[1] The appellant, Lancewood Holdings (Pty) Ltd, carries on business in the dairy industry.  It makes various types of cheese.  For that purpose it needs to buy milk in bulk.  The respondents, who are dairy farmers in the Southern Cape, instituted action against the appellant in the Eastern Circuit Division at George for payment of the outstanding balances allegedly due for milk that they had supplied during the period July to December 2009 in terms of the contracts that they then had with the appellant.

[2] By agreement, a separation of issues for the purposes of trial was directed in terms of rule 33(4).  The ruling was loosely worded and spoke only of a division of the questions of ‘liability’ and ‘quantum’.  In the result it did not make it altogether explicit what precisely comprised the issues falling to be tried in a first stage hearing under the rubric of ‘liability’.  This was unfortunate because there were a number of pleaded issues that bore on ‘liability’, including the question of whether the alleged contractual term centrally in issue - the existence of which was in dispute - was, if established, legally enforceable.  These considerations militated in favour of a more detailed framing of the ruling in terms of rule 33(4).[1]  As matters transpired, however, the hearing proceeded, albeit somewhat untidily, on the basis that the sole question for determination in the first stage of the trial was whether the appellant had bound itself to pay to its milk suppliers a premium of at least three cents per litre above the price paid by the ‘market leader’, a company called Parmalat.  The trial court held in favour of the respondents on this question. With the leave of the court a quo, the appellant has come on appeal to the full court against that decision.  The court a quo directed that the costs of the application for leave to appeal were to be costs in the appeal.

[3] The sums claimed comprised the alleged differential between the amounts paid by the appellant to the respondents during the relevant six month period and the prices that the respondents calculated should have been paid had the aforementioned premium been applied.  The particulars of claim (which were not a model of clarity) appeared to allege that the relevant term had been included in the pricing provisions of the contracts that had been concluded individually between the respective respondents and Lancewood Cheese (Pty) Ltd prior to an undisclosed date in 2008, when each of them allegedly consented to a temporary suspension of the agreed price regime until 1 January 2009. The pleaded claims were therefore, according to their tenor, for the performance of agreements concluded prior to October 2008.[2]