1

This legal opinion will assess the contractual position of Mvundla on the given facts, the
relevant legal principles and case law, and the possible avenues for a claim against Tim’s
Garage. Given that Mvundla has refused to pay Tim’s Garage for the original service done to
his car on the basis of a counterclaim for damage done to his car, it is necessary to consider
the extent of the Garage’s liability for such damage. With regards to the exemption clause, it
broadly states that the Garage is exempt from any liability whatsoever, and thus there are two
issues at hand with regards to the contract between the parties. The first is whether, given the
facts, the exemption clause is a valid one which forms part of the contract. The second issue
is whether the clause is sufficient to exempt the Garage from liability for the damage suffered
to Mvundla’s vehicle.

An exemption clause is a clause within a contract that is designed to exempt one of the
parties from some kind of liability that would otherwise apply under the common law. They
affect the equity between the parties, and are often imposed on the party in a weaker position.
Most standard-form contracts that one finds at banks or hospitals, where the other party has
no real bargaining power or opportunity to change the terms of the contract, contain such
clauses.1 Thus, the courts are generally suspicious of such clauses and readily come to the aid
of the encumbered party where the law allows such reprieve. Lewis AJA in Van der
Westhuizen v. Arnold2 explained that “the very fact, however, that an exemption clause limits
or ousts common law rights should make a court consider with great care the meaning of the
clause, especially if it is very general in its application.” 3 There are two clear ways for the
courts to keep a tight hold on such exemption clauses; the first is by limiting their effect if
they do not comply with the principles of public policy; the second method is by interpreting
such clauses narrowly, especially if they are unclear, ambiguous or too broad.

The rules for the interpretation of a contract were articulated in the case of Durban’s Water
Wonderland v. Botha4 by Scott JA as follows; if the language of the clause is clear and
unambiguous, then effect must be given to its meaning. However, if such an exemption
clause is ambiguous or unclear, then the Court should interpret it narrowly by restricting its
meaning, and should do so against the proferens5. In interpreting such clauses, the court
1
RH Christie The Law of Contract in South Africa 5ed (2006) 183.
2
2002 (6) SA 453 (SCA).
3
Para 40.
4
1999 (1) SA 982 (A).
5
The proferens is the party whom the clause favours, or the party who preferred the clause as part of their
offer.
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should do so in light of the nature of the contract, and decide what the usual extent of the
liability would be without any exemption clause. Then, when interpreting a particularly broad
exemption clause like the one in the present case, the Court should only allow the clause to
exempt from such usual liability6. Ultimately the purpose of the contra proferens rule when
interpreting an exemption clause is not to strain its meaning, but to ascertain what the parties
intended it to cover.

In the case of Weinberg v. Oliver7 a Garage keeper contracted to garage a vehicle for a
monthly free, subject to the clause that “cars are garaged at owner’s risk” 8. An employee of
the garage then drove the relevant vehicle out of the garage and to his home, and upon return
to the garage the car was damaged. In interpreting the above exemption clause, Watermeyer
JA explained that:
“In my opinion it means that the plaintiff took upon himself certain risks of damage occurring
while it was in the garage. Clearly, while the car was in the garage and exposed to risks
arising from the ordinary activities carried on in the garage...the only risks which he
undertook to bear were risks attendant on the “garaging” of the car in Scott’s garage. He did
not undertake to bear additional risks to which the car might become exposed, if...it was taken
out of the garage and into the public streets.”9
Thus the exemption clause did not cover liability for risks which were outside the scope and
nature of the contract.

Thus given the above authority, in the present case the exemption clause is clear: “Cars
garaged at owner’s risk. No responsibility of any kind will be accepted for any form of
damage occurring to any vehicle while on these premises.” Thus its ordinary meaning should
be given effect to, importantly however, with the limits of the nature of the contract only, as
articulated with reference to Weinberg v. Oliver above. It seems plain that the mechanics
throwing a hubcap around for recreational purposes, in a professional environment where
cars are being garaged for safekeeping and repaired, has nothing to do with the nature of the
contract and any exemption from such would in fact undermine the purpose of the contract;
to repair the car rather than damage it, and to take reasonable care of it while in the Garage’s
possession.

6
RH Christie The Law of Contract 188.
7
1943 AD 181.
8
188.
9
181.
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The Garage owner, Tim, denied responsibility for the damage caused by the hubcap thrown
by a mechanic on the basis that the Garage is exempted from liability by the clause in
question. This clause was contained on the job card on which Mvundla placed his fingerprint
as a form of signature, which is evident of his intention to contract. In terms of the caveat
subscriptor rule, which was established in the case of Burger v. Central South African
Railways,10 a person who signs a contractual document thereby signifies his assent to the
contents of the document. The basis of this principle is the doctrine of quasi-mutual assent,
and the issue is whether the party trying to enforce the contract is reasonably entitled to
assume that the signatory was signifying his intention to be bound by the terms of the
contract. In the case of Payne v. Minister of Transport11 the signatory was not aware that the
document contained contractual terms and there was no attempt to draw his attention to their
existence, and thus the other party was unreasonable in assuming the signatory intended to be
bound by the relevant terms. Thus the doctrine is only available to a party in the position of a
reasonable person.

