THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 16343/2021
In the matter between:
QUALITY MEDICAL SUPPLIES (PTY) LTD Plaintiff
and
MEDICAL DIAGNOSTECH (PTY) LTD Defendant
REASONS IN TERMS OF RULE 49(1) ( c)
RK PARKER AJ
Introduction
[1] In this matter , the parties , concluded an agreement in terms of which the
defendant will manufacture , sell and deliver surgical scrub to the plaintiff. Due to the
defective and poor quality of the surgical scrub , the plaintiff claimed a refund in the
amount of R1 081 068.08 , together with transportation costs in the amount of
R 123 912.50 of which the latter claim was withdrawn .
[2] Defendant delivered a counterclaim in the amount of R500 000.00 for the
purchase of raw materials which it incurred to manufacture the plaintiff’s products;
however , this claim was also withdrawn .
Issues for determination
[3] The issues for determination , were:
3.1 The terms of the agreement between the parties.
3.2 Who provided the formula for the manufacturing of the products ?
3.3 Whether there was an agreement to modify the formula for the
manufacturing of the product.
3.4 If there was such an agreement, who was responsible for the costs of
the modification
3.5 Any direct or indirect consequential loss or damage caused by the
defective product and the defendant’s liability if there was.
3.6 The terms of the credit notes iss ued by the defendant to the plaintiff.
3.7 The plaintiff’s refusal to accept the replacement of the returned
products by the defendant.
3.8 The quantum of the plaintiff’s claims.
Common cause facts
[4] The locus standi and jurisdiction were not in issu e. It was common cause that
in July 2020 the plaintiff represented by Shanton Naicker (hereinafter referred to as
“Naicker”), and the defendant represented by Ashley Uys concluded an agreement.
On 16 July 2020 plaintiff paid an initial deposit of R50 000.0 0. The plaintiff approved
samples delivered by defendant to it. On 29 July 2020 the plaintiff placed an order
for 35000 units of skin disinfectant and 45000 units of surgical scrub to a total value
of R2 656 500.00. On 31 July 2020 plaintiff paid the defen dant an amount of R1 328
250.00 representing a 50% deposit of the amount of the purchase order.
Subsequently plaintiff made two further payments to the defendant in the amount of
R 472 606.00 on 8 September 2020 and R805 644.00 on 20 October 2020.
Defendant agreed to replace free of charge any products found to be defective by its
laboratory. Between August 2020 and March 2021, the plaintiff returned 22099 units
of the surgical scrub to the defen dant.
[5] At the conclusion of plaintiff’s case, defendant brought an application for
absolution from the instance. Both parties duly delivered their heads of argument,
and the absolution of the instance was granted on 28th February 2025 , in favour of
the defendant with the plaintiff to be ar the defendant's costs of suit on a party and
party scale including the costs of counsel where so employed .
[6] On 7 March 2025 plaintiff sought reasons for the order handed down on 28
February 2025 in terms of Rule 49(1)(c ). What follows are therefore the reasons for
the order.
[7] For the sake of convenience the parties shall be cited as named in the main
action.
[8] Plaintiff based its claim on a single oral agreement concluded betw een the
parties' respective representatives during July 2020 , inter alia , for the following:
8.1 defendant will manufacture , sell and deliver goods to w it, 70% alcohol
skin disinfectants and Chlorhexidine gluconate 4% solution (surgical
scrub)
8.2 the surgical scrub would conform to similar products used in the
market , both in appearance and quality, namely a thick liquid pink in
colour that foams once used
[9] Defendant delivered samples of the surgical scrub to plaintiff who was
satisfied and accordi ngly approved the samples , resulting in the 29 July 2020 order .
[10] Plaintiff pleaded that after it transported and delivered the surgical scrub to its
client ’s in, inter alia Mpumalanga, plaintiff received complaints that the product was
defective , more particularly the scrub was of poor quality, was watery, began to
change colour and with the last batch, had a foul odour .
