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[2015] ZAGPJHC 320
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G4s Cash Solutions SA (Pty) Limited v Zandspruit CAsh and Carry (Pty) Limited and Another (A5039/2014) [2015] ZAGPJHC 320 (28 May 2015)
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Case
number: A5039/2014
DATE:
28 MAY 2015
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
JUDGMENT
SATCHWELL
J:
INTRODUCTION
1.
This is an appeal, with leave of the Supreme Court of Appeal, against
a judgment of this division to the effect that claims by
respondents
(plaintiffs in the court
a quo
) had not been hit by a time-bar
clause in agreements between the parties and that those claims had
not prescribed.
2.
Plaintiffs
entered into agreements
[1]
for
the “collection, conveyance, storage and delivery of money”
by defendant. On two occasions
[2]
monies were allegedly stolen from plaintiffs by unknown third
parties. Plaintiffs sued defendant in delict.
3.
Plaintiffs claimed that defendant had allowed the thieves/
conspirators access to the transit security guard roster, personnel
uniforms, official identification cards, collections boxes, transit
vehicles or failed to implement procedures whereby such could
not be
accessed and had failed to advise plaintiffs that such
uniforms/cards/vehicles had been stolen and had failed to advise
of
previous theftuous schemes. Plaintiffs claimed that defendant “owed
a duty of care” to the plaintiffs and that failure
by defendant
to disclose its relevant conduct to plaintiffs and the actions of
defendant’s employees in confirming the identity
of the thieves
as employees was wrongful and such conduct constituted “reckless,
alternatively gross negligent conduct”.
Accordingly, plaintiffs
claimed delictual damages in the amounts stolen from them.
4.
Defendant
raised a special plea of prescription relying upon sub clause 9.9 of
the agreements between it and plaintiffs which provided
that
defendant should not be liable in respect of
“any
claim”
[my
emphasis] unless written notice of the claim had been given within
three months and summons had been issued and served within
twelve
months from the date of the event giving rise to the claim”. It
is common cause that the summons were not issued and
served within
the twelve month period.
[3]
Accordingly, defendant raised the Special Plea that “both
plaintiffs’ claims against the defendant have become
prescribed”.
5.
In replication to that Special Plea, plaintiffs pleaded that such
time bar as was contained in clause 9.9 offended against the
Regulations of the Code of Conduct for Security Service Providers
promulgated in terms of the Private Security Industry Regulation
Act
56 of 2001 (‘the Code’).
SPECIAL
PLEA AND SEPARATION OF ISSUES
6.
In the court
a quo
, the learned presiding judge granted a
separation of issues. His judgment specifically states “the
defendant’s special
plea be separated from the other issues.
The trial accordingly proceeded on the determination of the
defendant’s special
plea only”. No evidence was led. The
court heard oral argument in support of the averments contained in
the pleadings.
7.
In both the heads of argument prepared for this appeal and at the
appeal hearing itself, defendant’s counsel addressed
the court
on issues over and above the wording of the agreement itself
including the law pertaining to co-existence of delictual
liability
with contractual arrangements and on the law pertaining to extension
of liability for pure economic loss.
8.
I have been concerned that these were not the issues which the court
a quo
or this appeal court were asked to decide. I also note
that the court
a quo
was not confronted with an exception to
pleadings and accordingly this appeal court does not have to decide
whether the plaintiff
alleged sufficient facts to constitute a cause
of action for damages in delict or whether or not a delictual claim
for pure economic
loss was competent in the circumstances of this
case.
9.
The prescription point had been pleaded that “in terms of
clause 9.9…. Defendant shall not be liable in respect
of
any
claim
[my emphasis] instituted unless written notice……”
and the Special Plea concluded that both claims “had
prescribed”.
10.
The essence of the Special Plea is apparent. The core issue for
decision is that of prescription. The Special Plea requires
this
appeal court to consider whether or not delictual claims (whether for
pure economic loss or not) are covered by sub-clause
9.9 of the
agreement but only for purposes of determining whether such claims
have prescribed.
11.
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 Aquillian 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.
ONUS
12.
Defendant
has raised a special defence – that of prescription in terms of
the contract. It is trite that defendant bears the
onus of proving
such special plea.
[4]
13.
Plaintiffs raised the prohibition in the Code in both their
particulars of claim and their replications to both special
plea and
plea. Plaintiffs take the view that the onus is on defendant to prove
that sub clause 9.9 applies notwithstanding the
Code whilst defendant
submits that the plaintiffs have failed to rebut the application of
the special plea because they did not
prove the allegations raised in
the replication.
