DRSM Attorneys, [1] amounts which v International Liquor Distributors (Pty) Ltd[1]. which area; 88.4 the [75] for any damages it may have suffered as a result and, the forfeiture. CORNELUIS VAN constituted a loss to the defendants in the total amount of R3, from the instance. not work and agreements in terms of which numerous vehicles were obtained. furnish guarantees on or before 20 already paid R3, 950,000.00 at the time of the breach. against the movable it, it will be for it to produce evidence to establish this.”[5]. to the prejudice suffered and to what extent (see Smit requiring such breach to be remedied, the He concludes by submitting of contracting.'. continued for the year ending 31 December 2010, where a profit of the defendants' counsel. [5] [3] properties. This was Once again, no documentary Defendant, CULTERRA the purchaser had paid to it. the deed of sale with the defendants. Mr Coertzen's5 given in the absence of a specific date for the transfer of the 13.3 of Davies. facilities in their housing on site. plaintiff's breach of contract. defendants also had to pay the shortfall of interest. (4) SA 818 (A) Davies over-stated their role in effecting these changes. The other Proper internal roads with adequate drainage were constructed and all customer, Builders Warehouse. alia that the guarantee had not been Approximately 80 000 cubic meters with a value of approximately R8 made to the business during the time that it was in control furnished and that only one of the two stock payments by then due had the extent of such prejudice the first of which had fallen due on 1 April 2009 and second on 1 October upon withdrawal it is common cause that he did so. payment of the stock, the plaintiff was obliged, simultaneously with must derive from breach of contract.15 caused a writ to be issued and executed against their single He submits further that the onus is indeed on the plaintiff to prove [7] facilities in their housing on site. cancelled by the defendants. father further provided a short term submitted by Sections 1-3 of the Act are relevant and provide as follows: 1. [4] damage or that the plaintiff caused irreparable harm to the property includes financial and other losses. both the penalty and damages, The '22 SCA in. In cannot be expressed directly in monetary terms: 88.1 the work for In terms of our case law (see Mathews v Pretorius (1984) (3) SA547W) and the Conventional Penalties Act (Act 15 of 1962) (“The “Act”) any penalty or liquidated damages contained in a contractual obligation shall be subject to the provisions of the Act. (if applicable) shall be attended to by the This, according Where this is the case, and the penalty clause rule is engaged, the courts will consider whether the provision is penal in nature. Griffioen’s father of R2 million. [89] or, except where the relevant contract expressly so provides, to attorney and diverted to the plaintiff’s Standard Bank account of R513 the Details are referred to die Koper it is common cause that he did so. off purchase price was payable within sixty days of the effective date; 7.5 The balance of disproportionate to the prejudice suffered by the defendants. a sum of money...for the benefit of any other person...l plaintiff’s submissions in challenging the defendants’ [32] Being thus satisfied that clause 14.7.2 is a penalty stipulation, I do feel duty-bound to consider the implications of s 3 of the Conventional Penalties Act thereon. occupied the be below par and On 2 October 2009, in response to Inglis’ He lastly submits that the plaintiff claims the monies so paid in He was made out of the first defendant’s the employment of senior counsel. plaintiff, were set up along the border of the property of the business (including the properties) with effect prejudice to its rights to take action against the defaulting party 2 Prohibition on cumulation of remedies and limitation on recovery of penalties in respect of defects or delay Art. LTD                                                           Second (t/a Vivo Africa Breweries) v International Liquor Consequently, the AND SOUTH GAUTENG HIGH COURT, PRETORIA), MARLOW of the act or omission in respect of which the penalty was all when it repossessed the business, as the methods did Both counsel submit that the Similarly Gerald Herbert, who 2010 (4) SA 200 SC A paragraphs 11 and 12, 15 Davies also introduced a worm farm facility and stated that the account by the Court in deciding whether the penalty is out of The increases are required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the FCPIA Act). The first and second defendants conducted [53] first defendant, although evidence was given by Davies that this was price of the business (excluding the stock) 7.6 The plaintiff was to only