In the case of Mercurius Motors v. Lopez12 the Supreme Court of Appeal considered a case
where the respondent had successfully obtained damages for breach of a contract of deposit,
due to the theft of his motor vehicle from the appellant's premises, to which it had been
delivered to be serviced. The appellant raised in its defence that it was not liable given an
exemption clause which stated that it was “not responsible for loss or damage to cars or
articles left in cars in case of fire, theft or any other cause beyond our control.” 13 This clause
was contained in the “conditions of contract” which appeared on the reverse of a “repair
order form” signed by the respondent when he had delivered the vehicle. The respondent's
attention had not been drawn to the conditions on the reverse of the form when he had signed
it, and thus his claim was upheld by the Court. The rationale was that a reasonable person
who delivers a motor vehicle to be serviced or repaired would ordinarily expect that the
depositary would take reasonable care in the safekeeping of the vehicle entrusted to him.
Importantly, an exemption clause that undermined the very essence of a contract of deposit
had to be clearly and pertinently brought to the attention of a customer who signed a

10
1903 TS 571.
11
1995 (4) SA 415 (O).
12
2008 (3) SA 572 (SCA).
13
Para 12.
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standard-form contract, and not by way of an inconspicuous and barely legible clause that
referred to the conditions on the reverse side of the page in question14.

On the current facts, an important case in point is that of Dlovo v. Brian Porter Motors Ltd 15.
The facts, briefly, are as follows; the respondent had instituted action 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 for the cost of additional repairs to her vehicle
after it had been stolen from the possession of the respondent and damaged. The appellant
had left her car at the respondent’s one garage, and it was then moved to a second garage of
the respondent’s in order to do the required work. The appellant was then contacted and
requested to come in and sign a “job card”, and she was placed under the impression that the
purpose of this was to authorise the respondent to carry out the necessary work. However, her
attention was not drawn to the owner's risk clause at the bottom of the card which stated that:
“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 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.”16
The vehicle was stolen while at the garage, and later recovered, but it had sustained damage
and required further repair. In the court of first instance the Magistrate enforced the
exemption clause as part of the contract, and awarded the respondent’s claim and dismissed
the appellant’s counterclaim. On appeal, however, the court considered firstly; whether the
exemption clause formed part of the contract between the parties, and secondly; if it did,
whether its effect was to exclude liability for the damage suffered by the appellant arising
from the theft of her car.

The Court held that the transaction between the two parties consisted first of a contract to
repair the vehicle (locatio conductio operis), and second a contract to ensure the safekeeping
of the vehicle while at the garage for repairs (depsoitum)17. The Court also held that if a
person was able to show that they had been misled as to the nature, purport or contents of a
document signed by him, the doctrine of caveat subscriptor would not apply, because he

14
Para 33.
15
1994 (2) SA 518 (C).
16
521 D.
17
523 D.
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would have acted under justus error.18 Further, a contracting party could not rely on the other
parties’ signature when enforcing the contract if they had reason to believe that had the other
party known of the relevant clause in question, they would not have signed the document. 19
Importantly, the “job card” form did not have the appearance of the usual contract and
contained the exemption clause in small print at the bottom of the page; furthermore, the
respondent had taken no steps to bring the above far-reaching clause to the appellant's
attention.20 Given this, the Court held that there was no reasonable basis which entitled the
respondent to accept that the appellant had been aware of the exemption clause; and that the
appellant's employees, having requested her to sign 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 by the
exemption clause21. Thus a reasonable person would not have assumed that the appellant was
assenting to the exemption clause by her mere signature, and thus the Court held that the
caveat subscriptor rule and the exemption clause did not apply.22

In the present case, Mavundla made it known to the receptionist that he was illiterate when
asked to sign a similar “job card” to the case above. Thus, even though the clause was in
bold, the Garage had a duty to bring the relevant clause to the attention of Mavundla when he
gave his assent for the Garage to undertake the required work on his vehicle, and when he
entrusted it into their care. A reasonable person cannot expect an illiterate person to be aware
of an exemption clause on a document he signs, when he has been misled to believe that the
job card was merely “to inform the mechanics in the workshop that this is what he wanted
done to the car”. Thus doctrine of caveat subscriptor does not apply, because he acted under
justus error, and Mavundla cannot be bound by the exemption clause as it does not form part
of the contract. Given this, the rest of the contract – that which Mavundla did intend to bind
himself – stands. It should be noted, that even if Mavundla had known of the exemption
clause when contracting, he still would not be bound, as explained above – the negligent
recreational throwing of a hubcap as a frisbee was completely outside of the nature of the
contract and the ordinary risks involved therein.

18
524 H.
19
525 A.
20
526 E.
21
527 A-B.
22
527 C-D.
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Thus the effect of the removed exemption clause will be as follows; Tim’s Garage does have
a claim against Mvundla for the contractual obligation to pay for the service to his motor
vehicle. However, Mavundla has a counterclaim for the damage caused to his vehicle by the
Garage’s negligence. Mavundla’s claim is based on the patrimonial loss he suffered as a
result of the negligent and wrongful conduct of the employee’s of Tim’s Garage. In law, he
should be compensated for such loss, so they he is restored to the financial position he was in
before the damage occurred. Thus, effectively the balance of the Garage’s claim against
Mavundla, and his counterclaim against the Garage, should be paid to the party with the
greater claim. Thus to settle the above-stated issues; the exemption clause although clear and
unambiguous, does not form part of the contract due to the justus error in it not being brought
to Mavundla’s attention. Also, even if it did form part of the contract, the clause is not
sufficient to exempt the Garage from liability for the damage suffered to Mvundla’s vehicle,
given the nature of the contract.