About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 250
|
|
Closetrade 200074 CC t/a Ilcor Engineering Services v Crossmoor Transport (Pty) Ltd (015441/2018) [2020] ZAGPJHC 250 (6 October 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
COMMERCIAL
COURT
CASE
NO: 015441/2018
In
the matter between:
CLOSETRADE
200074 CC T/A ILCOR ENGINEERING SERVICES
Plaintiff
and
CROSSMOOR
TRANSPORT (PTY) LTD
Defendant
JUDGMENT
MODIBA
J
[1]
The plaintiff,
Closetrade
200074 Cc T/A Ilcor Engineering Services (Ilcor)
sues the defendant,
Crossmoor Transport (Pty)
Ltd (Crossmoor)
for damages arising from
Crossmoor’s
alleged repudiation of two written agreements
.
[2]
The agreements comprise of orders
Crossmoor
placed with
Ilcor
in
for the manufacture of two four-axle trucks and one five-axle truck
respectively. For brevity, I refer to these agreements as
the
four-axle agreement and the five-axle agreement. When the parties
concluded these agreements, they were duly represented.
Ilcor
contends that it performed in terms of the
agreements, but
Crossmoor
failed to perform.
Crossmoor
initially
pleaded that
Ilcor
was
not entitled to commence the manufacturing of the trucks because it
(
Crossmoor
) had not
paid a deposit or furnished a guarantee as required in terms of the
agreement. For this reason, it contested that
Ilcor
is not entitled to recover the purchase price.
Crossmoor’s
defence not only mutated on the eve of the
trial, at the commencement of the trial, its counsel raised an
exception point, which
he sought argued upfront. When its attempt to
have the exception determined separately from the rest of the issues
in the trial
failed,
Crossmoor
raised several objections to the evidence of
Ilcor’s
witnesses, which crystalized into additional grounds of defence
during the argument phase of the trial.
[3]
The court frowned upon the incremental
development of
Crossmoor’s
defence as it risked derailing the trial under circumstances where
Crossmoor
failed to
make optimum use of the opportunities that the commercial court
provides to fully investigate
Ilcor’s
claim, prepare its defence and through the judicial case manager
dispose of interlocutory issues prior to the trial. This would
have
resulted in triable issues being defined and narrowed down with
reasonable certainty, resulting in a prompt disposition of
the
matter.
Crossmoor’s
conduct was undoubtedly prejudicial to
Ilcor
because it had to respond to the additional defences referred to
above without any investigation and preparation of its response.
There is hardly a need to articulate the inconvenience
Crossmoor’s
conduct caused the court.
[4]
Crossmoor’s
conduct
in these proceedings was consistent with its conduct towards
Ilcor
during the implementation of the agreements. Flynn testified at
length about countless promises that
Crossmoor
made that it would furnish guarantees for the four-axle trucks and
pay a deposit for the five-axle truck but failed to do so, until
Ilcor
considered its
non-performance to amount to a repudiation, which it accepted.
After
Ilcor
commenced
these proceedings,
Crossmoor
filed a plea but subsequently failed to file witnesses’
statements after numerous undertakings that it would do so.
Ultimately,
it came into the trial without a version, resorting to
various technical skirmishes in an attempt to debilitate
Ilcor’s
case.
[5]
This led to the court adopting a very firm
approach to uphold the objectives of the commercial court to avoid
further delays in
determining the disputes between the parties.
[6]
In its particulars of claim,
Ilcor
articulates its claims in two parts referenced claim A and B.
[7]
In respect of claim A,
Ilcor
claims payment due in respect of the four-axle agreement. By the time
it instituted the action, the complexion of
it’s
claim had changed.
Ilcor
allegedly sold one of the four-axle trucks in 2018, prior to
instituting this action. It persisted with its claims
in
respect of the remaining four-axle truck. It addressed a formal
demand to
Crossmoor
on
8 March 2018, tendering delivery of,
inter
alia
, the four-axle truck and demanding
payment for the purchase price.
Crossmoor
did
not meet this demand.
[8]
During the COVID-19 lockdown period in 2020,
Ilcor
sold the
remaining four-axle truck, thereby recovering 94% of the purchase
price claimed in claim A. It persists in its claim in
respect of the
difference between the agreed purchase price for the four axle-truck
and the purchase price paid to it by the buyer.
