About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1985
>>
[1985] ZASCA 111
|
|
Spindrifter(Pty) Ltd v Lester Donovan (Pty) Ltd. (151/84) [1985] ZASCA 111; [1986] 1 All SA 384 (A) (27 September 1985)
SPINDRIFTER (PTY) LTD
Appellant
and
LESTER DONOVAN (PTY) LTD
Respondent
Case No
: 151/84 mp
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION)
In the matter between:
SPINDRIFTER (PTY) LTD
Appellant
and
LESTER DONOVAN (PTY)
LTD
Respondent
CORAM:
JANSEN, HOEXTER, VAN HEERDEN, JJA GALGUT et NICHOLAS, AJJA
HEARD:
3 September 1985
DELIVERED
: 27 September 1985
JUDGMENT
HOEXTER, JA
2.
HOEXTER, JA
The appellant is a private company which carries on the
business of a clothing manufacturer at Woodstock, Cape Town. It is a one-man
business controlled by one Levison who is its managing director. The respondent
is a private company which carries on business at
Johannesburg as an organiser
of professional trade exhibitions. As part of its business the respondent
organises twice annually in
Cape Town a fashion trade fair ("FTP") whereat
businesses in the clothing trade may exhibit their products at stands allocated
to
them by the respondent. A summer FTF is held in February and a winter FTF
during or about July/August. For both these exhibitions
the contracts between
the respondent and exhibitors involve a standard form of agreement whose provi=
sions are printed on both sides
of a single sheet of paper.
Save for the date
of the particular exhibition the provisions of the contracts for the summer and
winter exhibitions
respectively
3.
respectively are couched in identical terms.
The present appeal relates to a standard form contract ("the form") printed
for use in connection with the Cape Town FTF organised
by the respondent for the
winter of the year 1981. The form constitutes an application to exhibit by an
intending exhibitor to the
respondent. I describe first the matter printed on
the face of the form. At the top of the page there are three prominent boxed
headings
in bold print which, from left to right, read as follows: "FTF FASHIONS
TRADE FAIR"; "24-27 JULY 1981 GOOD HOPE CENTRE TOWN R.S.A.";
and "APPLICATION TO
EXHIBIT". Beneath the headings aforesaid the form states "TO: FTF ORGANISERS"
and then the postal address of
the latter in the Transvaal is set forth. It is
common cause that this is a reference to the respondent. Below the printed
matter
described above the face of the form is divided into six boxed paragraphs
respectively numbered from 1 to 6. Beneath the sixth paragraph
the following
note occurs:-
"Note :
4.
"Note: When completed this order forms part of the Exhibitors (sic) contract
with the Organisers. Orders may be increased at the same
rates."
Below the note, and at the foot of the page, are four boxed spaces described
as being "For organisers use only", the fourth space
being headed "Signed as
accepted in Johannesburg and dated."
Paragraph 1 reads as follows:-
"1. I/We hereby contract for and
accept allocation of stand space at the Exhibition for the purpose of
exhibiting products as generally described below and undertake
to observe and be
bound by the General Conditions as printed overleaf and to pay a deposit equal
to 25% of all rentals as shown in
section 4 immediately upon receipt of invoice
together with total telephone payments and to pay the balance of all rentals and
other
monies due to the organisers on or before the 1st day of June 1981 without
deduction for any reason."
Paragraph 2 bears the heading "GENERAL DESCRIPTION OF EXHIBIT" with a blank
space for particulars. Paragraph 3
bears
5.
bears the heading "STAND REQUIREMENTS AND RENTALS" and
contains further printed matter with spaces to be filled in relative to the
number of stand units reserved by the exhibitor at a rental of Rl 000 per unit,
and the exhibitor's choice of stands in order of
preference. Paragraph 4 bears
the heading "DETAILS OF APPLICANT" and contains spaces wherein the name and
address of the applicant
are to be filled in. The concluding line of the fourth
paragraph reads as follows:-
"Signed At (Town) On(Date) "
Paragraphs 5 and 6 are respectively headed "CATALOGUE ADVERTISING" and
"FASHION THEATRE" and make provisions for the reservation of
such further
facilities as the exhibitor may desire.
