Kett v Afro Adventures (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Nienaber JA, Corbett CJ, Eksteen JA, Nienaber JA, Marais JA, Zulman JA
• Judgment Date: 20 September 1996
• Citation: 1997 (1) SA 62 (A)
• Docket Number: 2/95
• Hearing Date: 30 August 1996
• Counsel: D H Soggot SC for the appellant B W Burman SC (with him B S Spilg) for the respondent
• Court: Appellate Division

H Nienaber JA:

The appellant, a Swiss resident, was injured in Botswana when the Land Rover truck in which she was a passenger overturned. I shall refer to her as the plaintiff, to the second respondent, who drove the truck, as the second defendant and to his employer at the time, the first respondent, as the first defendant. The first defendant is a tour operator from Randburg which organises and conducts safaris from Johannesburg to the Okavango swamps. The contract in terms of which the plaintiff was I conveyed when the accident occurred, was entered into by her husband purporting to act in his personal capacity as well as on her behalf. It contained a comprehensive waiver of rights and exemption from liability clause. The plaintiff sued the two defendants jointly and severally for damages in delict, alleging that the accident was J due to the second defendant's negligence. The defendants filed a special plea in

Nienaber JA

A which they relied on the waiver and exemption clause, the second defendant alleging in addition that he had accepted the benefit 'conferred upon him in terms of the said contract'. In the plea over both defendants deny negligence. Both also joined in what is in effect a conditional third party notice in which 'a contribution or indemnification' is sought from the plaintiff's husband. Since the third party is not a party to the appeal, no B more need be said about it. The plaintiff thereupon excepted to the special plea as lacking averments necessary to sustain the proposed defence

'in that ex facie the terms of the contract, the alleged waiver and/or abandonment of rights and/or indemnification made or granted by the plaintiff do not embrace or C extend to actions for damages brought by the plaintiff against the defendants on the grounds of negligent driving'.

The order sought was that the special plea be set aside with costs.

The exception came before Eloff JP in the Witwatersrand Local Division who, judging the exemption clause to be unambiguous and to the point, dismissed it. The following D order was made:

'The exception is dismissed with costs, including the costs involved in the retention of two counsel.'

The plaintiff subsequently applied for and was granted leave to appeal to this Court. The spectre of appealability was not raised before the Court a quo and neither counsel E mentioned it in the heads of argument filed on appeal. Some three weeks prior to the hearing of the appeal the parties were requested, by notice emanating from the Registrar of this Court,

'to be prepared to argue the issue whether the order made by the Court a quo is an appealable "judgment or order" for...