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[2020] ZASCA 156
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SA Airlink v SAA (SOC) Limited and Others (238/2020) [2020] ZASCA 156 (30 November 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 238/2020
In
the matter between:
SA
AIRLINK (PTY)
LTD APPELLANT
and
SOUTH
AFRICAN AIRWAYS
(SOC)
LIMITED
(in
Business
Rescue) FIRST
RESPONDENT
LESLIE
MATUSON N.O. SECOND
RESPONDENT
SIVIWE
DONGWANA N.O. THIRD
RESPONDENT
Neutral
citation:
SA
Airlink v SAA (SOC) Limited and Others
(238/2020)
[2020] ZASCA 156
(30 November 2020)
Coram:
MAYA P, DAMBUZA, VAN DER MERWE,
MAKGOKA, and SCHIPPERS JJA
Heard
:
4 September 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal 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 10H00 on 30 November
2020.
Summary:
Company Law –
b
usiness rescue
– revenue received by first respondent shortly prior to being
placed under business rescue – appellant
precluded from
instituting legal proceedings against first respondent (in business
rescue) for recovery of such revenue
without
the consent of the business rescue practitioners or
leave
of the court – revenue a debt owed by first respondent to the
appellant and not property of appellant – appeal
dismissed with
costs.
ORDER
On
appeal from:
Gauteng
High Court,
Johannesburg
(Kathree Setiloane J sitting as
court of first instance):
The
appeal is dismissed with costs, including th
e
employment of two counsel.
JUDGMENT
Dambuza JA (Maya P, Van der Merwe, Makgoka, Schippers
JJA concurring)
Introduction
[1]
The issue in this appeal is whether certain moneys paid to the
first respondent, South African Airways (SOC) Limited (SAA),
prior to it being placed under business rescue, should be released to
the appellant, South African Airlink (Pty) Limited (Airlink).
Airlink appeals against an order of the Gauteng High Court,
Johannesburg, (Kathree-Setiloane J) (high court), in terms of
which its application for an order that the moneys in question be
paid to it was dismissed. Th
e
appeal is with the leave of the
high court.
Background
[2]
For almost 20 years prior to 5 December 2019, Airlink and SAA
conducted their businesses as air transportation providers in
alliance with each other. Their relationship was founded on an
Alliance Agreement which formed the framework within which several
other agreements, the operational agreements, comprising two
licence agreements
[1]
and a Commercial Agreement, regulated their operations.
[3]
Of specific relevance to this appeal were the parties’
obligations under the Commercial Agreement. This agreement regulated
matters such as the agreed spheres of operation, routes and flight
scheduling, use by Airlink of SAA’s computer software,
marketing, communications, public relations and sales obligations.
[4]
Under the Licensing and Commercial Agreements Airlink was granted a
licence to use SAA’s ‘SA8 designator’
[2]
and related intellectual property at a basic fee and a continuing
royalty of one percent of Airlink’s flown revenue.
[3]
In terms of th
e
Commercial
Agreement, Airlink’s passengers could book and pay for their
flights through SAA’s ticket booking and revenue
collection
platforms. SAA would then remit to Airlink, periodically, the moneys
received for the Airlink ticket sales, less commissions
and fees due
to SAA, as well as levies
,
charge
s
and taxes collected by SAA
,
for which Airlink was liable to the
Civil Aviation Authorities.
[5]
During each month passengers could book and pay for Airlink tickets
through SAA operated systems.
[4]
SAA would only pay over to Airlink the revenue received for these
ticket sales on the 7
th
working day of the following month. Thereafter, on the 15
th
working day of the month, SAA would pay to Airlink the balance
between the revenue paid on the 7
th
day and other moneys which would have been processed for the given
month of operation.
[5]
To ameliorate the cash flow constraints that would be occasioned by
Airlink whilst waiting for SAA to account and pay over moneys
received by it for tickets sold in a specific month
,
SAA would make a prepayment to
Airlink of an amount computed on an advance sales formula.
[6]
[6]
On 5 December 2019
,
SAA was placed under business rescue
in terms of s 131(4)
(a)
of the Companies Act 71 of 2008 (the Act). The second and third
respondents, Mr Matuson and Mr Dongwana, were appointed on 5 November
2019 and 17 November 2019, respectively, as joint business rescue
practitioners for SAA as provided in s 129(3
)(b)
of the Act.
