Pritchard properties (pty) ltd V koulis 986 (2) sa (A) 1986 (2) sa p1
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The appeal is dismissed with costs, including the costs of two counsel. Joubert JA, E M Grosskopf JA, Kumleben JA and Howie JA concurred. F Appellant's Attorneys: Kallmeyer & Strine , Johannesburg; Honey & Partners , Bloemfontein. Respondent's Attorneys: Niemann & Swart , Pretoria; Naudes , Bloemfontein. FIRST NATIONAL BANK OF SA LTD v ROSENBLUM AND ANOTHER 2001 (4) SA 189 (SCA) 2001 (4) SA p189
F [zFNz] Flynote : Sleutelwoorde Banker - Relationship between banker and client - Loss caused by G negligence of bank's employees - Liability for - Respondents renting safe deposit box from appellant bank - Contents of box stolen due to negligence of bank's staff - Bank seeking to avoid liability on ground that term of contract for provision of box excluding liability - Relevant clause exempting bank from liability for theft H committed by its own employees within course and scope of their employment; for failing to exercise reasonable care and so negligently rendering it possible for theft to take place; and for negligence or gross negligence of its staff, acting in course of and within scope of their employment, regarding control of keys to place where safe deposit box was kept, thus rendering it possible for theft to take place - Bank not liable for damages suffered. I Contract - Interpretation of - Eiusdem generis rule - Respondents renting safe deposit box from appellant bank - Contents of box stolen due to negligence of bank's staff - Bank seeking to avoid liability on ground that term of contract for provision of box excluding liability - Relevant clause J 2001 (4) SA p190 providing that while bank would exercise every reasonable care, it not liable for any A loss or damage caused to any article lodged with it for safe custody whether by theft, rain, flow of storm water, wind, hail, lightning, fire, explosion, action of elements or as result of any cause whatsoever, including war or riot damage and whether loss or damage caused due to bank's negligence or not - Whether clause able to be interpreted as excluding liability of bank - Assemblage of causes of loss contained in clause consisting of unrelated collection of B phenomena - Relevant clause exempting bank from liability for theft committed by its own employees within course and scope of their employment; for failing to exercise reasonable care and so negligently rendering it possible for theft to take place; and for negligence or gross negligence of its staff, acting in course of and within scope of C their employment, regarding control of keys to place where safe deposit box was kept, thus rendering it possible for theft to take place - Bank not liable for damages suffered. Deposit - Safe deposit box - Liability exclusion clause - Loss caused by negligence of depositee's employees - Respondents renting safe deposit box from appellant bank - Contents of box stolen due to negligence of bank's staff - Bank seeking to avoid liability on ground that term of contract for provision of box excluding liability - Relevant clause exempting bank from liability for theft committed by its own employees within course and scope of their employment; for failing to exercise reasonable care and so negligently rendering it possible for theft to take place; and for negligence or gross negligence of its staff, acting in course of and within scope of their employment, regarding control of keys to place where safe deposit box was kept, thus rendering it possible for theft to take place - Bank not liable for damages suffered. [zHNz] Headnote : Kopnota The respondents sued the appellant bank in a Local Division for damages arising out of the theft of the contents of a safe deposit box D provided at a small annual fee by the bank for the first respondent's use. The appellant sought to avoid liability on the ground that a term of the contract for the provision of the box expressly excluded liability. The Local Division had concluded that the appellant was not entitled to rely upon the specific term in its defence of the action. The appellant appealed against this finding. E The relevant term (clause 2) provided that while the bank 'will exercise every reasonable care, it is not liable for any loss or damage caused to any article lodged with it for safe custody whether by theft, rain, flow of storm water, wind, hail, lightning, fire, explosion, action of the elements or as a result of any cause whatsoever, including war or riot damage and whether the loss or damage is due to the bank's negligence or not'. The stated case prepared in the matter F placed it beyond doubt that one or more of the appellant's staff had stolen the safe deposit box or allowed one or more third parties to steal such box. In doing so, the appellant's staff had acted with gross negligence or negligently regarding the control of the keys safeguarding the place where the safe deposit box was kept, rendering it possible for the theft to take place. G Although loss caused by theft or negligence had specifically been enumerated in the relevant clause excluding the appellant's liability, the respondents contended that not all the possible manifestations of theft were covered by the clause and theft by the bank's employees acting within the course and scope of their employment was not covered. The respondents contended further that gross