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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO : 5410/99

DATE:2000.05.05

In the matter between:

DE WET VAN WYK …........................................................................First Plaintiff

ANOTHER PLAINTIFF..................................................................Second Plaintiff

and

HOME FIRES TVL CC...........................................................................Defendant

JUDGMENT

WILLIS, J: The first and second plaintiff in this action are husband and wife. The reason for their being joint plaintiffs in this action is that they were married in community of property and consequently the damages which it is common cause they suffered, were experienced by both of them.

The first plaintiff, being the husband, was the only person who testified on behalf of both plaintiffs and the person to whom all relevant events relate up until the fire with which I shall deal later.

For the sake of convenience, I shall therefore throughout this judgment refer to the first plaintiff simply as "the plaintiff".

On 15 May 1997 a fire took place at the domestic residence of the plaintiff at 220 Second Avenue, Verwoerd Park, Alberton, Gauteng. Shortly before that fire, the plaintiff had purchased and had installed a freestanding furnace with accessories such as a chimney which items were collectively throughout the proceedings referred to as the "furnace" or the Afrikaans equivalent "die kaggel".

The report of an expert, Dr Froneman, which report the defendant accepts, says as follows:

"Opinion: The fire to the house at 220 Second Avenue, Verwoerd Park, Alberton, was as a result of the ignition of the timber roof trusses by the hot chimney stack." The reason given was that v the chimney stack had been secured to a roof truss with a single angle iron and was closer than 200 millimetres from a timber brander. A fire had been made in the half just prior to the main fire. All char patterns to the trusses and brandering as well as fire spread patterns in the house clearly indicated that the chimney stack set the truss and brander alight. The deepest char into the trusses and brandering was at the chimney stack." The expert furthermore gives the opinion:

"The manner of instalment of the chimney stack, was in contravention of Part V of SABS 0400-1990 the Code of Practice for the Application of the National Building Regulations."

The report also states that the chimney stack was closer than 200 millimetres to a timber brander and the angle iron attached to the chimney stack, was in contact with the timber truss. This contravenes sections BB2.1 and BB3.1 of Part V of SABS 0400.

The necessary inference to be drawn from this opinion is that the fire may be attributed to the negligence and the failure of whoever installed the furnace to undertake the proper workmanship that would be expected of him. It was accepted by the defendant that whoever was responsible for the installation of the furnace would at common law be liable for the damage which ensued.

The fire, it is common cause, caused considerable damage to the property both movable and immovable of the plaintiff. The parties agreed that the question of the defendant's liability should be adjudicated first and separately from the quantum of damages in terms of Rule 34.

The parties at the commencement of the trial brought an application that the issues be separated and that the merits be heard independently of the quantum. I was pleased to make an order to this effect.

The facts leading up to the fire are ordinary and every Indeed they reflect all the cosiness and homeliness of middle class life in South Africa. The plaintiff had seen a furnace similar to the one which he ultimately purchased at the home of his brother. He was very impressed with this furnace and after discussions with his wife, decided that he too would like to have a similar furnace at his home. He made various enquiries through the marketplace and was initially referred to the well-known firm of Jetmaster which makes such furnaces. He came across a pamphlet distributed by the defendant in which was advertised furnaces similar to the one which he had seen. He telephoned the defendant. It is not clear whether he telephoned the defendant at Boksburg or Centurion office, but nothing much turns on this. He was put in contact with a young woman whom he described as being very competent, efficient and helpful. Indeed it would not be unfair to record that he seems to be much taken by her charms. She informed him about the product that the defendant was marketing and informed him about the different prices. The (10) prices quoted by the defendant for the furnace that the plaintiff wished to purchase, were marginally lower than those quoted by Jetmaster. Nevertheless, being impressed by the efficiency and competence of the lady with whom he had had dealings at the offices of the defendant, he decided that he would wish to make the purchase from the defendant.

The plaintiff was clear in his own mind and conveyed this to the defendant that he wished the purchase price to include the cost of installation. The plaintiff asked, the defendant to send him a quotation.