It amounts to R45
000.00. No apparent prejudice lies against
Crossmoor
for these changes as they drastically reduce
Ilcor’s
claim in respect of the purchase price for
the four-axle truck.
[9]
Ilcor
also claims
storage costs, which it alleges it is reasonably entitled to charge
in order to store the four-axle truck on its premises
due to
Crossmoor’s
failure
to pay and collect them on completion of the manufacturing process.
It has computed the storage costs at R22 500.00
per month, to be
reckoned from the date
Ilcor
tendered delivery of the truck. From that date to the date of the
sale of the four-axle truck,
Ilcor
computes the storage costs.
[10]
It is common cause that
Crossmoor
specifically failed to pay for and collect the two four-Axle trucks
despite demand, which
Ilcor
had fully manufactured.
Ilcor
considered
these failures a repudiation of the four-axle agreement, which it
accepted.
[11]
In claim B,
Ilcor
similarly claims for the purchase price in respect of the five-axle
truck and the reasonable attendant storage costs occasioned
by
Crossmoor’s
repudiation of the five-axle agreement. It alleges that it started
manufacturing the five-axle truck but stopped when
Crossmoor
failed to furnish a bank guarantee for its
payment or to pay a deposit in terms of the five-axle agreement. It
considered these
omissions to constitute a repudiation of that
agreement, which it also accepted. As a result, it stopped the
manufacturing of the
five-axle truck and instituted these
proceedings.
[12]
Consequently,
Ilcor’s
claim in Claim B comprises the actual costs incurred until the date
of cessation of all work on the truck and the loss of profit,
calculated at 35% of the cost price of a completely manufactured five
axle truck including storage costs. It quantifies storage
costs for
the five-axle truck at R45, 000 per month reckoned from the date it
stopped manufacturing the truck to the date of payment
of the
monetary order in respect of the purchase price.
[13]
Crossmoor
opposes the
action. As already hinted, it initially contended that
Ilcor
was not entitled to perform in terms of the agreement until it
(
Crossmoor)
had paid a
deposit or furnished a guarantee issued by a South African bank. For
that reason,
Crossmoor
contends
that the agreements are not enforceable. In the alternative,
Crossmoor
has pleaded
that the agreements were subject to a suspensive condition. It
amended its plea to this effect on 17 June 2020. This
was a mere 3
days prior to the trial. In its amended plea, it contends that since
the suspensive condition was not fulfilled, the
agreements have
lapsed.
[14]
In the event that the court finds that the
suspensive condition does exist,
Ilcor
contends that it
(Ilcor)
waived
it.
[15]
From the above, it follows that the following
issues stand to be determined between the parties:
15.1.
Whether the agreements pleaded in the particulars
of claim are enforceable against
Crossmoor
;
15.2.
Whether
Crossmoor
is liable to make payment
to
Ilcor
in
the amount claimed or at all.
15.3.
Whether the agreements concluded between
Ilcor
and
Crossmoor
were
subject to a suspensive condition and if so, whether such condition
was waived by
Ilcor
.
[16]
The above triable issues were agreed between the
parties at the last judicial pre-trial conference held with the
parties on 17 June
2020.
[17]
In an
unanticipated twist, at the commencement of the trial,
Crossmor’s
counsel
advised the court that it objects to
Ilcor’s
particulars of claim on the basis that they disclose no cause of
action in respect of storage costs. He sought the determination
of
this issue upfront because it is akin to an exception. In this
regard, he relied on
Imprefed
(Pty) Ltd V National Transport Commission.
[1]
The court frowned
on the stance belatedly adopted by
Crossmor
for the
following reasons:
17.1.
Crossmoor
failed to
raise an exception prior to filing its plea. In its plea, it pleaded
a bare denial of liability for storage costs.
17.2.
This matter was designated as a commercial court
matter in October 2019. From that date, I case managed the matter
under the applicable
practice directive. I held the first case
management meeting with the parties on 15 November 2019. I held two
further case management
meetings with the parties prior to the trial.