14.
The
Statute and the Code must apply to any contract entered into by a
security service provider.
[5]
Plaintiffs seek to vitiate sub clause 9.9 by reason of the relevant
regulation and must do so in their challenge to the special
plea.
DOES
CLAUSE 9 APPLY ONLY TO CONTRACTUAL CLAIMS OR TO BOTH CONTRACTUAL AND
DELICTUAL CLAIMS ?
The
wording of the Agreement
15.
Clause 9 deals with ‘Liability and Risk’ and has nine
sub-clauses. Defendant takes the view that this clause
covers
both
contractual and delictual claims and therefore limits the time within
which plaintiffs can institute litigation in respect of their
delictual claims while the plaintiffs take the view that this clause
is confined to contractual claims
only
.
16.
Interpretation of the complete clause requires careful
consideration of the language used and therefore that the relevant
portions of the clause are repeated here:
“
9.
Liability and Risk
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….
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...........
9.3
.............
9.4
..........
9.5
Fidelity will in no circumstances be liable for any consequential
loss or damage, however 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 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 in 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,...........
9.8
...............
9.9
The Client shall notify Fidelity immediately of the discovery of a
loss, which notification shall be confirmed in writing within
24
[hours
].
[6]
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.
17.
Defendant submits that two important phrases are repeated in this
clause dealing with liability and risk.
18.
Firstly,
by using the word “any” in the phrases “any loss or
damage” (9.1), “
any
consequential
loss or damage” (9.2), and “
any
consequential loss or damage” (9.5), the clauses means the
widely construed “all”.
[7]
Accordingly, this clause 9 applies to
all
claims
both contractual and delictual. Secondly, the three references to
“
howsoeve
r
arising and for
any
reason whatsoever
suffered” (9.1), “
whatsoever
and howsoever
caused” (9.2), and “
howsoever
arising” (9.5) assert the broad-based origin of such loss which
means both contractual and delictual causes. In short, defendant
contends that the language employed in clause 9 is wide with no
restrictions.
19.
Both
parties have reminded this appeal court of the importance of context
in construing the meaning of any document.
[8]
20.
Plaintiff
has focused its argument on the context of the “
services
”
rendered and to be rendered by the defendant to plaintiffs. These are
defined
[9]
and described as
“collection, conveyance, storage and delivery of money”.
[10]
It is within this context of these identified
‘services’
that clause 9 must be understood. Plaintiff notes that clause 9
commences with “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…..” (9.1), that 9.6
commences
“in
the event of any Services
to be rendered by Fidelity, the Client shall be …..”,
while liability is stated in clause 9.7 to be “Subject
to
paragraph 9 read as a whole” and to only commence when a
defendant employee is acting in the course and scope of employment
“
in
the performance of the Service
”.
In short, plaintiffs maintain that the loss which was suffered and
the claims which result are not (save for the call centre
confirmation) based upon actions or inactions during provision of
“
services
”
as defined and are therefore excluded from any contractual claim.
21.
His Lordship Mr Justice Van Oosten, in the court
a quo
,
reasoned that clause 9 dealt only with liability and claims arising
in relation to the contracted “services”. The
learned
judge found that both the context of the agreement and clause 9 as a
whole dealt with ‘services’ to be rendered.
22.
The
use of the word ‘any’ is of wide import and may indeed
cover “all” claims.
[11]
In
S
v Wood
1976
(1) SA 703
(A)
,
the court referred to the meaning given to ‘any’ in the
Oxford English Dictionary as “the indeterminate
derivative
of one” and “whichever, of whatever kind, of
whatever quantity”. The court found that “any”
“means a quantity or number however large or however small and
is a word of very wide import” and “and
prima
facie
the
use of it excludes limitation”
(Clarke-Jervoise
v Scutt
(1920)
1 Ch 382
at 388)."
23.
However,
the word “any” has always been acknowledged to be subject
to restriction by subject matter or context. As was
stated by the
learned chief justice in
S
v Hugo supra
“‘any’ may be restricted by the subject-matter or
context”. In
Hayne
& Co v Kaffrarian Steam Mill Co Ltd
1914 AD 363
, the court also allowed that the word ‘any’
could be “restricted by the context” and, in that case,
the
judgment of his lordship Innes JA carefully analysed the wording
and import of the entire brokers note within which the word appeared
and accepted the “plain and ordinary meaning of the language”.