The plaintiff was sent a "bestellings/order form" from the defendant on 15 April 1997. The form was sent by telefax to the plaintiff's workplace. The form when it arrived was in the form that appears on page 12 of bundle "A".

It is clear that that form was sent from the Boksburg office at which a certain De Villiers Marais worked. It is common cause that this person known as De Villiers Marais was competent and authorised to conclude contracts on behalf of the defendant of the kind which formed the subject matter of this particular dispute. The form was addressed to the plaintiff. His home address was given and the following appears in the description: "1 x 800 millimetres vrystaande kaggel met 3,617 pyp, rooster, diep aspan, haan en basis". The price quoted is R2 100,00. Below that appears the words "installasie – R850,00" and the total price of R2 950,00 appears at the bottom including VAT. Towards the bottom of this form there appears the following: "Aflewerings/installasie/betalingsinstruksies". Under that is written "so gou moontlik" and "KBA" which is common cause must stand for "kontant by aflewering". This form is signed by De Villiers Marais. At the bottom of the form appears the following wording: "Hierdie bestelling kan slegs teen betaling van 15 per sent van die totale bedrag gekanselleer word. Eien keersy vir verdere voorwaardes". Below that in English: "This order can only be cancelled on payment of 15 per sent of the total amount. See reverse side for further conditions".

it is common cause that the "keersy" or reverse side of this document was not faxed to the plaintiff at the time the fax was received by him.

The plaintiff signed the form and wrote on the body "please advise installation date". This form was then faxed back to the Boksburg office of the defendant.

The defendant in paragraph 3.1 of its plea says that "on or about 15 April 1997 the first plaintiff ordered a free standing fireplace and accessories ("the fireplace") from the defendant at a cost of R2 100,00 and further requested the defendant to install such fireplace as soon as possible at a cost of R850,00.

The defendant then goes on to allege in paragraph 3.2 that in "any agreement conclude pursuant to the plaintiff's said order, would be subject to the defendant's standard terms and conditions as contained in the reverse side of the order annexure "A".

In paragraph 3.3 of the plea, the defendant alleges "Save as aforesaid and save for saying that the parties did not conclude an agreement regarding the installation by the defendant of the fireplace, the allegations here are admitted".

I wish to point out that it immediately would appear to be obvious that there is a certain inconsistency in the defendant 1 s plea. On the one hand the defendant is saying that if it did install the furnace, it is exonerated from liability by reason of, the terms and conditions contained on the reverse side of the order form annexure "A" and on the other hand it is saying that it did not enter into an agreement with regard to the installation of the furnace. Be that as it may, I shall proceed to deal with both of these two seemingly contradictory defences.

It is common cause that the reverse side of the standard order form which was faxed to the plaintiff contains the wording that appears in annexure "A" to the defendant's plea.

The defendant sought to rely on the following clauses that appear on the terms and conditions: In English:

" The company shal 1 not be liable for any direct consequential loss or damage to goods or property of the customer howsoever arising including but not limited to fire, leakages, accident or any other cause during delivery, installation or usage of the goods by the customer." The Afrikaans reads as follows:

"Die maatskappy sal nie verantwoordelik wees vir enige skade voortspruitend deur brand, lekkasie of enige ander ongeluk aan eiendom en goedere van die koper tydens lewering en installasie van goedere nie. Koper gebruik geinstalleerde goedere op eie risiko. verkoper word nie aanspreeklik gehou vir enige skade voortspruitend uit die gebruik van goedere nie."

A further clause upon which the defendant placed reliance

was:

"An open fire can be a risk in any home when misused, overheated, left unattended or where incorrectly installed. The company can therefore not be held liable for any direct or consequential loss of or damage whatsoever to the customer's property resulting from the usage of the goods by the customer regardless of who installed the goods. The customer uses the goods at his own risk."

The Afrikaans reads:

"'n Kaggel wat misbruik, oorverhit, ontoewaak of foutiewelik geznstalleer is, is 'n risiko. Die maatskappy aanvaar derhalwe geen aanspreeklikheid vir enige skade voortspruitend uit die gebruik van die goedere nie selfs al was die goedere deur die maatskappy geinstalleer."

