DLOVO v BRIAN PORTER MOTORS LTD t/a PORT MOTORS NEWLANDS 1994 (2)

SA 518 (C) A
1994 (2) SA p518

Citation 1994 (2) SA 518 (C)

Case No A626/92

Court Cape Provincial Division

Judge Rose Innes J and SELIGSON AJ

Heard September 23, 1993

Judgment September 23, 1993

Annotations Link to Case Annotations

B
[zFNz] Flynote : Sleutelwoorde
Deposit - Liability of depositee for goods entrusted to him - Owner's risk clause - Car left for
repairs stolen while in respondent's possession - Appellant, after having left car with
respondent, signing agreement ('job C card') authorising certain additional repairs - No job
card initially required and appellant having relinquished car without qualification of her
rights as depositor - Exemption clause, printed in small print at bottom of job card, not
brought to appellant's attention - Appellant D having been brought under impression that, by
signing job card, she was merely authorising necessary repairs - Would not have signed had
she been aware of clause - Appellant misled and no reasonable basis on which respondent's
employees entitled to assume that appellant was, merely by signing job card, signifying her
intention also to be bound by owner's E risk clause - Appellant's error in respect of exemption
clause justus - Caveat subscriptor rule not applicable.
[zHNz] Headnote : Kopnota

The respondent had instituted action in a magistrate's court claiming R6575,72 in respect of
services rendered to the appellant in repairing her motor vehicle. The appellant
counterclaimed for an amount of R8 341,09 F for the cost of additional repairs to her vehicle
after it had been stolen from the possession of the respondent and damaged. It appeared that
the appellant left her car at the respondent's R branch to have an engine problem seen to, and
that she did not at the time sign a 'job card'; furthermore, that the car was removed from the
respondent's R branch to its N branch without the appellant's knowledge when the former
branch was unable to undertake the work required; that the appellant upon being requested to
do so went to the N branch in order to sign the job card in G respect of the work to be done
there and that she was brought under the impression that the purpose of this was to authorise
the respondent to carry out such work; that her attention was not drawn to the owner's risk
clause ('exemption clause') at the bottom of the job card and that she was therefore unaware
thereof; that she would not have signed the card had she in fact been aware of the clause; that
when she subsequently went to collect her vehicle she was informed that it had been stolen
from the respondent's premises; and that the vehicle was subsequently retrieved in H a
damaged condition and had to be taken to another garage for the aforestated additional
repairs. The magistrate held that the appellant was bound by her signature and that the
exemption clause applied to the contract entered into between the parties. He accordingly
gave judgment for the respondent in the amount claimed, and dismissed the appellant's
counterclaim. In an appeal to a Provincial Division two issues were debated before the Court:
firstly, whether the exemption clause formed part of the contract between the parties, and
secondly, if it did, whether I its effect was to exclude liability for the damage suffered by the
appellant arising from the theft of her car.

Held , as to the first issue, that the transaction between the parties consisted on the one hand
of a contract to repair the vehicle (locatio conductio operis) , and on the other hand of a
contract in terms whereof the appellant delivered her car to the respondent for safekeeping
while it was being repaired (depositum) . (At 523D-E.)

Held , further, that, because the respondent had raised the existence of the exemption clause
as a defence to the appellant's counterclaim, the J onus was on the appellant,
1994 (2) SA p519

SELIGSON AJ

A to the extent that she as depositor disputed this, to establish that no such term had been
agreed upon. (At 524B-C.)

Held , further, that, if a person was able to show that he or she had been misled as to the
nature, purport or contents of a document signed by him or her, the doctrine of caveat
subscriptor (in terms of which a person appending his signature to a document was deemed
to have been aware of its contents and to have had the intention to be bound thereby) did not
B prevail, because he would have acted under justus error . (At 524H-I.)

Held , further, that an important consideration underlying the abovementioned exception to

the caveat subscriptor rule was that a contracting party could not rely on the other party's
signature as manifesting assent when the first party had reason to believe that the other party
would not have signed if he or she had been aware that the writing contained a particular
term. (At 524I/J-525A.)

