Desert Oil Proprietary Limited t/a Caltex Northern Cape Marketer v Polka Dot Cafe CC t/a Calterx Carters (1399/20) [2020] ZANCHC 72 (30 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

CASE NUMBER: 1399/20

In the matter between:

DESERT OIL PROPRIETARY LIMITED

t/a CALTEX NORTHERN CAPE MARKETER Applicant

and

POLKA DOT CAFÈ CC t/a CALTERX CARTERS

Respondent

REASONS FOR THE ORDER GRANTED

PER NXUMALO AJ

PRELIMINARY STATEMENT

[1] The applicant in these proceedings lodged an urgent motion in terms of rule 6 (12) (a) of the Uniform Rules of Court, on or about 20 August 2020 and initially set it down for hearing on 28 August 2020. On the latter date, the motion was postponed to 16 September 2020, for urgent hearing, by order of court- the parties having so agreed. This is how this matter came to serve before me and was adjudicated virtually on the said date. On the said date, I deemed the issue of urgency to be moot, by virtue of the said order, which as I have said, was granted by agreement between the parties. I then proceeded to hear the motion as such. At the end of the proceedings, I reserved my ruling, which I subsequently made on 18 September 2020 (not 16 September, as erroneously reflected in the said order). In terms of the said order, I dismissed the motion with costs, without giving any reasons. My acting stint came to an end at the end of the third term on 19 September 2020. On 28 September 2020, the applicant lodged an application for reasons in terms of rule 49 (1) (c) of the Uniform Rules.

[2] The case file was thereafter dispatched to me by the registrar, by post, only on 12 October 2020. It arrived in Johannesburg on 13 October 2020 and was ultimately received by me only the following day, on 14 October 2020. These are my reasons for dismissing this application with costs.

THE RELIEF SOUGHT

[3] First, in terms of its notice of motion, the applicant sought a rule nisi to be issued calling on the respondent to show cause on a date to be determined by this honourable court, as to why the respondent should not be interdicted and restrained from removing, handling or in any way interfering with the ongoing use and display of the applicant’s branding, signage and equipment situate at the respondent’s premises. Second, the applicant contemporaneously, sought the respondent to be interdicted and restrained from concluding or attempting to conclude any agreement with any third party for the supply of fuel products from the respondent’s premises, after 01 September 2020; alternatively implementing any such agreement already concluded with any third party. The applicant sought both interdicts in the interim, pending the final determination of an action instituted by it against the respondent, in this court.

[4] Third, the applicant also sought an interim mandamus order, also in the form of a rule nisi, directing the respondent, pending the final determination of the pending action; to comply with all the terms and conditions of an alleged extant sales agreement, entered into between the parties on or about 05 November 2018 (the 2018 sales agreement). The applicant disputes that the said agreement has terminated or that the respondent was entitled to terminate same as alleged and insists that the said agreement remains extant. According to the applicant, in terms of the said agreement, the respondent is constrained to continue to purchase all fuel products required for sale in its business from the applicant; and to operate its business as a Caltex branded filling station. The applicant sought no order as to costs, in terms of the notice of motion, though argument to this extent was adduced during oral argument.

THE RESPONDENT’S STANCE

[5] The respondent, for its own part, opposed the order sought, being granted. Preliminarily, the respondent contended that the matter fell to be struck from the roll for lack of urgency; alternatively, because any urgency, if at all, was clearly self-created. I have already pronounced on the issue of urgency. Mainly, the respondent contended that to the extent that the impugned agreement was not renewed before the end of its first anniversary, it terminated by effluxion of time and does not exist. Subsequently, the respondent maintains, the parties were bound only by a month-to-month agreement, which came into existence after the former determined. The latter, the respondent avers was thereafter terminated by it (the respondent) upon reasonable notice to the applicant. In the premise, the respondent prayed for the motion to be dismissed with costs.

The Parties

[6] The applicant in these proceedings is Dessert Oil Proprietary Limited, trading as Caltex Northern Cape Marketer, a company with limited liability, duly registered and incorporated in accordance with the company laws of the Republic. The respondent is Polka Dot Café CC, trading as Caltex Carters, a close corporation, also duly registered and incorporated in accordance with the laws of the Republic.

[7] It is common cause that the applicant has since 25 January 2010, operated as the sole authorised marketer and distributor of Caltex branded fuel and lubricant products (Caltex products) in the Northern Cape. It is also common cause that the respondent owns and operates a filling station known as Caltex Carters (the business) at its premises located in Kimberly (the premises). It is further common cause that the respondent has since 2009, operated the business as a Caltex branded filling station, and the applicant has hitherto exclusively supplied the respondent with Caltex products for sale in the business.

