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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.
The present dispute arose from the separate agreements concluded between Bothma & Seun and Bothma-Batho in relation to the allocation and recovery of expenses incurred in the operation of the Standerton tank farm.
Two such agreements were concluded, the first in settlement of an arbitration between the parties and the second in settlement of subsequent litigation between them.
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.
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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.
It was agreed that Bothma-Batho would not invoice FFS Refiners for these expenses for that month.