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[2011] ZAFSHC 170
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Bridgestone SA (Pty) Ltd v SA Truck Bodies (Pty) Ltd (A842/2008) [2011] ZAFSHC 170 (3 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A842/2008
In
the appeal between:-
BRIDGESTONE
SA (PTY) LTD
….................................................
Plaintiff
and
SA
TRUCK BODIES (PTY) LTD
…...........................................
Defendant
______________________________________________________
HEARD ON:
21 OCTOBER 2011
______________________________________________________
JUDGMENT BY:
JORDAAN, J
______________________________________________________
DELIVERED ON:
3 NOVEMBER 2011
______________________________________________________
[1] This is an
application for leave to appeal brought by the plaintiff against a
judgment given by Acting Judge Khan delivered
on 28 July 2011. Due to
the fact that Judge Khan’s acting appointment has expired in
the meantime, the application was heard
by me.
[2] The applicant will be
referred to as plaintiff and the respondent as defendant.
[3] It is common cause
that the plaintiff issued summons against the defendant for payment
of an amount representing the outstanding
purchase price of certain
tyres manufactured by plaintiff and sold to defendant. The
plaintiff’s claim was not in dispute,
but defendant filed a
counterclaim in excess of the plaintiff’s claim. In the
counterclaim the defendant alleged that, when
the parties originally
entered into an agreement for defendant to buy tyres from the
plaintiff, which was an oral agreement, it
was
inter alia
also
agreed that:
“
Benewens
voormelde, staan eiser ‘n verdere R70.00 per band rabat ten
aansien van die aangekoopte bande aan verweerder toe.”
[4] In its plea to the
aforesaid counterclaim the plaintiff merely denied such agreement.
During the Rule 37 conference the parties
agreed to limit the issues
for adjudication to the following as appears from the minutes of the
Rule 37 conference:
“
It is common
cause that plaintiff has paid defendant a discount of R200.00 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 R70.00 per tyre, in
addition to the R200.00
discount, purchased from the plaintiff by the defendant’.”
It was then agreed that,
should the aforesaid question be answered in favour of defendant, the
matter should be postponed for determination
of the quantum of the
counterclaim.
[5] In the opening
address on behalf of the plaintiff, counsel for plaintiff mentioned
the following:
“
Your
Ladyship would see from the minutes of the pre-trial conference there
is actually only one factual dispute to be tried by this
court and
that is whether the plaintiff had agreed to pay the defendant R70 per
tyre sold. It is actually common cause between
the parties that there
was an agreement between them regulating their business from the
beginning of 2002.”
[6] After hearing
evidence and argument on behalf of the parties, the trial court found
as follows:
“
In addition
to the R200.00 per tyre rebate, the defendant is entitled to a
further rebate of R70.00 for each tyre purchased by it
from the
plaintiff from the inception of the agreement to the termination
thereof.”
[7] The plaintiff’s
stance in the application for leave to appeal is summed up in
paragraph 6 thereof as follows:
“
6. There is
a reasonable prospect that another court might find:
6.1 The evidence was that the
undertaking by the plaintiff, to pay R70.00 per tyre, was upon the
conditional basis that Maxiprest
would first be given the opportunity
to make a proposal to the defendant and then only if the defendant
eventually rejected that
proposal;
6.2 That being so, the defendant had
not proved the
unconditional
undertaking (to pay the R70.00
per tyre) it had alleged in the particulars of its Counterclaim;
6.3 There should not have been a
finding about the fulfilment of the condition as that was not the
defendant’s case on the
pleadings;
6.4 It is exactly because the
condition and the fulfilment thereof was not pleaded by the
defendant, who bore the duty to allege
and prove both the condition
and fulfilment thereof, that the plaintiff had not presented evidence
about the proposal by Maxiprest.
Therein lies the prejudice to the
plaintiff.”
