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[2017] ZAKZDHC 26
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Four Wheel Drive Accessory Distribution CC v Rattan NO (6916/13) [2017] ZAKZDHC 26; 2018 (3) SA 204 (KZD) (4 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 6916/13
In the matter between:
FOUR
WHEEL DRIVE ACCESSORY DISTRIBUTION
CC
PLAINTIFF
and
LESHNI RATTAN
N.O
DEFENDANT
Date of Hearing: 05-6
December 2016, 29 May 2017
Date of Judgment: 4 July
2017
ORDER
The
claim is dismissed with costs.
JUDGMENT
D.
Pillay J:
Introduction
[1]
‘Poor legal writing might result in an injustice for a
client: a judge might misunderstand what a lawyer is
seeking; an
adversary might seize on an ambiguity. To avoid these problems,
strive for perfection.
’
[1]
To this exhortation must
be added the observation of the Constitutional Court:
‘
The
movement towards the infusion of justice and equity or fairness into
certain legal relationships is also taken further in the
National
Credit Act 34 of 2005
. . .and in the Consumer Protection Act 68 of
2008 (see in part G the reference to the “right to fair, just
and reasonable
terms and conditions” and s 48).’
[2]
And all writers,
including lawyers must know:
‘
We
write ethically when as a matter of principle, we would trade places
with our intended readers and experience what they do as
they read
our writing. None of us wants to hack through gratuitously unclear
writing, so it seems self-evidently unethical to impose
that kind of
writing on others.’
[3]
What if the legal writing
is not easy to see let alone to read and understand? At the heart of
this action is the quality and quantity
of the form and content of a
written agreement on the basis of which the plaintiff claims payment
of an amount of R559 817.45
as the cost of repairing a motor
vehicle, a Land Rover Discovery, that was damaged whilst it was in
the possession of the late
Ivin Chutergun Rattan. Leshni Rattan is Mr
Rattan’s executrix representing his estate. It was common cause
that the deceased
did not cause the damages to the Discovery.
[2] In terms of a written
agreement dated 26 November 2012, Land Rover Experienced Rentals CC
(LRER CC) leased a Land Rover Freelander
to the deceased whilst the
deceased’s own vehicle was undergoing repairs at Land Rover
Umhlanga. On 28 November 2012, LRER
CC replaced the Freelander with
the Discovery in terms of another similar standard agreement annexed
to the particulars of claim
as B2.
[3]
The terms and conditions agreed could not be gleaned clearly from B2
because the quality of its form was not easy to read. Instead
they
emerged during the testimony of Mrs Brown and Mr Murton, the
witnesses for the plaintiff. The evidence for the plaintiff was
that
in terms of B2 the deceased had the use of the Discovery for as long
as his own vehicle was undergoing repairs. The Discovery
had to be
returned in the same condition as when he had received it. Clarity
about the insurance of the vehicle whilst it was in
the deceased’s
possession emerged when Mr Murton testified that the Discovery would
be insured for the first 72 hours; thereafter
the deceased would have
had to make arrangements for his own damage insurance (ODI) or be
personally responsible for the vehicle,
its rental and other charges.
During the initial 72 hour period the deceased was liable only for
the excess of R20 000.
[4]
Counsel conceded that the conditions pertaining to the 72 hour period
were not written into B2.
[4] For its part Land
Rover Umhlanga, which was not party to B2 had 72 hours in which to
fix the deceased’s vehicle. Mrs Brown
gave conflicting evidence
about whether it was able to do so and whether it had to secure an
extension of one day from Europe-Assist
who facilitated the hire of
courtesy vehicles on behalf of the plaintiff. Exhibit 1A, a car hire
request dated 26 November 2012
on the letterhead of Lazarus Car Hire,
bearing the name of the deceased but listing Europe-Assist as its
client, has a hand-written
note that an extension was granted. The
crucial question was whether the plaintiff informed the deceased that
he should return
the vehicle before the expiry of 72 hours? There was
no evidence of this.
[5] On 30 November 2012
the deceased was shot and killed whilst driving the Discovery, which
was damaged as a result. Naturally
the deceased was unable to return
the vehicle. It was recovered from the South African Police Services
on 3 December 2012.
[6] The defendant
challenges the
locus standi
of the plaintiff, firstly on the
grounds of its identity, and secondly its interest in the claim. It
had no witnesses to call and
closed its case without leading any
evidence. I deal with
locus standi
before considering the
enforceability of B2 under the common law and the Consumer Protection
Act 68 of 2008 (CPA).
Locus Standi
[7] As for the
plaintiff’s identity, B2 is an agreement between LRER CC and
the deceased. Surprisingly the plaintiff was cited
as follows:
‘
Four
Wheel Drive Accessory Distributors CC a close corporation, which has
been duly incorporated and registered in accordance with
the
provisions of the
Close Corporations Act 1984
trading under the style
of Lazarus Car Hire and formerly trading under the style Land Rover
Experience Rentals having its place
of business at Church Street
Extension Pretoria West, 0001’
.
Mrs Brown testified that
there ‘isn’t a Land Rover Experience Rentals CC’
and that ‘Experience Care Hire’
is a name of another firm
that the plaintiff uses.
[8] The plaintiff led its
evidence and the matter was adjourned for about five months. On
resumption it applied to rectify B2 by
deleting the abbreviation ‘CC’
in LRER CC. Its explanation was that the plaintiff formerly traded
under the name of
‘Land Rover Experience Rentals’ but B2
did not correctly record the description of its trading name.
Apparently, the
‘incorrect description of the plaintiff was
occasioned by an error common to the parties’ (
sic
). For
these reasons the plaintiff sought the deletion of the extension ‘CC’
in B2.
[9] That this was a
mutual mistake is an allegation the deceased is no longer available
to confirm or refute. In the circumstances
the court has to be
especially careful in assessing the amendment, which was effected
without opposition. It cannot be correct
that it was an ‘error
common to the parties’ because the likelihood of the deceased
taking notice of the identity of
the other party to B2 when he signed
it is remote considering the quality of the form of B2 and the
hurried circumstances in which
he signed it. Not even Mr Murton
noticed that LRER CC was a close corporation. Both issues are
expatiated below.
[10] What the plaintiff
failed to explain is how the ‘CC’ came to be in B2 in the
first place when that was not its
trading name. Did such a close
corporation ever exist? As B2 is a standard term agreement that was
used on both the occasions that
the deceased received courtesy
vehicles, the plaintiff’s explanation remains wanting if not
suspect.
