IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE
Case no:2025-005991

In the matter between:
LASER LOGISTICS (PTY) LTD APPLICANT
and
WALTEX (PTY) LTD RESPONDENT

Coram: BHOOPCHAND AJ
Heard: 07 November 2025
Further submissions received on 14 November 2025
Delivered: 21 November 2025
Summary: Claim for payment of a liquidated debt . Monetary claim met with
contractual defences, raising both substantive and evidentiary issues .
Respondent raised three defences . Firstly , the original agreement had been
novated, thereby extinguishing the Applicant’s claim. Secondly, the exceptio
non adimpleti contractus, contending that the Applicant had not fulfilled its own
obligations under the contract. Thirdly, the quantum of the amount claimed was
incorrectly computed, rendering the claim overstated or inaccurate . Subsequent
payment arrangements to reduce the Respondent’s indebtedness, the failure to

prove expressly or by inference from conduct did not constitute an intention to
novate the original credit agreement. The defence of the exceptio non adimpleti
contractus does not apply to outstanding arrears in circumstances where the
Respondent claims reciprocity of contractual obligations. Respondent was
unable to satisfy its paymen t obligations. The Court was satisfied that the
computation of the amount owing was correct and the explanation provided by
the Applicant for the alleged discrepancies was acceptable. Implications of
issuing a certificate constituting prima facie proof of the amounts stated therein
with respect to each party’s obligations and when prima facie evidence becomes
conclusive.


ORDER

1 The Respondent is directed to pay the Applicant R 1 651 207.03 (one million, six
hundred and fifty one thousand, two hundred and seven rand, and three cents)
2 Interest on the sum reflected in the preceding paragraph at the prescribed rate of
interest per annum, a tempore morae to date of payment, and
3 Costs of suit on an attorney and client scale.


JUDGMENT



Bhoopchand AJ:

[1] The Applicant sought an order directing the Respondent to pay it
R1 651 207.03 (one million six hundred and fifty-one thousand two hundred

and seven rand and three cents ) together with interest and costs. The Applicant
provides logistics services, and t he Respondent is a manufacturing company.
They began a commercial relationship on 16 February 2016 by concluding a
written credit agreement embodied in a credit application.

[2] Under the terms of the agreement, the Applicant undertook to provide
logistics services and extend a credit facility of R300 000 to the Respondent.
The Applicant would issue monthly invoices payable within thirty days of
presentation for the services it rendered to the Respondent. The agreement made
provisions for the payment of interest, default on payments, exclusion of the
agreement being considered a waiver of rights or a novation upon condonation
of a breach, and legal costs. The National Credit Act 34 of 2005 did not apply to
the credit agreement as the Respondent recorded that it had an annual turnover
or asset value in excess of R1 million.

[3] The Respondent fell into arrears with its payments as early as January
2017. The Respondent was in arrear s of R2 170 646.21on 20 June 2024. On 21
June 2024, the parties concluded an agreement whereby the Respondent would
settle the arrear balance by making weekly payments of R35 000 each Friday.
The credit agreement would remain in place . The Applicant would provide the
Respondent with services on a cash on delivery (COD) basis , to be payable
within twenty-four hours of presentation of the invoice for the previous week on
a Monday morning. If the Respondent failed to make a timeous payment, the
full outstanding balance would become immediately due. The Respondent
breached the payment agreement.

[4] On 16 October 2024, the Applicant’s attorney informed the Respondent
that it had failed to make payment of the R35 000 on 4 October 2024 and 11
October 2024. The Respondent was informed that it had to pay the full
outstanding balance of R1 787 029 immediately. The Applicant demanded

immediate payment of R70 000 under the payment agreement , failing which it
would enforce its rights to claim payment of the full balance. On 22 October
2024, Applicant’s attorney demanded that the full outstanding balance be paid
by 28 October 2024.