[11] About 22 099 units of products were returned to defendant , for which the
plaintiff was furnished with credit notes on 23 March 202 in the amount of R96 000
and on 31 March 2021 , in the amount of R614 987.80, respectively . These being the
credit notes issued by defendant to plaintiff. It is not to be confused with credit notes
issued by plaintiff to its clients.
[12] Plainti ff did not wish to conduct any further business with defendant and
demanded the refund in the amount of R 1 081 086.08 .
[13] Defendant argues that plaintiff did not allege any breach of contra ct in its
particulars of claim, instead, relied upon a single oral agreement and argued that its
claim was in respect of a breach of agreement between the parties.
Sample A
[14] Plaintiff called one witness , namely Mr. Naicker, who testified that the first
sample referred to as sample A , which was sent during July 2020, was approved by
the plaintiff , thus and after delivery of the agreed product, defendant had complied
with its obligations in terms of the July 2020 agreement to plaintiff. Naicker's
testimony was that the plaintiff was not satisfied with it, resulting in the plaintiff
returning it.
Sample B
[15] Plaintiff request ed defendant to modify the product , which according to
defendants, is a further agreement which the defendant argued is agreement
number two, which, the plaintiff has not pleaded in its particulars of claim. This
caused defendant to have developed three more samples containing foaming agent
concentrations of 5 %, 8% and 10% respectively. This batch was sent to plaintiff
during September 2020 , which was referred to as sample B. Yet again, these
samples di d not measure up to plaintiff’s satisfaction .
Sample C
[16] This caused defendant to have developed a 9% foaming agent referred to as
sample C , which was accepted by plaintiff. The stock in the possession of the
plaintiff during October 2020, was returned to the defendant in order to modify it in
accordance with sample C.
New terms and conditions
[17] However, of importance, on 30 October 2020 defendant provided plaintiff with
new terms and conditions for the plaintiff ’s acceptance , which terms were duly
accepted by the plaintiff. On 6 November 2020 a sample was provided by defendant
to plaintiff modified from the stock that had been returned to it intended to conform
with sample C , this, Naicker specifically conveyed to plaintiff's clients and was
exactly the same composition as sample C which plaintiff had previously approved.
Despite acceptance of the sample this too was then rejected by plaintiff on the basis
that the latest complaint it had received from its clients were that the product “does
not make a proper lather and tha t it was not very soapy.”
Sample D
[18] This resulted in yet a further sample D being modified , which sample was
once again accepted by the plaintiff ; however, it was also followed with a rejection on
12 April 2021 , alleging that the product had gone off , prompting the plaintiff in
demanding the return of the amount claimed in the amount of R 1 081 068.08 .
Two distinct agreements
[19] Defendant argued tha t it appeared that there were two distinct agreements
the plaintiff had, namely, one with the defendant , and then one with its clien t. The
latter, as conceded by Naicker , was that the plaintiff ’s clients was not part of the
agreement in respect of the supply o f the scrub. Defendant duly fulfilled its obligation
when the plaintiff , on its own version , was satisfied and approved the sample . At this
juncture once the sample has been approved, defendant argued, that it has fulfilled
its obligation towards plaintiff who was the only party it contracted with. The
dissatisfaction of the scrub appears to be lying elsewhere as it was the plaintiff's
clients who were not satisfied with the end product , which cannot be said, as
correctly argued by the defendant to constitute a breach of contract between the
plaintiff and defendant. After all, when the samples were provided to plaintiff, it was
satisfied with the product sample.
Evaluation
[20] The evidence presented to the court was vastly different to what the plaintiff
averred in its amended particulars of claim. Plaintiff relied on a single agreement.
[21] Defendant had complied with its obligations in terms of the first agreement
and anything that happened thereafter th erefore had to be in terms of the new or
further agreements entered into between plaintiff and defendant which has not been
pleaded in the particulars of claim. There are no allegations of any further or
additional agreements entered into between the parti es as well as defendant ’s
compliance with them.