Held , further, that it had to be borne in mind that no job card had C initially been required
and that the appellant had left her car with respondent without any qualification of her rights
as depositor - it was only later that she had been asked to sign the job card. (At 525H-I and
526D-D/E (in summary).)

Held , further, that there was no reason to doubt the appellant's testimony that she had been
under the impression that she was signing the job card in question only for the limited
purpose of authorising the respondent to carry out the necessary repairs to her car, that she
would not have signed D had she known that it would exempt the respondent from liability,
and that her concession that she had been careless in not reading the conditions printed on the
card did not change this: the job card form did not have the appearance of the usual contract
form and embodied the exemption clause in small print at the bottom of the page;
furthermore, the respondent had taken no steps to bring this far-reaching clause to the
appellant's attention. (At 526E-G.)

Held , further, that the appellant, having been brought under the impression that she was
signing the document only for the limited purpose E explained to her, had been misled by
what she had been told (viz that she had to sign the job card in order to authorise certain extra
repairs), as well as by respondent's failure to do anything in order to draw her attention to the
wider ambit of the job card; that there was no reasonable basis on which the respondent's
employees had been entitled to accept that the appellant had read the job card and had been
aware of the exemption clause; and that the appellant's employees, having requested her to
sign F what they had described as a job card for the specific purpose of authorising the extra
work, were not entitled to assume that the appellant, merely by signing the document, was
signifying her intention to be bound also by the exemption clause. (At 526I/J-J and 527A/B-
B/C.)

Held , further, that the exemption clause was accordingly beyond the range of reasonable
expectation; that a reasonable person in the position of the respondent's employees would not
have believed the appellant was assenting thereto by her signature on the job card; that the
appellant's error in G respect of the exemption clause had been justus ; and that the said
clause was accordingly not binding upon her. (At 527C-D.)

Held , further, that the appeal should accordingly succeed on the first ground, and that, in
view of the above conclusion, it was unnecessary to deal with the second issue before the
Court (viz the effect of the exemption clause). (At 527D-F.) Appeal allowed.
[zCIz] Case Information

Appeal from a decision in a magistrate's court. The facts appear from the H reasons for
judgment.

I Jamie for the appellant.

A C Webster for the respondent.

[zJDz] Judgment

Seligson AJ: This is an appeal from a decision of the magistrate's court I of Wynberg. The
respondent instituted action against the appellant in that court claiming R6 575,72 in respect
of services rendered to the appellant in repairing her motor vehicle. The appellant in turn
counterclaimed for an amount of R8 341,09 being the cost of additional repairs to her vehicle
after it was stolen from the possession of the respondent and damaged.

J The appellant alleged that it was an implied term of the agreement

1994 (2) SA p520

SELIGSON AJ

A between the parties that, whilst the vehicle was in its custody for the purposes of being
repaired, the respondent would exercise due diligent care and take precautions against the
theft thereof.

The amount of the counterclaim allegedly represented the damages suffered by the appellant
as a result of the plaintiff's breach of the agreement.

