Brisen Commodities (Pty) Ltd v Farmsecure (Pty) Ltd and Others (4137/2009) [2011] ZAFSHC 109 (13 July 2011)

Brisen Commodities (Pty) Ltd v Farmsecure (Pty) Ltd and Others (4137/2009) [2011] ZAFSHC 109 (13 July 2011)

The court held that the dismissal of the application to present evidence at the exception stage was not appealable, as it was a procedural or interlocutory order that did not dispose of any substantial portion of the relief claimed in the main action. The contract expressly excluded reliance on implied or tacit terms, and the plaintiff could not plead such terms in contradiction of the written agreement. The upholding of exception 1, based on lack of averments to sustain a cause of action, was found to be correct and leave to appeal was refused. However, the court found that there was a reasonable possibility that another court may reach a different conclusion regarding exceptions 3, 4,...

Citation
[2011] ZAFSHC 109
Parties
Applicant: Brisen Commodities (Pty) Ltd; Respondent: Farmsecure (Pty) Ltd; Respondent: Farmsecure Capital (Pty) Ltd; Respondent: Yazbek: Jerome William; Respondent: Yazbek: Eugene Louwrens; Respondent: De Klerk: Petrus Frederick; Respondent: Maas: Pieter Johannes; Respondent: Lubbe: David Schalk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 July 2011
Case Number
4137/2009
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Exceptions and Interlocutory Applications
Outcome
Leave to appeal against the dismissal of the application to present evidence is refused. Leave to appeal to the Full Bench is granted in respect of exceptions 3, 4, 5, and 6 based on lack of averments to sustain a cause of action and the related costs order. Costs of the application are to be costs in the appeal.
Judges
Murray
Legal Topics
Exceptions to Pleadings, Implied and Tacit Terms, Arbitration Clauses, Penalty Clauses, Leave to Appeal, Costs Orders
Civil Procedure Commercial and Corporate Exceptions to Pleadings Implied and Tacit Terms Arbitration Clauses Penalty Clauses Leave to Appeal Costs Orders

Case Brief

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Parties

Brisen Commodities (Pty) Ltd

Applicant

Farmsecure (Pty) Ltd

Respondent

Farmsecure Capital (Pty) Ltd

Respondent

Yazbek: Jerome William

Respondent

Yazbek: Eugene Louwrens

Respondent

De Klerk: Petrus Frederick

Respondent

Maas: Pieter Johannes

Respondent

Lubbe: David Schalk

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Exceptions and Interlocutory Applications

Legal Issues

  1. 1 Is the dismissal of the application to present evidence at the exception stage appealable?
  2. 2 Should leave to appeal be granted against the upholding of exceptions based on lack of averments to sustain a cause of action?
  3. 3 Does the written contract exclude reliance on implied or tacit terms?

Ratio Decidendi

The court held that the dismissal of the application to present evidence at the exception stage was not appealable, as it was a procedural or interlocutory order that did not dispose of any substantial portion of the relief claimed in the main action. The contract expressly excluded reliance on implied or tacit terms, and the plaintiff could not plead such terms in contradiction of the written agreement. The upholding of exception 1, based on lack of averments to sustain a cause of action, was found to be correct and leave to appeal was refused. However, the court found that there was a reasonable possibility that another court may reach a different conclusion regarding exceptions 3, 4,...

Court Disposition

Leave to appeal against the dismissal of the application to present evidence is refused. Leave to appeal to the Full Bench is granted in respect of exceptions 3, 4, 5, and 6 based on lack of averments to sustain a cause of action and the related costs order. Costs of the application are to be costs in the appeal.

Orders

  • The application for leave to appeal against the dismissal of the application to present evidence is dismissed with costs.
  • The viva voce application to admit the supplementary affidavit is dismissed with costs.