[11] Despite the
defendant challenging the status of the plaintiff in its plea and
throughout the cross-examination of its witnesses,
the plaintiff
failed to produce any documents to prove its incorporation and its
relationships with Lazarus Car Hire and LRER with
or without the
‘CC’. Its explanation that it was not obliged to produce
the documents because its oral evidence could
not be refuted is
unacceptable. Faced with the defendant’s persistent and
vigorous challenge to the plaintiff’s standing,
the court could
not reasonably accept the say-so of the plaintiff, especially when
manifestly it did not conclude B2, which founded
its action.
[12] As for the
plaintiff’s interest in the claim, the evidence is all the more
convoluted. The
causa
of the action between LRER CC and the
deceased was recorded in B2 as an agreement to ‘rent’ the
Discovery. The plaintiff
pleaded that it was the lessee of the
Discovery. But it referred to the Discovery as:
‘
(the
plaintiffs vehicle) in terms of an agreement of lease with the owner
of the plaintiff’s vehicle
.’
Furthermore:
‘
[
i]n
terms of the agreement of lease between the plaintiff and the owner
of the plaintiff’s vehicle, the plaintiff bore the
risk of loss
of damage to the plaintiff’s vehicle
.’
In both these extracts
the plaintiff was referring to its lease agreement with the owner of
the Discovery. Who was its owner?
[13] This emerged only
during cross-examination when Mrs Brown testified that Land Rover
South Africa (LRSA) owned the Discovery.
Allegedly, the arrangement
between the plaintiff and LRSA was that LRSA would in terms of an
oral arrangement lease its vehicles
to the plaintiff; it would then
re-hire it from the plaintiff. LRSA paid rent to the plaintiff for
the rehire of its own vehicle.
In direct response to the question:
'What gives you the right to sue on this case if the vehicle belongs
to LRSA?’ Mrs Brown
replied: ‘We in effect lease the
vehicle from them’. If this response were true then it implied
that LRSA hired its
own vehicle and re-leased it to the plaintiff so
that the plaintiff, not LRSA, could ‘lease’ the Discovery
to the deceased.
But the deceased paid no rental for the Discovery.
[14] According to Mr
Murton the plaintiff was in the business of renting vehicles
throughout the country. He was the assistant manager
for its Durban
operations. To the best of his knowledge the clients paid no rental
for the vehicles. He was unable to confirm whether
LRSA leased and
re-leased vehicles from the plaintiff. He was unsure about whether
LRSA paid rent for the vehicles.
[15]
As for the relationship with LRSA, Europe-Assist, and other companies
involved with the plaintiff, he deferred to Mrs Brown
who dealt with
them. According to Mr Murton the plaintiff is a ‘mobile
operation’ that does not have physical premises.
[5]
The transaction with the deceased took place at a vacant desk at Land
Rover Umhlanga.
[16] Unsurprisingly the
defendant had no knowledge of these averments not least because they
are not self-evident from B2. Nor did
the plaintiff’s
particulars disclose who the owner of the Discovery was. Describing
the Discovery as ‘the plaintiff’s
vehicle’ when the
plaintiff was not the owner was at best confusing, if not an attempt
to conceal the identity of the owner
of the Discovery.
[17] Notwithstanding the
plaintiff’s particulars of claim, Mrs Brown contradicted her
evidence further by testifying that
LRSA ‘contracts [her] to
give a loan vehicle.’ This evidence showed that the real
agreement was not the lease in B2
that the plaintiff presented as the
foundation of its case, but an agreement for the use of the Discovery
(
commodatum)
.
[18] That is not all. The
Discovery was insured for 72 hours from 28 November 2012. The
insurance would not have expired by 30 November
2012 when the
deceased was killed. Irrespective of what the insurance arrangements
were, the deceased was incapable of performing
his obligations.
Surprisingly, the plaintiff has not disclosed any documents
pertaining to the insurance of the Discovery and what
the attitude of
the insurers, if any, was to paying for the damages. I was not
referred to any term in B2 about what liability
the defendant would
attract despite the supervening impossibility of the deceased to
perform.
[19]
Fathoming where truth lies in this extraordinary convolution is all
the more difficult without documents to support the transactions
between the plaintiff and LRSA. That such complicated transactions
would be oral is incredible as it involves a multinational enterprise
like Land Rover. For LRSA, which is a dealership in the stable of
Combined Motor Holdings Ltd, a company listed on the Johannesburg
Stock Exchange, to engage in such business practices is unusual.
[6]
The plaintiff offered no explanation as to why LRSA did not sue in
its own name to recover damages to its own vehicle, nor did
it
disclose whether any insurers settled any claims arising from damage
to the Discovery.
[20] The reasons for
these convoluted transactions have not been forthcoming. Trying to
unravel them falls beyond the competence
of the court and the scope
of this judgment. Agencies with investigative capabilities are best
placed to deal with them. However,
the plaintiff’s failure to
disclose relevant information is material to the extent that it
assists the court in making findings
of credibility against it.
[21] In view of the
defendant’s denial in her plea, the plaintiff had a duty to
prove every element of its action starting
with its
locus standi.
This obligation was reinforced by the absence of any witnesses for
the defendant through no fault of the deceased. To allow the
plaintiff to snatch a tactical advantage from the passing of the
deceased would be unjust. It was not the plaintiff’s case
that
it could not produce the documents because they were not available.
Nor did it claim that they were irrelevant or confidential.
In the
circumstances I find that the plaintiff has failed to discharge its
onus of establishing its
locus standi
by proving its identity.
[22] It also failed to
prove its interest in the litigation. It concluded agreements with
other entities not party to the agreement
with the deceased or this
litigation in ways that raise further questions about who actually
bore the risk of loss. Non-disclosure
of the insurance, if any, of
the Discovery casts doubt not only about the plaintiff’s
interest but also its good faith. The
plaintiff failed to prove that
it carried any risk whatsoever.
[23] This finding that
the plaintiff failed to prove its
locus standi
is dispositive
of the entire action. For completeness I turn to the enforceability
of B2.
Enforcing B2 under the
common law
[24] Evidentially, the
starting point is the circumstances in which the deceased came to
sign B2. Mr Murton delivered the Discovery
to the deceased at his
butchery business at Phoenix Industrial Park. He handed its keys to
the deceased personally after the latter
confirmed his identity. As
the deceased was busy he did not spend much time with him. The
deceased scanned over the contract quickly.
Mr Murton explained the
terms relating to the insurance, the fuel and the return of the
Discovery after which the deceased signed
B2.