In
Arprint
Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd
[12]
,
the court questioned whether or not the word “any” had
been restricted either by subject matter or context in a particular
sentence and found in the negative because “no subject-matter
had been indicated which qualified or limited the wide generality
of
the word under consideration”. In short, the use of the words
“any claim” does not necessarily mean that sub-clause
9.9
applies to all claims – both contractual and delictual. It all
depends on context.
24.
Defendant has argued that sub-clause 9.9 cannot be looked at in the
context of sub-clause 9.1 alone and that other sub-clauses
such as
9.2 are of assistance as well. Defendant also notes that the only
sub-clause which is made subject to the provisions of
clause 9 “as
a whole” is sub-clause 9.7 which indicates that the other
sub-clauses are not subordinated to the remainder
of clause 9.
25.
How
such qualification is expressed is to be found in the context within
which the phrase “any claim” and the import
of the entire
clause 9.9 is situate. The entire agreement is premised on the
purpose of “Cash Management and Ancillary Services
Agreement”.
[13]
The
purpose is restated in clause 2 under “use of services”
which services are defined and described as aforesaid.
Clause 9 has a
heading announcing that it deals with “liability and risk”
and such must pertain to the agreement between
the parties. Clause 9
commences in 9.1 with a disclaimer of liability for loss or damage
suffered “pursuant to or during
the provision of services”
unless certain conditions are met. The remainder of clause 9
continues to enumerate the basis
upon which there is or is not
liability – all of which circumstances are predicated upon the
rendering of the ‘services’.
26.
To ignore the paramountcy of purpose and import of this context of
the ‘services’ to be provided could allow
for sub-clause
9.9 to cover delictual claims including those involving motor vehicle
accidents or employee disputes which no reading
of clause 9 suggests
should be covered or subject to the particular time-bar set out in
sub-clause 9.9 of the agreement.
27.
Defendant’s liability for loss is excluded in sub-clause
9.1 provided that certain jurisdictional facts
are proven.
Such exclusion occurs when loss is suffered
pursuant to the
“provision of services”
unless there are act(s) of gross negligence or theft,
perpetrated by defendant
employees acting within the course and scope
of their employment and such loss must occur whilst the money is in
the custody
of aforesaid defendant employees.
Accordingly, liability can only be found within the arena
of the “provision
of services” and a certain
set of jurisdictional facts.
28.
The apparently unqualified generality of causation found in the
phrases “howsoever arising” in sub-clauses
9.1,9.2, 9.5
all have their own restrictions – in 9.1 the ‘services’,
in 9.2 that which has been said elsewhere
in the agreement which is
one for the provision of services, in 9.5 a particular kind of
loss - consequential loss.
29.
Defendant
has further argued that it was always open to plaintiffs to implement
the provisions of clause 15 of the agreement and
arrange for
insurance to cover delictual claims. I fail to comprehend how this
assists defendant’s argument. Whether or not
plaintiffs took
out insurance does not answer the question whether or not a delictual
claim is possible. Certainly, the recent
judgment of the
Constitutional Court in
Loureiro&
others v Imvula Quality Protection (Pty) Ltd
[14]
did not require Mrs Loureiro to have taken out insurance against her
delictual claims and (55 and 56) and granted her claim.
30.
I am in respectful agreement with the finding of the learned judge in
the court
a quo
on this point that clause 9.9 does not apply
to delictual claims. Accordingly, plaintiffs’ claims in delict
are not hit by
the provisions of sub-clause 9.9 and have not
prescribed. The Special Plea must fail.
Contractual
Privity
31.
Of
course contracts regulate many aspects of the contracting parties’
relationship including their respective liabilities
towards each
other (See
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
[15]
)
and it is trite that contracting parties are capable of regulating
their exposure to loss in the very contract which brought about
their
relationship (
AB
Ventures v Siemens
2011 (4) SA 614
(SCA)).
32.
Defendant argues that these two contracting parties have so regulated
their relationship and that a court should be hesitant
to intervene
therein by permitting delictual liability and claims where such are
not regulated in this contract itself.
33.
Firstly,
a court should be “loath” to eliminate those provisions
which the parties considered necessary or desirable
for their own
protection.
[16]
This principle
does not apply to the facts in the present case. I do not understand
which provisions in the already extant contract
are to be so
eliminated and none have been pointed out.
34.
