Afrifresh Export (Edms) Bpk v Visser N.O and Others (1539/2006) [2006] ZANCHC 63 (1 December 2006)

Afrifresh Export (Edms) Bpk v Visser N.O and Others (1539/2006) [2006] ZANCHC 63 (1 December 2006)

The applicant failed to establish a clear right to enforce clause 12 of the export agreement, as the existence and quantum of any debt owed by the respondents is uncertain and disputed. The applicant's conduct, including the institution of summons for payment and failure to act timeously to enforce clause 12, constitutes an election to pursue payment rather than specific performance. The contractual provisions, when read together, amount to parate executie, which is contrary to public policy and section 34 of the Constitution, and are therefore unenforceable. The applicant has an alternative remedy in its pending action for payment. The urgency claimed is self-created, and the practical...

Citation
[2006] ZANCHC 63
Parties
Applicant: Afrifresh Export (Edms) Bpk; Respondent: E Visser N.O.; Respondent: H J Visser N.O.; Respondent: C L Visser N.O.; Respondent: Onderstepoort Boerdery; Respondent: Umlimi Agricultural Services (Edms) Bpk; Respondent: Hurst Parnell & Company Beperk; Respondent: Green Marketing International (Edms) Bpk
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
1 December 2006
Case Number
1539/2006
Procedural Posture
Urgent Application / Final Determination of Application for Interdict and Specific Performance
Outcome
Application dismissed with costs.
Judges
Olivier R
Legal Topics
Specific Performance, Final Interdict, Contractual Repudiation, Parate Executie, First Right of Refusal
Commercial and Corporate Civil Procedure Specific Performance Final Interdict Contractual Repudiation Parate Executie First Right of Refusal

Case Brief

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Parties

Afrifresh Export (Edms) Bpk

Applicant

E Visser N.O.

Respondent

H J Visser N.O.

Respondent

C L Visser N.O.

Respondent

Onderstepoort Boerdery

Respondent

Umlimi Agricultural Services (Edms) Bpk

Respondent

Hurst Parnell & Company Beperk

Respondent

Green Marketing International (Edms) Bpk

Respondent

Procedural Posture

Urgent Application / Final Determination of Application for Interdict and Specific Performance

Legal Issues

  1. 1 Whether the applicant has a clear right to enforce clause 12 of the export agreement granting a first right of refusal for future grape marketing.
  2. 2 Whether the applicant is entitled to compel the respondents to provide information regarding contracts or negotiations with other marketing agents.
  3. 3 Whether the applicant has elected to pursue payment by summons rather than enforcing the contractual right under clause 12.

Ratio Decidendi

The applicant failed to establish a clear right to enforce clause 12 of the export agreement, as the existence and quantum of any debt owed by the respondents is uncertain and disputed. The applicant's conduct, including the institution of summons for payment and failure to act timeously to enforce clause 12, constitutes an election to pursue payment rather than specific performance. The contractual provisions, when read together, amount to parate executie, which is contrary to public policy and section 34 of the Constitution, and are therefore unenforceable. The applicant has an alternative remedy in its pending action for payment. The urgency claimed is self-created, and the practical...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs, including the costs occasioned by the postponement.