[5] On 24 October 2024, the Respondent requested an indulgence until 30
October 2024 to negotiate further terms with the Applicant , as it had cash flow
problems. On 25 October 2024, the Applicant agreed to grant the Respondent
the indulgence it sought. On 31 October, the Applicant’s attorney wrote to the
Respondent informing it that it h ad ceased payments and had breached the
weekly payment agreement three times . The Respondent had failed to reduce
the outstanding debt as well as pay the COD amounts of R25 219.64 and
R12 003.21. The Applicant stated that it would cease providing services to the
Respondent unless payment in full of R177 222.85 had been made by 1
November 2024. If the Respondent made this payment, the Applicant would be
prepared to resume the services. The latter was subject to the parties concluding
an acceptable acknowledgement of de bt agreement. The Respondent responded
on the same day , stating it had financial difficulties and that it needed to
continue trading to meet its various financial obligations. The Respondent
acknowledged its com mitment to settle its debt but did not make a
counterproposal on how it intended to pay the debt.

[6] On 6 November 2024, the Applicant’s attorney informed the Respondent
that it required a payment of R400 000 by 31 December 2024, weekly payments
of R40 000 commencing on 11 November 2024, and payments of R200 000
every three months beginning on 31 March 2025 until the outst anding balance
had been settled in full. The proposal would be open for acceptance until 12h00
on 11 November 2024. The Res pondent did not accept the proposal . The
Respondent stated that it could not make the weekly payments of R35 000

previously agreed to. It would make payments when its cash flow allowed it to
do so. On 3 December 2024, the Applicant’s attorney demanded payment under
section 345(1) of the Companies Act 61 of 1973 as read with section 9 of
schedule 5 of the Companies Act 71 of 2008 , of R1 650 291.49 within three
weeks.

[7] According to the Applicant, the Respondent responded on 13 December
2024 by recording its position. It had paid R177 222.85, but despit e the
payment, the Applicant declined trading with it. The Respondent had to utilise
alternative suppliers. The Respondent contended that the Applicant had
purported to alter the terms of the original agreement in November 2024 by
increasing the weekly pay ment and instituting large lump sum payments. The
Respondent demanded a new repayment agreement if the Applicant did not
intend to render services to it. The Respondent understood that if it made the
payment of R177 222.85, then the agreement was paused until a new payment
agreement was concluded. The Respondent was unable to make payments since
it had paid the R177 222.85.

[8] The Applicant clarified that its stance was that the Respondent had to
make the payment of R177 222.85 by 4 November 2024 for it to resume
rendering services to the Respondent on a COD basis. The latter proposal was
subject to the parties concluding an acceptable acknowledgement of debt
agreement regarding the settlement of the more substantial balance under the
credit agreement. The Respondent did not tender a ny payment counterproposal
for the settlement of the balance . The Respondent had declared it was unable to
commit to a repayment agreement and that its compliance under the payment
agreement would be conditional on its financial position and ability to pay

[9] The Respondent owed the Applicant the full outstanding balance of
R1 651 207.03. The Applicant provided a certificate with an updated statement

of account as per the original credit application and contract. The Respondent
did not deny its indebtedness to the Applicant but had failed to pay despite
numerous demands. The Applicant ceased trading with the Respondent.

[10] The Respondent admit ted that it fell into arrears with its payments but
denied that the balances calculated at the various stages of their engagement
since first falling into arrears in January 2017 were correct . The Respondent
contended that it had not applied its mind to th e precise amount that had to be
paid but asserted that the Applicant had rendered incorrect invoices and had
overcharged it. The Respondent admitted the payment agreement entered into
between the parties on 21 June 2024. The Respondent denied that its payment of
R177 222.85 was contingent upon an acceptable acknowledgement of debt
being agreed to before the Applicant would resume its services to it.

[11] The Respondent contended that the Applicant would engage with it and
negotiate an acknowledgement of de bt after it had paid the R177 222.85 and
continued to make weekly payments of R35 000 and render services on a COD
basis. The Respondent stated that it needed to remain cash flow positive by
continuing to trade . The Applicant would make that impossible if it ceased to
provide services to it on a COD basis . Flowing from the Applicant's refusal to
provide it with services, the Respondent suffered huge decreases in income and
cash flow, making it impossible to pay the Applicant. The Respondent could not
find alternative service providers who were willing to provide their services at
the same rate as the Applicant.

[12] The Respondent contended that the final statement of account did not
reflect the credits due to it and showed discrepancies between the debits allowed
and the allocated balance. The Respondent denied that the capital amount owing
to the Plaintiff was payable . The Respondent contended that by introducing the

to the Plaintiff was payable . The Respondent contended that by introducing the
acknowledgement of debt requirement and imposing additional payments , the

Applicant proceeded to change the 21 October 2024 agreement unilaterally.
The Respondent ended its answer by stating that it remained willing to negotiate
and enter into an acknowledgement of debt for the payment of any amount
owing to the Applicant, provided that funds are available.