Secondly
the law of delict should not be allowed to introduce an unwarranted
liability into a contractually arranged and bounded
relationship.
[17]
I do not know the basis upon which delictual liability could be
called ‘unwarranted’ merely because the parties had
failed to exclude or restrict delictual liability. ‘Unwarranted’
means “lacking justification or authorization”.
[18]
This can hardly be an automatic description of delictual liability
where our courts have acknowledged and sometimes permitted such
liability where the parties’ relationship is regulated by
contract.
[19]
35.
Third,
the court should be hesitant to intrude into the contractual
relationship
[20]
or to subvert
the provisions which the contracting parties considered necessary
[21]
or to entrap an unwary party.
[22]
This would be done where a court superimposes delictual liability by
“scrubbing out”
[23]
or removing those very contractual limits which the parties have
themselves chosen to curtail liability in their relationship.
In the
present case defendant has not adverted to any subversion or
entrapment or reduction or redaction of any contractual terms
or
boundaries. The court has not been asked by plaintiff to undo or
reword the contract in any way.
36.
Fourth,
it is argued that plaintiffs’ formulation of these claims in
delict have had the inevitable consequence that the provisions
of the
agreements which the parties had agreed would govern the relationship
between them has been deliberately circumvented. Specific
reference
has been made to the time bar (in 9.9), the obligation to individuals
(in 5.3) and either parties’ election to
procure insurance (in
15) as instances of what has been circumvented. Circumvention would
require that there is some obstacle which
has been avoided or
evaded.
[24]
No such obstacle
has been identified in the agreements. I have already found that the
provisions of clause 9 are to be read in
the context of the
contractual provisions for rendering of defined “services”.
Those provisions do not apply to delictual
liability. Sub-clause 5.3
requires plaintiffs to verify the identity of a defendant employee
before handing over money –
that is an issue for decision by a
trial court seized with determining the merits of the case.
Plaintiffs could have taken out
insurance – we do not know if
they did or not – but it plays no part in our decision and, in
any event, clause 15 only
requires defendant to assist plaintiffs in
obtaining insurance against losses incurred “during the
performance of the Services
in terms hereof”. The time –bar
in sub-clause 9.9 applies to contractual claims arising out of the
services rendered
or to be rendered by defendant.
37.
The
question then remaining is whether or not the courts are precluded
from permitting delictual issues to be raised where there
is a
lacuna
in the contract because the parties themselves omitted or elected not
to insert the appropriate contractual stipulations.
[25]
The answer to that question must be in the negative. There are a
number of authorities which accept and permit that delictual
liability may exist and be pursued notwithstanding that this does not
emerge from and is not regulated by the contract itself.
[26]
38.
If defendant had hoped or wished that any time-bar set out in the
agreement with plaintiffs should apply to all
or any claims in
delict, then it should have said so. It was open to the
defendant to draft its standard contract including
reference to
claims which do not arise out of ‘services’ rendered but
which also arise from delict.
Delictual
claim for pure economic loss as between contracting parties
39.
As to whether or not the plaintiffs have pleaded the facts required
for pure economic loss or have authority of law on
their side are not
issues raised in the Special Plea and are beyond the purview of
either the hearing in the court
a quo
or this appeal.
40.
The court
a quo
and this appeal court decide only the
prescription point as raised in the Special Plea. A trial court may
need to go further and
have regard to the pleadings, issues of
wrongfulness, policy considerations, extension or otherwise of
delictual claims for pure
economic loss, what alternative remedies
were or were not available to plaintiffs to protect against risk. But
those are issues
for decision of a trial court and not this appeal
court.
41.
The application of the relevant principles and policies to
the facts will be for the trial court not this
appeal court which is
seized only with the issue of prescription to a delictual
claim.
APPLICATION
OF THE SECURITY SERVICE PROVIDERS CODE OF CONDUCT
42.
Plaintiffs pleaded (both in their particulars of claim, replication
to the special plea and in the replication to the
plea) that
regulation 9(3)(d)(i) of the Code of Conduct for Security Service
Providers (the Code) was imported into the parties’
agreement
as an implied term and accordingly the Code precludes a contractual
provision such as sub-clause 9.9 from agreements
entered into by
security service providers and accordingly clause 9.9 is therefore
invalid. Defendant pleaded a denial.
43.
The
relevant regulation in the Code may be summarized as providing that a
security service provider may not conclude a contract
containing any
term which ‘limits the legal liability’ of the security
service provider.
[27]
44.