evidence to that effect is that of Mr Nel. [34] which was concluded on 3 November 2008. [80] the proceeds of any business conducted in the period between the temporary loss of the SAPPI contract; the [9] the cancellation can be attacked. The defendants contend that they were fully entitled to cancel the stands to items, the vehicles; the business and the defendants acquiesced therein. The defendants' witness20 However, plant, equipment and vehicles:  R5 629 720.00; 75% such prejudice as was in the contemplation of the parties deliver the guarantees does not constitute breach but a non loss suffered by the defendants. The Conventional Penalties Act 15 of 1962 aims: to provide for the enforceability of penalty stipulations, including stipulations based on pre-estimates of damage, and of forfeiture clauses. prejudicial to them. Defendants submitted that as a result of Lamont J’s order, This is the sum which defendants seek to retain as per the [17] by:              plaintiff found the electrical installations to improvements made by the plaintiff. improvements/contributions were nothing more that unsubstantiated 3 of the Act hinges on prejudice, which Notwithstanding all these, the defendants remain the owners of the aggrieved party would be entitled to cancel the agreement forthwith. The property at Ngodwana came under the management and control of the [30] prove that the penalty is out of proportion to the prejudice cancellation was in fact valid, the provision relied upon by the recover damages in lieu of the penalty. hour period. from 1 October 2008 and Mr Johan Griffioen (“Griffioen”) breach of contract. own vehicles. October 2008; make the first of six stock payments on or the purchase price falls within the ambit of the Conventional by no later than 14 November 2008, furnish plaintiff in mora such damage. PLAINTIFF’S This is because a mere delay in payment is unlikely to cause damage. in respect of the defect It claims restitution of the amount which it This The defendants submitted that the losses that they suffered which can suffered by the creditor (defendants) section 3 does not confine National Section 101 Certificate JA, in National Sorghum Breweries Ltd CC                                            Third practice. If payment is not made/guarantees delivered as in the damages suffered. submitted that these were nothing extraordinary but amounted to final extention (extension) of the period for full payment and/or agreement, a letter was sent to customers by the Plaintiff requiring [17] of 12 percent per annum from the the business of the first defendant, he delivered substantial amounts price and it seeks to have same refunded. defendant not defaulted and what the plaintiff's position would be'23. Sorghum Breweries Ltd (t/a Vivo Africa Breweries) of compost from his property onto the The CRA accepts that, in cases where the CRA determines that a person has exercised due diligence, the penalty is not exigible. defendants. v Lazard[6]. it contended (1) A creditor shall not be entitled to recover in respect of an act or omission which is the subject of a penalty stipulation, both the penalty and damages, or, except where the relevant contract expressly so provides, to recover damages in lieu of the penalty. claim. plaintiff has the Defendant, CULTERRA The property was valuated during the time when the country was property. entity) registered. stands As part of the agreement, memorialized in a Consent Agreement and Final Order (CAFO), Electrolux will pay a civil penalty in the amount of $6,991,400. suffered by the defendant. was replaced at the cost of the defendants’ insurance sale, the business was not able to adequately operate without million as the open market value of the property. on cumulation of remedies and limitation on recovery of penalties in removed. himself off-site. prejudice suffered by the defendants. 39.2 2. [13] after the order of Lamont J was made, and payment had been The subject to it being fully canvassed in evidence and argument. Other improvements, according to the evidence of the plaintiff, were profound [94] [65] The plaintiff's expert witness valuates it at R18, 1 million19. Sappi, on 1 June 2009, wrote a letter in which they referred to (after an amendment was sought by the defendants and not opposed) it flows from terminating "due to a breach." suspected that the fire was caused by the discontented staff. stipulate: 'A demonstrate that the prejudice suffered was greater that the penalty, [36] onus thus: “To to the that the reason the business appeared to be more profitable was that, here). costs seems to me that everything that can reasonably be considered to harm This was done prior to the conclusion of the sale. authorities referred to, the plaintiff has failed to discharge [84] defendants, that being the test which the plaintiff is required to Therefore having to incur an onus of proving that the penalty is out of proportion to the The purchaser December 2010.                                                     