The pending action by the applicant against the respondent

[8] It is common cause that the applicant indeed has instituted an action against the respondent in this court in which it seeks declaratory and ancillary relief declaring and enforcing the applicant’s alleged rights in terms of the impugned sales agreement.

BRIEF STATEMENT OF THE LAW

[9] It is trite that an interim interdict is a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It however does not involve a final determination of these rights or affect their final determination- see Apleni v Minister OF Law and 1989 (1) SA 195 (A) 201.

[10] A party alleging a contract must allege and prove the terms (express or tacit) of the agreement on which it seeks to rely Badenhorst v Van Rensburg 1985 (2) SA 321 (T) at p 335. It must thus appear ex facie the founding papers that such a contract indeed exists and that the parties seeking to enforce any right flowing therefrom are parties thereto. Coterminously, The right to terminate depends on the nature and terms of the contract. The right to terminate a contract unilaterally in the absence of a breach depends on the terms of the contract.[1]

ISSUES FOR DETERMINATION AND HOW THEY WERE DETERMINED

[11] It can be deduced from the foregoing that what fell for determination in these proceedings is whether the impugned agreement to date remains extant. If so: (a) whether the applicant ex contractus has a prima facie right; (b) whether there is a well-grounded apprehension of irreparable harm, if the interim relief is not granted and the ultimate relief is eventually granted; (c) whether the balance of convenience favours the granting of an interim interdict; and (d) whether the applicant has other satisfactory remedy in law. It is trite that in view of the discretionary nature of an interim interdict and because these requisites intermingle and comingle, they cannot be judged in isolation.

[12] The first requisite for an interim interdict is a prima facie right i.e. prima facie proof of facts that establish the existence of a right in terms of substantive law -see Webster v Mitchell 1948 (1) SA 1186 (W) at 1189. It is trite that a mere acceptance of the applicant’s allegations is insufficient whilst a weighing up the probabilities of the conflicting versions is not required. The proper approach is to consider the facts as set out by the respondent, which the applicant cannot dispute and to decide whether, with regard to the inherent probabilities and the ultimate onus, the applicant should on those facts obtain the final relief at the trial. The facts set up in contradiction by the respondent should then be considered and if they throw serious doubt on the applicant’s case, it cannot succeed- cadit quaestio (i.e. the argument collapses!). The fact that the applicant might have established a possibility or a slight degree of probability is not sufficient- see Molteno Bors v SAR 1936 AD 321at 333.

THE PARTIES’ MAIN CONTENTIONS

The applicant’s

[13] According to the applicant, the 2018 sales agreement entered into between the parties on or about 05 November 2018, remains valid and binding. The applicant contemporaneously disputes the respondent’s entitlement to terminate the said agreement. It is also the applicant’s contention that clause 3.2 in the impugned agreement, which purported to effectively give the respondent the right to terminate the said agreement after only one year, by not renewing it, is contrary to public policy and unenforceable. It also contends that if the impugned clause is severed from the said agreement, the effect is that same remains extant.[2]

[14] It is common cause that on or about 19 August 2020, the applicant instituted action against the respondent in this court claiming a relief essentially aimed at preserving the operation of the impugned agreement sans clauses 3.2 and 3.4 thereof. In the action, the applicant seeks to have the said clauses declared contrary to public policy and severed from the said agreement. The applicant also seeks an order declaring that the remainder of the impugned agreement shall

continue to be of full force and effect, with the necessary changes mutatis mutandis, occasioned by the severance of the two offending clauses.

[15] The applicant also maintained that if it is successful in the said action, the consequence will be that the parties would be contractually bound to one another, at least until 07 December 2023 and potentially until 07 December 2028, if the applicant renewed the impugned contract for a further five (5) years. Accordingly, so it was contended for the applicant, the respondent would be obliged to continue operating the business as a Caltex branded filling station.

[16] In the premise, the applicant maintained that the interim relief sought is necessary to preserve the rights sought to be established and enforced in the said action and to prevent a hollow victory, if the applicant is ultimately successful and the respondent has in the interim concluded a contract with a third party and removed the Caltex branding from the business.