On the other side of the form (to which side I shall refer as "the reverse
side") the "General Conditions"
referred
6.
referred to in paragraph 1 on the face of the
form are set forth. What appears on the face of the form is printed clearly and
may
be read with ease and comfort. The same cannot be said of the printing on
the reverse side of the form. The General Conditions are
contained in nineteen
separate paragraphs running in total to more than two thousand words. The
printed matter on the reverse side
is so compressed and is in print so fine that
it can be read only with extreme difficulty and by dint of concentrated effort
and
straining of the eye.
Clause 4 of the General Conditions provides,
inter alia,
that should
an exhibitor fail to mount an exhibit on the stand allotted to him he agrees to
pay a penalty of Rl 000 per stand unit
allocated to him. Clause 13 of the
General Conditions reads as follows:-
"13. In the event of the Exhibition not
taking place for any reason except the
wilful
7.
wilful wrongful act or ommission (sic) of the
Organisers this contract shall be terminated and the Exhibitor shall be entitled
to
a refund of any monies paid exceeding one half of the agreed cost of space.
If the venue has to be altered, the Exhibition held in
whole or in part in
another hall, postponed, restricted or if there is a failure of any of the
services of (sic) facilities usually
available to Exhibitors for any reason
whatsoever but an Exhibition is nevertheless held, the Organisers shall not be
liable for
any expenditure, damage, loss or other liability including
consequential damage, incurred by the Exhibitor. The varied Exhibition
so held
shall, for all purposes, be deemed to be the Exhibition to which this agreement
relates and the Exhibitor shall be bound
to make payment of the monies due under
this contract."
So much for the printed matter on the form. The respondent had an agent in
Cape Town, a Mrs Katz, who canvassed for applications from
intending exhibitors
at the summer and winter exhibitions in Cape Town. On the form described above
Mrs Katz required would-be exhibitors
to fill in the necessary particulars on
the face of the form and to affix their signatures in paragraph 6 thereof.
Mrs
8.
Mrs Katz thereafter submitted the forms to the respondent in
Johannesburg for consideration by it. If an application were approved
by the
respondent the latter's managing director would signify its acceptance by
signing the form in the appropriate space already
described. Mrs Katz was
employed by the respondent on a commission basis. Upon acceptance of an
application submitted to the respondent
by Mrs Katz the latter was paid a
commission calculated at R50 per stand unit hired by the exhibitor.
During February 1981 Levinson wished the appellant to exhibit on two stand
units at the winter FTF to be held in Cape Town on 24/27
July 1981. On 28
February 1981, and at the Good Hope Centre, Mrs Katz produced for signature by
Levinson the form in connection with
the winter FTF. On behalf of the appellant
Levinson signed his name as required in paragraph 4 on the face of the form. He
also inscribed
the name of the appellant company and its
address
9.
address in paragraph 4; and in paragraph 3 he filled in the
numerals "19" and "20" in the appropriate space to indicate that these
two stand
units were the appellant's first choice. Details of the applicable rental
(namely Rl 000 per unit) were filled in by Mrs
Katz. Mrs Katz also completed the
details required in paragraph 4 by filling in on the last line of that paragraph
the place of signature
("Cape Town") and the date ("28.02.81") thereof. The
spaces provided in paragraphs 1, 2, 5 and 6 on the face of the form were left
entirely blank. It will be recalled that paragraph 1, which contains an
undertaking by the would-be exhibitor to be bound by the
General Conditions on
the reverse side of the form, also provides a space wherein the name of the
applicant is to be set forth. Mrs
Katz sent the form, completed in the respects
indicated, to Johannesburg where on 3 March 1981 the appellant's application was
accepted
under the signature of the respondent's
managing
10.
managing director.
On 5 March 1981 the respondent sent the appellant an invoice reflecting as
due by the latter to the former payment of R500 being the
25% deposit in respect
of "Two stands at Fashion Trades Fair 24 - 27 July, 1981". On 21 April 1981 the
appellant further received
from the respon= dent an "Exhibitors Information
Manual" which announced the dates of the winter FTF as being 30 July to 1 August
1981. The last-mentioned dates were not convenient to the appellant. They
clashed with the dates of a business trip which Levinson
was to undertake to
Hong Kong. Levinson therefore at once sent to the respondent a telegram in the
following terms:-
"New dates do not suit this Company. Consider agreement cancelled."
