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[1995] ZASCA 75
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Woolfson's Import & Export Enterprises v Uxolo Farms t/a Spitzberg Ginger (677/93) [1995] ZASCA 75 (31 May 1995)
CG CASE NUMBER: 677/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
WOOLFSON'S IMPORT & EXPORT
ENTERPRISES CC Appellant
and
UXOLO FARMS T/A SPITZBERG GINGER Respondent
CORAM:
HEFER, EKSTEEN et VAN DEN HEEVER JJA
HEARD ON:
18 MAY 1995
DELIVERED ON:
31 MAY 1995
JUDGMENT VAN DEN HEEVER JA
2
The appellant, who was the unsuccessful plaintiff in the court a quo,
seeks to reverse orders made in favour of the respondent (the
defendant below)
in the Transvaal Provincial Division. The appellant is a close corporation which
does business as an importer and
exporter under the trade name "Remex". The
respondent is a partnership producing and selling ginger under the trade name
"Spitzberg
Ginger". In what follows I refer to the parties as either Remex or
the plaintiff, and Spitzberg or the defendant respectively.
It is common cause that in terms of an oral agreement concluded during
1990, in which Remex was represented by Mr Woolfson, Spitzberg
sold and
delivered ginger intended for export to Remex on a number of occasions.
Spitzberg effected delivery by handing over each
consignment to a cartage
contractor who in turn delivered it at Jan Smuts airport from where it was
airfreighted to London. It is
also common cause that Remex did not pay the
agreed price of R8 200,00 in respect of one of these consignments.
3
The issues between the parties - as to what the terms of their agreement
were, whether Spitzberg breached the contract in material
respects; and the
basis on which Remex calculated its damages - were set out in the pleadings as
follows.
In its particulars of claim, Remex alleged that the oral
agreement
contained the following terms:
"... that the ginger would comply with the relevant governing
specifications relating to ginger to be exported from the Republic and
in
particular that -
4.1.1 the ginger would be free of mould; and
4.1.2
the ginger
would be clean and practically free from any visible foreign matter;
and
4.1.3
the ginger would
not be blemished and misshapen and scarred ginger roots would be excluded from
the ginger purchased".
Spitzberg admitted
these allegations in its plea.
Remex alleged further that
"5. At the time of the conclusion of the aforesaid agreement the
defendant was aware of the following facts and the agreement was
concluded on
the basis of the said
4
facts, namely that:-
5.1 the ginger was purchased by the plaintiff for export
from
the Republic;
5.2 the plaintiff would rely on the defendant to deliver only ginger meeting
the specifications as set out hereinabove and not itself
inspect same, nor have
same inspected prior to freighting the ginger overseas;
5.3 should the ginger not meet the specifications as set out hereinabove,
same would be of no use and would have no commercial value
to the plaintiff who
would by virtue of its inability to sell and/or its inability to receive payment
for the ginger from its purchaser,
suffer damages in an amount totalling the
cost of freighting and/or the loss of profits as are set out more fully in
paragraph 9
- 9.4 hereunder".
(Those
calculations refer to consignments identified by date of shipment and number of
air waybill.) The plea admits that the representative
of Spitzberg was aware of
the facts set out in sub-paragraphs 5.1 and 5.2, but denies the remaining
allegations contained in paragraph
5.
The version of the agreement alleged by Spitzberg in its counterclaim,
for the unpaid purchase price of a further consignment, is
that
5
"2.1 Verweerder ooreengekom het om gemmer aan Eiser te verkoop;
2.2 Lowering van die gemmer sou geskied het aan mnr
Barnard, 'n
vervoerkontrakteur te Hazyview;
2.3 Betaling deur Eiser aan Verweerder sou geskied
van
Verweerder se gebruiklike pryse vir die gemmer, sodra
die
toepaslike owerhede die gemmer vir uitvoer te
Jan
Smutslughawe sou
goedkeur."
Remex in turn admitted these
allegations but added the qualification that
defendant would be paid
"providing that the ginger complied with the relevant governing
specifications relating to ginger to be exported from the Republic,
which
specifications are more fully set out in paragraphs 4.1.1 to 4.1.3 of the
plaintiffs particulars of claim, which are herewith
repeated".
And in further particulars Spitzberg admitted that their agreement
did
contain those terms.
The breach of contract on which Remex relied (and which
is
denied by Spitzberg), is that the latter delivered
ginger -
"6.1.1 which was not free from mould; and
6.1.2 which was not clean and free from any visible
foreign
i
6
matter; and
6.1.3 which
had blemished and misshapen and scarred
roots.