The respondent’s

[17] The respondent, on the other hand in the main contended that, the essence of the matter is that the applicant freely exercised its contractual right of pre-emption when the 2009 sales agreement terminated by effluxion of time, to contract with the respondent on the same terms and conditions contained in the Puma offer, a bona fide third party. The terms of the Puma agreement came into existence by virtue of the applicant’s election and insistence

to exercise its pre-emptive right after three months consideration thereof, sans any pressure or duress.[3] As matters stand, there is no binding agreement in existence between the parties. It maintained that it is so since, it is common cause that the 2019 sales agreement was never renewed upon its expiration, after the initial period of one year. It says that it is also common cause that after the expiration of the said agreement, the parties performed their mutual obligations on the strength of a month-to-month sales agreement, determinable on one month’s written notice, by either party. The notice to terminate the month-to-month sales agreement was communicated in writing by the respondent to the applicant on or about 27 July 2020, vide annexure FA19, page 151, Volume 2. According to the said annexure, cancellation took effect from 01 September 2020.

[18] In the premise, the respondent lamented that if the action is unsuccessful, the effect would be that the respondent would have been forced to remain in a business relationship with the applicant and trade on the basis of an agreement that does not exist for the entire undeterminable period that it would take to finalise the action. The respondent decries that during this period it would be unfairly constrained from exercising its freedom to contract with another supplier.[4] The respondent avers that the foregoing would result in it invariably suffering damages. The respondent contends that the

applicant in truth seeks an order of specific performance in the interim of an agreement that does not exist in fact or law and which it agreed no longer existed.[5] It is for these reasons that the respondent seeks the motion to be dismissed with costs.

BRIEF OVERVIEW OF THE SALIENT FACTS

The 2009 sales agreement between the respondent and Chevron

[19] It is common cause that on or about 11 September 2009, the respondent entered into a written sales agreement with Chevron, its successors-in-title and assigns. In terms of the said agreement, the parties agreed that with effect from 01 July 2009, Chevron would be the exclusive supplier of fuel products for sale in the business, which would be operated as a Caltex branded filling station. The agreement would subsist for an initial period of three (3) years, provided Chevron would have the right, at any time during the initial period, to terminate this agreement, upon thirty (30) days written notice to the respondent; regard being had to clause 1 of the agreement. Clause 1 of the agreement also expressly stipulates that, at the end of the initial three (3) year period (i.e. 2009-2012) or any extension thereof, the terms and conditions of this agreement would continue to be of full force and effect; provided that either of the parties could finally terminate same, by giving thirty (30) days written notice to the other.

[20] I interpose, to point out that whilst in paragraph 19.4 of its founding affidavit, the applicant avers that in terms of the 2009 sales agreement, the parties agreed inter-alia as follows:

“19.4. should this agreement terminate for any reason whatsoever, including but not limited to the effluxion of time, Chevron would have the first option or pre-emptive right to contract with the defendant [respondent] for the supply of petrol, diesel and/or fuels on the same terms and conditions as those offered by any bona fide third party, and the defendant [respondent] would not enter into any sales agreement with any third party, unless a period of ninety (90) days had elapsed during which Chevron had had the option to enter into a sales agreement with the respondent on the same terms and conditions as those offered by the third party and had failed to exercise the option [clauses 9 (c) read with clause 9(a)].”

[21] A cursory glance at the said clauses reveal that same expressly and unambiguously stipulate as follows, to wit:

“9. The OPERATOR [respondent] shall not and, without the prior written consent of the COMPANY [applicant] cede, assign or dispose of this Agreement and/or any amount of paid or payable by the COMPANY [applicant] to him in terms of Clause 6 hereof.[6]

(a) Where the OPERATOR is (or becomes) the Owner of the Premises, the OPERATOR undertakes that during the period referred to in Clause 1 above, the OPERATOR shall not enter into any agreement to sell or lease the Premises or the Filling Station Business or grant any person an option to purchase or lease the premises or Filling Station Business , unless a period of 90 (ninety) days has lapsed during which the COMPANY has had the option to purchase or lease the PREMISES or the Filling Station Business at the same price and on the same terms, which option the COMPANY has failed to exercise; and furthermore the OPERATOR shall not sell or lease the Premises or the said business as aforesaid unless the written consent of the COMPANY has been obtained.

(b) ….

