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[2017] ZAECPEHC 5
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Quest Petroleum (Pty) Ltd v Le Grange NO and Others (3126/16) [2017] ZAECPEHC 5 (24 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no. 3126/16
Date
heard: 24/11/16
Date
delivered: 24/1/17
Not
reportable
In
the matter between:
QUEST
PETROLEUM (PTY) LTD
Applicant
and
NORMAN
GERALD LE GRANGE NO
First
Respondent
MARSHA
MOOTHOO NO
Second Respondent
NORMA
GERRY LE GRANGE NO
Third
Respondent
PEARL
PATRICIA LE GRANGE NO
Fourth Respondent
JUDGMENT
PLASKET,
J:
[1]
The applicant, Quest Petroleum (Pty) Ltd (Quest), is a supplier of
petroleum products. The four respondents are the trustees
of the 5404
Stanford Road Trust (the trust) which conducts the business of a
petrol filling station at 5404 Stanford Road, Gelvandale,
Port
Elizabeth.
[2]
Quest applied, as a matter of urgency, for orders:
‘
2
That the 5404 Stanford Road Trust, through its trustees, pay to the
Applicant
the sum of R273 343.02;
3
3.1
That it be declared that the Supply Agreement concluded between the
Applicant and the 5404
Stanford Road Trust . . . is valid and binding
as between the parties;
3.2
That the 5404 Stanford Road Trust be ordered to comply with all its
obligations in terms
of such Supply Agreement, subject to the terms
and conditions contained therein;
3.3
That a representative of the Applicant be authorised to attend the
“Daily Wet Stock”
test which the Trust is obligated to
perform in terms of the Supply Agreement.
4
In the alternative to paragraph 3 above, an order be granted in terms
of
paragraph 3 which order shall operate as an interim order pending
the outcome of an action to be instituted by the Applicant against
the Trust for the same or substantially the same relief as contained
in such paragraphs, which action shall be instituted within
15 court
days of date hereof;
5
Costs of the Application on an Attorney and Client scale.’
[3]
The trust brought a counter-application in which it sought an order:
‘
1
That the 5404 Stanford Road Trust, through its trustees, pay to
applicant the
sum of R273 343.02 with costs on the Regional
Court scale and on a simple summons basis.
2
That the remainder of the application be dismissed, with costs.
3
Alternatively
to 2 above,
3.1
That the remainder of the application be referred to the Competition
Tribunal to be considered
on the merits in terms of
section 65
of the
Competition Act 89 of 1998
, in particular whether clause 11.8 of the
Supply Agreement is invalid, anti-competitive and in violation of the
Competition Act.
3.2
That
the costs occasioned thus far be costs in the cause.’
[4]
The first substantive prayer for relief sought by the applicant has
thus been conceded, subject to the scale of the costs that
accompany
it. At the outset of the argument, Mr Pienaar, who appeared for the
trust, informed me that he would not take issue with
the urgency of
the matter.
[5]
Mr Rorke, who appeared for Quest, was content to ask for an order of
specific performance of the supply agreement pending the
outcome of
an action for final relief or, in the light of the argument raised by
the trust, a referral to the Competition Tribunal.
The
facts
[6]
Quest had been supplying petroleum products to the trust for some
time. The trust was not always in a position to pay as promptly
as
Quest would have liked. This led to negotiations to regulate the
relationship more tightly. The negotiations resulted in two
agreements being concluded on 24 March 2016. The first was a supply
agreement. It is the subject of this dispute. The second was
a sale
agreement in respect of a half share of 5404 Stanford Road.
[7]
In terms of the supply agreement, Quest was to supply petroleum
products to the trust for an initial period of ten years,
automatically
renewable for a further five year period unless either
of the parties notified the other of its intention not to continue
with
the agreement at least three months before the termination of
the initial period.
[8]
In terms of clause 6.4, on receipt of an order from the trust, Quest
was required to provide it with an invoice. In terms of
clause 8.1,
Quest was obligated to deliver its products to the trust within 48
hours of receiving payment from the trust of the
amount set out in
the invoice.
[9]
Clause 11.1.1 placed an obligation on the trust to purchase set
quantities of Quest’s products and in clause 11.1.2, the
trust
warranted that it had ‘sufficient cash flow’ to purchase
these quantities. Clause 11.8.1 is an exclusivity clause.
It provides
that the trust ‘hereby irrevocably and unconditionally
undertakes that it shall for the period mentioned in clause
4.1 above
and any extension thereof in terms of 4.2 or 4.3 above, order and
purchase all its requirements of Petroleum Products
from Quest’.
