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[2016] ZAGPPHC 1163
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Bridgestone South Africa Commercial (Pty) Ltd v VR Cargo (Pty) Ltd (99026/2015) [2016] ZAGPPHC 1163 (21 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
21/12/2016
CASE
N0:99026/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
BRIDGESTONE
SOUTH AFRICA COMMERCIAL (PTY) LTD Plaintiff
and
VR
CARGO (PTY) LTD
(REGISTRATION
NUMBER: 2003/092303/23) Defendant
JUDGMENT
MPHAHLELE
J:
[1]
This is an application for summary judgment. The plaintiff claims
payment in the amount of R535 325-24 from the defendant for
goods
sold and delivered.
[2]
During or about 3 August 2010 the defendant lodged a written
application for credit facilities from the plaintiff. In terms
of the
written application for credit facilities, the defendant applied to
purchase goods on credit from the plaintiff on the following
terms
and conditions;-
[2.1]
the defendant shall be bound by the standard terms and conditions as
contained in annexure C in all translations for the purchase
of
goods;
[2.2]
payment in respect of goods shall fall due 30 days from the date of
statement;
[2.3]
in the event of any delay in payment, the purchaser shall pay the
plaintiff a late payment charge of 2% per month calculated
from the
date payment became due to date of actual payment;
[2.4]
in the event of late payment, all trade discounts allowed on invoice
will be reversed.
[3]
The plaintiff alleges that on or about 10 August 2010 it accepted the
defendant's application and that during the period October
2013 up
until August 2015 it sold goods to the defendant on an open account
for which the defendant made payments from time to
time. The
plaintiff alleges that it rendered a statement of the amount owing on
the account on a monthly basis and from time to
time passed credit
notes on the account as and when the defendant was entitled to a
credit note for whatsoever reason.
[4]
The plaintiff alleges that the defendant breached the agreement in
that it failed to pay the amounts due and owing within 30
days of the
date of statement. Due to the defendant's alleged breach the
plaintiff reversed the trade discount passed on the account
from time
to time.
[5]
As at 1 November 2015 the defendant was indebted to the plaintiff for
an amount of R535 325-24 calculated as follows;
[5.1]
Capital debt :R484
565-50
[5.2]
Trade discount reversal :R169
702-11
[5.3]
Subtotal :R654
267-61
[5.4]
Interest :R51
333-45
[5.6]
Subtotal :R705
601-06
[5.7]
Minus payments :
R170
275-82
[5.8]
Total :
R535
325-00
[6]
The defendant admits that the parties entered into a credit agreement
in terms of which the plaintiff would sell goods on credit
to the
defendant, however maintains that the parties expressly limited the
total credit allowed to the sum of R160 000-00. The
defendant
submitted that regard being had to the balance of R535 325-24 owing
as claimed by the plaintiff, the only goods lawfully
sold to the
defendant on credit in terms of the agreement were for the first
three sums of R60 812.14 (on 5 January 2015), R10
545.35 (on 6
January 2015) and R62 933.27 (on 7 January 2015).
[7]
The defendant contends that the balance of the amounts claimed on the
account were all beyond the limits permitted by, and therefore,
ultra
vires
the agreement and payment thereof
cannot be claimed in terms of the agreement. Consequently, the
alleged trade discounts and interest
levied are likewise
unenforceable. In the result, the defendant maintains that by having
paid the total sum of R170 275-82 it overpaid
the plaintiff by R10
275-82, in
bona fide
and
reasonable but mistaken belief that it was owed and is entitled to
claim repayment thereof from the plaintiff, who has been
unjustly
enriched of such sum.
[8]
The credit agreement expressly provides that payment shall be made
within 30 days from the date of statement. The defendant
submitted
that the plaintiff is not entitled to payment of trade discount
reversals and interest as it never provided the defendant
with any
trade discounts and also failed to provide the defendant with
statements of account indicating the amounts outstanding
and when
they became due. The defendant alleges that it repeatedly requested
the plaintiff to provide it with such statements.
The defendant
alleges that the plaintiff levied interest for the period during
which it had failed to provide the defendant with
a statement,
barring which the defendant could not have made earlier payments.
[9)
The defendant contends that any amount claimed in excess of R160 000
00 by the plaintiff is
ultra vires
the agreement. This issue turns on the proper
construction of the agreement itself. In terms of the agreement the
defendant requested
a credit limit of R160 000-00. There is no
provision in the agreement precluding provision of credit in excess
of R160 000-00.
Therefore the contention by the defendant that the
plaintiff cannot claim any amount in excess of R160 000-00 is
misconceived.
[10]
The plaintiff also submitted that the discount reversals and interest
are severable and comprise of R169 702-11 and R51 333-45
respectively
of the total amount claimed by the plaintiff.
[11]
I find that the defendant has
bona fide
defences regarding the claims for trade discount
reversals and interest. These claims are severable from the aggregate
claim. If
these claims are severed there remains a claim of R314
289-58 for capital in respect of which the defendant has not
satisfied this
court that it has a
bona fide
defence or raised an issue to be tried. It is in the
circumstances appropriate for this court to grant summary judgment
for the
amount of R314 289-58.
In
the result, I make the following order;-
[11.1]
Summary judgment is granted for the amount of R314 289-68 with costs;
[11.2]
The defendant is granted leave to defend the matter in relation to
the trade discounts reversals and interest claimed by
the plaintiff.
MPHAHLELE
J
JUDGE
OF THE HIGH COURT OFSOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Counsel
for the Applicant/ Plaintiff: Adv Pl Oosthuizen
Instructed
by: Pierre Krynauw Attorneys
Counsel
for the Respondent/ Defendant: Adv EJJ Nel
Instructed
by: Rose-Innes, du Preez Inc.
Date
of Judgment: 21 December 2016