[13] In reply, the Applicant asserted that the Respondent had paid an amount
of R170 000 to it on 6 November 2024, R7 222.85 short of the amount
demanded. The Applicant denied that by simply paying the R170 000, the
Respondent could resume paying R35 000 weekly , as the agreement did not
provide for this. The Respondent acknowledged that it was unable even to make
the weekly payments . The Respondent expected the Applicant to render its
services to keep it afloat with no assurance as to whether and when payment
would be made for t hose services. The Applicant indulged the Respondent on
several occasions, whereas the Respondent did not reciprocate by honouring its
payment obligations.

[14] The Applicant had provided the Respondent with monthly statements of
account. The Respondent did not dispute the amounts reflected in the statement.
The Respondent’s late denial of the amounts casts doubt on its good faith. The
Applicant provided a comprehensive statement of the Respondent’s account
since their trading relationship began. It reflected all invoices, payments
received, and credits passed when the account had been incorrectly debited. The
Respondent did not dispute the balances before filing its answering affidavit.
The Respondent had ample opportunity to propose agreeable terms of
repayment to the Applicant prior to the Applicant instituting this application.

[15] The Applicant asserted that the Respondent’s bald and unsubstantiated
denial of the accuracy of the amount claimed did not give rise to a genuine
dispute. The Respondent did not identify any incorrect entry in the composite
statement. The Applicant offered to submit the source documents in support of

the statement. The Respondent had numerous opportunities to dispute the
quantification of its indebtedness to the Applicant. It failed to do so. The
Respondent made no genuine attempt to negotiate an acknowledgement of debt.
The Respondent’s invitation of late, to negotiate the acknowledgement of debt ,
was insufficient considering that it stated its repayment terms would be subject
to its financial position.

THE RESPONDENT’S DEFENCES
Novation

[16] The Respondent had correctly dropped its defence that the subsequent
payment arrangements were a novation of the original credit agreement. An
intention to novate is, in any event, not presumed and must be proved either by
an express declaration of the parties or by way of necessary inference, including
the conduct of the parties, from all the circumstances.1 The original contract was
not replaced. The credit agreement provided that condonation of any breach of
its provisions would not be construed as a novation.

Exceptio Non Adimpleti Contractus

[17] The Respondent raised the exceptio non adimpleti contractus as a defence
to the claim. The Respondent did not dispute the terms of the original agreement
or that it was in arrears with its payment obligations. The Respondent pointed to
the 21 June 2024 agreements and their subsequent amendments, to assert that
the Applicant’s obligation to deliver services to the Respondent on a COD basis
and the obligation of the Respondent to make payment under the payment
agreement as amended were reciprocal. There is a presumption of reciprocity in
contracts where parties undertake obligations to each other . The Respondent

1 French v Sterling Finance Corporation (Pty)Ltd 1961(4) SA 732 (A) at 736 G-H

contended that the Applicant had failed to perform the services and did not
tender to perform them. The Applicant was thus not entitled to payment by the
Respondent.

[18] The exceptio non adimpleti contractus is a defence rooted in reciprocity.
A party to a reciprocal contract may withhold their performance until the other
party has performed or is ready to perform.2 The Applicant’s refusal to continue
rendering logistics services until the Respondent settled its arrears and
acknowledged its indebtedness falls squarely within this principle. However, the
Applicant’s suspension of its services to the Respondent is not a breach, but a
lawful exercise of its rights under the defence. It has not received the agreed
counter-performance. The Applicant rendered logistics services, and the
Respondent was in arrears for those services as its payment obligations
remained unfulfilled.

