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[2016] ZAGPPHC 1159
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Nampak Products t/a Nampak Liquid Purchasing v Dairybelle (Pty) Ltd (72512/13, 72513/13) [2016] ZAGPPHC 1159 (10 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DMSION, PRETORIA
CASE
NUMBER: 72512/13 and 72513/13
DATE:
10 October 2016
N
AMPAK
PRODUCTS
t/a
NAMPAK LIQUID
PURC
H
ASI
N
G
Plaintiff
REGISTRATION
NR.
1
963/00454/06
v
OAIRYBELLE
(PTY)
LTD
Defendant
REASONS
FOR JUDGMENT
MABUSE
J:
[1]
This matter came before Court on 22 August 2016 in which the
following order was granted by this Court:
"Leave
is hereby granted with costs, to the defendant in both the case
numbers 72512113 and 72513/13 to amend both its plea
and counterclaim
as set out in its notice of intention to amend dated 3 December
2015."
Although
I made an order in this application, I did not give reasons there and
then. These are therefore the reasons for the order
that I made on 22
August 2016. The defendant seeks leave of this Court to amend its
plea to the plaintiff's claim against it and
its counter claim
against the plaintiff. The plaintiff has raised certain objections
against the defendant's application for leave
to amend and on such
bases opposes the application.
[2]
There are two matters involved in this application and these are
case number 72512/2013 and 72513/2013. Because of the identical
similarities in the issues raised in not only the issues in the main
action but also in the defendant's application for leave to
amend and
the plaintiff's grounds of objection the two matters were
consolidated and the applications in respect of the two matters
were
heard as one.
[3]
The plaintiff has taken a point that in seeking leave to amend its
plea and counterclaim, the defendant did not follow the form
of a
notice supported by a founding affidavit, but instead simply launched
its application on a notice without the affidavit. This
approach has
somewhat unsettled the plaintiff who raised this technical point in
their heads of argument. I will in due course
come back to this
issue.
[4]
The plaintiff has issued summons against the defendant in which it
has claimed payment of money and certain ancillary relief.
In its
amended particulars of claim the plaintiff has pleaded as follows:
"
3
.
Duri
n
g
or
a
bout
August
20
1
2
a
nd
at
J
o
h
a
nne
s
bur
g
,
alt
e
rnatively
P
retori
a
,
a
nd
fur
t
her
a
lternatively Bloemfontein
a
nd/or
C
a
pe
Town, the P
l
a
i
ntiff du
l
y
r
e
presented
b
y Anthony
S
a
nt
a
na
a
lternatively
a
d
uly
aut
h
orised
r
e
presenta
t
ive
or
e
m
ployee
a
nd
the
Defend
a
nt
duly
represented
b
y
Jacques
Four
i
e
alternatively
a
duly
author
i
sed
r
e
presentative
or e
m
ployee
concluded
a
partly writ
t
e
n
a
nd
a part
l
y oral
a
greement ("the
a
greement").
4.
A
c
o
p
y
o
f
the partly
wr
i
t
t
en
part
of
the
a
greement
is
a
nn
e
xed
h
e
ret
o
,
marked
"
PO
C
A”
be
i
n
g
th
e
plaintiffs Stand
a
rd
Terms
a
nd
C
onditions
o
f
S
a
le.
5.
T
he mat
e
rial e
x
press
a
lternatively
t
acit
a
lternatively
t
erms
o
f the
a
greement were
int
e
r
a
lia
as
follows:
5.1
1 The
P
l
a
intiff would
su
p
ply the Def
e
n
d
ant with
a
nd
sell
t
o the Defend
a
nt
goo
d
s bei
n
g inter alia bottl
e
s,
c
a
ps and labels for fruit juices
a
nd
d
r
i
nki
n
g
yoghurt for
the
Defend
a
nt's Clilpe
T
own
a
nd
B
loemfontein
d
a
iri
e
s
("the
goods").
5.2
The
terms P
l
a
intiffs
S
t
a
ndard
Terms
a
nd
C
on
d
itions of
S
ale
would
be
a
pplic
a
ble,
save
for
the
t
erms
of
t
he
a
greement
inc
o
nsistent
therewith
a
s
referred to
below.
