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[2016] ZASCA 113
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G4s Cash Solutions v Zandspruit Cash And Carry (Pty) Ltd and Another (852/2015) [2016] ZASCA 113; 2017 (2) SA 24 (SCA) (12 September 2016)
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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Case
No:
852/2015
DATE:
12 SEPTEMBER 2016
Reportable
In
the matter between:
G4S
CASH SOLUTIONS (SA) (PTY)
LIMITED
..........................................................
APPELLANT
And
ZANDSPRUIT
CASH & CARRY (PTY)
LIMITED
............................................................................................................
FIRST
RESPONDENT
DEVLAND
CASH & CARRY (PTY)
LIMITED
.......................................................................................................
SECOND
RESPONDENT
Neutral
citation:
G4S Cash Solutions v
Zandspruit Cash & Carry (Pty) Ltd
[2016]
ZASCA 113
(12 September 2016)
Coram:
Lewis and Mathopo JJA and Schoeman, Fourie
and Potterill AJJA
Heard:
25 August 2016
Delivered:
12 September 2016
Summary:
Interpretation of time-limitation
clause in written services agreements: whether or not delictual
claims are subject to the time-limitation
clause: nature of
interpretative process considered: delictual claims held not to be
subject to the time-limitation clause.
ORDER
On
appeal from:
On appeal from: Gauteng
Local Division of the High Court, Johannesburg (Satchwell J, Phatudi
and Matojane JJ concurring, sitting
as full court of appeal):
The
appeal is dismissed with costs, including the costs of two counsel,
where so employed.
JUDGMENT
Fourie
AJA (Lewis and Mathopo JJA and Schoeman and Potterill AJJA
concurring)
[1]
The issue in this appeal is whether a time-limitation clause in
written agreements concluded by the parties precluded the respondents
from instituting delictual claims for damages against the appellant.
The Gauteng Local Division of the High Court, Johannesburg
(Van
Oosten J), dismissed the appellant’s special plea based on the
time-limitation clause, which decision was confirmed
on appeal to the
full court of that division. The present appeal against the judgment
of the full court is with the special leave
of this court.
[2]
The appellant is G4S Cash Solutions (SA) (Pty) Limited (formerly
known as Fidelity Cash Management Services (Pty) Ltd), a company
conducting the business of collecting, conveying, storing and
delivering money on behalf of clients requiring such services. The
respondents are retailers who concluded ‘cash management and
ancillary services agreements’ with the appellant on 6
April
2005 and 6 December 2006, respectively. The agreements are similarly
worded, save for the personal details of the respective
respondents.
It is pertinent, by way of background, to refer to the material terms
of the agreements in some detail.
[3]
The services to be provided by the appellant to the respondents are
defined as, inter alia, the ‘collection, conveyance,
storage or
delivery of money’. Clause 5.1 of the agreements provides that
the appellant shall ‘collect, convey, store
and deliver money
in accordance with its operating methods as amended from time to
time’. Clause 5.3 deals with the handing
over of money by the
respondents to the appellant and reads as follows:
‘
Before
handing over Money to an employee of Fidelity, the Client shall
verify the identity of such Fidelity employee by reference
to the
employee’s personal official Fidelity identity card. If the
Client fails to do so, Fidelity shall not be liable for
any Money
lost or stolen. Fidelity shall provide the Client with details of the
nature and style of official Fidelity identity
cards in use, and
Fidelity shall provide an official Fidelity receipt for each
Container received by it.’
[4]
Clause 9 is headed ‘Liability and Risk’. The relevant
sub-clauses are the following:
‘
9.1
Fidelity shall not be liable for any loss or damage howsoever arising
or for any reason whatsoever suffered by the client pursuant
to or
during the provision of Services by Fidelity unless such loss or
damage is the direct result of the gross negligence of or
theft by
Fidelity employees, acting within the course and scope of their
employment, and occurs while the money is in the custody
of Fidelity.
In these circumstances, Fidelity’s liability shall be limited
to a maximum sum of R20 000.00 per event
in respect of drop cash
services and in respect of all other services shall be limited to a
maximum of R100 000.00 per event.
Subject to what is stated
above, Fidelity shall not be liable for any loss or damage suffered
by the client as a result of the
acts or omissions of its employees
caused by threats of physical or other harm to such employees or
their families.
9.2
Save for where it is expressly provided for in terms of this
Agreement, Fidelity has no other liability to the Client for any
loss
or damage whatsoever and howsoever caused at all. It is also agreed
that, notwithstanding any other clause in this Agreement,
should the
Client be in breach of the Agreement in any way whatsoever, Fidelity
shall be relieved of its obligations and duties
in respect of the
Agreement until such time that the Client subsequently rectifies the
breach if such breach is capable of rectification.