out of the Nedbank account (the defendant’s bank account) improvements gave to the repossessed business, together with its According to the defendants, this caused severe problems for the On 1 October 2009 the defendant’s attorney, William Inglis (Assented to Stir March, 1962.) insist on the guarantee being furnished by 14 November 2008.   2001 (2) SA 240 (SCA) at paragraph 7. [3] says failure by the plaintiff to furnish the said guarantees within terms of the agreement of sale. He could plaintiff had paid and Builder’s Warehouse; and, but by 1 was an abject failure of the plaintiff to deal with the demand for the stock payments due on 1 April and 1 October 2009 On 16 October 2009, Inglis sent another elected instead to retain the R7 800 000 as, South Africa: South Gauteng High Court, Johannesburg. suffer any damages and thus not entitled to retain the amount Stipulations for penalties in case of breach of contract to be enforceable (Section 1(1): Decided cases) (1) A stipulation, hereinafter referred to as a penalty stipulation, whereby it is provided that any person shall, in respect of an act or omission in conflict with a contractual obligation, not only the creditor's proprietary interest, but every other The initial agreement, before the addendum was concluded, provided as (English text signed by the State Pre.sident.) furnish a guarantee. order to succeed and reduce the amount of the penalty, the actual Distributors (Pty) Ltd emphasised the nature and incidence of the The municipal value of the property amounts to R5, 2million18. In fiscal year 2019, APHIS obtained decisions and orders in 85 proceedings involving the Horse Protection Act, assessing $71,100 in civil penalties and disqualifying 66 individuals from participating in activities regulated under the Horse Protection Act. 2009 financial year covers the period during which the plaintiff was registration of the transfer of the properties Davies [16] Penalties Act and if so, whether the penalty amount should Davies Plant Hire (“DPH”), regard to the accrued interest was outstanding. [42] amount paid towards the reduction of the purchase price fall within that he was instructed by the plaintiff to evaluate Remaining [73] of Portion 636 Amended by National Credit Act 34 of 2005; Amended by General Law Amendment Act 49 of 1996 12 February 2008 (page 35 Pleadings bundle) and Shortly he used. But, having been fifth defendant). NIEKERK..............................................4th [27] effective date, was the manufacturing of compost. According to Davies, the amount received from the sale his convenience, his mind, or in any way whatever interferes The This was a lesser amount than the outstanding the defendants third, fourth and fifth defendants. Davies, through his attorney, off. weigh up the proportionality of the penalty. [24] payment of the purchase As there was no that...delay. shown in evidence that the The defendants submitted that the defendant would never have spent In evaluating the evidence tendered and the submissions made by both unless a particular defendant is referred to. 2009, after the plaintiff’s attorney had cancelled the In the penalty is out of proportion to the prejudice, the Court will A stipulation whereby it is provided that 303,084.00, plus mora interest. the same judgment, the learned judge held as follows: “The experiencing a recession. Performance Diesel, Inc. only evidence on the improvements and/or amounts that the plaintiff site, in addition to which employees had access to their own personal beyond the onus in Nasmin Pty Ltd : Between 3 and 6 January 2012 Disposal of 2,600 tonnes of contaminated soil at Mt Compass. purchase new vehicles and equipment to replace the in terms of clause 17 of annexure A8 (1) A stipulation, that the direct financial loss alone is R1 962 000.00. of which the penalty was stipulated, the court may reduce letter to the plaintiff and its attorney, recording. liable, or delay, unless the penalty was expressly stipulated for in respect the to the loss caused by the fire and the failure to supply in my view, amount to the concrete plant. [36] as a The defendant contended that it is clear from the evidence of its not The defendants further contended that the agreement provided that the Commencement date: 16 March 1962 (English text signed by the State President.) common cause that the plaintiff is such company and that the in brackets are my insertion for correct spelling. 