B At the commencement of the trial in the court a quo the issues in the pleadings were
considerably modified and narrowed by a document headed 'Admissions' which was signed
by both parties' attorneys and handed in to the court by agreement. This document reads as
follows:
C 'The parties are in agreement that the following facts are admitted and be noted as
common cause:
1. That on 22 August 1988 the defendant instructed plaintiff to undertake certain repairs to
her Opel Senator motor vehicle registration CA 407 306. The instructions given by defendant
and the work undertaken by plaintiff are correctly reflected on the plaintiff's job card No 299
annexed hereto, marked "A". It is agreed D that plaintiff duly effected the repairs reflected in
annexure "A", did so in a proper workmanlike fashion and to defendant's specification. It is
further agreed that the defendant signed the job card, annexure "A", in the reception area of
plaintiff's premises when so contracting for the work to be done. Upon the completion of the
work the defendant became indebted to plaintiff in the amount of E R4 027,72, being the
agreed and/or reasonable remuneration due to plaintiff for the work done.
2. That on 26 October 1988 the defendant instructed plaintiff to undertake certain further
repairs to her aforesaid motor vehicle as reflected in the job card No 1160 annexed hereto,
marked "B". That plaintiff duly effected the repairs reflected in annexure "B" in a F proper
workmanlike fashion and to defendant's specification. That defendant signed the job card,
annexure "B", in the reception area of plaintiff's premises when so contracting for the work to
be done. Upon completion of the work by plaintiff the defendant became indebted to plaintiff
in the further amount of R2 548 being the agreed and/or reasonable remuneration due to
plaintiff in terms of the agreement.
3. That during the period 11-14 November 1988, while defendant's G repaired vehicle was
awaiting collection, the said vehicle was stolen from plaintiff's premises in Main Road,
Newlands.
4. That subsequent damage caused to the cylinder head of defendant's vehicle resulted
from abuse of the motor vehicle at the hands of the thief and was not attributable in any way
to faulty workmanship on the part of the plaintiff.
H 5. That on 22 November 1988 the defendant contracted with Reeds Delta, Voortrekker
Road, Parow, to effect certain repairs to the same motor vehicle as set out in job card No
P83460 annexed hereto, marked "C". That these repairs were duly carried out by Reeds Delta
and that defendant became indebted to Reeds Delta in the amount of R7 354,54 in respect of
the aforesaid repairs.
I 6. That on 27 December 1988 the defendant contracted with Reeds Delta to effect certain
further repairs to her motor vehicle as reflected in job card No P84051 annexed hereto,
marked "D". That these repairs were duly carried out by Reeds Delta and that defendant
became indebted to Reeds Delta in the sum of R2 882,81 in respect of the work done.
7. That on 9 January 1989 the defendant contracted with Reeds Delta to effect certain
further repairs to her motor vehicle as reflected in J job card
1994 (2) SA p521

SELIGSON AJ
A No P84262 annexed hereto, marked "E". That these repairs were duly carried out by
Reeds Delta and that defendant became further indebted to Reeds Delta in the amount of
R558,94.
8. That the sole issues remaining for determination be:
8.1 whether the exemption clause, reflected in para 1 of the "conditions of contract" in
annexure "A" and "B", was applicable to the respective contracts between plaintiff and B
defendant; and
8.2 if so applicable, the effect of such exemption clause.'
The trial thereupon proceeded on the basis of these admissions. The magistrate ruled that the
duty to begin was on the appellant having regard to her signature of the job cards. The job
cards, annexures 'A' and 'B' to C the document recording the parties' admissions, consist of
printed forms which make provision for the filling in of details pertaining to the customer, the
motor vehicle, the customer's instructions, the work performed and the cost thereof. In
addition there is a block at the bottom of the page which in print smaller than that used in the
rest of the form contains what are headed 'conditions of contract'. Adjacent to this block D
but not part of it is another block with a blank space designated as being for the customer's
signature.

Clause 1 of the aforementioned conditions of contract reads thus:

'I acknowledge that all vehicles and contents are left in the company's custody, parked,
stored and driven entirely at owner's risk, and that the company shall not be liable or
responsible in any way for loss or damage E of whatsoever nature and howsoever caused,
including loss or damage caused by the negligence of the company's servants, employees or
agents or any other persons.'

The remaining clauses of the conditions of contract relate to the customer's authorisation of
the work and the supplying of necessary parts by the garage proprietor, the scale of charges
and certain ancillary F matters pertaining to the service contract.

