Kingsgate Clothing (Pty) Ltd and Others v Edcon Limited and Others (57045/2020) [2021] ZAGPPHC 769 (15 November 2021)

Kingsgate Clothing (Pty) Ltd and Others v Edcon Limited and Others (57045/2020) [2021] ZAGPPHC 769 (15 November 2021)

The court held that the applicants failed to establish the existence of a manifest error in the expert's determination regarding the reservation of ownership under the EMSA. The expert considered all relevant evidence, including the expert testimony and contextual factors, and provided reasons for his interpretation. The applicants' dissatisfaction with the outcome did not amount to a manifest error as defined by law. The process was procedurally fair, and the applicants were afforded an opportunity to respond to all submissions. The application for review was dismissed, and costs were awarded against the applicants.

Citation
[2021] ZAGPPHC 769
Parties
Applicant: Kingsgate Clothing (Pty) Ltd; Applicant: Maytex Linen CC; Applicant: Super Ocean Trading CC; Applicant: Maytex Carding CC; Applicant: Cruise Collections CC; Applicant: Twin Clothing Manufacturers (Pty) Ltd; Applicant: Apparel Industries (Pty) Ltd; Applicant: Clematis Trading (Pty) Ltd; Respondent: Edcon Limited (in business rescue); Respondent: Piers Marsden; Respondent: Lance Shapiro; Respondent: Justice FDJ Brand
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 November 2021
Case Number
57045/2020
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
E van der Schyff
Legal Topics
Business Rescue, Contract Interpretation, Manifest Error Exception, Reservation of Ownership, Expert Determination, Costs Order
Commercial and Corporate Civil Procedure Business Rescue Contract Interpretation Manifest Error Exception Reservation of Ownership Expert Determination Costs Order

Case Brief

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Parties

Kingsgate Clothing (Pty) Ltd

Applicant

Maytex Linen CC

Applicant

Super Ocean Trading CC

Applicant

Maytex Carding CC

Applicant

Cruise Collections CC

Applicant

Twin Clothing Manufacturers (Pty) Ltd

Applicant

Apparel Industries (Pty) Ltd

Applicant

Clematis Trading (Pty) Ltd

Applicant

Edcon Limited (in business rescue)

Respondent

Piers Marsden

Respondent

Lance Shapiro

Respondent

Justice FDJ Brand

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the expert's determination regarding reservation of ownership under the Edcon Merchandise Supply Agreement (EMSA) contained a manifest error justifying review.
  2. 2 Whether the expert failed to apply the correct principles of contract interpretation and disregarded binding authority.
  3. 3 Whether the expert's process was procedurally fair and whether the applicants were afforded a fair hearing.

Ratio Decidendi

The court held that the applicants failed to establish the existence of a manifest error in the expert's determination regarding the reservation of ownership under the EMSA. The expert considered all relevant evidence, including the expert testimony and contextual factors, and provided reasons for his interpretation. The applicants' dissatisfaction with the outcome did not amount to a manifest error as defined by law. The process was procedurally fair, and the applicants were afforded an opportunity to respond to all submissions. The application for review was dismissed, and costs were awarded against the applicants.

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed.
  • The respondents are to pay, jointly and severally, the one paying the other to be absolved, the costs of the application, such costs to include the costs consequent upon the employment of two counsel.