[22] In the final analysis of Naicker’s evidence , plaintiff’s client was not satisfied
with sample A, (after plaintiff accepted the sample provided). This led to defendant
making modifications to the product on plaintiff’s specific instant and request
resulting in a sample C , which too was initially accepted by plaintiff. This constituted
a further agreement, namely the second agreement, and or, a variation of the first
agreement a s defendant had already complied with its obligations in terms of the first
agreement. When the stock was returned to defendant to be modified to conform
with sample C, this gave rise to the third agreement. However, this time defendant
agreed to attend to the modification of the product with terms and conditions which
were accepted by plaintiff . Once again, plaintiff repudiated the second agreement.
[23] Once again, plaintiff repudiated the second agreement giving rise to a fourth
agreement and the produc tion of a sample D, which plaintiff again approved . This
can be seen from the WhatsApp conversation between the parties which is evident
that the parties agreed that the modification would be reduced to 3% and not 4% to
achieve the desired result , based on plaintiff basing its case on the first agreement.
After reaching the fourth agreement, and the acceptance of sample D , plaintiff
repudiated this last agreement, by conveying its wishes “not to do business with
defendant anymore” and claiming the r efund of monies paid by defendant based on
the credit notes issued by the defend ant.
[24] I agree with the defendant , that in terms of the chronology as confirmed by
Naicker , it became clear that the case pleaded by the plainti ff and which the
defendant has defended to meet, is completely different to what the evidence
proves.
[25] The evidence given to court based on the host of modifications and
subsequent agreements were not pleaded by plaintiff. It therefore follows that upon
a reasonable consideration of the evidence , it cannot be found that the plaintiff has
proven the case it pleaded . As stated earlier, although the defendant witnesses
have not testified, on the versio n which was before the court, it follows that
defendant had performed its obligation in terms of any new and further specific
instance and the requests made by plaintiff which culminated in the reaching of the
further agreements.
[26] It was in fact plaintiff who repudiated every one of the agreements by first
accepting the samples in terms thereof and then rejecting it. The defendant argued
that the rejec tion cannot be held to constitute a breach by defendant of such
agreements which it says in any event was not pleaded by plaintiff in its particulars of
claim and rather constitute a repudiation of such further agreements by plaintiff .
[27] In contra st it was the argument proffered by plaintiff that the three agreements
concluded after July 2020 as having not been pleaded by plaintiff is not correct on
the basis that there has been only one single agreement between the parties . I could
not agree, a lthough the plaintiff argue d that any subsequent actions by the defendant
to rectify or modify the surgical scrub have been in a desperate and futile attempt to
fully comply with its obligations in terms of that one agreement . After all, and right to
the end, plaintiff approv ed all of the sample s.
[28] Insofar as the disclaimer which defendant relies upon , plaintiff avers that
defendant did not tend er it in its plea to replace the defective product based on the
above . It is clear that the defendants action , that it accepted the plaintiff's
cancellation and elected not to rely on the indemnity contained in the invoice and
that such tender was never put to Naicker during cross examination and accordingly
plaintiff believes that absolution of the instant should no t be granted as there is no w
an evidentiary burden on the defendant to present evidence that the bulk product
was of exactly the same quality as the approved samples. The plaintiff argued that
there was no evidence that the defendant offered to replace the product that and that
plaintiff refused to accept this tender.
Credit notes
[29] Turning to the credit notes which plaintiff relies upon as its claim as the sum
total from defendant , in the sum of R 1 081 068.08, being the credit notes issue d by
plaintiff to its clients.1 On the contrary the credit notes issued by defendant to plaintiff
totalled an amount of R 710 987. 802 . The evidence by Naicker on whether
plaintiff should be entitled to be refunded by the defendant based on the credit notes
which was issued by the defendant to plaintiff , he conceded that the credit notes
contained a clause in terms whereof defendant ’s liability in the respect the reof to
replace any products found to be defective to be free of charge and this would be the
sole extent of defendants liability for defective products. Furthermore , it stated that
defendant would not be held liable for any direct or indirect consequential loss o r
damage of products .
