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[2011] ZAGPPHC 4
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Vaz Saraiva Faceira v Kempster Sedgwick (Pty) Limited (38684/2009) [2011] ZAGPPHC 4 (12 January 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 38684/2009
DATE:
12/01/2011
In
the matter between:
ROSALINA
SEFUHEDO VAZ SARAIVA
FACEIRA
..............................................
Plaintiff
and
KEMPSTER
SEDGWICK (PTY)
LIMITED
..............................................................
Defendant
JUDGMENT
Tuchten
J
:
1.
Motor
vehicle hijacking is one of the horrid facts of South African life.
This case arose because a Volvo motor vehicle, bought
new by the
plaintiff from the defendant and brought in for repairs to its air
conditioning unit shortly after the plaintiff had
taken delivery, was
hijacked while been driven by one of the defendant's drivers back to
the defendant's premises in Pretoria after
the air conditioner had
been repaired. As the hijacking itself became common cause during the
trial, I shall describe the vehicle in what follows as "the
hijacked vehicle". Neither party was insured. So the question
is: which of the parties, both of whom are innocent of any wrongdoing
relating to the hijacking, must bear the financial consequences
of
the loss of the hijacked vehicle.
2.
The agreement of sale in relation to the hijacked vehicle was
concluded in April 2009. It was partly written. The written portion
consisted of the defendant's standard offer to purchase and
conditions of sale and was signed by the plaintiff personally. It
contained an express provision that the risk in and to the Volvo was
to pass to the plaintiff upon delivery. The purchase price,
R667
091,99, was paid by the plaintiff in two instalments. She took
delivery of the hijacked vehicle on
1
1
May 2009.
3.
The purchase of the hijacked vehicle was preceded by an event that
took place on 5 March 2009. On that date the plaintiffs daughter,
Miss Kamia Faceira, brought in to the defendant for repairs another
Volvo motor vehicle ("the other Volvo"), owned by
one or
more members of the Faceira family. Miss Faceira, who is married and
has a young child, lives with her parents in Woodhill
Estates,
Pretoria. The Faceira family are Portuguese speakers. The plaintiff
can neither speak nor read English. Miss Faceira acted
as the contact
person between the plaintiff and the defendant and dealt with the
defendant on the plaintiff's behalf. The plaintiff's
personal
participation in the transactions she had with the defendant was
limited to going to the defendant's premises to choose
the hijacked
vehicle.
4.
The defendant has premises on Hans Strydom Drive in Silver Lakes,
Pretoria at which it conducts the dealership from which the
plaintiff
bought the hijacked vehicle. Miss Faceira brought in the other Volvo
for repairs at the same dealership. The dealership
has a new car, a
used car and a service department. On the premises at the time, the
defendant displayed two notices
1
in fairly large bold uppercase print. The notices were identical and
read:
please
note that we are not liable in any way for loss, damage, theft or
hi-jacking of vehicles or contents while vehicles are in
our
possession.
5.
One of these notices was displayed in the service area. The other was
displayed in a customer refreshment area adjoining the
new car
showroom floor.
6.
When Miss Faceira took the other Volvo in for repairs, a job card was
made out in her name. Miss Faceira signed the job card
in the block
provided for this purpose and headed "Owner Authorisation".
Immediately to the left of and slightly below
the owner authorisation
block there appears the following:
I,
the undersigned, acknowledge that I have requested the above work to
be carried out.
I
have
removed all valuables and/or weapons from the vehicle, including
compact discs, and tape cassettes.
I
acknowledge that I have read and understood the terms of the
company's conditions of contract overleaf and agree bound by them
[sic]. We are not liable in any way whatsoever for loss, damage theft
or hijacking of vehicle or contents while vehicle is in our
possession. [Emphasis as in original]
7.
The
conditions overleaf begin with the words:
The
following conditions apply to this dealing
and
all future dealings
with
Kempster Sedgwick (Pty) Ltd.