6.2 Further
details of the defects in the ginger appear from
the report of J & B Seymour
Consultants"
which was annexed to the
particulars of claim. The particulars continue
that, ignorant of the
defendant's breach, Remex freighted the ginger
overseas; which
"... was of no use and/or commercial value to the plaintiff who was
unable to sell same, alternatively unable to obtain payment of
the purchase
price from its purchasers and was accordingly unable to recover the cost of
freighting the ginger overseas".
Then follow its calculations in respect of certain consignments, based on
what it cost Remex to deliver each such consignment in London,
minus the "total
nett proceeds from sale". To this loss, Remex added its loss of profit. The
total claimed in respect of four consignments
- shipped on 21 August, 27 August,
3 September and 10 September 1990 respectively - was R43 807,98.
7
At the close of the plaintiffs case, counsel for the defendant, Mr Swart,
applied for absolution from the instance on two grounds,
He argued -
(a)
that the
plaintiff had failed to lead any evidence that the ginger delivered did not
comply with South African export regulations;
and, in any
event,
(b)
that the plaintiff
had failed to lead admissible evidence of the value of the performance in fact
received by Remex, and so had failed
to provide the trial court with the
material necessary to enable it to quantify its
damages.
During the course of Mr Swart's
argument the trial judge inquired whether the continued existence of the
counterclaim should not have
a bearing on his decision. Mr Swart intimated that
his client was not adamant about proceeding with that and, if granted
absolution,
would ask that the counterclaim be postponed sine die. In the
ensuing judgment, the trial court
8
1. commented that such a request would make commercial sense. In the course
of the plaintiff's testimony Woolfson had admitted that,
apart from its interest
in the action, Remex's assets were limited;
2. commented unfavourably as to the suffiency of the evidence tendered by
Remex but
3. refused absolution on the ground that "it is possible that evidence may
be forthcoming" - obviously, from witnesses testifying
in support of the
counterclaim - "supplementing the plaintiff's case which may then lead the court
to grant judgment for the plaintiff'.
Mr Swart proceeded to close his client's
case on the claim and
asked that the counterclaim be
postponed sine die. Mr Coetzer, who
appeared for Remex at the trial, i.a. objected to the latter
request,
stressing that the claim and counterclaim were inextricably
interwoven.
The trial judge dealt first with the request for postponement:
"This seems to me to be eminently a case where it would be futile for a
defendant to carry on with a counter-claim which will be an
empty shell in the
end. In the circumstances I
9
am of the view that I must accede to the request to postpone it sine die and
reserve the question of costs, that means that it will
always be for the
plaintiff, if it so wishes to place that matter on the roll again and to see if
it can recover its costs."
Absolution was
then granted since the basis of the earlier refusal, that possibly the defendant
could augment the plaintiffs case,
had fallen away. As regards costs, Remex was
ordered to pay Spitzberg's costs of the claim, the costs of the counterclaim
being reserved
"for hearing by the court hearing the counterclaim". The trial
judge ruled, for the benefit of the taxing master, that the time spent
on
plaintiff's claim was 95%, on the counterclaim 5%, of the hearing.
Leave was subsequently granted to appeal to this Court. The main issues
before us are whether the trial judge was correct
1. in finding that Remex had not made out a prima facie case
that
Spitzberg had breached the agreement between the
parties;
2. in finding that Remex had not adduced sufficient evidence to
enable
the court to calculate the damages Remex had allegedly
suffered; and
10
3. in postponing the counterclaim sine die.
Short shrift can
be made of the third of these. The purpose of the defendant's ploy in asking for
a postponement of the counterclaim
could only have been to avoid the
unfavourable costs order that would inevitably have followed should defendant
either have withdrawn
the counterclaim or have forthwith closed its case on
that, resulting in absolution in favour of Remex. The procedure adopted used
form to conceal fact. The avenue pointedly left open to the plaintiff (to enrol
the matter again should it wish to pursue its claim
to the costs of the
counterclaim) was an obviously unnecessary burden imposed on Remex since the
matter was already before the court
and Remex wished it to be dealt with
forthwith. The court must have been satisfied that Remex would be unable to
follow this avenue
and Spitzberg content not to resume this burden in future:
pursuit of the counterclaim would destroy the foundation on which the
court had
based its refusal to grant absolution in the first instance, and threaten the
foundation on which
11
absolution had been granted thereafter.