(c) Should this Agreement terminate for any reason whatsoever, including but not limited to the effluxion of time, the COMPANY shall have the first option or right to contract with the OPERATOR for the supply of petrol, diesel and/or other fuels on the same terms and conditions as those offered by any bona fide third party, the provisions of clause 10 (a) to apply mutatis mutandis.”[7]

[22] Two problems seem to arise from the foregoing averment. To wit: first the agreement does not seem to contain any clause 10 (a) anywhere within its four corners. In fact, the agreement only contains a main clause 10, without any sub-clauses whatsoever. Clause 10, for its own part, seems to be an unambiguous indemnity cum insurance clause which is irrelevant in these proceedings.[8] Second, the foregoing averment also seems to be a clumsy conflation of clauses 9 (a) and (c) of the agreement. It seems so since it is clear from the foregoing that the period of 90 days pertains to the sale or lease of the premises and not the rights of the parties should the agreement terminate for any reason. I therefore find both clauses 9 (a) and 10 of the impugned agreement to be irrelevant in these proceedings. I also find that “clause 10 (a)” to be non-existent.

The substitution of Chevron by the applicant vide the retail assignment agreement of 25 January 2010

[23] It is common cause that on or about 25 January 2010, the respondent and Chevron subsequently entered into inter-alia; a retail assignment agreement, in terms whereof Chevron, inter-alia; assigned to the applicant all its rights and obligations under the 2009 sales agreement and agreed that the applicant would be

substituted for Chevron as a party to the 2009 sales agreement. Of significance in this regard is the fact that the initial period seems to have expired on 30 June 2012, where after, the terms and conditions of the agreement also seems to have continued to operate

on a month-to-month basis, as envisaged in clause 1 of the agreement.

The Total offer to the respondent dated 13 August 2014

[24] After the expiration of the initial period of the 2009 sales agreement, on or about 13 August 2014 and during which period the terms and conditions of the initial agreement continued to operate on a month-to-month basis as envisaged in clause 1 of the said agreement, the respondent received a written offer from Total. It is common cause that thereafter, on 17 November 2014, the applicant gave written notice of its intention to exercise its option or pre-emptive right in terms of the said agreement, to conclude an agreement with the respondent on substantially the same terms and conditions as contained in the said offer-see FA10 at pp 87-88, Volume 1. Whilst it seems nothing came of the Total offer, however between 30 June 2012 and 21 August 2014, it seems the parties remained bound and performed their mutual obligations in terms of a month-to-month agreement, determinable on thirty (30) days’ notice, in terms of clause 1 of the said agreement. I however make no finding in this regard.

[25] On or about 21 August 2014, the respondent gave written notice to the applicant and Chevron of its intention to terminate the 2009 sales agreement, with effect from 01 October 2014, as contemplated in clause 1 of same. The following day (i.e. 22 August 2014), after giving written notice of its intention to terminate, the respondent proceeded to accept the Total offer. Thereafter, on 17 November 2014, after the expiration of 30 days’ notice, the applicant purported to give written notice to the respondent of its intention to exercise its option or pre-emptive right in terms of clause 9 (c) of the agreement.

[26] The foregoing notwithstanding, it is common cause that the parties did not conclude any agreement on the terms outlined in the said offer. Instead, they seem to have continued to operate in terms of the 2009 sales agreement, which both parties accepted remained in effect, on a month-to-month basis.

Repudiation of the month-to-month sales agreement by the respondent on 06 July 2018 and the subsequent month-to-month agreement

[27] On 06 July 2018, the respondent repudiated the month-to- month sale agreement vide a thirty (30) days’ written notice addressed to the applicant (i.e. annexure FA9 at pp 89-90, Volume 1). In terms of the said annexure, the respondent also confirmed that the said agreement were to finally terminate thirty (30) days from receipt of the said notice. In other words, this notice were to expire on 05 August 2018. Of significance in this regard is the fact that on 23 July 2018, before the expiration of the said notice, the applicant accepted the respondent’s repudiation in writing. The applicant contemporaneously recorded that it reserved its right of first refusal to match any offer that the respondent may receive from any third party for the supply of petroleum products to the respondent’s premises, in terms of clause 9 (c) of the sales agreement -see annexure FA10 at pp 91-92, Volume 1.

[28] It can be deduced from the foregoing that at this point in time, the respondent exhibited objectively that it had a deliberate and unequivocal intention not to be further bound by the month-to-month sales agreement; communicated same to the applicant; and that the applicant in turn elected to “accept” same. It is also clear that the applicant communicated such “acceptance” to the respondent in writing.[9] In our law, repudiation congeals when a party’s conduct exhibits objectively a party’s deliberate and unequivocal intention not to be bound by the contract; an election by the innocent party to terminate; and communication of the election by the innocent party to the guilty party-see Highveld 7 Properties v Bailes 1999 (4) SA 1307 (A). It is significant to point out that a decision to abandon may either be express or implied. Implied abandonment is proved by conduct

plainly inconsistent with an intention to enforce the right relied on.