[7]
It was not in dispute that prior to being placed under business
rescue SAA had received moneys for Airlink tickets sales conducted
during November 2019 up to 5 December 2019.
[7]
On 6 December 2019, a day after being placed under business rescue,
SAA transmitted to Airlink a statement of account in respect
of a
‘prelim[inary] payment’ that was due to Airlink on 10
December 2019, that being the seventh working day in respect
of the
revenue received during November 2019.
[8]
It appears that prior to 5 December 2019 SAA’s impending
business rescue or its perilous financial state had been
discussed between the parties. In a letter dated 10 December 2019,
headed ‘Proposal regarding restructure of alliance
relationship’,
Airlink, through its
Chief Executive Officer and
Managing Director, Mr Rodger Foster, referred to
a
proposal that Airlink had made to SAA’s
Board Implementation Committee on 8 November (2019), to
which SAA had
not responded. Having expressed concern about the risk
to it as a result of SAA being placed under business rescue, Airlink
gave
SAA six
months’
notice of cancellation of the Alliance Agreements. The effective date
of cancellation would be 10 June 2020.
[9] In the letter Airlink proposed that:
‘
. . .
the
franchise system be restructured as a code share agreement whereby
Airlink - operated flights can still be booked through the
SAA –
operated SA8 system as allocated to Airlink but will also be
available on the Airlink operated 4Z system.’
At
the same time Airlink reserved its right to claim moneys due by SAA
to it under the Alliance Agreement.
[10]
On 11 December 2019, Airlink gave SAA seven days within which to pay
the moneys accounted for in the statement of account dated
6 December 2019, failing which it would terminate the
Alliance Agreements without further notice. However, on the same
day
Airlink revoked the summary termination. An ‘Ad Hoc Agreement’
was reached that the Alliance Agreements would remain
in force ‘until
terminated in accordance with their own terms and [would] be complied
with by the parties subject to the
provisions of the Ad Hoc Agreement
and the provisions of Chapter 6 of the
Companies Act&rsquo
;. The main
feature of the Ad Hoc Agreement was that SAA would immediately make
payment to Airlink in respect of flown revenue received
for the
period 6 to 11 December 2019 and would, thereafter, make daily
payments in respect of flown revenue received on each day
from 12
December 2019. On 13 December 2019, SAA generated a statement in
respect of moneys due to Airlink in respect of unflown
revenue
[8]
for May 2018.
[11]
Throughout the negotiations and the ultimate re-arrangement of their
business relationship subsequent to the business rescue,
SAA and
Airlink disagreed on whether Airlink was entitled to payment of the
November-early December 2019 ticket sales revenue (that
is,
the
revenue received by SAA for
Airlink ticket sales during the accounting period immediately
preceding the commencement of business
rescue). In a letter to SAA
dated 17 December 2019, Airlink rejected the position
adopted by the second respondent, who
was the only business rescue
practitioner appointed for SAA at the time, that the revenue
constituted a pre-commencement debt owed
by SAA and could
,
therefore
,
not be paid to Airlink.
Airlink
maintained
that this
revenue was not a
‘debt owed’ by SAA as envisaged in s 154(2) of the
Act. Consequently, Airlink considered itself
entitled to immediate
payment of the moneys.
[12]
On 18 December 2019, SAA provided Airlink with a reconciliation
statement in relation to the November-early December flown
ticket
sales revenue, showing that R430 000 838.80 had been
payable to Airlink for the pre-commencement period. Airlink
disputed
the correctness of this amount. On 17 January 2020, Airlink launched
an urgent application against SAA in the high court
seeking to
recover the November-early December revenue, the amount set forth in
the 18 December 2019 statement of account
and
the
unflown
revenue.
The high court proceedings
[13]
As forewarned in the correspondence that preceded the high court
application, the relief sought by Airlink was premised on
SAA having
held the claimed revenue as an agent of Airlink. The argument was
that in relation to ticket sales and revenue collection,
the business
relationship between SAA and Airlink was that of agency, because SAA
had an obligation to pay the funds to Airlink
after deduction of
commission, royalties and service charges.
