Traxys Africa Holdings Ltd and Another v Westbrook Resources Ltd

Westbrook Resources Ltd operated a manganese refining plant in Croatia and sought to improve efficiency by acquiring new processing equipment (jigs). Between August and November 2008, Westbrook and Metmar (later Traxys Africa Holdings (Pty) Ltd) concluded three partly oral and partly written agreements for the sale of three jigs at a total price of US$1.35 million. The written terms were contained in pro forma invoices, which included staged payment terms, with the final 30% payable on commissioning of the equipment in Croatia. A dispute arose as to whether Metmar was contractually obliged to commission the jigs or whether Westbrook (or its site manager, De Beer) bore that responsibility. Metmar delivered the jigs, but they were never properly commissioned and failed to operate effectively. Westbrook withheld the final payments and sued Metmar for damages arising from failure to commission. The trial was limited to separated issues concerning the obligation to commission. Both the trial court and the full court erred by failing to make substantive orders on the separated issues, prompting an appeal and cross-appeal to the Supreme Court of Appeal.

The appellants’ appeal was dismissed with costs, including the costs of two counsel. The respondent’s cross-appeal was upheld with costs. The order of the court below was set aside and replaced with a declaratory order that Metmar was obliged to commission the equipment in Croatia; that neither Westbrook nor De Beer was required to commission the equipment at their own cost and risk; and that neither in fact did so without Metmar’s involvement.

The case clarifies the treatment of partly oral and partly written contracts in South African law and reaffirms that oral terms may supplement written agreements without offending the parol evidence rule where the writing is not intended to be exclusive. It also underscores the procedural importance of courts issuing clear, substantive orders on separated issues, and reiterates that appellate jurisdiction is concerned with orders rather than reasons.