5.3
Th
e
purch
a
se
price
for
th
e
goods
-
5.3.1
wou
l
d
be
the
a
greed
purchase
price
a
lternative
l
y
the
pl
a
intiffs
u
sual purchase price
fur
t
her
a
lternatively
t
he
fa
ir and reason
a
ble
purchas
e
price
for the
goods;
5.3.2
would
b
e
paid
by
the
d
efen
d
a
nt
to
the
plaintiff
wit
h
in
30
d
a
ys from
the
d
ate
of
d
e
l
ivery of
t
he
pl
a
in
t
iffs stat
e
ment
5.4
The
Defendant would be
granted
8% of
total
rebate."
[5]
The defendant then pleaded as follows to paragraph 3 of the
plaintiff's particulars of claim;
'
'AD
P
ARAGRAPH
3
3.
1 The
d
e
fen
d
a
nt
plea
d
s
t
h
at
duri
n
g
August
20
1
2
the
plaintiff,
represented
by
Antho
n
y
S
a
nt
a
na
a
nd the
d
efend
a
nt,
represented by Jacques
F
ourie conclu
de
d
a
n oral
a
greement
("the
oral agreement"), the material express, and alternatively tacit,
further alternatively implied terms of which were
inter alia:
3.1.
1
t
h
at
t
he plaintiff un
d
er
t
o
ok
t
o s
u
p
ply
the
d
e
fend
a
nt with inter
a
lia
bot
t
les, caps
a
nd labels for fruit juic
es
a
nd
d
r
i
nk
i
n
g
yoghurt f
o
r the
d
e
fen
d
a
nt's
C
a
pe
Town and
Bloemfontein
Dairies;
3.
1
.
2
that the purchase
price for the items purch
a
sed
fr
o
m the
plaintiff wou
l
d be
a
price
a
greed to between th
e
par
t
ies;
3
.
1
.3
t
h
at t
h
e def
e
n
da
nt
w
o
u
l
d be af
f
o
rded
6
0
d
a
ys from the
d
ate of statement in
respect of
its
purchase t
o
p
a
y
th
e
plaintif
f
;
3.
1.4 that
the defendant would be granted a rebate of 8% of the total
sales;
3
.
1
.5
t
h
at in the event that either party
w
i
s
hed
to cancel t
h
e
a
greement,
th
e
y
were
required
t
o
give the
o
t
her re
a
sonable notice, w
h
ich
in the c
i
rcums
t
a
nces
wou
l
d
be
no
less th
a
n
6
0
d
a
ys' notice, duri
n
g
w
h
ich
period the
parties
w
o
uld con
t
inue to
honour
t
he
a
greement
b
y inter
a
l
ia
c
o
nt
i
nui
n
g to
fulf
i
l
orders
placed in
terms
and
conditions
set
out
above."
3.2
S
ave as ever said the
d
efen
d
a
nt
denies
e
ach
a
n
d
every
a
ll
e
gation herein
c
o
nt
a
ined.
“
[6]
It is as clear as crystal that with regard to this point there is a
dispute between the parties about the character of the agreement
that
the parties concluded through their representatives. While on the one
hand the plaintiff pleads that the agreement was partly
oral and
partly written, the defendant, on the other, pleads that such an
agreement was oral.
[7]
It is crucial, at this stage, to point out that the defendant's
contention that the agreement was oral was also its evidence
at the
application or summary judgment. The same Jacques Fourie deposed to
an affidavit opposing an application for summary judgment.
In
paragraph 7 of the said affidavit, he testified that:
"
I
n
and dur
i
n
g August
2
0
1
2
,
t
he pl
a
intiff, r
e
presented
b
y Anto
n
y
S
a
ntana,
a
nd the
d
efendant, represented
b
y
m
yself,
concluded
a
n
oral
a
greement
.”
This
affidavit resisting the application for summary judgment was
commissioned on 7 March 2014 while the defendant's plea, which
was
filed simultaneously with the defendant's counter claim and to which
I will shortly revert, was delivered on 9 July 2014.
[8]
In paragraph 12 of its counterclaim against the plaintiff for the
payment of a certain sum of money and certain ancillary relief,
the
plaintiff repeated verbatim the contents of its plea in respect of
paragraph 3 of the plaintiffs particulars of claim. In paragraph
13
of its counterclaim, the defendant emphasized that the agreement of
August 2012 was verbal.
[9]
The plaintiff pleaded to the defendant's counterclaim in its plea
dated 21 July 2014. In paragraph 2 thereof, which was
a direct
response to paragraphs 12 to 19, including all the subparagraphs of
the counterclaim, the plaintiff pleaded that the plaintiff
repeats
the content of paragraphs 3 to 9 including subparagraphs of the
plaintiffs particulars of claim.