9.3
Should any loss or damage to the Client arise as a result, directly
or indirectly, of or during a breach by the Client or its
employee(s), or by anyone acting on the Client’s behalf or in
furtherance of the Client’s interests, of any clause
of the
Agreement or any measures specified by Fidelity from time to time, or
the involvement in any way of the Client’s employee(s)
in the
event giving rise to the loss or damage, Fidelity shall be relieved
of its obligations and duties, and shall have no liability
to the
Client for such loss or damage whatsoever.
9.4
. . . .
9.5
Fidelity will in no circumstances be liable for any consequential
loss or damage, howsoever arising.
9.6
In the event of any Services to be rendered by Fidelity, the Client
shall be solely responsible for the security of its Premises
and in
the event of a loss occurring on such Premises as a result of
criminal conduct not attributable to the gross negligence
or theft by
Fidelity or its employees acting within the course and scope of their
employment, Fidelity shall not carry the risk
of loss for Money lost
or stolen as a result thereof, despite such money being in the
custody of Fidelity. In that event the risk
of such loss shall be
carried by the Client.
9.7
Subject to paragraph 9 read as a whole, Fidelity’s liability in
respect of any loss will commence from when the Money
is in the
Custody of Fidelity, which Custody the parties agree, commences upon
the physical collection of the Money, against an
official Fidelity
receipt, by Fidelity employees acting in the course and scope of
their employment in the performance of the Service,
and shall cease
upon the physical delivery of the Money, against an official Fidelity
receipt. The continuing presence of any Fidelity
employee after the
physical delivery of the Money shall not be deemed to be a
continuation or recommencement of Fidelity’s
liability.
9.8
Fidelity shall be relieved of all liability for any shortages within
a Container where such Container has been delivered and
there is no
evidence that the seal or Container has been tampered with.
9.9
The Client shall notify Fidelity immediately of the discovery of a
loss, which notification shall be confirmed in writing within
24
hours. Fidelity shall not be liable in respect of any claim unless
written notice of the claim has been given within three (3)
months
and summons has been issued and served within 12 months from the date
of the event giving rise to the claim.’
Sub-clause
9.9 is the time-limitation clause alluded to above.
[5]
Clause 15 deals with insurance and records the appellant’s
undertaking to assist the respondents in effecting insurance
cover
against the loss of money caused by an armed robbery or by the
negligence or dishonesty of employees or agents of the appellant
during the performance of the services to be undertaken by the
appellant.
[6]
The events giving rise to the respondents’ claims against the
appellant are set out in their particulars of claim and
may be
summarised as follows:
(a)
On 3 April 2010 and 12 March 2011, respectively, the respondents fell
victim to thefts perpetrated by unknown third parties.
The
perpetrators imitated the procedure of the appellant, utilising
vehicles, personnel uniforms, collection boxes and identification
cards identical to that used by the appellant, thereby deceiving the
respondents into believing that they were dealing with employees
of
the appellant.
(b)
During the course of the theft of 12 March 2011, an employee of the
second respondent sought to verify the identity of the third
party
perpetrator as being an employee of the appellant, by telephoning the
appellant’s call centre. The call centre operator
confirmed
that the perpetrator was an employee of the appellant.
(c)
Thus, utilising the exact procedure employed by the appellant in
conducting collections of cash for purposes of cash in transit
collections and deposits from the respondents’ premises, the
perpetrators collected amounts of R265 465,25 and R641 744
from the respondents respectively and appropriated same.
[7]
The respondents further alleged that:
(a)
The appellant had failed to put in place the necessary procedures in
order to ensure that its cash security uniforms, identification
cards, collection boxes and transit vehicles could not be copied or
duplicated and used by third parties.
(b)
The appellant had failed to advise the respondents that its uniforms
and identification cards were lost or stolen; that cash
in transit
vehicles were being utilised by unauthorised third parties and that
previous similar incidents had occurred within the
industry.
(c)
The appellant accordingly owed the respondents a legal duty
(described as ‘a duty of care’), to disclose its relevant
conduct, and the failure to disclose same, constituted wrongful
conduct.
(d)
The appellant’s wrongful conduct constituted reckless,
alternatively grossly negligent conduct, as a consequence of which
the respondents suffered damages in the amounts so misappropriated.
