About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 851
|
|
Reinforcing Steel Contractors (Pty)Ltd v Tranacon Construction and Another (1747/2013) [2016] ZAGPPHC 851 (19 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
1747/2013
DATE:
19/9/2016
In
the matter between:
REINFORCING
STEEL CONTRACTORS (PTY)
LTD
.
...............................................
Plaintiff
(CK
Number: 19..)
and
TRANACON
CONSTRUCTION
....................................................................
First
defendant
(CK
Number: 20)
SHIRLANE
MOSTERT
.
............................................................................
Second
defendant
(ID
Number: 7…)
JUDGMENT
AC
BASSON,
J
[1]
The plaintiff instituted action against the first and second
defendants (hereinafter collectively referred to as "the
defendants" where applicable) for payment in the amount of R 219
588.17 with interest.
[2]
It is common cause that the plaintiff and the first defendant have
concluded a written agreement in terms of which it was agreed
that
the plaintiff would sell and deliver to the first defendant certain
steel products and render certain services related thereto
from time
to time at the first defendant's specific instance and request. It
was a salient term of the contract that ownership
in respect of the
goods will remain vested with the plaintiff until the full purchase
price has been paid. The second defendant
signed as surety on behalf
of the first defendant.
[3]
It was not in dispute that orders that followed upon a pro-forma
invoice and which reflected a reference number provided by
the first
respondent (the so-called "TRC" reference number) were paid
for by the first respondent. It was, however, in
dispute whether the
first defendant had placed two orders referred to in the delivery
notices as "CH2760" and "Jean
Email 21/5". It was
the defendant's case that these two orders were not placed by it and
consequently the deliveries in respect
of these two orders were
incorrectly made.
[4]
On 10 August 2012 the first defendant informed the plaintiff in
writing that the steel was incorrectly delivered and that the
first
defendant is therefore not liable for payment.
[5]
It is further common cause that on 17 August 2012 the plaintiff
collected the steel that was delivered from the first defendant.
Mr
Lauw on behalf of the plaintiff testified that the steel was placed
in a demarcated area and that approximately 80% of the steel
is still
on the premises. Approximately 20% of the steel was sold as scrap
metal presumably in an attempt to mitigate the losses
suffered by the
plaintiff as a result of the alleged non-payment.
[6]
It is clear from the summons as well as the submissions to the court
that the plaintiff is seeking specific performance from
the
defendants in the form of payment. It is trite that a party seeking
specific performance must - (i) allege and prove the terms
of the
contract; (ii) allege and prove compliance with any antecedent or
reciprocal obligations, or tender to perform them; (iii)
allege and
prove non-performance by the defendant(s) and, (iv) claim specific
performance.
[7]
In this matter it is common cause that the plaintiff delivered goods
(steel) to the first defendant: Steel was delivered
on 4
June 2012 and on 25 June 2012. There is a dispute about whether the
defendants have ordered the steel that was delivered on
these two
dates. According to the defendants they did not order the steel and
accordingly the steel was incorrectly delivered.
It is also not in
dispute that the defendants did not pay for the steel that was
delivered on these two days.
[8]
Can the plaintiff claim specific performance in circumstances where
it is in possession of the product (or what is left of it)
and in
circumstances where it concedes that it has sold part of the product
(approximately 20%) and thus unable to return the product
to the
defendants? I am of the view that this is a case where the plaintiff
should have instituted an action for damages and should
not have
sought an order for specific performance. I should also point out
that the particulars of claim do not contain a pleading
for damages
nor does it include a pleading of retention of the steel as a
penalty.
[9]
It is trite that a court has a discretion to refuse a claim of
specific performance and to thereafter leave it
to the
plaintiff to claim damages. Each case must be decided on its own
merits. In this particular case the
court
cannot ignore the fact that the plaintiff had already collected all
the steel
that was
delivered at the time when the summons was issued and has in
fact sold
some of it as scrap metal. In these circumstances I am of the view
that "the cost to the defendant in being compelled
to perform is
out of all proportion to the corresponding benefit to the plaintiff
and the latter can equally well be compensated
by an award of
damages."