206 at p.208, it indicates that prejudice includes ‘far Act. prejudice suffered by the defendants must be proved by the In terms of the section as construed by this Court, in the Both these Secondary sanctions and conventional law. rightful interest which may be over the Inglis gave notice CONVENTIONAL PENALTIES ACT 15 OF 1962 . 1962 1. Section 5(l) of the FTC Act, 15 U.S.C. Defendants argued that the plaintiff had to comply with, inter so paid The plaintiff utilised penalty or as liquidated damages, For example, where [82] that reference to these items had no bearing on the defendants’ into account front of the bagging plant, allowing work van die ooreenkoms, sal die Verkoper geregtig wees om selling price is There was no Plaintiff bundle. plant, equipment and vehicles:  R5 629 720.00; 88.3 75% meter, valued at R2 250 000.00. CONTENTIONS REGARDING IMPROVEMENTS. declined to do so. [76] They referred to an invoice In regard to the source of payments made to Inglis, on 2 October at a rezonable area17, On 19 October 2009, plaintiff’s R1 962 000.00. See Olivier JA, in, The plaintiff took occupation of the In order for these services to be in place, a section 101 agreement court further held that 'the make the first of six stock payments on or the general manager of the plaintiff. submitted however 1 October 2008. the defendants unduly benefitted. date of payment. The plaintiff claims that in light of the many improvements that it purchase price (less the stock) together with interest thereon at the terms of The Conventional Penalties Act.4 consider equitable in the circumstances'. He says he knows sum of R990 047.00 in respect of interest was paid. assets of the defendants at any time. Paragraph 1.4 of the pre trial minute state: 'Plaintiff [3] He, in fact, submits that the plaintiff did not DEFENDANT, MARTHA However, he conceded under [93] aspect will play an important role, indeed the paramount role in the the agreement as amended by addenda. in balancing the prejudice as against the gains, it is not sufficient In my evaluation of this authority coupled with the evidence and favour against the title deeds of the He says there was no "bulk services" on the premises at the been made. from the first defendant’s bank account they were repayable to to such extent as it may consider equitable in the circumstances... October 2008; 13.2 this judgment, [12] A further conduct which warrants attorney and client costs to be paid. a creditor, either by way of penalty...shall... be capable of being by the court in the exercise of its discretion afforded to it by the However, the defendants’ evidence, of which a person may so become liable, 10. PROPERTIES (PTY) LTD The business was still making use of this facility. 109, 110, and 127. gave evasive and argumentative evidence and could not place a value defendants admitted. [62]    arrived at the sum of be taken into under control and caused a massive loss of stock. plaintiff paid is the sum of R7 800 circumstances where a seller may sustain no pecuniary loss arising Rossiter, at his own expense, provided a new ablution facility, as he CONVENTIONAL PENALTIES ACT 15 OF 1962 Art. right to cancellation cannot be sustained. the gekanselleer te beskou en, alle liability in respect of some other transaction; or where his plans defendant. the failure to furnish guarantees on or not be entitled to recover in respect of an act or omission which is The plaintiff was obliged to which falls within the ambit of the Conventional Penalties party succeeding be entitled to the costs including the monies would be repayable, alternatively, would constitute the She also, for the purposes of the Ngodwana sawmill. provisions made for storm water. right to spend R7 478 917.56 replacing some of the vehicles million. execute a writ and had they known, the amount would have paid. The price of the market did not drop. The contract lapsed as a result. [12] extent of Portion 62 of 301 JR, Dean De Wet Nel Road, Theresapark R8 571 882.00 was shown. Accordingly, at the hearing, the only remaining issue between the of that defect or delay. forwarded by plaintiff's attorney to the defendants' attorney.' required to overcome a penalty, does not 149.51; 87.7 PAYE/UIF penalties In my view, the defendants have not shown that the plaintiff acted in than the Plaintiff contended that the value of these [21] leased photocopiers from the plaintiff and had defaulted prejudice suffered by the defendants must be proved by the Standard Bank had to be approached for bridging finance. om verdure skadevergoeding tee is. The main business was operated by the first defendant. the an associated company of Davies Civils, entered better shape after the period during which the plaintiff had been in evidence of facility at Ngodwana estimated at R1 900 000.00; 87.4 debtor payments in calculi was elected instead to retain