Articles
At numbered paragraph 9 of his judgment the Learned Acting Judge of Appeal had this to say:
"In dealing with this issue, there are certain basic principles which arise. Firstly, any ‘negligence, misdirection or misuse’ envisaged by the agreement had to be conduct on the part of a natural person as a partnership between
several juristic persons can only act through natural persons doing so on its behalf. Secondly, a term in a contract is to be read not in isolation but in its context"
The Learned Acting Judgeof Appeal observed that although the operator remained in the employ of the Truck owner, the agreement provided for the hirer to bear full responsibility for the activities of the operator during the period of hire to supervise his activities and to furnish him with proper and clear instructions. Furthermore clause 12 of the contract as quoted above provided that the owner would not be liable for any damages and was appropriately indemnified by the hirer against any such claims.
Thus Leach AJA concluded that these considerations caused him to come to the ineluctable conclusion that the parties contracted that the hirer would be responsible and liable for all claims brought arising out of the negligence of the operator during the contract period particularly while the operator was acting under the supervision and on the instructions of the hirer. Thus, the accident, having been caused by the negligence of the operator in falling asleep "on the job" resulted in the hirer being legally liable for the resultant damages.
Indeed a similar conclusion, on the legal effect of clauses similar to those quoted above in a contract was reached by the Supreme Court of Appeals in the case of
RH Johnson Crane Hire (Pty) Ltd v SA Iron & Steel Industrial Corporation Ltd. (Unreported; case no 207/85 delivered on 31 March 1987)
Leach AJA summarises the conclusion reached most ably at numbered paragraph 14 as follows:
"…..Two judgments were delivered, each holding the defendant liable to the plaintiff. In the minority judgment (Viljoen JA, Smalberger JA concurring) it was held that the crane had been damaged because the defendant's rigger had been negligent, rendering the defendant liable under the provisions of the contract. On the other hand, in the majority judgment (Botha JA, with whom Vivier JA and Kumleben AJA concurred) it was held that the evidence had been insufficient to determine negligence on the part of the rigger. But as it was common cause that the damage to the crane must have been due to negligence on the part of either the rigger or the operator, the majority reasoned that the failure to prove that the rigger had not been negligent placed the defendant on the horns of a dilemma. On the one hand, its failure in that regard did not allow it to escape liability under the common law which placed
a burden on it to prove that there had been no negligence on the part of its servants or those for whose acts it would be liable while, on the other hand, it was unable to escape liability by seeking to contend that the operator had been
negligent as ‘. . . in terms of the conditions of contract the defendant was liable for his acts.’ The defendant was therefore found to be liable without the majority having to decide whether the operator had been negligent."
Accordingly the hirer was found to be liable in accordance with the provisions of the contract.
We cannot ever over emphasise the importance of not signing a contract until you are satisfied that you understand its terms and conditions and you are in full agreement with them. It is your inalienable right to have the terms of a contract presented to you for signature vetted by your Attorney before signing.
DATED AT JOHANNESBURG ON THIS 4th JANUARY 2009
VICKY BOVE AND LESLIE KOBRIN
BOVE ATTORNEYS
Attorneys, Notaries and Conveyancers
Principal: Vittoria Bove BA LLB (Wits); Associate: Leslie Martin Kobrin Dip Juris (Wits) Bus Man (Dam) Notary Public & Conveyancer
South Wing Suite 1110
11th Floor Schreiner Chambers | 94 Pritchard Street | Johannesburg
Phone: (011)-336-9581/2/3 | Facsimile: (011) 336-9571
E Mail: lesk@boveattorneys.co.za
| <<Previous page |