(I)
All
vehicles
are driven at Licensed Owner's Risk and Kempster Sedgwick (Pty) Ltd.,
is not responsible for any loss or damage, special,
consequential or
otherwise arising from any cause whatsoever in respect of any
customer's vehicle or goods taken in by it for reward
or otherwise,
and whether for storage, service, or repair, or any other purpose,
whether or not such loss or damage occurs while
the vehicle or goods
are in the premises of or under its control at the time of the loss
or damage, or due to tis negligence or
fault whatsoever. [Emphasis
added; punctuation as in original]
8.
On the day the plaintiff was due to take delivery of the hijacked
vehicle pursuant to the agreement of sale, delivery had to
be delayed
a few hours because a pre-delivery check revealed that the air
conditioner was not working properly. The hijacked vehicle
had to be
sent to Jet Radio, the Volvo air conditioner agent, to be regassed.
Although this aspect of the evidence was disputed
by Miss Faceira, I
am satisfied that Hattingh, the defendant's salesman who represented
the defendant in the sale of the hijacked
vehicle, told Miss Faceira
on the day of delivery that it had been taken to jet Radio for
regassing. This information was part
of Hattingh's explanation for
why delivery was delayed.
9.
Theairconditioner in the hijacked vehicle again malfunctioned. On 26
May 2009, by prior telephonic arrangement between Miss Faceira
and
Hattingh, Miss Faceira took the hijacked vehicle in to the dealership
for the air conditioner to be repaired. There is a dispute
between
Hattingh and Miss Faceira as to whether Hattingh told her that the
vehicle had to be taken to Jet Radio for this purpose.
I accept
Hattingh's evidence on this issue as more probable. The defendant did
not do air conditioner repairs at the dealership.
Giving an
explanation for the need to take the vehicle off the defendant's
premises made for good customer relations, which to
Hattingh was
important, and would explain, in advance, any delay in the completion
of the repairs. Little or nothing however turns
on this.
10.
Miss Faceira entered the dealership through its front door and went
to Hattingh's office, where she handed over to Hattingh
the keys to
the hijacked vehicle. Miss Faceira needed a lift home and had to wait
for the defendant's driver, Mr Tjalie, to become
available. At
Hattingh's invitation, she went from his office to the adjacent
refreshment area, which consists of a round table,
three chairs and a
unit along the wall on which was placed beverage machines, mugs and
such like.
11.
There is a dispute as to whether Miss Faceira sat down at the table.
Hattingh says she did for some of the time while she was
waiting and
that she had a conversation there with Mr Breytenbach, a friend of
Hattingh who was sitting at the table waiting for
Hattingh to finish
with Miss Faceira. Hattingh says he can even remember in which chair
Miss Faceira sat. Breytenbach, however,
who was called by the
defendant, said that he sat in the very chair identified by Hattingh,
that he cannot remember whether Miss
Faceira sat down, that no
conversation took place between him and Miss Faceira and that they
merely greeted each other.
12.
Miss Faceira denied that she sat at the table. It was not put to her
that she had a conversation with Breytenbach. She says
that she
wandered around the adjacent new car showroom. Her evidence strikes
me as more probable than that of Hattingh on this
issue. Hattingh
explained that there were really only two things one could do in that
part of the dealership to while away time:
drink a beverage or look
at the new cars. If Miss Faceira had wanted to drink a cup of tea or
coffee, she would probably have sat
down. She probably did not do so
and thus would probably have strolled around the showroom looking at
the new cars. But for reasons
I shall give later, I do not think that
anything turns on this issue either.
1
3.
Some time later, Tjalie became available and took Miss Faceira home.
Hattingh completed and signed a job card in the name of
"New
Cars", in form similar to that relating to the other Volvo. He
did so not to regulate a contractual relationship
between the
defendant and a customer but to bring the repair to the air
conditioner, the cost of which would ultimately be born
by the
dealership's workshop, within the dealership's administrative and
accounting system. Tjalie then took the hijacked vehicle
to Jet Radio
to have the air conditioner repaired. Another of the defendant's
drivers travelled in a separate vehicle to Jet Radio,
where Tjalie
was collected and brought back to the dealership.
14.
