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[2018] ZASCA 124
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Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124; 2019 (3) SA 451 (SCA) (26 September 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1048/17
In
the matter between:
FOUR
WHEEL DRIVE
ACCESSORY
APPELLANT
DISTRIBUTORS
CC
and
LESHNI
RATTAN N
O
RESPONDENT
Neutral
citation:
Four
Wheel Drive CC v Leshni Rattan NO
(1048/17)
[2018] ZASCA 124
(26 September 2018)
Coram:
Lewis,
Zondi, Molemela and Schippers JJA and Mokgohloa AJA
Heard:
27
August 2018
Delivered:
26
September 2018
Summary:
Locus
standi in judicio
–
appellant
claimed that it bore the risk of damage to a courtesy vehicle damaged
when user fatally shot by assailants –
locus
standi
to sue for cost of repairs not established – alleged lease
between appellant and user not proved – appeal dismissed
–
judgment must be confined to issues raised by the parties –
court should not decide issues irrelevant to outcome
of the case.
ORDER
On appeal from:
KwaZulu-Natal Local
Division of the High Court, Durban (D Pillay J sitting as court of
first instance): judgment reported
sub
nom Four Wheel Drive Accessory Distribution CC v Rattan NO
2018
(3) SA 204
(KZD).
The appeal is
dismissed with costs
JUDGMENT
Schippers
JA (Lewis, Zondi and Molemela JJA and Mokgohloa AJA):
[1]
The
rule that a party who asserts a claim must prove it lies at the heart
of this appeal. The appellant, Four Wheel Drive Accessory
Distributors CC, (plaintiff) sued the respondent (defendant), the
executrix of the estate of the late Mr Ivin Rattan (the deceased),
in
the KwaZulu-Natal Local Division of the High Court, Durban, for
R559 817.45 arising from the breach of a written agreement
relating to the use of a courtesy vehicle, which the deceased
allegedly concluded with Land Rover Experience Rentals CC, a
non-existent
entity. In terms of the agreement the deceased was
obliged to return the courtesy vehicle in the same condition that he
received
it. He did not comply with this obligation. He was shot and
fatally wounded by unknown persons whilst travelling in the vehicle,
which was riddled with bullet holes. The amount claimed was the cost
of repairs to the vehicle.
[2]
The
court a quo dismissed the plaintiff’s claim on the following
grounds. It failed to establish
locus
standi
as it did not prove its interest in the litigation. The deceased
signed an incomplete agreement without reading it, and there was
no
consensus about the contents of the agreement upon which the
plaintiff based its claim. The claim was unsustainable ‘for
want of good faith on the part of the plaintiff’. The agreement
relating to the use of the courtesy vehicle was against public
policy
and violated the Consumer Protection Act 68 of 2008 (the Act). The
appeal is with the leave of the court a quo.
[3]
The
basic facts are largely common ground. On 26 November 2012 the
deceased delivered his Land Rover Range Rover Sport motor vehicle
to
the Land Rover dealership in Umhlanga for repairs. That day Mr Chase
Murton, who said that he was the plaintiff’s ‘assistant
manager’ responsible for the day-to-day running of the business
(Mrs Jane Brown, the plaintiff’s sole member, said
that he was
employed as a driver), delivered a courtesy vehicle, a Land Rover
Freelander (the Freelander) to the deceased at the
Umhlanga
dealership. The deceased signed a written document, purportedly an
agreement between Land Rover Experience Rentals CC
and him, in the
presence of Mr Murton. This document, entitled, terms &
conditions, comprised a single page with nothing appearing
overleaf,
contrary to what was stated therein. It contained no provision for
payment of rental by the deceased.
[4]
Two
days later, on 28 November 2012, another courtesy vehicle, a Land
Rover Discovery 4 SE (the Discovery), became available. Mr
Murton
delivered it to the business address of the deceased who signed a
document with identical terms and conditions as the one
he signed in
respect of the Freelander. The particulars of the vehicle (the make,
model, registration number and mileage) and those
of the deceased
(his address and identity number) were written by hand on the
document by Mr Murton.
