Super Group Trading (Pty) Ltd v Premier FMCG (Pty) Ltd (67574/16) [2018] ZAGPPHC 839 (9 November 2018)

Super Group Trading (Pty) Ltd v Premier FMCG (Pty) Ltd (67574/16) [2018] ZAGPPHC 839 (9 November 2018)

The court held that, at the exception stage, it is not appropriate to choose definitively between competing reasonable interpretations of the non-waiver clause. The clause is reasonably capable of both the plaintiff's and the defendant's interpretations. The plaintiff failed to discharge the onus of showing that, on every reasonable interpretation, the defendant's plea does not disclose a defence. Therefore, the exception must fail, and the matter should proceed to trial for a definitive interpretation and determination of whether the plaintiff's undercharging constitutes a waiver not covered by the clause.

Citation
[2018] ZAGPPHC 839
Parties
Plaintiff: Super Group Trading (Pty) Ltd; Defendant: Premier FMCG (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 November 2018
Case Number
67574/16
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception dismissed with costs, including the cost of two counsel.
Judges
Brand
Legal Topics
Contractual Interpretation, Non Waiver Clause, Exception Procedure, Pleading Defences
Commercial and Corporate Civil Procedure Contractual Interpretation Non Waiver Clause Exception Procedure Pleading Defences

Case Brief

Summary, issues, holding and outcome

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Parties

Super Group Trading (Pty) Ltd

Plaintiff

Premier FMCG (Pty) Ltd

Defendant

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Does the non-waiver clause in the service agreements preclude the defendant's waiver defence based on the plaintiff's consistent undercharging?
  2. 2 Is the defendant's plea of waiver a valid defence in light of clause 25(2) of the agreements?
  3. 3 Should the exception to the defendant's plea be upheld at this stage?

Ratio Decidendi

The court held that, at the exception stage, it is not appropriate to choose definitively between competing reasonable interpretations of the non-waiver clause. The clause is reasonably capable of both the plaintiff's and the defendant's interpretations. The plaintiff failed to discharge the onus of showing that, on every reasonable interpretation, the defendant's plea does not disclose a defence. Therefore, the exception must fail, and the matter should proceed to trial for a definitive interpretation and determination of whether the plaintiff's undercharging constitutes a waiver not covered by the clause.

Court Disposition

Exception dismissed with costs, including the cost of two counsel.

Orders

  • The exception is dismissed with costs, including the cost of two counsel.