[19] Reciprocity existed in the amended agreement to the extent that the
Applicant agreed to deliver services on a COD basis. The Respondent’s
obligation to pay arose upon delivery. The exceptio cannot be used to withhold
payment for services already received, or to demand continued services while in
breach, nor is it a shield against liability for past breaches. The Appli cant’s
suspension of services in response to repeated defaults is a lawful exercise of its
rights under the principle of reciprocity and does not constitute a breach. The
amended agreement did not extinguish the original debt, and it is common cause
that t he ame nded agreement was not a novation. The Respondent remained
responsible for the arrears as it was not released fro m paying them. The
Respondent explicitly stated that it was not in a financial position to pay for

2 Grand Mines (Pty) Ltd v Giddey NO (183/97) [1998] ZASCA 99; 1999 (1) SA 960 (SCA); (23
November 1998) at para 12

even the COD-based services. Readiness to perform is a prerequisite for the
defence. The Respondent’s reliance on the exceptio is misplaced.

[20] The Respondent alleged that for the Applicant to enter into a payment
agreement with the Respondent and then to refuse to perform and unilaterally
amend the agreement , demanding an acknowledgement of debt and seeking
additional payments, was deceitful and contrary to public policy. The
Respondent com plained that the Applicant was not entitled to escape the
consequences of the payment agreement by relying on the clause in the credit
agreement requiring that amendments to the credit agreement must be signed by
both parties.3

[21] The Respondent anticipated that the Court would raise the Shifren
principle regarding entrenched clauses in a written agreement against its
previous submission.4 The suggestion by the Respondent that the Applicant was
deceitful in seeking an acknowledgement of debt and specifying an increased
payment schedule is difficult to understand. The Applicant ’s insistence on an
acceptable acknowledgement of debt and refusal to perform without it does not
constitute unilateral amendment. It is a commercial response to repeated
breaches. The Respondent’s contention that this conduct was deceitful or
contrary to public policy is not supported by Brisley. Unless the
acknowledgement of debt was signed and the Applicant w aived the clause , the
original contract remained binding on the parties. Brisley affirms the binding
nature of non -variation clauses . Public policy supports the enforcement of
contracts freely and voluntarily entered into. Good faith and fairness do not
override clear contractual terms, especially where parties have agreed to
formalities for amendments.5

3 Brisley v Drotsky 2002 (4) SA 1 (SCA) (‘Brisley’) 90E-92C
4 SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere 1964 (4) SA 760 (A) at paras 6-10, para
1 at 10H-12F and 9DE-EF
5 Brisley supra at paras 88-94

[22] A debtor’s refusal to pay , without lawful justification , undermines the
legal system’s credibility and the economy’s stability. Courts and legislatures
generally reject excuses that amount to strategic avoidance. This includes tactics
like delaying payment and disputing clear obligations.

[23] In a final attempt to stave off payment of the amount owing to the
Applicant, the Respondent disputed its computation. The Respondent shrugged
off the certificate signifying the amount owing by it as providing nothing more
than prima facie proof. Respondent’s Counsel identified three line items of the
statement that were allegedly incorrect. The first relates to the invoice for 30
June 2023, which reflected a debit of R180 224.49 and an allocated balance of
114 892.27. The second related to the line item of 30 November 2023, which
reflected a debit amount of R 157 774.50 and an allocated balance of
R32 774.50. The third relates to 31 March 2024 and concerns the distribution
(invoice) for March 2024 . It reflected a debit of R256971.70 and an allocated
balance of R 176 328.88. The allocated balance across these three line items
reflects an amount of R270 975.04

[24] Following the belated identification of the disputed items in the
statement, and to ensure that the Court did not grant an order premised upon an
incorrect amount claime d, the parties were allowed to address the alleged
discrepancies. The Applicant explained why the amounts of R180 224.49,
R157 774.50, and R256 971.70 were debited to the Respondent’s account
instead of the amounts of R114 692.27, R32 774.50 and R178 328.88,
respectively. The Applicant stated that the Respondent made several payments
over the period encompassing the invoices from 30 June 2023 to 31 March
2024. The payments did not correspond to any invoice amounts in the debit
column, as the Respondent paid sporadically and in amounts that did not match
the amounts of the unpaid invoices. When payments were received from the

Respondent, they were allocated to the oldest historical debt first , and in
accordance with accepted accounting practice. Thi s was the reason for the
variance between the debit and allocated balance columns in the summarised
statement. In the impugne d line items identified by the Respondent, the
payments made by the Respondent were credited towards the relevant invoice to
the extent that there was money left over after the prior historical debt had been
settled. There was a difference of R915.54 in the final balance calculated by the
Applicant, but the Applicant opted to claim the lower amount of R1 650 291.49.