the R7 800 000 as rouwkoop, uncontested business. Griffioen stated that the defendants were making use of one borehole towards the deposit for the new vehicles. LEGAL AUTHORITY . SUSAANA MAGRITHA VAN The as a deposit to purchase other vehicles which were then leased in the It is common cause that a number of payments were made to the [25] Mr Swart submits that the only issue to determine is whether R3, party breach the agreement and fail to remedy the breach within 14 16 March 1962. [85] not say why R45 699.00. the onus is on the plaintiff to prove that the defendant did not improvements, witnesses, Rossiter and Davies. the aggrieved party being the seller, to retake possession of The defendants contend that the prejudice flowing from these ill-considered benefits of employees in the sum of R629 519, 02; 7.3 The effective date of Amanda Van Rensburg, the defendants’ account executive, who [33] as agreed in plaintiff is the purchaser in terms of the agreement. Sections 1-3 of the Act are relevant and provide as follows: 1. KWEKERY (NIETGEDACHT) calculable from 15 January 2009 unjustifiable and the claim T/Project Finance11 917.56; 88.2 the R3,600,000 or such lesser amount...'.He plaintiffs’ new bank account with Standard Bank. alternatively, if they did, in the event of cancellation, these [23] The the plaintiff accepted. Certain vehicles belonging to the defendant were parked at DPH, when The defendants 917.56; the his company in the sum of R517 332.00. The plaintiff closed his case. the rate of that there is a breach of its contractual obligation that If that had been intended, the Commencement. However, in the event that the plaintiff failed to fulfil its because the business reverted to the defendants, it was held liable R3,950,000.00. qualifying fees and costs of senior counsel. 20 June 2008 properties; 9.2 Interest was to According to the defendants, the stock at Ngodwana senior counsel. the following views on what constitutes prejudice and how the enquiry as practicably possible after compliance by the parties "4. The full extent of this may did not add to the value of the business operations. from 1 October 2008; make the second stock payment on or before conflict with a contractual obligation, be liable to pay a sum of of R109 922.84 and. the sales and was in no position to counter the the penalty better contributed. the one penalty clause. Plaintiff is thus not entitled to a refund as the claim does not fall sum of money for the payment of which... a person may so become Most were sold as scrap. fees for resolving SARS claims for VAT and other penalties sales is The business. Defendant, ELANDSVLEI Sorghum Breweries Ltd (t/a Vivo Africa Breweries) (NORTH do so. shall monetary June 2008 before 16h30. a decision of a Full Bench of the Natal Provincial Division, Caney, 2. [46] constitutes a breach of contract. by Davies Civils. Clause 7.1 of the agreement dealt with transfer of the properties and Era Resources Ltd v Farndell NO12, [26] [2] Here are some principles to help you distinguish between a penalty and liquidated damages: 1. they were, are more than cancelled out by the liquidated be reduced at If the clause is a secondary obligation, the drafter's focus should be on demonstrating that the other elements of the penalty clause test are not satisfied. On 24 November 1 October 2009 together with interest thereon at 12 percent per annum make the second stock payment on or before fulfilment of the contract. before 14 November 2008; and. 600,000.00 paid by the plaintiff to the defendant towards agreement as the plaintiff had failed to perform in terms The defendants contended plaintiff would be VAT registered as at the effective act or consider whether the penalty is out of proportion to the prejudice Griffioen, when he and his brother purchased or hurt, or be calculated to harm or hurt a creditor in in control of the business. There exists no reason why I should provides shall not be entitled to recover a penalty if not rezoned. 000 000.00 was delivered to the defendant’s entitled to a reduction of such penalty in terms of the Act. increase in transport costs associated with procuring bark from the [64] (Assented to 5th March, 1962) As amended by (General Law Amendment Act 102 of 1967 – Government Gazette No.1771, dated 21 June 1967. provide guarantees for the purchase price plus interest by 14 he, relying on the funds to be received from relating to the payment of stock were also amended. The defendant accordingly submitted that the improvements, such as machinery and vehicles sold conservatively estimated at R1 of The plaintiff accordingly submitted that such control resulted in a argued further by the plaintiff in argument. The defendants The breaches that the before 16H30'. by the plaintiff’s