Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Moll J
• Judgment Date: 15 October 1974
• Court: Witwatersrand Local Division

Moll, J:

In this matter the plaintiff has taken exception to B two of the claims raised by the defendant in its counterclaim as amended.

Before referring to the first of these claims I propose to set out the allegations in the amended counterclaim in support of the said claim.

The plaintiff which carries on business as agents and distributors in valves and allied products, entered into a C written agreement with the defendant, a manufacturer and dealer in plumbing and sanitary hardware, in terms whereof the plaintiff granted to the defendant the sole and exclusive authority and the sole agency within a certain area to make, use, exercise and vend certain plumbing and sanitary hardware products for a period of five years and itself undertook not to so make, use, exercise or vend such products for such period, in return for the payment of certain royalties.

D On 16 May 1973 the said agreement expired by effluxion of time.

After referring to certain terms of the said agreement which are not relevant to the present issue the defendant then sets out the following in its amended counterclaim:

"15. Further in terms of the said agreement:

(a)

The area in which the defendant enjoyed the said sole E and exclusive authority and the sole agency to make, use, exercise, and vend the plumbing and sanitary hardware products which were the subject of the agreement included the country of Zambia.

(b)

The plaintiff undertook not to make, use, exercise or vend such products in the said country during the currency of the agreement.

16. In breach of the term set forth in sub-para. (b) of para. F 15 hereof from time to time during the currency of the said agreement the plaintiff made, used, exercised or vended the said products in Zambia.

17. The defendant is unaware of the extent to which the plaintiff made, used, exercised and vended the said products in Zambia.

18. The plaintiff is in possession of the said information.

19. By reason of the allegations set forth in para. 16 hereof the defendant has suffered damages as a result of the G plaintiff's said breach, but being unaware of the quantum thereof is entitled in the premises to an enquiry as to such quantum and to payment of such damages as are found to be due to the defendant."

The claim is then formulated as follows:

"In respect of the plaintiff's operations in Zambia:

(i)

an enquiry as to the quantum of damages suffered by the defendant;

(ii)

payment of such damages as are found to be due to the defendant."

H In its original counterclaim the defendant had, on the allegations set forth in the aforesaid paras. 15 to 18 inclusive, alleged that it was entitled to a statement of account reflecting the said information and an accounting of the profits arising from the plaintiff's said operations. It had accordingly claimed such an order. It was the aforesaid allegation and claim which the defendant, therefore, in its amended counterclaim substituted by introducing the allegation that it had suffered damages as a result of the plaintiff's breach of the said agreement but that being unaware of the quantum thereof it was entitled to an enquiry as to such quantum and to payment of such

Moll J

damages as are found to be due to defendant, and accordingly claiming an order in such terms.

The question which, therefore, arises is whether in our law a plaintiff who alleges a breach of a contract as a result whereof he has suffered damages, the amount whereof he is A unable to prove, is entitled, upon alleging that the defaulting party is in possession of the requisite information, to claim an enquiry as to such damages and payment of such damages as are found to be due to him.

The right at common law to claim a statement of account is, of course, recognised in our law, provided the allegations in B support thereof make it clear that the said claim is founded upon a fiduciary relationship between the parties or upon some statute or contract which has imposed upon the party sued the duty to give an account. Allegations which do no more than to indicate a debtor and creditor relationship...