.75. Bergh avers
that Robson’s failure to sign the written addendum
to the sale
of shares agreement rendered the agreement to reduce the amount
ineffective. Accordingly, Bergh relies on the
written terms of
the agreement in seeking payment of the full amount.
[20] Robson and Khanda oppose Bergh’s application for an order
enforcing payment of the amount due. They base their
opposition
on the following allegations of breach:
[20.1]Bergh’s breach of clause 6.4 of the agreement;
[20.2]Bergh’s breach of his fiduciary duties owed to Khanda as
a director; and
[20.3]Ditto’s contractual breach of the clause 6 terms in
failing to comply with its obligations under the agreement to supply
Khanda with product in respect of the De Aar and Boitumelo contracts.
[21] Robson contends that clause 6.4 of the agreement constitutes a
general restraint clause prohibiting Bergh from competing with
Khanda
in any way. Robson cites a number of what he describes as
incidents that, he says, demonstrate that Bergh did not
act as he
ought to have acted. According to Robson, these incidents
indicate that Bergh breached the general restraint contained
in
clause 6.4 of the agreement, and that he breached his fiduciary
duties as director to Khanda.
[22] Not surprisingly, the facts averred by Robson to support his
case in respect of the incidents described are in dispute.
However, for reasons that appear later, it is not necessary for me to
set out any details of the incidents, nor to make a determination
on
how to deal with the related disputes of fact.
[23] Robson states that, on the basis of these incidents, he has
“
good reason to suspect that (Bergh’s) actions have
caused damage to (him) and to Khanda in excess of the amount claimed
by
(Bergh)
”. While Robson provides some figures in
respect of these possible damages in his answering affidavit, he says
that
he cannot finally quantify them without the benefits of a
discovery process.
[24] Consequent on these alleged breaches, Robson contends that Bergh
is not entitled to the relief he seeks. He avers that
he is
excused from the obligation to pay the amount owing to Bergh for the
sale of shares on two grounds.
[25] First, Robson relies on the principal of reciprocity. He
asserts that his and Bergh’s obligations under the agreement
were reciprocal. Thus, he contends, he cannot be held to his
obligation to pay the balance of the purchase price for the
shares in
light of Bergh’s alleged breach of his own reciprocal
obligations.
[26] Second, Robson raises the defence of set-off, based on the
damages alleged to have been caused by Bergh’s breaches.
[27] In addition to opposing Bergh’s application, Robson
contends that the alleged breaches provide him with a basis for
a
claim for damages against Berg. On this basis, he instituted
the counter application in which, on his own and Khanda’s
behalf, he seeks an order:
[27.1]Referring their (Robson’s and Khanda’s) counter
application to trial.
[27.2]Directing that the counter application should stand as their
simple summons.
[27.3]Directing them to deliver their declaration within 30 days of
the court order.
[27.4]Directing that the normal Rules of Court pertaining to trial
will apply after the delivery of the declaration.
[27.5]Directing that Bergh’s application be stayed pending the
finalisation of the trial.
[28] Clearly I must make a determination on the counter application
before I consider Bergh’s application. This flows from
the fact
that if I decide the counter application in favour of Robson and
Khanda, the effect will be to stay Bergh’s application.
In that
event, the application must await another day.
[29] It is immediately apparent from the notice of motion that the
counter application is devoid of a prayer seeking any form of
substantive relief. This is a significant attribute of that
application. Mr Van der Merwe, for Bergh, submitted that
this
in itself rendered the counter application fatally flawed. Mr
Steyn, on behalf of Robson and Khanda made contrary submissions.
[30] Before dealing with this issue, I refer first to an underlying
question. The question relates to the discretion of a
court to
grant a stay in civil proceedings on equitable grounds. Robson
motivates for the grant of a stay of the application
on the following
basis. He says that if the relief is granted, Bergh will not be
prejudiced. Bergh will retain his
claim against the respondents
and interest will accrue on the amount he claims. On the other
hand, says Robson, if the relief
in the counter application is
refused, it will give rise to a grave injustice to him and Khanda.
