NEAH GES (Pty) Ltd and Another v Lamprecht and Others, Lamprecht v NEAH GES Africa (Pty) Ltd (33286/16) [2017] ZAGPPHC 102 (14 February 2017)

NEAH GES (Pty) Ltd and Another v Lamprecht and Others, Lamprecht v NEAH GES Africa (Pty) Ltd (33286/16) [2017] ZAGPPHC 102 (14 February 2017)

The court found that the applicants established a prima facie case for damages or reduction of the purchase price based on breaches of non-solicitation, failure to provide financial records, and non-disclosure of tax liabilities. The exceptio non adempleti contractus defence was held to be valid at this stage, excusing the applicants from payment pending action for damages. The restraint of trade and non-solicitation clauses remain binding and have not become void. The liquidation proceedings are stayed pending the outcome of the action for damages, and the counter application may be heard together with the main action. Costs are reserved pending the final outcome.

Citation
[2017] ZAGPPHC 102
Parties
Applicant: NEAH GES AFRICA (PTY) LTD; Applicant: GES AFRICA (PTY) LTD; Respondent: DE VILLIERS LAMPRECHT; Respondent: WELTRACT (PTY) LTD; Respondent: LI LOTRIET; Respondent: QUEMIC DYNAMICS (PTY) LTD; Respondent: ANNA MARGARETHA VILJOEN; Respondent: AMBER BAY INVESTMENTS 19 (PTY) LTD
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 February 2017
Case Number
33286/16
Procedural Posture
Urgent Application / Interim Interdict and Stay of Liquidation Application
Outcome
Interim interdict granted in favour of the applicants; restraint and non-solicitation clauses remain binding; liquidation application stayed; counter application to be heard with main action; costs reserved.
Judges
S P Mothle
Legal Topics
Restraint of Trade, Exceptio Non Adempleti Contractus, Sale of Shares, Interim Interdict, Non Solicitation, Actio Quanti Minoris
Commercial and Corporate Civil Procedure Restraint of Trade Exceptio Non Adempleti Contractus Sale of Shares Interim Interdict Non Solicitation Actio Quanti Minoris

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Parties

NEAH GES AFRICA (PTY) LTD

Applicant

GES AFRICA (PTY) LTD

Applicant

DE VILLIERS LAMPRECHT

Respondent

WELTRACT (PTY) LTD

Respondent

LI LOTRIET

Respondent

QUEMIC DYNAMICS (PTY) LTD

Respondent

ANNA MARGARETHA VILJOEN

Respondent

AMBER BAY INVESTMENTS 19 (PTY) LTD

Respondent

Procedural Posture

Urgent Application / Interim Interdict and Stay of Liquidation Application

Legal Issues

  1. 1 Whether the restraint of trade and non-solicitation clauses remain valid and enforceable despite non-payment of instalments by the purchaser.
  2. 2 Whether the purchaser is entitled to withhold payment of the outstanding purchase price based on alleged breaches and misrepresentations by the sellers.
  3. 3 Whether the exceptio non adempleti contractus defence applies to excuse the purchaser from payment pending action for damages or reduction of the purchase price.

Ratio Decidendi

The court found that the applicants established a prima facie case for damages or reduction of the purchase price based on breaches of non-solicitation, failure to provide financial records, and non-disclosure of tax liabilities. The exceptio non adempleti contractus defence was held to be valid at this stage, excusing the applicants from payment pending action for damages. The restraint of trade and non-solicitation clauses remain binding and have not become void. The liquidation proceedings are stayed pending the outcome of the action for damages, and the counter application may be heard together with the main action. Costs are reserved pending the final outcome.

Court Disposition

Interim interdict granted in favour of the applicants; restraint and non-solicitation clauses remain binding; liquidation application stayed; counter application to be heard with main action; costs reserved.

Orders

  • Clause 13 of the Sale of Shares Agreement regarding solicitation of clients and staff and restraint of trade remains binding and applicable to all parties.
  • All respondents, including the fifth respondent, are interdicted from soliciting customers of the second applicant as set out in Annexure 'A' to the founding affidavit.