At no point until the commencement of the trial did
Crossmoor
raise any interlocutory issues, despite access to me as the
designated judicial case manager and my availability to hear any such
application on a date arranged with my clerk.
17.3.
The fact that
Crossmoor
informed
Ilcor
in
writing on 8 June 2020 and outlined these issues in its practice note
dated 19 June 2020 does not cure the court’s displeasure
at
Crossmoor
for
belatedly raising these issues at the risk of derailing the trial.
17.4.
Hearing the exception as a separated issue will
have severe implications for the administration of justice. Given
that such a ruling
is likely to be appealable, it would require that
reasons are furnished. This would impose a postponement of the trial
while the
court prepares the reasons for the judgment.
[18]
The court allowed argument on whether the
interlocutory point should be argued as a separate point in terms of
rule 33 (4). After
hearing counsel for the parties, it dismissed the
separation application and deferred reasons.
[19]
The court dismissed the application for the
reasons set out in paragraph 18 as well as the following reasons:
19.1.
Although the issue sought to be separated is a
pure legal point and could be separated, the court did not consider
it convenient
to separate the issue because such an approach would
lead to a multiplicity of proceedings.
Ilcor’s
witnesses had filed witness statements as required in terms of the
applicable practice directive. The witnesses have been lined
up to
testify at the trial. The issue relating to the exception is a very
narrow issue. The witnesses would be required to attend
court again
to testify if the separation application succeeds.
19.2.
As already mentioned,
Ilcor
secured the designation of this matter as a commercial court matter.
One of the underlying objectives of this court is the expeditious
determination of commercial disputes. The matter has been ripe for
hearing since the beginning of 2020 and could not be accommodated
earlier due to my unavailability in the early part of the first term,
2020. If the matter became part-heard, it would most likely
have
taken another six months before it is finalized as the commercial
court roll is crowded out until February 2020.
19.3.
The commercial prejudice to be suffered by
Ilcor
in the event that it succeeds in this action is grave.
Crossmoor
does not stand to suffer any apparent prejudice if the separation
application is not granted. The potential prejudice to
Ilcor
ought to be avoided particularly considering the absence of
Crossmoor’s
estimable explanation for the delay in raising this issue. The fact
that
Crossmoor
changed
its legal team does not warrant the sympathy of this court.
19.4.
The exception point is not dispositive of the
trial.
19.5.
Given the basis on which this exception point
stands to be dismissed, separating it from the other issues in the
trial is found
to be inconvenient to
Ilcor
and the court.
[20]
When the trial commenced, counsel for
Crossmoor
informed the court that he will be objecting
if
Ilcor
’s
witnesses lead any evidence that is contrary to what is pleaded in
the particulars of claim. The court adopted a general
approach to
this objection by provisionally allowing the evidence, with the
objections to be dealt with during argument. During
the evidence of
Ilcor’s
witnesses, counsel for
Crossmoor
raised
further objections to which the court adopted a similar approach. I
outline these in paragraph 47 below. During the trial,
counsel for
Crossmoor raised an additional exception point in relation to lack of
cause of action for the balance of the purchase
price for the
four-axle truck.
[21]
In light of the foregoing,
Crossmoor’s
exception points are the logical place to begin, followed by the
objections to the evidence of
Ilcor’s
witnesses. I predicate these determinations with the legal
principles applicable to pleadings and exceptions.
[22]
As I find below,
Crossmoor’
s
exception points and objections to the evidence of
Ilcor
’s
witnesses stand to fail.
[23]
I then proceed to consider
Ilcor
’s
claims on the merits. I find that it makes out a case for the relief
sought, save for the period for which it seeks to
hold Crossmoor
liable for storage costs for the five-axle truck. I deal with this
point at the end of this judgement.
LEGAL
PRINCIPLES APPLICABLE TO PLEADINGS AND EXCEPTIONS
[24]
The general principles applicable to pleadings
provide guidance for the resolution of
Crossmoor’s
objections to the admissibility of the evidence of
Ilcor’s
witnesses as they pertain to
Crossmoor’s
ground of exception based on lack of cause of action in respect of
the storage costs.
[25]
In
Robinson,
[2]
the
appellate division held that:
“
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would
cause
prejudice or would prevent full enquiry
.