In response thereto the respondent's administrative director, one Mrs
Donovan, sent a telegram to the appellant stating,
inter alia,
that the
applicant's application to exhibit
at
11.
at the FTF winter show was binding and that:-
"SLIGHT CHANGE OF DATE COVERED BY OUR PARAGRAPH 13 WHICH WAS READ AND
ACCEPTED BY SPINDRIFTER THEREFORE MUST ASK YOU TO HONOUR YOUR
OBLIGATION."
The winter FTF was held on the dates to which the appellant had objected and
the appellant did not exhibit thereat.
In July 1981 the respondent instituted an action against the appellant in the
Cape of Good Hope Provincial Division. The respondent
claimed payment of R4 000
being R2 000 in respect of stand rentals and a penalty of R2 000 in respect of
the appellant's failure
to exhibit. The appellant entered an appearance to
defend the action and in September 1981 the respondent made an application for
summary judgment against the appellant. The appellant resisted the application.
By consent between the parties the Court refused
summary judgment and ordered
the costs
of
12.
of the application to be costs in the cause. In March 1983
the matter proceeded to trial before MUNNIK, JP. At the beginning of the
trial
counsel for the appellant sought a postponement on the grounds that the
respondent had failed to make full discovery. Having
heard argument thereon the
learned Judge-President refused to grant a postponement and reserved his
decision in regard to the wasted
costs occasioned by the application. The trial
then proceeded, the only witnesses called being Mrs Donovan on behalf of the
respondent
and Levinson for the appellant. At the end of the trial the Court
below reserved judgment until February 1984 when judgment was given
in favour of
the respondent with costs. The costs awarded included the costs of the summary
judgment application and the wasted costs
of the abortive application for
postponement at the beginning of the trial. With leave of this Court the
appellant appeals against
the whole of the judgment of the
trial
13.
trial Court.
The plea filed in answer to the respondent's particulars of claim raised a
number of defences some of which were abandoned during
the course of the trial.
It is unnecessary here to detail the various defences. The plea is prolix and
rather clumsily drawn. However,
the first and main defence advanced therein is
tolerably clear, and it comes to this: Whereas the respondent intended to accept
the
appellant's application to exhibit at the FTF winter exhibition on the basis
that the resulting contract would incorporate the General
Conditions listed on
the reverse side of the form, the appellant on the other hand intended to make
an offer not subject to such
General Conditions. Consequently, so pleaded the
appellant, the parties failed to achieve consensus
ad idem
and there was
no enforceable agreement on which the respondent could base its claims. In
elaboration of this defence the appellant
pleaded that at all relevant
times
14.
times the respondent had been represented by Mrs Katz and the appellant by
Levinson; that Levinson signed the form on 28 February
1981 in the presence of
Mrs Katz; that the form reflected the dates on which the FTF winter exhibition
would be held as 24 to 27
July 1981; that Mrs Katz knew that Levinson was
unaware that the General Conditions were printed on the reverse side of the
form;
that Mrs Katz failed to advise Levinson of the existence of the General
Conditions and more particularly the provisions of Clause
13 thereof; and that
Mrs Katz failed to provide Levinson with a copy of the form. In a request for
further particulars to the plea
the respondent asked whether Levinson had
intended to make an offer to the respondent on all the terms appearing on the
face of the
form. To this the appellant replied:-
"Yes, with the exception of those contained in clause 1, to the existence of
which his attention was not drawn and the terms of which
were not present to his
mind at the time at which he signed the proposal form."
AS
15.