Later that day, Tjalie was again taken to Jet Radio to fetch the
hijacked vehicle. At about 14h50, while returning to the dealership,
Tjalie was hijacked about 200 metres from its entrance.
15.
Tjalie said in evidence that he noticed a Polo hatchback flicking its
lights at him. The Polo was at or near the entrance to
the dealership
on the other side of the road, facing in the direction opposite to
that in which Tjalie was travelling. Because
the Polo was so near the
dealership, he thought the driver of the Polo was connected with the
dealership and slowed down. The Polo
then veered over to Tjalie's
side of the road and halted, blocking Tjalie's forward passage. Two
occupants of the Polo then emerged,
leaving the driver and possibly
one further occupant within the Polo. One of the former occupants of
the Polo, a man of about 30,
approached the driver's window of the
hijacked vehicle. Tjalie lowered his window to see what the man
wanted. The man thrust his
arm through the open window and tried to
open the driver's door of the hijacked vehicle. Tjalie saw that the
man was armed with
a firearm thrust inside the man's belt with the
butt visible. At this point Tjalie realised he was being hijacked. A
tussle of
sorts ensued, with the hijacker trying to keep Tjalie in
the vehicle and Tjalie trying to escape. Tjalie succeeded in
escaping,
ran to the dealership and informed staff at the dealership
that he had been hijacked. The police were notified. The hijacked
vehicle,
which had neither been insured nor fitted with a tracking
device by the plaintiff, was never recovered. The defendant
authorised
its security services provider to offer a reward for its
return. I think that the defendant was even prepared to buy the
hijacked
vehicle back from the hijackers, if this could be achieved.
But the vehicle was never seen again by the plaintiff or the
defendant.
16.
Tjalie had received certain instructions about how he should conduct
himself when driving a customer's vehicle. He had to drive
such a
customer's vehicle directly to where it was to go and not deviate
from his route for his own purposes. He was not allowed
to stop along
the way for his personal purposes. He was not allowed to pick up
passengers or to stop to render assistance to anyone
in need. So it
could be said that when he lowered his window to speak to the man
whose Polo vehicle had just blocked the path of
travel, he was acting
in breach of his instructions. I shall accept in favour of the
plaintiff that Tjalie did indeed in this respect
act in breach of his
instructions.
The
pleadings and the pre-trial agreements
17.
The plaintiff, in her amended particulars of claim, pleaded the sale
agreement,
2
the return of the hijacked vehicle to enable the defendant to repair
the airconditioner, the defendant's asserted inability to
return the
hijacked vehicle and the value of the vehicle which, the plaintiff
claimed, the defendant was, by reason of its professed
inability to
return the hijacked vehicle, liable to pay the plaintiff.
1
8.
The defendant in its plea admitted the sale agreement but said that
it was partly oral and partly written and put up the written
portion
of the sale agreement. It became common cause at the trial that the
written part of the sale agreement was as I have described
it in
paragraph 2 above.
19.
In response to the allegation that the vehicle was returned to have
the air conditioner fixed, the defendant pleaded as follows:
3
[T]he
parties agreed that the [hijacked] vehicle would be driven to the
premises of Jet Radio in Lynwood, and back to the defendant's
premises, in order to inspect and/or repair the faulty air
conditioner.
[I]t
was at all relevant times properly brought to the attention of the
Plaintiff, alternatively the Plaintiffs daughter, further
alternatively both the Plaintiff and the Plaintiffs daughter that:
the
vehicle would be kept at the Defendant's premises and driven by the
Defendant's staff for the reasons as set out herein above,
entirely
at the Plaintiffs risk;
the
Defendant would not be liable in any way for the loss of the vehicle
or damage thereto, due to theft or hijacking thereof.
20.
In response to the allegation of professed inability of the
defendant to return the hijacked vehicle, the defendant pleaded
that:
[O]n
26 may and at approximately 14h30 the Plaintiffs vehicle was hijacked
by three people unknown to the Defendant.
The
Plaintiffs vehicle was hijacked without any negligence on the
Defendant's part.
The
Defendant did everything within its abilities to safeguard the
Plaintiffs vehicle against damage or loss in that:
the
Defendant's driver attended to the vehicle at all relevant times;
the
Defendant's driver was forced at gunpoint to abandon the vehicle.