I return below to
what is to happen to the improperly postponed counterclaim.
The
evidence relevant to the issues on the merits may be summarized as
follows.
Mr R M Sater was to all intents and purposes the United Kingdom client
Remex supplied with ginger which Remex bought in the Republic
of South Africa
from Spitzberg, supplemented later by supplies from a concern called Vaspan.
Sater was bom and bred in South Africa,
but moved to the United Kingdom in 1986
where he i.a. launched a company, Montpelier Trading, through which he imported
fruit and
vegetables from South Africa. He met Woolfson in 1990. A sample of
ginger Woolfson gave him found favour with one of Sater's up-market
clients.
Sater ordered a ton of ginger, to be packed in 10-kilogram boxes and
air-freighted to London. The first consignment was
of such high quality, that
Sater's market expanded in the United Kingdom and he
12
placed orders with Remex for increasing consignments of ginger to be
delivered weekly by air, for which he undertook to pay £16
per box. He
himself did not see the produce. It was received, cared for and distributed by
others on behalf of Montpelier. After
a few weeks, Sater received a complaint
and offered that customer a discount, accepting that his supplier had merely had
a "bad week",
which was not unusual in the fresh produce market. Then ginger was
returned by a customer of Montpelier's as unacceptable. Sater
contacted
Woolfson. Woolfson wanted an independent expert opinion. Sater called in Mr
Gentle of the South African Embassy, whose
task it was "to ensure that all
produce from South Africa meets the standards which South Africans are known
for", and also approached
a firm of experts in the Geld of the assessment and
control of the quality of fresh produce, J & B Seymour Consultants. On 18
September 1990 Sater and Gentle met two experts from J & B Seymour, messrs.
Allard and Russell, at the premises of a concern
called Panfresh near Heathrow
Airport. Panfresh takes delivery of imported
13
fresh produce on behalf of importer customers (including Montpelier), and
stores it under optimum conditions before distributing it
in accordance with its
clients' instructions. There 60 boxes taken at random from four consignments of
South African ginger emanating
from Spitzberg and airfreighted according to the
relevant documentation on 21 and 27 August, and 3 and 10 September from Jan
Smuts
airport, were inspected. Sater took photographs of what he saw. Allard
advised him that by rights a public health inspector should
be called in to
condemn the consignments. Sater dissuaded him from doing so, contacted Woolfson,
informed him that Montpelier's customers
would have nothing to do with such
inferior ginger, and asked what Woolfson wished him to do with it. It was agreed
that he would
attempt to get rid of the ginger as best he might, and remit what
money he received (less his expenses in doing so) to Remex. Sater
detailed the
steps he took in accordance with this undertaking. He was challenged in
cross-examination by Mr Swart as to the admissibility
of his evidence relating
to the condition of
14
the ginger when he saw it, since he did not purport to testify as an
expert and no notice had been given in terms of Supreme Court
Rule 36(9)(b) that
he would do so. His reply was that he was testifying about what he saw, as an
observer and not an expert; and
that he knew from experience -
scil.
as
an importer of fresh produce, not a horticulturalist -that ginger properly
treated and stored has a shelf life of between four
and six months. What he saw
was ginger that was soiled, infected with mould, misshapen and scarred, and a
far cry from the sample
on the strength of which he had placed regular orders.
He was unable when pressed by Mr Swart to give details as to the going rates
for
the different steps he took in the process of having the ginger disposed of - in
less affluent and less choosey markets than
those Montpelier had disappointed as
a result of the flaws in the produce - transport, commission charged, and so on.
He was however
unshaken that he had done all in his power, through reliable and
honest agencies, to dispose of the ginger to best advantage. He
was fully aware
that the condition of the ginger would
15
deteriorate progressively as time went by because of the mould
infecting
it. However,
"... there were seven tons of ginger which had been stated to be
defective. If we had taken all seven tons to the market in one week,
we would
not have been able to sell it. What we did was, split it up into five different
markets and we sent out small portions per
week, so that we could clear the
goods consistently. If you dump out-of-grade ginger, you really have a major
problem".
Mr Richard Allard from the United Kingdom was the expert called on behalf
of the plaintiff in support of the report which was an annexure
to the
pleadings. He himself was the author of that report although another had signed
it on behalf of the firm J & B Seymour
Consultants. It is unnecessary to
detail his qualifications or his experience which stretched over many decades in
i.a. the inspection
and assessment of fresh produce for purposes of quality
control and loss assessment. It was not his expertise which was challenged,
but
the norm against which he assessed the ginger which he and his colleague
inspected that day and
16
reported on. He detailed the steps taken to select a random but
representative sampling from the consignments in question. There was
no
confusion between Spitzberg and Vaspan ginger. The boxes bore the producers'
names, and all claimed to contain Class 1 ginger.
