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[2011] ZAFSHC 119
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Bridgestone SA (Pty) Ltd v SA Truck Bodies (Pty) Ltd (842/2008) [2011] ZAFSHC 119 (28 July 2011)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case no: 842/2008
BRIDGESTONE S.A (PTY) LTD
…....................................................................
PAINTIFF
And
S.A TRUCK BODIES (PTY) LTD
….............................................................
DEFENDANT
JUDGMENT BY: G KHAN, AJ
HEARD ON: 17 SEPTEMBER 2010
DELIVERD ON: 28 July 2011
JUDGMENT
[1] The Plaintiff
in
casu
instituted action against the
Defendant for payment in the sum of 1,220 256.00 rands for goods sold
and delivered for the period
1 November 2007 to 29 November 2007
(inclusive thereof). The Defendant defended the action and counter
-claimed in the sum of 4,043
326.31 rands in respect of monies due
and owing by the Plaintiff to the Defendant. The said amount arises
in consequence of an
additional rebate owing by the Plaintiff to the
Defendant in respect of fitment and alignment services ("services")
which
is charged at the rate of 70 rands per tyre. At the
commencement of the trial, I ordered a separation of the merits and
quantum
of
the counterclaim, as per the party's request. The amount owing by the
Defendant to the Plaintiff in the said sum of 1,220 256.00
rands is
not in dispute. The only issue in dispute is whether the Defendant is
entitled to an additional rebate of 70 rands per
tyre.
[2] At the rule 37 conference the parties agreed to confine the
issues of dispute as follows:
"The
parties are
ad
idem
that
the essential dispute between them is: it is common cause that the
Plaintiff has paid Defendant a discount of 200.00 per tyre
bought by
Defendant from Plaintiff and the main dispute hereof is, had it ever
been agreed that the Plaintiff would pay to the
defendant a rebate of
70.00 per tyre, in addition to the 200.00 discount, purchased from
the Plaintiff by the Defendant".
[3] It was further agreed that if it is found to have been the case,
the matter is to be postponed for the determination of the
quantum of
the counterclaim.
[4] Two witnesses testified. One, MR. STEVEN GREGORY EHLER ("EHLER")
represented the Plaintiff at the time the agreement
was concluded and
accordingly testified on behalf of the plaintiff. The other witness,
Mr. D S BOTHA ("BOTHA"), who represented
the Defendant at
the time the agreement was concluded with the Plaintiff, testified on
behalf of the Defendant. Their evidence
is substantively similar.
[5] It is common course that Plaintiff and
Defendant concluded an agreement in terms of which the Plaintiff
agreed to supply the
Defendant with tyres for the new trailers of the
Defendant. The parties agreed that the price would be inflated by
200.00 rands
per tyre and such amount will be passed on to the
Defendant. It was also not disputed that before the Defendant
acquired the interest
of Hendred Freauhauf ("Hendred"), an
associate Company of the Plaintiff, namely Maxiprest, had been
rendering a like
service to Hendred at a charge of 70.00 rands per
tyre. As the Defendant had its own staff, machinery and
infrastructure, it intended
doing the service itself and was not keen
to outsource such service to Maxiprest.
[6] It was further agreed that Maxiprest should be given an
opportunity to deliver a presentation to the Defendant with a view
to
securing the same service. Should it reach an agreement with the
Defendant, Maxiprest would be entitled to charge a fee of 70.00
rand
per tyre for such service and payment thereof would be made by the
Plaintiff directly to Maxiprest. However, should no such
agreement
transpire then the Defendant would be entitled to receive the amount
of 70.00 rand per tyre from the Plaintiff, as an
additional rebate
over and above the 200.00 rands agreed upon for such service. It is
further common cause that no agreement was
arrived at between
Maxiprest and the defendant and the service was in fact rendered by
the defendant via its own staff, machinery
and infrastructure.
