Van der Merwe v Bonnievale Piggery (Pty) Ltd (749/2020) [2021] ZASCA 162 (1 December 2021)

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[2021] ZASCA 162
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Van der Merwe v Bonnievale Piggery (Pty) Ltd (749/2020) [2021] ZASCA 162 (1 December 2021)

THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 749/2020
In the matter
between:
EDWIN HUBERT VAN
DER MERWE
APPELLANT
and
BONNIEVALE
PIGGERY (PTY) LTD
RESPONDENT
Neutral
citation:
Van
der Merwe v Bonnievale Piggery (Pty) Ltd
(749/2020)
[2021] ZASCA
162
(
1
December
2021)
Coram:
SALDULKER
ADP and SCHIPPERS, NICHOLLS, MBATHA and HUGHES JJA
Heard:
4
November 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on
1 December
2021.
Summary:
Contract
– interlinked contracts for sale of pork products – prices in
sale contract market related – parties unable to reach
agreement on
price – no consensus – contractual arrangement ended –
counterclaim for breach of contract – party allegedly
failing to
adjust prices – not giving written notice of inability to do so –
not proved – delict – unlawful competition –
use of
confidential information to poach customers – not established –
appeal dismissed.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Binns-Ward, Steyn and
Sher JJ, sitting as court of appeal):
The appeal is
dismissed with costs, including the costs of only senior counsel.
JUDGMENT
Schippers
JA
(Saldulker
ADP and Nicholls, Mbatha and Hughes JJA concurring)
[1]
The appellant, Mr
Edwin van der Merwe (the defendant), is a former seller of
slaughtered pig carcasses (carcasses), supplied by the
respondent,
Bonnievale Piggery (Pty) Ltd (the plaintiff), which keeps and rears
pigs for slaughter, under a series of interlinked
agreements. In 2013
the plaintiff instituted action against the defendant for payment of
R1 196 868,84, which was the outstanding
balance due in
respect of carcasses supplied to the defendant, interest and short
payment of purchases.
[2]
Part of the
defendant’s initial defence to the action was that he had been
overcharged for carcasses purchased, and that the plaintiff
had not
complied with the requirements of the National Credit Act 34 of 2005
(the NCA) by granting him credit without being registered
as a credit
provider. The defendant also alleged that he had a claim against the
plaintiff for breach of contract, alternatively
delict, for unlawful
competition, that exceeded the amount of the plaintiff’s claim.
[3]
The case was tried
before Parker J in the
Western
Cape Division of the High Court, Cape Town
.
The parties agreed to a separation of the issues in terms of rule
33(4) of the Uniform Rules of Court (the Rules) as follows:
‘
The issue of
quantum and causation of the defendant’s counterclaim (in the event
of liability being established) is stayed until
the other issues in
dispute between the parties are disposed of.’
It is plain that
causation, an essential element of a delictual claim, should not have
been separated from the defendant’s claim
for unlawful competition.
To do so was misconceived. This Court has repeatedly stated that a
trial court must be satisfied that it
is proper to make an order
under rule 33(4), which should be made only after ‘careful thought
has been given to the anticipated
course of the litigation as a whole
that it will be possible properly to determine whether it is
convenient to try an issue separately’.
[1]
[4]
Aside from this, the
trial judge made an order that the defendant had ‘successfully
established liability by the plaintiff and .
. . [was] entitled to
claim such damages as may be proved in due course’, apparently on
the basis of breach of contract. This order
however was made in
circumstances where the defendant had invoked rule 22(4) of the
Rules, which required the judgments on the plaintiff’s
claim and
the claim in reconvention to be given
pari
passu
.
[2]
[5]
In the trial court
the defendant’s counsel conceded that the defendant had received
and was obliged to pay for the carcasses referred
to in the invoices
that formed the subject of the particulars of claim. The trial judge
however dismissed the plaintiff’s claim
with costs. The plaintiff
was granted leave to appeal to a full bench of the high court.
[6]
Before the full
court it was conceded by the defendant’s counsel that the point
based on the NCA had no merit. He informed the full
court that the
point had been abandoned at the trial, but that did not appear from
the record or the judgment of the trial judge.
