Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 15 October 1940
• Citation: 1941 AD 43
• Hearing Date: 25 September 1940
• Court: Appellate Division

Watermeyer, J.A.:

It appears from the record that in 1937 the plaintiff instituted an action against the Government in which it claimed the purchase price of certain concrete pipes required by the Provincial Administration of the Transvaal for road-making purposes, contending that the Government was obliged by the terms of a contract in writing between the parties to purchase them from the plaintiff. It also claimed an investigation and determination of its rights under the contract. An exception was taken which challenged the construction put upon certain terms of the contract by the plaintiff. This exception was ultimately decided in the plaintiff's favour and it was held by this Court that the construction put upon those terms of the contract by the plaintiff was correct.* Thereafter the plaintiff instituted another action against the Government claiming damages on the ground that the Government had purchased certain other concrete pipes required by the Provincial Administration of the Transvaal and the Department of Agriculture from some one other than the

Watermeyer, J.A.

plaintiff. In each of these two actions three pleas were filed and an application was made to file a fourth. The three last are alternative pleas and are referred to in the record as the alternative plea, the second alternative plea and the third alternative plea. Exceptions taken to the alternative plea and second alternative plea were upheld by the trial Court and leave to file the third alternative plea was refused. Against these orders the Government now appeals.

The terms of the contract between the parties are fully set out in the report of the past proceedings between the parties in this Court (1938 AD 560), so it is unnecessary to repeat them. The main plea filed on behalf of the defendant in effect sets up the defence that the written contract was not the complete contract between the parties, that there were other written and oral terms upon which it could rely. With that plea we are not now concerned.

The first alternative plea is as follows: -

"Should the Honourable Court hold that the written contract relied on in the declaration is in fact the contract between the parties, the defendant further pleads and says: -

I

That at the time the contract was made, it was by agreement between plaintiff and defendant entered into subject to the following suspensive conditions which at all times material to this action have been of full force and effect: -

(1)

that it would only come into operation when and to the extent that defendant's actual requirements had been ascertained in respect of any particular place in the Union; and

(2)

when it had been ascertained that in respect of such actual requirements plaintiff represented the most economical and most convenient source of supply in comparison with a number of other firms and companies with whom defendant to the knowledge and with the consent of the plaintiff had also contracted or was about to contract for its 1937 requirements. The contracts with the other firms and companies in question were all subject to the same suspensive conditions as that of plaintiff and are set out in annexures 'E' to 'L' to the plea.

Watermeyer, J.A.

That in respect of the purchases complained of in paragraph 9 of the declaration, the plaintiff was a less economical and less convenient source of supply than Messrs. The Hume Pipes Company (S.A.) Ltd, from whom the articles were purchased.

"Wherefore defendant prays for judgment in its favour with costs of suit."

The question is whether that plea discloses a legal defence.

In considering that question we must remember that this plea is an alternative one, only to be relied upon if the written contract is in fact the whole contract between the parties and its legal validity as a plea must be enquired into on that basis.

Now this Court has accepted the rule that...