negligence and negligent acts or omissions committed by the bank's employees had not H been excluded. The respondents argued that the clause was silent as to by whom the theft had to be committed before the bank would be immune from a claim and it could not have been intended to mean that the bank would not be liable even if it was the bank itself that stole in the sense that those who were the 'controlling minds' of the bank had committed the theft. This was so, they argued, because no one could I contract out of liability for deliberately committed dishonest acts. Relying on the eiusdem generis rule, the respondents further argued that the clause dealt only with causes of loss beyond the control of the bank. As theft by employees acting in the course and within the scope of their employment was something over which the bank did have control, theft by such persons was not within the protection against liability provided by the clause. The J 2001 (4) SA p191 respondents contended that the additional phrase 'or as a result of any cause whatsoever' A did not serve to expand the protection offered by the clause to encompass any other cause, whatever its nature as the phrase should be interpreted restrictively to read 'or as a result of any cause whatsoever over which the bank has no control'. In an appeal, Held , that in matters of contract, the parties were taken to have intended their legal rights and obligations to be governed by the common law unless they have plainly and unambiguously indicated the B contrary. Therefore, even where an exclusionary clause is couched in language sufficiently wide to be capable of excluding liability for a negligent failure to fulfil a contractual obligation or for a negligent act or omission, it would not be regarded as doing so if there was another realistic and not fanciful basis of potential liability to which the clause could apply and so have a field of meaningful C application. In the end, the answer had, however, to be found in the language of the clause read in the context of the agreement as a whole in its commercial setting and against the background of the common law with due regard to any constitutional implication. (Paragraphs [6] and [7] at 195G/H - H, 195I - 196A and 196B - B/C.) Held , further, that the assemblage of causes of loss or damage contained in the relevant clause consisted of an unrelated D collection of phenomena, some which were natural and the occurrence of which were beyond human control and some which emanated from human conduct. While the occurrence of the natural phenomena was not preventable, the damaging consequences of their occurrence could be prevented by taking adequate measures. If there was negligence in averting the damaging consequences contrary to a duty in law to do so, E the bank would be liable at common law for the ensuing loss even though it had no control over the occurrence of those phenomena. Similarly, the breadth of the phrase 'or as a result of any cause whatsoever' could not be narrowed so as to only exclude liability for causes beyond the control of the bank. (Paragraphs [12] and [13] at 197B/C - F and H. F Held , further, that, although there was no direct reference to the bank's employees in the relevant clause, it seemed obvious that they were included in it. If the exemption from liability accorded by the clause were to be construed as being confined to cases in which only the acts and omissions of those who were identified as the 'controlling or directing minds' of the bank were involved, the potential field of operation of the exemption would be so slight that it would not have been worth the bank's while to insist on it. This G would have left it entirely unprotected against liability stemming from the potential negligence or dishonesty of many thousands of employees. The bank, as an artificial non-human entity, was obviously incapable of being negligent itself in fact. The negligence of the human beings acting as the bank's controlling minds was attributed to the bank and it could also be held vicariously liable for negligence of ordinary H employees acting in the course and within the scope of their employment. When the bank said that it was not liable 'whether the loss or damage was due to the bank's negligence or not' it included loss or damage due to the negligence of its employees. (Paragraphs [17] and [18] at 199A/B - F.) Held , further, that the clause provided quite plainly that, even if the loss or damage was due to the bank's I negligence, attributed to it as a result of the negligence of its controlling minds or its employees, it was immune from liability. (Paragraph [23] at 201A/B, read with para [18] at 199E - F.) Held , further, that there was nothing in clause 2 suggesting that only culpa levis was to enjoy immunity but not culpa lata : the immunity extended to gross negligence. (Paragraph [26] at 201G.) J 2001 (4) SA p192 Held , accordingly, that the relevant clause exempted the bank from liability for theft committed by its own employees within the A course and scope of their employment; for failing to exercise reasonable care and so negligently rendering it possible for the theft to take place; and for the negligence or gross negligence of its staff, acting in the course of and within the scope of their employment, regarding control of the keys to the place where the safe deposit box was kept, thus rendering it possible for the theft to take