[29] I find that the applicant’s conduct and reaction to the respondent’s notice of termination was plainly inconsistent with an intention to enforce the 2009 sales agreement, which it now seeks to enforce - see Borstlap v Spangenberg 1997 (3) SA 695 (A). It is so especially considering that the applicant was not obliged to “accept” the repudiation but may have ignored it and proceeded to enforce the 2009 sales agreement. It chose not to do so. It has been held that a party is not obliged to accept a repudiation but may ignore it and proceed to enforce the contract- see Ndlovu v Santam 2006 (2) SA 239 (SCA).

[30] In the premise, I find that the month-to-month sales agreement was indeed repudiated by the respondent on 06 July 2018, vide FA9 and the applicant subsequently “accepted” the said repudiation on 23 July 2018, vide FA10. Between the latter date and 05 November 2018, the parties seem to have been bound by a tacit month-to-month agreement.

Acceptance of Puma’s offer to the respondent by the applicant on 05 November 2018 (the 2018 sales agreement)

[31] It is common cause that on or about 27 July 2018, the respondent transmitted a copy of Puma’s offer to the applicant, inviting the latter to consider the said offer as contemplated in clause 9 (c) of the 2009 sales agreement. It is also common cause that the applicant exercised its pre-emptive right in writing by accepting the said offer, hook, line, and sinker on 05 November 2018 -see annexure FA12, pp 137-138, Vol 2.

Commencement and termination date of the 2018 sales agreement

[32] Clause 1.10 of the 2018 sales agreement, expressly stipulates its “commencement date” as the date on which the petroleum products were delivered to the premises for storage and retailing. Clause 1.20, for its own part, expressly defines the “initial period” of the sales agreement as the period from the commencement date, to the anniversary of same. An “expiry date” on the other hand, is defined in clause 1.19 of the sales agreement, as the last day of the initial period for which either of the parties shall have exercised its option to renew, whichever is the latter.

[33] Of significance in this regard, is the fact that the 2018 sales agreement, also expressly and unambiguously defines what is meant by the expression “renewal periods” in clause 1.39 as follows:

“1.39 “Renewal Periods” means:

1.39.1 a further period of 4 (four) years commencing at the end of the Initial Period, which renewal shall be exercised by the Purchaser giving written notice to the Supplier at any time after the Commencement date but not later than 3 months prior to the expiry of the Initial Period;

1.39.2 a further Renewal Period of 5 (Five) years (the Second Renewal Period), which shall be automatically exercised by the Supplier unless the Supplier informs the in writing to the contrary not less than 3 (three) months prior to the expiry of the Second Renewal Period;”

[34] Regard being had to the foregoing, it is evident on the papers that fuel was first delivered to the premises in terms of the said agreement, only on 08 December 2018. To the extent that the agreement were to subsist for the duration of the initial period, I find that the agreement commenced on 08 December 2018 and determined on 07 December 2019, by effluxion of time. It follows from the foregoing that the respondent had until 07 October 2019, to exercise its option to renew the said agreement. It did not do so, thereby causing the said agreement to lapse, by effluxion of time. It also follows from the foregoing that thereafter, the parties continued to perform their obligations to each other in terms of the default position, to wit: a month-to-month sales agreement, determinable by either party on thirty (30) days written notice. At least this much was correctly

conceded by the applicant, in writing on or about 18 June 2020, vide FA18; to wit: “Even though your client has not renewed the agreement, a month-to-month agreement exists between ourselves …on the same terms and conditions….” -see pp 149-150, Volume 2.

[35] Of significance in this regard also is the fact that annexure FA18 clearly evinces the applicant’s unequivocal acceptance that the 2018 sales agreement had lapsed, and the parties were continuing their contractual obligations on a month-to-month basis.[10] The respondent once more and perhaps out of abundance of caution, reiterated the state of affairs vide annexure FA19 (p151, Volume 2). The foregoing notwithstanding, the applicant on 12 August 2020, vide FA20, volte face disputed that the 2018 sales agreement has indeed lapsed. It stated that it does so, on the strength of advice it obtained from its counsel, subsequently.

[36] The respondent for its own part maintained that the said agreement no longer existed and pointed out that it is so because the applicant made an election vide annexure FA18, of which it is bound. I find that upon the 2018 agreement determining on 07 October 2019, by effluxion of time, the parties thereafter continued to perform their obligations on a month-to-month agreement, determinable on 30 days’

notice.