As will appear in due course, the trial Court rejected the appellant's main
defence. I turn to the evidence at the trial material
to a consideration of the
validity of that defence. In this connection little if anything hinges on the
testimony of Mrs Donovan
who had no dealings with Levinson before the latter
signed the form on 28 February 1981. Levinson's own evidence relevant to the
main defence may be summarised somewhat as follows. During or about January 1981
Mrs Katz paid a visit to the appellant's offices
at Woodstock and introduced
herself to Levinson as the respondent's agent. She tried to persuade Levinson to
exhibit at both the
summer and the winter FTP exhibitions to be held in Cape
Town during 1981. At the time of this visit the summer exhibition was about
a
month away. Mrs Katz told Levinson that the dates for the winter FTF exhibition
were 24 - 27 July 1981. At that stage Levinson
showed interest in exhibiting at
the summer
exhibition
16.
exhibition and without finally committing himself he took what was loosely
described in the evidence as being "an option" on stand
no 29 at the summer
exhibition. During this visit there was no discussion as to the contractual
terms on which the respondent allocated
stands to exhibitors. Mrs Katz followed
up her visit to the appellant's premises with a number of telephone calls during
which she
tried to badger Levinson into signing an application for a stand at
the summer exhibition, but in the result Levinson decided that
there was not
enough time left to enable the appellant to exhibit at the summer
exhibition.
On 28 February, 1981, and while the summer FTF was in progress, Levinson
visited the Good Hope Centre in order to see for himself
what the exhibition had
to offer. At the exhibition, and while he was speaking with a business
associate, Levinson was buttonholed
by Mrs Katz who suggested that he should
come with her in order to choose a stand for the forthcoming winter FTF.
Levinson responded
by
17.
by saying that he would see her later, to which Mrs Katz
demurred by saying that unless Levinson signed at once all the available
stands
might be taken. Levinson was not moved by this admonition but his respite was
brief. Some fifteen minutes later Mrs Katz made
a further and more determined
approach to him. On this occasion she told him that the time factor was crucial
and she led him to
a place where a plan of the forthcoming winter exhibition was
on view. There Levinson indicated to Mrs Katz what stands at the winter
FTF
would be acceptable to the appellant whereafter Mrs Katz produced the form and
asked him to sign it. She told him that his signature
thereon would secure space
for the appellant at the exhibition.
In regard to the manuscript particulars filled in on the face of the form it
has been indicated earlier in this judgment what was
respectively written by
Levinson and Mrs Katz. But the sequence in which the particulars were
inscribed
18.
inscribed might here be noticed. Levinson says that he filled
in the particulars affecting his first choice of stands in paragraph
3 before he
affixed his signature to paragraph 4. Having signed the form he walked away from
the table where the signing had taken
place when he was called back by Mrs Katz
who required him further to furnish the particulars required above his signature
(the appellant's
name and address and his own name in print) in paragraph 4. He
complied with this request but as he was in a hurry to attend a wedding
he left
immediately afterwards.
Levinson told the Court that he signed the form without reading it and that
Mrs Katz had failed to direct his attention either to
the provisions of
paragraph 1 on the face of the form or the presence of the General Conditions on
the reverse side thereof. In this
connection Levinson further testified that
although the invoice dated 5 March 1981 sent to the appellant was accompanied by
a
photocopy
19.
photocopy of the form, such copy was of the face of the form
only; and that he actually saw the General Conditions for the first time
after 6
May 1981 when, following a request by his legal advisers, a copy thereof was
obtained from the respondent. Had he been aware
at the time of the existence of
the General Conditions, so testified Levinson, he would certainly not have
signed the form. He gave
the following reasons:-
"The dates were crucial to me inasmuch as that we had planned an overseas
trip and the new dates of the show conflicted with this.
At that time, having
been a smaller business, I was the only person that could appear on
our stand because of product knowledge.
I was not available to be at the stand
It would not have been any gain for our company."
Levinson was subjected to a lengthy and pertinacious cross-examination. More
particularly was the issue of his knowledge or ignorance
of the existence of the
General Conditions on the reverse side of the form carefully explored
by
20.
by counsel for the respondent. The cross-examiner put to
Levinson on no less than six separate occasions that during her visit to
the
appellant's office during January 1981 Mrs Katz had left with him a standard
form contract relating to the summer FTP exhibition.
This was firmly and
consistently denied by the witness. It was further suggested to Levinson that
Mrs Katz had in fact specifically
called his attention to the General Conditions
on the reverse side of the form. This suggestion was emphatically repudiated by
Levinson.