[5]
The
relevant terms of the agreement relating to the Discovery were these:
‘
In these
terms and conditions (a) “the Company” means Land Rover
Experience Rentals cc (b) “the Customer”
means the
person, firm or organisation by or on behalf of whom vehicles are
rented under these Terms and Conditions . . . (d) “Vehicle”
means the vehicle described overleaf (e) “Own Damage
Insurance (‘ODI’)” means insurance against damage
caused to the Vehicle, including theft …
1.
The
Company agrees to rent and the Customer agrees to take the Vehicle on
the Terms and Conditions as set out herein.
2.
The
Customer will pay the Company on demand all charges due hereunder
including where relevant, sums in respect of ODI, surcharges,
additional charges and VAT or other taxes thereon.
3.
ODI
and TPI [third party insurance] are available through the Company.
There will be an additional charge, subject to the terms
of issue,
for ODI and TPI . . . If ODI is not taken out by the Customer for any
reason whatsoever, the Customer will be liable
for the full cost of
any damage sustained by the Vehicle.
4.
If the
Customer has opted to arrange his own insurance on the Vehicle, the
cover must be comprehensive. Any excess on the policy
is the
responsibility of the Customer. The Company reserves the right to ask
for satisfactory proof of the Customer’s own
insurance prior to
the commencement of rental. The Customer is responsible for ensuring
the Vehicle is properly insured from the
time of delivery until 12.00
hours on the first working day following termination of the rental
and indemnifies the Company against
the loss incurred or damage to
the Vehicle in the event that such cover fails to be effective. If
the Customer becomes aware of
any changes in his insurance cover
during the period of the rental the Company’s Insurance
Department (
insert
detail
____________) must be notified immediately in writing. In the event
of accident/loss or damage to the Vehicle the Company will
undertake
repairs or select a repairer if applicable and will invoice the
Customer for such repairs and any associated costs. Such
invoice will
be subject to payment on demand. The Company may at its discretion
accept payment from the Customer’s insurer,
however ultimate
responsibility is with the Customer. …
5.
The
Customer acknowledges that notwithstanding the provisions of (3) and
(4) above he has a duty to ensure that all reasonable care
is taken
of the Vehicle against damage or loss throughout the rental period.
The Customer accepts responsibility for any loss or
damage to the
vehicle caused by his wilful act or negligence. This includes but is
not restricted to responsibility for any loss
or damage to the
Vehicle or its accessories as a result of theft occurring when the
Customer or his servant or agent has left the
keys in or with the
Vehicle and the Customer hereby indemnifies the Company against such
loss or damage
6.
…
7.
The
Customer undertakes to return the Vehicle with all satellite
navigation, tyres, tools, audio equipment and other accessories
in
the same condition as when received to the place and on the date set
down overleaf.
8.
The
Company undertakes to provide a Vehicle to the customer which is in
good working order and which functions satisfactorily throughout
the
rental period. . . .’
[6]
As in
the case of the Freelander, the document consisted of a single page,
did not provide for rental payable by the deceased and
did not
describe the vehicle overleaf, nor the place to, or date on which,
the Discovery had to be returned. In what follows, I
refer to this
document as ‘the agreement’. The deceased did not take
out own damage insurance in respect of the Discovery
and, as already
stated, did not return it due to his tragic demise. The plaintiff
obtained the Discovery from the police.
[7]
The
logical starting point is
locus
standi
–
whether in the circumstances the plaintiff had an interest in the
relief claimed, which entitled it to bring the action.
Generally, the
requirements for
locus
standi
are
these. The plaintiff must have an adequate interest in the subject
matter of the litigation, usually described as a direct interest
in
the relief sought; the interest must not be too remote; the interest
must be actual, not abstract or academic; and it must be
a current
interest and not a hypothetical one.
[1]
The duty to allege and prove
locus
standi
rests on the party instituting the proceedings.