The appellant was the only witness called to testify in the court a quo . The salient aspects of
her evidence may be summarised as follows:
(a) Appellant is a woman, aged 46 years at the time of the trial, who received a standard
8 education, can read and write English and G ran her own general dealer's business at the
time of the relevant transaction with the respondent.
(b) The appellant left her motor vehicle at the respondent's Rondebosch branch in order
to have a problem with the engine of her vehicle investigated. She did not sign a job card
when leaving H her vehicle at the Rondebosch branch.
(c) The appellant's motor vehicle was removed from the respondent's Rondebosch
branch to its Newlands branch, known as Port Motors, without the appellant's knowledge or
prior consent, when the former branch was unable to undertake the work required on the
cylinder head of the engine.
I (d) After about two weeks the appellant received a telephone call asking her to come in
to the Newlands branch in order to sign the job card in respect of the repairs to the vehicle.
She understood the purpose of this to be to authorise the respondent to carry out the repair
work to her car.
J (e) She went to the respondent's Newlands branch in response to this
1994 (2) SA p522

SELIGSON AJ
A call, where she signed the job card, annexure 'A', as requested. She was first shown
the damaged cylinder head which had been stripped from the engine and was told that it
required replacement. The respondent's employee, one Koch, told her that before that could
be done she had to sign the job card, which she then did. When she signed the job card it had
not been completed.
B (f) The appellant did not read the conditions of contract at the bottom of the form nor
was her attention drawn to them. She was therefore unaware of the exemption clause but she
would not have signed it had she in fact been aware of it.
 (g) She signed the second job card, annexure 'B' to the admissions, in C similar
circumstances. When she went to fetch her car after the initial repairs, it would not start. She
again left it with the respondent and after a few days received a telephone call informing her
that the car needed a new computer and that she would have to come in again and sign
another job card for the work D to be done. Again she signed the job card without being
aware of the exemption clause or her attention being directed to it. She understood that her
reason for signing it was to authorise the installation of a new computer in the car.
(h) Subsequently, the appellant received a message to collect her vehicle. When she got
to Port Motors she actually paid the account E for the initial work done, but whilst she was
still in the office Koch walked in and informed her that her car had been stolen from the
respondent's premises over the weekend. This was the first she had heard of the theft of her
vehicle. She demanded her money back and it was refunded.
F (i) The appellant's car was later retrieved by the police in a damaged condition and had
to be repaired by Reeds Delta.
(j) Under cross-examination the appellant testified that she had signed the job cards
without reading them because she had dealt with the respondent for many years, had never
had problems and trusted them. She had previously signed job cards, but had not G read them
either. She agreed that she was careless in not reading the documents.
(k) Questioned by the court, the appellant stated that she trusted the respondent in the
sense that she did not expect them to put things in their job cards which would not be
reasonable.
H (l) Certain facts were put to the appellant, which she disputed, including the presence
of a large board in the reception area at Port Motors containing a disclaimer of liability for
vehicles left in the respondent's custody. However, inasmuch as no evidence at all was led on
behalf of the respondent and there is no reason to doubt the evidence given by the appellant,
it is unnecessary for I me to deal with these aspects.

After the appellant had testified her attorney closed her case subject to the possibility of
leading evidence on the counterclaim in the event of the court holding that the exemption
clause was inapplicable. Counsel who appeared for the respondent then closed its case
without calling any J evidence.
1994 (2) SA p523

SELIGSON AJ

A After hearing argument the magistrate determined that the exemption clause was in fact
applicable to the contracts between the parties and gave judgment for the respondent (as
plaintiff) in the amount claimed with costs, whilst dismissing the appellant's counterclaim
with costs. The magistrate did not mention the doctrine of caveat subscriptor , but in effect
applied it by finding that the appellant was bound by her B signature, even if she was not
aware of the exemption clause, because the respondent was entitled to accept from her
conduct that it would apply.

On appeal two issues were debated before us: firstly, whether the exemption clause formed
part of the contracts entered into between the parties and, secondly, if it did, whether its effect
was to exclude C liability for the damage suffered by the appellant arising from the theft of
her vehicle.