The respondent’s notices of termination of the month-to-month agreement between the parties dated 27 July and 19 August 2020

[37] On 27 July 2020, vide FA19, the respondent in writing notified the applicant that the month-to-month agreement between the parties would be cancelled with effect from 01 September 2020. On 12 August 2020, vide FA20, the applicant responded in writing to the respondent’s notice of termination, flatly denying the existence of the month-to-month agreement and maintaining that the 2018 sales agreement remained extant and binding between the parties. The applicant also contended in the said letter that clause 3.2 read with clause 1.20 of the 2018 sales agreement, were contrary to public policy and unenforceable.

[38] In the circumstances, the applicant announced that it has instructed summons to be issued against the respondent claiming declaratory relief effectively seeking to expunge the impugned clauses from the 2018 sales agreement, such that same would continue to operate sans the said clauses, with the result that the impugned agreement would continue for five (5) years, with effect from the commencement date in 2018, whereupon the applicant would be entitled to renew same for a further five (5) years.

[39] Perhaps out of abundance of caution again, on 19 August 2020, vide FA22, the respondent in writing to the applicant, reiterated that it persisted on its notice of cancellation and also requested the applicant to remove its branding on the premises on or before 01 September 2020.

APPLICATION OF THE LAW TO THE FACTS

[40] Interdicts generically are based upon rights, that is, rights which in terms of the substantive law are sufficient to sustain a cause of action.[11] Such right may arise out of a contract,[12] or a delict;[13] or it may be founded in the common law[14] or on some or other statute;[15] it may be a real right[16]or a personal right.[17]

[41] As alluded before, the requirements for granting an interim interdict are trite. An applicant needs only to establish that it has a prima facie right (though open to some doubt); that there is a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief (in this case by way of summons issued) is eventually granted; that the balance of convenience favours the grant of an interim interdict; and that the applicant has no other satisfactory remedy in law.

[42] The applicable test in this regard was well-established in the locus classicus to wit: Webster v Mitchell 1948 (1) SA 1186 (W) and thereafter qualified in Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 688. It is now so that where the applicant cannot show a clear right, and more particularly where there are disputes of fact relevant to a determination of the issues, the court’s approach in determining whether the applicant’s right is prima facie established, though open to some doubt, is to take the facts set out by the applicant, together with any facts set out by the respondent, which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should (not could) on those facts, obtain final relief at the trial of the main action. The facts set out in contradiction by the respondent should then be considered and if serious doubt is thrown upon the case of the applicant, it cannot succeed.

[43] It follows that the phrase prima facie though open to some doubt as an element of the justification for the grant of an interdict requires a preliminary assessment of the merits of the applicant’s case. [18] The accepted test for a prima facie right in the context of an interim interdict is thus first to take the facts averred by the applicant, together with such facts set out by the respondent, that are not or cannot be disputed, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts, obtain final relief at trial.

[44] The facts set up by the respondent in contradiction should then be considered, and if serious doubt is thrown on the applicant’s case, the applicant cannot succeed. However if there is only a mere contradiction or unconvincing explanation in the applicant’s case, the matter should be left to trial and the right be protected in the interim, subject to the respective prejudice entailed by the grant of the interdict. Moreover, it is well-established that the court ultimately has a discretion not to grant the interdict (and/or mandamus), even if an applicant succeeds in establishing the requirements for an interim interdict. This discretion is exercised on a conspectus of all the facts and circumstances of the matter. The remedy is discretionary, and the court has a wide discretion whether to grant an interim interdict, or not.

[45] In Knox D’ Arcy v Jamieson 1995 (2) SA 575 (W) at 601, it was succinctly stated that the evaluation of the prima facie right also entails that the court must consider the prospect of the prejudice which appear to threaten the respondents if the court

should at this stage grant or confirm the interdict sought by the applicants and should it later appear at the trial that the defences

which the respondents “now” assert against the applicants’ claims have always been sound. It was held that the

court must form a view on the question as to which of the parties are liable to be the more seriously inconvenienced by the prospective

prejudice and finally, the court must weigh up the assessment of the strength of the prima facie case, if one is shown, together with the court’s view of the balance of convenience and then exercise a judicial discretion in deciding whether to confirm the interlocutory interdict, pending the trial or whether to discharge the interdict as sought by the respondents.