[2]
[8]
The
rule that only a person who has a direct interest in the relief
sought can claim a remedy, is no more clearly expressed than
in the
judgment of Innes CJ in
Dalrymple
:
[3]
‘
The
general rule of our law is that no man can sue in respect of a
wrongful act, unless it constitutes a breach of a duty owed to
him by
the wrongdoer, or unless it causes him some damage in law.’
[9]
The
claim as pleaded, in sum, was this. The plaintiff leased the
Discovery from its owner and in terms of that agreement bore the
risk
of loss or damage to it. On 28 November 2012 the deceased concluded
the agreement in terms of which he hired the Discovery
until his
vehicle was repaired. He undertook to return the Discovery in the
same condition that he received it, and accepted responsibility
for
the full cost of any damage to the vehicle if he did not take out own
damage insurance. He did not obtain such insurance. The
plaintiff
retrieved the Discovery from the police in a damaged condition and
therefore the deceased was liable for the costs of
the repairs to it.
[10]
In the
plea and a reply to a notice in terms of rule 37 of the Uniform Rules
of Court, the defendant denied that the plaintiff had
leased the
Discovery from its owner or that it bore the risk of loss or damage
to it under such agreement. She also declined to
admit the
plaintiff’s identity and that it formerly traded under the
style of Land Rover Experience Rentals. The defendant
further denied
that the deceased hired the Discovery from the plaintiff as a
replacement for his own vehicle. She alleged that
the Discovery was a
courtesy car (provided by Land Rover, Umhlanga, to the deceased);
that she had no knowledge of the circumstances
surrounding the
agreement; that the Discovery was damaged when unknown persons shot
and fatally wounded the deceased whilst he
was inside it; and that
the police had taken possession of the Discovery. The plaintiff’s
locus
standi
was thus squarely in issue.
[11]
The
plaintiff’s case that it suffered damage when the Discovery was
not returned in the condition in which it was given to
the deceased,
was not established in evidence. Put differently, the plaintiff did
not establish an interest in the Discovery entitling
it to claim
damages from the defendant. Mrs Brown, in her evidence-in-chief, said
nothing about the plaintiff’s lease agreement
with the owner of
the Discovery or that it bore the risk of damage to the vehicle under
that agreement, as alleged in the particulars
of claim. In
cross-examination she said that Land Rover South Africa (SA) owned
the vehicle; that it had leased the vehicle to
her and then leased it
back from her.
[12]
In
this regard Mrs Brown testified as follows:
‘
[MR
McINTOSH, counsel for the defendant] The agreement between the
plaintiff and Land Rover is that a written agreement? --- No
…
Is it just done
orally? --- Yes …
And so how much
rental was paid to your company for the hiring of these vehicles by
Land Rover South Africa? --- I think at that
stage for the Freelander
it was . . . round about R800 per day and I think the Discovery is
slightly higher by about another R200
per day …
…
And who is the owner
of the vehicle that got damaged? --- The owner of the vehicle that
got damaged was Land Rover South Africa.
So your evidence is
now Land Rover South Africa owns the vehicle that they . . . lease
to you? --- That is correct.
That they then
[lease] back from you? --- That is correct.
So where are the
documents that show that agreement? --- There was no contract it was
an agreement.
PILLAY J oral
agreement? --- Yes, an oral agreement.
MR McINTOSH Where is
the agreement of lease between you and Land Rover, surely there must
be something in writing? --- No …
Mrs Brown, I find
that astounding. What gives you the right to sue on this case if the
vehicle belongs to Land Rover South Africa?
… we in effect
lease the vehicle from them.
Is
that all you know about that? --- Yes .…’
[13]
That
was the sum total of the plaintiff’s evidence on its interest
in the Discovery and its entitlement to institute proceedings.
It was
as clear as mud. Mrs Brown’s evidence that the plaintiff ‘in
effect’ leased the Discovery from Land Rover
SA makes no sense.
Why would Land Rover SA, the owner of the Discovery, lease it to the
plaintiff, only to rehire it again? This,
when it was a courtesy
vehicle made available to Land Rover SA’s customers at no cost.