A further clause upon which the defendant relied was:

"The company shall not be liable for any loss or damage whatsoever suffered by the customer as a result of the goods or any part thereof or the

workmanship /..

workmanship including work carried out by an agent or sub-contractor being defective in any way or failing to conform wholly or in part with any verbal or written warranty given by the company. " The Afrikaans reads:

"Die maatskappy sal nie verantwoordelik wees vir enige skade voortspruitend uit die lewering van defektiewe produkte of vakmanskap deur die maatskappy of sy verteenwoordigers, agente of sub-kontrakteurs wanneer goedere of dienste nie aan enige skriftelike of mondelinge waarborg voldoen nie. "

Mr Maritz who appeared for Che plaintiff, submitted that in part the Afrikaans version were inconsistent with the English version and that the Afrikaans version was more favourable to the plaintiff. He submitted that the contra proferentem rule should apply so that the Afrikaans version should be operative. He also submitted that it was clear that the contract had been concluded in Afrikaans, the plaintiff being Afrikaans speaking, and the wording that was written into the order form, appeared in Afrikaans.

Mr Maritz also raised the interesting point that the terms and conditions referred to in "the company" whereas the defendant was a close corporation and that therefore the terms and conditions did not make sense insofar as they sought to exonerate the defendant as a close corporation from any liability.

Mr Jordaan who appeared for the defendant, submitted that one should attempt to reconcile the differences between the

English, and the Afrikaans version and that it would only be in a situation where such reconciliation was impossible that the Afrikaans version should prevail.

He submitted that the two versions were reconcilable and that in effect one should make the English wording operative. Interesting as these arguments may be, I do not think I need to decide them to make a decision in this case.

The plaintiff accepted that he had seen the wording appearing on the bottom of the order form. He said that he imagined it related to terms and conditions concerning cancellation and in any event as the amount involved was not considerable, he did not consider it necessary to call for the terms and conditions.

Mr Jordaan relied on the caveat subscriptor rule as set out in Burger v Central South African Railways 1903 TS 571 to submit that by reason of the fact that the plaintiff had appended his signature to a document which alluded to further conditions being contained on the reverse side, the plaintiff should be deemed to have agreed to those conditions and bound by them.

in the third edition of Christie at page 195, it is said: "The true basis of the principle is the doctrine of quasi mutual assent, the question being simply whether the other party is reasonably entitled to assume that the signatory by signing the document was signing his intention to be bound by it. " Further on at page 198 Christie says:

"Does the reasonable man present for signature without reading (as opposed to signature after clause by clause discussion). A document containing terms which no reasonable man would expect to find therein? Or to put it another way, because it is a known fact of life that people habitually sign contracts without reading- them only because they assume they do contain unexpected terms, can it be said that the unwitting signatory of a contract which does not contain unexpected terms, has so conducted himself that a reasonable man would believe he was assenting to those unexpected terms? The answer to both questions must surely be no, and the caveat subscriptor rule should therefore not apply in these circumstances. " Mr Jordaan also relied on the case of Central South African Railways v James 1908 TS 221. This is one of the leading cases known as the so-called ticket cases where persons are in certain circumstances deemed to have agreed to be bound by certain conditions which they did not see. At page 203 of the same work. Christie says:

"The defences available to the customer are the same as in caveat subscriptor cases. In the argument put forward at the end of the previous section about terms which no reasonable man would expect to find in the document, is equally applicable to the ticket cases.

In fact i t can be reinforced by reference to Central South African Railways v McLaren/ Dyer & Roseveare above in all of which the decision turned on what the reasonable customer would expect to find in a document at a particular time and in Central South African Railways v James at 226 where

Solomon J said: "He was quite prepared - as most passengers are - to assume that the rules and regulations were reasonable and to assent to them so to say, blind fold, without reading them." In the fifth edition of A J Kerr "The Principles of the Law of Contract" at page 12 it is said:

"With respect the rules on apparent agreement to which Prof Christie refers as "the principle of quasi mutual assent" are concerned not with what the parties sought to be bought knew but inter alia with whether he conducted himself in such a way that a reasonable man would believe that he was assenting to the terms proposed by the other parry. "