[30] It therefore follows that plaintiff’s reliance on the credit notes to establish an
amount which defendant is liable for payment is incorrect. Worse, the plaintiff has not
pleaded in its amended particulars of claim that defendan t has breached the
agreement, yet it proceeds to claim the amount it credited to its clients as the amount
the defendant must refund the p laintiff .
[31] Put differently, Naicker’s evidence in this regard was that the plaintiff was
entitled to a refund in terms of the credit notes which were issued, however plaintiff
1 para 14 P articulars of Claim
2 para 17 Particulars of Claim
has not claimed this amount in its particulars of claim, instead it claimed for the
amount of the credit notes it supposedly issued to its clients.
The test for absolution from the instance
[32] Given the evaluation of the above, measured against the test for absolution
from the instance t he arguments presented by both counsels correctly reflected on
the test to be applied, the rules and legal authority when a court considers an
application for absolution from the instance . In terms of rule 39 ( 6) the test to be
applied when deciding whether or not to grant absolution from the instance,3 echoed
in Gordon Lloyd Page & Associates v Rivera and Another4
“…the test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying its mind reasonably to such
evidence, could or might (not should, nor ought to) find for the plaintiff.
…This implies that a plaintiff has to make out a prima facie case – in the
sense that there is evidence relating to all elements of the claim – to survive
absolution because without such evidence no court could find for the plaintiff.”
[33] Absolution of the instance may be granted at the conclusion of a plaintiff’s
case, if the plaintiff has failed to adduce sufficient evidence upon which a reasonable
court could grant judgment in favour of a plaintiff, or the plaintiff has failed to produce
sufficient evidence to establish a prima facie case, in other words, a case in which all
the elements of the claim have been proven.
[34] Absolution from the instance is i n conflict with the legal principle of audi
alteram partem, which stipulates that no person may be judged without a fair hearing
in which each party is given the opportunity to respond to the evidence against them.
Consequently, is granted sparingly, certainly not lightly, or on the basis of flimsy
reasons. It should only be granted where the plaintiff’s case is so weak that no
3 Erasmus, Superior Court practice RS24 , 2024, D1 Rule 39 -15 to Rule 39 -16
4 Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92F -H. See also
Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (AD) at 4 09G-H
reasonable court can find for plaintiff and a court should not order absolution where it
is in the interests of justice. Plaintiff’s coun sel relied on additional authority in this
division by Gamble J, in Van Zyl N.O. obo A.M v MEC for Health, Western Cape
Provincial Department of Health, lean on the side of allowing the case to proceed.
Conclusion
[35] The evaluation of the claims made by the plaintiff in its particulars of claim and
the evidence presented will determine whether the plaint iff successfully countered
the defendant's absolution from the instance.
[36] In the result plaintiff has failed to make out a case for claiming the quantum it
has claimed and in any event Naicker admitted the terms of the credit note in terms
of where of defendant’s liability and respect the reof , to replace any products found
to be defective to be free of charge and this would be the sole extent of defendant ’s
liability for defective products and the defendant would not be held liable for any
direct or indirect, consequential loss or damage of product .
[37] As foreshadowed above, Naicker ’s evidence cannot be said to support the
case pleaded by plaintiff . His evidence does not place any evidentiary burden upon
defendant in the matter. Plaintiff therefore has failed to discharge the onus upon it
for a finding in its favour and accordingly the absolution from the ins tance was
granted .
____________________________
Parker AJ
Acting Judge of the High Court
Appearances:
Plaintiffs’ counsel: Adv. A. du Plooy
082 924 9076 / awiedp@gmail.com
Plaintiff’s attorney: Ryan James & Associates
076 685 4445 / ryan@rjandassociates.co.za /
lean@meattorneys.co.za
Defendants’ counsel: Adv. D. Rabie
072 282 9803 / djrabie@capebar.co.za
Defendants’ attorney: Marais Muller Hendricks Inc.
(021) 943 3000 / merlin@mmh.law