Four Wheel Drive Accessory Distribution CC v Rattan NO

• Jurisdiction: South Africa
• Citation: 2018 (3) SA 204 (KZD)

Four Wheel Drive Accessory Distribution CC v Rattan NO
2018 (3) SA 204 (KZD)

2018 (3) SA p204

Citation	2018 (3) SA 204 (KZD)
Case No	6916/13
Court	KwaZulu-Natal Local Division, Durban
Judge	D Pillay J
Heard	July 4, 2017
Judgment	July 4, 2017
Counsel	C Smart for the plaintiff.; K McIntosh for the defendant.

Flynote : Sleutelwoorde

Contract E — Enforcement — Public policy — Standard form agreement — Text too small to read.

Headnote : Kopnota

This was an action for repair costs based on the non-performance by Mr Rattan of an alleged term in a standard form car-loan agreement (see [3]).

The F agreement was printed on one page, had 25 clauses and many subclauses, and was in text so small 'the court could not read [it] easily even with the aid of a magnifying glass'. (See [25] and [27].)

The alleged term was that the car would be insured for 72 hours, whereafter Rattan had to insure it, or be liable for its damage.

The car was indeed damaged, when, after 48 hours, Rattan was shot and killed G while driving it.

FW [*] then brought the action against Rattan's estate, which the court dismissed on the following grounds (see [70]).

•

FW lacked locus standi (see [23]).

•

It was impossible for Rattan to insure the vehicle (see [30]).

•

The standard form agreement was contrary to public policy and invalid H because its print was too small to read. (See [1], [3] and [42].)

Moreover, the Consumer Protection Act 68 of 2008 (CPA) applied, and the agreement infringed the rights in ss 22, 40 and 48 (to information in plain and understandable language; not to be subject to unconscionable conduct; and against suppliers entering or administering transactions in an unfair, unreasonable or unjust manner). (See [58], [63] and [67].)

Cases cited

Barkhuizen I v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): applied

2018 (3) SA p205

Bondev Midrand (Pty) Ltd v Ndlangamandla NO [2016] ZAGPPHC 939: A considered

Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA): considered

Hattingh and Others v Juta 2013 (3) SA 275 (CC) (2013 (5) BCLR 509; [2013] ZACC 5): referred to

MFC (A Division of Nedbank Ltd) v Botha [2013] ZAWCHC 107: referred B to

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) (2015 (5) BCLR 509; [2015] ZACC 5): referred to

Standard Bank of South Africa Ltd v Dlamini 2013 (1) SA 219 (KZD): referred to

Vousvoukis v Queen Ace CC t/a Ace Motors 2016 (3) SA 188 (ECG): C considered.

Legislation cited

Statutes

The Consumer Protection Act 68 of 2008: see Juta's Statutes of South Africa 2016/17 vol 2 at 1-796. D

Case Information

C Smart for the plaintiff.

K McIntosh for the defendant.

An action for repair costs. The claim was dismissed (see [70]). E

Order

The application is dismissed.

Judgment

D Pillay J:

[1] 'Poor legal writing might result in an injustice for a client: a judge might misunderstand what a lawyer is seeking; an adversary might seize on an ambiguity. To avoid these problems, strive for perfection.' [1] F

To this exhortation must be added the observation of the Constitutional Court:

'The movement towards the infusion of justice and equity or fairness into certain legal relationships is also taken further in the National Credit Act 34 of 2005 . . . and in the Consumer Protection Act 68 of G 2008 (see in part G the reference to the right to fair, just and reasonable terms and conditions and s 48).' [2]

And all writers, including lawyers must know:

'We write ethically when as a matter of principle, we would trade places H with our intended readers and experience what they do as they read our writing. None of us wants to hack through gratuitously unclear writing, so it seems self-evidently unethical to impose that kind of writing on others.' [3]

2018 (3) SA p206

D Pillay J

What A if the legal writing is not easy to see, let alone to read and understand? At the heart of this action is the quality and quantity of the form and content of a written agreement on the basis of which the plaintiff claims payment of an amount of R559 817,45 as the cost of repairing a motor vehicle, a Land Rover Discovery, that was damaged whilst it was in the possession of the late Ivin Chutergun Rattan. Leshni Rattan B is Mr Rattan's executrix representing his estate. It was common cause that the deceased did not cause the damages to the Discovery.

