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[2026] ZAGPPHC 1067
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Muller v Cartrack (Pty) Ltd (2022/036051) [2026] ZAGPPHC 1067 (4 September 2026)
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FLYNOTES:
CONSUMER – Warranty –
Notice
and limitation
–
Vehicle-tracking
agreement included Limited Recovery Warranty – Warranty
invalidated by breach of quarterly testing
obligation –
Combined effect limited supplier’s liability – Section
49 applied despite obligation framed
positively –
Liability-limiting effect not conspicuously drawn to consumer’s
attention – Signed acknowledgement
insufficient to satisfy
statutory notice requirements – Exclusionary effect severed
under section 52(4) – Supplier
precluded from relying on
quarterly testing breach – Warranty claims upheld –
Consumer Protection Act 68 of 2008
,
s 49.
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER:
2022/036051
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates:
NO
Circulate to Regional
Magistrates NO
In the matter between:
RONALD HEINRICH
MULLER
APPLICANT
And
CARTRACK(PTY)LTD
RESPONDENT
Disclaimer: This
judgment is handed down electronically by uploading it on CaseLines.
The date of the judgment is deemed to be 4
September 2026.
JUDGMENT
TROMP AJ
Introduction
1.
The applicant seeks payment of R300 000 under a "
Limited
Recovery Warranty
" contained in a vehicle-tracking service
agreement concluded with the respondent on 31 October 2018 and later
amended and
extended, on 24 November 2020, to include a second
vehicle.
2.
Each vehicle was subsequently stolen and was not recovered. The
respondent rejected both
warranty claims on the basis that the
applicant had not complied with the contractual requirement to test
the tracking units on
a quarterly basis.
3.
The dispute raises two principal questions.
3.1
The first is whether the testing requirement, read with the clause
providing that the warranty
is invalid if the client breaches any
term of the service agreement, is subject to s 49 of the Consumer
Protection Act 68 of 2008
("the CPA"), and, if so, whether
the statutory notice requirements were met.
3.2
Should the applicants first argument fail, the second question is
whether, irrespective of the
CPA point, the agreement is properly
interpreted as permitting the respondent to reject the claims
notwithstanding the respondent's
own system-generated or courtesy
notifications concerning the units.
Background
4.
The contract and terms thereof as well as the factual background
history is substantially
common cause. The parties concluded the
tracking agreement in 2018 in respect of a Toyota Hilux. A Toyota
Prado was added in November
2020. In terms of the warranty, the
respondent undertook to in the event of a loss without recovery, to
pay the book value of the
relevant vehicle, limited to R150 000
inclusive of VAT. The applicant claims the maximum amount in respect
of each vehicle.
5.
It is not disputed that should the applicant's claim be successful
the total amount of R
300 000 will be payable by the respondent to
the applicant with regards to the two vehicles.
6.
The Hilux was stolen on 16 February 2021 and the Prado on 19 March
2022. Neither was recovered.
The applicant submitted claims under the
warranty and the respondent rejected them because, it said, the
applicant had failed to
comply with clause 10.1.3.3 of the agreement
and test the units quarterly.
7.
Clause 10.1.3.3 provides that it is the responsibility of the client
to
"Test the Unit on
a quarterly basis to ensure that it is operational and, if notified
by Cartrack that the Unit is faulty,
to take the Vehicle to an
Installation Centre for repair within 3 (three) working days of
establishing the fault".
8.
Clause 10.4 is headed "
Exclusions
" and provides that
the warranty shall be invalid if,
inter alia
, the client is in
breach of any term or condition of the service agreement.
9.
The applicant contends that these provisions, read together, limit
the respondent's liability
under the warranty and therefore attract
section 49(1)(a) of the CPA The applicant contends that the
provisions were contained
in densely printed standard terms and were
not conspicuously drawn to his attention as required by s 49(3) to
(5) of the CPA
10.
The applicant seeks relief under section 52(4) to severe these
clauses from the agreement due
to non-compliance with section 49(3)
to (5) or declaring that these terms have no force and effect with
regards to the applicant's
transaction.