As to what had induced him to sign the form without reading it
Levinson gave the following answers in cross-examination:-
"Did you read this document? ----- No, I did
not. Why not? --- Because the document was
pushed in front of me and said 'Sign. At all costs sign otherwise you will
not get a
stand.'
I chose to sign because of the pressure that
had been brought upon me to sign
MUNNIK J P
: The pressure that you would lose
the stands if you didn't sign? ----- No, the
pressure of getting Mrs Katz off my back."
The
21.
The trial Court accepted the testimony of Levinson. In this
connection the following findings were recorded in the judgment of the
Court
below:-
"Mr Levinson averred that his attention was
not directed to the contents
of paragraph 1
and to the fact that there were any conditions
on the back
of Exh B. In fact his recollec=
tion was that Exh B was presented to
him
'in pad form' presumably therefore as the top
sheet of such pad. I
have no hesitation in
accepting Mr Levinson's evidence
in toto.
Not
only was he a patently honest witness but
Mrs Katz who was available was not
called by
the Plaintiff at any stage to contradict
him "
The Court
a quo
tested the validity of the appellant's main defence by
applying to the facts of the instant case the principles enunciated by this
Court in
George v Fairmead (Pty) Ltd
1958(2) SA 465 (A). In delivering
the Court's judgment in that case PAGAN, CJ remarked at 471 A/D:-
"When can an
error
be said to be
Justus
for the purpose of
entitling a man to repudiate his apparent assent to a contractual term? As I
read the decisions, our Courts, in
applying
22.
applying the test, have taken into account the fact that
there is another party involved and have considered his position. They have,
in
effect, said: 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? (
vide Logan v
Beit,
7 S C 197
;
I Pieters & Company v Salomon,
1911 A.D. 121
esp. at pp 130, 137;
van Ryn Wine and Spirit Company v Chandos Bar
,
1928
T P D 417
, esp. at pp 422, 423, 424;
Hodgson Bros. v South African
Railways,
1928 C P D 257
at p.261). If his mistake is due to a
misrepresentation, whether innocent or fraudulent, by the other party, then, of
course, it
is the second party who is to blame and the first party is not
bound."
The learned CHIEF JUSTICE then considered (at 471D/472A) the facts in three
decisions (
Mans v Union Meat Co
1919
AD 268
; Curtis v Chemical
Cleaning and Dyeing Company Limited
1951 (1) AER 631
(CA);
Shepherd v
Farrell's Estate Agency
1921 TPD 62)
whereafter he observed (at 472A):-
"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
assent
23.
assent to whatever words appear above his signature. In cases
of the type of which the three I have mentioned are examples; the party
who
seeks relief must convince the Court that he was misled as to the purport of the
words to which he was thus signifying his assent.
That must, in each case, be a
question of fact, to be decided on all the evidence led in that particular
case".
In the present case MUNNIK, JP pointed out that paragraph 1 on the face of
the form contained not only a reference to the General
Conditions printed
overleaf but also an undertaking by the intending exhibitor to be bound thereby.
Having regard thereto the learned
Judge-President decided that on receipt of the
form the respondent was entitled reasonably to assume that the appellant had
read
what appeared above his signature on the form and that he intended to be
bound thereby. Dealing with the averment in the plea to
the effect that Mrs Katz
had known that Levinson was unaware that the General Conditions were printed
overleaf the Court below found
that this allegation was not supported
by
24.
by Levinson's evidence; and it then proceeded to say:-
"Nowhere does he say that Mrs Katz knew that he was unaware that the General
Conditions were printed on the obverse side of Annexure
'A' (i e Exh. 'B').
Furthermore in my view the fact that she did not advise him of the existence of
the General Conditions is irrelevant
since paragraph 1 contained a specific
reference to the General Conditions and to the fact that they were printed
overleaf."
In the result the learned Judge-President came to the con= clusion that the
appellant had not discharged the onus of proving that
his mistake was due to a
misrepresentation either by the respondent or by its agent Mrs Katz. Having
further found the only other
defence persisted in by the appellant to be without
foundation the Court below accordingly gave judgment for the respondent.
