AAA Brick Co (Pty) Ltd v Coetzee

• Jurisdiction: South Africa
• Judge: Hendler J
• Judgment Date: 18 September 1995
• Citation: 1996 (3) SA 578 (B)
• Docket Number: 11057/95
• Hearing Date: 18 September 1995
• Counsel: J H F Pistor for the applicant. A B Rossouw for the respondent.
• Court: Bophuthatswana Supreme Court

AAA Brick Co (Pty) Ltd v Coetzee
1996 (3) SA 578 (B)

1996 (3) SA p578

Citation	1996 (3) SA 578 (B)
Case No	11057/95
Court	Bophuthatswana Supreme Court
Judge	Hendler J
Heard	September 18, 1995
Judgment	September 18, 1995
Counsel	J H F Pistor for the applicant.; A B Rossouw for the respondent.

Flynote : Sleutelwoorde B

Set-off — When operative — Whether purchaser in contract of sale entitled to set off credits granted by seller against weekly instalments of purchase price — Nature of credits — Credits not amounting to normal reduction of purchase price allowed for C some or other defect but more in nature of refund for work completed on behalf of seller — Parties mutually indebted, both debts liquidated and fully due — Facts complying with legal requirements of set-off — Purchaser entitled to set off credits against weekly instalments of purchase price.

Headnote : Kopnota

D The parties had entered into a written contract of sale during October 1994 in terms of which the applicant sold a business to the respondent. At some time after the sale certain credits had to be passed by the applicant to the respondent. In January 1995 the applicant credited the respondent with the amount of R59 000. In consequence of the credit being passed the respondent ceased to pay the weekly instalments in respect of the E purchase price to the applicant alleging that the credit would cover his repayment until September 1995. As a result thereof the applicant repudiated the contract and instituted an action for the return of the business. The applicant approached the Court for an interim interdict in terms of which it sought control of the business pending the action for cancellation of the contract and return of the business. The applicant contended that the passing of credits did not allow the respondent to vary the terms of the contract and to F cease making weekly payments. It submitted that the credits merely brought about a reduction of the purchase price and would only come into reckoning when the last payment had to be made.

Held, that the respondent had incurred expenses in completing certain work on behalf of the applicant and that when those credits had been passed it could never have been the intention of the parties that the respondent would have to wait to the end of the contract, about three years, to recover the money he had utilised on behalf of the applicant: those G facts disclosed a different situation as to the position in Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D) on which the applicant relied. The credits passed did not amount to the normal reduction of purchase price, allowed for some or other defect, but were more in the nature of a refund for work completed on behalf of the applicant. A further distinguishing factor was that the amount set off had been a liquidated amount whereas in the Davenport case and in Sirioupoulos v Tzerefos 1979 (3) SA 1197 (O) the amounts set off had been unliquidated. (At 581C-F.)

H Held, further, that in casu the facts were of such a nature that they fully complied with the legal requirements of set-off: the parties were mutually indebted to each other, both debts being liquidated and fully due. (At 581F/G-I.)

The dictum in Schierhout v Union Government (Minister of Justice) 1926 AD 286 at 289-90 applied.

Held, further, that the applicant had not complied with the first and most important I requirement for obtaining an interdict, that is, 'a clear right (prima facie established) although open to some doubt'. Furthermore, the papers did not disclose that the applicant would suffer any irreparable harm if the application was not granted and with regard to the question of 'the balance of convenience' it had not been established that the prejudice the applicant would suffer if the application was refused would outweigh the prejudice to the respondent if the application was granted. (At 581I, read with 581J-582A and 582B/C.)

J Held, accordingly, that the application was dismissed. (At 582C.)

1996 (3) SA p579

Cases Considered

Annotations

Reported cases

A The following decided cases were cited in the judgment of the Court:

Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D)

Schierhout v Union Government (Minister of Justice) 1926 AD 286

Sirioupoulos v Tzerefos 1979 (3) SA 1197 (O).

Case Information

Application for an interim interdict pending an action for cancellation of a contract of sale B and the return of the business sold. The facts appear from the reasons for judgment.

J H F Pistor for the applicant.

A B Rossouw for the respondent.

Judgment

C Hendler J:

The applicant has...