[25]
Under cross-examination Mr Murton testified that he had read and
understood B2 but conceded that it was ‘very complex,
in small
writing, very difficult to read.’
[7]
B2 presented as one page. Asked on no less than three occasions about
several references in B2 to ‘overleaf’, Mr Murton
responded that he could not remember ‘the fine print’.
[8]
He was unaware of the references to ‘overleaf’. He was
unable to explain certain abbreviations in B2. Asked whether
he
explained clause 3 to the deceased he responded as follows:
‘
Sir
if I were to go through the whole document with each and every client
and every single clause in there I would not be getting
any vehicles
out. I am under a strict process - between five and ten vehicles
a day, I can’t sit for three hours and
explain the whole
document to a client.’
[9]
And further:
‘
client
has the opportunity to take a copy of the document, I don’t sit
and go through each clause on here; it is a substantial
document
.’
(
sic
)
[26]
Asked several times about the insurance in clause 3, Mr Murton was
unable to explain the terms. If his memory had faded since
he left
the employ of the plaintiff he had B2 before him to remind him. But
he was still unable to read and explain its contents
to the court. He
was unsure as to how a client would know that he would have to have
his own insurance.
[10]
When he
parted company with the deceased he left the latter with the
understanding that he would be liable only for the excess
of R20 000
if the Discovery was involved in a collision and became
un-roadworthy.
[27]
Mr Murton’s evidence proves that the deceased signed an
incomplete agreement and without reading it. As for the quantity
of
terms and conditions in B2 none of the 25 clauses and the multitude
of sub-clauses cast any light on the issues in dispute.
Attached to
the particulars of claim, B2 served no useful purpose. Given that the
court could not read B2 easily even with the
aid of a magnifying
glass, that the plaintiff’s representatives did not read B2 to
know that the condition that founded its
action was not in there,
that Mr Murton did not read and explain the contents of B2 to the
deceased and that the deceased did not
read B2 before he signed it,
then overwhelmingly the evidence supports a finding that there was no
consensus about the contents
of B2, at least, not about those aspects
that were not specifically discussed and arranged. An elementary
principle of the common
law is that without consensus no agreement
can exist.
[11]
[28] Mr Murton’s
evidence also reminds that:
‘
Most
of us do work hard to understand – at least until we decide
that a writer failed to work equally hard to help us reach
that
understanding, or worse, has deliberately made our reading more
difficult than it has to be. Once we decide that a writer
was
careless or thoughtless or lazy – well, our days are too few to
spend them on those indifferent to our needs.
’
[12]
[29]
However, an agreement of some kind did come into being.
It
was common cause that the Discovery was delivered to the deceased for
use as a courtesy service. At a minimum the deceased acknowledged
receipt of the Discovery by signing B2. The delivery was on the
condition that the Discovery would be returned at some point. Mr
Murton’s evidence that he told the deceased about the
conditions concerning the return of the Discovery is reasonably
probably
true. In the absence of any other evidence I accept in
favour of the plaintiff that 72 hours was the deadline. Additional
to B2, an oral agreement came in being in terms of which the deceased
had use of the Discovery for 72 hours when the plaintiff
provided the
insurance. This much is either common cause or not disputed. However,
the plaintiff fails to prove that the deceased
was aware that he had
to provide ODI after 72 hours; at most he had to pay the excess of
R20 000.
Pacta
sunt servanda
applies
to the limited terms agreed.
[13]
On
this basis the deceased had no obligation to have the Discovery
insured during the 72 hours.
Even
if he knew that he had to provide ODI it was not possible for him to
do so.
[30]
The deceased died about 48 hours after he received the Discovery.
This triggered another rule of the common law:
lex
non cogit ad impossibilia
- no one should be compelled to perform or comply with that which is
impossible. This maxim originates from the principles of justice
and
equity underlying the common law.
[14]
In
Barkhuizen
v Napier
the Court confirmed that it is ‘inconceivable’ that a
court would hold a party to a time-limitation clause if factors
beyond that party’s control
caused
the non-compliance.
[15]
It was
impossible for the deceased to insure the Discovery or return it
within 72 hours. On the basis of this maxim too I find
that B2 and
any other agreement that required the deceased to perform the
impossible are invalid. Accordingly the plaintiff’s
claim must
be dismissed on this ground too.
[31]
There is yet another common law principle that applies to the
plaintiff’s assertion that the deceased had to insure the
Discovery or return it within 72 hours: the duty to act in good
faith.
[16]
Good faith embodies
the community’s evolving conception of reasonableness, justice
and equity.
[17]
It finds
expression in other rules notably the common-law rule that
contractual clauses that are impossible to comply with should
not be
enforced.
[18]
[32] Another unsettling
aspect to the plaintiff’s claim is the lack of any explanation
as to why LRSA as the owner of the
Discovery did not sue the
defendant. Nor is there disclosure about whether any insurer paid for
the damages now claimed in this
action, to whom such damages were
paid and the extent to which the Plaintiff was actually out of pocket
as a result of this transaction.
It is intriguing that the plaintiff
alleged that it carried the risk of loss to the Discovery when it
incurred no expenses in the
form of rental and insurance for it. The
convoluted arrangements amongst the plaintiff, LRSA, LRER with or
without the CC, Lazarus
Car Hire and Europ-Assist alleged in this
litigation deserve the attention of LRSA whose voice has been
absent.
For
now the non-disclosure simply fortifies the finding of bad faith
against the plaintiff. Accordingly the plaintiff’s claim
must
be dismissed for want of good faith on the part of the plaintiff.
[33]
Public policy is also a consideration when determining the
enforceability of firstly
the
plaintiff’s claim that the deceased had to insure the Discovery
or return it within 72 hours and secondly B2. In
Barkhuizen
v Napier
the majority considered the public policy implications of a time-bar
clause to hold that public policy must be assessed against
the values
underlying the Constitution,
[19]
including:
‘
the
values of human dignity, the achievement of equality and the
advancement of human rights and freedoms, and the rule of
law.
’
[20]
(footnotes omitted)
Public
policy is inseparable from:
‘
[n]otions
of fairness, justice and equity, and reasonableness … Public
policy takes into account the necessity to do simple
justice between
individuals. Public policy is informed by the concept of
ubuntu
.
’
[21]
(footnotes omitted)
The
holding in
Barkhuizen
v Napier
that it is ‘inconceivable’ that a court would find
against a party if factors beyond its control
caused
the non-compliance
[22]
applies
to the plaintiff’s claim that the deceased had to insure the
Discovery or return it within 72 hours; it follows that
for public
policy considerations these obligations are unenforceable and
therefor invalid.
