Forensic Restitution (Pty) Ltd v Kwinana and Associates (Gauteng) Inc (10069/2010) [2012] ZAGPPHC 305 (29 November 2012)

Forensic Restitution (Pty) Ltd v Kwinana and Associates (Gauteng) Inc (10069/2010) [2012] ZAGPPHC 305 (29 November 2012)

The court held that the judgment of 3 September 2010 is final and cannot be nullified by agreement between the parties; only a court of competent jurisdiction can set aside such a judgment. The plaintiff made out a prima facie case regarding the unpaid invoices and the alleged discount agreement. There is evidence that the parties agreed to the Auditor General's rate less 10%, and that the 25% discount was not authorized by the plaintiff. Contradictions in the plaintiff's evidence are not sufficient for absolution at this stage. The defendant must answer the plaintiff's case, and absolution from the instance is refused. Costs are reserved for adjudication at the main trial.

Citation
[2012] ZAGPPHC 305
Parties
Plaintiff: Forensic Restitution (Pty) Ltd; Defendant: Kwinana and Associates (Gauteng) Inc
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 November 2012
Case Number
10069/2010
Procedural Posture
Civil Trial / Absolution From the Instance After Plaintiff's Case
Outcome
Absolution from the instance is refused; the matter proceeds to trial on the disputed invoices and issues.
Judges
E.M. Kubushi
Legal Topics
Contractual Dispute, Professional Services, Absolution From the Instance, Discount Agreement, Authority of Agent
Commercial and Corporate Civil Procedure Contractual Dispute Professional Services Absolution From the Instance Discount Agreement Authority of Agent

Case Brief

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Parties

Forensic Restitution (Pty) Ltd

Plaintiff

Kwinana and Associates (Gauteng) Inc

Defendant

Procedural Posture

Civil Trial / Absolution From the Instance After Plaintiff's Case

Legal Issues

  1. 1 Whether the plaintiff has made out a prima facie case for the unpaid invoices.
  2. 2 Whether a 25% discount was agreed between the plaintiff and defendant for certain months.
  3. 3 Whether the defendant's employee had authority to negotiate further discounts.

Ratio Decidendi

The court held that the judgment of 3 September 2010 is final and cannot be nullified by agreement between the parties; only a court of competent jurisdiction can set aside such a judgment. The plaintiff made out a prima facie case regarding the unpaid invoices and the alleged discount agreement. There is evidence that the parties agreed to the Auditor General's rate less 10%, and that the 25% discount was not authorized by the plaintiff. Contradictions in the plaintiff's evidence are not sufficient for absolution at this stage. The defendant must answer the plaintiff's case, and absolution from the instance is refused. Costs are reserved for adjudication at the main trial.

Court Disposition

Absolution from the instance is refused; the matter proceeds to trial on the disputed invoices and issues.

Orders

  • The judgment of 3 September 2010 is final and cannot be nullified.
  • Absolution from the instance is refused in respect of the claims referred to trial.