And if Land Rover SA rehired the Discovery,
how then did the deceased
become a ‘lessee’ of the Discovery? On the plaintiff’s
case there was no
vinculum
iuris
between him and Land Rover SA. Mrs Brown’s evidence also cannot
be correct because it is unclear which entity in the alleged
arrangement between the plaintiff and Land Rover SA is the lessor,
and which the lessee. Further, it is highly improbable that
Land
Rover SA, a national motor dealership, would have concluded an oral
contract with the plaintiff, a close corporation. And
it is equally
improbable that as owner, Land Rover SA would not have insured the
Discovery against loss or damage. The vehicle
was virtually brand new
– it had covered only 5 588 km.
[14]
Mrs
Brown’s evidence regarding the alleged agreement between Land
Rover SA and the plaintiff was more confusing in the light
of her
earlier testimony, which was at odds with the alleged agreement with
Land Rover SA. She referred to a document entitled,
‘Car Hire
Request’, apparently prepared by Lazarus Car Hire (a name under
which Mrs Brown formerly traded), on which
the deceased’s name
appeared, but which reflected Europe-Assist – a wholly
different entity – as the ‘client’
(of Lazarus Car
Hire) regarding the hire of the Freelander. Even more confusingly,
she testified that the deceased was the ‘client’
and that
the instruction came from Europe-Assist which provided the Freelander
for use by the client. Then she said that when the
Land Rover
dealership did not repair the deceased’s vehicle within 72
hours, it approached Europe-Assist directly (and not
the plaintiff)
for an extension of the hire of the Freelander for an extra day,
which was granted.
[15]
So,
the relationship between Land Rover SA, the owner of the Discovery,
and the plaintiff, was not at all clear from Mrs Brown’s
evidence. And the role of Europe-Assist in the provision of courtesy
vehicles to customers of Land Rover SA only added to the obscurity.
It is thus hardly surprising that counsel for the appellant glossed
over the plaintiff’s interest in the Discovery which
entitled
it to sue for damages. It was merely submitted (without any reference
to the record) that the plaintiff supplied courtesy
vehicles to
customers of Land Rover SA ‘in terms of a contract it has with
Europe-Assist and Land Rover South Africa’.
However, there was
no evidence of any contract between the plaintiff and Europe-Assist.
[16]
Apart
from this, the agreement itself was not proved. Contrary to the
plaintiff’s assertion, it was not a lease. It is trite
that the
essential terms of such a contract are an undertaking by the lessor
that the lessee shall have the use and enjoyment of
the thing leased
for a limited period of time, in consideration for the payment of a
certain or ascertainable rental amount.
[4]
The agreement did not provide for any rental payable by the deceased.
Mr Murton conceded that the client paid no rental for the
vehicle,
but nonetheless insisted that the agreement was a rental agreement
between the deceased and the plaintiff. The allegation
in the
particulars of claim that the deceased ‘hired the …
Discovery from the plaintiff as a replacement for his vehicle’,
was simply not proved. It is accordingly unnecessary to decide what
kind of agreement was concluded between the plaintiff and the
deceased. If anything, it was a contract of loan for use.
[17]
Further,
the evidence disclosed that the agreement was incomplete; that its
terms were not discussed with the deceased; and that
he did not
appreciate that he was concluding a contract with the plaintiff for
the hire of the Discovery. Mrs Brown conceded that
the agreement was
incomplete. Mr Murton testified that he became aware for the first
time during the trial that the word ‘overleaf’
appeared
in the agreement, and that he did not notice that there was a
reference to a close corporation in it. He said that usually
when he
delivered a vehicle, he would ‘go through the handover period,
explain to the client the insurance excess and get
the client to sign
the document’. He conceded that when he went through the
agreement he did not notice that it referred
to Land Rover Experience
Rentals CC, and that it would appear to a third person reading the
document that the said corporation
was a party to it; and further
that when concluding such agreements he had used the wrong
documentation without noticing it. Mrs
Brown testified that Land
Rover Experience Rentals was a former trading name, that it was not a
close corporation and that the
agreement referred to the wrong
entity. In the light of this evidence it cannot be suggested that at
the relevant time, the deceased
appreciated that he was concluding an
agreement with
the
plaintiff
.