[25] The Respondent persisted in disputing the amount claimed, asserting that
the explanation given by the Applicant d id not explain the discrepancies
between the allocation of the R180 224.49 and the R157 774.50 in the
statements. The Respondent identified Clause 1 of Part B of the credit
agreement, which provided that the certificate shall be prima facie proof of the
amounts stated therein, and it shall rest with the Respondent to prove that such
amount is not owing . The Respondent contended that t his was not strictly
correct. Prima facie evidence did not place an onus on a party to disprove; it
placed a burden of rebuttal on that party. The Applicant must still prove on a
balance of probabilities that the Respondent owes the amount claimed to it.
Prima facie evidence called for an explanation, failing which it might become
conclusive, but it does inevi tably become conclusive if the Respondent fails to
respond. The Respondent contended further that i t will only become conclusive
when all the circumstances are considered, which is the correct finding to make.

[26] The Applicant’s reconciliation of the stateme nt, though necessitated by
the Respondent’s irregular payment pattern, accords with accepted accounting
practice and the legal principle that, in the absence of express allocation,
payments may be applied to the oldest outstanding debts. The Applicant’s

payments may be applied to the oldest outstanding debts. The Applicant’s
explanation that payments were sporadic and allocated to the oldest debt first is

consistent with accepted accounting norms and common law principles of debt
allocation.6 Failing agreement, the law has devised a set of residual rules which
apply to determine the ranking of the different obligations to be discharged. The
different obligations must be between the same parties . Older debts are settled
before more recent ones.7

[27] The Respondent asserted that the certificate clause provides only prima
facie proof of indebtedness; it does not displace the Applicant’s burden to prove
the claim on a balance of probabilities . Prima facie evidence calls for an
answer, and if none is forthcoming, it may become conclusive, i.e., the clause
creates a rebuttable presumption . In this case, the Applicant has provided a
coherent reconciliation of the account, supported by accepted accounting
practice and consistent with the payment history. The Respondent has not
offered a credible alternative calculation or rebuttal. Hence, if the court is
satisfied, in all the circumstances, that the evidence is reliable and sufficient , it
may accept the outstanding debt as calculated to be the amount the Respondent
owes to the Applicant.

CONCLUSION

[28] The Court is satisfied that the Applicant has discharged its burden ,
whereas the Respondent has failed to satisfy the evidentiary burden to show that
the am ount claimed is not owing. The exceptions raised , the adimpleti non
contractus, novation, and incorrect amount, are unsupported by cogent evidence
and do not withstand scrutiny. The Court is s atisfied that the Applicant has
provided a cogent and credible explanation for the discrepancies.

6 G Bradfield Christie’s Law of Contract in South Africa 7 ed (2016) at 497Van der Merwe et al.,
Contract: General Principles, Chapter 14, Termination of Obligations, 5th ed.
7 Pfeiffer v First National Bank of Southern Africa Ltd [1998] ZASCA 50; 1998 (3) SA 1018 (SCA);
[1998] 3 All SA 397 (A) (28 May 1998) at b1026 D-E, Standard Bank of South Africa Ltd v Oneanate

Investments (Pty) Ltd (in liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) at 829H – 832G

[29] The Applicant sought costs on an attorney and client scale, including the
costs of Counsel on scale B. The costs order sought is not competent. If a party
seeks a punitive costs order , it is not entitled under r ules 67 read with 69 to
claim Counsel’s costs separately. As the contract catered for attorney and client
costs, the Court shall order accordingly.

ORDER


1. The Respondent is directed to pay the Applicant R 1 651 207.03 (one million, six
hundred and fifty-one thousand, two hundred and seven rand, and three cents),
2. Interest on the sum reflected in the preceding paragraph at the prescribed rate of
interest per annum, a tempore morae to date of payment, and
3. Costs of suit on an attorney and client scale.


_____________________
AJAY BHOOPCHAND
Acting judge
High Court
Western Cape Division
Judgment was handed down and delivered to the parties by e-mail
on 21 November 2025


Applicant’s Counsel: Liuba Stansfield
Instructed by: Bernadt Vukic Potash & Getz
Respondent’s Counsel: E.S. Grobbelaar
Instructed by: Smith & De Jongh Attorneys