[8]
The respondents’ summons was served on the appellant on 28 June
2012, more than 12 months after the alleged events giving
rise to the
claims. In addition to a plea to the merits, the appellant raised a
special plea alleging that the respondents’
claims were
time-barred by virtue of the provisions of clause 9.9 of the
agreements.
[9]
The respondents replicated to the special plea, alleging, inter alia,
that their claims did not arise from the agreements, but
by virtue of
delict, and therefore did not fall within the ambit of the
time-limitation clause. In the event, the matter proceeded
to trial
and by agreement between the parties it was ordered in terms of
Uniform rule 33(4) that the special plea be heard first,
with the
remaining issues to stand over for later determination, if necessary.
[10]
No evidence was led at the trial and, after argument, Van Oosten J
held that the time-limitation in clause 9.9 of the agreements
did not
apply to the respondents’ delictual claims. The trial court
accordingly dismissed the special plea. As recorded above,
the
appellant’s subsequent appeal was dismissed by the full court
which agreed with Van Oosten J that clause 9.9 of the agreements
did
not apply to delictual claims and that the respondents’ claims
were accordingly not time-barred.
[11]
It is common cause that the respondents’ claims are in delict
for the loss suffered as a consequence of the theft of
their money,
caused by the alleged wrongful and reckless or negligent conduct of
the appellant. The appellant raised the special
defence that the
claims were time-barred by virtue of clause 9.9 of the agreements and
accordingly bore the onus of proving this
defence. See
Gericke
v Sack
1978 (1) SA 821
(A) at 827H and
Masuku & another v Mdlalose
1998 (1) SA 1
(SCA) at 11B-C.
[12]
To determine whether or not the respondents’ delictual claims
are time-barred, it is necessary to interpret the agreements
and in
particular clause 9.9 thereof. Whilst the starting point is the words
of the agreements, it has to be borne in mind, as
emphasised by Lewis
JA in
Novartis SA (Pty) Ltd v Maphil
Trading (Pty) Ltd
[2015] ZASCA 111
;
2016 (1) SA 518
(SCA) para 27, that this court has consistently held
that the interpretative process is one of ascertaining the intention
of the
parties ─ in this case, what they meant to achieve by
incorporating clause 9.9 in the agreements. To this end the court has
to examine all the circumstances surrounding the conclusion of the
agreements, ie the factual matrix or context, including any
relevant
subsequent conduct of the parties.
[13]
As recorded above, the special plea was determined separately and at
the hearing neither party presented any evidence. In the
result no
facts were available to the court in the interpretative process
regarding the circumstances surrounding the conclusion
of the
agreements or of any relevant subsequent conduct of the parties. The
only available evidence upon which the court had to
determine what
the parties meant to achieve by incorporating clause 9.9 in the
agreements, and in particular whether or not they
intended including
delictual claims within the ambit of clause 9.9, was the agreements
themselves. Whilst it is not for the court
to prescribe to litigants
whether or not, or to what extent, they should present evidence, it
seems to me that a party bearing
the onus in a dispute regarding the
proper interpretation of a contract, should bear in mind that to
simply rely on a linguistic
interpretation alone may not suffice to
discharge the onus. Therefore, if available, relevant evidence
regarding the factual matrix
in which the contract was concluded and
the subsequent conduct of the parties, should be called in aid of the
interpretative process.
[14]
Turning to the wording of the agreements, and in particular clause 9
thereof read within the context of the agreements as a
whole, it has
to be borne in mind that the nature and commercial purpose of the
contractual relationship between the parties is
that of a services
agreement in terms of which the appellant is to perform cash
management services for the respondents, which
would entail the
collection, conveyance, storage or delivery of money by the
appellant. Clause 9 deals with ‘Liability and
Risk’,
providing for exclusions and limitations to the appellant’s
liability for loss or damage suffered by the respondents
‘pursuant
to or during the provision of services’. In particular, clause
9.1 provides that the appellant shall not
be liable for any loss or
damage howsoever arising or for any reason whatsoever suffered by the
respondents ‘pursuant to
or during the provision of services’
by the appellant, unless such loss or damage is the direct result of
the gross negligence
of or theft by the appellant’s employees,
acting within the course and scope of their employment, and which
occurs while
the money is in the custody of the appellant. In my
view, this wording clearly conveys that the loss or damage in respect
of which
the appellant wished to restrict its liability is a loss or
damage suffered by the respondents pursuant to or during the
provision
of services by the appellant to the respondents.
Differently put, it is a loss or damage which has its genesis in the
provision
of services by the appellant to the respondents.