[34]
Regarding B2, it would also be unfair if there is evidence that the
party proposing it did not draw its clauses to the attention
of the
other party.
[23]
To
enforce an unfair or unjust clause would be contrary to public
policy.
[24]
Factors that go to
considering public policy include the unequal bargaining power
of the contracting parties
[25]
and that many people conclude contracts without any bargaining power
and without understanding what they are agreeing to.
[26]
[35]
In
Barkhuizen v Napier
the court was similarly burdened as in this case with a standard term
insurance contract. Sachs J described it thus in his minority
opinion:
‘
A
multitude of provisions appear in the following 22 pages, dealing
with terms covering such diverse themes
[27]
.
. .More than 20 pages of small print in single space follow, covering
a vast range of topics, much of it relating to matters.
. .that
could have no bearing on the relationship between the applicant
and the insurer
[28]
. . . It
was in fact a prolix, dense and hard to read example of a
standard-form contract, sometimes referred to as a contract of
adhesion, and copyrighted to boot
[29]
.
. .It contains endless provisions in a font sufficiently small to
reduce the costs of the paper used while simultaneously discouraging
any reasonable person from ploughing through it.
[30]
[36]
After critiquing the pros and cons of standard term contracts Sachs J
opined that:
‘
A
strong case can be made out for the proposition that clauses in a
standard-form contract that are unreasonable, oppressive
or unconscionable
are in general inconsistent with the values of
an open and democratic society that promotes human dignity, equality
and freedom.’
[31]
[37]
He distinguished
Barkhuizen
v Napier
from
other standard term contract cases in which both parties were aware
of the challenged clause at the time of contracting, but
pitched the
challenge against its extortionate character. In
Barkhuizen
v Napier
Mr Barkhuizen had not signed the clause, which was ‘buried in a
voluminous add-on document.’
[32]
[38]
Sachs J posed several questions in order to define the ambit of the
application of public policy, including:
‘
Does
it countenance a person being bound by onerous terms even though
they were unilaterally attached to the actual bargain
made? To what
extent does public policy in an open and democratic society require
that the service provider who authored such provisions
show that
these terms were specifically drawn to the consumer's attention?. .
.And what weight does public policy attach to the
reality that the
person negatively affected cannot in the circumstances reasonably be
expected to have understood the provision
to constitute an obligation
actually undertaken by him or her under the contract?
’
[33]
His
researched response to these questions led him to find in that case
that the enforceability of the impugned clause:
‘
.
. .
is open to challenge because on its
face it:
. . .
·
lies buried obscurely in the small print of
an exceptionally long, dense and structurally inelegant certificate
of insurance apparently
sent on to the insured after negotiations had
been completed;
·
is
not highlighted in the text so as visually, and in keeping with
internationally accepted standards of consumer protection, to
bring
the consequences of non-compliance to the attention of the insured at
the time the contract was entered into. . . .
’
[34]
[39] The majority found
on the facts that the agreement was binding as:
‘
there
was no evidence that the contract had not been freely concluded
between parties in equal bargaining positions or that the
clause was
not drawn to the applicant's attention.
’
[35]
Furthermore,
the 90-day time-limitation clause was not against public policy,
especially as the insured did not offer any reasons
as to why he
could not comply with it.
[40]
Unusual as it is for disputes of fact to arise at appellate level,
the majority decision is premised on the insured being aware
of the
condition whereas Sachs J’s findings above suggest otherwise.
The differences stem from their respective approaches
to the facts
rather than the facts themselves. As the Supreme Court of Appeal
recalls the debate between Davis J and Wallis J,
pactum
sunt servanda
tends to split opinions along ideological and philosophical lines
[36]
or more simplistically ‘personal preference[s]’.
[37]
Similarly,
notions of fairness in contracts ‘remains a slippery concept’,
as Jajbhay J and Lamont J demonstrated by
deciding differently on
basically the same facts.
[38]
The recent journey of
Paulsen
and another v Slip Knot Investments 777 (Pty) Ltd
concerning
an agreement to suspend the
in
duplum
rule, started as a decision of a single judge in the High Court,
proceeding to a full court, then onwards to yield a narrow majority
decision in the Supreme Court of Appeal until finally resulting in
three decisions of the Constitutional Court.
[39]
Given that the drafters of contracts often represent powerful
interests as the providers of credit, goods and services, balancing
the sanctity of contracts against transformative constitutional
values will remain an on-going tension as the following extract
rekindles:
‘
We
need to look at South Africa's socio-economic realities. A large
percentage of the providers of credit are large, established
and
well-resourced corporates. On the other hand, although there may be
what the dissenting judgment refers to as 'stout-boned'
credit
consumers, it would be ignoring our country's economic reality to
suggest that there is any comparison between these
corporates
and most credit consumers. To many credit consumers, who fall on the
wrong side of this country's vast capital disparities,
astronomical
interest may mean the difference between economic survival and
complete financial ruin. While in some cases creditors
may lose money
to inflation during litigation, this is very unlikely to have the
same catastrophic effect on the creditor compared
to what the
accumulation of runaway interest will have on the debtor.
[40]
(Footnote
omitted)
[41] Although Sachs J was
in the minority in
Barkhuizen v Napier
, and the majority
disagreed with his conclusions, the latter nevertheless shared many
of his concerns about:
‘
.
. .standard-form contracts, actual and implied consensus, public
policy, the significance of small print in written contracts,
and the
power imbalance between insurers supported by legal expertise and
people without expertise.’
[41]
And
further:
‘
Pacta
sunt servanda
is
a profoundly moral principle, on which the coherence of any society
relies. It is also a universally recognised legal principle.
But the
general rule that agreements must be honoured cannot apply to immoral
agreements that violate public policy. As indicated
above,
courts have recognised this and our Constitution reinforces it.
Furthermore, the application of
pacta
sunt servanda
often raises the question whether a purported agreement or pact is
indeed a real one, in other words whether true consensus was
reached.
Therefore the relevance of power imbalances between contracting
parties and the question whether true consensus could
for that matter
ever be reached, have often been emphasised.
’
[42]
In
short, the morality of the maxim
pacta
sunt servanda
is binary: moral agreements are binding; immoral agreements are not.
Agreements are immoral if they are against public policy,
unfair, in
bad faith or incapable of eliciting genuine consensus. That the maxim
has never been absolute is now well established.
[43]
How
it will be balanced against other rights and values remains an
on-going challenge.
