REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES : YES/NO
(3) REVISED .
NKOANAA.J
DAT~/4if) SIGNATUR , ,
In the matter between :
MA THOMOMAYO INVESTMENT HOLDING CC
and
GAVIN CECIL GAINSFORD N.O.
KGASHANE CHRISTOPHER MONYELA N.O.
ABDURUMAN MOOLLAJIE N.O.
ROBOR PIPE SYSTEMS (PTY) LTD
(IN LIQUIDATION)
(REGISTRATION NO: 2016/117187/07) APPEAL CASE NO: HCAA 18/2023
COURT A QUO CASE NO:4478/2021
APPELLANT
1sr RESPONDENT
2ND RESPONDENT
3rd RESPONDENT
4TH RESPONDENT
2
This Judgment was handed down electronically by circulation to the Parties' representatives
by e-mail, the date and time for hand down of the Judgment is deemed to be 27 June 2025
at 10:00.
JUDGMENT
NKOANAA.J
Introduction
[1] This is an appeal against the whole judgment and order of Mashaba A.J, delivered
by the Court a quo on 7 September 2022.
[2] The Court a quo after hearing the matter granted the following orders:
2.1 The Respondent is ordered to pay the Fourth Applicant the amount of
R862 091.56 (Eight Hundred and Sixty Two Thousand Ninety One Rand
and Fifty Six Cents only).
2.2 The Respondent is ordered to pay costs of this application.
[3] The Appellant aggrieved by the orders, made an application for leave to appeal which
was subsequently granted by the Court a quo on 10 March 2023.
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The Parties
[4] The Appellant is Mathomomayo Investment Holding CC a Close Corporation
registered and incorporated in accordance with the Close Corporation Laws of the
Republic of South Africa.
[5] The First, Second and Third Respondents have been duly appointed as joint
liquidators of the Fourth Respondent , by the Master of the High Court, Johannesburg.
[6] The Fourth Respondent is Robor Pipe Systems (PTY) LTD a private company
registered and incorporated in accordance with the Company Laws of the Republic
of South Africa which is in liquidation.
Background Facts
[7] The central players in this appeal are the Appellant and the Fourth Respondent. They
entered into a Credit Agreement on or about 23 January 2019. The said Credit
Agreement contained terms and conditions resulting in a contractual relationship
between the Appellant and the Fourth Respondent. between January 2019 and
September 2019, the Fourth Respondent fulfilled its contractual obligations under the
Credit Agreement by delivering the ordered goods to the Appellant. The Appellant
accepted the goods. The Fourth Respondent issued invoices, as far back as 31 July
2019, but the Appellant failed to make any payment.
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[8] On 18 September 2019, the Fourth Respondent entered into voluntary liquidation .
After reviewing the books and records of the Fourth Respondent , the First to Third
Respondents determined that the Appellant owed a debt to the Fourth Respondent.
On 1 June 2020, a Letter of Demand was sent to the Appellant wherein an amount of
R 862 091.56 was sought based on the copies of invoices, delivery notes, and credit
notes verifying the supply of goods by the Fourth Respondent and their acceptance
by the Appellant. The letter requested payment of this amount, stating that if payment
was not made, legal proceedings would be instituted. As there was no positive
response , from the Appellant, the proceedings were initiated and eventually
adjudicated by the Court a quo.
Proceedings in the Court a guo:
[9] The Appellant resisted the application launched by the Respondents and filed an
Answering Affidavit which indicated that upon being appointed as a contractor by
Sekhukhune District Municipality, it placed an order for the supply of piping equipment
with the Fourth Respondent, which amounted to R5 509 392.27. The said order was
placed on 15 February 2019 and was accepted by the Fourth Respondent through
written acceptance. The Appellant stated that out of the order that it had placed, the
Fourth Respondent only delivered the piping equipment, to an approximate value of
R4 000 000.00 (Four Million Rands) and that the Fourth Respondent breached the
contract, as it failed to deliver the ordered goods on the agreed date of 30 April 2019.
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[1 0] The Appellant denied that it entered into any Credit Agreement which incorporated
credit terms and conditions. Furthermore, it stated that the Fourth Respondent never
accepted the Appellant's application as Annexure "FA3" was not signed by both
parties to have any force and/or effect. The Appellant argued that the Fourth
Respondent was not entitled to an order for specific performance because the Fourth
Respondent did not fulfil! its obligation to deliver the entire order as per the agreement.