None did. His description of
what he saw corroborates Sater's interpretation of the photographs he took that
day. Had a health inspector
been called in, the entire consignment would have
been condemned. He knows Panfresh distribution centre well and comes there often
enough to state that its reputation of being one of the best such centres in and
around London is well deserved. He knows its methods.
He had no reason to think
that the poor condition of the ginger as he saw it was due to any incorrect
handling whether in transit
or storage by Panfresh.
The major attack launched against Allard's evidence by Mr Swart was
founded on the fact that Allard rated the ginger as second class
or "out of
grade" (i.e. lower than class 2), "using the OECD Recommended Quality Standards
for fresh ginger". Allard explained that
the acronym
17
stands for the Organization of Economic Co-operation and Development,
which has its headquarters in Paris. Allard did not pretend
to have any expert
knowledge of the content of the South African regulations governing the export
of ginger from the Republic of
South Africa, nor whether the permissible
percentages of deviation from the desirable norm which he applied, approximated
to norms
laid down here. But Allard was unshaken that the flaws he saw in the
ginger were due to careless harvesting - leading to tears and
cuts; to lack of
proper cleaning -leaving roots soiled; and to lack of proper curing and drying,
along with failure to treat the
roots with fungicide and growth inhibitors
before packing the produce - leading to the development of mould and some roots
starting
to sprout. He had no doubt that the origin of the mould he saw was to
be found in insufficient pre-packaging care; and that, once
mould started, it
was almost impossible to reverse the process of rapid deterioration that would
follow.
The last witness called, was Mr Woolfson. He corroborated the
18
evidence of Sater as to how their business relationship began. Initially
he had bought ginger from Spitzberg through an intermediary,
a certain Ludi; but
after one or two consignments he had contacted Spitzberg direct and spoken to Mr
Schreuder of that concern. He
confirmed that their agreement included the terms
set out in paragraph 4 of Remex's particulars of claim. He himself had seen the
original consignment which he had sent to Montpelier. It was magnificent ginger.
When he made contact personally with Schreuder,
Schreuder said that he was aware
of the export regulations and knew how to comply with them. The understanding
was that Spitzberg
would supply ginger of the same quality as the first
consignment; and that if the ginger delivered did not match the quality of that,
"the ginger would effectively become worthless to us and the reason for that is
that we would then not have a customer for it, a
client". Schreuder was aware
that Remex would rely on Spitzberg for quality control since Remex would not
itself handle the ginger
at any stage. He had contacted Schreuder when the
first
19
complaint about the quality of the ginger delivered was voiced. Sater
thereafter faxed Allard's report to him immediately after the
four consignments
had been inspected. He contacted Schreuder and relayed the expert opinion that
by rights those four consignments
should be condemned, but "we would see what we
could do". Schreuder slammed the phone down on him.
Woolfson was cross-examined vigorously for allegedly seeking to have
English standards applied to the ginger delivered, instead of
the South African
norms relevant to the agreement between the parties; and was pressed to explain
why he had been and remained unwilling
to acknowledge that the ginger had been
inspected at Jan Smuts airport, despite conceding that according to the relevant
documentation
put before court it had been passed for export by the appropriate
officials there. Mr Swart obtained the inevitable concession that
Woolfson had
no personal knowledge whether the costs and charges incurred by Sater which he
had deducted from the price he obtained
for the flawed ginger had been
20
reasonable, or that the ginger had been sold for its market
value.
It is unnecessary to set out further detail of the testimony.
The witnesses did not contradict one another or themselves in any material
respect and, of course, their evidence stands uncontradicted.