[15]
This construction of clause 9.1 is fortified by clauses 9.6 and 9.7,
as well as other provisions of the agreements, such as
clauses 5.3
and 15.
(a)
Clause 9.6 deals with the respondents’ responsibility for the
security of their premises ‘in the event of any services
to be
rendered by [the appellant]’, and limits the appellant’s
liability for the loss that the respondents may suffer
in the event
of the theft of their money at their premises whilst such money is in
the custody of the appellant’s employees.
(b)
Clause 9.7 makes it clear that the appellant’s liability in
respect of any loss will only commence when the money is in
the
custody of the appellant, ie upon the physical collection of the
money by the appellant’s employees.
(c)
Clause 5.3 records that where the appellant provides services in
terms of the agreements, the respondents shall, before handing
over
money to an employee of the appellant, verify the identity of such
employee by reference to the employee’s personal
official
Fidelity identity card.
(d)
Clause 15 relates to insurance which the respondents may effect with
Fidelity Insurance Limited against the loss of money caused
by an
armed robbery or by the negligence or dishonesty of employees or
agents of the appellant ‘during the performance of
the
services’ in terms of the agreements.
[16]
Turning to clause 9.9, it follows from the above interpretation that
the sub-clause envisages a loss and resultant claim arising
pursuant
to or during the provision of services by the appellant to the
respondents in terms of the agreements. In my view the
clear wording
of the agreements shows that the parties did not contemplate that
clause 9.9 would encompass delictual claims of
the nature averred in
the respondents’ particulars of claim. These delictual claims
did not arise pursuant to or during the
services rendered by the
appellant, nor while the money was in the possession of the
appellant, but in circumstances where the
respondents handed over the
money to unknown third parties. Had the appellant intended the
time-limitation in clause 9.9 to also
apply to delictual claims of
this nature, it could easily have drafted the agreements to include
such claims. Its failure to do
so justifies the inference that the
parties did not intend clause 9.9 to encompass the respondents’
delictual claims.
[17]
Counsel for the appellant valiantly attempted to avoid the
consequences referred to above that flow from the wording of the
agreements. He singled out certain words and phrases in clause 9,
which, he submitted, were indicative of an intention to include
both
contractual and delictual claims under the time-limitation provisions
of clause 9.9. Firstly, he pointed to the use of the
word ‘any’
in the phrases ‘any loss or damage’ (clause 9.1), ‘any
consequential loss or damage’
(clause 9.5) and ‘any
claim’ (clause 9.9), which, in his submission, shows that the
parties intended clause 9 to be
widely construed. He further
submitted that the employment of the phrases ‘howsoever arising
or for any reason whatsoever
suffered’ (clause 9.1),
‘whatsoever and howsoever caused’ (clause 9.2), ‘such
loss or damage whatsoever’
(clause 9.3) and ‘howsoever
arising’ (clause 9.5), supports the broader interpretation that
he contends for. Therefore,
the submission continued, upon a proper
construction of clause 9 the commercially sensible intention was to
exclude liability on
the part of the appellant for all claims related
to the cash management services, save for claims arising from acts of
gross negligence
or theft by the appellant’s employees. In the
result, clause 9.9 must be given a wide and unrestricted meaning,
encompassing
the respondents’ delictual claims.
[18]
The main difficulty that I have with this method of interpretation is
that the words and phrases emphasised by the appellant’s
counsel, are read in isolation and not within the contractual setting
as appears from the agreements as a whole. The well-known
warning
sounded by Rumpff CJ in
Swart en ‘n ander v Cape Fabrix
(Pty) Ltd
1979 (1) SA 195
(A) at 202C, comes to mind:
‘
Wat
natuurlik aanvaar moet word, is dat, wanneer die betekenis van woorde
in ‘n kontrak bepaal moet word, die woorde onmoontlik
uitgeknip
en op ‘n skoon stuk papier geplak kan word en dan beoordeel
moet word om die betekenis daarvan te bepaal. Dit is
vir my
vanselfsprekend dat ‘n mens na die betrokke woorde moet
kyk met inagneming van die aard en opset van die kontrak,
en ook na
die samehang van die woorde in die kontrak as geheel.’
The
context which is ignored is the recurring theme that the loss or
damage envisaged in the agreements, and in particular in clause
9, is
a loss or damage suffered by the respondents pursuant to or during
the provision of services by the appellant. Therefore
the
exclusion of the appellant’s liability is in respect of loss or
damage suffered by the respondents pursuant to or during
the
provision of such services. To single out words and phrases in an
attempt to arrive at a different conclusion simply means
that the
context in which they are used is ignored.