[42]
Against this jurisprudential backdrop the facts of this case pose the
question: Can the validity of B2 be tested under the
common law for
consistency with public policy on the grounds of its format and
style, content, clarity and comprehensibility, and
its functionality
in terms of informing its readers of the rights, obligations and
remedies of those it implicates? Mr Murton’s
evidence
typifies the conundrum about standard term contracts generally. B2
was impractical to decipher without costs and inconvenience
to those
who had to read and understand it. B2 is offensive as it impairs the
dignity of the deceased and all those who have to
work with it.
Proving consensus as a pre-requisite for a valid agreement would be a
hard row to hoe if
prima facie,
as in the case of B2, it appears from its very form and contents that
the class of persons party to it would not have read and
understood
it, that it was difficult to read, that it might not have been
explained because logistically it was not possible to
do so
cost-effectively and conveniently, and that it was manifestly beyond
the comprehension of the persons involved. Applying
Barkhuizen
v Napier
to the facts here I find that
B2 is against public policy and therefore invalid. The public policy
concerns discussed in that case
now find expression in the CPA.
Enforcing B2 under the
CPA
[43] After the
plaintiff’s case the court invited the parties to consider the
implications of the CPA to B2. When the matter
resumed Ms
Smart
submitted the CPA did not apply to B2 because the definitions of
‘transaction’, ‘service’ and ‘consideration’
in the CPA precluded it. Mr
Macintosh
for the defendant
submitted that B2 failed to comply with both the common law and the
CPA.
[44]
In so far as my findings that B2 and the plaintiff’s claim that
the deceased had to insure the Discovery or return it
within 72 hours
are invalid under the common law are unsustainable, they must still
be tested against the CPA. It is no bar to
a court raising
mero
motu
questions about the application of
the CPA or any other matter that it is in the interest of justice to
do. Whenever a judge sees
an issue that has escaped the attention of
the parties but which could influence the decision, the practice is
to afford the parties
an opportunity to respond to the new issue. If
the issue raised turns out to be irrelevant that would be the end of
the matter.
[45]
If the CPA applies to B2, s 4(2) of the Act behoves the court to
develop the common law as necessary to improve the realisation
and
enjoyment of consumer rights generally and in particular for poor,
isolated and vulnerable people,
[44]
in order to redress for and prevent the impact of discrimination.
Discrimination and socio-economic rights, of which consumer rights
are a part, are constitutional matters. So too is compliance with
international obligations
[45]
and regard for foreign and international law when interpreting the
Bill of Rights.
[46]
The CPA
seeks ‘to give effect to internationally recognised customer
rights and ‘to the international law obligations
of the
Republic.’
[47]
Furthermore the court and parties ‘may consider appropriate
foreign and international law’ and ‘international
conventions, declarations or protocols relating to consumer
protection’ when interpreting the CPA.
[48]
High Courts have inherent power and the duty ‘to develop the
common law, taking into account the interests of justice.’
[49]
Furthermore, in constitutional matters the High Court may make any
order that is just and equitable.
[50]
Given these wide powers it would be remiss of a court not to exercise
them most carefully and only after inviting participation
of the
litigants.
[46]
Notwithstanding the existence of the CPA since 24 April 2009, little
jurisprudence has developed especially to define the scope
of its
application, an observation echoed in
MFC
(a division of Nedbank Ltd) v Botha
.
[51]
Given the uncertainty of its application to B2 the court was duty
bound to raise this question with the parties who were given
sufficient time to prepare. In the circumstances the submissions on
the CPA were properly elicited and received. The next issue
to
determine is the scheme of the CPA
[52]
and its possible relevance to B2.
[47]
The CPA is social legislation aimed at protecting vulnerable people.
By its very name it seeks to protect consumers. The CPA
would not
have been necessary if consumers did not need protection. The
preamble to the CPA begins by recognising the burden of
‘unacceptably
high levels of poverty, illiteracy and other forms of social and
economic inequality.’ It accepts the
need to innovate to fulfil
‘the rights of historically disadvantaged persons and to
promote their full participation as consumers; protect
the
interests of all consumers, ensure accessible, transparent and
efficient redress for consumers who are subjected to abuse or
exploitation in the marketplace; and to give effect to
internationally recognised customer rights.’ It commits to
promoting
‘an economic environment that supports and
strengthens a culture of consumer rights and responsibilities,
business innovation
and enhanced performance.’ The CPA seeks to
achieve these aims and aspirations by promoting and protecting the
economic interests
of consumers, improving access to the quality of
information to enable them to make informed choices, to protect their
wellbeing
and safety, and to develop effective means of redress for
them.
[53]
[48]
Emphasising the social policy aims of the CPA,
[54]
s 3 includes ‘promoting fair business practices’,
protecting consumers from ‘unconscionable, unfair,
unreasonable,
unjust or otherwise improper trade practices’ and
‘deceptive, misleading, unfair or fraudulent conduct’.
[55]
Within an over-arching legal framework aimed at achieving and
maintaining a ‘fair, accessible, efficient, sustainable and
responsible’ consumer market ‘for the benefit of
consumers generally’,
[56]
the CPA targets consumers especially from low income, isolated
communities, and vulnerable persons including those who struggle
to
read and understand agreements and other materials.
[57]
[49]
For its part the court must not only promote the spirit and purpose
of the CPA but also ‘make appropriate orders to give
practical
effect to the consumer’s right of access to redress’.
[58]
An appropriate order is not limited to ‘any order
provided for’ in the CPA but also ‘any innovative order
that better advances, protects, promotes and assures the realisation
by consumers of their rights’ in terms of the CPA.
[59]
However,
an innovative order ‘must be made within the constraints of the
legislation and cannot afford consumers more rights
than those
specifically provided to them’ for example by extending a
time-bar clause in an agreement.
[60]
[50]
As for the interpretation of the CPA, if any provision in the CPA can
reasonably give rise to more than one meaning the court
‘must
prefer the meaning that best promotes the spirit and purposes’
of the CPA and one that ‘will best improve
the realisation and
enjoyment of consumer rights generally, and in particular by persons
contemplated in s 3(1)(b)’, that
is those who are poor,
isolated and vulnerable. If an inconsistency arises between
provisions of the CPA (excluding Chapter 5)
and any other statute
(excluding
Public Finance Management Act, 1999
, or the Public Service
Act, 1994) the provisions of both Acts apply concurrently, to the
extent that it is possible to apply and
comply with one of the
inconsistent provisions without contravening the second. If this is
not possible, then ‘the provision
that extends the greater
protection to a consumer prevails over the alternative
provision’.