21.
Two pre-trial conferences were held by the parties. At the second
such conference, held on 30 November 2010, the parties minuted
the
issues for decision by the court, certain common cause aspects and
their agreement on the onus of proof.
22.
The issues which the parties submitted for decision by the court are:
22.1
Whether the defendant's inability to return the hijacked vehicle to
the plaintiff was due to the defendant's negligence;
22.2
If the court finds that the defendant's inability to return the
hijacked vehicle was due to its negligence, whether the "owner's
risk/exemption clauses"
4
relied upon by the defendant formed part of the agreement between the
parties;
22.3
If the court finds for the plaintiff on the first issue and for the
defendant on the second issue, whether the disclaimer clauses
exempted the defendant from responsibility for the loss of the
hijacked vehicle in the circumstances under which the loss occurred.
23.
The common cause aspects included the following:
23.1
"That the plaintiff's daughter was her duly authorised
representative";
5
23.2
That the value of the hijacked vehicle when it was hijacked was R584
466,66.
24.
The parties agreed that the defendant bore the onus of proving that
the loss of the hijacked vehicle occurred without negligence
on the
part of the defendant rested on the defendant and that the onus of
proving that the disclaimer clauses "did not form
part of the
agreement between the parties" rested on the plaintiff.
Evaluation
25.
Counsel for the defendant submitted that what was in issue was a
contract of deposit. I do not agree but I do not think that
it
matters in this case how one characterises the agreement. This is not
a case where goods were handed over for safekeeping. But
deposit is
not the only contract which involves the assumption of responsibility
for the
safe
keeping of goods delivered pursuant to the contract.
6
To my mind the delivery of the hijacked vehicle to the defendant for
repairs to the air conditioner is analogous to the return
of goods to
a contractor for the purpose of remedying a defect.
7
It seems to me implicit in the agreement of sale that if the
defendant accepted the return of the hijacked vehicle for the purpose
of remedying a defect, then (always subject to the fate of the
defence raised with reference to the disclaimer clauses) the
defendant
would,
mutatis
mutandis,
attract
the obligations of a depositary. Furthermore, the parties agreed at
the second pre-trial conference that if the defendant
proved that its
inability to return the hijacked vehicle was not due to its
negligence, this would be a complete defence to the
plaintiffs claim.
26.
The third issue may swiftly be disposed of: it was not suggested
during argument that if the disclaimer clauses were contractually
binding, that fact would not of itself absolve the defendant. The way
is accordingly clear to consider the remaining two issues.
27.
The plaintiff's daughter, Ms Kamia Faceira, gave evidence. She is a
first language Portuguese speaker who was educated in England.
My
impression was that her command of the English language is not
perfect,
especially in regard to nuances of grammar and idiom. But for the
issue whether Hattingh had told her that the hijacked
vehicle would
be taken away from the dealership to have the air conditioner
repaired and one other aspect of her evidence, with
which I shall
deal shortly, she impressed me as honest and reliable. I accordingly
accept that, as she testified, she is ignorant
of the concept of a
contract as that term is used in our law and was not aware that when
she brought the other Volvo to the defendant
for repairs and signed
the jobcard, she was concluding a contract of any kind with the
defendant. Agency as a legal concept was
not canvassed with her when
she gave evidence but I have no doubt that she does not understand
that either.
28.
The aspect of Ms Faceira's evidence which initially gave me concern
related to her awareness of the disclaimer notices. She
said that she
was not aware of the existence of the disclaimer notices or what was
written on them. I am however persuaded that
what she meant was that
she accepted that the disclaimer notices were, or that one of them
was, within her field of vision at some
stage when she was in the
dealership, that she could have read what was written on the
disclaimer notice if she had wanted to do
so, but that she had not
looked for the notices, did not appreciate that they were there or
what their significance was and did
not read what was written on
them. I accept that this evidence of hers was true.
29.