As to the first issue

The transaction between the parties was on the one hand a contract for the D letting and
hiring of work, locatio conductio operis , conjoined with the sale of material in connection
therewith, ie the contract to repair the vehicle. It was at the same time a contract of depositum
in terms whereof the appellant delivered her motor car to the respondent for safekeeping
whilst it was being repaired on the understanding that it would be E returned to her after the
repairs were completed.

Insofar as there arose between the parties the relationship of depositor (bailor) and depositary
(bailee) the common-law position would be as follows:
'The principles of our law in connection with the obligations of a bailee in the case of an
ordinary bailment for reward are I think reasonably F clear. The bailee is not an insurer of the
article deposited for safekeeping and is consequently not liable for the effects of a casus
fortuitus . On the other hand he must display ordinary diligence and is liable for the
consequences of culpa levis on his part: if the article is lost or damaged while in his custody,
he must make compensation unless he can show that such loss or damage was occasioned
despite the exercise by him of the care which a reasonably prudent and careful man might be
G expected to have taken in the particular circumstances. The onus rests on him and even if
the loss be shown to be the result of theft by a third person, he does not avoid liability unless
he proves that such theft occurred despite the observance by him of the precautions expected
to be taken (vide, inter alia, Lutuli v Omar 1909 TS 192; Fruhauf v Morrison 1911 TPD 963;
Melrose Steam Laundry v Power 1918 TPD 314). It is, however, H clear, both on principle
and authority, that (subject to certain limitations when public policy is in issue) it is
competent for a bailor to waive rights created for his protection and to agree to rest content
with recourse of less extent against the bailee.'

(Per Murray J, as he then was, in Rosenthal v Marks 1944 TPD 172 at 176-7.) This passage
was accepted by the Appellate Division as correctly I stating the law in Government of the
Republic of South Africa v Fibre Spinners and Weavers (Pty) Ltd 1978 (2) SA 794 (A) at
802F-H. See also Essa v Divaris 1947 (1) SA 753 (A) at 767; Stocks and Stocks (Pty) Ltd v T
J Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 761 in fine -762C.

As indicated above, it is open to the parties to vary the naturalia of the J contract of deposit
by a contractual stipulation which provides for custody
1994 (2) SA p524

SELIGSON AJ

A of the property in question to be at owner's risk and which may relieve the depositary of
liability for negligence. Such an exemption clause may not, however, exclude liability for
damage caused by the wilful or fraudulent acts of the depositary. See the Fibre Spinners case
supra at 803A.

In the instant matter as a result of the pre-trial admissions assented to B by the parties only
the appellant's counterclaim remained in contention. To this the respondent raised the
existence of the exemption clause as a defence. To the extent that the appellant, as depositor,
disputed this, the onus was on the appellant to establish that no such term was agreed upon.
See Stocks and Stocks case supra at 767C; Van Deventer v Louw 1980 (4) SA 105 (O) at
111A-C. C
Mr Jamie , who appeared for the appellant, submitted that an exemption clause of the kind
relied upon by the respondent was an unreasonable provision to be contained in a job card
signed in the circumstances in which the appellant did so and that she had established that her
error in this regard was justus . Accordingly, so it was contended, the caveat D subscriptor
rule, according to which there is a presumption that a person who appends his signature to a
document is aware of its contents and intends to be bound thereby, did not apply.

Christie, in his work The Law of Contract in South Africa 2nd ed at 203, expresses the view,
in my judgment correctly, that:
E 'The true basis of the principle (caveat subscriptor) 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 signifying his intention to be bound by it.'

That this is so appears clearly from the following passage from the F judgment of Fagan CJ
in George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471B-D:
'When can an error be said to be justus for the purpose of entitling a man to repudiate his
apparent assent to a contractual term? As I read the decisions, our Courts, in applying the test,
have taken into account the fact that there is another party involved and have considered his
G position. They have, in effect, said: Has the first party - the one who is trying to resile -
been to blame in the sense that by his conduct he has led the other party, as a reasonable man,
to believe that he was binding himself? . . . If his mistake is due to a misrepresentation,
whether innocent or fraudulent, by the other party, then, of course, it is the second party who
is to blame and the first party is not bound.'