[61]
Significantly nothing precludes a consumer from exercising any rights
afforded in terms of the common law.
[62]
[51] Against this
backdrop of aims, aspirations, policies and protections I turn to
consider the submission for the plaintiff that
the CPA does not apply
to B2. The plaintiff contends that the provision of a courtesy car is
not a transaction because no consideration
was given or received. It
also disputed that the deceased was a ‘consumer’ as
defined. Section 5 of the CPA must be
the starting point of my
analysis followed by the relevant definitions in s 1.
[52]
Relevant sub-sections of s 5(1) provide that the CPA applies to:
‘
(
c)
goods or services that are supplied or performed in terms of a
transaction to which this Act applies,. . .
(d)
goods that are supplied in terms of a transaction that is exempt from
the application of this Act, but only to the extent provided
for in
subsection (5).
’
Those
parts of the definition of ‘consumer’
relevant
to my analysis include:
‘
(a)
a person to whom those particular goods or services are marketed in
the ordinary course of the supplier’s business;
(b) a
person who has entered into a transaction with a supplier in the
ordinary course of the supplier’s business, unless
the
transaction is exempt from the application of this Act
.
. . .’
[53] Although the
deceased’s signature appears above the word ‘consumer’
in B2 it does not necessarily follow
that he falls within the
statutory definition. He would if B2 is a transaction.
[54] What then is a
‘transaction’? It means:
‘
(
a)
in respect of a person acting in the ordinary course of business—
(i) an agreement between
or among that person and one or more other persons for the supply or
potential supply of any goods or services
in exchange for
consideration; or. . .
(iii)
the performance by, or at the direction of, that person of any
services for or at the direction of a consumer for consideration
.’
[55]
B2 is purportedly an agreement between two persons for the supply of
a courtesy car. Is that a supply of goods or services?
Was it in
exchange for consideration? To deconstruct ‘transaction’
further at least five more words must be defined.
‘
[S]upply’
when used as a verb:
‘
(b
)
in relation to services, means to sell
the services, or to perform or cause them to be performed or
provided, or to grant access
to any premises, event, activity or
facility in the ordinary course of business for consideration.’
‘
[G]oods’
includes –
(b)
any tangible object. . . .
’
‘
[S]ervice’
includes, but is not limited to—
(a)
any work or undertaking performed by one
person for the direct or indirect benefit of another;
…
(d)
the transportation of an individual or any goods;
(e)
the provision of—
…
(v)
access to or use of. . .property in terms of a rental.’
‘
[R]ental’
means:
‘
an
agreement for consideration in the ordinary course of business, in
terms of which temporary possession of. . .property is delivered.
.
.to the consumer, or the right to use. . .property is granted. . .but
does not include a lease within the meaning of the
National Credit
Act.
’
‘
[C]onsideration
’
is defined broadly to mean:
‘
anything
of value given and accepted in exchange for goods or services,
including—
(a)
money, property, a cheque or other
negotiable instrument, a token, a ticket, electronic credit, credit,
debit or electronic chip
or similar object;
(b)
. . .
(c)
. . .
(d) any other thing,
undertaking, promise, agreement or assurance,
irrespective
of its apparent or intrinsic value. . . .
’
[56] B2 falls within the
definitions of ‘supply’, ‘service’
and ‘goods’ because,
on the plaintiff’s evidence,
B2 obliged the plaintiff to perform a benefit or provide a facility
for the deceased. Section
(e)(v) of the definition of ‘service’
could also apply if the deceased had access to the Discovery in terms
of a rental.
[57]
Providing a courtesy car was a supply of goods and services in
exchange for a consideration albeit that such consideration
was not
money payable by the deceased. The ‘consideration’
certainly fell within the breadth of ‘any other thing,
undertaking, promise, agreement or assurance’ in sub-sec (d) of
that definition.
[63]
Therefore
the sub-sections of the definition of ‘transaction’ cited
above apply to B2. As the recipient of goods and
services and as a
person who entered into a transaction in the ordinary course of
business, the deceased was a consumer.
[64]
[58]
The CPA applies to every transaction within the Republic unless it is
exempted.
[65]
One of the
exemptions is from the application of the National Credit Act 34 of
2005 (NCA). B2 is not a credit agreement.
[66]
Accordingly, I find that B2 is a ‘consumer agreement between a
supplier and a consumer [that] is in writing,’ and that
the CPA
‘applies irrespective of whether or not the consumer signs the
agreement.’
[67]
[59]
Even if it is inferred that the deceased had by his signature
consented to its contents, B2 still had to comply with the CPA.
The
threshold to qualify for protection is a mere ‘arrangement or
understanding’ because the CPA protects consumers
who are party
to ‘agreements’ and ‘consumer agreements’
defined as follows:
An ‘[A]greement’
means:
‘
an
arrangement or understanding between or among two or more parties
that purports to establish a relationship in law between or
among
them
.’
A ‘consumer
agreement’ means:
‘
an
agreement between a supplier and a consumer other than a franchise
agreement
.’
[60]
The CPA directs that it must be interpreted in the manner that gives
effect to its purpose and policy in s 3 summarised above.
[68]
Section 4 prescribes additional directives to realise consumer
rights. Specifically for the interpretation of standard form
contracts
sub-sec (4) provides:
‘
To
the extent consistent with advancing the purposes and policies of
this Act, the Tribunal or court must interpret any standard
form,
contract or other document prepared or published by or on behalf of a
supplier, or required by this Act to be produced by
a supplier, to
the benefit of the consumer—
(a)…
(b) so that any
restriction, limitation, exclusion or deprivation of a consumer’s
legal rights set out in such a document
or notice is limited to the
extent that a reasonable person would ordinarily contemplate or
expect, having regard to—
(i) the content of the
document;
(ii) the manner and form
in which the document was prepared and presented; and
(iii)
the circumstances of the transaction or agreement.
’
[61]
The right at stake in B2 is the right to information in plain and
understandable language provided in s 22 of the CPA.
B2
is not ‘in plain language’ because Mr Murton was unable
to decipher, understand and explain its contents, despite
it being
his job to do so. Consequently,
‘
it
is reasonable to conclude that an ordinary consumer of the class of
persons for whom [B2] is intended, with average literacy
skills and
minimal experience as a consumer of the relevant goods or services,
could [not] be expected to understand the content,
significance and
import [of B2]…
without undue effort,
having regard to—
a.
the context, comprehensiveness and
consistency of [B2];
b.
the organisation, form and style of [B2];
c.
the vocabulary, usage and sentence
structure of [B2]; and
d.
the
[lack of] use of any illustrations, examples, headings or other aids
to reading and understanding.’