The rule has also been set out in the case of Smith v Hughes (1871) LR 6 QB 597 which was quoted with approval in the case of Steyn v Ellis Motors Ltd 1994 (1) SA 49 (A) : "Remaining for consideration is the further and crucial question whether a reasonable man in the position of offeree would have accepted the offer in the belief that it represented the true intention of the offer in accordance with the objective criterion formulated long ago in the classic dictum of Blackburn J in Smith v Hughes supra at 607. Only if this test is satisfied can the offerer be held on contractually liable." In Kempston Hire (Pty) Ltd v Snyman 1988 (4) SA 465 (T) at 468 G the learned judge president said:

"The plaintiff by adopting the procedure referred to of requiring the signature of an employee such as the defendant, must have known that those employees would not expect to find themselves assuming personal responsibility as sureties. The plaintiff must have known too that none of the employees such as the defendant would study the contract and search for a clause as clause 33. We have a case of misrepresentation by silence. The position is similar to that which was described by Denning LJ in Curtis v Chemical Cleaning and Dying Co Limited [1951] l ER 631 (CA) where he said (at 634 B to C):

"Where one party puts forward a printed form for signature, failure by him to draw attention to the existence or extent of the exemption clause may in some circumstances convey the impression that there is no exemption at all or at any rate not so widen exemption as that which is in fact contained in the document."

In the case of Diner's Club SA (Pty) Ltd v Thorburn 1990 (2) SA 870 (C) a judgement of Tebbutt J and Burger AJ, as he then was, the following is said at 875 C:

"I consider it sound inference that the party who drafts the contractual document would be blameworthy if he did so in such a way as to turn it into a trap containing onerous clauses which would not reasonably be expected by the other party. A signatory can be misled by the form and appearance of the document itself. Justice matches by a prior advertisement or presentation. Obviously, however, each case must be decided on its own facts."

In the case of Diner's Club SA (Pty) Ltd v Livingstone and Another 1995 (4) SA 493 (W) Labe J said at 495 G:

"The whole get-up of the enrolment form is such to mislead a person into thinking that only the company mast be considered for enrolment into a Diner's Corporate Account."

In my view I cannot see how the reasonable bystander could reasonably infer in circumstances such as this that the defendant intended to convey to the plaintiff that by signing the order form, it would be exonerating the defendant from all liability that may arise from installation. Indeed I have much sympathy with the opinion expressed by the plaintiff that the reference to "sien keersy vir verdere voorwaardes" was a reference to the terms and conditions of cancellation. But in any event where one party invites the other to enter into a contract and cannot be bothered to submit to that other party the "keersy", I cannot believe that any reasonable person would expect that the party so signing the document which was sent to him intended to be bound by other documents not sent to him and of which he had no particular knowledge.

It seems to me to be fundamentally offensive to policy and well settled law to have expected in these circumstances the plaintiff to have called for the reverse side of the conditions and to have satisfied himself as to their content before signing the document.

I am quite sure that the plaintiff is to be believed when he says that he did not believe that he was signing away all his rights and that he would not have signed away all his rights had he been aware this was expected of him.

I turn now to deal with the question of whether or not it was the defendant which installed the furnace. The plaintiff testified that after he had sent back by telefax the order form no 1 in bundle "A", he again telephoned the offices of the defendant and enquired when the furnace would be installed and delivered. He was told that they used a person who is a builder who would install the furnace. He was asked to make out two cheques - one for the installation and one for the furnace. He arranged a particular day for the installation and left home, leaving the two cheques with the payees left blank and the amounts filled in with his mother-in-law. On 21 April 1997 a certain Mr Blignaut from Gates & Goods delivered and installed the furnace. Mr Blignaut took the cheque for R850.00 and handed over the cheque for R2 100,00 to the defendant. Both these cheques were banked and duly paid. At the same time a document known as a warranty issued by Home Fires (Pty) Ltd was left at the home of the plaintiff. This is a warranty guaranteeing the furnace itself from faulty workmanship.