place. The B claims of the respondents ought accordingly to have been dismissed. (Paragraphs [27] and [28] at 201H/I - 202A.) Appeal allowed. The decision in the Witwatersrand Local Division in Rosenblum and Another v First National Bank of SA Ltd reversed. [zCAz] Cases Considered Annotations Reported cases C Barkett v SA Mutual Trust & Insurance Co Ltd 1951 (2) SA 353 (A) : dictum at 362 applied Cardboard Packing Utilities v Edblo Transvaal Ltd 1960 (3) SA 178 (W) : distinguished Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA 424 (A) : dictum at 429C applied D Goodman Brothers (Pty) Ltd v Rennies Group Ltd 1997 (4) SA 91 (W) : compared Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) : dicta at 803B and 807D applied Levy v Central Mining & Investment Corporation Ltd 1955 (1) SA 141 (A) : distinguished E Mensky v ABSA Bank Ltd 1997 (8) CLR 648 (W): distinguished Minister of Education and Culture (House of Delegates) v Azel and Another 1995 (1) SA 30 (A) : referred to Scottish Special Housing Association v Wimpey Construction UK Ltd [1986] 2 All ER 957 (HL): compared F South African Railways and Harbours v Lyle Shipping Co Ltd 1958 (3) SA 416 (A) : dictum at 419D - E applied Wells v SA Alumenite Co 1927 AD 69: distinguished. [zCIz] Case Information Appeal from a decision in the Witwatersrand Local Division (Snyders J). The facts appear from the judgment of Marais JA. G
In addition to the authorities referred to in the judgment of the Court, counsel for the parties referred to the following: Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244 (CA) at 245 Brand v Kotze 1948 (3) SA 769 (C) H Bugler's Post (Pty) Ltd v Secretary for Inland Revenue 1974 (3) SA 28 (A) at 33D - F, 34H Canada Steam Ship Lines Ltd v The King [1952] AC 208 Capnorizas v Webber Road Mansions (Pty) Ltd 1967 (2) SA 425 (A) at 434A I Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) at 767E - 768E Daly v Chisholm 1916 CPD 560 Director of Education Transvaal v McGagie and Others 1918 AD 623 Enslin v Meyer 1925 OPD 125 Essa v Divaris 1947 (1) SA 753 (A) at 767 J 2001 (4) SA p193 Frenkel v Ohlsson's Cape Breweries Ltd 1909 TS 957 A Frocks Ltd v Dent & Goodwin (Pty) Ltd 1950 (2) SA 717 (C) at 725 Fruhauf v Morrison & Co 1911 TPD 963 Galloon v Modern Burglar Alarms (Pty) Ltd 1973 (3) SA 647 (C) at 654H Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1977 (2) SA 324 (D) at 333A - F, 334F - H, B 336A - C, 337 Heermans Supermarket (Pty) Ltd v Mona Road Investments (Pty) Ltd 1975 (4) SA 391 (D) at 394H Kalil v Standard Bank of South Africa Ltd 1967 (4) SA 550 (A) at 556C - E Kemsley v Car Spray Centre (Pty) Ltd 1976 (1) SA 121 (SE) C Kings Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) Lennards Carrying Co Ltd v Asiatics Petroleum Company Ltd [1915] AC 705 at 713 Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 448 (A) at 500E D Lituli v Omar 1909 TS 192 Melrose Steam Laundry v Power 1918 TPD 314 Mothlabane v Smith 1908 (18) CTR 315 Philip Robinson Motors (Pty) Ltd v N M Dada (Pty) Ltd 1975 (2) SA 420 (A) Prinsloo v Venter 1964 (3) SA 626 (O) E Rosenthal v Marks 1944 TPD 172 at 176, 177 - 8 Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762A Strelitz (Pty) Ltd v Siegers & Co (Pty) Ltd 1959 (3) SA 917 (E) F Swart en 'n Ander v Cape Fabrics (Pty) Ltd 1979 (1) SA 195 (A) at 202B - D Union Government v Smith 1935 AD 232 at 241 Van Deventer v Louw 1980 (4) SA 105 (O) Van Eck NO and Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A) at 997 - 8 Van Rensburg en Andere v Taute en Andere 1975 (1) SA 279 (A) at 303C - E G Weinberg v Olivier 1943 AD 181 Weiner v Calderbank 1929 TPD 654 Worman v Hughes and Others 1948 (3) SA 495 (A) at 505 Yeats v Hoofweg Motors 1990 (4) SA 289 (NC) H Christie The Law of Contract in South Africa 3rd ed at 234 Kerr The Principles of the Law of Contract 5th ed at 405, 412
[zJDz] Judgment Marais JA: [1] Respondents in this appeal, which comes before this Court by virtue of leave granted by the Court a quo (Snyders J), are a husband and wife who sued the appellant bank for damages arising out of the theft of the J 2001 (4) SA p194 MARAIS JA contents of a safe deposit box provided by appellant for the use of first respondent. Appellant sought to A avoid liability on the ground, inter alia , that a term (clause 2) of the contract for the provision of the box expressly excluded liability. A stated case was placed before the Court a quo the object of which was to obtain a finding as to the effect, if any, of that term upon the claims made. B [2] The Court a quo concluded and declared 'that the defendant is not entitled in its defence to this action to rely upon clause 2 of the standard contract'. [3] The term in contention was the following: C '2. The bank hereby notifies all its customers that while it will exercise every reasonable care, it is not liable for any loss or damage caused to any article lodged with it for safe custody whether by theft, rain, flow of storm water, wind, hail, lightning, fire, explosion, action of the elements or as a result of any cause whatsoever, including war or riot damage, and whether the loss or damage is due to the bank's negligence or not.' D Another term which it was contended is relevant is clause 3: '3. The bank does not effect insurance on items deposited and/or moved at the depositor's request and the depositor should arrange suitable insurance cover.' [4] The statement of facts in the stated case