Brisen Commodities (Edms) Bpk v Farmsecure (Edms) Bpk and Others (A255/11) [2012] ZAFSHC 31 (1 March 2012)

Brisen Commodities (Edms) Bpk v Farmsecure (Edms) Bpk and Others (A255/11) [2012] ZAFSHC 31 (1 March 2012)

The court held that the co-operation agreement between the parties contained clear and express prerequisites for cancellation and the claiming of damages, including written notice to remedy breaches, referral of disputes to mediation and arbitration, and determination of damages by an arbitrator. The appellant's particulars of claim failed to allege compliance with these requirements or provide reasons for non-compliance. The penalty clause for three years' loss of profit was severe and contractually limited to specific circumstances. The court found that the exceptions were correctly upheld by the court a quo, as the particulars of claim did not disclose a cause of action in the absence...

Citation
[2012] ZAFSHC 31
Parties
Appellant: Brisen Commodities (Edms) Beperk; Respondent: Farmsecure (Eiendoms) Beperk; Respondent: Farmsecure Capital (Eiendoms) Beperk; Respondent: Jerome William Yazbek; Respondent: Eugene Lourens Yazbek; Respondent: Petrus Frederick de Klerk; Respondent: Pieter Johannes Maas; Respondent: David Schalk Lubbe
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 March 2012
Case Number
A255/11
Procedural Posture
Civil Appeal / Appeal Against Upholding of Exceptions to Particulars of Claim
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Kruger, M.H. Rampai, C.J. Musi
Legal Topics
Exceptions to Particulars of Claim, Contractual Interpretation, Arbitration Clause, Penalty Clause, Notice of Cancellation
Civil Procedure Commercial and Corporate Exceptions to Particulars of Claim Contractual Interpretation Arbitration Clause Penalty Clause Notice of Cancellation

Case Brief

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Parties

Brisen Commodities (Edms) Beperk

Appellant

Farmsecure (Eiendoms) Beperk

Respondent

Farmsecure Capital (Eiendoms) Beperk

Respondent

Jerome William Yazbek

Respondent

Eugene Lourens Yazbek

Respondent

Petrus Frederick de Klerk

Respondent

Pieter Johannes Maas

Respondent

David Schalk Lubbe

Respondent

Procedural Posture

Civil Appeal / Appeal Against Upholding of Exceptions to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclosed a cause of action in light of the contractual prerequisites for cancellation and damages.
  2. 2 Whether the plaintiff was required to plead compliance with notice and arbitration requirements under clause 8.2 of the co-operation agreement.
  3. 3 Whether the penalty clause for three years' loss of profit could be enforced without compliance with contractual procedures.

Ratio Decidendi

The court held that the co-operation agreement between the parties contained clear and express prerequisites for cancellation and the claiming of damages, including written notice to remedy breaches, referral of disputes to mediation and arbitration, and determination of damages by an arbitrator. The appellant's particulars of claim failed to allege compliance with these requirements or provide reasons for non-compliance. The penalty clause for three years' loss of profit was severe and contractually limited to specific circumstances. The court found that the exceptions were correctly upheld by the court a quo, as the particulars of claim did not disclose a cause of action in the absence...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.