The defendant also
abandoned his claim for payment of the amounts overcharged by the
plaintiff. That left the nature of the parties’
business
relationship and whether the defendant had established his claim in
reconvention, namely that he had suffered damages because
of the
plaintiff’s alleged breach of contract and unlawful competition.
[7]
The full court
(Binns-Ward, Steyn and Sher JJ) upheld the appeal. It held that the
business relationship between the parties had come
to an end in July
2012 when they could not agree on a price for carcasses, and that the
defendant’s counterclaim based on breach
of contract and unlawful
competition could not be sustained on the evidence. The full court
set aside the trial court’s order and
granted judgment against the
defendant in favour of the plaintiff for payment of the sum of
R1 196 868,84, together with
interest and costs. It
dismissed the claim in reconvention with costs. The appeal is before
us with the leave of this Court.
[8]
Before us the
parties accepted that the defendant’s claim of unlawful competition
should be decided, despite the fact that the element
of causation had
been excluded from the issues for decision under rule 33(4). It was
also accepted that on the evidence, the full
court had been in a
position to decide both the claims in convention and reconvention.
[9]
The basic facts were
largely common ground. In 2005 the parties orally entered into a
business relationship which included: (i) contracts
for the sale of
carcasses concluded on the basis of periodically agreed prices; (ii)
an exclusive supply agreement; and (iii) a sole
distributorship
agreement. The business relationship, and with it the interlinked
contracts, were of indefinite duration and terminable
at the instance
of either party.
[10]
The plaintiff
granted the defendant a credit facility in terms of which he agreed
to pay amounts due for carcasses within 14 days
of the date of
invoice, and interest at 2% above the prime rate in the event that he
failed to do so. The defendant concluded a written
cession of his
book debts to the plaintiff as security for his obligations under the
credit facility (the cession of book debts).
In terms of the cession
of book debts, the defendant undertook to furnish the plaintiff at
regular intervals with particulars of
all his debtors, the amount of
their indebtedness and details of securities held for those debts.
[11]
In terms of the
supply agreement, the plaintiff agreed to supply carcasses to the
defendant at reasonable, market related wholesale
prices that would
follow market fluctuations. From the outset it was agreed that the
plaintiff would also supply pigs to Winelands
Pork, a
pig-slaughtering abattoir and wholesale business involved in a joint
venture with the plaintiff, as the defendant did not
buy all the
plaintiff’s pigs and they had to be sold elsewhere. Under the
distributorship agreement the defendant exclusively sold
carcasses to
the retail market for his own account and under his own brand to
customers in the Western Cape. He agreed not to sell
carcasses in the
area in which Winelands Pork sold its products. The parties agreed
not to compete in their respective areas of distribution.
[12]
The prices at which
carcasses were sold to the defendant in the various contracts of sale
were negotiated and changed at least four
times a year, and depending
on what happened in the market in the Western or Southern Cape, would
move either up or down. Prices
were determined according to the size
of carcasses and the season. Broadly, smaller carcasses fetched
higher prices than ones in
the heavyweight category. The prime
marketing period for pork generally was from October to December each
year. During the winter
months the turnover of carcasses was lower
because the pigs remained longer in the plaintiff’s pens and grew
in size and weight.
This was a recurrent situation which resulted in
an oversupply of pigs, which the defendant referred to as a
‘bottleneck’.
[13]
Throughout their
relationship and despite constant arguments about prices, the parties
were able to address the problem of oversupply
of pigs by reaching
agreement on prices in the numerous sale agreements between 2005 and
2012. The defendant had often complained
that the prices were too
high, but ultimately accepted them. However, in July 2012 the parties
were unable to reach agreement on
the price for some 1300 pigs in the
heavyweight category that needed to be taken out of the plaintiff’s
piggery. Consequently,
the parties’ business relationship came to
an end.
[14]
The plaintiff’s
claim was for payment of carcasses delivered to the defendant in
January and February 2013. As stated, the defendant
conceded that he
had obtained the benefit of those carcasses and had to pay for them.
He asserted that the amount counterclaimed
for loss of profits should
be set off against any amount granted in judgment by the trial court.
