Case no: 842/2008

And

JUDGMENT BY: G KHAN, AJ

HEARD ON: 17 SEPTEMBER 2010

DELIVERD ON: 28 July 2011

JUDGMENT

[2] At the rule 37 conference the parties agreed to confine the issues of dispute as follows:

[3] It was further agreed that if it is found to have been the case, the matter is to be postponed for the determination of the quantum of the counterclaim.

[4] Two witnesses testified. One, MR. STEVEN GREGORY EHLER ("EHLER") represented the Plaintiff at the time the agreement was concluded and accordingly testified on behalf of the plaintiff. The other witness, Mr. D S BOTHA ("BOTHA"), who represented the Defendant at the time the agreement was concluded with the Plaintiff, testified on behalf of the Defendant. Their evidence is substantively similar.

[6] It was further agreed that Maxiprest should be given an opportunity to deliver a presentation to the Defendant with a view to securing the same service. Should it reach an agreement with the Defendant, Maxiprest would be entitled to charge a fee of 70.00 rand per tyre for such service and payment thereof would be made by the Plaintiff directly to Maxiprest. However, should no such agreement transpire then the Defendant would be entitled to receive the amount of 70.00 rand per tyre from the Plaintiff, as an additional rebate over and above the 200.00 rands agreed upon for such service. It is further common cause that no agreement was arrived at between Maxiprest and the defendant and the service was in fact rendered by the defendant via its own staff, machinery and infrastructure.

[8] Ehlers testified that a delegation of Maxiprest attended the premises of the Defendant in Bloemfontein to evaluate the provision of the service but it does not appear that any presentations were made to the Defendant. What is notable however is Botha's evidence to the effect that Maxiprest, after evaluating the provision of the service, made a proposal to the Defendant which was also reduced to writing. Furthermore, that the Defendant did not accept the said proposal. This evidence was not challenged by the Plaintiff and the probabilities favor such version. It is common cause that Maxiprest never rendered such service to the Defendant in Bloemfontein and it is highly unlikely that Maxiprest would go to all the trouble of evaluating the provision of the service in Bloemfontein and not make a proposal.

[10] Counsel for the Plaintiff made great play of the fact that the evidence of Botha in court materially contradicted his affidavit in the Summary Judgment Application. Close scrutiny of the evidence as well as his affidavit does not bear out such contradiction. In any event, Botha provides a reasonable explanation for any possible ambiguity. The evidence of Botha is in fact corroborated materialy by the evidence of Ehlers. In my view both witnesses were honest and credible in the delivery of their respective testimony.

[13] In the premises, the following order is made:

1. In addition to the 200.00 rand per tyre rebate, the Defendant is entitled to a further rebate of 70.00 rands for each tyre purchased by it from the Plaintiff from the inception of the agreement to the termination thereof;

3. The Plaintiff to pay costs.

On behalf of the Plaintiff: Adv J B Maritz

Instructed by:Pierre Krynau Attorneys 

42 Pres Steyn, Westdene 

BLOEMFONTEIN

On behalf of the Defendant: Adv S J Reinders

Instructed by: McTyre & Van der Post Attorneys 

12 Barnes Street, Westdene

BLOEMFONTEIN