[11] The Appellant conceded that it made certain payments to the Fourth Respondent after
goods were delivered. The payments were as follows:
[11.1] R984 753.68 (paid on 18 April 2019);
[11.2] R669 584.34 (paid on 31 May 2019);
[11.3] R700 000.00 (paid on 15 July 2019);
[11.4] R575 062.48 (paid on 2 September 2019);
[11.5] R575 062.48 (paid on 3 September 2019);
Total amount R3 504 462.98
[12] The Appellant stated that because of the breach perpetuated by the Fourth
Respondent , it was entitled to cancel the agreement on 30 September 2019. The
Fourth Respondent ought to have been aware that its failure to perform in terms of the
contract would cause the Appellant to suffer damage , which were quantified to be
valued at R3 362 411.94. The Appellant contended that it had a counterclaim of about
R4 000 000,00 which exceeds the Fourth Respondent's claim. The Appellant then
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contended that the dispute between the parties was foreseeable, and the
Respondents ought to have proceeded by way of an action procedure.
Proceedings before the Appeal Court:
[13] The Appellant's grounds for appeal can be summarised as follows:
[13.1] It relied on the defence of exceptio adimpleti non contractus. This defence
entailed that a party couldnot claim specific performance from another, in a
situation where they had not complied with their obligations in terms of. the
agreement or tendered performance.
[13.2] That the Court a quo erred in not finding, that there was a dispute of fact which
was incapable of resolution on paper. The dispute of facts pertained to whether
the Fourth Respondent had complied with the terms of the agreement to
produce the piping equipment.
[14] As the Appeal Court, we were called upon to determine the following issues;
[14.1] Whether there was merit to the Appellant's version that the Respondents were
not entitled to an order for specific performance, in instances where the Fourth
Respondent has failed to comply with the terms of the agreement.
[14.2] Whether the Respondents were entitled to be granted an order for specific
performance, in circumstances where the contract had already been cancelled.
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[14.3] Whether the alleged dispute of fact, concerning the Credit Agreement, as
annexed to the Founding Affidavit, bound the parties to that agreement;
[14.4] Whether the Court a quo ought to have not granted the orders.
[15] The Appellant argued that the Respondents were not able to claim specific
performance in circumstances where that party had failed to comply with its
obligations. Moreover , the Fourth Respondent did not tender any performance to
deliver the remaining piping equipment. The Appellant argued that in accordance with
the general principles appliable to reciprocal obligations, a party that claimed specific
performance must perform or tender to perform its own reciproca l obligations. Even if
the Appellant was in breach of the contract, the party claiming specific performance
was not relieved of its duty to perform.
[16] The Appellant indicated that the Respondents were obliged to allege in its Founding
Affidavit that it had already performed properly or that it was ready and able to perform
properly and tender performance which was not done. The First to Third Respondents
failed to consider the express and implied terms associated with the purchase order
placed by the Appellant and accepted by the Fourth Respondent. Furthermore , the
terms and conditions stipulated that the Fourth Responden t was to deliver goods
within thirty (30) days of the delivery date and that goods to the value of
R1 100 000,00, had not been delivered to the Appellant. Therefore , the Respondents
were not entitled to the order granted.
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[17] In respect of the factual disputes, the Appellant contended that the Respondents were
not entitled to an order, as there was a material dispute of fact which could not be
resolved on paper. Therefore, a final order should not have been granted in favour of
the Respondents. Reliance was placed on the leading cases regarding disputes of
fact being PLASCON -EVANS PAINTS V VAN RIEBEECK PAINTS (PTY) LTD, 1984 (3)
SA 623 (A).& NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS V ZUMA 2009(2)SA
277(SCA). The Appellant indicated that the Court a quo misdirected itself, by failing to
accept the Appellant's version because the test was that in cases of dispute of fact,
an Applicant could only succeed, if the facts as stated by the Respondent, together
with those facts in the Applicant's affidavit which have been admitted by the
Respondent, justified the order sought. The matter was essentially decided on the
Respondent's version.