Counsel for the defendant submitted that the plaintiff was bound by
Miss Faceira's signature to the job card in respect of the
other
Volvo in relation to the disclaimer clauses in the sense that Miss
Faceira's knowledge of the existence of the disclaimer
clauses on
that job card should be imputed to the plaintiff. Counsel also relied
heavily on the provision in the standard conditions
overleaf on the
job card that the standard conditions applied to the job in question
and, in addition, "all future dealings"
with the defendant.
30.
The difficulty I have with this submission is that the evidence of
Hattingh on behalf of the defendant and the provisions of
the job
card itself show that in relation to the other Volvo, Miss Faceira
contracted as principal. There is accordingly no basis
for imputing
to the plaintiff Miss Faceira's knowledge in regard to the
transaction relating to the other Volvo. Furthermore, I
accept that
Miss Faceira had no idea that when she signed the job card, she was
entering, or offering to enter, into a contract
with the defendant or
that the job card contained provisions of a contractual nature,
whether relating to the disclaimer clauses
or otherwise. She said she
did not read the document and I believe her. Of course, underthe
doctrine of quasi-mutual assent, she
is bound by what she signed but
that is beside the point.
31.
I accordingly conclude that the provisions of the job card relating
to the other Volvo do not help the defendant to establish
that the
disclaimer clauses are contractually binding on the plaintiff.
32.
Subject to the defendant's submissions on the effect of the
provisions in the job card relating to the other Volvo, counsel
were
agreed that the plaintiff would be bound by the disclaimer clauses
unless the plaintiff showed that Miss Faceira had not read
them or
that the defendant had not done all that was reasonably necessary to
bring them to the plaintiffs (ie Miss Faceira's) attention.
8
33.
Miss Faceira's evidence, which I accept, was that she did not read
what was written on the disclaimer notices. Hattingh testified
that
he did not draw Miss Faceira's attention to either of the disclaimer
notices. The question which remains is thus whether the
defendant did
all that was reasonably necessary to bring them to Miss Faceira's
attention.
34.
There is however an anterior question. To bind the plaintiff to the
provisions of the disclaimer notices it was, in my view,
necessary to
bring the disclaimer notices to the attention of Miss Faceira
before
the
contractual arrangement relating to the repair of the air conditioner
was
concluded. What happened in that regard a/ferthat contractual
arrangement was concluded is for this enquiry irrelevant.
35.
When Miss Faceira brought the hijacked vehicle in for the repair, she
entered the dealership through its front door and walked
to
Hattingh's office adjacent to the refreshment area and the new car
showroom. If she had been looking for the disclaimer notice
in the
refreshment area, she would have been able to read it from Hattingh's
office. But there was to my mind no reason why a reasonable
person in
Miss Faceira's position
would
have
read it. This case is quite different from the case, to take one
example, where it is apparent from a disclaimer notice prominently
displayed in the area to which one goes to book one's car in for a
service that the service provider only does business on the
basis of
the provisions of the disclaimer notice. Miss Faceira was not asking
the defendant to enter into a new contract with her
or her mother.
She was bringing the hijacked vehicle back to have a defect remedied
under the sale agreement. There was nothing
in the sale agreement to
warn the new car buyer that the defendant invariably did business on
the basis of the disclaimer clauses.
Indeed, the evidence was that
there was no disclaimer notice visible to prospective customers
entering the dealership through the
front door.
36.
A "come back" buyer of a new car, for present purposes a
customer who brings the vehicle back to Hattingh at the dealership
to
have a defect remedied, would have no reason to believe that the
defendant wished to impose the terms of the disclaimer notices
on
their contract. There was nothing drawing the customer's attention to
the disclaimer notices unless and until he or she went
to the
refreshment area or the service area. The notice in the service area
is 20 metres away, up steps in height
1
,25
metres, from the room divider separating the refreshment area from
the new car showroom and is only visible at all from some
positions
between the new car showroom and the service area but not visible at
all from others.
37.
The contractual arrangement in relation to the repairs to the air
conditioner was concluded, at the latest, when Miss Faceira
handed
the keys of the hijacked vehicle to Hattingh. Up to that moment she
would physically not have been able to see the disclaimer
sign in the
refreshment area. It is quite fortuitous that she went to the
refreshment area and, in my view, legally irrelevant
that she did so
because by then the contractual arrangement in relation to the
repairs to the air conditioner had already been
concluded.