[46] In my view, the applicant vide FA18, made a clear and final election to abandon any right, to enforce the 2018 sales agreement, which may not be reversed. It may not, since in our law, an election necessarily involves the abandonment of the right of enforcement -see Spheris v Flamingo Sweet 2008 (1) All SA 304 (W). It follows that when the applicant chose to invoke the month-to-month agreement, it conterminously chose to exercise another right

inconsistent with its alleged right to enforce the 2018 sales agreement. One right is waived when a party chooses to exercise another right inconsistent with it-see Xenopoulos v Std Bank 2001 (3) SA 498 (W).

[47] It is worth pointing out that the respondent also contends that to the extent that the applicant, by virtue of invoking the pre-emptive right in the agreement, put itself in a position where it would need to make an election of whether it would exercise the right or not, the clause was for its sole benefit. I agree. I do simply because when the waiver (an election generally involves a waiver), took place and conveyed to the respondent vide FA18, the applicant had full knowledge of its alleged rights under the 2018 sales agreement, which it decided to abandon.

[48] The applicant’s alleged error in accepting at face value, the respondent’s assertion that the 2018 sales agreement, had lapsed and that the parties were continuing their obligations on a month-to-month basis, cannot vitiate the waiver since same is not of such a nature that it would have vitiated any contract -see ABSA Bank v Niggli 1998 (4) SA 15 (N). It is so since, the applicant’s alleged mistake seems, at best an incidental mistake or a mistake relating to the reasoning or motivation behind its election only. In our law, a mistake relating to a party’s reasoning or motivation behind the agreement only is not regarded as iustus –see Van Reenen Steel v Smith 2002 (4) SA 264 (SCA).

[49] It behoves repetition that the respondent pointed out that of significance in this regard was the applicant’s reply, which is telling in its own right, as contained in annexure FA18, to wit: “Even though your client has not renewed the agreement, a month-to-month agreement exists between ourselves and your client on the same terms and conditions.” It contended that the foregoing singularly evinces that the parties were ad idem as to the fact that the impugned agreement no longer existed and that the remaining legal relationship between the parties was a

month-to-month agreement. I also agree with the respondent, in this regard.

[50] Seminally, the respondent averred that it further pointed out to the applicant that as it was entitled to do, it gave notice of cancellation of the month-to-month agreement with effect from 01 September 2020, whereafter all contractual ties ceased to exist between the parties de facto or de iure. I agree.

CONCLUSION

[51] Having fully considered the facts as set out by the applicant, together with the facts set out by the respondent, which the applicant could not dispute; and having had regard to the inherent probabilities and the ultimate onus, I was constrained to come to the conclusion that the applicant on these facts, would not obtain final relief at the trial. It is so since the facts set out in contradiction by the respondent throw serious doubt on the applicant’s case that a contract ex facie exists between the parties. In the absence of a contract (tacit or express) it follows that there can be no right to be protected. In the premises, the motion had to fail- cadit quaestio.

[52] It must since it does not appear ex facie the founding papers that any long term agreement remained extant between the parties, post the first anniversary and determination of the impugned contract by effluxion of time. Just as one cannot put something on nothing and expect it to stand, one cannot enforce a right allegedly flowing from a contract that has terminated by effluxion of time.

[53] It is for these reasons that I dismissed the application with costs.

APS NXUMALO

Acting Judge of the High Court of South Africa

Northern Cape Division, Kimberley

26 October 2020

For applicant: D M Davis SC- Instructed by Korbers Incorporated, Unit 6A, Graphic Centre, 5 Buiten Street, Cape Town. C/O Haarhoffs Incorporated, 1 Halkett Road, New Park, Kimberly.

For respondent: N Snellenburg SC-Instructed by Engelsman Magabane Incorporated, 9 Bishop’s Avenue, Labram, Kimberley.

Date of hearing: 16 September 2020

Date of Order: 18 September 2020

Date of reasons: 30 October 2020

[1]

See Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A).

[1]

See Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987

(4) SA 569 (A).

[2]

See paragraph 5 of the Applicant’s 48-page Heads of Argument.

[3]

See paragraphs 8-9 and 2931 of the respondent’s 32-page Heads of Argument.

[4]

Section 22 of the Constitution expressly arrogates to every citizen the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

[5]

See paragraphs 17-20,Respondent’s 32-page Heads of Argument.