In his evidence the defendant confirmed
receipt of the carcasses
forming the subject of the plaintiff’s claim and that he had
intended to pay the amount demanded. He said
that he started
withholding payments from the plaintiff because he realised that he
would have to close his business, he had no money
and there were 14
families dependent on the work which he provided.
[15]
The plaintiff had
thus established its claim and it should not have been dismissed by
the trial court at the end of the first stage
hearing. That this was
a misdirection was conceded by the defendant’s counsel before the
full court. The alleged breach of what
the defendant called a
‘Supplier/Distribution Agreement’ and a ‘sole and exclusive
distributorship’, that formed the basis
of the counterclaim, did
not detract from the plaintiff’s entitlement to payment of
carcasses sold and delivered to the defendant
under the sale
agreements, for on-sale by the defendant.
[16]
The remaining issue
then is whether the defendant had proved breach of contract and
unlawful competition as alleged in his counterclaim.
As to the
former, he asserted that in terms of a supplier/distribution
agreement, the plaintiff had agreed to supply him with carcasses
‘at
reasonable and market wholesale prices’; that it would reduce those
prices if there were negative market price fluctuations;
and that the
plaintiff would furnish him with written reasons if it was unable to
adjust its prices. He alleged that in the course
of the agreement the
parties would become privy to confidential information and
operational secrets. They had agreed, so it was alleged,
that they
would not utilise this information for their own advantage, and
specifically that they would not solicit or accept business
from each
other’s customers.
[17]
The defendant
averred that in terms of the sole and exclusive distributorship, the
prices of products sold to him ‘would be market
related and follow
market trends up or down’ and be linked to those charged to
Winelands Pork, with a premium of 40c per kilogram
excluding a
slaughtering fee of R1 per kilogram. During the existence of the
agreement or thereafter, the plaintiff would not canvass
or sell pork
products to the defendant’s customers or compete with him in any
way.
[18]
The defendant
alleged that the plaintiff had breached the distributorship agreement
in the following respects. It refused to adjust
its pork prices
downwards in accordance with prevailing market trends. Between July
2011 and February 2013 the plaintiff increased
the margin of prices
charged to the defendant but not to Winelands Pork. From July 2012 it
refused to deliver sufficient product
for the defendant to service
his market, as a result of which the defendant was forced to purchase
pork products from Hunters Vlei,
a competitor of the plaintiff. From
June 2012 to February 2013, and with a view to putting him out of
business, the plaintiff had
unlawfully competed with the defendant by
selling pork products directly to his customers at lower prices.
[19]
As a result of the
plaintiff’s alleged breach of contract and unlawful competition,
the defendant had been overcharged in the amount
of R851 900,12
over a period of 20 months, totalling some R2.5 million. The
defendant asserted that he had suffered a loss of
profits in the sum
of R12 467 307,73 in respect of his category A clients
(those exclusively supplied by the defendant).
He inferred that he
had suffered a loss in the same amount in relation to his category B
clients (whom the defendant did not exclusively
supply).
[20]
In its plea to the
counterclaim the plaintiff admitted that it would have obtained
confidential information by virtue of the cession
of book debts, but
denied that it had unlawfully competed with the defendant. The
plaintiff also denied the defendant’s allegations
regarding breach
of contract and pleaded that the sales agreement could in any event
not continue because the parties could not reach
agreement on the
selling price of pork products.
[21]
The question of what
would happen to their business relationship and the interlinking
agreements if the parties could not agree on
a price for carcasses
was at the heart of the dispute between them. In July 2012 the
dispute about the price of some 1300 pigs that
had to be cleared out
of the plaintiff’s pens had reached an impasse, as neither side
would compromise. Around 17 July 2012 there
was a meeting at a coffee
shop in Bonnievale to resolve the impasse. Mr Johan Broodryk, the
owner of Bonnievale Abattoir, agreed
to reduce the slaughtering fee
charged to the defendant. Mr Burger, on behalf of the plaintiff, was
willing to reduce the price of
carcasses. The defendant was asked to
sell the oversupply at lower profit margins. The parties however
could not reach agreement
on the price which, the full court held,
resulted in the failure of the entire contractual scheme through no
fault of either of them.