But
within those limits the
Court has a wide discretion. For pleadings are made for the Court,
not the Court for pleadings
.
And where a party has had every facility to place all the facts
before the trial Court and the
investigation
into all the circumstances has been as thorough and as patient as in
this instance
, there is
no justification for interference by an appellate tribunal, merely
because
t
he
pleading of the opponent has not been as explicit as it might have
been
.
”
[emphasis added]
[26]
To disclose a cause
of action, the plaintiff's pleading must set out every material fact
which is necessary for the plaintiff to
prove in order obtain a
judgment in its favour. It is not necessary to set out every piece of
evidence which is necessary to prove
each fact. The plaintiff is
rather required to set out averments that are necessary to be proved.
If evidence can be led which
would disclose a cause of action or a
defence alleged in the pleadings, a pleading is not excipiable. A
pleading is only excipiable
on the basis that no possible evidence
led on the pleading can disclose a cause of action or a defence.
[27]
The
function of a well-founded exception that particulars of claim, or
part thereof, does not disclose a cause of action is to dispose
of
the case in whole or in part. It is for this reason that an exception
cannot be taken to a portion of a pleading unless it is
self-contained, amounts to a separate defence, and can therefore be
struck out without affecting the remainder of the plea.
[3]
[28]
The
main purpose of an exception that a declaration does not disclose a
cause of action is to avoid the leading of unnecessary evidence
at
the trial.
[4]
[29]
An
exception cannot be taken to a pleading on the ground that it does
not support one of several claims arising out of one cause
of action,
because this does not serve the main purpose of an exception, which
is to avoid the leading of unnecessary evidence.
[5]
[30]
For the purpose of deciding an exception, the
court must assume the correctness of the factual averments made in
the relevant pleading,
unless they are palpably untrue or so
improbable that they cannot be accepted.
CROSSMOOR
’
S
EXCEPTION POINTS
Lack
of cause of action in respect of the storage costs
[31]
Ilcor
’
s storage
costs claims are pleaded as follows in Claims A and B as set out in
paragraphs 10 and 21 of the particulars of claim:
“
10.
The
plaintiff
incurs storage costs
due to the defendant’s failure to collect the Four-Axle trailer
at the rate of R22 500 per month (calculated as: 150m²
charged at R150 per m² per month), which cost, the defendant is
obliged to pay.”
[6]
“
21The
plaintiff
incurs storage costs
due to the defendant’s repudiation of the Five-Axle agreement
at the rate of R45 000 per month (calculated as: 300m²
charged at R150 per m² per month) from 12 April 2018, being the
date the plaintiff accepted the defendants repudiation, which
cost,
the defendant is obliged to pay.”
[7]
[32]
Crossmoor
complains
that
Ilcor
failed to
set out the basis for the storage costs in the particulars of claim.
It contends that
Ilcor’s
particulars of claim as well as the evidence of its witnesses as set
out in their respective witness statement and as confirmed
in
evidence before court, make it clear that
Ilcor
claims compensation from it for the space it could not use or let as
a result of the trucks stored on its premises. In that regard,
it
contends that
Ilcor
seeks to charge
Crossmoor
storage costs.
Crossmoor
further contends that this is different from
Ilcor’
s
pleaded case because
Ilcor
does not actually incur expenditure as a result of storing the trucks
on its premises.
[33]
The word
“incur”, carries various meanings. It essentially
connotes positive or negative results of something done or
not done.
One of the meanings ascribed to the word is ‘to subject one to
something through one’s own actions’.
[8]
[34]
From
Ilcor
’s
particulars of claim considered as a whole, it clearly appears that
due to
Crossmoor’
s
failure to collect the four-axle truck when it was due for
collection,
Ilcor
has
incurred storage costs. In this instance,
Ilcor
lost the space it would have used for its
business as a result of
Crossmoor
’s
conduct. Put differently,
Crossmoor
’s
repudiation of the contract subjected
Ilcor
to this loss. Flynn’s evidence as corroborated by Ramkissoon’s
attests to this fact. Flynn testified that
Ilcor
lost the use of the space where the truck was located. This space
could have been used for other business purposes. In addition
to
confirming this evidence, Ramkissoon testified that
Ilcor’s
premises bear the necessary elements of rental premises for the
storage of the truck in that it is expansive, enclosed and secured.