They will be denied the
opportunity to investigate fully Bergh’s
actions, and from instituting claims for damages where appropriate.
[31] From this it is clear that the counter application is cemented
squarely on equitable grounds. The underlying question
I
adverted to earlier is the following: does the court have a
discretion to grant a stay in civil proceedings on general grounds
of
equity? In other words, where the interests of justice demand
it.
[32] Both parties assumed that I have this power. Mr Van der
Merwe, for Bergh, submitted that I must exercise this discretion
sparingly and in exceptional and clear cases.
[33] This is in line with the decision of Van Dykhorst J, in this
division, in
Abdulhay M Mayet Group (Pty) Ltd v Renasa Insurance
Co Ltd and Another
[1]
(“
Abdulhay
”). In that case, Van Dykhorst J
accepted that he had the discretion to stay an application for an
interdict pending
the determination of related proceedings by the
respondent. He based his acceptance of the existence of the
discretion on
the decision by Nicholas J in
Fisheries Development
Corporation SA Ltd v Jorgensen and Another; Fisheries Development
Corporation SA Ltd v AWJ Investments (Pty)
Ltd
[2]
(“
Fisheries
”).
[34] However, more recently, the Supreme Court of Appeal has held
that neither of these decisions is good authority for the existence
of a power to grant a stay in civil proceedings on equitable
grounds. In
Clipsal Australia (Pty) Ltd and Others v GAP
Distributors and Others
[3]
(“
Clipsal
”) the SCA pointed out that Nicholas J in
Fisheries
did not find that the discretion existed. He merely
proceeded to determine the dispute on the
assumption
that it
did, and refused to grant the stay on the basis that no case had been
made out to warrant it. In the circumstances,
Van Dykhorst’s
reliance on
Fisheries
in support of his finding that he had a
discretion to grant a stay on equitable grounds was ill-founded.
[4]
[35] The SCA has not yet made a determination on whether the
discretion does exist. In
Clipsal
, the court proceeded
on the assumption that it did, without making a finding in this
regard. Streicher ADP held that:
“…
I am of the view that if the court below
did have a discretion, on equitable grounds, to stay the contempt
application, the exercise
of that discretion in favour of the
respondents was not justified and should be set aside. I shall,
therefore, likewise assume
that the court below had such a
discretion.
”
[5]
[36] In view of the finding a reach in this matter, I do not have to
decide this issue. Like the courts in two of the cases
discussed above, I am also able to make a determination on the
counter application on the assumption that I have a discretion to
grant a stay on equitable grounds. I make no finding on the
principled question of whether that discretion exists.
[37] Returning to the counter application before me, I consider,
first, Mr Van der Merwe’s submission that the counter
application
is fatally flawed in view of the absence of any
substantial relief in the prayers set out in the notice of motion.
[38] Mr Steyn, who appeared for Robson and Khanda, submitted that
there was no substance to this contention. He submitted
that
the relief sought in the notice of motion is in line with the order
normally made where applications are referred to trial.
Mr
Steyn cited the well established authorities of
Haupt t/a Soft
Copy v Brewers Marketing Intelligence (Pty) SA and Others
[6]
(“
Haupt
”), and
Standard Bank of SA Ltd v
Neugarten and Others
[7]
(“
Neugarten
”), in this regard.
[39] I am unable to accept Mr Steyn’s submissions. When a
matter is referred to trial, the purpose of the trial is
for the
court to determine whether it can grant the substantive relief that
was originally sought by the applicant in his or her
notice of
motion, or counter application, as the case may be. As a matter
of legal logic, therefore, a referral to trial
in motion proceedings
requires the pre-existence of a prayer for some form of substantive
relief. Without this, there is
nothing that can be referred to
trial. Moreover, it is essential that the issues that are in
dispute are defined before a
court refers an application to trial.