[6]

Clause 6 of the agreement expressly stipulates as follows: “6. During the currency of this agreement and whilst the OPERATOR continues to comply with each and all of the provisions hereof, the COMPANY will allow the OPERATOR a discount of 0.28 (naught comma two eight) cents per litre on all petrol purchased by the OPERATOR from the COMPANY in terms of Clause 2 hereof. Such discount shall be computed shall accrue to the OPERATOR monthly in arrears.” Clause 2 of the agreement, for its own part expressly stipulates as follows: “2. The OPERATOR shall purchase from the COMPANY all the petrol, diesel and/or any other fuels required for purposes of carrying on the said Filling Station Business and shall furthermore display and expose for sale on or in the driveway to the said Premises only the COMPANY’S products, save that there may be displayed in or such driveway lubricating products marketed by companies or concerns which do not deal in petrol- the position and style of such display to be approved by the COMPANY.”

[6]

Clause 6 of the agreement expressly stipulates as follows:

“6. During the currency of this agreement and whilst the OPERATOR continues to

comply with each and all of the provisions hereof, the COMPANY will allow the

OPERATOR a discount of 0.28 (naught comma two eight) cents per litre on all petrol

purchased by the OPERATOR from the COMPANY in terms of Clause 2 hereof. Such

discount shall be computed shall accrue to the OPERATOR monthly in arrears.”

Clause 2 of the agreement, for its own part expressly stipulates as follows:

“2. The OPERATOR shall purchase from the COMPANY all the petrol, diesel and/or any

other fuels required for purposes of carrying on the said Filling Station Business and

shall furthermore display and expose for sale on or in the driveway to the said Premises

only the COMPANY’S products, save that there may be displayed in or such driveway

lubricating products marketed by companies or concerns which do not deal in petrol-

the position and style of such display to be approved by the COMPANY.”

[7]

My emphasis.

[8]

“10. The OPERATOR hereby agrees to indemnify the Company against all actions, proceedings, costs, damages of any kind whatsoever in respect of the use of the Premises by the OPERATOR and the installation, existence or use any equipment on the Premises. The OPERATOR hereby authorizes the COMPANY to cover these risks through the COMPANY’s insurance brokers and with an insurance company that the COMPANY’s choice, in the joint name of the OPERATOR and the Company, for an amount to be determined by the COMPANY. The COMPANY shall be entitled to recover from the OPERATOR forthwith all premiums, stamp duties, etc., in respect of the insurance policy, which policy shall be held in custody by the COMPANY until the termination of this agreement. “

[9]

Although it is a convenient catchword, “acceptance” does not “complete” the breach: It is the exercise by the aggrieved party of the right to terminate the agreement -see Datacolor International v Intamarket [2000] ZASCA 82; 2001 (2) SA 284 (SCA).

[9]

Although it is a convenient catchword, “acceptance” does not “complete” the

breach: It is the exercise by the aggrieved party of the right to terminate the agreement -see Datacolor International v Intamarket [2000] ZASCA 82; 2001 (2) SA 284 (SCA).

[10]

See paragraph 61,p25, Vol 1.

[11]

See Albert Windsor Hotel (East London) (Pty) (Ltd) (in liquidation) 1963 (2) SA 237 (E) At 240E-241G.

[11]

See Albert Windsor Hotel (East London) (Pty) (Ltd) (in liquidation) 1963 (2) SA 237 (E)

At 240E-241G.

[12]

See Hydro Holdings (Edms) Bpk v Minister of Public Works & Another 1977 (2) SA 778 (T).

[12]

See Hydro Holdings (Edms) Bpk v Minister of Public Works & Another 1977

(2) SA 778 (T).

[13]

See Moskeeplein (Edms) Bp ken ‘n ander v Die Vereeniging van Advokate (TPA) en andere 1983 (3) SA 896 (T) at 902E-F.

[13]

See Moskeeplein (Edms) Bp ken ‘n ander v Die Vereeniging van Advokate

(TPA) en andere 1983 (3) SA 896 (T) at 902E-F.

[14]

See Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 (4) SA 81 (T) at 87A-E.

[15]

See Galago Publishers (Pty) Ltd & another v Erasmus 1989 (1) SA 276 at 279F-G.

[16]

See Stuttaford v Kruger 1967 (2) SA 166 (C).

[17]

See Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd & another 1977 (1) SA 316 (T).

[18]

See Heher J (as he then was) in Ferreira v Levin NO and H Others; Vrynhoek and Others v Powell No and Others 1995 (2) SA 813 (W) 8241-825D.

[18]

See Heher J (as he then was) in Ferreira v Levin NO and H Others; Vrynhoek and

Others v Powell No and Others 1995 (2) SA 813 (W) 8241-825D.