[69]
[62]
In terms of s 22(1)(b) the plaintiff as the ‘producer’ of
B2 was required to comply with the requirement that it
be ‘in
plain language, if no form has been prescribed.’
[70]
B2 fails to meet the definition of ‘clearly’ in that the
quality of its text does not satisfy the requirements of s
22. It
follows that when the plaintiff failed to ‘satisfy the
requirements of section 22’ it also failed to provide
the
deceased with an agreement in terms of s 50(2)(b)(i).’
[63]
Consequently B2 itself deprives a consumer of his
legal rights in s 22. Accordingly s 4(4) requires B2 to be so
interpreted and
applied as to limit such deprivation reasonably.
However, the nature of the deprivation is unlawful and defies the
purpose and
policy of the CPA in breach of s 4(5) below. The only way
to limit B2 is to reject it altogether, as I now do.
[64] Other rights that
fall to be scrutinised through the prism of s 4(4)(a) are the right
to fair, just and reasonable terms and
conditions to be found in ss
48 to 52 and the protection against unconscionable conduct in s 40.
Section 4(4)(a) provides that
a court must interpret a standard form
agreement:
‘
so
that any ambiguity that allows for more than one reasonable
interpretation of a part of such a document is resolved to the
benefit
of the consumer.’
Section
4(5) provides:
‘
In
any dealings with a consumer in the ordinary course of business, a
person must not—
(a)
engage in any conduct contrary to, or calculated to frustrate or
defeat the purposes and policy of, this Act;
(b)
engage in any conduct that is unconscionable, misleading or
deceptive, or that is reasonably likely to mislead or deceive; or
(c)
make any representation about a supplier or any goods or services, or
a related matter, unless the person has reasonable grounds
for
believing that the representation is true.’
[65]
As stated above deciphering B2 in order to interpret its contents and
assess whether it complies with the CPA is possible only
at great
costs and inconvenience to its readers. The most important condition
relating to the ODI and return of the Discovery upon
which the
plaintiff relied is not in B2. Furthermore, B2 was incomplete without
an ‘overleaf’. The other party to it
was misrepresented
to be a close corporation, the import of which became significant in
this litigation in determining standing.
Non-disclosure of the
insurance arrangements pertaining to the Discovery was material.
Cumulatively, these factors attract a finding
that the any agreement,
arrangement or understanding of or arising from B2 violated s 4(5)(a)
and (b); consequently an interpretation
of that favours the deceased
applies in terms of s 4(4)(a).
[66]
Regarding the unconscionable conduct in s 4(5)(b), the plaintiff
relied on B2 to claim that the deceased had an obligation
to insure
the Discovery after 72 hours or to return it before that period
expired. Claiming that such obligations existed when
they were not
included in B2 and the deceased is not able to accept or refute such
a claim and then enforcing them when the deceased
was physically
unable
[71]
to fulfil them are
unfair, unreasonable and unjust as expatiated as follows in s 48(2):
1.
They are excessively one-sided in favour of
persons other than the deceased.
2.
The terms of the transaction or agreement
are so adverse to the deceased as to be inequitable.
3.
The transaction or agreement was subject to
a term or condition unconscionable.
[67]
Therefore they are inconsistent with the prohibition in s 48(1)
against entering into or administering
a
transaction for the supply of the Discovery in a manner that was
unfair, unreasonable or unjust; by requiring the deceased to
assume
obligations on such terms; and by imposing them as a condition of
entering into the transaction. By definition such conduct
amounts to
unconscionable conduct prohibited in s 40(1) because:
1.
it is
‘
unfair
tactics or any other similar conduct, in connection with any—
(a)
…
(b)
supply of goods or services to a consumer;
(c)
negotiation, conclusion, execution or
enforcement of an agreement to supply any goods or services to a
consumer;
(d)
demand for, or collection of, payment for
goods or services by a consumer; or
(e)
recovery of goods from a consumer.’
2.
the conduct meets the definition of
‘unconscionable’,
which means
not only conduct characterised in s 40 but also conduct that
is:
‘
(b)
otherwise
unethical or improper to a degree that would shock the conscience of
a reasonable person.’
[72]
Remedies
[68]
Section 52 of the CPA gives the court wide powers to ensure fair and
just conduct if it finds that a transaction is ‘unconscionable,
unjust, unreasonable or unfair.’
These
powers would include making appropriate cost orders.
[69] The plaintiff’s
failure to establish its standing, its non-disclosure of relevant
facts, especially as the deceased was
not available to testify, its
amendment of the agreement in an attempt to cure defects in its
version, its persistence in this
claim especially after the evidence
was concluded, its reliance on an agreement that conflicts with
specific provisions of the
CPA and could attract a punitive order for
costs. Section 52(3) authorises:
‘
.
. .[an] order the court considers just and reasonable in the
circumstances, including, but not limited to, an order—
(i)
. . .
(ii)
to compensate the consumer for losses or expenses relating to—
(aa) .
. .
(bb)
the proceedings of the court. . . .’
However, the defendant
did not ask for a special order for costs and the plaintiff has not
had an opportunity to address the court
in this regard.
Order
[70] The claim is
dismissed with costs.
____________________
D.
Pillay
APPEARANCES
Counsel
for the Applicant: C Smart
Instructed
by: Orelowitz Incorporated
Tel:
(011) 887 4713
Ref:
S5221
Counsel
for the Defendant: K McIntosh
Instructed
by: Pat Naidoo Attorneys
Tel:
(031) 301 1793
Ref: PN/NN/R134
Date of Hearing: 05
December 2016, 29 May 2017
Date of Judgment: 4 July
2017
[1]
Hon.
Gerald Lebovits ‘Legal Writing Myths’
Michigan
Bar Journal
February
2017 51-2.
[2]
Hattingh
and others v Juta
2013
(3) SA 275
(CC) para 33 fn 49.
[3]
Joseph
M Williams ‘Style- Ten Lessons in Clarity and Grace’ 8
th
edition Pearson-Longman 179.
[4]
Page 54-56 of the transcript.
[5]
Page 46 of the transcript.
[6]
http://www.cmh.co.za
(accessed 16 June 2017).
[7]
Page 39-40 of the transcript.
[8]
Page 31-42 of the transcript.
[9]
Page 51 of the transcript.
[10]
Page 51 of the transcript.