was in the following terms: E '2. During or about 1983 first plaintiff, acting personally and Barclays National Bank Ltd, entered into a partly written and partly oral agreement. A true copy of the written portion thereof is attached to defendant's plea as annex ''D'', being a standard contract then used by Barclays National Bank Ltd. 3. Defendant is the successor in law of Barclays National Bank Ltd and the said agreement is also a binding agreement between first plaintiff and defendant. F 4. In terms of the agreement defendant undertook for remuneration to retain for first plaintiff a safe deposit box at its Auckland Park branch. In 1996 the remuneration was approximately R150 per annum. It was furthermore agreed that first plaintiff would be permitted to place articles of value in the safe deposit box. Defendant was obliged to give first plaintiff access to the safe G deposit box and its contents upon his demand. First plaintiff was entitled to place articles in his possession into the safe deposit box even if the articles be owned by other persons 5. No agreement was reached between second plaintiff and defendant in relation to the articles being claimed by second plaintiff. First plaintiff placed these articles in his safe deposit box without defendant's knowledge or consent. At all times H defendant was unaware of the nature of the articles in the safe deposit box. The safe deposit box itself (with its contents) was locked by the first plaintiff who retained his keys thereto. 6. On or about 28 October 1996 defendant orally informed first plaintiff that it was unable to return to first plaintiff the said safe deposit box together with any articles that might have been contained therein. I 7. On or before 28 October 1996, one or more of defendant's members of staff stole first plaintiff's safe deposit box from the possession of the defendant, or allowed one or more third parties to steal same, or acted in concert with such third parties. 8. The theft did not arise from and was not associated with violence or any threat thereof or robbery or burglary. J 2001 (4) SA p195 MARAIS JA 9. Defendant's inability to give first plaintiff access to the safe deposit box and any articles that might be contained therein A and any loss suffered in respect thereof are direct results of and were caused by the said theft. 10. For purposes of the stated case it is assumed (but defendant does not admit) that: 10.1 The safe deposit box contained articles owned and with values as alleged by first plaintiff; B 10.2 Defendant did not exercise every reasonable care as envisaged in clause 2 of the said annex ''D'' and defendant's negligence rendered it possible for the theft to take place. 10.3 One or more members of defendant's staff acted with gross negligence or negligently, regarding the control of the keys safeguarding the place where the safe deposit box and its contents were C kept and this rendered it possible for the theft to take place; and 10.4 The member (s) of defendant's staff referred to in paras 7 and 10.3 was/were acting in the course and scope of such employment with defendant.' D [5] Ex facie the stated case respondents sought to hold appellant liable because of the theft of the box and its contents by employees of appellant and/or because of the gross (alternatively ordinary) negligence of employees in controlling the keys to the place in which the box and its contents were kept thus rendering it possible for the theft to take place. In both instances it E was to be assumed that the employees were acting in the course and within the scope of their employment with the bank. It is not entirely clear whether the assumption in para 10.2 of the stated case that the bank did not exercise every reasonable care and that its negligence rendered it possible for the theft to take place is an additional and distinct head of liability or whether it is simply a conclusion flowing F from the assumptions made in para 10.3 and 10.4 in short, an assertion of vicarious liability. However, I shall assume it is intended to be the former. Does clause 2 exclude the three heads of liability upon which respondents rely? G [6] Before turning to a consideration of the term here in question, the traditional approach to problems of this kind needs to be borne in mind. It amounts to this: In matters of contract the parties are taken to have intended their legal rights and obligations to be governed by the common law unless they have plainly and unambiguously indicated the contrary. Where one of the parties wishes to be absolved either wholly or partially from an obligation or liability which would H or could arise at common law under a contract of the kind which the parties intend to conclude, it is for that party to ensure that the extent to which he, she or it is to be absolved is plainly spelt out. This strictness in approach is exemplified by the cases in which liability for negligence is under consideration. Thus, even where an I exclusionary clause is couched in language sufficiently wide to be capable of excluding liability for a negligent failure to fulfil a contractual obligation or for a negligent act or omission, it will not be regarded as doing so if there is another realistic and not fanciful basis of potential liability to which the clause could apply and so have a field of meaningful J Yüklə 1,02 Mb. Dostları ilə paylaş:
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