[10]
On 10 December 2015, the defendant served the plaintiff with a 15
page notice of intention to amend, the purpose of which was
to amend,
among others, paragraph 3 of its plea by deleting the original
paragraphs and replacing it with a new one, and by deleting,
among
others, paragraph 12 of its counterclaim against the plaintiff and
replacing it with a new one. During December 2015, the
plaintiff
delivered a notice of objection to the defendant's notice of
intention to amend. In the said notice, the plaintiff raised
four
grounds, appropriately numbered, of objections. I will come back to
these grounds later. Suffice to mention that at the hearing
of this
application, Mr. Hollander, counsel for the plaintiff, made it clear
to the court that the plaintiff would not persist
with the second and
third grounds of objection. The focus would, as a result, be on the
first and fourth grounds.
[11]
I now turn to the defendant's impugned amendments and thereafter to
the grounds of objections to such amendments. In doing
so I will only
confine this judgment to those amendments objected to in the
plaintiff's first and fourth grounds of objection.
In paragraph
3.1.1 of the amendment the Defendant referred to the conclusion of a
written Equipment and Product Supply Agreement.
Having done so, the
defendant continued to state that:
“
A
c
o
p
y
of
that
a
greem
e
nt
is
a
nnexed
m
a
rked
'A '.”
For
the purposes of completeness I will quote the paragraphs whereever
reference to a written agreement marked 'A' is made:
"3.
1.1 On or about 15 October
2004 and at lndustria or Bloemfontein Meta/box South
Africa Ltd t/a
Nampak Liquid Packaging ("Meta/box") and Tiger Foods Brands
Limited t/a
Dairybelle
("Tiger Foods") concluded a written equipment lease and
product supply agreement. A copy of that agreement
is annexed marked
'A '("the first agreement").
3.1.6.2
The plaintiff let to the defendant the
equipment and
packaging described in Annexure
'A 'to the first agreement;
3.1.8
The first agreement was not cancelled by either the plaintiff or the
defendant and remained binding on those parties In August and
September 2013 at the time of the events pleaded below.”
A
similar amendment is contained in paragraph 3.2.1 where this time,
reference to a written
agreement
marked 'B' is made. It states as follows:
"3.2.
1 On 25 May 2005 and at Johannesburg or Bloemfontein the plaintiff
and Tiger Woods concluded a further written equipment
lease agreement
and product supply agreement. A copy of that agreement is annexed
marked '8' ("the second Agreement”).
3
.
2
.5
All
o
f the
terms
a
nd
c
o
n
d
itions
of the second
a
greement
were fulf
i
lled
a
nd
the
a
greement remained
of
full f
o
rce
a
nd ef
f
ect
in
August
a
nd S
e
ptember
20
1
3
at the time
of
the
even
t
pleaded
below.
"
[12]
It was argued by Mr. Hollander that it Is quite clear that In its
notice of intention to amend the defendant denies the oral
agreement
pleaded by the plaintiff and admitted by the defendant, and denies
furthermore that the plaintiff sold and delivered
goods to the
defendant pursuant to the admitted oral agreement as admitted by the
defendant. According to Mr. Hollander the defendant
now pleads that
the two written agreements, one marked Annexure 'A' and the other
marked Annexure 'B' were concluded; that pursuant
to the
aforementioned annexures two written agreements and in direct
contradiction to the admitted oral agreements which the defendant
had
previously pleaded, goods were sold and delivered by the plaintiff to
the defendant; and that, as opposed to the defendant
having pleaded
in its original counterclaim, that the plaintiff repudiated the
admitted oral agreement with an additional term
that the plaintiff
repudiated the written agreement. It was argued by Mr. Hollander that
it is as clear a crystal from its notice
of Intention to amend that
the defendant now seeks to adopt a significant change of its stance.
He contended that the defendant
seeks to withdraw the admission it
has made in circumstances where the defendant has offered or tendered
no explanation at all
for the withdrawal of such admissions.
[13]
It was further argued by Mr. Hollander that where a withdrawal of an
admission was sought or where there was a significant
change of
stance such a withdrawal of an admission or a change of stands must
be motivated in an affidavit.
[14]
Mr. Hollander argued that as it appears from the defendant's original
plea to the plaintifrs particulars of claim in case nr.
72512/2013,
and the declaration in case nr. 72513/2013, and as appeared
furthermore from the defendant's original counterclaim,
the defendant
has made the following admissions that:
14.1
the plaintiff and the defendant concluded an oral agreement during
August 2012 during which the plaintiff
was represented by one Mr.
