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[2016] ZAGPPHC 122
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H & H Gear Repair Centre v Boating International CC (17501/2014) [2016] ZAGPPHC 122 (24 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case Number: 17501/2014
24/3/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
H & H GEAR REPAIR
CENTRE PLAINTIFF
And
BOATING INTERNATIONAL
CC DEFENDANT
JUDGMENT
Fabricius J,
1.
Pleadings
:
Plaintiff’s case is
founded on contract. Its case, as per the Particulars of Claim, is
that it entered into an oral agreement
with Defendant on 15 October
2013, whilst being presented by Hanno Smit (Junior). This agreement
was entered into at the Defendant’s
premises. It was alleged
that the express, alternatively tacit terms of the agreement were
that Plaintiff deposited a boat and
trailer with the Defendant for
the repair and/or service of the boat’s engines and the fish
finder. The boat and trailer
were to be kept by the Defendant pending
the service and repair. It was pleaded that Defendant was unable to
return the boat and
trailer to the Plaintiff and accordingly breached
this agreement, with the result that Plaintiff suffered damages.
Plaintiff’s
alternative claim was based on delict, but I was
told by Plaintiff’s Counsel at the argument stage that this
would not be
relied upon. Defendant’s plea was that its
representatives completed in manuscript a pre-printed job card of
which a copy
was attached. Plaintiff’s representative Mr Smit
Junior signed this job card and this was evident on the bottom part
of this
card immediately below printed “Terms and Conditions”.
It was pleaded whilst Defendant would repair the said boat, it
was
not liable for any loss or damage which the Plaintiff may suffer of
whatsoever nature, wheresoever and howsoever caused, in
terms of the
conditions which appeared on the said job card. Defendant also
pleaded that the boat was stolen. In Plaintiff’s
replication it
was denied that Hanno Smit Junior had the authority to bind the
Plaintiff to the terms that appear on the job card.
It was pleaded
that Smit Junior was unaware of the conditions and that Defendant
failed to disclose them. Accordingly it was not
bound by those terms.
In Defendant’s rejoinder, it was pleaded that prior to the
signature on the job card by Smit Junior,
five previous similar job
cards had been signed either by Smit Junior or his father Smit
Senior. All of these job cards contained
the same terms and
conditions. Accordingly, Plaintiff’s representatives were aware
of these conditions or ought to have been
aware thereof. It was also
pleaded in the rejoinder that Plaintiff represented to Defendant that
Smit Junior possessed the requisite
authority. Accordingly, Plaintiff
was estopped from relying on such lack of authority.
2.
The job card:
Apart from setting out
the details of the items that had to be repaired, which are not
relevant to the present issue, the following
appears at the bottom of
the job card: “
Terms and Conditions
”. These words
are legible and anyone signing this job card at the place beneath
such terms that appear in very small print,
would notice that “Terms
and Conditions” are referred to herein. The actual terms are in
really small print, to such
an extent that they are difficult to
read, are the following:
“
Boating
International is not liable for any loss or damage I may suffer of
whatsoever nature, wheresoever and howsoever caused,
including any
loss or damage caused by the negligence or recklessness of Boating
International’s servants, employees, agents
or any other
persons. Furthermore, all goods, including but not limited to
motors, boats and trailers are transported and stored
at my own
risk.
I
hereby authorise Boating International to carry out the work listed
above at my expense and to replace and supply such parts
and
materials, including oils and petrol, which may be necessary to
complete said work”. The remainder of the terms are
not
relevant hereto. Beneath the terms the words, clearly legible,
“Customer’s Signature” appear, and the job
card
was signed by Smit Junior as I have said. Beneath the words
“Customer’s Signature” appear the words (“Duly
Authorised”), also clearly visible.
3.
The evidence: Smit
Senior:
He testified that he was
the sole member of Plaintiff and that on five prior occasions he or
his son had taken the particular boat
to Defendant for certain
repairs. The practice was that after a job card had been completed
and signed either by himself or by
his son, the Defendant would phone
him about two days thereafter and inform him of the cost of repairs
which he would then approve.
His son had no authority to enter into
any contract on behalf of Plaintiff. The reason for filling in the
job card was to indicate
which items had been left on the boat. He
was not told of any conditions relating to an indemnity, and if he
had known that Defendant
had left his boat on the pavement, he would
not have done business with Defendant. He was later told that the
boat had been stolen
apparently from the pavement right next to
Defendant’s property, but not from Defendant’s property.
When he signed
a job card on four previous occasions he could see
that there was print above his signature. He never read it and it was
also in
small print. He agreed that he had signed the previous job
cards without knowing what the small print contained. He could have
asked. He could, (whilst giving evidence), read that above the fine
print the words “Terms and Conditions” appeared.
He never
asked anybody about this, but did not know that it was of importance.
As a businessman he knew that such indemnity clauses
were in practice
and this was not surprising to him. He would in any event have had no
problem with such an indemnity clause, but
in the present instance
did have such problem, inasmuch as his boat was stolen from the
neighbours’ premises (as he had been
told). He never told
Defendant that it ought not to enter into any agreement with his son.
He also admitted that he had been recompensed
by his own insurance
company.
4.