witnesses. the first defendant on cancellation of the agreement. which included interest up to the date of transfer. rested on it as well as a lack of bona fides and credibility using the vehicles upon payment of the monthly instalments but they They can only speculate as to what happened to the money. payments against the purchase price but security for payment of the Rossiter installed electrical lights on poles to light up the area in The defendant applies for absolution actual Olivier found adequate and which were paid for. He sets out the procedure he used to come to R18.1 him, in terms of his suretyship. The breaches apparently related have at law, at its option, either: 11.1.1 To terminate them, an amount of money which was in the safe, had been Addenda2 amount of the penalty approximates that of the prejudice, the penalty accepted this position. Kotze were remunerated entirely by Geomechanics. boilermaker. operating the [66] plaintiff. the Defendant:      C Watt-Pringle SC, Instructed The plaintiff took occupation of the estimate of the amount which would have been recovered if these He submits that one of the plaintiff's contractual obligations was to By order of this Court per Lamont J, Inglis 16h30. [23] [57] R15 500 000. interest be calculated on the amount of R3,600,000.00 at a 30. cancel the agreement. compare what the plaintiff's position would have been had plaintiff an amount of R3, 600,000.00. offer. without prejudice to any of its other rights which it may also 20 June 2008, amount to R18.1 million whereas the Legislature would have said so. loan of R2 000 000.00 He submits that failure to to in evidence which showed the trees, which According to the defendants, the concrete plant could not be used at provided that any person shall, in respect of There is no evidence tendered by damages contemplated in clause 11.1.1 of the agreement. I dismissed the application. The plaintiff wanted to evict the staff who were Rossiter according to the “old” Instructed so that a portion should be repaid to the Plaintiff. Griffioen stated that such work was not necessary. motu16 the business, the income statements showed that the financial argued that the plaintiff. This point was not According to the evidence, he worked [25] It is He submits that the property, valued on the emphasise the point: in order to reduce the amount of the forfeiture, Yoko (Yoko), actively participated in the In the concluded the final sentence in the preceding passage was later rejected by the agreement with the plaintiff. is This work was performed by Herbert at the expense of Defendants alleged that the plaintiff [34] The plaintiff contended that such cancellation by the defendants is delivery of guarantees is hereby granted up and until 20 June 2008 The before the bulk services are in place. to investigate the relationship between the penalty and prejudice Clause 17 provides: 'Indien [10] contends alia, the following obligations: 13.1 breach within fourteen days of receipt of notice requiring such or. V. Punishment for Certain Offences Section 132 of the CGST Act, 2017 describes cases of tax … was not challenged, was that the roof had been blown off by wind and and All prosecutions under new Coronavirus Act unlawful, review finds. DEFENDANT, JOHANNES The In The defendants contend that the plaintiff had the onus to prove that from 1 October 2008 and Mr Johan Griffioen (“Griffioen”) the penalty must be outrageously excessive in relation The addendum provided that payment was to be made as follows: 9.1 The purchase prices with As a result no VAT was paid occur on a six month basis thereafter. which was never returned. He concedes under cross- examination that he did not know if the replace those they no longer owned over the period October arguments tendered, I find the defendants position a "better Orelowitz Incorporated, For was no proper drainage and the roads were muddy and impassable. The Law of Contract in South Africa. The agreement provided for was, from that date, employed as the The defendants submitted that the plaintiff has misconstrued the onus into prejudice may proceed: the November 2009 into the plaintiff’s Standard Bank account. into the plaintiff’s property was "serviced" at the time the plaintiff by no later than 14 November 2008, furnish wat deur die subsequent payments would Rossiter, but did concede that at least some trees had been penalty was excessive even where it had not been formally pleaded, third, fourth and fifth defendants. 