The
first issue is whether or not this could be an implied term.
Defendant submitted in heads of argument that this term could never
have been implied since it is in conflict with the agreement and
therefore the Code cannot be imported into the agreement. I do
not
understand plaintiffs to suggest that the parties personally
introduced the ‘implied’ term but that the Code applies
to all agreements involving security service providers. The
replication contends that this term “is a statutory duty to
which the defendant as a security service provider has to abide and
adhere…”.
[28]
I
agree therewith. The relevant agreement proclaims on its first page
that the defendant is “registered as a security service
provider by the Private Security Industry Regulatory Authority”.
I am in agreement with the learned judge in the court
a
quo
that the defendant operates within the framework of the security
industry and is thereby bound by the provisions of the Code of
Conduct. The Code is paramount. A security service provider cannot
opt out of the applicability of or adherence to the Code.
45.
Secondly, the parties contend for different meanings to the wording
of the time limit in sub clause 9.9 and the prohibition
in regulation
9(3)(d)(i). Plaintiffs squarely state that sub clause 9.9 seeks to
“limit the legal liability” of defendant
in contravention
of the Code. Defendant argues that there is no tension between sub
clause 9.9 and the Code. The Code purports
to deal with conduct which
may form the subject matter of contracts and in respect of which
liability may not be limited whereas
sub clause 9.9 does not deal
with conduct but stipulates the period within which notification of a
claim is given and legal proceedings
instituted.
46.
In conducting this enquiry, the court is testing the provisions and
import of sub clause 9.9 of the agreement against
regulation
9(d)(3)(i) of the Code and not (as in
Barkhuizen
supra) the
provisions and import of a time –bar clause in an insurance
contract against the provisions of section 54 of the
Constitution.
47.
Sub-clause 9.9 of the agreement between the parties, does
indeed deal with time periods during which legal proceedings
may be
instituted. It lays down the time during which a court may be
approached. Failing compliance with such agreed time periods,
a party
is precluded from seeking assistance from the courts. It is
pre-eminently a ‘time-limit’ or ‘time-bar’
as
envisaged in
Barkhuizen supra
in that it bars a contracting
party from “seeking judicial redress” if they attempt to
do so after the agreed time
period.
48.
Code regulation 9(3)(d)(i) prohibits provisions in a contract which
“excludes” or “limits” the
legal liability of
a security service provider.
49.
The distinction between “legal liability” and “judicial
redress” was carefully maintained by Ngcobo
J (as he then was)
in
Barkhuizen supra
. The court pointed out (at para 45) that
such a time-bar clause
“
does
not seek to deny applicant the right to seek judicial redress; it
simply requires him to seek redress within the period it
prescribes,
failing which the respondent is released from liability”.
50.
“Judicial
redress” means no more than the use of a remedy or seeking
assistance through the courts
[29]
whereas the exclusion or limitation of “liability” is to
reduce or deny the responsibility or answerability for
action/inactions
and resulting consequences.
[30]
51.
Accordingly, Code regulation 9(3)(d)(i) prohibits a registered
security service provider from contracting to limit its
responsibility or answerability for that which is done or not
done in its name. In other words, the Code precludes the exclusion
of
responsibility for certain conduct. However, a time-bar clause (as
contained in sub-clause 9.9) does not remove or negate accountability
in law for an act or omission but it does prescribe the period within
which judicial redress may be sought.
52.
It would be strange indeed if the Code attempted to restrict anything
other than accountability in an agreement. The Code
can hardly
prohibit a security service provider from including a reference to
the Prescription Act in an agreement which records
that the statute
is applicable. The Code can only prohibit a security service provider
from attempting to avoid responsibility
for its conduct. It
always remains up to the courts to decide whether or not the
security service provider is actually
responsible in law ie has
“legal liability”.
53.
I therefore cannot agree with plaintiffs that
Barkhuizen supra
is authority for the proposition that a time limitation clause limits
legal liability. I am therefore in respectful disagreement
with the
finding of his lordship in the court
a quo
. However, my view
in this regard makes no difference to the result of the appeal
because the plaintiffs’ claims have already
been found not to
have prescribed, the Special Plea has not been upheld and the appeal
on that point has not been successful.
CONCLUSION
54.
In the result I am of the view that sub-clause 9.9 does not apply to
delictual claims brought by plaintiffs against defendant,
that the
claims of plaintiffs against defendant have not prescribed and that
the Special Plea must therefore fail.
55.