[8]
[40] This pre-requisite for a referral to trial does not exist in the
case before me. While the affidavit filed by Robson
in support
of his counter application refers to possible damages claims against
Bergh, the notice of motion in the counter application
does not
include any prayer for damages, or any other substantive relief
against Bergh or Ditto. The relief sought in the
counter
application is circular and nonsensical: Robson and Khanda seek a
referral of the counter application to trial, but the
counter-application is directed at obtaining a referral to trial and
a stay. If they succeed with the relief sought in the
counter
application, there is nothing left to refer to trial.
[41] It may be that what Robson intended by launching the counter
application was that his allegations of breach and entitlement
to
damages would be referred to trial. However, he could not
include prayers based on breach and damages in his notice of
motion
in the counter application for at least two reasons.
[42] The first is the obvious reason that a claim for damages cannot
be instituted via motion proceedings. Robson will have
to
institute an action to pursue his claim. He cannot avoid
this difficulty through his counter application.
[43] Secondly, it is clear from the affidavit filed by Robson in
support of his counter application that he is not yet able properly
to formulate a claim for damages. He states on more than
one occasion that one of the benefits of a referral to trial
will be
that he and Khanda will be able properly to investigate their
possible damages claims and the quantum of any appropriate
claims.
Courts should not refer matters to trial or oral evidence
unless the issues are properly identified and clearly defined.
[9]
Apart from the flaws already identified, it would not be appropriate,
in any event, to refer Robson’s case to trial.
[44] For all the above reasons, I conclude that the counter
application was ill conceived and fatally flawed. I cannot grant a
referral to trial on the basis of the counter application. As
such, there is no basis on which I can properly order a stay
of
Bergh’s application. In the counter-application, the stay
is inextricably linked to the referral to trial.
Once the
latter falls off the table, the application for a stay must follow
suit.
[45] Even if the counter application was not fatally flawed, in my
view the interests of justice do not weigh in favour of granting
Robson’s request for a stay of Bergh’s application.
As I have indicated, Robson avers that a refusal of the relief
in the
counter application will prevent him and Khanda from investigating
Bergh’s alleged breaches and proceeding against
him for
damages. It is not clear to my why Robson and Khanda will be
prevented from seeking legal recourse against Bergh
if the counter
application is dismissed. If there is sufficient evidence of
Bergh’s alleged breach to sustain a claim
for damages, nothing
prevents them from following the usual legal route and instituting
proceedings against Bergh. Their
right to do so exists
regardless of the outcome of Bergh’s application.
[46] Rather belatedly, on behalf his clients Robson and Khanda, Mr
Steyn proposed an alternative to the relief set out in the notice
of
motion in the counter application. He requested me to consider
granting a postponement of Bergh’s application
sine die
coupled with a directive to Robson and Khanda to issue summons in
their envisaged damages claim within a set period of time.
[47] Even on the assumption that it would be appropriate to consider
this request under the prayer for further and alternative
relief in
the notice of motion in the counter application, I cannot countenance
granting such an order in this case. I have
already indicated
that the interests of justice do not support the granting of a stay
of Bergh’s application. For the
same reasons, a
postponement of that application is not warranted. Robson and
Khanda do not need a postponement of Bergh’s
application to
pursue a damages claim.
[48] The case for a postponement may have been stronger if there was
real merit in Robson’s defences to the application.
The
defences are based on set-off and reciprocity and are accordingly
linked to Robson and Khanda’s proposed action for damages.
However, as I will indicate in due course, the defences lack merit.
In the circumstances, there is no warrant for a postponement
on this
basis either.
[49] For all of these reasons, I find that the counter application,
whether in its original or proposed new form, cannot be sustained.
It must be dismissed.
[50] I turn now to consider Bergh’s application. As I
indicated earlier, Robson does not dispute that he has failed
to pay
the amount of R500 000. 00 under the agreement. However, he
asserts that he is legally excused from doing so on two
grounds.
First, on the basis of the principle of reciprocity, and second, on
the basis of set-off.
[51] Obligations in a contract are regarded as reciprocal where the
performance of one obligation is conditional on the performance
of
the other obligation. There must be such a relationship between
the obligation by the one party and that due by the other
as to
indicate that one was undertaken in exchange for the other.