[14]
The high court rejected Airlink’s agency argument. It found no
evidence to support the contention that the funds belonged
to Airlink
and were held by SAA on behalf of Airlink. That court also found that
in terms of Clause 12.2 of the Commercial Agreement,
agency was
expressly excluded from the business relationship between SAA and
Airlink, except where the Alliance Agreement specifically
provided
for it. The court concluded that the relationship between the parties
was rather that of debtor and creditor. It further
held that Airlink
had not made out any case for the lifting of the moratorium imposed
under s 133(1) of the Act on legal proceedings
against companies
placed under
business
rescue.
Issues on appeal
[15]
Airlink’s appeal was grounded on the same three issues that it
had raised with SAA in its pre-litigation correspondence.
Firs
t
,
that SAA held the revenue received for Airlink ticket sales as the
latter’s agent
and therefore it was
Airlink’s own money
.
Secondly, that even if the revenue was a debt owed by SAA, such debt
arose only after commencement of the business rescue and
thus could
not be compromised in terms of s 154(2) of the Act. Thirdly, that
because
(
subsequent
to commencement of business rescue
)
SAA had elected to abide by the
Alliance Agreement, it was not open to it to raise the s 133
moratorium as a defence to a claim
for performance of its contractual
obligations.
Discussion
[16]
The starting point is the position articulated in s 133(1) of
the Act which imposes a moratorium on legal proceedings
against
companies during business rescue. The section also sets out the
limited circumstances in which that moratorium may be lifted
and
legal proceedings
,
may
be brought or persisted with against a company which is under
business rescue. The section provides:
‘
133 General moratorium on legal
proceedings against company-
(1) During business rescue proceedings no legal proceeding, including
enforcement action, against the company, or in relation to
any
property belonging to the company, or lawfully in its possession, may
be commenced or proceeded with in any forum except-
(a)
with
the written permission of the practitioner;
(b)
with
the leave of court and in accordance with any terms the court
considers suitable;
(c)
as
a set-off against any claim made by the company in any legal
proceedings, irrespective of whether those legal proceedings
commenced
before or after the business rescue proceedings
(d) criminal proceedings against the company or its directors or
officers;
(e) proceedings concerning any property or right
over which the company exercises
the
powers
of a trustee; or
(f) proceedings by a regulatory authority in the
execution of its duties after written notification to the business
rescue practitioner.’
[17]
In its application before the high court Airlink accepted that once
SAA was placed under business rescue on 5 December 2019,
no
legal proceedings could be initiated against it. To this extent, in
prayer 2 of its notice of motion it sought the leave of
court, as
provided in s 133(1)
(b),
to enforce its claim against SAA. However
,
it went on to assert the reasons why
the moratorium did not apply in respect of the claimed revenue. It
therefore
did
not
lay any
basis for leave to institute the proceedings.
[18]
Clearly, the general moratorium on legal proceedings imposed in terms
of s 133(1) becomes applicable immediately on commencement
of
business rescue and endures until
business
rescue
ceases. The intention
of the provision is to cast the net as wide as possible in order to
include any conceivable type of action
against the company
which is under business rescue
.
[9]
The moratorium is necessary for the effectiveness of the business
rescue procedure. As this court held in
Cloete
Murray and Another
:
[10]
‘
It is generally accepted that a moratorium
on legal proceedings against a company under business rescue, is of
cardinal importance
since it provides the crucial breathing space or
a period of respite to enable the company to restructure its affairs.
This allows
the practitioner, in conjunction with the creditors and
other affected parties to formulate a business rescue plan designed
to
achieve the purpose of the process. . . .’
[19]
Legal proceedings may
therefore be brought against a company under business rescue only in
the circumstances set out in s 133(1)
(a
)-
(f)
of the Act. The moratorium is applicable in respect of all legal
proceedings against a company in business rescue. A distinction
between pre- and post-commencement causes is irrelevant to the
moratorium.
[11]
[20] The factors relevant in determining whether it is
appropriate to lift the moratorium are case specific. However, as
Boruchowitz
J held in
Arendse and Others v Van der Merwe and
Another NNO
, regard will always be had to the following:
‘
(a) The effect that the grant or refusal of
leave would have on the applicants’ rights as opposed to other
affected persons
and relevant stakeholders; (b) the impact that the
proposed legal proceedings would have on the wellbeing of the company
and its
ability to regain its financial health; and (c) whether the
grant of leave would be inimical to the object and purpose of
business
rescue proceedings as set out in sections 7
(k)
and 128
(b)
of the Act’.