11.
The applicant also relies on the respondent's alleged courtesy
testing and SMS notifications received
from the respondent and
contends that the units were operational immediately before the
thefts.
12.
The respondent contends that section 49 is directed to exemption or
disclaimer clauses and not
to a contractual obligation defining the
circumstances in which a limited warranty is available. It submits
that clause 10.1.3.3
simply imposes an obligation on the applicant
and clause 10.4.1 records the consequence of breach. The Respondent
further contends
that the applicant knew of the warranty terms and
that, in any event, the quarterly testing obligation is clear and was
not complied
with.
13.
There is an important evidential qualification. The applicant's
papers characterise a number of
facts as incapable of genuine
dispute, including the receipt of regular SMS notifications and the
proposition that the units were
functioning properly at the time of
theft.
14.
The respondent's papers dispute the sufficiency of that evidence and
in particular, dispute that
non-recovery itself establishes that a
unit was not operational.
The applicable legal
framework
15.
The CPA applies to transactions for the supply of goods or services
in the ordinary course of
a supplier's business, subject to the
exclusions in the Act. On the available evidence, the applicant is a
natural person and the
respondent supplied tracking services in the
ordinary course of its business. The respondent also accepts the
general applicability
of the CPA. The issue is therefore the
application of particular provisions, rather than the CPA's
application in principle.
16.
Section 49(1)(a) applies to any notice or provision of a consumer
agreement that purports to "
limit in any way the risk or
liability of the supplier or any other person
". Such a
provision must satisfy s 49(3) to (5): it must be in plain language;
its fact, nature and effect must be drawn to
the consumer's attention
in a conspicuous manner and form likely to attract an ordinarily
alert consumer; this must occur before
the relevant transaction or
consideration; and the consumer must have an adequate opportunity to
receive and comprehend it.
17.
Section 52(4) empowers a court, where a term failed to satisfy an
applicable requirement of section
49, to make an appropriate order,
including severing the provision or declaring it to have no force or
effect in respect of the
transaction. The discretion as to remedy
must be exercised judicially and with regard to the agreement as a
whole.
18.
The Supreme Court of Appeal has now authoritatively restated these
requirements in
Tourvest Holdings (Pty) Ltd v Murti
(806/2024)
[2026] ZASCA. The Court held that a provision limiting a supplier's
liability must satisfy the statutory requirements
of plain language,
conspicuous notice and adequate opportunity for comprehension.
19.
The significance of the Tourvest judgment for present purposes is
that section 49 imposes statutory
requirements additional to the
common-law rules governing incorporation of contractual terms; mere
contractual incorporation is
not, without more, the statutory test.
20.
Section 48 is complementary. It prohibits a supplier from entering
into or administering a consumer
transaction on terms that are
unfair, unreasonable or unjust. Section 48(2)(d) expressly connects
that enquiry to terms contemplated
in section 49 where the term is
unfair or its fact, nature and effect were not properly drawn to the
consumer's attention. A court
considering relief under section 48
must have regard to the factors ins 52(2).
21.
The ordinary principles of contractual interpretation remain
relevant. In
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) para 18, the Supreme Court of
Appeal explained that text, context and purpose are considered
together.
Capitec Bank Holdings Ltd v Coral Lagoon Investments 194
(Pty) Ltd
2022 (1) SA 100
(SCA) emphasises that context cannot be
used to produce a meaning unfounded from the contractual text.
Contra
proferentem
remains a residual aid where genuine ambiguity
persists; it does not permit a court to rewrite a clear bargain.
22.
Pacta sunt servanda
remains an important constitutional value,
as confirmed in
Beadica 231 CC v Trustees for the time being of
the Oregon Trust
2020 (5) SA 247
(CC). But enforcement is
necessarily subject to legislation governing the bargain. Where the
CPA applies, contractual certainty
and statutory consumer protection
must be accommodated within the scheme enacted by Parliament.
Does Section 49 of the
CPA apply to the warranty exclusion in the contract?
23.