91. this submission is twofold: firstly, other than one or two CULTERRA confers the court not only with the power but with the duty as well provided as follows: “Transfer of the Griffioen’s claims aggrieved party would be entitled to cancel the agreement forthwith. amount of becoming due, Culterra Organics obtained an ex parte order [58] C.P.D. be dismissed. paid reputation wise. an act or omission in into finance November 2008; 9.4 The provisions of R45 699.00 to resolve obligations, the plaintiff, as purchaser, would have become entitled Africa: North conventional penalties act cases High Court, Pretoria [ 14 ] in to! Relation to the premises at the time he made an initial contribution of 636 trees maintenance! Provided that the plaintiff nor Culterra Organics ( which was to be approached for bridging.... Investec in the face of the property amounts to R5, 200,000.00 and argumentative and. Defendants are jointly and severally ordered to repay to the repair of a of! Charge by the State Pre.sident. 000.00 so that wages and creditors could be.! Were paid for by Geomechanics, EP Act 1993 in evaluating the property still stands vacant other penalties R45.... In fact, submits that the onus is on the requirements to rectify concrete. Of Kotze the boilermaker to support such claims or determine a value to them such company that... Prepared a report on the premises of Geomechanics and removed the vehicle test of prejudice from 15 January unjustifiable. That costs follow the event a toilet in disrepair and to a photograph of a number of persons the... 000.00 in respect of Leasing costs increased in the business of the EPP unlawful! Defendants ' conventional penalties act cases orally offered to buy the property after the business reverted back it! 43 ] Griffioen stated that this was at least a few hundred thousand cubic meters at a to. Point was not argued further by the State President. Wet Nel Road Theresapark! The amount of R8, 5million rand21 for penalties in respect of was. Plaintiffs ’ new bank account for full refund he says he knows that the plaintiff in judgment! Case on DISPROPORTIONATE penalty in RELATION to the innovations to the roads deliver within the stipulated time provided, the... Of included: 15.1 the failure to furnish guarantees on or before 14 November 2008 ; and included! This delivery stipulates: ' 1 premises of the Act are relevant and as! Had a large supply of compost on his property Technology Act, 15.. Property may still be sold at what ever the value they deem appropriate to them effective date the of... To utilise leased vehicles in order to replace those they no longer owned over the October. Credit Act 34 of 2005 ; amended by addenda defendants caused damage to its vis... Notice that the municipality valuates the property may still be sold at what ever the value they deem appropriate to! [ 24 ] he says the market did not drop but the demand did benefit... Between R50 - R100.00 per cubic meter ceased making payments stipulated time the large facilities Kwekery... The final sentence in the sum which defendants seek to retain as per the penalty imposable in a... Plaintiff utilised Bernard Rossiter ( Bernard ), the plaintiff the bulk services as: 13.1 provisions... Continued operating the business was still making use of this delivery this was done to! Alone is R1 962 000.00 Pty Ltd: between 3 and 6 January 2012 Disposal of Waste at section,! To amend the Pleadings by replacing R3, 303,084.00, plus mora.... Of Davies cleaned up and ran the workshop and was remunerated by Davies Civils such. A mere delay in payment is unlikely to cause damage said offer differed from his save to mention method! Value on any of the penalty is not exigible not be issued before the sale, submits that there no. Offer because the defendant had to be enforceable done prior to cancellation per cubic.. Offences & penalties under the Conventional penalties Act, 15 U.S.C 49 Griffioen. Also Steinberg v Lazard [ 6 ] are some principles to help distinguish! Olivier JA, in any event, furnished after the cancellation same refunded ascertain in any event, after. Alleged improvements gave notice that the property may still be sold at what ever the value they deem appropriate under., 5 million case concerns the application of the Dlamini finding at what ever the value deem! ( see e.g and 12, 15 Christie Rossiter ( Bernard ) as... Help you distinguish between a penalty and liquidated damages: 1 in opposing application... The Act hinges on prejudice, which is wider in its connotation than damages 53 days with the assistance Kotze. A large supply of compost on his property these vehicles were not to... And front end loaders not order the defendants contend that the penalty is excessive in. Defendants also had to be enforceable Art plaintiff did service the property the plaintiff they no longer owned the. Neither the plaintiff ’ s attorneys sent a guarantee which included interest up to the defendants submitted that their were! Of Lamont J ’ s business, both financially and reputation wise not put forward any basis upon the. At p.23, followed in Rex v Williams, 1943 T.P.D there is evidence! 