[12]
[21]
Airlink’s stance in the court a quo and in this
C
ourt
was that s 133(1) is inapplicable in this case. Its application
therefore fell to be dismissed on this ground alone. Nevertheless,
I
shall proceed to consider briefly the
grounds
on which Airlink relied in its attempt to evade the moratorium
.
The agency argument
[22] Airlink contended that the revenue in question was
not a debt as provided in s 154(2) of the Act. That section provides:
‘
154 Discharge of
debts and claims
:
(1) . . .
(2) If a business rescue plan has been approved and implemented in
accordance with this Chapter, a creditor is not entitled to
enforce
any debt owed by the company immediately before the beginning of the
business rescue process, except to the extent provided
in the
business rescue plan.’
The
essence of Airlink’s argument in this regard was that when SAA
sold Airlink tickets it did so as Airlink’s agent.
Therefore,
the proceeds of such sales belonged to Airlink and SAA only held them
on behalf of Airlink. It was therefore not claiming
a ‘debt’
as envisaged in s 154(2) of the Act. Instead
,
the revenue claimed was Airlink’s
property which SAA was holding unlawfully.
[23] This contention is unsustainable. As the high court
highlighted, clause 12.2 of the Commercial Agreement excluded
agency
in the relationship between SAA and Airlink. The clause
stated:
‘
The relationship between the Parties shall
be as independent contractors, and accordingly no provision of this
Agreement shall constitute
any partnership or agency between the
Parties, and neither Party shall have any authority to bind the other
Party to third persons,
save as may be expressly provided to the
contrary herein or in the Alliance Agreement’.
[24]
The question is whether there were any contractual provisions that
expressly provided that the relationship between the parties
was one
of agency. The high watermark of Airlink’s contention in this
regard was the provision in the Commercial Agreement
which provided
that SAA would be entitled to a sales commission similar to that
earned by travel agents in respect of Airlink ticket
sales transacted
on SAA platforms.
[13]
It suffices to say that this provision clearly d
id
not expressly provide for agency.
This is borne out by the context of the agreements between the
parties. Nothing in the relationship
between SAA and Airlink
resembled agency. SAA never acted as a ‘representative’
of Airlink. The high court was correct
in describing the nature of
the business relationship between SAA and Airlink as that of mutual
support. Clause 7 of the Commercial
Agreement provided that for the
duration of the agreements SAA and Airlink would provide each other
with the support set out in
the appendices to that contract on the
terms and conditions set out therein.
[25]
The high court
also
correctly
had regard to the fact that SAA had no obligation to deposit the
revenue received in respect of Airlink tickets sales
in a separate
bank account and to hold it in trust, as Airlink’s property or
on its behalf. There was no evidence that SAA
dealt with revenue
received for Airlink’s ticket sales differently from the manner
in which it dealt with its own moneys.
On the contrary
,
the evidence showed that the revenue
was held by SAA’s bankers on behalf of SAA together with all
its other revenue. For these
reasons the contention by Airlink that
the ticket sales revenue was not a debt owed to must fail.
Was
the debt a pre
or
post business rescue debt?
[26]
As I have said, Airlink argued in the alternative that the debt
became owing after the commencement of the business rescue
proceedings. It presumably intended to rely thereon that the debt
could not be compromised in the business rescue plan to be approved
and that
t
he
provisions of s 154(2) would not bar the claim during business
rescue. However, when the application was launched no business
rescue
plan had been published, let alone voted on.
[27]
This contention is untenable for the further reason that once SAA
received the funds for Airlink ticket sales an obligation
immediately
arose for it to account in respect thereof to Airlink on the agreed
date. In this way, on receipt thereof the funds
became a debt owed by
SAA to Airlink which would be due for payment as per agreement
between the parties.
[28]
Airlink’s argument that, because the accounting statement in
relation to the November revenue was only generated on 6
December
2019, a day after the commencement of business rescue, the revenue
was a post commencement debt, was misconceived.
It was submitted
on Airlink’s behalf that SAA’s debt to Airlink only arose
when the statement was rendered and the
debt became enforceable at
the instance of the creditor. For this contention, Airlink relied,
among other authorities, on
Eravin
Construction CC v Bekker NO and Others
.
[14]
This reliance was misplaced.
