First National Bank of SA Ltd v Rosenblum and Another

• Jurisdiction: South Africa
• Judge: Marais JA, Navsa JA and Chetty AJA
• Judgment Date: 01 June 2001
• Citation: 2001 (4) SA 189 (SCA)
• Docket Number: 392/99
• Hearing Date: 21 May 2001
• Counsel: M D Kuper SC (with H van Eeden) for the appellant. P M Wulfsohn SC (with T Ossin) for the respondents.
• Court: Supreme Court of Appeal

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

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

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

Marais JA

application. (See South African Railways and Harbours v Lyle...