Now it is true, as pointed out by the learned Judge-President in his
judgment, that in the course of his evidence Levinson nowhere
expressly said
that Mrs Katz knew
that
25. that he was unaware that the General Conditions were printed on
the reverse side of the form. And it is also true that paragraph
1 of the form
contained a specific reference to the General Conditions overleaf. But while
these features of the case are undoubtedly
relevant to the inquiry they do not
in themselves determine the matter. Whether or not Levinson was misled as to the
purport of the
document to which by his signature he apparently signified his
assent is a question which requires an examination of the full facts
of the
case. Whether at the time of Levinson's signature of the form on 28 February
1981 Mrs Katz did not know that Levinson was
unaware of the existence of the
General Conditions on the reverse side of the form depends upon the particular
circumstances leading
up to and surrounding his signature. The evidence rightly
accepted by the trial Court shows that during her visit to the appellant's
offices in January 1981 Mrs Katz neither left with the appellant a copy of the
form
nor
26.
nor called his attention to the existence of the General Conditions; and that
when Levinson signed the form in the presence of Mrs
Katz he did so without
reading it. In these circumstances it seems to me to be a perfectly legitimate
inference that at the time
when Levinson signed the form Mrs Katz knew that
Levinson was ignorant of the existence of the General Conditions. In my view,
however,
the real inquiry in this case is not so much whether or not Mrs Katz
knew that Levinson was unaware of the General Conditions but
a somewhat narrower
one. The more important questions which suggest themselves seem to me rather to
be (1) whether Levinson had reason
to believe that the form he was about to sign
contained a provision which made him liable to pay the respondent even if the
winter
FTP were to be held not on 24 - 27 July 1981 but on different dates; and
(2) whether Mrs Katz had reason to believe that Levinson
would have been
prepared to sign the form if he had known that he was about
to
27.
to incur the liability aforesaid.
When Mrs Katz visited the appellant's offices in January 1981 she expressly
informed Levinson that the winter FTF would be held on
24 - 27 July 1981. The
form submitted by Mrs Katz to Levinson for his signature on 28 February 1981
proclaimed, by way of a prominent
heading in bold print on the face thereof,
that the dates of the winter FTF were 24 - 27 July 1981. Upon any realistic view
of the
matter, so it seems to me, the dates on which the exhibition was to be
held represented the very sub= stratum on which the negotiations
between the
appellant and the respondent's agent were conducted. In my view it is almost
self-evident that Levinson had no reason
whatever for believing that the form
which Mrs Katz was urging him to sign contained a provision compelling him to
pay the respondent
for an exhibition which might be held on dates other than 24
- 27 July 1981. And it seems to me further
that
28.
that Mrs Katz had no reason for believing that Levinson would
have been prepared to sign the form had he known that he was incurring
such a
liability. As to that, it is hardly a matter of surprise, I consider, that at
the trial counsel for the respondent preferred
not to call Mrs Katz as a
witness.
Accepting then that Mrs Katz had no reason to believe that Levinson, if
informed of the far-reaching and drastic provisions embodied
in Clause 13 of the
General Conditions, would have been prepared to sign the form she put before
him, then in my judgment it was
her plain duty specifically to direct the
attention of Levinson to the existence of the particular provisions of Clause
13. If in
such a situation Mrs Katz were to remain mute her silence would quite
clearly, I think, involve a misrepresentation (although perhaps
an entirely
innocent one) as to the existence in the contract of a fundamental provision
wholly at variance with and repugnant to
the tenor of their negotiations
up
29.
up to that very moment.
In my view of the facts in the instant case, therefore, upon a proper
application of the principles stated
in
George v Fairmead (Pty) Ltd
, (
supra)
, the error into
which the appellant felt may correctly be described as
Justus
.
This conclusion is fortified, I think, by a number of other
leading decisions of our Courts, to only two of which reference
need here
be made. A useful illustration of the principles
applicable to a situation in
which a signatory to a contract
labours under a substantial misapprehension as to its real
effect is to be
found in the well-known case of
Shepherd v
Farrell's Estate
Agency
1921 TPD 62
("Shepherd's case").
The advertisement of an estate
agent read "Our motto :
No sale no charge". Shepherd was induced by this
adver=
tisement to put his business into the hands of the agent
for sale.
He signed an agreement put before him by the
agent which was not explained to
him and the purport of
which
30.
which he did not appreciate, to the effect that he would pay
commission on any sale whether arranged through the agent or otherwise.