Both the argument advanced by Mr Swart and the judgment of the court a
quo burden Remex with an agreement containing terms which conflict
with those
that were common cause on the pleadings and confirmed by Woolfson in his
evidence. He had been quite right to refuse to
commit himself as to whether the
ginger delivered by Spitzberg had been inspected at Jan Smuts airport. It was
irrelevant whether
any inspector had or had not approved such roots, whether on
the strength of prior inspection or as a formality. The touchstone against
which
the parties' agreement required the ginger to be tested, was an objective one:
it had to comply with "the relevant governing
specifications relating to ginger
to be exported from the Republic". No evidence was tendered as to what those
specifications laid
down. Mr Swart put it to Woolfson that
21
Schreuder would say that he had obtained a memorandum from
the
Department of Agriculture, allegedly containing specifications
relating to
ginger to be exported. He asked whether Woolfson wished
to comment
on this document. Woolfson replied in the negative. Even
had the
memorandum, dated 7 October 1987, become admissible evidence of
the
truth of its contents by such a passing reference, it could not
assist the
defendant. It set out "voorskrifte/standaarde" to be
administratively
applied pending the promulgation of "nuwe regulasies", and did
so
incoherently. Phrases like
"(e) Bederf met 1% afwyking. (f) Verlep met 1% afwyking"
are at least ambiguous. Specifications like
"(g) Skoon gewas en vry van vreemde stowwe.
(j) Moet eenvormig per houer wees.
(k) Moet behandel wees met 'n geskikte swamdoder"
are not. In any event 1 repeat that it was conceded on the pleadings that
the applicable specifications included (or, in the plea
to the
counterclaim,
22
were limited to) the imperatives that the ginger had to be free of mould,
clean, and not blemished, misshapen or scarred. The court
a quo was accordingly
quite wrong in regarding it as a fatal lacuna in the plaintiffs case
that
"...there is no evidence before the court as to what the condition of the
ginger was or would have been in the eyes of an inspector
who had to inspect it
in terms of the agreement".
The uncontradicted evidence of Allard and Sater makes it clear that the
ginger did not match up to the admitted requirements when
it was inspected. The
failure to match up with the second and third imperatives clearly constituted a
defect present already on delivery
at Jan Smuts airport, so that the lapse of
time between that delivery and the inspection - of which much was sought to be
made at
the trial - is irrelevant. Allard was adamant, as already pointed out,
that the progressive infection
23
of mould seen at the inspection also originated before that
delivery.
In short, there was at the very least prima facie evidence
that the common cause terms of the agreement between the parties had been
breached by the defendant. That the breach was material can hardly be questioned
in the light of Allard's evidence that the ginger
should by rights have been
destroyed.
On the issue of damage, too, defendant sought to confine plaintiff to a
method of computing its quantum in which Remex was not interested.
In the
preliminary skirmishing before the trial, both on paper and at the pre-trial
conference, Spitzberg pressed Remex for advance
notification of the expert
evidence Remex proposed leading to enable the court to quantify the damages
claimed. Remex was constant:
it had no intention of calling expert evidence on
this issue. Both Mr Swart and the trial court ignored paragraph 5 of the
particulars
of claim and Woolfson's evidence, from which I have quoted earlier,
that the agreement was concluded on the basis that, having an
overseas customer
for quality
24
ginger, inferior ginger was of no use to Remex. In the light of
that
uncontradicted evidence, the trial court erred in holding there to be
a
second fatal lacuna in plaintiffs case:
"There is no expert evidence before this court as to what second grade or
out of grade ginger could fetch on various markets testified
to by Mr Allard in
England. One of the items claimed by the plaintiff represents his out of pocket
expenses to market the ginger
in England and there are various items under this
head. He had to pay customs costs, cartage, handling, distribution and market
commission.
I have no problem that if those
costs had to be incurred in order to realise something, that that is a figure
which a court can and
must take into account in working out what the damages
have been. My difficulty is that there is really no evidence before the court
as
to how these amounts were paid out, to whom, for what and if they were
reasonable in the England situation."
The objective of an award of damages for any breach of contract, is to
put the injured party in the position in which he would have
been, financially
speaking, if the other party to the contract had performed properly in
accordance with its terms, without being
unfair to the
25
defendant. The cases are legion - see e.g. NOVICK v BENJAMIN
1972 (2) SA
842
(A) 860 A-B. The method by or date at which to calculate the sum required to
achieve this object, is not defined by laws of the Medes
and Persians, despite
"working rules" accepted as being applicable
and fair in the majority of cases. (Cf for example HOFFMANN AND CARVALHO
v MINISTER OF AGRICULTURE
1947 (2) SA 855
(T); NOVICK v BENJAMIN supra at p 859
D-G; CULVERWELL AND ANOTHER v BROWN
1990 (1) SA 7
(A).) In the present matter
the object of awarding damages would not be achieved were it to be limited by
reference to the market
value of the defective ginger, whether at delivery at
Jan Smuts airport or when Remex discovered its loss as a result of Allard's
report. Insistence on this method of quantification would have placed a
prohibitively expensive burden of proof on Remex. The ginger,
the markets - if
any - and the witnesses to testify to those were thousands of kilometres away.
