Drifters Adventure Tours CC v Hircock

• Jurisdiction: South Africa
• Citation: 2007 (2) SA 83 (SCA)

Drifters Adventure Tours CC v Hircock
2007 (2) SA 83 (SCA)

2007 (2) SA p83

Citation	2007 (2) SA 83 (SCA)
Case No	602/2005
Court	Supreme Court of Appeal
Judge	Zulman JA, Farlam JA, Conradie JA, Mlambo JA and Maya JA
Heard	September 4, 2006
Judgment	September 29, 2006
Counsel	A R Sholto-Douglas SC (with him S Miller) for the appellant.; R S van der Riet SC for the respondent.

Flynote : Sleutelwoorde D

Contract — Terms of — Exemption clause — Interpretation of — Indemnity form containing wide and narrow exemption clauses (front and reverse of form) — Adventure tourism — Bus accident on public road — Word 'driving' — Whether including passenger transportation on open road. E

Headnote : Kopnota

The respondent had sustained injuries as a result of a motor vehicle accident negligently caused by the appellant's employee, while she had been a passenger on a tour arranged by the appellant, for which she had claimed damages from the appellant. The appellant had claimed that it was excluded from such liability on the basis of an indemnity form signed by the respondent before the tour. The front of the F form had a wide indemnity clause and a statement that the conditions on the reverse of the form had been read, fully understood and accepted. The reverse conditions contained a more limited clause that exempted the appellant from liability arising from, inter alia, 'the nature of hiking, camping, touring, driving'. The Court a quo had held that the form did not exempt the appellant from G liability.

Held, that indemnity provisions in general should be construed restrictively. (Paragraph [9] at 87E.)

Held, further that the wider indemnity clause had to be read and interpreted in the context of the contract as whole, including its reverse side. (Paragraph [10] at 87H - I.) H

Held, further, that in case of doubt, an exemption clause reasonably capable of bearing more than one meaning should be given the interpretation least favourable to, and with a bias against, the proferens. (Paragraph [13] at 88G - H.)

Held, further, that it was possible to interpret the expression 'driving' as driving anywhere in the country and on any terrain, including passenger transportation on a public road. However, I the reasonable reader would probably not interpret it in this way and, in light of established canons of interpretation, the Court did not favour this interpretation. The word 'driving' occurred in the context of other adventure activities, and it therefore made better sense to understand it as meaning driving over unmade roads or slippery, steep or otherwise exciting terrain. (Paragraph [14] at 88H - 89A.) J

2007 (2) SA p84

Held, further, that since the appellant was, as a cross-border tour operator, statutorily obliged to have passenger A liability insurance, it would be perverse for it to have contracted out of this liability altogether. (Paragraph [16] at 89E - F.) Appeal accordingly dismissed. (Paragraph [17] at 89G.)

The decision in the Cape Provincial Division, in Hircock v Drifters Adventure Tours CC, confirmed.

Cases Considered

Annotations

Reported cases

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) ([2002] 4 All SA 125): applied

Durban's Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA) ([1999] 1 All SA 411): dictum at 989G - J approved and applied C

Essa v Divaris 1947 (1) SA 753 (A): applied

First National Bank of SA Ltd v Rosenblum and Another 2001 (4) SA 189 (SCA) ([2001] 4 All SA 355): applied

Johannesburg Country Club v Stott and Another 2004 (5) SA 511 (SCA): applied. D

Case Information

Appeal from a decision in the Cape Provincial Division (Selikowitz J). The facts appear from the judgment of Zulman JA and Conradie JA.

A R Sholto-Douglas SC (with him S Miller) for the appellant.

R S van der Riet SC for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: E

Absa Insurance Brokers (Pty) Ltd v Luttig and Another NNO 1997 (4) SA 229 (SCA)

Administrator, Natal v Edouard 1990 (3) SA 581 (A)

Botha (now Griessel) and Another v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) F

Brisley v Drotsky 2002 (4) SA 1 (SCA) ([2002] 3 All SA 363; 2002 (12) BCLR 1229)

Delport and Another v Viljoen and Others 1953 (2) SA 511 (T) at 516G - 517B G

Eastern Cape Provincial Government and Others v Contractprops 25 (Pty) Ltd 2001 (4) SA 142 (SCA) ([2001] 4 All SA 273)

Eastwood v Shepstone 1902 TS 294

Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C)

Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) H

Juglal NO and Another v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division 2004 (5) SA 248 (SCA) ([2004] 2 All SA 268) at 258D - G

Legogote Development Co (Pty) Ltd v Delta Trust & Finance Co 1970 (1) SA 584 (T) at 587

Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A) at 188F - I I

Morrison v Angelo Deep Gold Mines Ltd 1905 TS 775

Nel v Cloete 1972 (2) SA 150 (A) at 170

Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A) at 885E - G

SAR&H v Lyle Shipping Co Ltd 1958 (3) SA 416 (A)

Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) J

2007 (2) SA p85

Savage and Lovemore Mining (Pty) Ltd v International Shipping Company (Pty) Ltd 1987 (2) SA 149 (W) A

Standard Bank v Estate van Rhyn 1925 AD 266 at 274.

Christie The Law of Contract in South Africa 4 ed at 215

Clive and Hutchison 'Breach of contract' in Zimmerman, Visser and Reid Mixed Legal Systems in Comparative Perspective 2004 at 180 B

Kerr The Principles of the Law of Contract 6 ed at 187 - 8 and 191 - 4

Nienaber 'Kontraktbreuk in anticipando in retrospek' 1989 TSAR 1

Van der Merwe et al Contract: General Principles 2 ed at 303.

Cur adv vult. C

Postea (September 29).

Judgment

Zulman JA et Conradie JA:

[1] This appeal, with the leave of this Court, is against a decision of Selikowitz J in the Cape High Court to the effect that an D indemnity clause in a contract between the parties did not serve to exempt the appellant from liability to the respondent, arising out of injuries sustained by her.

[2] The appellant is a tour operator conducting business under the name Drifters. The respondent currently resides in Maryland, E United States of America. Gerhard Wildhelm...