[10]
The
exceptio non adempleti contractus
acts as a defence to a
defendant who is sued by plaintiff who has not yet performed or
tendered the performance of his or her own
reciprocal
obligation.
[11]
It is a matter of interpretation of the contract and obligations in
question to determine whether the parties intended reciprocity
of
obligations, and hence whether the defence is open to a
defendant.
[12]
[52] Robson asserts that his (Robson’s) obligation to pay for
the shares attracted a reciprocal obligation on Bergh’s
part to
comply with his obligations under the clause 6 terms of the
agreement. As I have indicated, Robson’s case is
that
Bergh has breached his obligations under clause 6 and therefore
Robson is excused from complying with his obligation to pay
the final
tranche of the payment price for the shares.
[53] There are a number of reasons why this contention cannot
succeed.
[54] To begin with, in terms of the sale of shares agreement, there
was obvious reciprocity between Bergh’s obligation to
effect a
transfer of shares to Robson, and Robson’s obligation to pay
for the shares on the dates prescribed in the agreement.
As with any
agreement of sale, reciprocity lies between the seller’s
(Bergh’s) obligation to transfer the object of
the sale, the
shares, and the purchaser’s (Robson’s) obligation to pay
for them. In the absence of clear indications
to the contrary in the
specific agreement itself, reciprocity of these obligations would not
normally extend to include the kind
of obligations set out under the
clause 6 terms.
[55] The clause 6 terms are aimed at governing and laying down ground
rules for the working relationship between Khanda, on the
one hand,
and Ditto and Bergh, on the other, in the period following signature
of the agreement. There is nothing in these terms
to indicate that
the parties intended any reciprocity to apply between these
obligations and Robson’s obligation to pay the
purchase price
for the shares.
[56] Furthermore, the agreement specifically created a personal
obligation on the part of Robson to pay Bergh for his shares, whereas
the clause 6 terms apply to an expanded group of parties, viz. Khanda
and Ditto. In other words, the sale of shares aspect
of the
agreement gave rise to a completely different nexus of obligations
than that established under the clause 6 terms. In my
view, this is a
clear indication that the sale of shares aspect of the agreement and
the clause 6 terms did not overlap in terms
of reciprocity.
[57] In fact, as I set out earlier, Robson himself took this view.
In the letter sent by his attorney in June 2013, they
record that
Robson’s obligation to pay for the shares and Ditto’s
obligation to provide Khanda with product under the
clause 6 terms
“
are two distinctive matters between different parties and
should not be confused
”.
[58] In light of all of this, I find that there is no merit in
Robson’s contention that he is entitled to withhold payment
of
the balance of the purchase price of the shares on the basis that
Bergh allegedly has breached his obligations under the clause
6 terms
of the agreement. Robson’s reliance on the
exceptio
non adempleti contractus
was misconceived, and must be rejected.
[59] The substance of his defence appears to me to be more properly
founded on a contention that Bergh’s alleged conduct
amounted
to a breach of material terms of the agreement. This would entitle
Robson, or more properly Khanda, to claim damages from
Bergh or
Ditto. It does not, however, permit Robson lawfully to avoid
his obligation to pay the purchase price for the shares.
[60] I turn then to the Robson’s second defence of set-off.
The defence is raised in respect of his obligation to pay
the balance
of the purchase price for the shares, on the one hand, and the
alleged claim for damages against Bergh and Ditto on
the other.
[61] Set-off or
compensatio
is a means of extinguishing or
expunging debts. It comes into operation when two parties are
mutually indebted to one another
and both debts are liquidated and
fully due.
[13]
A defendant may raise set-off as a defence to an action in terms of
which he or she is sued for payment of his or her debt.
[62] The requirements for set-off to apply are the following:
[62.1]Both debts must be due to and owed by the same pair of persons,
i.e. they must be mutual or reciprocal.
[62.2]Both debts must be liquidated.
[62.3]Both debts must be due and payable.