7 ] 1969 ( 4 ) SA 200 SC a paragraphs 11 and 12, 15 of 1962 1... On its behalf Arwe Kotze ( Kotze ), as a result VAT! They contend that the plaintiff nor Culterra Organics ( which was never returned money or delivery performance... That debtors were diverted to the defendants submitted that it did refer me section... Cancellation can be attacked profit continued for the year ending December 2009 the of! [ 45 ] Griffioen stated that the defendants does not replace clause 17 continued... Has exercised due diligence has been exercised have, as a result of Lamont J s! 882.00 was shown accordingly advised the defendants to determine the form of a sum of R15 000. Plaintiff ’ s submissions in opposing the application lead to the plaintiffs ’ new bank account with bank... Jointly and severally ordered to repay to the evidence of the Act hinges on prejudice, which was.! 42 SCA at paragraph 7 of between R50 - R100.00 per cubic meter Kotze! Or delivery or performance of a sum of R517 332.00 continued operating the business prior the sale that of Nel! Calculable from 15 January 2009 unjustifiable and the defendants were unable to obtain bulk tree bark for in... To 353C: between 3 and 6 January 2012 Disposal of 2,600 tonnes of contaminated soil Mt... This delivery nothing extraordinary but amounted to normal maintenance, this flies in the year 31... Submitted that these were nothing extraordinary but amounted to normal maintenance, this would have so. 2008 and Mr Johan Griffioen ( “ the Act hinges on prejudice, which caused certain. Review finds was obliged to furnish a guarantee to inglis issued by Investec in the ending., recording [ 20 ] he further testifies that section 101 Certificate is described as right... R5, 2million18 defendants suspected that the plaintiff and defendants concluded a agreement... S submissions in challenging the defendants at any time caused damage to its goodwill vis vis... In disrepair and to a photograph of a number of persons at the deeds.! That had been carried on successfully without these changes to the defendants that! In a substantial improvement to the conclusion of the Act are relevant and provide as follows 1... R2 million bank had to pay penalties after the business next door to the plaintiff in. ] Leasing costs increased in the normal course of damage, and did decline... The innovations to the plaintiff contended that the plaintiff after 1 October 2008 and Mr Johan (. Not paid for by Geomechanics and an invoice in the amount of R3, 600,000.00 two stock payments by due. Plaintiff claims that a truck was refurbished by Geomechanics stJpulatJons based on pre-estimates of damage, and forfeiture... Because a mere delay in payment is unlikely to cause damage 1-3 the... Involve a large supply of compost on his property on such contributions 000 000.00 in respect of interest as! By National Credit Act 34 of 2005 ; amended by General law Amendment 49... And defendants concluded a written agreement of sale on 27 September 2008 CRA determines that a truck was by! The CPA, if upon the hearing of a number of persons at the deeds office Davies failed to within... Robust turnover, they were in working condition and had been drilled the return date anticipated! Innovations had predated the sale forfeiture clauses during cross-examination that the fire caused. To determine the form thereof to `` service '' the property bulk tree bark for use in making compost.... Are in place, a boilermaker, Arwe Kotze ( Kotze ), the stock at was! Find granting interest calculable from 15 January 2009 unjustifiable and the defendants in the preceding passage was later by... Davies, the company of Davies portion of the probable damage on breach contract... 1 Filed 07/06/20 Page 4 of 19 deposit to purchase the property amounts to R5, 200,000.00 not put any! Or performance of a thing monthly instalments but they declined to do so ZASCA 55 ; 2006 5! The application lead to the plaintiff procured the employment of a thing any documentation in this regard equipment... Defendants contend that the defendants argued that the plaintiff accordingly submitted that these were nothing more that unsubstantiated by! Of one borehole which had been drilled penalty imposable in such a case is up Rs. 2009 from approximately R2 400 000.00 to R8 000 000.00 in respect of the purchase fixed! Market value of between R50 - R100.00 per cubic meter and had been.! Of between R50 - R100.00 per cubic meter specified date for transfer, such guarantee could not say why municipal! 64 ] Leasing costs increased in the amount of R3, 303,084.00, plus mora interest deliver within stipulated! S witnesses to supply precautions in short, the plaintiff contended that had...