Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd (365/2000) [2002] ZASCA 25; [2002] 3 All SA 369 (A); 2002 (4) SA 681 (SCA) (28 March 2002)

Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd (365/2000) [2002] ZASCA 25; [2002] 3 All SA 369 (A); 2002 (4) SA 681 (SCA) (28 March 2002)

The majority of the Supreme Court of Appeal held that Africa Solar (Pty) Ltd's standard terms and conditions were not incorporated into the agreement for the supply of solar panels to Divwatt (Pty) Ltd. The Court found that the credit application form was completed by the respondent for administrative purposes, and the reverse side containing the standard terms was not faxed or made available to the respondent at the time of contracting. There was no consensus or animus contrahendi regarding the incorporation of those terms. Consequently, the respondent was not precluded from raising the exceptio non adimpleti contractus or from pursuing a counterclaim for damages based on alleged breach....

Citation
[2002] ZASCA 25
Parties
Appellant: Africa Solar (Pty) Ltd; Respondent: Divwatt (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2002
Case Number
365/2000
Procedural Posture
Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division; Supreme Court of Appeal
Outcome
Appeal dismissed; order of the trial court stands. Matter remitted for determination of remaining issues.
Judges
Nienaber, Olivier, Streicher, Farlam, Nugent
Legal Topics
Contractual Terms Incorporation, Exceptio Non Adimpleti Contractus, Remedies for Defective Performance, Standard Terms and Conditions, Procedural Non Compliance, Damages Exclusion Clauses
Commercial and Corporate Civil Procedure Contractual Terms Incorporation Exceptio Non Adimpleti Contractus Remedies for Defective Performance Standard Terms and Conditions Procedural Non Compliance Damages Exclusion Clauses

Case Brief

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Parties

Africa Solar (Pty) Ltd

Appellant

Divwatt (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Transvaal Provincial Division; Supreme Court of Appeal

Legal Issues

  1. 1 Whether the seller's standard terms and conditions were incorporated into the agreement for the supply of goods to the buyer.
  2. 2 Whether the defendant was precluded by the terms of the agreement from withholding payment and from pursuing a counterclaim for damages based on alleged breach.
  3. 3 Whether procedural non-compliance with court rules and directives warrants a punitive costs order.

Ratio Decidendi

The majority of the Supreme Court of Appeal held that Africa Solar (Pty) Ltd's standard terms and conditions were not incorporated into the agreement for the supply of solar panels to Divwatt (Pty) Ltd. The Court found that the credit application form was completed by the respondent for administrative purposes, and the reverse side containing the standard terms was not faxed or made available to the respondent at the time of contracting. There was no consensus or animus contrahendi regarding the incorporation of those terms. Consequently, the respondent was not precluded from raising the exceptio non adimpleti contractus or from pursuing a counterclaim for damages based on alleged breach....

Court Disposition

Appeal dismissed; order of the trial court stands. Matter remitted for determination of remaining issues.

Orders

  • The appeal is dismissed with costs, a third of which costs is to be taxed on the scale as between attorney and client.
  • The matter is remitted to the trial court to determine whether the panels were defective and the quantum of any counterclaim.