[7] Counsel for the Plaintiff submitted that the
term relating to the payment of the rebate of 70.00 rands per tyre,
according to
the evidence led, was not unconditional but was subject
either to a suspensive and/or resolutive condition, namely, that the
Plaintiffs
entitlement to the 70.00 rands per tyre was subject to
Maxiprest having been afforded an opportunity to make a presentation
and
that presentation being rejected. The Plaintiff has not pleaded,
either in the summons or in its plea to the claim in convention,
the
presence of the said suspensive or resolutive condition nor was this
raised as an issue in the Rule 37 meeting.
[8] Ehlers testified that a delegation of Maxiprest attended the
premises of the Defendant in Bloemfontein to evaluate the provision
of the service but it does not appear that any presentations were
made to the Defendant. What is notable however is Botha's evidence
to
the effect that Maxiprest, after evaluating the provision of the
service, made a proposal to the Defendant which was also reduced
to
writing. Furthermore, that the Defendant did not accept the said
proposal. This evidence was not challenged by the Plaintiff
and the
probabilities favor such version. It is common cause that Maxiprest
never rendered such service to the Defendant in Bloemfontein
and it
is highly unlikely that Maxiprest would go to all the trouble of
evaluating the provision of the service in Bloemfontein
and not make
a proposal.
[9] In either event, whether no proposal was
submitted or if such proposal was submitted and declined, Maxiprest
was afforded an
opportunity to make a presentation in terms of the
agreement between the parties. It is my view that the evidence of
Ehlers and
Botha, both of whom concluded the agreement on behalf of
the parties respectively, does not support the contention of
Plaintiffs
Counsel that the payment of the 70 .00 rands per tyre was
subject to a suspensive or a resolutive condition. The evidence in
fact
points to the contrary, more particularly that such payment was
in fact unconditional
simpliciter.
It
is also consistent with the Defendant's pleadings. However Maxiprest,
who was not a party to the agreement, was afforded an opportunity
to
persuade the Defendant to make use of their proposed service but it
is clear that no such agreement materialised
[10] Counsel for the Plaintiff made great play of the fact that the
evidence of Botha in court materially contradicted his affidavit
in
the Summary Judgment Application. Close scrutiny of the evidence as
well as his affidavit does not bear out such contradiction.
In any
event, Botha provides a reasonable explanation for any possible
ambiguity. The evidence of Botha is in fact corroborated
materialy by
the evidence of Ehlers. In my view both witnesses were honest and
credible in the delivery of their respective testimony.
[11] They readily concessions when requested to do
so by the other party
inter alia
Ehlers conceded that the payment of 70 00 rands
per tyre to Maxiprest was an error because the computer was
programmed to pay it
to Maxiprest. He conceded further that if an
agreement was concluded between the defendant and Maxiprest, it would
constitute a
new agreement had to be negotiated between them, given
the costs implications for both parties.
[12] I am satisfied that Maxiprest was given an
opportunity to negotiate with the Defendant for the services,
previously delivered
to Henred in Johannesburg but that no such
agreement materialized. The said services had been provided by the
Defendant itself
via its own staff, machinery and infrastructure at
its own premises in Bloemfontein and in terms of the agreement; it
was entitled
to the fitment and alignment fees of 70.00 rand per
tyre. The question posed by the parties in the Rule 37 conference is
accordingly
answered in the affirmative. In the circumstances the
matter ought to be postponed for the determination of the
quantum
of the counterclaim.
[13] In the
premises, the following order is made:
1. In
addition to the 200.00 rand per tyre rebate, the Defendant is
entitled to a further rebate of 70.00 rands for each tyre purchased
by it from the Plaintiff from the inception of the agreement to the
termination thereof;
2.
The matter is postponed
sine die
for
the determination of the quantum of Defendant's counterclaim.
3. The
Plaintiff to pay costs.
On behalf of
the Plaintiff: Adv J B Maritz
Instructed
by:Pierre Krynau Attorneys
42 Pres Steyn, Westdene
BLOEMFONTEIN
On behalf of
the Defendant: Adv S J Reinders
Instructed
by: McTyre & Van der Post Attorneys
12 Barnes Street, Westdene
BLOEMFONTEIN