DSV South Africa (Pty) Ltd t/a DSV Air and Sea v Phoenix Neomed (Pty) Ltd (2022-011215) [2023] ZAGPJHC 1028 (13 September 2023)

DSV South Africa (Pty) Ltd t/a DSV Air and Sea v Phoenix Neomed (Pty) Ltd (2022-011215) [2023] ZAGPJHC 1028 (13 September 2023)

The court found that none of the defences raised by the respondent constituted a bona fide defence to summary judgment. The alleged illegibility of the contract was dismissed as the contract was legible and the respondent was able to plead to the relevant provisions. The defence of non-performance due to alleged negligence was not properly pleaded and, in any event, was precluded by the 'pay now, sue later' clause, which required payment before disputing performance. The argument that payment was conditional on receipt of funds from the Department of Health was unsupported by the contract, which contained a non-variation clause and no evidence of any variation. The defence of supervening...

Citation
[2023] ZAGPJHC 1028
Parties
Applicant: DSV South Africa (Pty) Ltd t/a DSV Air and Sea; Respondent: Phoenix Neomed (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 September 2023
Case Number
2022-011215
Procedural Posture
Summary Judgment Application / Judgment on Summary Judgment Application
Outcome
Summary judgment granted in favour of the applicant/plaintiff for the reduced amount claimed, with interest and costs on a party and party scale.
Judges
N Manoim
Legal Topics
Summary Judgment, Contractual Terms, Pay Now Sue Later, Constitutional Limitations, Performance and Nonperformance
Commercial and Corporate Civil Procedure Summary Judgment Contractual Terms Pay Now Sue Later Constitutional Limitations Performance and Nonperformance

Case Brief

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Parties

DSV South Africa (Pty) Ltd t/a DSV Air and Sea

Applicant

Phoenix Neomed (Pty) Ltd

Respondent

Procedural Posture

Summary Judgment Application / Judgment on Summary Judgment Application

Legal Issues

  1. 1 Whether the defendant has raised a bona fide defence to summary judgment.
  2. 2 Whether the 'pay now, sue later' clause in the contract is unconstitutional or contrary to public policy.
  3. 3 Whether the defendant's obligation to pay is subject to payment by the Department of Health.

Ratio Decidendi

The court found that none of the defences raised by the respondent constituted a bona fide defence to summary judgment. The alleged illegibility of the contract was dismissed as the contract was legible and the respondent was able to plead to the relevant provisions. The defence of non-performance due to alleged negligence was not properly pleaded and, in any event, was precluded by the 'pay now, sue later' clause, which required payment before disputing performance. The argument that payment was conditional on receipt of funds from the Department of Health was unsupported by the contract, which contained a non-variation clause and no evidence of any variation. The defence of supervening...

Court Disposition

Summary judgment granted in favour of the applicant/plaintiff for the reduced amount claimed, with interest and costs on a party and party scale.

Orders

  • Summary judgment is granted against the respondent/defendant in favour of the applicant/plaintiff for payment of the sum of R3,754,387.50.
  • Interest on the aforesaid amount at the rate of prime plus 3% from 03 September 2022 to date of final payment.