Antonie Santana and the defendant by Jacques Fourie;
14.2
in terms of the oral agreement, the plaintiff would supply the
defendant with,
inter
alia,
bottles, caps and
labels for fruit juices and drinking yoghurt for the defendant's Cape
Town and Bloemfontein Dairies;
14.3
the purchase price for the items purchased from the plaintiff would
be a price agreed to between the parties;
14.4
the defendant would be afforded 60 days from the date of statement in
respect of each Its purchases to pay
the plaintiff;
14.5
the defendant would be granted a rebate of 8% of total sales.
[15]
The defendant denies that it has admitted the plaintiff's version of
the agreement. This is clear from the following paragraph
6.1 of the
defendant's plea in each of the matters:
"The
defendant denies the agreement as pleaded by the plaintiff and
accordingly denies the sale and delivery of goods pursuant
to the
agreement as pleaded by the plaintiff and the plaintiff is put to the
proof thereof.”
Accordingly
it is clear from paragraph 3 of the original plea that the defendant
relies on an oral agreement. The defendant concedes
though that in
the oral agreement it has pleaded some terms and conditions which are
similar to the terms and conditions the plaintiff
has pleaded. The
defendant, however, denies pertinently that annexures "Poca"
or "Poc1” forms part of either
agreement or indeed that
there were any written terms to the agreement. The only terms common
to the plaintiff and the defendant
on the pleadings, as they
currently stand, are:
15.1
in the Bloemfontein matter, the fact that the defendant would be
granted a rebate of 8% of the total sales;
15.2
in the Cape Town matter, that the payment terms were 60 days from
date of the statement and that the
8% rebate would be granted on
total sales.
On
the basis of the aforegoing the Defendant denies that the proposed
amendments seek to withdraw tacts which are congruent between
the
parties.
[16]
The conclusions that the plaintiff seeks to draw In paragraph 8 of
Its objection, namely that the proposed amendment will effectively
withdraw previously admitted facts Is, In my view, Incorrect and does
not sustain the objection.
LATENESS
OF
A
N
O
TICE
OF
I
NTENTION
TO
AMEND
[17]
A further component of the first ground of objection by the
plaintiff appears to be founded on the lateness of the notice
of
intention to amend. The plaintiff complains that the amendments were
only sought to be introduced one day prior to the date
on which the
matter had been enrolled for trial. For that reason the plaintiff
objects to the proposed amendments on the basis
that firstly, they
are
ma/a
fide
and secondly, they are an
attempt to delay the finalisation of the plaintiff's claim. This
argument is seen In the light of the
fact that the defendant sought
to amend its pleas and counterclaims on 12 November 2015 or date
prior to 13 November 2015, the
date on which the matter was scheduled
to be heard. In the light of the fact that parties had agreed to a
postponement of the trial
as the defendant had tendered wasted costs
on an attorney and client scale this ground lacks merit. The
plaintiff agreed to a postponement
of the trial for the purpose of
enabling the defendant to introduce its amendment, and accepted the
defendant's tender of costs
on attorney and client scale. It is
therefore not open to the plaintiff to complain on the delay.
[18]
The question as to whether the amendments are
ma/a fide
or
bona
fide
depends entirely on whether or
not they are pursued in good or bad faith. The fact that the
defendant introduces such amendments
should be seen as a genuine
attempt to ventilate real Issues between the parties. In my view, it
Is indicative of the good faith
in which the defendant introduces
such amendments. The written agreements which the defendant seeks to
introduce in support of
his counterclaims, at face value, constitute
agreements between the plaintiff and the defendant relevant to the
Bloemfontein and
Cape Town Diaries all of which are extent. Both
documents have been signed by the persons purportedly representing
the plaintiff
and the defendant. In the light thereof It would appear
that the description of the amendment the defendant Intends
Introducing
as beinn
mala fide
by the plaintiff Is misplaced.
THE
FOURTH
AMENDMENT
[19]
Clauses 8.2 and 8.2.2 of Annexure 'E' and Annexure 'D' respectively
to the first and second agreements, Annexure 'A' and Annexure
'B' to
the defendant's proposed amendment state as follows:
"
8
.
2
Th
e
sellers s
h
a
ll
not
be
li
a
ble
-
…
.
8
.
2
.