[18) The Appellant noted that granting specific performance was in the discretion of the
Court, but in instances where there would be unreasonable hardship that would follow,
then specific performance should not be granted. It was argued further that the Court
a quo failed to deal at all, with the aspect of specific performance and the inability of
a party to claim specific performance in instances where it was at fault. The Appellant
prayed for the appeal to be upheld with costs.
[19] The Respondents ' contentions were that the agreement which was the subject matter
of the proceedings was divisible in nature. In other words, it created several distinct
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and separate obligations. It was common cause that the Appellant placed an order
pursuant to the credit agreement in the amount of R5 509 392.27. The order was
broken up into separate deliveries, there were separate invoices for each delivery,
which were accepted and paid for by the Appellant in the cumulative amount of R3 504
462.98. If the principle of reciprocity was to be applied, it must be applied to each
distinct obligation as the ordered goods were delivered in separate distinct batches
and were accepted by the Appellant as such.
[20] The Respondents indicated that once the Appellant accepted the goods, an obligation
to pay for the goods received then arose. Once an invoice was generated , then
payment was to be made. The Respondents sought payment, only for goods that were
delivered, with their delivery having been accepted by the Appellant. There was no
dispute before Court regarding the delivered goods. The Respondents contended
further that, as they were not claiming payments for goods not delivered, it could not
be said that there was a reciproca l obligation that arose in respect of outstanding
goods. The case according to the Respondents was crisp and focused on goods that
were ordered by the Appellant and were delivered to the Appellant. Such goods were
not paid for by the Appellant , after the invoices were issued. The Responden ts sought
for the dismissal of the Appeal with Costs.
Discussion:
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[21] The defence of exceptio adimpleti non contractus as raised by the Appellant was
based on the Fourth Respondent 's alleged failure to perform or tender performance.
Where one party's obligation has not been performed , and it will never be performed,
the party claiming performance can treat the contract as being at the end and will be
released from its reciprocal obligation . See UNIVERSAL STORAGE SYSTEMS (PTY)
LTD V CRAFFORD 2001 (4) SA 249 (W).
[22] It was not in dispute that the Appellant placed an order in the amount of
R509 392.27,00 under the existing credit agreement between the Appellant and
Fourth Respondent. The Appellant conceded that goods to the value of approximately
R4 000 000.00 were delivered. The ordered goods were delivered in separate batches
and the Appellant made payments separately. The total amount of payment made is
R3 504 462.98. From the papers it was clear that indeed the contract was divisible, as
separate deliveries and payments were made.
[23] The Supreme Court of Appeal in the matter of EXDEV (PTY) LTD AND RODNEY
WOLM ER v PEKUDEI INVESTMENTS (PTY) LTD, 2011 (2) SA 282 (SCA) held as follows
at paragraphs 1 0 and 11:
"[1 OJ At the outset it must be remembered that there is a distinction between
the severance of a portion of a contract, eg on grounds of vagueness or
illegality, and recognising that a contract may contain several distinct and
I I
separate agreements divisible from each other. As was explained in
Wessels, The Law of Contract in South Africa 2 ed vol 1 para 1615:
'It is often loosely said that a contract is divisible or separable where, though in
form there is only one contract, in reality there are several distinct agreements
entered into at the same time. There is, however, a clear distinction between
this class of contract and a divisible or separable contract.
If the obligation is divisible in the material or physical sense, there is only one
contract, though the subject matter may consist of several parts considered as
one whole. The contract is entire, but the object of the obligation is separable
into homogeneous parts. If, however, there are several distinct obligations , we
are not dealing with a divisible or separable contract at all, but with a collection
of separate contracts embodied in one single writing or agreement.
Thus, the sale of a quantity of coal to be delivered by instalments of so many
tons is, as a rule, an entire contract in which the obligation is divisible. In such
a case it may be the intention of the parties that a default on the part of the
seller in delivering , or on the part of the purchaser in accepting , one instalment
will not justify a cancellation of the contract (Simpson v Crippin, 1872, 8 LRQB
14: 42 LJQB 28: 27 LT 546). On the other hand, the sale of Stichus and
Pamphilus for 100 and 200 aurei respectively is in reality an independent sale
of Stichus for 100 and of Pamphilus for 200 aurei (D. 45.1.29.pr.)."'
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[11] Where there is a sale 'of several distinct and separate items and a price is fixed to
each, the contract as a rule, will be held to be composed of several agreements '.