[11]
Wessels
The
Law of Contract in South Africa
2ed
Vol I para 43.
[12]
Joseph
M Williams ‘Style- Ten Lessons in Clarity and Grace’ 8
th
edition Pearson-Longman 178.
[13]
Barkhuizen
v Napier
2007
(5) SA 323 (CC).
[14]
Barkhuizen
v Napier
para
75.
[15]
Barkhuizen
v Napier
para
73.
[16]
Barkhuizen
v Napier
paras
79-82.
[17]
Barkhuizen
v Napier
para
80.
[18]
Barkhuizen
v Napier
para
82.
[19]
Barkhuizen
v Napier
para
29.
[20]
Barkhuizen
v Napier
para
28.
[21]
Barkhuizen
v Napier
para
51.
[22]
Barkhuizen
v Napier
para
73.
[23]
Barkhuizen
v Napier
para
66.
[24]
Barkhuizen
v Napier
paras
67, 73.
[25]
Barkhuizen
v Napier
para
59.
[26]
Barkhuizen
v Napier
para
65.
[27]
Barkhuizen
v Napier
para
131.
[28]
Barkhuizen
v Napier
para
132.
[29]
Barkhuizen
v Napier
para
134.
[30]
Barkhuizen
v Napier
para
147.
[31]
Barkhuizen
v Napier
para
140.
[32]
Barkhuizen
v Napier
para
147.
[33]
Barkhuizen
v Napier
para
150.
[34]
Barkhuizen
v Napier
para
183.
[35]
Barkhuizen
v Napier
para
87.
[36]
Bredenkamp
and others v Standard Bank of South Africa Ltd
2010
(4) SA 468
(SCA) para 36.
[37]
Pa
ulsen
and another v Slip Knot Investments 777 (Pty) Ltd
2015
(3) SA 479
(CC) para 88.
[38]
Bredenkamp
and others v Standard Bank of South Africa Ltd
2010
(4) SA 468
(SCA) para 54.
[39]
Pa
ulsen
and another v Slip Knot Investments 777 (Pty) Ltd
2015
(3) SA 479
(CC) para 23
[40]
Pa
ulsen
and another v Slip Knot Investments 777 (Pty) Ltd
2015
(3) SA 479
(CC) para 66.
[41]
Barkhuizen
v Napier
para
87.
[42]
Barkhuizen
v Napier
para
87. In
Bredenkamp
and others v Standard Bank of South Africa Ltd
2010
(4) SA 468
(SCA) paras 50, 51, 60 the court applied
Barkhuizen
v Napier
to
confirm
the
right of a banker to close a client's account. Finding that
Barkhuizen
v Napier:
‘
did
not hold that the enforcement of valid contractual terms had to be
fair and reasonable even if no public policy considerations
found in
the Constitution, or elsewhere, were implicated, nor were there any
indications in the minority judgments of an overarching
requirement
of fairness’
it resolved that closing
the account was not against public policy because the client had
failed to prove that considerations
of fairness imposed on the bank
a duty not to do so.
[43]
Pa
ulsen
and another v Slip Knot Investments 777 (Pty) Ltd
2015
(3) SA 479
(CC) para 71.
[44]
S 4(2)(a) read with 3(1)(b) of the CPA.
[45]
S
231-4 of the Constitution of the Republic of South Africa, 1996.
[46]
S
39 of the Constitution.
[47]
Preamble
to CPA.
[48]
S
2(2)(a) and (b) of the CPA.
[49]
S
173 of the Constitution.
[50]
S
172(1)(b) of the Constitution.
[51]
MFC
(A division of Nedbank Ltd) v Botha
(6981/13)
[2013] ZAWCHC 107
(15 August 2013) para 10.
[52]
For
an overview see Elizabeth de Stadler ‘Consumer Law Unlocked’
https://books.google.co.za/books.
[53]
Preamble
to the CPA.
[54]
See
Standard
Bank of South Africa Ltd
v
Dlamini
2013 (1) SA 219
(KZD) paraS 77-78.
[55]
S 3(1)(c) and (d) of the CPA.
[56]
S 3(1)(a) of the CPA.
[57]
S 3(1)(b) of the CPA.
[58]
S
4(2)(b)
of the CPA.
[59]
S
4(2)(b)
(ii)(bb) of the CPA
[60]
Vousvoukis
v Queen Ace CC trading as Ace Motors
[2016]
JOL 35677
(ECG) para 110.
[61]
S 2(9) of the CPA.
[62]
S 2(10) of the CPA.
[63]
Contrast
Vousvoukis
v Queen Ace CC trading as Ace Motors
[2016]
JOL 35677
(ECG) paras 80 –
81,
102 in which the court held that an agreement for the supply of
a second engine free of charge ‘could not constitute
a
"transaction" as defined in the Act inasmuch as the
"supply" of the second engine to plaintiff was not
"in
exchange for consideration".’ The learned judge came to
this conclusion without referring to the definition
of
‘consideration’ in the CPA in particular sub-sec (d)
possibly because it would have made no difference to the
outcome.
[64]
In contrast in
Bondev
Midrand (Pty) Ltd v Ndlangamandal NO
(38331/2015)
[2016] ZAGPPHC 939 (11 November 2016) paras 42-44 the Court
concluded that a pre-emptive clause in an agreement
of sale and
for
the re-transfer of
property
if the purchaser failed to develop it were not
unfair,
unreasonable or unjust, nor was the agreement excessively one-sided
and
unconscionable
in terms of s 40 of the CPA and that
the
re-transfer of property was not a ‘transaction’.
[65]
S 5(a) of the CPA.
[66]
For
commentary on the interface between the CPA and the see Elizabeth de
Stadler ‘Consumer Law Unlocked’
https://books.google.co.za/books.
14-15.
[67]
S
50(2)(a)
of the CPA.
[68]
S 2 of the CPA.
[69]
S
22(2) of the CPA.
[70]
Enquiries
reveal that the Commission has not published the guidelines
anticipated as follows in
S22:
(3)
The Commission may publish guidelines for methods of assessing
whether a notice, document or visual representation satisfies
the
requirements of subsection (1)
(b)
.
(4)
Guidelines published in terms of subsection (3) may be published for
public comment.’
[71]
I
have considered s 40(2) but conclude in passing that
prima
facie
it applies to a disability to understand an agreement and not to a
disability resulting in impossibility of performance.
[72]
For
a discussion on the interpretation and application of
‘unconscionable’ and ‘unconscionable conduct’
see G
Glover ‘Section 40 of the CPA’
TSAR
689.