[19]
Insofar as the use of the word ‘any’ is concerned, it has
to be borne in mind that, whilst it is a word of wide
and unqualified
generality and prima facie unlimited, it may be restricted by the
subject matter or the context. See
R v
Hugo
1926 AD 268
at 271 and
Arprint
Limited v Gerber Goldschmidt Group South Africa (Pty) Ltd
1983 (1) SA 254
(A) at 261B-D. The present is a clear case where the
use of the word ‘any’ is restricted by the context as
appears
from the wording of the agreements as a whole, and in
particular clause 9 thereof.
[20]
Counsel for the appellant also had a second string to his bow. He
contended that the respondents’ delictual claims were
in any
event incompetent. Relying on authorities such as
Lillicrap,
Wassenaar and Partners v Pilkington Bros (SA) (Pty) Ltd
[1984] ZASCA 132
;
1985 (1) SA 475
(A) at 501E-G and
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
2015 (1) SA 1
(CC);
[2014] ZACC
28
paras 63 and 65, he submitted that, in view of the existing
contractual relationships between the parties, policy considerations
dictate that delictual liability should not be extended to enable
respondents to bring delictual claims for pure economic loss
against
the appellant.
[21]
The difficulty that I have with this line of attack is that the
competence of the delictual claims was not an issue which Van
Oosten
J had separated out for determination in terms of Uniform rule 33(4).
The special defence that the respondents’ delictual
claims were
time-barred by virtue of the provisions of clause 9.9 of the
agreements, was the sole issue that had to be heard separately.
In
this regard the full court correctly held that:
‘
This
court is not asked to determine whether or not sufficient facts have
been pleaded to found any or this delictual claim or whether
or not a
delictual claim for pure economic loss is appropriate in the
circumstances of this case or whether or not Aquilian liability
should be extended in the light of these particular facts or relevant
policy issues. The only question set out in the special plea
is
whether or not plaintiffs’ claim in delict (good, bad or
indifferent) had prescribed by reason of the provisions of sub-clause
9.9 of the agreement.’
[22]
I have no doubt that had the competence of the delictual claims been
in issue, the parties, or at least the respondents, would
have
presented evidence regarding the question whether a duty to prevent
loss of this nature should be held to exist. This would
have involved
considerations of policy, as well as a careful weighing-up of the
interests of the parties involved, taking into
account the public
interest. See J Neethling, J M Potgieter and P J Visser
Law
of Delict
5 ed (2006) at 268-274.
[23]
I should add that during argument in this court, counsel for the
appellant also relied on clause 9.2 of the agreements for
the
submission that the delictual claims of the respondents were not
competent. As recorded above, clause 9.2 states that, save
where it
is expressly provided for in terms of the agreements, the appellant
has no other liability to the respondents for any
loss or damage
suffered. This clause too should be read in context, ie relating to
loss or damage suffered by the respondents pursuant
to or during the
provision of services by the appellant. However, counsel for the
appellant emphasised the words ‘no other
liability’ and
submitted that they exclude any other claim including a delictual
claim unrelated to a loss or damage suffered
pursuant to or during
the provision of services by the appellant. In my view the context
provided by the agreement as a whole simply
does not allow for this
extraordinarily wide interpretation. One may ask why the respondents
would for no apparent reason agree
to relinquish all other existing
or future rights which they may have, or may acquire, against the
appellant. Absent any evidence
justifying this conclusion, there is
simply no basis on the wording of the agreements alone for this
contention.
[24]
For all the above reasons I conclude that the appellant failed to
discharge the onus of proving its special defence. The appeal
accordingly falls to be dismissed.
[25]
With regard to costs, the respondents as the successful parties are
entitled to their costs. In my view the matter justified
the
employment of two counsel. For the benefit of the Taxing Master I
should record that counsel for the respondents was assisted
in the
appeal by Attorney Z E Patel who, under s 4(2) of the Right of
Appearance in Courts Act 62 of 1995, has the right of appearance
in
the high court.
[26]
In the result the following order is made:
The
appeal is dismissed with costs, including the costs of two counsel,
where so employed.
P
B Fourie
Acting
Judge of Appeal
Appearances:
For
the Appellant: M A Chohan SC (with him G M Goedhart)
Instructed
by: Norton Rose Fulbright South Africa, Sandton Webbers Attorneys,
Bloemfontein
For
the Respondents: H P van Nieuwenhuizen (with him Z E Patel)
Instructed
by: Ziyaad E Patel Attorneys, Melville, Johannesburg
Phatshoane
Henney Attorneys, Bloemfontein