In any event the uncontradicted evidence
supports the allegation in par 5.3 of
plaintiffs particulars of
26
claim, that Remex itself had no means of disposing of the ginger
Allard
thought should be condemned. It could only look to Sater to
make the
best of a bad job that would worsen progressively as the
mould itself
progressed. There can be no suggestion on this record
that it should
have acted in any other fashion; nor indeed that Sater did not
act
prudently in the steps he took; nor that Woolfson erred in saying,
when
challenged, that he himself could not say that the price received for
the
ginger was fair -
"I would go so far ... as to say that it is an incredible price in the
light of the fact that it could have been destroyed and we
could have received
nothing for it... or sent back to Jan Smuts and your client would today be
looking at a claim far, far greater
than this".
Cf HOLMDENE BRICKWORKS (PTY) LTD v ROBERTS CONSTRUCTION CO LTD
1977 (3)
SA 670
(A) 689 D-F.
Before us respondent did not dispute the other components of Woolfson's
sums when explaining the composition of Remex's loss: the
purchase price it had
paid for the ginger, the necessary expenses involved
27
in getting that to London, and the profit Remex would have made on its
contract of sale to Montpelier at £16 per box. It follows
that once the
figures of Sater and Woolfson are accepted as to what was salvaged and remitted,
the total amount claimed in the particulars
of claim is correct.
Reversal of the order of the court a quo on the main claim leaves the
postponed counterclaim suspended in mid-air along with the directive
made by the
trial judge to the taxing master that only 5% of the trial costs incurred should
be allocated to the counterclaim. That
ruling ignored the pre-history, that
Spitzberg obtained default judgment in the magistrate's court for R8 200,00
against Remex, which
was rescinded. Remex had been unaware of the issue of
summons. According to Woolfson it had been pinned to the door of vacant
premises.
By agreement between the parties this claim re-appeared as the
counterclaim in the action instituted in the Supreme Court by Remex.
Mr Swart conceded that should the appeal succeed, the counterclaim should
be dismissed with costs. (It being a matter pending
28
in the Transvaal Provincial Division, it is however not for this Court to
make such an order.) Mr Swart agreed that it should be noted
that in such event
defendant would withdraw its counterclaim and tender costs on the basis of the
agreement alleged in the counterclaim,
that each party would pay its own
magistrate's court costs.
No argument was advanced as to the propriety of the second prayer
contained in plaintiffs particulars of claim, which was for interest
on the
damages claimed at 18,5% p.a. from date of service of summons. Since the amount
claimed was originally greater than the final
figure and the quantum was in
dispute, I can think of no reason why interest should run from summons instead
of from the date of
the judgment of the trial court, namely 8 August 1993. Cf
RUSSELL NO AND LOVEDAY NO v COLLINS SUBMARINE PIPELINES AFRICA (PTY) LTD
1975
(1) SA 110
(A) 154-8.
However, for the very reason that no argument was addressed on the
question of either the date from which interest should run or the
rate
29
claimed, paragraph 3(b) of the order of this Court will be provisional
for 14 days from date of this judgment; with leave to both
parties to file
written argument on the matter within that period. Should none be forthcoming,
that paragraph of the order will become
final.
Finally: at the commencement of the hearing before us, plaintiff required
condonation, since the appeal had been lodged out of time.
Defendant did not
oppose and condonation was granted but plaintiff ordered to pay the
costs.
The following orders are
made:
1.
The
appeal succeeds, with costs.
2. The order of the trial court granting absolution from the instance with
costs is set aside and replaced with the following: "Judgment
is granted against
the defendant for -
(a)
Payment of the
sum of R43
807,98.
(b)
Interest on the
said sum at the rate prescribed from time to time, from 8 August 1993 to date of
payment.
30
(c) Costs of suit."
3. Paragraph 3(b) above shall be provisional for 14 days from date hereof
and become final only should the parties not file written
argument as to the
rate at and date from which interest is to run.
4. It is noted that respondent has undertaken to withdraw its counterclaim
in this matter still pending in the Transvaal Provincial
Division and to tender
appellant the costs thereof but so that each party will pay its own costs of the
prior magistrate's court
proceedings relating to the same
issue.
L VAN DEN HEEVER JA
CONCUR:
HEFER JA) EKSTEEN JA)