[10]
The supply agreement came into operation on 14 July 2016. Whether it
is still in existence and enforceable is one of the core
issues in
this matter.
[11]
On 24 March 2016, the trust ordered petroleum products from Quest,
which were delivered on the following day. It is common
cause that
the trust did not pay and owes Quest R273 343.02 in respect of
that order. Quest has not received an order for
its products from the
trust since then. As a result, Quest believed that the trust was
obtaining petroleum products from an alternative
source, in violation
of the exclusivity clause.
[12]
The breach of the exclusivity clause was admitted by the trust. The
first respondent stated in his answering affidavit:
‘
Out
of necessity the Trust has been ordering and purchasing petroleum
products from an alternative supplier which is prepared to
provide
petroleum products on credit whereas applicant, by virtue of clause
7.1 of the Supply Agreement, is not.’
The
issues
[13]
Out of this set of facts, two alternative but principal defences have
been raised by the trust. The first is that the supply
agreement is
linked to the sale agreement and because the sale agreement is no
longer operative, the supply agreement is also a
nullity. Linked to
this is an assertion that a dispute of fact exists concerning the
intention of the parties when they entered
into the two agreements.
The second, alternative, defence is that foreshadowed in the
counter-claim, namely that if the supply
agreement still operates, it
is anti-competitive and its validity must be referred to the
Competition Tribunal for determination.
Are
the supply and the sale agreements linked?
[14]
In this section of the judgment, I shall consider the question I have
posed above as well as the related issue as to whether
a dispute of
fact exists.
[15]
I shall, for purposes of determining this issue assume, in favour of
the trust, that the sale agreement is no longer operative
for want of
the fulfilment of suspensive conditions.
[16]
It is common cause that there is no specific provision in either of
the agreements that makes the one’s enforceability
dependant on
the other. There is no mention of the sale agreement in the supply
agreement. There was originally one reference to
the supply agreement
in the sale agreement.
[17]
Clause 20.2 had provided:
‘
The
Purchaser undertakes to enter into an agreement with the Seller to
Supply fuel to the Seller’s filling station business
with the
following conditions applicable:-
20.2.1
ULP 95 – clawback amount not to exceed R______________ per
litre.
20.2.2
Diesel – no rebate.’
Two
parallel lines were drawn through this clause and the word ‘deleted’
was written between them. The deletion was
signed by the signatories
of the sale agreement.
[18]
The deletion of clause 20.2 and the fact that it was incomplete are
strong indications that there was no intention on the part
of the
parties to link the supply agreement and the sale agreement.
[19]
The deponent to the answering affidavit has set out in detail
evidence as to what he says was intended. That evidence contradicts
the terms of the written agreements. The parole evidence rule is
still part of our law. In
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
[1]
Harms DP set out the position thus:
‘
First,
the integration (or parole evidence) rule remains part of our law.
However, it is frequently ignored by practitioners and
seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence may
not
contradict, add to or modify its meaning. Second, interpretation is a
matter of law and not of fact and, accordingly, interpretation
is a
matter for the court and not for witnesses (or, as said in common-law
jurisprudence, it is not a jury question). Third, the
rules about
admissibility of evidence in this regard do not depend on the nature
of the document, whether statute, contract or
patent. Fourth, to the
extent that evidence may be admissible to contextualise the document
(since “context is everything”)
to establish its factual
matrix or purpose or for purposes of identification, “one must
use it as conservatively as possible”.’
[20]
The position set out in
KPMG
,
particularly insofar as the parole evidence rule is concerned, has
not been altered by the judgment of Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
[2]
as is sometimes suggested by counsel, or by subsequent judgments of
the Supreme Court of Appeal concerned with the interpretation
of
contracts or other documents.
[3]
Indeed, this very point was made by Swain JA in
B
Braun Medical (Pty) Ltd v Ambasaam CC
.
[4]
The learned judge of appeal, after observing that a ‘great
deal of inadmissible evidence was led before the court a
quo
concerning the parties’ intention in concluding, and their
interpretation of the terms of the contract of carriage’,
cited
the passage from
KPMG
that I cited above, and concluded that he did not understand anything
stated ‘in later decisions of this court to constitute
a
departure from those principles’.