The general background
against which the matter had to be adjudicated, appears to have been
common cause. The defendant manufactured
high speed truck trailers at
its premises in Bloemfontein and bought tyres from a manufacturer for
those trailers, not being the
plaintiff who is a manufacturer of
tyres. For some time before the parties entered into negotiations,
the plaintiff sold tyres
to a similar business operating in Germiston
or Wadeville called Henred Fruehauf (Pty) Ltd who also build high
speed truck trailers
at those premises. The tyres bought from
plaintiff by Henred Fruehauf were fitted and balanced at the premises
of the last mentioned
company by a company called Maxiprest, a
subsidiary of plaintiff and for which services the plaintiff paid
R70.00 per tyre to Maxiprest.
To deliver that service, Maxiprest had
personnel and equipment at the premises of Henred Fruehauf. Shortly
before the parties started
negotiating, the defendant bought and took
over Henred Fruehauf (Pty) Ltd. Because of the aforesaid takeover, in
the words of the
plaintiff’s witness, Mr. S.G. Ehler,:
“
... I was
obviously nervous of the buyout of Henred because we were at risk of
losing a large volume of tyres which we were supplying
to Henred. At
the same time it gave me an opportunity to hopefully sell some tyres
to SA Truck and pick up the business we never
had because I think at
the time they were supporting Goodyear South Africa in Bloemfontein.”
[8] As a result of the
aforesaid, a meeting was arranged with the defendant’s
representatives, in particular Mr. D.S. Botha,
the managing director
of defendant, and, at that time also the stakeholder in Henred
Fruehauf (Pty) Ltd. This meeting was held
during about November 2001
and followed up with a meeting in January 2002. At the meeting the
plaintiff was represented by Mr.
Ehler, the aforesaid witness, and
inter alia
Mr. Botha, on behalf of the defendant, who was
present. The meeting was also attended by a representative of
Maxiprest in view
of the services rendered by the latter to Henred
Fruehauf in its Germiston factory and for which it was paid R70.00
per tyre by
plaintiff. At the meetings Mr. Botha, on behalf of
defendant, was aware of the last-mentioned arrangement, but indicated
that the
defendant fitted and balanced its tyres itself and is not
really interested in the same services being rendered by Maxiprest to
defendant. Mr. Botha rather wished the plaintiff to pay the R70.00 to
defendant for doing the same job itself. According to the
evidence of
Mr. Ehler, on behalf of plaintiff, his reaction was that, because
plaintiff worked closely with Maxiprest, he wanted
Maxiprest to have
the opportunity to come and duplicate in Bloemfontein what they were
doing for Henred Fruehauf in Johannesburg.
In his words:
“
Because as
shown in the letter, myself and Maxiprest were present at the meeting
negotiating the thing together, so it would be
unfair for me to cut
them out immediately if we were in it together. So that was the
request on my behalf, that they be given an
opportunity.”
According to him:
“
The
commitment was if they weren’t successful then the R70.00 would
be given to SA Truck Bodies.”
Then he went on to say
that basically the R70.00 which was on the table would be paid to SA
Truck Bodies and that that was an oral
agreement. According to him
that would only be the case if the proposal of Maxiprest was not
accepted by defendant.
[9] From the evidence it
is clear that Mr. Botha, on behalf of the defendant, from the outset
was not really interested in Maxiprest
supplying the same services to
defendant in Bloemfontein as they did for Henred Fruehauf in
Germiston. His stance was that the
defendant already does that
itself, has the necessary equipment and workforce to do that and that
defendant would rather receive
the R70.00 per tyre. He, however,
consented to Maxiprest being given an opportunity to make a proposal
to defendant which defendant
could either accept or refuse. It is
also clear from the evidence that there was no obligation on the
defendant to accept any such
proposal at all, notwithstanding
whatever the proposal might entail.
[10] It appears from the
evidence that the representatives of Maxiprest indeed attended the
premises of defendant in Bloemfontein
to evaluate the provision of
the services. Whether Maxiprest made any proposals to defendant,
remained in dispute. According to
defendant’s witness, Mr.
Botha, they did indeed make a proposal which was not accepted by
defendant. It was however common
cause that Maxiprest never delivered
the services to defendant at its premises in Bloemfontein, as was
envisaged in the said so-called
condition.