[22]
However, before us
counsel for the defendant submitted that the parties could not reach
agreement on the purchase price because the
plaintiff had failed to
adjust its prices downwards. This, it was argued, was borne out by
the objective facts and evidence. After
the July 2012 meeting the
defendant had written to the plaintiff informing it of the prices at
which it could sell the 1300 carcasses,
to which it never received a
reply. The next thing the defendant knew, so it was submitted, was
that the plaintiff had delivered
a large amount of carcasses to the
defendant’s main customer and excluded him as the middleman, which
was ‘a planned strategy’.
[23]
These submissions
are unsound. There is no evidence that the plaintiff breached the
sales or supply agreement because it failed to
adjust prices
downwards. That much is clear from the defendant’s own evidence. He
conceded that in all the years until July 2012,
he had accepted the
prices of carcasses, even when there was no downward adjustment that
he wished for. On those occasions he had
made a loss or a very small
profit. As the defendant put it: ‘So there were times when I did
not agree and then I just tried to
deal with it’ (My
translation).
[3]
And contrary to
the defendant’s assertion, there was simply no evidence that the
plaintiff had undertaken to furnish him with written
reasons if it
was unable to adjust its prices.
[24]
The facts militate
against an inference of any planned strategy to exclude the defendant
from the contractual arrangement with the
view to taking over his
customers. Rather, the evidence shows the contrary. It was never
suggested, nor could it be, that the meeting
at Bonnievale was not a
genuine attempt to resolve the impasse on price. The defendant’s
own actions after that meeting are consistent
with his acceptance
that the parties’ business relationship had come to an end.
[25]
On 24 July 2012,
some seven days after the Bonnievale meeting – and after the
plaintiff allegedly had sold pork products to his
customer, Striker
Meats – the defendant wrote to the plaintiff as follows:
‘
Due to your
action to market pigs on your own it is very important that I must
know the following:
1.
Availability of pigs from today until the 1
st
of October.
2.
Availability from
the 1
st
October forward.
I need your urgent
reply because I have to secure my business and for future marketing.’
This letter does not
contain a hint of any breach of contract, let alone that the
plaintiff had breached the distribution agreement,
by refusing to
adjust its pork prices downwards and delivering insufficient product
to the defendant, as alleged in the counterclaim.
This, when on the
defendant’s version the supply and distributorship agreements were
still extant. The letter also says nothing
about unlawful
competition.
[26]
What is more, in a
letter to the plaintiff dated 4 September 2012, the defendant
proposed a new arrangement. He expressed his willingness
to sell all
the plaintiff’s pigs to customers at fixed prices to be agreed
upon. He suggested that certain customers be charged
a higher price
than others. In evidence the defendant conceded that this was an
attempt to conclude a new agreement with the plaintiff.
It was the
clearest indication that the defendant accepted that the parties’
contractual arrangement had terminated at the end
of July 2012. The
full court thus correctly concluded that the cancellation question,
ie whether the plaintiff had cancelled the
contractual arrangement
because the defendant had bought carcasses from a competitor, was
immaterial.
[27]
Moreover, the
attempt to conclude a new agreement was directly at odds with the
defendant’s case that the plaintiff had from ‘September
2012
onwards, in breach of the (still existing) agreement’ sold products
directly to his customers. And when he wrote the letter
of
4 September 2012, the defendant himself was delivering pork
products on behalf of the plaintiff to his former customers.
[28]
It was common ground
that there was never a fixed price and the standard according to
which the price had to be determined, had to
be market related.
Although the concept ‘market related price’ is not a precisely
defined term, it was not necessary for the
parties, in order for
their contract to be valid and not void for vagueness, to formulate a
precise mathematical criterion for the
determination of the price.
[4]
The parties had to negotiate the price for each sale. They had always
managed to reach agreement on price or, at the very least,
the
defendant accepted the price even in the absence of a downward
adjustment that he sought, until 2012, when there was a deadlock:
the
parties could not reach consensus. There was no objectively
determinable external standard or mechanism to resolve this deadlock,
such as the determination of the price by a third party.