Shepherd
sold otherwise than through the agent, who sued for commission. On appeal from a
decision of a magistrate the Transvaal
Provincial Division (MASON, BRISTOWE
& GREGOROWSKI, JJ) held that the agent could not succeed because in the
circumstances he
bore the onus of proving that he had explained to Shepherd the
variance between the agreement and the advertisement; and he failed
to discharge
the onus. Although the appeal was decided on the question of onus the true
principle underlying it has recently been
elucidated in the judgment of this
Court in the matter of
Du Toit v Atkinson's Motors Bpk
1985(2) SA 893
(A). In discussing
Shepherd's
case, VAN HEERDEN, JA, who delivered the
judgment of the Court, remarked at 904I/905B:-
"Of
31.
"Of die Hof se benadering aangaande die bewyslas
(of weerleggingslas) juis was, is nie ter sake nie en kan daargelaat word. Wat
van
belang is, is dat B nie aan die betrokke bepaling gebonde gehou is nie omdat
sy onkunde aangaande die bestaan of inslag daarvan toe
te skryf was aan A se
skuld. En hoewel MASON, R nie in soveel woorde so gesê het nie, kom dit my
voor dat A se verwytbaarheid
berus het op 'n wanvoorstelling aan sy kant; dws
stilswye oor
die inhoud van die dokument wat daarop bereken was om die indruk te skep, en
inderdaad by A die indruk geskep het, dat dit nie 'n
beding bevat het wat in
stryd was met dit wat die advertensie in die vooruitsig gestel het. So beskou,
is daar geen fout met die
beslissing te vind nie."
(See further the comments upon
Shepherd's
case by HATHORN, J
in
Wallace Hatton (Pty) Limited v Craig
1931 NPD 539
at
pp 553 -
554). Although
Shepherd's
case was not mentioned
in the judgment of the Court
a quo
on the merits, that
decision was
relied upon in argument on behalf of the appellant
in support of its
unsuccessful application to the Court below
for leave to appeal. In his
further judgment refusing leave
to appeal the learned Judge-President found
Shepherd's
case
to
32.
to be entirely distinguishable on the facts -
".... since it cannot be said that the plaintiff attracted the defendant to
sign the contract by means of a statement which it did
not intend to carry out..
Even assuming that he was attracted by the words '24th to 27th July 1981', at
the top of Exhibit B, there
is nothing to indicate that when the contract was
signed plaintiff did not intend to adhere to the dates 24th to 27th July. All
the
contract contained was the clause entitling plaintiff to change the
dates."
Despite the obvious differences between the facts in
Shepherd's
case and the facts in the instant matter, the
principle
underlying the former case seems to me to be
applicable to the latter. In
each case the signatory in
whose mind the plaintiff had earlier implanted a
certain
belief was at the time of the later contract misled as to
the
effect of the contract by the silence of the plaintiff.
In the instant case
it is, so I consider, entirely immaterial
that as at 28 February 1981 the
respondent may have cherished
a firm intention to hold the winter FTF on 24
to 27 July 1981.
What
33.
What is material, however, is that having negotiated with the
appellant on the basis that the exhibition would be held on those dates
the
respondent's agent failed to disabuse the mind of the appellant by explaining to
Levinson, when the form was put before him for
his signature, that in the small
print on the reverse side of the form there was a clause in terms whereof the
respondent might with
impunity alter the dates of the exhibition and
nevertheless exact from the appellant payment in full.
Before us the case for the appellant was argued by Mr
Dison
. I should
add that he was not counsel for the appellant at the trial. Mr
Dison
contended that the present case could not be distinguished in principle either
from
Shepherd's
case or from the decision in
Du Toit v Atkinson's
Motors Bpk
,(
supra
). It is useful at this stage to refer to the latter
decision. There the respondent had placed a newspaper advertisement offering
for
sale a 1979 model of a
Mercedes-Benz
34.
