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Bothma Batho Transport v S Bothma & Seun Transport (802/2012) [2013] ZASCA 176 (28 November 2013) Coram: MTHIYANE AP, LEWIS, SHONGWE, WALLIS and PILLAY JJA Heard: 21 November 2013 Delivered: 28 November 2013 Summary: Contract - interpretation a unitary process commencing with the words and construing them in the light of all relevant circumstances - no distinction to be drawn between background and surrounding circumstances.ORDER On appeal from: Free State High Court (Hancke AJP sitting as court of first instance): The appeal is dismissed with costs. concurring) The respondent, S Bothma & Seun Transport (Edms) Bpk (Bothma & Seun), was originally a family company established by a father and handed on to his sons, Louis, Pelham and Tertius.It provided for Bothma & Seun to have the use of three tanks, numbers 1, 2 and 3, with a total capacity of some 15 000 cubic metres and for Bothma-Batho to have the use of six tanks, numbers 4 to 9, having a total capacity of some 11 800 cubic metres.In return they became obliged to pay rental to Omnia on a monthly basis.

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This involved a payment to Bothma-Batho by Bothma & Seun that included an amount of R190 000 plus VAT in respect of expenses for the storage tanks for October 2007.

According to the latter this meant that they had no predictable income and no control over or means of monitoring the expenses raised by Bothma-Batho.

They claimed that money due to them from the rental of their tanks had been withheld.

Although both Bothma & Seuns and Bothma-Batho were parties to the lease, Omnia only wished to deal with one of them.

Accordingly the lease provided that Omnia would invoice Bothma-Batho for the entire rental due under the lease in respect of all nine tanks, and that Bothma- Batho would have the exclusive management and control over the tank farm.

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