[5]
[21]
The evidence deposed to concerning the trust’s ‘intention’
may well be relevant and admissible when, as has
been suggested, the
trust claims rectification of the contract, but it is inadmissible
for purposes of the interpretation of the
contract in these
proceedings. That being so, this evidence certainly does not create a
dispute of fact, as was argued. Neither
of the agreements refer to a
link between them and so, even if the sale agreement has failed, that
has no effect whatsoever on
the validity of the supply agreement. It
continues to regulate the relationship between Quest and the trust.
The
competition issue
[22]
In its counter-application the trust seeks an order referring the
matter to the Competition Tribunal in terms of
s 65(2)
of the
Competition Act for
the tribunal to determine the validity of the
exclusivity clause of the supply agreement.
Section 65(1)
and (2)
provide:
‘
(1)
Nothing in this Act renders void a provision of an agreement that, in
terms of this Act, is prohibited or may be declared void,
unless the
Competition Tribunal or Competition Appeal Court declares that
provision to be void.
(2)
If, in any action in a civil court, a party raises an issue
concerning conduct that is prohibited in terms of this Act, that
court must not consider that issue on its merits, and-
(a)
if the issue raised is one in respect of which the Competition
Tribunal or Competition
Appeal Court has made an order, the court
must apply the determination of the Tribunal or the Competition
Appeal Court to the issue;
or
(b)
otherwise, the court must refer that issue to the Tribunal to be
considered on its
merits, if the court is satisfied that-
(i)
the issue has not been raised in a frivolous or vexatious manner; and
(ii)
the resolution of that issue is required to determine the final
outcome of the action.’
[23]
Quest opposes this relief on two bases. First, it was argued by Mr
Rorke that the application for referral was frivolous; and
secondly,
he argued that the jurisdictional requirements for a proper referral
were not present.
[24]
The effect of
s 65(2)
is clear: if a competition issue is raised by a
party, in respect of which no determination has been made by the
Competition Tribunal
or Competition Appeal Court, the jurisdiction of
a high court is ousted and it must, without considering the merits of
the competition
issue, refer it to the Competition Tribunal, provided
the issue has not been raised frivolously or vexatiously and it is
dispositive
of the matter. The position was crisply summarised by
Gorven J in
Astral
Operations Ltd v Nambitha Distributors (Pty) Ltd; Astral Operations
Ltd v O’Farrell NO & others
[6]
as follows:
‘
Under
s 65(2)
, an ouster takes place if a certain kind of issue is raised.
The issue raised must be “conduct which is prohibited”.
This concept is nowhere defined. In the context of the Act, and apart
possibly from issues concerning mergers, it can only mean
those
prohibited practices specified in the Act. For the ouster to apply,
therefore, the issue raised must fall into one of four
categories of
practices prohibited in Chapter 2. These are restrictive horizontal
practices
(s 4)
, restrictive vertical practices
(s 5)
, abuse of
dominance
(s 8)
and price discrimination by a dominant firm
(s 9).
The merits of these issues therefore cannot be dealt with by a court.
The reason for this is clear. The specialist bodies created
by the
Act are the only ones which may deal with the merits of issues
concerning prohibited practices. There is no lack of clarity
in the
ouster provision.’
[25]
I must first determine whether the exclusivity clause may, on the
face of it, be prohibited conduct of one form or another.
The trust
argues, in the first place, that it is struck by
s 5(1).
This section
provides:
‘
An
agreement between parties in a vertical relationship is prohibited if
it has the effect of substantially preventing or lessening
competition in a market, unless a party to the agreement can prove
that any technological, efficiency or other pro-competitive,
gain
resulting from that agreement outweighs that effect.’
[26]
A vertical relationship is defined in
s 1
of the Act as ‘the
relationship between a firm and its suppliers, its customers or
both’. As the trust is Quest’s
customer, the parties are
in a vertical relationship. That is not disputed. In
Patensie
Sitrus Beherend Bpk v Competition Commission & others
[7]
the Competition Appeal Court found an exclusivity provision –
that shareholders of the appellant were required by the articles
of
association to deliver their entire output to the company – was
an abuse of the company’s market dominance in terms
of
s 8(d)
of the Act. I am mindful of the fact that, in this case, the context
is different and the issue is whether the exclusivity clause
falls
foul of
s 5(1)
of the Act. Without involving myself in the merits in
any way, it seems to me that, on the face of it, the exclusivity
clause may
well have the effect of preventing or lessening
competition. Whether that is so is a matter left for the Competition
Tribunal to
decide, as is the related issue of whether, if it has
this effect, it is nonetheless enforceable.