He also testified that the amount claimed in respect of storage costs
is consistent with the rate of renting similar premises for
a similar
use in the market.
[35]
It is common cause that the
Ilcor’s
loss of the use of the space in question on its premises resulted
from
Crossmoor’s
failure to pay the purchase price and to collect the four-axle truck
after Ilcor manufactured it. The same applies in respect of
the
five-axle truck when Ilcor stopped manufacturing the five-axle truck
as a result of
Crossmoor’s
repudiation.
[36]
Crossmoor
led no
evidence in rebuttal.
[37]
The
facta
probanda
regarding these costs have been pleaded, even as conclusions. When
the relevant averments are considered against the evidence of
Ilcor’s
witnesses,
Crossmoor
cannot complain of any prejudice in circumstances, where, it pleaded
to these averments and has enjoyed the benefits of the witness
statements of Flynn and Ramkissoon for over a year prior to the
commencement of the trial. It had ample time to consider both the
pleadings and the intended evidence of these witnesses. It therefore,
cannot complain that the manner in which the relevant averments
are
pleaded prevented it from conducting a full enquiry.
[9]
[38]
Ilcor’s
cause of
action pleaded in claim A is founded on the
actio
venditti
cause of action. This is a claim for
the payment of the purchase price for the thing sold. It is not
founded in a claim for specific
performance as contended by
Crossmoor. Crossmoor’s
liability for the purchase price extends to other losses that
Ilcor
incurred due to
Crossmoor’s
failure to collect the truck, in this case, the storage costs as
pleaded.
[39]
The evidence to be led on the exception point is
very narrow and would hardly unduly burden the court. As it turned
out, the evidence
of
Ilcor
’s
witnesses on this issue was very brief.
[40]
For these reasons,
Crossmoor’s
exception point in relation to storage costs
was dismissed with costs.
Balance
of purchase price
[41]
Ilcor
notified
Crossmoor
in several
correspondence since 11 June 2020 that it has sold the four-axle
trailer.
Crossmoor
never
disputed the sale.
[42]
Mr Flynn testified at length regarding the sale
of the second four-axle truck. His evidence in respect of the sale of
this truck
stands unchallenged as
Crossmoor
placed no version before the court to rebut it. I find no reason to
disregard Mr Flynn’s evidence.
[43]
I am satisfied with
Ilcor’s
evidence regarding how the deficit between
the agreed purchase price for the four-axle truck and the amount in
respect of which
it seeks judgment was arrived at.
[44]
In the premises, this exception point also stands
to be dismissed with costs.
OBJECTIONS
TO THE EVIDENCE OF
ILCOR
’S WITNESSES
[45]
Counsel for Crossmoor
objected
to the evidence of
Ilcor
’s
witnesses on the basis that it goes beyond the nature and terms of
the contracts as pleaded. He contended that
Ilcor
’s
particulars of claims are limited to:
45.1.
the conclusion of the agreements;
45.2.
the alleged express, tacit or implied terms of
the agreements.
[46]
Further, he contended that in terms of both
agreements:
46.1.
Ilcor
required the
Department of Transport’s (DOT) approval prior to manufacture,
as the trucks are abnormal load vehicles;
46.2.
If the trucks are not being financed by a South
African financial institution, 30% of the purchased price in respect
of the four-axle
trailer and 50% in respect the five-axle trailer is
payable as a deposit prior to the commencement of manufacturing.
46.3.
In the event that the sale is financed,
guarantees from the institution in question are required.
[47]
He also contended that the evidence of
Ilcor’s
witnesses on these issues are contrary to the express terms of the
agreements.
[48]
Again, these issues were belatedly raised on the
eve of and during the trial.
[49]
Based on
Mckelvey,
[10]
when considering
whether the particulars of claim disclose a cause of action or not,
the court has to consider whether there is
any evidence to be led
which, when read with the particulars of claim, a cause of action is
disclosed.
[50]
Crossmoor
had the
benefit of the evidence of
Ilcor’s
witnesses several months prior to the trial as
Ilcor
filed witness statements. This allowed
Crossmoor
to conduct a proper enquiry in respect of
Ilcor’s
claims against it and to adequately prepare
its defence.