Smit junior:
He signed the particular
job card that is in issue herein. He said that he had not been given
any authority by his father to enter
into a written agreement. He
also stated that the purpose of the job card was to indicate what
needed to be repaired and what items
had been left on the boat. He
was not made aware of any conditions. Whilst giving evidence he was
shown this exhibit and could
read words “Duly Authorised”
beneath his signature and also the words “Terms and Conditions”
that appeared
above the fine print. He also was aware of indemnity
clauses in the business world. When he signed he did not see the
words “Terms
and Conditions” but in any event paid no
attention thereto, and thought nothing of them. That was the case for
the Plaintiff.
Defendant asked for absolution from the instance with
reference to a number of decided cases and in particular
George
v Fairmead
1958 (2) SA 465
AD at 472
. In that case a hotel
register was signed, and this contained terms of the contract. The
guest had not bothered to read them. In
this context the Court asked
the most relevant question namely: “Has the first party –
the one who is trying to resile
– been to blame in the sense
that by his conduct he has led the other party, as a reasonable man,
to believe that he was
binding himself?” (at 471). At 472 A the
following appears: “When a man is asked to put his signature to
a document
he cannot fail to realise that he is called upon to
signify, by doing so, his consent to whatever words appear above his
signature”.
I was also referred to the wide terms of the
indemnity clause and the fact that on Plaintiff’s own version,
per the Particulars
of Claim, Smit Junior had been authorised to
represent Plaintiff. Plaintiff referred me to the relevant principles
relating to
a contract of deposit in
Amler’s Precedents
of Pleadings, 8
TH
Edition, L.
T. C. Harms at 165,
and sought to distinguish the principles
laid down in
Afrox Healthcare Bpk v Strydom
2002 (6) SA 21
(SCA)
, on the basis that a deposit contract was not the issue
in those proceedings. In reply Defendant’s Counsel referred me
to
the decision of
Mercurius Motors v Lopez
[2008] ZASCA 22
;
2008 (3) SA 572
SCA
, and submitted that it could be distinguished on a number
of material grounds. Plaintiff was not misled by anyone. The
indemnity
clause and the words “Terms and Conditions”
were not hidden away, and were clearly apparent above the customer’s
signature, although the actual terms were in small print. The words
“Duly Authorised” beneath the customer’s
signature
were also clearly visible. The relevant indemnity clause was also not
of a surprising nature to Plaintiff according to
the evidence of both
witnesses.
5.
Having regard to the test
for absolution from the instance and all relevant submissions, I
refused the application. Defendant thereafter
closed its case.
6.
Plaintiff’s claim
is based on contract and Plaintiff’s Counsel unequivocally
submitted this as well during the argument
stage. In that case it is
for Plaintiff to prove that no exemption clause was applicable to it.
See:
Christie’s,
The Law of Contract in South Africa, 6
th
Edition, at 191
.
7.
The Defendant’s
Counsel, to a large extent, relied on various
dicta
in the
Afrox decision
supra and in that context emphasized
that both witnesses had been aware of the general practice of service
suppliers contracting
on terms which contained indemnity clauses. It
was not unusual to them. The relevant words and conditions that I
have referred
to were also clearly visible to a signatory, and were
certainly not hidden away, or obscured or misleading in any manner.
Furthermore,
Brand JA said in
Afrox
that the general
principles that I have referred to, including that are contained in
George v Fairmead
supra, as a matter of principle
applied to all service providers and persons contracting with them.
Plaintiff’s Counsel submitted
that the normal principles
relating to indemnity clauses that contained in
George v
Fairmead
supra
, did not apply to contracts of
deposit. No authority was cited for this proposition and I am not
aware of any such decided cases.
It also seems quite clear from
Amler’s Precedents of Pleadings
supra at 166 that
the normal principles relating to exemption clauses applied to a
contract of
depositum
as well. I cannot imagine why they
should not so apply.
8.
Plaintiff’s Counsel
also heavily relied on the decision of
Mercurius Motors
supra
and the specific facts. The mere reading of this decision and the
facts pertaining thereto make it abundantly clear that there
is a
material and substantial difference between the facts of that case
and the evidence in these proceedings. There is no question
in these
proceedings that the particular exemption clause was inconspicuous
and barely legible with reference to conditions on
the reverse side
of the particular document. In my view the
Mercurius
decision was decided on the particular facts of the case, and is not
authority for the proposition that the normal principles relating
to
exemption clauses were overruled, varied or altered in the context of
a contract of deposit. There is also no question in these
proceedings
that the witnesses for Plaintiff were misled in any manner such as
the one contracting party in the
Mercurius
case.
9.
In my view therefore the
normal principles apply to the present proceedings, and accordingly I
find that Plaintiff was bound by
the relevant indemnity clause, that
it was not misled in any manner, that it had been aware of the
general practice of service
providers relying on indemnity clauses,
that the clause was not obscure or hidden away, that the words “Terms
and Conditions”
were clearly visible above the actual
conditions which were in small print, and which were immediately
above the depositor’s
signature and that immediately beneath
the signature were the words clearly visible “Duly Authorised”.
10.
In the result, the
following order is made:
Plaintiff’s
claim is dismissed with costs.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
Case number: 17501/14
Counsel for the
Plaintiff: Adv F. J. Erasmus
Instructed by: Cilliers &
Reynders Inc
Counsel for the
Defendant: Adv C. Acker
Instructed by: Grant Rae
Attorneys
Date of Hearing: 3 March
2016
Date of Judgment: 24
March 2016 at 10:00