[27]
It was argued that the raising of the anti-competitiveness of clause
11.8 of the supply agreement was frivolous because the
trust agreed
to the term when it entered the contract and such terms are common
within the petroleum industry.
[28]
I am unable to conclude that these two factors render the raising of
the competition issue frivolous. While it is true that
the trust
entered into the supply agreement with its eyes open, that does not
preclude it from challenging the enforceability of
the exclusivity
clause. I would imagine that this is a fairly usual way in which
competition issues arise. The fact that exclusivity
clauses are
standard in the petroleum industry is also not an indication that the
issue is not a genuine one requiring the attention
of the Competition
Tribunal. Whether clause 11.8 can be justified is not for me to say:
first, it lies outside of my jurisdiction
and secondly, the evidence
before me is scant but will, no doubt, be amplified when the issue is
ventilated before the Competition
Tribunal.
[29]
The issue raised by the trust concerns alleged prohibited conduct in
the form of a restrictive vertical practice. I conclude
that the
jurisdictional requirements of
s 5
are present. I am satisfied that
the raising of the issue was neither frivolous nor vexatious, and the
Competition Tribunal’s
decision on the validity of clause 11.8
will dispose of the dispute between Quest and the trust, one way or
the other. In the light
of the above, it is not necessary for me to
decide whether the jurisdictional requirements of
s 8
are also
present, as was argued by Mr Pienaar.
May
interim relief be granted?
[30]
It was argued on behalf of the trust that I do not have the
jurisdiction to grant interim relief to Quest, my jurisdiction
having
been ousted by
s 65
of the Act. Reliance was placed in this regard on
Seagram
Africa (Pty) Ltd v Stellenbosch Farmers’ Winery Group Ltd &
others
[8]
in which Jali J had found that
s 65
precluded him from granting an
interim interdict. This case is distinguishable. First, it concerned
a merger and mergers are treated
differently to other agreements in
the Act: in terms of
s 13A(3)
an intermediate or large merger may not
be implemented until it has been approved by either the Competition
Commission, the Competition
Tribunal or the Competition Appeal Court.
In this case, the opposite situation pertains as
s 65(1)
preserves
the validity of the supply agreement until it is found to be invalid.
Secondly, Jali J’s reasoning was influenced
by
s 65(3)
which
vested exclusive jurisdiction in the Competition Tribunal and the
Competition Appeal Court to interpret and apply chapters
2
(prohibited practices), 3 (merger control) and 6 (enforcement). This,
he held, had the effect of ousting his jurisdiction to
even consider
whether the conduct complained of was a merger.
Section 65(3)
has
since been repealed by the
Competition Second Amendment Act 39 of
2000
.
[31]
I consider the approach taken by Spilg J in
Erf
179 Bedfordview (Pty) Ltd v Bedford Square Properties (Pty) Ltd &
another
to
be correct.
[9]
He held, in essence, that
s 65(1)
has the effect of preserving a high
court’s jurisdiction to grant interim, but not final, relief
even when anti-competitive
conduct is alleged. His reasoning is
captured in the following passage from the judgment:
[10]
‘
[58]
Since
section 65(1)
preserves the validity of an agreement unless it
is declared void or prohibited by the Tribunal or Competition Appeal
Court then
a party to the agreement seeking to have its terms
respected in the interim must be entitled to approach a court of
competent jurisdiction
for relief.
[59]
A High Court is competent to grant interim relief to preserve the
status quo
. Since
section 65
falls outside the Competition
Courts’ exclusive jurisdiction, and in any event has limited
jurisdiction to only confer
locus standi
on a complainant who
wishes to stop an alleged prohibited practice,
section 65(1)
must be
read in a way that preserves the right to approach a court for a
remedy. This is supported also by
Airoadexpress (Pty) Ltd v
Chairman, Local Road Transportation Board, Durban, and others
[1986] ZASCA 6
;
1986 (2) SA 663
(A) at p676D where it was accepted that a court
retains the inherent jurisdiction to grant interim relief to avoid an
injustice.
[58]
Moreover if the legislature intended to take away the High Court’s
jurisdiction to grant
interim relief it would have done so in express
terms or at least by necessary implication. This was not done.’
[32]
In this matter, I am not required to consider, even on a prima facie
basis, whether the exclusivity clause may be anti-competitive
because
Quest seeks the enforcement of the clause pending a determination of
its validity by the Competition Tribunal. It relies
on
s 65(1)
of the
Act.