[18]
In
addition, when asked whether the deceased had read the agreement, Mr
Murton replied that the deceased ‘scanned over’
the
agreement, as he did not have much time.Mr Murton said that he
delivered between five and ten vehicles a day, and could not
explain
the whole document to a customer. He said that he explained to the
deceased the ‘insurance process and fuel and where
to return
the vehicle’, and that the deceased signed the agreement. Later
in his testimony however, Mr Murton could not explain
how the
insurance worked, referred to in clause 3 of the agreement. He said
that the agreement was in a flip folder, which the
deceased merely
held and signed in his presence. The evidence and probabilities point
overwhelmingly to the conclusion that the
deceased did not enter into
any agreement for the hire of the Discovery – he simply
acknowledged receipt of a courtesy car.
[19]
The
court a quo was thus correct in holding that the plaintiff did not
prove that it bore any risk in respect of the Discovery.
It did not
prove an interest in the litigation and consequently failed to
establish
locus
standi
.
The court also rightly found that no contract came into being because
there was no consensus regarding the terms (and nature)
of the
agreement. That should have been the end of the matter. Indeed, the
court a quo held that the failure to prove
locus
standi
was ‘dispositive of the entire action’.
[20]
But
then the court embarked on an analysis of the common law duty to act
in good faith, and, with extensive reference to
Barkhuizen
,
[5]
concluded that the agreement was against public policy and therefore
invalid. This, after it had scarcely found that no agreement
had been
concluded between the plaintiff and the defendant. The court stated
that the public policy concerns discussed in
Barkhuizen
found expression in the Act and went on to find that the agreement
violated the Act in numerous respects. Neither of these issues
was
raised in the pleadings; they were introduced by the court a quo of
its own accord.
[21]
On
first principles, a judgment must be confined to the issues before
the court.
[6]
In
Slabbert
,
[7]
this court said:
‘
A party has a
duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead
a particular
case and seek to establish a different case at the trial. It is
equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.’
[22]
Our
adversarial system of determining legal disputes is a procedural
system in which parties actively and unhindered may put forward
a
case before an independent decision-maker. An important component of
the system is the rule that the parties must frame the issues
for
decision and present their case, and assign to the court the role of
neutral arbiter of the case presented. In
Fischer
,
[8]
this court stated the rule as follows:
‘
Turning
then to the nature of civil litigation in our adversarial system, it
is for the parties, either in the pleadings or affidavits
(which
serve the function of both pleadings and evidence), to set out and
define the nature of the dispute, and it is for the court
to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights guaranteed
by
our Constitution, for “(i)t is impermissible for a party to
rely on a constitutional complaint that was not pleaded.”
There
are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances
where
the court may mero motu raise a question of law that emerges fully
from the evidence and is necessary for the decision of
the case. That
is subject to the proviso that no prejudice will be caused to any
party by its being decided. Beyond that
it
is for the parties to identify the dispute and for the court to
determine that dispute and that dispute alone
.’
[9]
[23]
In my
view, a fundamental reason for maintaining the adversarial system in
which the parties identify the dispute, is to ensure
that judicial
officers remain independent and impartial and are seen to be so. This
is a cornerstone of any fair and just legal
system.
[10]
When a judge intervenes in a case and has recourse to issues falling
outside the pleadings which are unnecessary for the decision
of the
case and departs from the rule of party presentation, there is a risk
that such intervention could create an apprehension
of bias. The
court could then be seen to be intervening on behalf of one of the
parties, which would imperil its impartiality.
[24]
As
already stated, a defence that the agreement was contrary to public
policy or that it violated the Act was neither pleaded, nor
canvassed
in evidence in the sense that the court was expected to decide it as
an issue.
[11]
The court a quo
erred in raising and pronouncing upon these issues: they did not
impact on the decision. Whether the agreement
was against public
policy or violated the Act was not material, and the outcome of the
case would not have been different had the
court not considered these
issues. Thus the statement by the court a quo that the Act could have
influenced its decision, is incorrect.
