Silver Crystal Trading (Pty) Ltd v Namibia Diamond Corporation (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Page J
• Judgment Date: 18 August 1983
• Citation: 1983 (4) SA 884 (D)
• Hearing Date: 05 August 1983
• Court: Durban and Coast Local Division

Page J:

The plaintiff in this action seeks summary judgment against the defendant for payment of the sum of R2 071,60, being the amount due and payable in respect of goods sold and delivered and services rendered by the plaintiff to the defendant at the latter's special

Page J

instance and request. The defendant opposes the application and states, in its opposing affidavit, that, whilst it is indebted to the plaintiff in the sum alleged for goods sold and A delivered, the plaintiff has not rendered any services to the defendant. As regards its admitted indebtedness, the defendant raises a counterclaim for damages in an amount of R13 875 by virtue of which it alleges that it is entitled to a stay of the plaintiff's claim until such time as its counterclaim is liquidated by judgment and, thereafter, to set off its counterclaim against the money admittedly owing by it to the plaintiff.

The basis of the defendant's counterclaim is, briefly, the B following. The goods purchased by the defendant from the plaintiff consisted of crystal ornaments which were sold by the defendant at its various retail outlets at a price 25% lower than that at which the identical goods were being sold by other retail outlets in the Durban area. As a result the defendant C succeeded in reselling all the goods in a very short period of time and received a number of further orders for such goods. In order to enable it to execute the orders and to restock its own outlets it ordered a further quantity of the goods from the plaintiff. The defendant was thereupon informed by a representative of the plaintiff that it was "cutting the price" D of the plaintiff's goods and that the plaintiff would not supply any further goods to it unless it resold such goods at a minimum mark-up of 100%. The representative of the defendant then pointed out to the representative of the plaintiff that the plaintiff could not legally impose a minimum reselling price on the defendant and that any attempt to do so would constitute an unlawful interference in the defendant's rights. E The plaintiff, however, persisted in its refusal to supply the goods to the defendant save on the stipulated condition. As a result of such refusal the defendant suffered damage by way of loss of profit and loss of commission on the orders which it was thereby prevented from executing.

F It was common cause between counsel when the matter was argued that, if these allegations revealed a cause of action for the damages claimed by the defendant, the defendant should be given leave to defend.

The defendant relied upon the provisions of Government Notice R1 038 of 25 June 1969 which was published in Government Gazette 2442 (Regulation Gazette 1146) of 1969 in terms of s 6 G (5) of the Regulation of Monopolistic Conditions Act 24 of 1955. Act 24 of 1955 was repealed by s 21 of the Maintenance and Promotion of Competition Act 96 of 1979, but the provisions of Government Notice R1 038 of 25 June 1969 were saved by the provisions of s 21 (2) (b) of the later Act which provided:

"The provisions of Government Notice...