[33]
I conclude therefore that a high court enjoys jurisdiction to grant
interim relief even when a competition issue outside of
its
jurisdiction arises because
s 65(1)
preserves the status quo until
the specialist bodies created by the Act have decided the issues
within their jurisdiction.
[34]
Having concluded that I have jurisdiction to grant interim relief, I
turn now to whether an order of specific performance should
be made,
as sought in prayer 3.2 of the notice of motion, pending the outcome
of a referral of the validity of clause 11.8 to the
Competition
Tribunal.
Specific
performance
[35]
It is common cause that the parties entered into the supply agreement
and that the trust is in breach of that agreement in
that it obtains
petroleum products, on its own admission, from a supplier other than
Quest, contrary to the terms of clause 11.8.
I have found that the
supply agreement is valid and enforceable, pending any determination
to the contrary which may be made in
due course by the Competition
Tribunal. In terms of prayer 3.2 of the notice of motion, Quest seek
an order of specific performance
of the supply agreement against the
trust.
[36]
A court has a discretion to grant or refuse specific performance of a
contract. In
Haynes
v Kingwilliamstown Municipality
[11]
De Villiers JA set out the contours of that discretion as follows:
‘
It
is correct, as Mr. Miller states, that in our law a plaintiff has the
right of election whether to hold a defendant to his contract
and
claim performance by him of precisely what he had bound himself to
do, or to claim damages for the breach. . . This right of
choice a
defendant does not enjoy; he cannot claim to be allowed to pay
damages instead of having an order for specific performance
entered
against him. . .
It
is, however, equally settled law with us that although the Court will
as far as possible give effect to a plaintiff's choice
to claim
specific performance it has a discretion in a fitting case to refuse
to decree specific performance and leave the plaintiff
to claim and
prove his id quod interest. The discretion which a Court enjoys
although it must be exercised judicially is not confined
to specific
types of cases, nor is it circumscribed by rigid rules. Each case
must be judged in the light of its own circumstances.’
[37]
Given that an aggrieved party has a right to specific performance,
any refusal to grant specific performance in the exercise
of a
court’s discretion will, of necessity, constitute an erosion of
that right.
[12]
Even if no formal onus may rest on a party wishing to avoid an order
of specific performance, it can reasonably be expected of
him or her
to deal meaningfully with why that order should not be made.
[13]
[38]
The trust’s basis for opposing the enforcement of the supply
agreement amounts to no more than a bald statement that
‘[i]f
the Supply Agreement is to be enforced, this will most probably be
the end of the filling station as it would not be
able to pay for
petrol’. It suggested elsewhere that its breach of the
agreement should not concern Quest unduly because
it could sell its
petroleum products to people other than the trust.
[39]
To the extent that the trust seeks to make out a case that specific
performance of the supply agreement would cause it undue
hardship, it
has failed to place facts before me to support that assertion.
[40]
Quest entered into an agreement with the trust to supply it with
petroleum products and it has been denied the benefits of
that
agreement as a result of the trust’s breach – which, the
trust makes clear, it has no intention of remedying.
In these
circumstances, it strikes me as most inequitable to allow the trust
to reap the benefits of its brazen breach of the obligations
it
undertook in relation to Quest. On the other hand, Quest has an
agreement that remains in force and which it wishes to enforce,
having been denied the benefits of that agreement, to its detriment.
[41]
I am of the view that there is no basis upon which I may justifiably
deny Quest its right to specific performance of the supply
agreement,
albeit on an interim basis until the Competition Tribunal has
determined its enforceability.
The
order
[42]
I shall now summarise the relief that I intend to grant.
[43]
In the first place, Quest is entitled to the relief claimed in prayer
2 of the notice of motion – an order directing
the trust to pay
R273 343.02 – but not subject to the costs order sought by
the trust in its counter-application. To
that extent, prayer 1 of the
trust’s counter-application cannot succeed.
[44]
Secondly, Quest has established its entitlement to the relief sought
in prayer 3.1 of the notice of motion – a declaration
that the
supply agreement is valid and binding – and in prayer 3.2 –
that the trust be directed to comply with its
obligations in terms of
the supply agreement. To that extent, prayer 2 of the trust’s
counter-application – the dismissal
of the application with
costs –cannot succeed.
[45]
Thirdly, Quest has not established an entitlement to the relief
claimed in prayer 3.3 of the notice of motion – that
a
representative of Quest ‘be authorised to attend the “Daily
Wet Stock” test which the Trust is obliged to perform
in terms
of the Supply Agreement’. The supply agreement does not give
Quest the right to be present when wet stock tests
are performed and
no basis for this relief was put forward by Quest.