Furthermore, the nature of the performance required under a contract can be of
decisive importance , and a contract is usually divisible where it makes provision for
separate or distinctive performances.3 Thus in Middleton v Carr 1949 (2) SA 374 (A)
at 391 Schreiner JA, in concluding that an undertaking by a husband to pay his
estranged wife a substantial sum of money was severable from a collusive agreement
for divorce, said:
'But the fact that the two agreements were made at the same time does not provide
sufficient reason for treating them as in fact one agreement ; to reach that conclusion it
would be necessary to find some express or implied interlocking of their terms."'
[24] This Court noted that indeed the contract. created several distinct and separate
agreements divisible from each other and was unable to find a cogent reason why the
Appellant made separate payments totaling R3 504 462.98 on various occasions and
in various amounts. This Court accepts that from the documents submitted these
payments were made in respect of delivered and invoiced equipment. It was also
curious that the Appellant, neither in its Answering Affidavit nor Heads of Argument
offered an explanation as to why it made separate payments after goods were
delivered to it. This shows that by its own actions, the Appellant accepted that the
order placed with the Fourth Respondent created several pairs of distinct obligations,
which arose with each batch of delivery that the Appellant accepted .
[25] The Appellant was making payments to the Fourth Respondent for goods delivered
up until September 2019, coincidentally the same month the Fourth Respondent
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applied for voluntary liquidation. The contract was purportedly terminated by the
Appellant in January 2020. This was after the First to Third Respondents caused a
letter to be written to the Appellant, demanding payment for outstanding delivered
equipment. The Appellant in its papers and during argument, referred • to a
Countercla im / Counter Application and/or damages claim it intended to pursue
against the Fourth Responde nt. Nothing materialised in this regard. It is this Courts
finding that the Appellant's first ground of appeal, therefore stands to fail, as the
agreement was divisible and created several pairs of distinct obligations.
[26] On the second ground of appeal, the Court a quo correctly found that there was no
dispute of facts which prevented it from disposing of the matter. In the case of
WIGHTMAN T/A JW CONSTRUCT ION v HEADFOUR (PTY) LIMITED, 2008 (3) SA
371 (SCA) at paragraph 13 stated that the legal test for a dispute of fact was discussed
and Heher JA set out the following:
"[13] A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in
his affidavit seriously and unambiguously addressed the fact said to be
disputed ... "
[27] Having considered the Founding, Answering and Replying Affidavits as well as both
written and oral submissions , this Court found it difficult to locate the said dispute of
fact because it was not disputed, that an order was made and the goods were
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delivered in separate batches and part payment was made. The Appellant indicated
that only goods approximating R4 000 000.00 (Four Million Rands) were delivered and
there was an outstanding order. The concession by the Appellant that it paid an
accumulative amount of R3 504 462,00 demonstrates that goods were delivered to it,
whereafter the Fourth Respondent generated an invoice. After receiving the invoices,
the Appellant made payments. After all, the Respondents were not claiming for goods
not delivered. As already mentioned , there was no counter application nor any claim
for damages initiated against the Fourth Respondent. This Court is satisfied that the
contract was divisible in nature, creating numerous obligations , it could not be said
that a dispute of fact existed. Having received the goods delivered , the Appellant was
obligated to pay for them. This Court is satisfied that there was no merit in the second·
ground of appeal, and it is dismissed.
Ruling:
[28] In light of the aforesaid having considered all the relevant documentation with specific
reference to the Appellant's version, this Court is satisfied that the Appeal is without
merit and must fail.
Costs:
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[29] Both parties sought costs to be awarded them in the event of them succeeding. Costs
follow the result, and there is no reason to order differently.
Order:
[30) In the result the following order is made:
[30.1] The appeal is dismissed with costs.~
NKOANAA.J
Heard on 11 October 2024 ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
PILLAY A.J
ACTING JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION, POLOKWANE
lagr~
MASHAMBA A.J
ACTING JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION , POLOKWANE
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Appearances:
For the Appellant: Adv. A A Sasson
Instructed by Thomas and Swanepoel Inc.
Tzaneen
For the First to Fourth Respondents: Adv. T Ramogale
Instructed by Edward Nathan and Sonnenbergs Inc
Sandton