[5]
[29]
The submission by
the defendant’s counsel that there was an external standard
according to which the price could be determined,
namely reasonable
and market related wholesale prices that followed market
fluctuations, is correct. But this was not a deadlock-breaking
mechanism. The market related price was simply a measure according to
which prices would be negotiated. It was no more than an indicator
that oriented the parties to prices at which carcasses generally were
sold in the industry: the relevant market would provide the
framework
within which the prices for carcasses in each sale would be
negotiated and determined. Put differently, the parties agreed
that
the price of carcasses would be related or connected to pork market
prices, and determined by negotiation. They did not agree
that the
price of carcasses would be charged at the prevailing market price in
the various contracts of sale, or in the event that
the parties could
not themselves agree on a price.
[30]
The defendant’s
claim for damages in contract was based on the plaintiff’s alleged
breach of the sole distributorship agreement.
The defendant claimed
that the plaintiff, utilising confidential information (obtained by
virtue of the cession of book debts), had
canvassed his category A
customers and sold pork products to them at lower prices, between the
end of June 2012 and the end of February
2013. From September 2012
onwards the plaintiff sold directly to the defendant’s category B
customers. It was argued that the plaintiff
had wilfully created the
situation in June/July 2012 so as to ‘convert’ itself to a
wholesaler, on the back and in the place
of the defendant.
[31]
When the parties
could not reach consensus on the price of carcasses in July 2012, the
contractual arrangement, and with it the sole
distributorship
agreement, came to an end. On the facts, the defendant thereafter
raised no complaint of breach of contract (or unlawful
competition)
by the plaintiff. He continued to purchase carcasses from the
plaintiff on an
ad
hoc
basis
on credit, but in lesser quantities, secured by the credit facility.
Contrary to the conclusion of the trial court, there was
nothing
‘ludicrous’ about the credit facility and the cession of book
debts continuing in existence after the termination of
the parties’
business relationship. The defendant accordingly had no enforceable
cause of action in contract.
[6]
[32]
Before us counsel
for the defendant fairly conceded that in the absence of direct
evidence of a planned strategy by the plaintiff
to exclude the
defendant as the middleman (or engineering a situation so as to
become a wholesaler), the Court was asked to draw
such an inference
from the proved facts. Given the facts stated in paragraph 24 to 26
above, and specifically the parties’ efforts
to resolve the impasse
on price in 2012 and the defendant’s attempt to negotiate a new
contract, the inference sought is neither
plausible nor readily
apparent.
[7]
Any suggestion that
Mr Broodryk, the owner of Bonnievale Abattoir, was party to a scheme
to take over the defendant’s business,
is absurd.
[33]
Regarding the
plaintiff’s claim for contractual damages, the trial court made
findings of fact that were unsupported by the evidence,
and critical
to its decision that the defendant had established liability on the
part of the plaintiff. It found that in the cession
of book debts,
the plaintiff:
‘
. . . actually
confirmed in writing that it has access to confidential information
that is of substantial value to the defendant and
in respect of which
the defendant is entitled to protection.’
The judge went on to
say:
‘
. . . I see no
reason why the plaintiff should not be held liable to that which it
agreed to in writing in this regard.’
[34]
Aside from the
defendant’s credit application, the cession of book debts was the
only written agreement concluded between the parties.
The cession
however contains no acknowledgement by the plaintiff of access to
confidential information in respect of which the defendant
was
entitled to protection. In fact, the defendant’s case was that the
plaintiff had orally agreed to non-disclosure of confidential
information: the counterclaim states that it ‘was
understood
that in the course
of the Supplier/Distributor Agreement the parties would become privy
to confidential information and operational
secrets’.
[8]
And the defendant adduced no evidence of this so-called confidential
information and operational secrets. Solely for these reasons,
the
trial court’s order that the defendant had established liability on
the part of the plaintiff was unsustainable.
[35]
There are further
reasons why the order cannot be sustained. The trial court stated
that the facts of the matter were ‘tantamount
to a restraint
agreement’, and that ‘unlawful interference in the business of
the defendant’ could ‘occur in various forms’.
