Cargill RSA (Pty) Ltd v Bibbey N.O. and Others; Cargill RSA (Pty) Ltd v Thunderflex 52 (Pty) Ltd (341/2017, 340/2017) [2017] ZAFSHC 132 (24 August 2017)

Cargill RSA (Pty) Ltd v Bibbey N.O. and Others; Cargill RSA (Pty) Ltd v Thunderflex 52 (Pty) Ltd (341/2017, 340/2017) [2017] ZAFSHC 132 (24 August 2017)

The court found that while bona fide disputes exist regarding certain invoices and damages, the respondents failed to comprehensively dispute the core invoices totalling R24,328,580.99. The trust's attempts to challenge the invoices were insufficient and lacked substantive evidence. The applicant is entitled to...

Source-derived case information.

Citation
[2017] ZAFSHC 132
Parties
Applicant: Cargill RSA (Pty) Ltd; Respondent: Louwrens Bibbey N.O.; Respondent: John Frank Bibbey N.O.; Respondent: Adriaan Gerhardus Odendaal Bibbey N.O.; Respondent: Bernardus Johannes Davel N.O.; Respondent: Susara Magdalena Wilhelmina Odendaal Testamentary Trust MT2575/2000; Respondent: Thunderflex 52 (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 August 2017
Case Number
341/2017, 340/2017
Procedural Posture
Civil Application / Final Determination of Opposed Application; Referral of Disputed Issues to Trial
Outcome
Judgment granted in favour of applicant for R24,328,580.99 against all respondents, jointly and severally; perfection of notarial bonds ordered; all remaining disputes referred to trial; costs awarded to applicant.
Judges
JP Daffue
Legal Topics
Suretyship, Notarial Bond Perfection, Summary Judgment, Dispute of Fact, Attorney and Own Client Costs
Commercial and Corporate Civil Procedure Suretyship Notarial Bond Perfection Summary Judgment Dispute of Fact Attorney and Own Client Costs

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Parties

Cargill RSA (Pty) Ltd

Applicant

Louwrens Bibbey N.O.

Respondent

John Frank Bibbey N.O.

Respondent

Adriaan Gerhardus Odendaal Bibbey N.O.

Respondent

Bernardus Johannes Davel N.O.

Respondent

Susara Magdalena Wilhelmina Odendaal Testamentary Trust MT2575/2000

Respondent

Thunderflex 52 (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Final Determination of Opposed Application; Referral of Disputed Issues to Trial

Legal Issues

  1. 1 Whether the respondents are liable to pay the applicant the claimed amount under the Master Input Advance Agreement and perfected notarial bonds.
  2. 2 Whether disputed invoices and alleged damages can be resolved on affidavit or require referral to trial.
  3. 3 Whether offers made by the trust constitute admissions of liability or are privileged settlement communications.

Ratio Decidendi

The court found that while bona fide disputes exist regarding certain invoices and damages, the respondents failed to comprehensively dispute the core invoices totalling R24,328,580.99. The trust's attempts to challenge the invoices were insufficient and lacked substantive evidence. The applicant is entitled to judgment for the undisputed amount and perfection of the notarial bonds. All remaining disputes, including the balance of the claim and any alleged admissions or offers, are referred to trial. Costs are awarded to the applicant on the attorney and own client scale as agreed in the contract.

Court Disposition

Judgment granted in favour of applicant for R24,328,580.99 against all respondents, jointly and severally; perfection of notarial bonds ordered; all remaining disputes referred to trial; costs awarded to applicant.

Orders

  • First, second, third and fourth respondents as trustees of the Susara Magdalena Wilhelmina Odendaal Testamentary Trust MT2575/1999 shall pay the applicant R24,328,580.99, jointly and severally with Thunderflex 52 (Pty) Ltd, the one to pay, the other to be absolved.
  • The Notarial Bond, Annexure 'C86' to the Founding Affidavit, is perfected.