[11] The main thrust of
the argument on behalf of the plaintiff was that the undertaking by
defendant to allow Maxiprest to make
a proposal amounted to a
suspensive condition to defendant’s entitlement to the R70.00
per tyre rebate. According to the
argument the defendant should have
pleaded that condition and should have also pleaded whether the
condition was fulfilled or not
before it became entitled to payment
as claimed. According to the argument, the defendant did not plead
such condition nor plead
or prove that Maxiprest made a proposal
which was rejected, entitling defendant to the said rebate. Since
defendant did not plead
such condition and the fulfilment of
non-fulfilment thereof, it was precluded from relying on evidence to
that effect. The trial
court therefore erred in either finding that
the condition has been fulfilled in that a proposal was made by
Maxiprest and not
accepted by defendant or alternatively, in finding
that the agreement was in effect unconditional and that plaintiff was
therefore
liable for the said rebate since the inception of the
agreement, so the argument went.
[12] Viewed against the
background circumstances as aforesaid, I am not convinced that the
proposal by Maxiprest and the acceptance
of refusal thereof
constitutes a suspensive condition if a condition at all. Although
termed a rebate by the parties, the R70.00
per tyre appears not to
have been a rebate but indeed a fee for fitting and balancing, etc.
of each tyre bought. At the time the
agreement was entered into, it
was clear that Maxiprest would need some time to evaluate the
circumstances at the defendant’s
premises and to make a
proposal regarding those services. In the meantime the defendant
would start buying tyres from the plaintiff,
those tyres have to be
fitted and balanced and whatever needs to be done had to be done
until Maxiprest had the opportunity of
evaluating the circumstances
and making a proposal. Until that happened, the defendant would do
that itself for each tyre bought
from the plaintiff. If Maxiprest
thereafter or at any stage made a proposal to plaintiff and the
proposal is not accepted, the
status quo
would just continue
and defendant would have been entitled to the R70.00 per tyre. If a
proposal by Maxiprest was accepted by plaintiff,
that would rather be
a resolutive condition terminating the defendant’s entitlement
to payment of the said amount per tyre.
The resolutive condition
would then only be fulfilled once the defendant accepts a proposal
from Maxiprest and if not it would
never be fulfilled. In such
circumstances, where the resolutive condition has not been fulfilled,
the defendant was entitled to
plead and prove only the agreement
without the necessity of pleading a resolutive condition and the
non-fulfilment thereof. See
R.H. Christie:
The Law of Contract in
South Africa
, 5
th
Edition, page 140 where the
following is, in my view, correctly stated:
“
A party
claiming on a contract subject to a condition precedent must plead
and prove the condition and its fulfilment. No doubt
the same applies
in the case of a resolutive condition, in the sense that a party
whose claim depends upon the fulfilment of the
condition must plead
and prove the condition and its fulfilment, but a party whose claim
arises because the condition has not been
fulfilled is simply
claiming on the contract and there seems no good reason why he should
refer to the condition.”
[13] In the present
matter it was the plaintiff that tendered evidence referring to the
so-called condition and the fact that the
proposal, if any, of
Maxiprest, has not come to fruition at any stage. To argue, in those
circumstances, that defendant is precluded
from relying on that
evidence, appears to be highly technical and indeed opportunistic.
What is more, if the said undertaking to
allow Maxiprest to make a
proposal constituted a condition at all, it is clear from the
evidence that the said condition was dependent
upon the defendant’s
unlimited discretion whether to accept or refuse such proposal. This
amounts to a pure potestative condition
and is void in any event.
[14] In the result I am
not convinced that there are any reasonable prospects of success and
the application for leave to appeal
is refused with costs.
_______________
A.F. JORDAAN, J
On behalf of plaintiff:
Adv. J.D. Maritz SC
Instructed by:
Pierre Krynauw Attorneys
c/o Vermaak en Dennis
Attorneys
BLOEMFONTEIN
On behalf of defendant:
Adv. S.J. Reinders
Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
/sp