It then
proceeded to apply the principles relating to restraint of trade
agreements to the contractual relationship between the parties
and
held that ‘the defendant had a protectable interest in the form of
confidential information that the plaintiff had access to’,
which
the plaintiff had breached. The judge concluded:
‘
I
thus find that the plaintiff has failed to discharge the burden of
proving that the restraints are not justified on the basis of
protecting confidential information or trade connections. The
contractual terms in the distribution agreement for the protection
of
confidential information are enforceable.’
[36]
There was of course
no onus on the plaintiff to prove any of the claims asserted in the
defendant’s counterclaim. The trial court
conflated unlawful
interference in the defendant’s business (unlawful interference
with contractual relations – a delictual claim)
with agreements in
restraint of trade. It then applied the principles in
Basson
[9]
concerning the reasonableness of a restraint of trade agreement and
came to the conclusion that the defendant had breached the sole
distributorship agreement, ie that its terms were enforceable. This
was a material error of law: there was no restraint of trade
agreement between the parties. The issue was whether the plaintiff
had breached the sole distributorship agreement or competed
unlawfully
with the defendant.
[37]
Furthermore, the
information that the defendant furnished in the cession of book debts
was not given in circumstances giving rise
to an obligation of
confidence. The cession of book debts was nothing more than a
standard security cession concluded by a debtor
buying goods from a
supplier. For such cession to be effective, the cessionary must
necessarily have access to details of the cedent’s
debtors and the
prices at which it sells goods to them in order to enforce its rights
under the agreement.
[38]
Apart from this, the
information furnished by the defendant was not confidential in
nature, having the necessary quality of confidence
deserving of
protection. The prices of pork products, the main participants in the
industry who were fiercely competitive, who their
customers were and
the prices charged by them, were all matters of public knowledge.
Indeed, the evidence shows that the defendant
had utilised this very
information, which was in the public domain, when negotiating prices
with the plaintiff in the various contracts
of sale.
[39]
What all of this
shows is that the defendant failed to prove that the plaintiff had
breached the sole distributorship agreement. The
full court rightly
dismissed his claim on this ground.
[40]
The defendant’s
alternative claim of unlawful competition can be dealt with shortly.
It was submitted that the plaintiff’s conduct
was ‘the most
classic case of unlawful interference with a contractual
relationship’, and that it wilfully created the situation
in July
2012 to become a wholesaler in place of the defendant. The latter
submission however has no basis in the evidence for the
reasons
already advanced.
[41]
In
Schultz
v Butt
,
[10]
unfair competition was described thus:
‘
As a general
rule, every person is entitled freely to carry on his trade or
business in competition with his rivals. But the competition
must
remain within lawful bounds. If it is carried on unlawfully, in the
sense that it involves a wrongful interference with another’s
rights as a trader, that constitutes an
injuria
for which the
Aquilian action lies if it has directly resulted in loss.’
[42]
Since the delict of
unlawful competition is based on the Aquilian action, the defendant
had to prove wrongfulness. It is only when
the competition is
wrongful that it becomes actionable. In
Phumelela
v Gründlingh
,
[11]
the Constitutional Court formulated the test for wrongfulness as
follows:
‘
The question is
whether, according to the legal convictions of the community the
competition or the infringement on the goodwill is
reasonable or fair
when seen through the prism of the spirit, purport and objects of the
Bill of Rights. Several factors are relevant
and must be taken into
account and evaluated. These factors include the honesty and fairness
of the conduct involved, the morals
of the trade sector involved, the
protection that positive law already affords, the importance of
competition in our economic system,
the question whether the parties
are competitors, conventions with other countries and the motive of
the actor.’
[43]
The defendant simply
failed to establish wrongfulness. The plaintiff’s conduct would
have been wrongful only if it had intentionally
induced the
defendant’s customers to breach their contract with him.
[12]
There was however no evidence as to the nature and content of any
contractual relationship between the defendant and any of his
customers.
The high watermark of his case on this score was that he
had been informed by the owner of Striker Meats that the plaintiff
had decided
to exclude the defendant from the sale of pork products,
which in any event was inadmissible hearsay evidence. In short, there
was
no factual or legal basis for the defendant’s claim of unlawful
competition.