[25]
Moreover,
the court a quo incorrectly applied
Barkhuizen
[12]
and the provisions of the Act which, if left undisturbed, may be
followed as precedents, particularly given that the judgment has
been
reported. The court concluded, apparently on the authority of
Barkhuizen
,
[13]
that the duty to act in good faith was a common law principle that
applied to the plaintiff’s assertion that the deceased
had to
insure the Discovery or return it within 72 hours. It found that the
lack of an explanation why Land Rover SA did not sue
the defendant;
the non-disclosure as to whether any insurer paid for the damages in
the action; and the convoluted arrangements
amongst the plaintiff,
Land Rover SA, Land Rover Experience Rentals, Lazarus Car Hire and
Europe-Assist, ‘simply fortifies
the finding of bad faith
against the plaintiff’ and dismissed its claim for that reason.
Then the court stated that the agreement
‘was impractical to
decipher without costs and inconvenience to those who had to read and
understand it’; and concluded,
on the authority of
Barkhuizen
,
that the agreement was against public policy and therefore invalid
because it was ‘offensive as it impairs the dignity of
the
deceased and all those who have to work with it’.
[26]
Barkhuizen
concerned the
constitutionality of a time-limitation clause in an insurance
contract alleged to have infringed the right of access
to court under
s 34 of the Constitution. Ngcobo J, writing for the majority,
held that s 34 not only reflects the foundational
values that
underlie our constitutional order, it also constitutes public policy.
A court could decline enforcement of a time-limitation
clause if a
litigant was able to demonstrate that its enforcement would result in
unfairness or would be unreasonable. A court
would declare the clause
contrary to public policy and thus invalid, if it does not afford a
contracting party fair and reasonable
access to court.
[27]
In
this case, not only was there no complaint that the agreement was
contrary to public policy, there was no constitutional value
implicated in the provision requiring the deceased to take out
insurance or return the Discovery within 72 hours. As was said in
Bredenkamp
,
[14]
the court in
Barkhuizen
did not hold that ‘the enforcement of a valid contractual term
must be fair and reasonable, even if no public policy consideration
found in the Constitution or elsewhere is implicated’. How a
difficulty in interpreting an agreement without costs and
inconvenience
constitutes an infringement of the right to dignity,
has not been explained. In addition, and contrary to the finding by
the court
a quo, the Constitutional Court in
Barkhuizen
expressly endorsed this court’s holding in
Brisley
,
[15]
that good faith is not a self-standing rule to avoid performance
under a contract, ‘but an underlying value that is given
expression through existing rules of law’.
[16]
[28]
In
South
African Forestry Co
,
[17]
Brand JA put it this way:
‘
.
. . although abstract values such as good faith, reasonableness and
fairness are fundamental to our law of contract, they do not
constitute independent substantive rules that courts can employ to
intervene in contractual relationships. These abstract values
perform
creative, informative and controlling functions through established
rules of the law of contract. They cannot be acted
upon by the courts
directly. Acceptance of the notion that judges can refuse to enforce
a contractual provision merely because
it offends their personal
sense of fairness and equity will give rise to legal and commercial
uncertainty.’
[29]
It is
not clear from the court a quo’s judgment what rules of
contract were applied in coming to the conclusion that the agreement
was invalid due to bad faith on the part of the plaintiff. More
specifically, a requirement obliging a contracting party to obtain
insurance, a failure to explain why an owner does not sue,
non-disclosure as to whether an insurer paid damages and convoluted
business arrangements between entities, are neither indicative of bad
faith, nor contrary to public policy.
[30]
The
Act may be dealt with briefly. It is settled that when interpreting
legislation, what must be considered is the language used;
the
context in which the relevant provision appears; and the apparent
purpose to which it is directed.
[18]
The preamble to the Act states that it was passed in order, inter
alia, to promote and protect the economic interests of consumers;
to
improve access to information so that they are able to make informed
choices; to protect them from hazards to their well-being
and safety;
to develop effective means of redress for consumers; and to promote
consumer education. Section 2 provides that the
Act must be
interpreted in a manner that gives effect to the purposes set out in
s 3. In terms of s 3, the essential purposes of
the Act are to
promote and advance the social and economic welfare of consumers in
South Africa.