[1]
In this
particular
case damages would have adequately compensated the plaintiff and was
in light
of the
circumstances
the
obvious
cause
of
action.
See
in
regard
to
the court's
discretion
Haynes
v King Williamstown Municipality:
[2]
"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 quad 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.
As
examples of the grounds on which the Courts have exercised their
discretion in refusing to order specific performance, although
performance was not impossible, may be mentioned:
(a)
where
damages would adequately compensate the plaintiff;
(b)
where
it would be difficult for the Court to enforce its decree;
(c)
where the thing claimed can readily be bought anywhere;
(d)
where specific performance entails the rendering of services of a
personal nature.
To
these may be added examples given by Wessels on
Contract
(vol
2, sec. 3119) of good and sufficient grounds for refusing the decree,
(e)
where it would operate unreasonably hardly on the
defendant, or where the agreement giving rise to the claim is
unreasonable, or
where the decree would produce injustice, or would
be inequitable under all the circumstances.
In
a recent case in this Court SCHREINER, J.A., dealing with the
question of the Court's discretion where specific performance is
claimed expressed himself as follows:
'In
our law a grant of specific performance does not rest upon any
special jurisdiction; it is an ordinary remedy to which in a
proper
case the plaintiff is entitled. But the Court has a discretion
whether to grant the order or not
( Farmers' Co-op. Society v
Berry,
1912 AD 343
at p. 350). So in contracts for the sale of
shares which are daily dealt in on the market and can be obtained
without difficulty
specific performance will not ordinarily be
granted
( Thompson v Pullinger,
1 O.R. 298
at p. 301). More
generally, specific performance will be refused where it would be
'inequitable in all the circumstances' (Wessels
Contract,
sec.
3119, quoting
Lawson;
Story
Equity Jurisprudence,
sec.
769), 'or where from a change of circumstances or otherwise it would
be unconscientious' to enforce the contract specifically.
(story,
op. cit.,
sec. 750
(a);
see, too, Fry
Specific
Performance,
5th ed., secs. 422 - 424; Mackeurtan
Sale
3rd
ed., pp. 386/7.)'
See
Rex v Milne and Erleigh
(7),
1951 (1) SA 791
at p.873.
The
matter is so well put by Story
(Equity Jurisprudence,
sec.
742) that I give the whole paragraph:
'In
truth the exercise of this whole branch of Equity Jurisprudence
respecting the rescission and specific performance of contracts
is
not a matter of right in either party, but it is a matter of
discretion in the court: not indeed of arbitrary or capricious
discretion dependent upon the mere pleasure of the Judge, but of that
sound and reasonable discretion which governs itself as far
as it may
by general rules and principles, but which at the same time withholds
or grants relief, according to the circumstances
of each particular
case, when these rules and principles will not furnish any exact
measure of justice between the parties. On
this account it is not
possible to lay down any rules and principles which are of absolute
obligation and authority in all cases;
and therefore it would be a
waste of time to attempt to limit the principles or the exceptions
which the complicated transactions
of the parties and the
ever-changing habits of society may at different times and under
different circumstances require the Court
to recognise or consider.
The most that can be done is to bring under review some of the
leading principles and exceptions which
the past times have furnished
as guides to direct and aid our future inquiries."'
[1O]
In the event the following order is made:
The
claim is dismissed with costs.
AC
BASSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the plaintiff
............. …........
:Adv
Maschwitz
Instructed
by
.............................
:Pagel
Schulenburg Attorneys
For
the 151 and 2nd defendants :Adv A Visser
Instructed
by
................................
:Van
Zyl Smith & Associates
[1]
Haynes v King Williamstown Municipality
1951 (2) SA 371
(A) at 3808
- C.
[2]
Ibid at 378F - 378G.