H See also Van Deventer v Louw (supra at 110E-H).

If, however, the signatory is able to show that he/she was misled as to the nature of the
document, its purport or its contents, the doctrine of caveat subscriptor will not prevail, for
the signatory would have acted under justus error . See for example Du Toit v Atkinson's
Motors Bpk 1985 (2) SA 893 (A) ; Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1)
SA 303 (A) I ; Shepherd v Farrell's Estate Agency 1921 TPD 62 and Janowski v Fourie 1978
(3) SA 16 (O) .

An important consideration underlying the exception to the 'duty to read' rule which is
recognised by these cases is that a contracting party does not rely on the other party's
signature as manifesting assent, when the J first party has reason to believe that the other
party would not sign if he
1994 (2) SA p525

SELIGSON AJ

A were aware that the writing contained a particular term. This is the position also in
American law as reflected in the Restatement of Contract, Second s 211. See also Calamari
and Perillo Contracts 2nd ed (1977) at 336-47 especially at 345. For English law, compare
Halsbury's Laws of England vol 9 sv 'Contract' para 295 at 171. Christie (op cit at 206) aptly
makes the point thus: B
'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 not
contain unexpected terms, can it be said that the unwitting signatory of a C contract which
does 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.'

I turn now to consider whether the appellant established in the present case that she was
misled as to the presence of an exemption clause in the D job cards which she signed so as to
take the case out of the caveat subscriptor rule. As was aptly stated by my Brother Tebbutt J
in Keens Group Co (Pty) Ltd v Lötter 1989 (1) SA 585 (C) at 590E:
'In cases of this type, however (as pointed out by Fagan CJ in the George v Fairmead case
supra) , each one must perforce depend on its own particular facts; but the principle to be
extracted from them is, I think, E clear and it is this: if a signatory to a document signs it
under a misapprehension as to its real effect and for that misapprehension the other party is
itself to blame, then the signatory will not be bound.'

It is important to emphasise that the appellant's evidence was F uncontradicted. Her

testimony reads well and was inherently probable. The magistrate, not surprisingly, made no
adverse findings as to her credibility. His decision was based in effect, as I have indicated, on
the caveat subscriptor doctrine and the finding that the appellant was consequently bound by
the terms of the document.

The appellant established the following uncontroverted facts which are G relevant to the
question of whether she was misled as to the existence of the exemption clause when she
signed the job cards:
(i) The appellant was at all times unaware of the exemption clause on the job cards.
She did not read it nor was her attention directed to its presence. She would not have signed
the job cards had she known of the exemption clause. There was also no H visible notice
containing a similar provision in the respondent's premises.
(ii) The appellant was not initially requested to sign any agreement regarding the repairs
to her car when she asked the respondent's Rondebosch branch to fix it. She therefore
entrusted the vehicle to the respondent without in any way I restricting or waiving her
common-law rights.
(iii) The appellant's car was removed to the respondent's Newlands branch without her
knowledge or consent where a cylinder head was removed.
(iv) Between one to two weeks after taking her car to the Rondebosch J branch she was
requested to come into the Newlands branch to
1994 (2) SA p526

SELIGSON AJ
A sign the first job card so as to authorise the repairs to the engine. When she did so
she was aware that she was authorising the work and was undertaking to pay therefor.
(v) She again left her car with the Newlands branch after it would not start when she
called to collect it.
B (vi) She signed the second job card on a subsequent occasion after the respondent had
diagnosed the problem as a faulty computer which needed replacing and had asked her to
come in and sign the job card in order to authorise this.
(vii) The effect of the appellant's evidence was therefore that when she signed the job
card she believed she was only authorising C the specific repairs required - she did not think
she was at the same time acceding to a provision which exempted the respondent from
liability for damage suffered in the event of the theft of her vehicle whilst it remained in the
respondent's custody.