38.
So, in my view, the evidence establishes that far from having done
everything reasonably necessary to bring the disclaimer sign
to the
attention of a come back customer in the position of Miss Faceira,
the defendant did nothing at all in this regard.
39.
I accordingly hold that it has been proved that the disclaimer
clauses did not form part of the contractual arrangement in relation
to the repair of the air conditioner.
40.
I turn to consider whether the defendant has proved that its
inability to return the vehicle was not due to the negligence of
the
defendant or of anyone whose negligence can be imputed to the
defendant - in this case its driver, Tjalie.
41.
The test for negligence is as laid down in
Kruger
v Coetzee
9
where
Holmes JA said
10
the following:
For
the purposes of liability
culpa
arises
if -
(a)
a
diligens
paterfamilias
in
the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (a)(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down. Hence the futility, in general,
of seeking
guidance from the facts and results of other cases.
42.
In argument, it was submitted on behalf of the plaintiff that the
defendant had failed to establish the absence of negligence
because
of the following:
42.1
Tjalie should have realised when the Polo started veering into his
path of travel that he was being hijacked and thus failed
to realise
at the earliest possible moment that he was being hijacked;
42.2
Tjalie had, when confronted by the hijacker at his drivers' door
window, lowered the window rather than keep the window up;
42.3
Tjalie had made his escape from the vehicle rather than try to drive
the vehicle away from the scene of the hijacking, either
by mounting
the pavement and driving around the Polo or reversing;
42.4
The defendant failed to provide its drivers with specific training
about what to do in a hijack situation;
42.5
The defendant should have sent another of its drivers to accompany
Tjalie in the hijacked vehicle or should have sent another
of its
drivers in another vehicle to accompany Tjalie.
43.
I have said that hijacking is one of the horrid facts of South
African life. What makes this crime so horrifying is that it
is
invariably, in the South African experience, accompanied by the
threat of potentially fatal violence. So the victim of a hijacking
in
this country knows that his or her life is in great immediate danger.
44.
It is in my judgment self-evidently true that the life of a hijack
victim is immensely more valuable than the vehicle which
is in the
process of being hijacked. Now although the reasonable motorist in
this country is constantly aware of the possibility
of being
hijacked, the reasonable person in context of the present case is
neither possessed of military or other training to enable
him or her
to meet the force of the hijacker with superior force nor armed with
the necessary weapons to enable him or her to engage
the hijacker or
hijackers in a gun fight.
11
I
do not imply that the reasonable person, armed and trained to resist
hijackers with force, should, when being hijacked, always
fight back.
It depends on the
circumstances.
45.
It follows that the reasonable person in the position of Tjalie,
confronted by an armed gang of hijackers neither offers resistance
nor tries to escape by driving away the vehicle which is the target
of the hijackers. The risk that he or she will be shot while
doing so
is simply too great. It then follows that the only appropriate course
available is to escape from the vehicle at the earliest
opportunity
or, if this is not possible, to negotiate the handing over of the
vehicle to the hijackers in exchange for the life
and liberty of the
victim or victims.
46.
I think that the reasonable person in Tjalie's position might have
realised earlier than Tjalie did, ie at the moment that the
Polo
started veering over to Tjalie's side of the road, that a hijacking
was in progress. But one must make allowance for reaction
time.
Tjalie's evidence, which I accept, is that things happened very fast
and a very brief period of time elapsed between the
moment when the
Polo's lights were flicked and the moment when the hijacker stood at
Tjalie's window. The reasonable person in
Tjalie's position, although
knowing that hijackings are part of the South African experience,
will experience a moment of incomprehension,
a feeling that this
cannot be happening to me, and of indecision. Nevertheless, I must
bear in mind that the onus is on the defendant
to exclude negligence,
so I shall proceed from the basis that there is a reasonable
possibility that Tjalie should have realised
at the earlier moment
that he was being hijacked. What would the reasonable person have
done in those circumstances?
