Afrisam (South Africa) (PTY LTD) v Make Commodities (PTY) Ltd (A5075/2021; 3071/2018) [2022] ZAGPJHC 641 (5 September 2022)

Afrisam (South Africa) (PTY LTD) v Make Commodities (PTY) Ltd (A5075/2021; 3071/2018) [2022] ZAGPJHC 641 (5 September 2022)

The court found that the operative agreement between the parties was the vendor application and general conditions of purchase (Annexures SP1 and SP2), which included an arbitration clause. Annexure K, relied upon by the respondent, was unsigned and contained a formality requirement that both parties sign for it to become binding. The evidence showed that the appellant did not sign Annexure K and intended to monitor performance before finalising any longer-term agreement. The purchase orders issued were governed by the general conditions, and the advanced payment and other terms were consistent with those documents. The court concluded that consensus was not reached on Annexure K and that...

Citation
[2022] ZAGPJHC 641
Parties
Appellant: Afrisam (South Africa) (PTY LTD); Respondent: Make Commodities (PTY) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 September 2022
Case Number
A5075/2021; 3071/2018
Procedural Posture
Civil Appeal / Appeal From Decision of Court a Quo on Special Plea of Jurisdiction
Outcome
Appeal upheld. The order of the court below is set aside and replaced with an order upholding the special plea with costs.
Judges
Strijdom, Manoim, Malindi
Legal Topics
Arbitration Clause, Contract Formation, Jurisdiction, Special Plea, Offer and Acceptance
Commercial and Corporate Civil Procedure Arbitration Clause Contract Formation Jurisdiction Special Plea Offer and Acceptance

Case Brief

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Parties

Afrisam (South Africa) (PTY LTD)

Appellant

Make Commodities (PTY) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of Court a Quo on Special Plea of Jurisdiction

Legal Issues

  1. 1 Which contract governs the relationship between the parties regarding the coal supply agreement.
  2. 2 Whether the court has jurisdiction to hear the dispute or if it must be referred to arbitration.
  3. 3 Whether the unsigned contract (Annexure K) constitutes a binding agreement between the parties.

Ratio Decidendi

The court found that the operative agreement between the parties was the vendor application and general conditions of purchase (Annexures SP1 and SP2), which included an arbitration clause. Annexure K, relied upon by the respondent, was unsigned and contained a formality requirement that both parties sign for it to become binding. The evidence showed that the appellant did not sign Annexure K and intended to monitor performance before finalising any longer-term agreement. The purchase orders issued were governed by the general conditions, and the advanced payment and other terms were consistent with those documents. The court concluded that consensus was not reached on Annexure K and that...

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced with an order upholding the special plea with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and replaced with: 'The defendant's special plea is upheld with costs.'