Jacobs v Imperial Group (Pty) Ltd (693/08) [2009] ZASCA 167; [2010] 2 All SA 540 (SCA) (1 December 2009)

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[2009] ZASCA 167
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Jacobs v Imperial Group (Pty) Ltd (693/08) [2009] ZASCA 167; [2010] 2 All SA 540 (SCA) (1 December 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 693/08
In
the matter between:
JUAN JACQUES JACOBS
APPELLANT
v
IMPERIAL
GROUP (PTY) LTD
RESPONDENT
Neutral citation:
Jacobs
v Imperial Group
(693/2008)
[2009] ZASCA 167
(
1
December 2009).
Coram:
Mthiyane,
Lewis, Heher, Mlambo, Mhlantla JJA
Heard: 19 November 2009
Delivered: 1 December 2009
Summary: Contract – owner’s risk notice –
incorporated in contract of service. Service provider entitled to
assume that
customer saw disclaimer on notice boards.
Motor vehicle stolen – service provider shielded from
liability by owner’s risk notice.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
South Gauteng
High Court, Johannesburg (Tsoka J sitting as court of first
instance).
The following order is made:
The appeal is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO JA
(Mthiyane, Lewis,
Heher, Mhlantla JJA concurring):
[1] On 8 September 2005 the appellant, represented by
his brother-in-law, Mr Pierre Jacobs (Jacobs), entered into a
contract
of service with the respondent in terms of which the
appellant’s motor vehicle, a Vito Mercedes Benz, was left in the
respondent’s
care, at its Potchefstroom Cargo Service Centre, for
repairs. To this end Jacobs and the respondent’s representative
signed an
‘order form’. The order form contained on its reverse
certain terms and conditions titled ‘conditions of contract’.
Clause
5 of these conditions of contract provided:
‘
We acknowledge that Cargo
Potchefstroom shall not be liable in any way whatsoever or be
responsible for any loss or damages sustained
from fire, burglary
and/or unlawful acts (including gross negligence) of the
representative, agents or employees.’
[2] There was also, at the respondent’s service
centre, a disclaimer or owner’s risk notice displayed prominently
on notice
boards at three locations, to wit, the passenger vehicle
office, the customer reception entrance and at the cashier’s
window.
The disclaimer read:
‘
Vehicles are left at owner’s
risk.
Voertuie word hier gelaat op
eienaars risiko.’
[3] The vehicle was stolen whilst still under the
respondent’s custody and the appellant duly instituted an action in
the South
Gauteng High Court for damages arising from the consequent
loss of the vehicle. It was common cause in the proceedings before
the
high court that Jacobs was not aware of the conditions of
contract at the back of the order form he signed. And the court
accepted
that he did not see the owner’s risk notice displayed on
the notice boards. The appellant’s case was that it was not bound
by the owner’s risk clause and further that Jacobs did not have
authority to bind him to that disclaimer. On the other hand the

respondent relied on the owner’s risk notice to resist liability.
[4] The high court (Tsoka J) found that Jacobs was
properly authorised to bind the appellant. The court also concluded
that the
owner’s risk notice displayed on notice boards at the
respondent’s premises where the motor vehicle was stolen, was
incorporated
into the contract entered into by the parties. That
court further concluded that the respondent had done all that was
reasonable
to bring to Jacobs’ attention the contents of the
owner’s risk notice. The appeal, with leave of this court, is
directed at
these findings and is premised essentially on the
following contentions:
(a) that the applicability of the owner’s risk notice
had to be determined with reference to the disclaimer contained in
clause
5 of the conditions of contract set out on the back of the
order form signed by the parties when concluding the contract;
(b) that Jacobs did not have the requisite authority to
bind the appellant to the terms of the owner’s risk notice.
[5] The appellant’s submission regarding the
applicability of the owner’s risk notice was that there was no
reference to this
notice in the disclaimer in the conditions of
contract (Clause 5). This meant, so the argument went, that the
owner’s risk notice
was excluded from the contract entered into
between the parties. The appellant further submitted that the clause
5 disclaimer could
not be relied upon to shield the respondent from
liability as it did not mention theft specifically. An alternative
argument was
that we should interpret that notice in the appellant’s
favour, it being the respondent’s document, as the English version
which did not mention theft, was inconsistent with the Afrikaans
version which did mention it.
[6] The appellant’s argument that the conditions of
contract formed part of the agreement between the parties is
misconceived.
In this regard the appellant had specifically pleaded
in his particulars of claim and replication that the conditions of
contract
did not form part of the contract between the parties and
were therefore unenforceable. Though the respondent in its plea
pleaded
that the conditions of contract formed part of the contract,
the parties reached consensus at the pre-trial stage that the
respondent
was not placing any reliance on the conditions of
contract, thus effectively excluding them from the ambit of the case.
The respondent
relied solely on the owner’s risk notice to escape
liability.
[7] We cannot ignore the pleadings. It is clear that the
issue that has always been at the centre of the dispute between the
parties
was the applicability of the owner’s risk notice. And it is
also clear that despite the appellant’s stance now on appeal, the