47.
In myjudgment, the reasonable person in Tjalie's position would have
done exactly what Tjalie did. He or she would not have
tried to drive
the vehicle away but would have appreciated that the instruction from
the defendant not to stop and not to lower
one's window did not or
ought not to apply to the hijack situation because either step could
reasonably have been interpreted as
resistance by the hijackers and
have led to the death of the hijack victim. The reasonable person
would have tried to communicate
with the hijackers, to negotiate the
hand over of the vehicle to the hijackers and to make his or her
escape at the earliest possible
opportunity, abandoning the vehicle
to the hijackers. Having so escaped, the reasonable person would
report the hijacking to the
police without undue delay.
48.
It thus follows, in myjudgment, that the defendant has discharged the
onus of proving that Tjalie acted without negligence in
relation to
the hijacking.
49.
From this conclusion it follows that the defendant's failure to
provide its drivers with specific training about how to deal
with
hijack situations did not contribute to the loss of the hijacked
vehicle. The reasonable person in the defendant's position
would have
trained
its drivers to respond to hijackings in precisely the way that Tjalie
did.
50
Finally, I
deal
with the submission that the defendant ought to have sent another
person to travel with Tjalie in the hijacked vehicle or should
have
sent another vehicle to travel with Tjalie. The argument was that the
defendant should have sent another of its drivers to
act as backup.
The uncontradicted evidence of Mrs Bell, the dealer principal in
charge of the dealership, was that this was the
first hijacking, as
far as she was aware, of a customer's vehicle while in the possession
of the defendant. She said that she had
been associated with the
defendant for 13 years, that she and her fellow managers held regular
conferences at which they shared
experiences and that during that
period no report had been made to her of any similar incident save
for one case of theft.
12
In my view, the South African situation is far from that where it
would be negligent for a motor dealer in the defendant's position
to
allow a customer's vehicle to be driven by one of its drivers alone,
ie without a backup passenger or a backup vehicle, whether
along a
thoroughfare in an urban area at midday or otherwise.
13
Our situation does not, to apply the test in
item
a(ii) of
Kruger
v Coetzee,
require
a person in the position of the defendant to take either of such
steps to guard against the danger of being hijacked. Furthermore,
unless the backup was armed and trained in resisting the violence
presented by hijackers, the presence of such a backup would have
made
no difference.
51.
It follows, in my judgment, that the defendant has succeeded in
proving that it acted without negligence in relation to the
loss of
the hijacked vehicle.
Order
of court
52.
There will be judgment for the defendant with costs, such costs to
include the costs of the summary judgment application which
were
reserved for the decision of the trial court.
NB
Tuchten
Judge
of the High Court
11
January 2011
1
Which
I shall call "the disclaimer notices".
2
Which
the plaintiff said was concluded orally between the plaintiff acting
personally and the defendant, represented by Hattingh.
3
When
I quote from the defendant's plea in this part of the judgment, I
omit the paragraph numbering.
4
Which I shall call "the disclaimer clauses".
5
It
was clear from the minute of the second pre-trial conference and the
way the trial developed that the scope of the agreement
that the
plaintiffs daughter was the plaintiffs agent was confined to the
incident in which the hijacked vehicle was delivered
to the
defendant for repairs to the air conditioner. It is a necessary
implication of that agreement that knowledge by the plaintiffs
daughter of the contents of the disclaimer notices is to be imputed
to the plaintiff.
6
LAWSA
vol
8 Part 1 para 174 sv
Deposit.
7
Compare
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979
1 SA 391
A 435C
8
Compare
Christie, The
Law
of Contract in South Africa,
5th
ed 180
9
1966
2 SA 428
A
10
at 430E-G
11
I do not imply that the reasonable person, armed and trained to
resist hijackers with
force,
should, when being hijacked, always fight back. It depends on the
circumstances.
12
That
theft was the subject of a judgment in
Versveld
v Kempster Sedgwick (Pty) Limited,
unreported,
18 March 2004, WLD case no 15268/02.
13
This
conclusion is fact specific. I should not be taken as laying down a
rule of
general
application.