Venter trailers trashed me, claims businessman who wants supa-sized damages

A number of clauses in a distributor agreement Venter Manufacturing signed with its former Botswana agent proved, beyond reasonable doubt, that there existed a tacit term which gave Supa Bike exclusivity in that country’s territory..

Supa Bike owner Hedley Abnett made this submission to answer whether the “dealer agreement” between Venter and his company contained a tacit term which granted his business the exclusive distributor rights there.

A tacit term means the agreement was implied through the conduct of the parties involved.

The question was raised when the matter first came before the high court in December last year. The case was postponed to allow Supa Bike to address this question by filing a supplementary affidavit.

Abnett is suing the manufacturers of Venter trailers, saying a breach in their agreement caused him huge financial losses. He signed a distribution agreement to sell the trailers in Botswana in 2018 and assumed the agreement entitled him to an exclusive arrangement for the whole country.

However, this turned out not to be the case, as Venter Manufacturing sold trailers to another Botswana company in August 2019.

Now Abnett is saying damages of R6.1m from Venter for loss of income.

This arrangement reinforced the applicant's position as a wholesaler within the territory of Botswana and its existence relied solely on the turnover of Venter products.

In his supplementary affidavit Abnett said a number of terms in the agreement supported his argument that there was an exclusive distributor contract.

He said the agreement Supa Bike signed with Venter stated that the trailer company granted to the distributor the right to purchase and resale in the territory.

Abnett said a distributor, by its very nature, had the inherent right to wholesale to retailers.

The territory, he said, was established to be that of Botswana on the contract’s cover page.

Abnett said another clause was that “the distributor shall not market or sell competitors’ product”.

“This arrangement reinforced the applicant’s position as a wholesaler within the territory of Botswana and its existence relied solely on the turnover of Venter products.”

Abnett said the agreement stipulated that to enable the distributor to maintain adequate sales coverage, the appointment of agents or sub-distributors was desirable.

“The ability to appoint sub-distributors and agents proves (Supa Bike) will act as head office for the territory in order to carry out all administration, importation and logistical activities to the brand in the territory and its penetration into the market, as does any head office,” Abnett said.

These clauses, he said, proved beyond any reasonable doubt that there existed a tacit term to the agreement that gave Supa Bike exclusivity in Botswana.

He asked the court to award Supa Bike damages of R6.1m for loss of business which was a direct result of Venter’s breach of contract.

However, Venter Manufacturing MD Detlef Hamann said the company maintained Supa Bike had not established facts that were grounds for a lawsuit.

In his answering affidavit Hamann said Venter denied it had any intention to, or that it did, enter into an exclusive distributorship agreement with Supa Bike.

“Where exclusivity is afforded to a distributor, a letter to this effect forms part of the dealer agreement as an addendum thereto,” he said.

In the UK, for example, the dealer for Venter trailers was appointed as the official and only authorised agent/dealer for the vehicles for the entire geographic area known as UK, Hamann said.

“There is no term (tacit or otherwise) in the agreement restricting (Venter Manufacturing) from entering into further dealer agreements with other parties within the same territory,” he added.

Hamann asked that Supa Bike’s application be dismissed with costs, including the costs of the hearing in December.

The matter is set to be heard next month.