[46]
Fourthly, I have found that the trust has raised properly the issue
of the validity of clause 11.8 of the supply agreement
in terms of
s
65(2)
of the Act. As a result, the order directing the trust to
comply with its obligations in terms of the supply agreement will
operate
pending the finalisation of a referral of the matter to the
Competition Tribunal. In other words, prayer 3 – an alternative
prayer for the referral of the matter to the Competition Tribunal for
a decision on the validity of clause 11.8 of the supply agreement
–
succeeds.
[47]
Finally, I turn to the question of costs. An attorney and client
costs order is sought by Quest. This is provided for in clause
18 of
the supply agreement which reads:
‘
All
legal costs, including collection commission, incurred by Quest as a
result of any non-compliance by the Customer with any of
the latter’s
obligations in terms hereof, shall be recovered by Quest from the
Customer on the scale as between attorney
and client.’
[48]
Quest has been substantially successful in both its claim for the
payment of the money due to it and in the enforcement of
the supply
agreement, albeit pending the determination by the Competition
Tribunal of the validity of clause 11.8, rather than
pending the
outcome of a trial, as initially sought by Quest. As
s 65(1)
of the
Act preserves the validity of the supply agreement until the
Competition Tribunal has decided whether or not it is invalid,
there
is no reason why Quest should not be awarded its costs. In terms of
clause 18, those costs will be on an attorney and client
scale.
[49]
I make the following order.
(a)
The 5404 Stanford Road Trust (the trust), through its trustees, is
directed to pay to the
applicant the sum of R273 343.02.
(b)
It is declared that the supply agreement concluded between the
applicant and the trust,
annexure ‘JS4’ to the founding
affidavit, is valid and binding between the parties.
(c)
The trust is directed to comply with all of its obligations in terms
of the supply
agreement, subject to the terms and conditions
contained therein.
(d)
The validity of clause 11.8 of the supply agreement is referred to
the Competition Tribunal.
(e)
Paragraph (c) above shall operate pending the Competition Tribunal’s
determination
of the validity of clause 11.8 of the supply agreement.
(f)
The trust is directed to pay the applicant’s costs of this
application on an
attorney and client scale.
_________________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant: S Rorke SC instructed by Pagdens Inc.
For
the respondents: B Pienaar SC instructed by Rob McWilliams Attorneys
[1]
KPMG
Chartered Accountants (SA) Ltd v Securefin Ltd & another
2009 (4) SA 399
(SCA) para 39.’(References omitted.)
[2]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18.
[3]
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
[2015] ZASCA 111
paras 27-28. See too
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) paras 10-12;
Unica
Iron and Steel (Pty) Ltd & another v Mirchandani
2016 (2) SA 307
(SCA) para 21;
[4]
B Braun
Medical (Pty) Ltd v Ambasaam CC
2015 (3) SA 22 (SCA).
[5]
Paras
14-15.
[6]
Astral
Operations Ltd v Nambitha Distributors (Pty) Ltd; Astral Operations
Ltd v O’Farrell NO & others
[2013] 4 All SA 598
(KZD) paras 7-9.
[7]
Patensie
Sitrus Beherend Bpk v Competition Commission & others
2003 (6) SA 474 (CAC).
[8]
Seagram
Africa (Pty) Ltd v Stellenbosch Farmers’ Winery Group Ltd &
others
2001 (2) SA 1129 (C).
[9]
Erf 179
Bedfordview
(Pty) Ltd v Bedford Square Properties (Pty) Ltd & another
[2011] JOL 27160
(GSJ). This judgment was followed in
Uniplate
Group (Pty) Ltd v New Number Plate Requisites CC
GSJ 31 October 2012 unreported.
[10]
Paras
56-58.
[11]
Haynes v
Kingwilliamstown Municipality
1951 (2) SA 371
(A) at 378. See too
Farmers’
Co-operative Society (Reg) v Berry
1912 AD 343
at 350;
Concerned
Association of Parents & Others for Tertiary Education at
Universities v Nelson Mandela Metropolitan University
& another
ECG 10 November 2016 (case no. 4976/16) unreported, paras 12-14.
[12]
Benson v
SA Mutual Life Assurance Society
1986 (1) SA 776
(A) at 782H-783A.
[13]
Tamarillo
(Pty) Ltd v BN Aitken (Pty) Ltd
1982 (1) SA 398
(A) at 442B-443B.