Mercedes-Benz motor car. On the strength of the advertise= ment the appellant
negotiated with the defendant and agreed orally to buy
the car. Before taking
delivery of the car, and at the request of the respondent's sales manager, the
appellant signed a document
as buyer without reading it. The document nowhere
stated the year of manufacture of the car but contained a clause excluding the
respondent's liability for any representation affecting,
inter alia
, the
year of manufacture of the car. The effect of this clause was not explained to
the appellant who later discovered that the car
delivered to him was in fact a
1976 model. An action by the appellant in the Cape Provincial Division for
cancellation of the contract
having failed, his appeal to this Court was upheld.
The essential facts and their legal consequences were thus succinctly stated
by
VAN HEERDEN, JA at 906 C/G:-
"Samevattend
35.
"Samevattend is die posisie dan soos volg: Die advertensie
was daarop gerig om die indruk te verwek dat die voertuig 'n bepaalde attribuut
gehad het, en om aanbiedinge vir die aldus omskryfde koopgoed uit te lok. Op
sterkte van die indruk, waarvan die respondent bewus
was, het die appellant die
voertuig gekoop. Deur niks te se aangaande die effek van para 6 van die dokument
nie,
het die respondent se werknemers die
vertroue by die appellant verwek dat die dokument nie strydig met die
advertensie was nie en derhalwe nie aanspreeklikheid uitgesluit
het nie ten
opsigte van voorstellings daarin vervat. Handelende in hierdie vertroue het die
appellant die dokument geteken, onbewus
van die inhoud of effek van para 6.
Na my mening het die respondent dus deur stilswye die appellant mislei, en is
sy dwaling aangaande die dokument wel
Justus error.
Of die appellant as
gevolg daarvan hoegenaamd nie aan die bepalings van die dokument gebonde is nie,
is nie ter sake nie en kan tersy
gelaat word. Op sy beste vir die respondent is
die appellant nie gebonde nie aan para 6 insoverre dit aanspreeklikheid uitsluit
vir
voorstellings vervat in die advertensie."
I agree with the submission of counsel for the appellant that the present
case falls to be decided by the
principle
36.
principle enunciated in
Du Toit v Atkinson's Motors Bpk,
(supra)
. For the reasons aforegoing I conclude that in all the circumstances
of the instant case the maxim "
caveat subscriptor
" does not avail the
respondent and that the appellant is not affected with constructive notice of
the relevant provisions of Clause
13 of the agreement. It follows, in my view,
that the trial Court erred in its rejection of the main defence raised and that
its
judgment in favour of the respondent cannot stand. It will be recalled that
the appellant pleaded that through a lack of
consensus
between the
parties no enforceable contract whatever came into being. I would stress that
for purposes of the present appeal it is
necessary to decide no more than that,
as the result of the appellant's j
ustus error
in regard to the effect of
the contract, the respondent is not entitled to hold the appellant liable in
respect of an exhibition
held on dates other than 24 - 27 July 1981 by
invoking
37.
invoking those provisions of Clause 13 of the
General Conditions which govern the postponement of exhibitions.
It remains to consider whether the ancillary orders for costs (being (1) the
costs of the summary judgment application and (2) the
wasted costs occasioned by
the appellant's unsuccessful application for better discovery and postponement)
require modification.
MUNNIK, JP ordered the appellant to pay both (1) and (2).
Having regard to this Court's view of the merits of the appeal it follows
that
the respondent was not entitled to claim summary judgment; and that it should
bear the costs of that application. In regard
to the application for better
discovery and postpone= ment the learned trial Judge remarked in his
judgment:-
"It seems to me that the simple basis on which the issue of these wasted
costs should be decided is the time honoured principle of
costs following the
result. There are to my mind no particular circumstances calling for a departure
from this rule."
Before
38.
Before us it was not suggested that in so approaching the
issue of these costs the trial Court had exercised its discretion improperly
and
accordingly there is no good reason for departing therefrom. It follows that
these costs too should be borne by the respondent.
In the result the appeal succeeds with costs. The judgment of the Court
a
quo
is altered to read:-
"Judgment for the defendant with costs, such costs to include the costs of
the summary judgment application and the wasted costs occasioned
by the
defendant's application for better discovery and postponement."
G G HOEXTER, JA
JANSEN, JA) VAN HEERDEN, JA) GALGUT, AJA ) Concur
NICHOLAS, AJA )