[51]
At the trial,
Ilcor
sought and was granted leave to lead its witnesses in chief. I deal
with their evidence below.
Department
of Transport Approvals
[52]
Ilcor
, acting on
behalf of
Crossmoor
did obtain the necessary approvals from the DOT prior to commencing
the manufacturing of all three trucks.
Crossmoor’s
complaint regarding
Ilcor’s
failure to obtain the necessary permission from the DOT is dismissed
for lack of merit.
[53]
The fact that there were slight variations
between the specifications for the trucks and the approvals is of no
moment as provision
is made for slight deviations during the
manufacturing as explained by Flynn.
Crossmoor
led no evidence that the deviations obliterated the DOT approval.
Ilcor’s
evidence
that it did obtain the necessary approvals is accepted. Further, the
approvals filed as part of Flynn’s witness statement
are found
to be valid and admitted in evidence.
Payment
of deposit or the furnishing of a guarantee
[54]
Although waiver is not specifically pleaded, the
parties agreed that it is one of the issues to be determined in these
proceedings.
Therefore,
Ilcor
’s
objection to Flynn’s evidence in respect of conduct of the
parties in as far as it relates to the waiver of the suspensive
clause is baffling. By agreeing to this issue being determined even
though not pleaded, the parties impliedly agreed that the issue
stands to be determined on the evidence of the parties.
Crossmoor’s
objection to the evidence of
Ilcor’s
witnesses’ lacks merit as it is consistent with the parties’
agreement in respect of the issues to be determined at
the trial.
[55]
Flynn is the only witness who testified on this
issue. His evidence stands uncontested. It is found to be
satisfactory. It is therefore
admitted by this court.
[56]
Both agreements expressly provide for the payment
of a deposit prior to the commencement of the manufacturing. In the
event that
the purchases were financed by a financial institution,
Crossmoor
would
furnish guarantees to
Ilcor.
The agreements do not expressly provide a timeframe for the
furnishing of guarantees in the event that the purchase price is
financed.
[57]
Flynn testified that Ashton Naicker informed him
that the transaction in terms of the four-axle agreement would be
financed and
that the guarantees would be forth coming. Contextually
construed, the four-axle agreement does not specify the time frame by
which
Crossmoor
would
furnish the guarantees.
Crossmoor
consistently
made undertakings to Flynn after the four-axle agreement was signed
and during the manufacturing process that the guarantee
would be
forthcoming. Naicker was aware that
Ilcor
had commenced the manufacturing process. However, he never contended
that
Ilcor
was not
contractually entitled to start manufacturing the four-axle truck
until
Crossmoor
had
furnished the guarantee. It is common course that
Crossmoor
never fulfilled its undertaking. When the
truck was fully manufactured, Naicker agreed to Flynn traveling to
Durban to arrange for
the registration of the four-axle truck. At
that point he undertook that
Crossmoor
would pay for the four-axle truck when Flynn is in Durban. By making
such an undertaking,
Crossmoor
acknowledged
liability for the four-axle truck. Again
Crossmoor
failed to fulfil the undertaking.
[58]
In relation to the order for the five-axle truck,
Naicker undertook to pay a deposit. The five-axle agreement expressly
provides
that
Crossmoor
would pay to
Ilcor
50%
of the purchase price prior to the manufacturing of the truck.
Contextually construed, the deposit constitutes a suspensive
condition. It disentitles
Ilcor
from commencing with the manufacturing process until
Crossmoor
had paid the deposit. It is common cause that
Ilcor
commenced with the manufacturing before
Ilcor
paid the deposit.
Crossmoor
was
aware that
Ilcor
had
commenced with the manufacturing but at no point contested
Ilcor’s
entitlement to commence with the manufacturing before it paid the
deposit. Rather, Naicker made several promises to pay when Flynn
persistently followed up on the payment of the deposit. In such
instances, Flynn made it clear to Naicker that
Ilcor
had commenced manufacturing the five-axle truck. Again at no point
during the manufacturing process did Naicker contest
Ilcor’s
entitlement to start manufacturing the
five-axle truck prior to the deposit being paid. He made it
pertinently clear to Flynn that
Crossmoor
required the truck and was making arrangements to pay.