[29] In
Eravin
a business plan had been approved
and implemented and this court was concerned with whether certain
payments made by a company in
liquidation to Eravin, which had since
been placed under business rescue, were void dispositions and
therefore recoverable from
Eravin in terms of s 341(2) of the
Companies Act 61 of 1973. The payment was made on 21 October
2010 and, being void,
its repayment was immediately owed by
Eravin
whose business rescue commenced on 26 September 2012. It was in this
context that this Court considered the meaning of ‘debt
owed’
within the context of s 154(2) of the Act and held that the payment
(being the debt owed), could not be recovered,
as it was owed prior
to 26 September 2012. This Court then distinguished between
moneys ‘payable’ and moneys
‘owed’, and held
that:
‘
[Section 341(2)] states expressly that a
disposition in the terms contemplated by it “shall be void”.
The recipient
has no right, on this account, to retain it.
Consequently, it owes a debt to the body which made the prohibited
disposition, and
that debt is owed as soon as the disposition was
received.’
Eravin
is therefore no authority for
Airlink’s contention that the revenue received by SAA could
only be owed when it became due
for payment.
[30]
Equally unsupportive of Airlink’s case are two other decisions
on which it relied, namely,
Trinity
Asset Management (Pty) Ltd v Grindstone Investments
[15]
and
Standard Bank of
South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and
Another.
[16]
There
,
the
Constitutional Court and this Court, respectively, were not concerned
with the question of when a debt became owed. The issue
in both
decisions
was
when a debt became due and payable for determination of prescription.
SAA’s election to abide by the pre-business
rescue agreements.
[31]
Ai
r
link
contended that SAA was bound by its election to abide by the Alliance
Agreement and was therefore precluded from seeking refuge
under
s 133(1). There is no merit in this contention. On Airlink’s
case SAA was in breach of the Alliance Agreements
by refusing to pay
the money in question. Therefore an election to abide by the
agreement was not open to it.
[17]
The option would only be open to Airlink as the innocent party. It
is, in any event, not correct that SAA had opted to abide by
the
terms of the original Alliance Agreements. As stated earlier, after
the commencement of business rescue SAA and Airlink concluded
an ad
hoc agreement in terms of which SAA would remit to Airlink, on a
daily basis, the moneys received in respect of Airlink’s
ticket
sales after the start of business rescue. This was an interim
arrangement designed to limit the adverse impact of SAA’s
business rescue on Airlink. Its terms differed materially from the
terms of the Alliance Agreements and the Commercial Agreement.
[32] For all these reasons Airlink’s appeal must
fail. Consequently:
The
appeal is dismissed with costs
,
including the costs of two counsel.
________________________
N DAMBUZA
JUDGE
OF APPEAL
Appearances:
For
Appellant:
A R Bhana SC (with him
J P V McNally SC and L M Spiller)
Instructed
by:
Webber Wentzel Attorneys,
Johannesburg
Symington & De Kok, Bloemfontein
For
the First
Respondent:
J M Suttner SC (with him J E Smit)
Instructed
by:
Edward Nathan Sonnenbergs,
Johannesburg
Matsepes Inc
.
Bloemfontein.
[1]
The Licence Agreement and the
Licence Agreement Africa.
[2]
Defined in the licencing
agreement as the ‘SA designator “SA”’.
[3]
Clause 1 of the Commercial
Agreement.
[4]
Clause 6 in Appendix 3 to the
Commercial Agreement provided as follows:
‘
6
TICKETING
6.1
SAA will provide customers who wish to travel on Airlink scheduled
flights,
ticket services at all airport and off-airport SAA
worldwide ticketing locations. SAA will issue such tickets on SAA
stock. Similarly
Airlink will provide customers wishing to travel on
SAA scheduled flights, ticket services at all airports where Airlink
is not
handled by SAA, all subject to the following conditions:
6.1.1 Airlink will
update SAAFARI on a daily basis on all manually issued tickets, to
provide
a proper electronic sales report to enable SAA to account
for such transactions in its general ledger. Totals of sales, cash,
credit and debtor’s transactions will be faxed to the SAA Head
Office on a daily basis, in a format agreed from time to
time.
. . . .’
[5]
This was regulated in clause
8 of the Commercial Agreement as follows:
‘
8
REVENUE ACCOUNTING
8.1
SAA will provide Revenue Accounting and Ticket Audit functions for
Airlink’s
sales transactions. In order to allow Airlink to
reconcile its revenues, SAA will provide monthly electronic
transfers to Airlink
on all Airlinks’ Revenue Accounting and
Ticketing data, including, but not limited to, ticket data, sales
data, prorates
data, BSP data, etc.