It is significant that the warranty is issued in the name of a company Home Fires (Pty) Ltd whereas the contract entered into between the parties was between the plaintiff and a close corporation known as Home Fires Transvaal CC. This fact i.e. that there is some confusion or potential for confusion between who might be held liable for what, suggests to me that the point raised by Mr Maritz that the fact that the terms and conditions on the back page of the order form referred to a company and not a close corporation, is not a frivolous or insubstantial point but I leave it at that and take the matter no further.

On 15 May shortly after the plaintiff had retired to bed, the lights in the house tripped. The plaintiff's mother-in-law who had been left sitting near the furnace watching television, came to him and reported that the house appeared to be on fire. Very shortly thereafter the entire house was gutted including the contents.

It is common cause that prior to the fire the plaintiff had never met Mr Blignaut. It is common cause that he had no dealings with Mr Blignaut whatsoever, it is also common cause that Mr Blignaut had indeed at some time prior to the fire been employed by the defendant as one of its sub-contractors.

If one looks at the fact as a whole, it seems that it must have been true as a matter of overwhelming probability that Mr Blignaut who installed the furnace collected it from the defendant and delivered it to the plaintiff on the defendant's behalf. The significance of this fact, I shall deal with later.

The defendant contends that Mr Blignaut or Gates & Goods was clearly in these circumstances not the agent of the defendant but an independent contractor. Most strongly, for this contention, the defendant relies on the fact that the plaintiff agreed to make a separate payment to whoever it was who was to install the furnace.

The fact that one person may agree to make a payment to another at the request of a third party, does not indicate that the person making the payment intended to enter into a fresh and different contract with the party to whom the payment was made neither does it indicate that the obligations arising from the original and main contract between debtor and creditor are extinguished. Indeed the arrangement which the plaintiff made with the defendant to make the separate payment to whoever installed the furnace, is an ordinary and everyday occurrence that happens countless times in our society.

Undoubtedly there may well be situations where payment by one person to another would be a sufficiently strong indication to indicate that the main contract was concluded between those two parties. The proper approach is to look at the facts in their entirety. Indeed I would refer back to the principles set out in Carr at page 12 and in the case of Smith v Hughes and Steyn v Ellis Motors Limited. The question has to be asked what would the reasonable person viewing these facts infer therefrom.

The facts in totality are that the unchallenged evidence of the plaintiff is that he requested the defendant to give him a quotation for the purchase and installation of the furnace,- he did in fact so receive such a quote and he did accept it on that basis {indeed he wrote on the form conveying his acceptance "please advise installation date"); he made arrangements with the defendant for the installation; he had no contact whatsoever prior to the installation or the fire with this Mr Blignaut; the price was not negotiated between the plaintiff and Mr Blignaut (by that I am referring to the price of the installation); the total amount that the plaintiff paid in the end was the amount that was quoted to him originally R2 950,00. Furthermore the fact that Mr Blignaut collected the furnace from the defendant and delivered it to the plaintiff on 21 April 1997, is a further factor which strongly points to the fact that Mr Blignaut was, at the time that he installed the furnace, acting throughout as the agent of the defendant. The fact that a separate cheque was made out and paid to him, was a matter of convenience. It cannot be said that it is an effective and fundamental pointer to the fact of a contractual relationship (for installation) with a different party.

For these reasons I am satisfied that the defendant's defence that it is not liable on the basis that it did not install the furnace, must fail.

There remains the question of costs. Mr Maritz submitted that the costs of two counsel are warranted in this matter. I disagree with him. I do not believe that this is a matter of sufficient complexity that it is appropriate that the costs of two counsel are awarded. Obviously the fact that the plaintiff considered it prudent to employ two counsel. The plaintiff is fully within its rights to do so and it is fully understandable that the plaintiff decided to employ two counsel. This does not however justify the further result that the defendant should have to bear cost of two counsel.

Mr Jordaan who appeared for the defendant yesterday afternoon requested that the matter stand down and tendered the wasted costs occasioned by standing the matter down until this morning. My cost order is to include these wasted costs.

In the result the following order is made:

1. The defendant is liable for payment of such damages as plaintiffs suffered as a result of the fire which occurred at their premises on 15 May 1997.

2. The defendant is to pay the costs.

COURT ADJOURNS

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