The respondent's submission that section 49(1)(a) is confined to
classic delictual exemption clauses
is in my view too narrow. The
statutory language is deliberately broad: it refers to a provision
that limits "in any way"
the risk or liability of the
supplier. Nothing in the text confines the subsection to negligence
disclaimers or indemnities. Classic
exemption clauses plainly fall
within it, but they do not, in ,my view, exhaust it.
24.
Clause 10.1.3.3, viewed in isolation, is indeed framed as a positive
obligation imposed on the
client. But it cannot be interpreted in
isolation. Clause 10.4 is expressly headed "Exclusions" and
clause 10.4.1 makes
the warranty invalid if the client is in breach
of any term or condition of the service agreement. The combined legal
effect is
that non-compliance with the testing obligation
extinguishes a liability which the respondent would otherwise bear
under clause
10.1.1. That is, in my view, in substance and effect, a
limitation of the respondent's warranty liability.
25.
This conclusion does not depend on labelling the warranty itself an
"exemption clause".
A limited warranty is simply a
contractual undertaking of which the scope may legitimately be
defined by conditions. Section 49
does not prohibit such conditions.
It regulates the manner in which a supplier must disclose a condition
where its effect is to
limit the supplier's risk or liability.
26.
The question is functional: what does the provision do? Here the
testing obligation, coupled to
the blanket invalidation clause,
operates as a complete defence to an otherwise accrued warranty
claim.
27.
The distinction is important. A term defining the positive content of
the promised benefit may
not invariably amount to a limitation of
liability. But where an agreement first promises payment upon a
specified event and then
provides, under an express heading of
"Exclusions", that the promise becomes invalid upon breach
of another contractual
duty, the exclusion is within the ordinary and
statutory meaning of a limitation of liability. The respondent's
contrary construction
would give insufficient effect to the words "in
any way" in section 49(1)(a).
Compliance with
section 49
28.
The next question is whether the respondent complied with s 49(3) to
(5). The applicant's case
is that the standard terms appeared in
highly compressed form on the reverse of a subscriber application
form; apart from headings
and defined terms, the impugned provisions
were not highlighted, boxed, separately signed or otherwise made
conspicuous. The respondent
relies principally on the applicant's
signature acknowledging that he had read and accepted the terms and
on passages in the founding
papers said to demonstrate actual
knowledge of the warranty.
29.
A signed acknowledgement that standard terms have been read is
relevant to contractual incorporation
and may be evidentially
important. It is not, however, a substitute for the distinct
statutory enquiry under s 49(4): whether the
fact, nature and effect
of the liability-limiting provision itself was drawn to the
consumer's attention in a conspicuous manner
and form likely to
attract an ordinarily alert consumer. The Tourvest matter confirms
the independent force of that requirement.
30.
On the papers before me, there is no evidence that the respondent
separately drew the applicant's
attention, before contracting, to the
consequence that a failure to initiate a quarterly test, even if the
unit was in fact operational,
would invalidate the entire warranty.
Nor is there evidence that clause 10.1.3.3, read with clause 10.4.1,
was typographically
or otherwise presented in a manner materially
more conspicuous than the surrounding dense standard terms.
31.
Actual awareness of the existence of the warranty or even of a
testing obligation is not necessarily
equivalent to proof that the
"fact, nature and effect" of the exclusion was
conspicuously drawn to the consumer's attention
in the statutorily
required manner. The statutory focus is on the supplier's disclosure
of the limiting provision and its effect
before conclusion of the
transaction.
32.
I therefore conclude, that the respondent has not established
compliance with s 49(4) and (5)
in relation to the combined operation
of clauses 10.1.3.3 and 10.4.1.
The appropriate remedy
under section 52(4)
33.
The applicant asks that clause 10.1.3.3 be severed from the contract
or declared to have no force
or effect. In my view, the vice lies not
in the existence of a sensible operational obligation to test a
tracking unit, but in
the respondent's reliance on that obligation,
through clause 10.4.1, as a complete exclusion of warranty liability
without the
notice required by section 49. Section 52(4) does apply.
Interpretation of the
contract
34.