In the circumstances the appellant was requested to sign the job cards D some time after she
had already left her car in the possession of the respondent for the purpose of ascertaining and
rectifying the problem with the engine, and without any qualification of her rights as
depositor. Whilst her later signature of the job cards was obviously intended to bind her
contractually in respect of the work that had to be done on her car, E there is no reason to
doubt her evidence that she believed she was signing for that limited purpose only and that
she would not have signed the documents had she known they would exempt the respondent
from liability inter alia for the negligence of its employees in looking after her car.

The appellant's concession that she was careless in not reading the F conditions printed on the
form does not change this, in my judgment. The job card forms did not have the appearance
of the usual contract form and embodied the exemption clause in small print at the bottom of
the page. No steps whatsoever were taken by the respondent's employees to bring the far-
reaching exemption clause contained therein to the appellant's attention.

G As was stated by Denning LJ (as he then was) in Curtis v Chemical Cleaning and Dyeing
Co Ltd [1951] 1 All ER 631 (CA) at 634B-C in a passage approved by the Appellate Division
in Du Toit's case supra at 905F-H:
'When one party puts forward a printed form for signature, failure by him H 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 wide an
exemption as that which is in fact contained in the document.'

In the present case on the evidence placed before the court a quo the appellant was brought
under the impression that she was signing the I document for the limited purpose explained to
her. She was accordingly misled by what she was told, as well as by the respondent's failure
to do anything to draw her attention to the wider ambit of the job cards. There was no reason
for her to anticipate that there would be an exemption clause of this nature in a job card
signed by her for the express object of authorising the work. Compare Phillips v Aida Real
Estate (Pty) Ltd J 1975 (3) SA 198 (A) at 207A.
1994 (2) SA p527

SELIGSON AJ

A In all the circumstances I am driven to the conclusion, despite the strenuous arguments to
the contrary of the respondent's counsel, Mr Webster , that there was no reasonable basis on
which the respondent's employees were entitled to accept that the appellant had read the job
cards and was aware of the existence of the exemption clause. In my judgment the
respondent's representatives, having requested her to sign what they described as job cards
and specifically for the purpose of B authorising the work, were not entitled to assume that
the appellant, merely by signing the document, was signifying her intention to be bound also
by the exemption clause.

In other words, the exemption clause was, in the context of the C aforementioned facts,
beyond the range of reasonable expectation and a reasonable person in the position of the
respondent's representatives would not have believed that she was assenting thereto by her
signature of the job cards. It follows in my view that the appellant's error in respect of the
exemption clause was justus and that such clause is consequently not binding on her.

D For the aforegoing reasons I am satisfied that the magistrate's holding to the contrary was
incorrect and that the appeal should succeed on this ground.

As to the second issue: the effect of the exemption clause

E In view of the conclusion to which I have come, it is unnecessary to deal further with the
effect of the exemption clause, or the important and interesting question which was debated
before us as to the incidence of onus in respect of grounds of liability not covered by the
exemption clause. See in this regard Stocks and Stocks (supra at 760E-F).

F In the court a quo it was accepted by the parties' representatives that in the event of the
exemption clause being found to be inapplicable, the appellant would be allowed to tender
evidence to establish her counterclaim. The matter must therefore he remitted to the
magistrate's court for this purpose.

I would allow the appeal and make the following order:

G 1. The appeal is allowed with costs, save that no costs are to be recovered in respect of
p 30-68 of the appeal record which are not germane to the appeal.
2. The magistrate's order is set aside and for it is substituted the following order:
H 'The issue referred to in para 8.1 of exh "A" is answered in the negative. The
plaintiff is to pay the defendant's costs.'
3. The matter is remitted to the magistrate's court, Wynberg, for further hearing for the
purpose of deciding the defendant's counterclaim on the basis of the finding referred to in
para 2 of this order. I

Rose Innes J concurred.

Appellant's Attorneys: N J Yekiso & Associates , Athlone. Respondent's Attorneys: Herold,

Gie & Broadhead . J