[14]
[63] These requirements are not satisfied in the case before me.
[64] To begin with, as I have already discussed, there is no
mutuality of obligations. Robson is personally indebted to
Bergh for the balance of the purchase price for the shares. The
damages claims are based on alleged obligations owed by Bergh
and
Ditto to Khanda. Thus, the debts in question are not owed
between the same two parties.
[65] Furthermore, the claims relied on by Robson are neither
liquidated nor due and payable. They are claims for
damages
flowing from the alleged contractual breach of Bergh under
clause 6.4 of the agreement, Ditto’s alleged breach of its
obligation
to provide product to Khanda in respect of the De Aar and
Boitumelo contracts, and Bergh’s alleged breach of his
fiduciary
duties to Khanda. This court has recently held that:
“
The correct computation of contractual damages
can never, in principle, be mere arithmetic. A value judgment is an
element of the
computation of the quantum, which computation embraces
the effects of a reasonable effort to mitigate the damages. The
figure of
damages cannot under such circumstances be determined until
that debate is exhausted, as a rule, before a court. …
Moreover, until a court has pronounced, no sum is yet due and
payable.
”
[15]
[66] Khanda’s claims for damages fall into this category. They
are not claims for damages that are capable of easy and speedy
proof. They will only become liquidated claims that are due and
payable after an appropriate damages claim is instituted,
a court
rules in Khanda’s favour, and the court determines the amount
of damages payable. Until then the claims are
not liquidated,
nor due and payable.
[67] In my view, for these reasons, Robson cannot rely on set-off as
a defence to Bergh’s claim.
[68] The facts before me establish that Robson was indebted to Bergh
to pay R500 000. 00, being the balance due on the purchase
price of
the shares. Payment of this amount fell due, and Robson did not pay.
Having dismissed both of Robson’s defences
aimed at
establishing a lawful basis for his non-payment, I conclude that
Bergh is entitled to the relief he seeks.
[69] I make the following order:
[69.1]The first and second respondent’s counter application is
dismissed.
[69.2]The first and second respondents are ordered to make payment to
the applicant in the amount of R500 000. 00 jointly and severally,
the one paying the other to be absolved.
[69.3]The first and second respondents are ordered to pay interest on
the amount of R500 000. 00 calculated on the prime interest
rate,
jointly and severally, the one paying the other to be absolved.
[69.4]The first and second respondents are ordered, to pay the
applicant’s costs in the application, counter-application
and
the applicant’s conditional counter-application on the scale as
between attorney and own client, jointly and severally,
the one
paying the other to be absolved.
R KEIGHTLEY
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 4 June 2015
Date of Judgment: 3 August 2015
Counsel for the Applicant: Adv H A
Van der Merwe
Instructed by: Senekal Simmonds Inc
Counsel for First and Second
Respondents: Adv W Steyn
Instructed by: Bento Incorporated
[1]
1999 (4) SA 1039
(T) at 1048H-I
[2]
1979 (3) SA 1331
(W)
[3]
2010 (2) SA 289
(SCA)
[4]
Clipsal
at [18]
[5]
At [19]
[6]
2006 (4 )SA 458 (SCA)
[7]
1987 (3) SA 695
(W)
[8]
Haupt
, [19]
[9]
Haupt
, loc cit
Neugarten
, at 699D
[10]
ESE Financial Services (Pty) Ltd v Cramer
1973 (2) SA 805
(C) at 808
[11]
R H Christie
The Law of Contract in South Africa
(6ed) p437
[12]
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA 391
(A) at 418B
[13]
Ackermans Ltd v Commissioner, South African Revenue Service; Pep
Stores (SA) Ltd v Commissioner, South African Revenue Service
2011 (1) SA 1
(SCA) at [8]
[14]
Standard Bank of South Africa Ltd v Renico Construction (Pty)
Ltd
2015 (2) SA 89
(GJ) at [9]
[15]
Standard Bank of South Africa Ltd v Renico Construction (Pty)
Ltd
, above, [25] & [26]