[44]
What remains is the
submission on behalf of the defendant that the trial judge had made
‘strong and well-reasoned credibility findings’
against the
plaintiff’s main witness, Mr Burger, to which the full court was
bound. It suffices to say that the full court was
in a position to
come to a clear conclusion that the trial court was plainly wrong,
and little weight could be attached to its credibility
findings.
[13]
Regarding costs, both parties were ably represented by only senior
counsel in the trial and the appeal before the full court.
Consequently,
the costs of two counsel in this appeal are not
justified.
[45]
In the result, the
appeal is dismissed with costs, including the costs of only senior
counsel.
A SCHIPPERS
JUDGE OF APPEAL
Appearances
For
appellant:        R S van Riet SC
Instructed
by:        Dirk Kotze Attorneys,
Cape Town
Symington & De
Kok Attorneys, Bloemfontein
For respondent:
A Beyleveld SC and I Bands
Instructed
by:
Wheeldon
Rushmere & Cole Inc, Cape Town
Honey Attorneys,
Bloemfontein
[1]
Denel (Edms) Bpk v
Vorster
2004 (4)
SA 481
(SCA) para 3;
Government
of the Western Cape: Department of Social Development v C B and
Others
[2018] ZASCA
166
;
2019 (3) SA 235
(SCA) paras 19-21.
[2]
Rule 22(4) in relevant part
reads:
‘
If
by reason of any claim in reconvention, the defendant claims that on
the giving of judgment on such claim, the plaintiff's claim
will be
extinguished either in whole or in part, the defendant may in his
plea refer to the fact of such claim in reconvention
and request
that judgment in respect of the claim or any portion thereof which
would be extinguished by such claim in reconvention,
be postponed
until judgment upon the claim in reconvention. Judgment on the claim
shall, either in whole or in part, thereupon
be so postponed . . .
.’
[3]
‘
So daar is tye wat ek nie
saamgestem het nie en dan het ek dit maar probeer verwerk.’
[4]
Letaba Sawmills (Edms) Bpk v
Majovi (Edms) Bpk
[1992] ZASCA 195
;
[1993]
1 All SA 359
;
1993 (1) SA 768
(A) at 775A-C.
[5]
Compare
Letaba Sawmills
(Edms) Bpk v Majovi (Edms) Bpk
[1992] ZASCA 195
;
[1993]
1 All SA 359
;
1993 (1) SA 768
(A) at 774B-C.
[6]
Liberty Group Ltd and Others
v Mall Space Management CC t/a Mall Space Management
[2019] ZASCA 142
;
2020 (1) SA 30
(SCA) para 32.
[7]
Ocean Accident and Guarantee
Corporation Ltd v Koch
1963
(4) SA 147
(A) at 159A-D, affirmed in
Kruger
v National Director of Public Prosecutions
[2019]
ZACC 13
;
2019 (6) BCLR 703
(CC) para 79.
[8]
Emphasis added.
[9]
Basson v Chilwan and Others
[1993] ZASCA 61
;
[1993] 2 All SA 373
(A);
1993
(3) SA 742
(A) at 767F-H.
[10]
Schultz v Butt
[1986] ZASCA 47
;
[1986] 2 All SA 403
(A);
1986
(3) SA 667
(A) at 678F-H.
[11]
Phumelela Gaming and Leisure
Limited v Gründlingh and Others
[2006]
ZACC 6
;
2006 (8) BCLR 883
(CC);
2007 (6) SA 350
(CC) para 34;
Masstores (Pty)
Limited v Pick ‘n Pay Retailers (Pty) Ltd
[2016]
ZACC 42
;
2017 (1) SA 613
(CC);
2017 (2) BCLR 152
(CC) para 29.
[12]
Masstores (Pty) Limited v
Pick ‘n Pay Retailers (Pty) Ltd
[2015]
ZASCA 164
;
2016 (2) SA 586
(SCA);
[2016] 2 All SA 351
(SCA) para 22.
[13]
Bernert v Absa Bank Ltd
[2010] ZACC 28
;
2011 (4) BCLR
329
(CC);
2011 (3) SA 92
(CC) para 106.