[31]
The
court a quo dealt with the Act in some detail in its judgment. It
found that because Mr Murton could not explain the terms of
the
agreement, consumers could not be expected to understand the content,
significance and import thereof. The court then found
that it was
impossible to interpret the agreement as required by s 22(2) of the
Act, because it was not in plain language and was
therefore invalid –
a finding also unsustainable on the evidence.
[19]
The court a quo went further and concluded that the agreement
violated s 4(5)
(a)
and
(b)
of the Act, since deciphering the agreement was ‘possible only
at great costs and inconvenience to its readers’, it
was
incomplete, the other party was represented as a close corporation
and material insurance arrangements were not disclosed.
[20]
Finally, the court a quo found that the failure to include in the
agreement, the obligation to insure the Discovery after 72 hours
or
return it before expiry of that period, and then enforcing that
provision, was unfair, unreasonable and unjust as contemplated
in s
48(2) of the Act.
[21]
[32]
The
short answer to the point that the agreement violated the Act, is
that it was not a transaction as contemplated in s 5(1)
(a)
,
which provides inter alia, that the Act applies to every transaction
occurring within the Republic. A ‘transaction’
is defined
as,
‘
(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
(ii)
the
supply by that person of any goods to or at the direction of a
consumer 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;
or
(b)
an
interaction contemplated in section 5(6), irrespective of whether it
falls within paragraph
(a)
.’
In
terms of the Act,
‘“
consideration”
means 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)
Labour,
barter or other goods or services;
(c)
loyalty
credit or award, coupon or other right to assert a claim; or
(d)
any
other thing, undertaking, promise, agreement or assurance,
irrespective of its apparent or intrinsic value, or whether it is
transferred directly or indirectly, or involves only the supplier and
consumer or other parties in addition to the supply and consumer.
’
[33]
The
provision of a courtesy car to the deceased was not an agreement for,
or the supply of, goods or services; or the performance
of services
at the direction of a consumer. The agreement did not constitute a
transaction between a supplier and consumer as contemplated
in s 5(6)
of the Act.
[22]
The deceased
gave nothing of value and the plaintiff accepted nothing in exchange
for the use of the Discovery. So on the plain
wording of the relevant
provisions, there was no consideration and thus no transaction as
envisaged in the Act.
[34]
There
is a further principle that the court a quo seems to have overlooked
– leave to appeal should be granted only when there
is ‘a
sound, rational basis for the conclusion that there are prospects of
success on appeal’.
[23]
In the light of its findings that the plaintiff failed to prove
locus
standi
or the conclusion of the agreement, I do not think that there was a
reasonable prospect of an appeal to this court succeeding,
or that
there was a compelling reason to hear an appeal.
[24]
In the result, the parties were put through the inconvenience and
expense of an appeal without any merit.
[35]
The
appeal is dismissed with costs.
_______________
A Schippers
Judge of Appeal
APPEARANCES
For
Appellant: M Pillemer SC and C Smart
Instructed
by:
Orelowitz
Incorporated Attorneys, Johannesburg
Lovius
Block Attorneys, Bloemfontein
For
Respondent: K C McKintosh
Instructed
by:
Pat
Naidoo Attorneys, Umhlanga KZN
Honey
Attorneys, BloemfonteinF
[1]
D E van Loggerenberg and E
Bertelsmann
Erasmus:
Superior Court Practice
2 ed vol 1 (loose-leaf) at D1-186.
[2]
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991
(1) SA 567
(A)
at
575H–I;
Kommissaris
van Binnelandse Inkomste v Van der Heever
1999
(3) SA 1051
(SCA)
at
1057G–H.
[3]
Dalrymple
& others v Colonial Treasurer
1910 TS 372
at 379.
[4]
P J
Badenhorst, J M Pienaar and H Mostert
Silberberg
and Schoeman’s: The Law of Property
5
ed at 430 para 18.1;
Southernport
Developments (Pty) Ltd v Transnet Ltd
[2005]
2 All SA 16
(SCA);
2005 (2) SA 202
(SCA) para 6.