For completeness, I do not accept the applicant's alternative
contention that, as a matter of
ordinary contractual interpretation,
receipt of a courtesy SMS stating that a unit was functioning
relieved him of the obligation
to test the unit quarterly.
35.
The words "
It is the responsibility of the Client to ... Test
the Unit on a quarterly basis
" impose a direct obligation on
the client. The stated purpose: "
to ensure that it is
operational
” explains why the obligation exists; it does
not convert the obligation into one that arises only if the
respondent has not
independently generated a status notification. No
such qualification appears in the contract.
36.
The expression "
quarterly basis
" may leave room for
debate as to the precise day on which a test must occur, but it is
not reasonably capable of the broader
meaning advanced by the
applicant, namely that no client-initiated test is required whenever
a courtesy notification is received.
Context and purpose cannot be
used to insert that qualification. Nor does contra proferentem
justify doing so where the alleged
ambiguity is not genuine.
37.
The respondent's rejection letters are nevertheless troubling insofar
as, on the applicant's uncontested
account, they quoted clause
10.1.3.3 with additional words to the effect that the obligation
applied "
notwithstanding any system generated or courtesy
testing undertaken by Cartrack
”. Those words were not part
of the contract. Their insertion cannot amend the agreement
retrospectively. It does, however,
demonstrate why the respondent
considered it necessary to distinguish client-initiated tests from
its own courtesy testing. That
distinction may be commercially
explicable, but it had to be conveyed through the actual contractual
wording and, where it operated
to exclude warranty liability, in
compliance with the CPA, which was not done.
38.
Taking into consideration the papers filed of record and argument
presented by the parties' legal
representatives, I am of the view
that the Respondent did not comply with section 49 of the CPA.
Costs
39.
The respondent seeks punitive costs if successful and relies on a
contractual costs provision.
The applicant also seeks costs. Punitive
costs are exceptional and ordinarily require conduct warranting the
Court's marked disapproval.
The fact that a party advances a losing
interpretation of a consumer contract does not, without more, justify
such an order. On
the conclusion reached above, the applicant is
substantially successful and there is no basis to depart from the
ordinary rule
that costs follow the result.
Order
1.
It is declared that clauses 10.1.3.3 and 10.4.1 of the agreement,
read together insofar as
they purport to invalidate the Limited
Recovery Warranty by reason of non-compliance with the quarterly
testing requirement, constitute
a provision contemplated in
s
49(1)(a)
of the
Consumer Protection Act 68 of 2008
and is severed
from the agreement in terms of
section 52(4)(a)(ii).
1
.25cm; margin-bottom: 0cm; line-height: 150%">
2.
The respondent is precluded from relying upon that exclusionary
effect in respect of the
applicant's claims arising from the theft of
the Toyota Hilux on 16 February 2021 and the Toyota Prado on 19 March
2022.
3.
The respondent is to pay to the applicant a total amount of R 300
000.00 together with interest
thereon as follows:
3.1
9 % per annum on the amount of R 150 000.00 calculated from 1 June
2021 to date of final payment
thereof, and
3.2
9 % per annum on the amount of R 150 000.00 calculated from the date
of 1 July 2022 to date of
final payment thereof.
3.3
The respondent is to pay the costs of the application on the High
Court scale, scale B, including
cost of counsel.
TROMP AJ
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
DATE OF HEARING:
6 FEBRUARY 2026
DATE OF JUDGMENT:
4 SEPTEMBER 2026
APPEARANCES:
ATTONRNEYS FOR THE
APPLICANT: S ROUX INCORPORATED
Mr SJP Roux
Ref.: LR2317/22
Tel: 067 4044 122
E-mail:
[email protected]
COUNSEL FOR THE APPLICANT
Adv E Mann
Email:
[email protected]
ATTORNEY FOR THE
RESPONDENT: RAMSAY WEBBER ATTORNEYS
Ref: SVH/cst/MA T21617
Tel: 011 778 0686
Email:
[email protected]
COUNSEL FOR THE
RESPONDENT Adv Ross Bosman
Email:
[email protected]