2
to the b
u
yer f
o
r a
n
y
d
a
m
a
ge
w
h
atsoever
a
nd howsoever
a
r
i
s
i
n
g
whether based
o
n c
o
ntractual ob
l
i
gations,
i
m
plied w
a
rrantees or on Sel
l
er's
neg
l
i
ge
n
ce
a
nd
w
hether
d
irect or
indirect.
consequenti
a
l
or otherwise
w
h
ich
the B
u
yer m
a
y suffer, save
a
nd
e
x
cept
the
e
xact li
a
bility
of
the
Sel
l
e
r
a
s
stated
in
paragr
a
ph
8
.3
b
e
low
w
h
ich is in
substitution for and
excludt
1
S
a
ll
o
t
her liabi
l
iti
e
s
o
f
w
h
atsoever
nature
and
h
owsoever
a
r
i
si
n
g."
Clauses
6.2 and 8.2.2 of Annexure 'E' and Annexure 'D' respectively to the
first and second agreements, Annexure 'A' and Annexure
'B' to the
defendant's proposed amendment, exclude liability on the part of the
plaintiff In respect of the defendant's alleged
claim for damages
arising from the plaintiff's alleged breach, as per the defendant's
notice of intention to amend, of the first
and the second agreements.
It was argued by Mr. Hollander that in the circumstances the
defendant's proposed amendment will render
the defendant's plea and
counterclaim excipiable on the basis that the defendant's plea and
counterclaim lacked the averments necessary
to sustain a defence or
cause of action, alternatively, are vague and embarrassing. He
submitted that in the premises the defendant
should, by reason of the
aforegoing, be precluded from amending Its plea and counterclaim as
per its notice of Intention to amend.
[20]
Mr. Hollander argued that the wording of clauses 8.2 and 8.2.2 is
wide enough to exclude liability on the part of the plaintiff
in
respect of the def11ndant's alleged claim for damages arising from
the plaintiff's alleged breach as per the defendant's notice
to amend
or the first and second agreements. According to him this is evident
from the wording “
any
d
a
m
a
ge
w
h
atsoever
a
nd howsoever
a
r
i
si
n
g
and
"
or
otherwise”.
In this respect the Court was referred
to
Christie's
Law of
Contract Edit
i
on
at
page
1
96
and
Beinashowitz
and
Sons
(Pty)
Ltd
vs N
i
ght
Watch Patrol
(Pty)
Ltd
1
958
(3)
SA
61
W
at
64
D
F
and
Government
of
RSA
vs
Fibres
Peanuts
and
Weavers
(Pty)
Ltd
1
978
(2)
SA
794
(A).
[21]
The defendant, seeking to rely on clauses 11.1 and 15 of the two
written agreements, contends that clause 15 trumps clauses
8.2 and
8.2.2 of Annexure 'E' and Annexure 'D' respectively to the two
agreements. For record purposes clause 11.1 states:
"The
lessee
s
ha
l
l,
f
rom
the
C
ommencement
Date
a
nd
for
the
d
uration
of
t
h
is
a
g
reement
but
its entire requirements of the Goods
required for use on the Equipment from the Lessor on the
terms
a
nd
conditions
set
out
in
t
h
is
a
greement
a
nd
Stan
d
a
rd
Terms
a
nd
Cond
i
tions
attached
as
a
nnexure 'E'
('D’)
In
t
he event
of
a
n
y conflict
between
the
st
a
n
d
a
rd t
e
rms
and
con
d
itio
n
s
and t
h
is
a
greement, the
provisions of t
h
is
a
greement
s
h
all
prevail."
Clause
15 states as follows:
"The
u
se
of
the Equipm
e
nt
w
i
ll
be
under
the Lessee’s
exclusive
man
agement
a
nd
supervision. Accordi
n
gly
the l
e
ssee will
be respons
i
ble
f
o
r ensuri
n
g the proper us
e
,
man
a
gement
a
nd supervision of the
Equipment,
oper
ati
n
g metho
d
s
a
nd for es
t
ablishi
n
g
a
ll
pr
o
per checks necessary
for
the
L
e
ssee's
I
ntended
use of
the
Equipment.
The
Lessee
a
grees
that
the
Lessor
sha
l
l
not
be
li
a
ble
to
the
Lesses
or
a
n
y
th
i
rd
p
a
rty
for
a
n
y
cl
a
im,
loss
or
d
a
m
a
ge
f
rom
whatsoever
c
ause
a
ris
i
n
g
inclu
d
ing
negligence of
the
Less
o
r,
i
t
s
servants or
a
gents
consequent
u
pon the s
u
p
ply
of
the
Equipment
to
the Lessee in
terms hereof."