[59]
Having regard to these circumstances, I find that
Ilcor waived the suspensive condition. By not contesting Ilcor’s
entitlement
to commence the manufacturing and rather, knowing that
Ilcor has started manufacturing the truck, reiterating that Crossmoor
requires
the truck and making repeated undertakings to pay, Naicker
once more acknowledged
Crossmoor
’s
liability to
Ilcor
for
the five axle truck. Impliedly, Crossmoor accepted the waiver. Under
these circumstances, it is disingenuously belated in these
proceedings for
Crossmoor
to attempt to clawback the suspensive condition.
THE
MERITS OF ILLCOR’S CAUSES OF ACTION
[60]
Having determined all the above issues in
Ilcor’s
favour, nothing remains of
Crossmoor’s
defence. I find
that the four-axle and five-axle agreement came into being. They are
enforceable against
Crossmoor
. For the reasons dealt with
above, I also find that
Ilcor
was entitled to commence with
the manufacturing of the trucks. I am satisfied that
Ilcor
has
performed in terms of the agreements.
Crossmoor
failed to
perform in terms of the agreements.
Ilcor
was well entitled to
consider
Crossmoor
’s failures to amount to a repudiation
of the agreements and to accept the repudiation.
[61]
In relation to storage costs for the five-axle truck,
Ilcor
claims these costs until the date of payment of the monetary order in
respect of the purchase price.
Ilcor
has not made out a case
for
Crossmoor’s
liability for these costs to endure
beyond the date of this judgement.
[62]
In the premises, save for the cut-off date for
Crossmoor’s
liability for storage costs for the five-axle truck,
Ilcor
is
entitled to judgment as prayed for in the notice of motion.
[63]
Therefore, judgment is entered against
Crossmoor
as follows:
ORDER
CLAIM
A
(a)
Payment of the sum of R45,000;
(b)
Payment for storage of the Four-Axle trailer at
the rate of R22 500 per month from 20 November 2017 until date
of the sale
of the four-axle truck;
(c)
Interest on the sums in (a) and (b) at the rate
of 7.75%
per annum
,
tempore morae,
to the
date of final payment;
(d)
Costs of suit.
CLAIM
B
(a)
Payment of the sum of R4 447 037.36;
(b)
Payment for storage of the Five-Axle trailer at
the rate of R45 000 per month from 12 April 2018, until the date
of this judgment;
(c)
Interest on the sums in (a) and (b) at the rate
of 7.75%
per annum
,
tempore morae
to the
date of judgement.
(d)
Costs of suit.
MADAM
JUSTICE
L T
MODIBA
JUDGE
OF THE HIGH COURT,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARENCES
Counsel
for plaintiff:
Advocate N Alli
Attorney
for plaintiff:
Norton Rose Fulbright SA Inc.
Counsel
for defendant: Advocate L
Hollander
Attorney
for defendant: Swartz Weil Van Der
Merwe Greenberg Inc. Attorneys
Date
of hearing: 23-25
June,
7 July 2020
Date
of judgment: 6
October 2020
Mode
of delivery:
handed down
electronically by circulation to the parties’
representatives by email. The date and time for hand-down is
deemed
to be 11:30am on 6 October 2020.
[1]
1990
(3) SA 324
(T
)
[2]
Robinson v Randfontein
Estates GM Co Ltd Respondent
1925
AD 173
[3]
Salzmann
v Holmes
1914
AD 152
at
156;
Barrett
v Rewi Bulawayo Development Syndicate Ltd
1922
AD 457
at
459;
Miller
v Bellville Municipality
1971
(4) SA 544 (C)
at
546)
[4]
Dharumpal
Transport (Pty) Ltd v Dharumpal
1956
(1) SA 700
(A)
at
706.
[5]
Santos v Standard General Insurance Co Ltd
1971 (3) SA 434
(O) at
437D–F.
[6]
Emphasis added.
[7]
Emphasis added.
[8]
See Macmillan dictionary online.
[9]
See
Mckelvey V Cowan NO
,
1980 (4) SA 525
(Z).
[10]
Ibid.