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Bothma en Seun Transport (Edms) Bpk sal die pro rata uitgawe plus 10% bestuursfooi ten opsigte van die bestuur van die stoortenks oorbetaal binne sewe dae na lewering van faktuur van Bothma-Batho Transport (Edms) Bpk welke uitgawes ooreenkomstig die tenkkapasiteit persentasie wat Bothma en Seun Transport (Edms) Bpk se Some aspects of this arrangement are reasonably clear.

Bothma- Batho would incur expenses in the management of the tank farm and those costs would be divided between it and Bothma & Seun in proportion to the tank capacity of the tanks that they and their clients respectively used.

The disputed clause appeared in an agreement under which all claims between the parties were settled.

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.

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It was agreed that Bothma-Batho would not invoice FFS Refiners for these expenses for that month.

It was also agreed that apart from this payment and the amounts payable under the disputed clause Bothma & Seun would not be responsible for any additional expenses in relation to the operation of the tank farm. Die partye kom ooreen dat vir sodanige tydperk as wat die Respondente die reg het op die gebruik van (3) drie tenks in terme van die ooreenkoms met Omnia dan in daardie geval sal die respondente hulle teenoor die Respondent nie meer sal wees as die bedrag van R190 000 (BTW uitgesluit) nie, met dien verstande dat indien die fakture gelewer vir die verhuring van die tenkkapasiteit sou verhoog of verlaag die fakturering ten opsigte van die uitgawes met sodanige fluktuasie aangepas sal word.’Bothma-Batho contended that on its proper interpretation this clause entitled it to render an invoice to FFS for R190 000 each month and that Bothma & Seun would be guaranteed an amount of R55 000 per month.

A problem arose in the implementation of clause 7 of the first settlement agreement because Bothma-Batho, instead of furnishing an invoice to Bothma & Seun for the expenses and administration fee, rendered an account directly to FFS Refiners, who paid these accounts and deducted the amount of such payments from the rental that they paid to Bothma & Seun.

It was concluded on 14 February 2007 as part of an overall settlement of issues that were at the time being debated in an arbitration.

The clause dealing with these issues was clause 7, which reads as follows: van tyd tot tyd gebruik.

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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