[22]
Mr. Hollander contended that clauses 8.2
and 8.2.2 of Annexure 'E'
and
Annexure 'D' respectively to the two agreements did not
conflict with clause 15 of the two agreements. As
far as he is
concerned clauses 8.2 and 8.2.2 instead evidently expanded upon the
limitation of the plaintiff's liability to the
defendant. He
submitted that a party may contract out liability for non-
performance, intentional or unintentional, of such party's
obligations in terms of the contract. In this regard he relied on the
case of
Galloon vs Modem Burglar Alarms (Pty) Ltd
1
973
(3) SA 647
(C) where the Court had the following to say:
“
I
f
the
other
party
sees
fit
to
a
gree
to
it,
the
preferenc
e
s
m
a
y
competently
insert
into
a
contract
a
cl
a
im
w
h
ich
w
ill
protect
h
im
from
l
i
a
b
i
l
ity
even
for
h
is
own
w
i
llful
d
efau
l
t
,”
[23]
According to Mundell quite clearly the fourth ground is based on the
proposition that clauses 8.2 and 8.2.2 of Annexures 'E'
and 'D' to
the first and second agreements preclude the damages formulated in
the proposed amendment and that they thereby render
the plea and
counterclaim excipiable. Clauses 11.1 of both Annexures 'A' and
'B' contain the following provisions:
“
The
Lessee shall, from the commencement date and for the duration of this
agreement buy its entire requirements of the goods required
for use
on the Equipment from the lessor on the terms and conditions set out
in this agreement, and the Standard Terms and Conditions
attached as
Annexure 'D'. In the event of any conflict between the standard terms
and conditions and this agreement, the provisions
of this agreement
shall prevail.”
Annexures
'A' and 'B' each contain a paragraph 14 which has the same terms.
Those paragraphs determine a limitation of the plaintiff's
liability
to the defendants for damages. The relevant portion of those clauses
reads as follows:
"The
Lessee agrees that the Lessor shall not be liable to the lessee or
any third party for any claim, loss or damage from
whatsoever cause
arising, its servants or agents consequent upon the supply of the
Equipment to the lessee in terms thereof.”
Quite
clearly the limitation of liabilities in intended to be restricted to
the damages which arise from”... consequent upon
the supply of
Equipment to the lessee in terms hereof.”
[24]
This limitation according to Mundell does not restrict the
plaintiff's liability to the defendant in terms contended for by
the
plaintiff. Considering the express provisions of clause 11.1 there
cannot, under the circumstances, be an argument that the
limitations
established by clauses 8.2 and 8.3 expand the limited scope of clause
14, It was submitted by Mr. Mundell that the
latter trumps the
former. It Is clear that the reading of clauses 8.2 and 8.3 reveals
that those provisions relate, In principle,
to damages which would
flow from the supply by the plaintiff to the defendant of products in
terms of these two agreements. These
two agreements, in my view, do
not limit the liability of the plaintiff to the defendant for the
farmer's repudiation of the two
agreements followed by the latter
cancellation thereof. He relied on this aspect on Christie and
Bradfield where they state as
follows in the Law of Contract in South
Africa, Second Edition at page 195:
“
Our
law therefore a
p
pears to be t
h
at
a
n
exe
m
ption c
l
ause m
a
y
v
ali
d
ly
e
xe
m
pt
from li
a
bi
l
ity for un
i
ntentional
but
not intentional d
i
sclosure.”
[25]
According to the proposed amendments, the defendant's claims for
damages are based on intentional non-performance on the part
of the
plaintiff as a consequence of which those claims are not struck by
the exemption clause sought to be relied upon. The defendant's
current counterclaim for damages, as formulated in the proposed
amendment, is not struck by the aforesaid clauses 14 and 8. I agree
with Mr. Mundell that the proposed counterclaims cannot be attacked
by way of an exception and furthermore that the plaintiff's
objection
to the contemplated amendments and lacks, In my view, merits and
cannot be upheld.
__________________
P.M.
MABUSE
JUDGE
OF
THE
HIGH
COURT
Appearances:
Counsel
for the applicant:
Adv.
L. Hollander
Instructed
by:
W
e
rth
e
im
Beck
e
r
I
nc.
c
/
o
F
rie
d
l
a
n
d
H
a
rt
Solomon &
N
icolson
Counsel
for the respondent:
Adv. A M
u
ndell
(
S
C
)
Instructed
by:
Kokkoris Attorneys
c/o Strijdom Attorneys
Date
Heard:
2
2 August
2
0
1
6
Date
of Judgment:
10 October 2016