[2] In terms of a written agreement dated 26 November 2012, Land Rover Experience Rentals CC (LRER CC) leased a Land Rover Freelander C to the deceased whilst the deceased's own vehicle was undergoing repairs at Land Rover Umhlanga. On 28 November 2012 LRER CC replaced the Freelander with the Discovery in terms of another similar standard agreement annexed to the particulars of claim as B2.

[3] The terms and conditions agreed could not be gleaned clearly from B2 because the quality of its form was not easy to read. Instead they D emerged during the testimony of Mrs Brown and Mr Murton, the witnesses for the plaintiff. The evidence for the plaintiff was that in terms of B2 the deceased had the use of the Discovery for as long as his own vehicle was undergoing repairs. The Discovery had to be returned in the same condition as when he had received it. Clarity about the insurance E of the vehicle whilst it was in the deceased's possession emerged when Mr Murton testified that the Discovery would be insured for the first 72 hours; thereafter the deceased would have had to make arrangements for his own damage insurance (ODI) or be personally responsible for the vehicle, its rental and other charges. During the initial 72-hour period the deceased was liable only for the excess of R20 000. [4] Counsel F conceded that the conditions pertaining to the 72-hour period were not written into B2.

[4] For its part Land Rover Umhlanga, which was not party to B2, had 72 hours in which to fix the deceased's vehicle. Mrs Brown gave conflicting evidence about whether it was able to do so and whether it G had to secure an extension of one day from Europe-Assist who facilitated the hire of courtesy vehicles on behalf of the plaintiff. Exhibit 1A, a car- hire request dated 26 November 2012 on the letterhead of Lazarus Car Hire, bearing the name of the deceased but listing Europe-Assist as its client, has a handwritten note that an extension was granted. The crucial question was whether the plaintiff informed the deceased that he should H return the vehicle before the expiry of 72 hours. There was no evidence of this.

[5] On 30 November 2012 the deceased was shot and killed whilst driving the Discovery, which was damaged as a result. Naturally the deceased was unable to return the vehicle. It was recovered from the I South African Police Service on 3 December 2012.

[6] The defendant challenges the locus standi of the plaintiff, firstly on the grounds of its identity, and secondly its interest in the claim. It had

2018 (3) SA p207

D Pillay J

no witnesses to call and closed its case without leading any evidence. A I deal with locus standi before considering the enforceability of B2 under the common law and the Consumer Protection Act 68 of 2008 (CPA).

Locus standi

[7] As for the plaintiff's identity, B2 is an agreement between LRER CC B and the deceased. Surprisingly the plaintiff was cited as follows:

'Four Wheel Drive Accessory Distributors CC a close corporation, which has been duly incorporated and registered in accordance with the provisions of the Close Corporations Act 1984 trading under the style of Lazarus Car Hire and formerly trading under the style Land Rover Experience Rentals having its place of business at Church Street Extension Pretoria West, 0001.' C

Mrs Brown testified that there 'isn't a Land Rover Experience Rentals CC' and that 'Experience Care Hire' is a name of another firm that the plaintiff uses.

[8] The plaintiff led its evidence and the matter was adjourned for about D five months. On resumption it applied to rectify B2 by deleting the abbreviation 'CC' in LRER CC. Its explanation was that the plaintiff formerly traded under the name of 'Land Rover Experience Rentals' but B2 did not correctly record the description of its trading name. Apparently, the 'incorrect description of the plaintiff was occasioned by an error common to the parties' [sic]. For these reasons the plaintiff sought E the deletion of the extension 'CC' in B2.

[9] That this was a mutual mistake is an allegation the deceased is no longer available to confirm or refute. In the circumstances the court has to be especially careful in assessing the amendment, which was effected F without opposition. It cannot be correct that it was an 'error common to the parties' because the likelihood of the deceased taking notice of the identity of the other party to B2 when he signed it is remote, considering the quality of the form of B2 and the hurried circumstances in which he signed it. Not even Mr Murton noticed that LRER CC was a close corporation. Both issues are expatiated below. G

[10] What the plaintiff failed to explain is how the 'CC' came to be in B2 in the first place when that was not its trading name. Did such a close corporation ever exist? As B2 is a standard term agreement that was used on both the occasions that the deceased received courtesy vehicles, the plaintiff's explanation remains wanting, if not suspect. H

[11] Despite the defendant challenging the status of the plaintiff in its plea and throughout the cross-examination of its witnesses, the plaintiff failed to produce any documents to prove its incorporation and its relationships with Lazarus Car Hire and LRER with or without the 'CC'. I Its explanation that it was not obliged to produce the documents because its oral evidence could not be refuted is...