Starways Trading 21 CC and Others v Pearl Island Trading 714 (Pty) Ltd and Another (232/2018) [2018] ZASCA 177; 2019 (2) SA 650 (SCA) (3 December 2018)

Starways Trading 21 CC and Others v Pearl Island Trading 714 (Pty) Ltd and Another (232/2018) [2018] ZASCA 177; 2019 (2) SA 650 (SCA) (3 December 2018)

The court held that the term 'ex warehouse' in the sugar contract did not constitute an agreement to the contrary excluding the operation of section 59 of the Customs and Excise Act. The ordinary meaning of 'ex warehouse' is simply a reference to the place of delivery and does not affect the passing of risk or benefit in a manner that would exclude the statutory price adjustment. Starways failed to prove any special or technical meaning for 'ex warehouse' that would alter this position. By insisting on payment of the full contract price without reduction for the decreased import duty, Starways repudiated the contract. Pearl was entitled to accept the repudiation and cancel the contract....

Citation
[2018] ZASCA 177
Parties
Appellant: Starways Trading 21 CC (in liquidation); Appellant: Simon Matleshe Seima NO; Appellant: Nurjehan Abdool Gafaar Omar NO; Appellant: Nano Abraham Matlala NO; Respondent: Pearl Island Trading 714 (Pty) Ltd; Respondent: Shoprite Checkers (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 December 2018
Case Number
232/2018
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs of two counsel where so employed.
Judges
Lewis, Wallis, Zondi, Van der Merwe, Matojane
Legal Topics
Contract Interpretation, Implied Terms, Repudiation, Customs and Excise, Undisclosed Principal
Commercial and Corporate Civil Procedure Contract Interpretation Implied Terms Repudiation Customs and Excise Undisclosed Principal

Case Brief

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Parties

Starways Trading 21 CC (in liquidation)

Appellant

Simon Matleshe Seima NO

Appellant

Nurjehan Abdool Gafaar Omar NO

Appellant

Nano Abraham Matlala NO

Appellant

Pearl Island Trading 714 (Pty) Ltd

Respondent

Shoprite Checkers (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the term 'ex warehouse' in the sugar contract constituted an agreement to the contrary excluding the operation of section 59 of the Customs and Excise Act.
  2. 2 Whether Starways Trading 21 CC repudiated the sugar contract by insisting on its interpretation of the price term.
  3. 3 Whether there was contractual privity or a tripartite agreement obliging Shoprite to pay Pearl for the sugar supplied.

Ratio Decidendi

The court held that the term 'ex warehouse' in the sugar contract did not constitute an agreement to the contrary excluding the operation of section 59 of the Customs and Excise Act. The ordinary meaning of 'ex warehouse' is simply a reference to the place of delivery and does not affect the passing of risk or benefit in a manner that would exclude the statutory price adjustment. Starways failed to prove any special or technical meaning for 'ex warehouse' that would alter this position. By insisting on payment of the full contract price without reduction for the decreased import duty, Starways repudiated the contract. Pearl was entitled to accept the repudiation and cancel the contract....

Court Disposition

Appeal dismissed with costs, including costs of two counsel where so employed.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel where so employed.