. . .
8.13 Payments
by SAA to Airlink with respect to all Airlink tickets lifted and
processed
by SAA shall be made on the basis that a prepayment shall
be established and made by SAA to Airlink based on the following
principles:
8.13.1 . . .
8.13.2 Payment in respect of
Airlink tickets flown will be paid on the 7
th
working day
of the relevant month.
8.13.3 Payment in respect of
the balance between the above and revenue that has been processed
for the
given month of operation will be paid over on the 15
th
(fifteenth) working day of the following month by direct bank
deposit.
8.13.4 Earned revenues shall
include Airlink’s lifted coupons, MCO’s and excess
baggage. SAA
has the right to offset from amounts paid to Airlink
any amounts due to SAA.
. . . .’
[6]
Clause 8.13.1 of the
Commercial Agreement stipulated that: ‘SAA will provide
Airlink with a loan equal to advance sales
as per the formula laid
out in Appendix 11. It is agreed that the amount advanced to Airlink
will be revised at monthly intervals,
with the first period starting
on 01 September 1999’.
[7]
The amounts owing were in
dispute. However that is not relevant to the issues before us.
[8]
These are moneys held by SAA
in respect of air tickets whose owners had failed to present
themselves for their respective flights.
In this regard SAA’s
policy was different from Airlink’s in that with SAA the
customer could still re-use his or
her ticket for some time after
the originally booked flight, depending on the rules applicable to
the ticket. If the customer
failed to use the ticket within the
stipulated period the money attached to the ticket would be released
to revenue. In practice
SAA would raise a liability once a customer
failed to present him or herself but would only release the funds to
Airlink after
18 months. This was so even though Airlink’s
rules provided that a customer had no right to re-use the ticket and
the money
became forfeited immediately when a customer failed to
present herself.
[9]
PM Meskin and JA Kunst
Insolvency Law
(1994) para 18.6.
[10]
Murray NO and Another v
FirstRand Bank Ltd t/a Wesbank
[2015] ZASCA 39
;
2015 (3) SA 438
(SCA) para 14.
[11]
To this extent, this court in
Shamla Chetty t/a
Nationwide Electrical v Hart NO and Another
[2015]
ZASCA 112
;
2015 (6) SA 424
(SCA) para 35 has held that the term
‘legal proceedings’ applies even to proceedings before
arbitral tribunals and
that such proceedings may only be brought
with the consent of a business rescue practitioner or with the leave
of court.
[12]
Arendse and Others v Van
der Merwe NO And Another
[2016] ZAGPJHC 292 (GJ);
2016 (6) SA 490
(GJ) para 28 as cited in
Meskin
;
supra
note 9 at 18.6.
[13]
Clause 6.1.4 of Appendix 3 provided that : ‘AIRLINK will be
entitled to normal sales commission for the sales made on SAA
schedules services at any airport stations or office handled by
AIRLINK, similar to a travel agent. Similarly, SAA will be entitled
to any sales commission for the sales made on the AIRLINK scheduled
services at any airport stations or office handled by SAA,
similar
to a travel agent.’ Further, clause 8 in the same appendix
provided as follows, in part:
‘
8.17 On all tickets flown on Airlink flights,
Airlink will pay SAA the actual agents commission paid on the
tickets relative to
the flown Revenue that accrues to Airlink.
8.18 SAA will pay Airlink any sales commission due on
sales made on behalf of SAA in the offices of Airlink. Similarly,
Airlink
will pay SAA any commission due on sales due made on behalf
of Airlinkin SAA offices.’
[14]
Eravin Construction CC v
Bekker NO and Others
[2016] ZASCA 30
;
2016 (6) SA 589
(SCA) para 21.
[15]
Trinity Asset Management
(Pty) Ltd v Grindstone Investments 132 (Pty)
Ltd [2017] ZACC 32; 2018 (1) SA 94 (CC).
[16]
Standard Bank of South
Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and Another
[2016] ZASCA 91; 2017 (1) SA
185 (SCA).
[17]
G B Bradfield
Christie’s
Law of Contract in South Africa
7 ed (2016) at 639.