Although it does not affect the result, I am of the view that
regulation 9(3)(d)(i) does not prohibit a sub-clause such
as 9.9 of
the agreements because such time-bar requires plaintiff to
seek judicial redress within a period of
time and does
not limit liability for conduct of defendant or employees.
56.
Accordingly, the appeal against the order of his lordship Mr Justice
Van Oosten is dismissed with costs, such costs to
include those
occasioned by the employment of both Mr Van Nieuwenhuizen and Mr
Patel.
DATED
AT JOHANNESBURG 28
th
MAY 2015
SATCHWELL
J
I
agree.
A.M.
L. PHATUDI J
I
agree.
MATOJANE
J
Counsel
for Appellant: Adv M A Chohan SC with him G-M Goedhart
Attorneys
for Appellant: Norton Rose Fulbright South Africa Inc.
Counsel
for Respondents: Adv H P Van Nieuwenhuizen and Mr Z Patel
Attorneys
for Respondents: Ziyaad E Patel Attorneys
Dates
of hearing: 13
th
May 2015.
Date
of judgment: 28
th
May 2015
[1]
Dated 6
th
April 2005 (POC1) and 6
th
December 2006 (POC2).
[2]
On 3
rd
April 2010 and on 12
th
March 2011.
[3]
Summons issued on 25 June 2012.
[4]
See
Pillay
v Krishna
1946 AD 946
and
Masuku
v Mdlalose
1998(1) SA 1 SCA.
[5]
The wording of the Code makes this very clear indeed.
[6]
Word is missing in the agreement.
[7]
See
R
v Hugo
1926 AD 268
where the word “any” was described as
“on the face of it, a word of wide and unqualified
generality……..prima
facie it is unlimited” (at
271)
[8]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA);
Dexgroup
(Pty) Limited v Trustco Group International (Pty) Limited
2013 (6) SA 520
(SCA); and
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014(2) SA 494 (SCA).
[9]
Clause 1.3.10 of agreement.
[10]
Clauses 5 and 6 of agreement.
[11]
S
v Hugo
supra;
Stuttafords….
Hayne
&
Co v Kaffrarian Steam Mill Co Ltd
1914AD 363;
Arprint
Ltd v Gerber Goldschmidt Group South Africa (Pty) Ltd
1983
(1) 245 (AD).
[12]
1983
(1) 245 (AD).
[13]
First page of agreement.
[14]
2014
(3) SA 394 (CC)
[15]
1985
(1) SA 475 (A).
[16]
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA)(Pty) Ltd
1985 (1) SA 475 (A).
[17]
Lillicrap
supra
and
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2015(1) SA 1 (CC).
[18]
Collins English Dictionary – Complete and Unabridged, Harper
Collins Publishers 2003.
[19]
Lillicrap supra and other authorities cited.
[20]
Barkhuizen
v Napier
2007 (5) SA 323 (CC).
[21]
Country
Cloud supra
.
[22]
Lillicrap
supra and
Country
Cloud supra
.
[23]
Country
Cloud supra
.
[24]
The
Concise Oxford Dictionary 10
th
ed.
[25]
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006(3) SA 138 (SCA) especially at paragraph 138.
[26]
Viv’s
Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Phama
Security
2010 (4) SA 455
(SCA);
Living
Hands (Pty) Ltd and Another v Ditz and Others
2013 (2) 368 (GSJ);
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371
(D);
Cathkin
Park Hotel v JD Makesch Architects
1993 (2) SA 98
(W);
Trustees,
Two Oceans Aquarium Trust supra
.
[27]
Regulation
9(3)(d)(i) reads
:
General obligations towards clients, and issues related thereto: (3)
A security service provider may not –(d)make a contractual
offer to or conclude a contract with a client containing any term,
condition or provision that - (i) excludes, limits or
purports
to exclude or limit the legal liability of the security service
provider towards the client in respect of any malicious,
intentional, fraudulent, reckless or grossly negligent act of the
security service provider, his or her security officers or
other
personnel, or any other person used by the security service provider
or recommended by him or her to the client; or (ii)
places a duty or
purports to place a duty on the client to indemnify or compensate
the security service provider or any other
person in respect of any
act referred to in sub-paragraph (i) by a person for whose conduct
the client is not independently responsible
in law;
[28]
Replication at paragraph 1.1
[29]
See the definition of ‘redress’ in The Oxford English
Dictionary.
[30]
See the definition of ‘liability’ in The Oxford English
Dictionary.