parties reached consensus in terms of which they limited the factual
enquiry that was to feature before the high court and this
excluded
the conditions of contract. In fact, the high court specifically
found that it was common cause between the parties that
the
conditions of contract did not form part of the case. This finding,
for that matter, is not attacked on appeal.
[8] I now consider the appellant’s argument that
Jacobs, as his agent, did not have authority to bind him to the
owner’s risk
notice. This brings to the fore the question whether
in fact Jacob’s authority was limited. There is no evidence from
Jacobs
or anyone else to suggest that Jacob’s authority was
limited. In fact, the evidence is clear that, when handing over the
motor
vehicle, and signing the necessary paperwork, there was nothing
circumscribing his authority. The respondent was perfectly justified

in relying on Jacobs’ conduct, which evinced all the attributes of
actual authority. It is trite that ‘the law, as a general
rule,
concerns itself with the external manifestations, and not the
workings, of the minds of parties to a contract’.
1
The conclusion of the high court that Jacobs had the necessary
authority to conclude the contract is beyond reproach. He properly

bound his principal, the appellant, to the terms of the contract
which included the owner’s risk notice.
[9] This brings me to the question whether the owner’s
risk notice in this case could be successfully relied upon by the
respondent
to escape liability for the loss of the motor vehicle
given that it was found that Jacobs did not see it. The approach to
this
question is to enquire whether the respondent acted sufficiently
reasonably in bringing to the attention of its customers in general,

and to Jacobs in particular, the existence of the owner’s risk
notice:
Durban’s Water Wonderland (Pty) Ltd
v Botha
2
‘
The answer depends upon
whether in all the circumstances the appellant did what was
“reasonably sufficient” to give patrons
notice of the terms of
the disclaimer.’
See also
King’s Car Hire (Pty)
Ltd v Wakeling
1970 (4) SA 640
(N) at 643H.
[10] The evidence is that the owner’s risk notice was
prominently displayed, in clear and unambiguous terms, on notice
boards
at the respondent’s passenger vehicle office, at the
entrance to the reception and at the cashier’s window. Clearly, it
was
displayed in such a manner and at such locations on the
respondent’s premises to inform any customer leaving a motor
vehicle
there of its applicability. This, to me, was more than
sufficiently reasonable and the fact that Jacobs says he did not see
it
does not assist the appellant. The respondent was, in my view,
entitled to assume, having displayed the notice in this manner, that

any of its customers would notice it. This is not a case where the
disclaimer was not prominently displayed or is located in a

misleading manner as was the case in
Mercurius
Motors v Lopez
.
3
[11] In the result the appeal is dismissed with costs.
__________________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: M M Segal
INSTRUCTED BY: Whalley van der Lith,
Johannesburg
CORRESPONDENT: Wessels & Smith Inc,
Bloemfontein
COUNSEL FOR RESPONDENT: G Kairinos
INSTRUCTED BY: Couzyns Inc, Rosebank
CORRESPONDENT: Hugo & Bruwer Attorneys, Bloemfontein
1
Sonap Petroleum (SA) (Pty) Ltd (formerly known
as Sonarep (SA) (Pty) Ltd v Pappadogianis
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 238I-J.
2
1999 (1) SA 982
(SCA) at 991H-I.
3
[2008] ZASCA 22
;
2008 (3) SA 572
(SCA) para 33.