[5]
Barkhuizen v Napier
2007 (5) SA 323 (CC).
[6]
National Director of Public
Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA) paras 15 and
19.
[7]
Minister of Safety and
Security v Slabbert
[2009]
ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[8]
Fischer & another v
Ramahlele & others
2014
(4) SA 614
(SCA) para 13, affirmed by the Constitutional Court in
South African Police
Service v Solidarity obo Barnard
[2014] ZACC 23
;
2014 (6) SA 123
(CC) para 210, and
Molusi
& others v Voges NO & others
[2016] ZACC 6
;
2016 (3) SA 370
(CC) para 28.
[9]
Emphasis added, footnotes
omitted.
[10]
President of the Republic of
South Africa & others v South African Rugby Football Union &
others
[1999] ZACC 9
;
1999 (4) SA
147
(CC) para 35.
[11]
South British Insurance Co
Ltd v Unicorn Shipping Lines (Pty) Ltd
1976
(1) SA 708
(A) at 714G.
[12]
Footnote 5 above.
[13]
Footnote 5 paras 79-82.
[14]
Bredenkamp & others v
Standard Bank of South Africa Limited
[2010]
ZASCA 75
;
2010 (4) SA 468
(SCA) para 50.
[15]
Brisley v Drotsky
2002 (4) SA 1
(SCA) paras 31-32.
[16]
Footnote 5 para 82.
[17]
South African Forestry Co Ltd
v York Timbers Ltd
2005
(3) SA 323
(SCA) para 27, affirmed in
Potgieter
& another v Potgieter
N O & others
[2011] ZASCA 181
;
2012 (1) SA 637
(SCA) para 32.
[18]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[19]
Section 22(2) provides, inter
alia:
‘
For the purposes of this
Act, a notice, document . . . is in plain language if it is
reasonable to conclude that an ordinary consumer
of the class of
persons for whom the notice, document … is intended, with
average literacy skills and minimal experience
as a consumer of the
relevant goods or services, could be expected to understand the
content, significance and import of the
notice, document …
without undue effort having regard to–
(a)
the context,
comprehensiveness and consistency of the notice, document . . . .
(b)
the organisation,
form and style of the notice, document . . . ;
(c)
the vocabulary, usage
and sentence structure of the notice, document . . . ; and
(d)
the use of any
illustrations, examples, headings or other aids to reading and
understanding.’
[20]
Sections
4(5)
(a)
and
(b)
provide:
‘
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 . .
. .’
[21]
Section 48(2)
of the Act provides inter alia:
‘…
a
transaction or agreement . . . is unfair, unreasonable or
unjust if-
(a)
it
is excessively one-sided in favour of any person other than the
consumer . . . ;
(b)
the
terms of the transaction or agreement are so adverse to the consumer
as to be inequitable;
(c)
the
consumer relied upon a false, misleading or deceptive representation
. . . ;
(d)
the
transaction or agreement was subject to a term or condition . . . ,
and–
(i)
the
term, condition or notice is unfair, unreasonable, unjust or
unconscionable . . . .’
[22]
Section 5(6) of the Act
provides:
‘
For greater certainty,
the following arrangements must be regarded as a transaction between
a supplier and consumer, within the
meaning of this Act:
(a)
The supply of any
goods or services in the ordinary course of business to any of its
members by a club, trade union, association,
society or other
collectivity. . . .
(b)
a solicitation of
offers to enter into a franchise agreement;
(c)
an offer by a
potential franchisor to enter into a franchise agreement with a
potential franchisee;
(d)
a franchise agreement
or an agreement supplementary to a franchise agreement; and
(e)
the supply of any
goods or services to a franchisee in terms of a franchise
agreement.’
[23]
S v Smith
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7.
[24]
Section 17
of the
Superior
Courts Act 10 of 2013
provides in relevant part:
(1) leave to appeal may only be
given where the judge or judges concerned are of the opinion that–
(a)
(i) the appeal would have
a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under
consideration.’