Monthly Archives: June 2016

Disclaimer notices

A3_bDisclaimer notices offer protection for owners and employees concerning shopping centres, stadiums, parking lots and other public areas. For these notices to be effective, certain requirements have to be adhered to. False reliance on these disclaimers can be a very expensive mistake. Find out whether your disclaimer notice will be sufficient to protect you and your employees.

Disclaimer notices are commonly seen in shopping centres, stadiums, parking lots and other public areas. These notices are generally aimed at protecting the owner or employees with regards to the area in question, by exempting him/her from legal liability when a member of public using the area suffers damage.

It is well established that disclaimer notices are enforceable when properly implemented. This is clear from the extract below:

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A) at 115:

“If the language of a disclaimer or exemption clause is such that it exempts the proferens from liability in express and unambiguous terms effect must be given to that meaning. If there is ambiguity, the language must be construed against the proferens. (See Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 804 C.)”

According to prevailing case law, when considering whether a disclaimer notice is effective, two factors have to be considered:

Firstly, from the Durban Water Wonderland case, it is evident that for the disclaimer’s content to be effective, the wording thereof must not be ambiguous. It is therefore required that the disclaimer must indicate in express terms what the person relying on the disclaimer is exempted from when someone reads the disclaimer. However, any alternative meaning of the disclaimer notice cannot be too widely interpreted. It is simply required that the meaning of the disclaimer is clear to anyone reading it. This test is implemented so that a vague statement cannot be regarded as sufficient to bind someone according to the legal principle of so called “quasi-mutual assent”, which is the underlying basis binding a person that reads a disclaimer notice.

Consider the following examples: “the owner of the property is hereby exempted” and “the owner, managing agent and any other employee is hereby exempted”. In the first example only the owner of the property is exempted from liability, while in the second example, employees of the owner and the managing agent of the property are included under the exemption clause. The first example would not have been sufficient if damage was caused to a person by the negligence of an employee, as employees were clearly not within the ambit of the notice. It is therefore important to ensure that the wording of a disclaimer is clear, unambiguous and is sufficient to protect all parties that need protection.

A further issue to take into account when the effectiveness of a disclaimer notice is considered is the question whether such disclaimer has been properly displayed. A disclaimer can only be effective when it is found that the disclaimer was displayed in an appropriate position, which would allow the reasonable person to have seen the disclaimer, or to ought to have seen the disclaimer. Practical issues, such as the size of the disclaimer, the distance from the viewer, the visibility, font and positioning of the disclaimer should be taken into account. This test is implemented as the content of the disclaimer can only fall within the knowledge of a person, when the notice is of such a nature that it is easily spotted by someone. When a disclaimer is affixed to a premise, it is therefore important that the above factors be taken into account.

It is clear that a disclaimer is an effective method of protection, especially when used in areas where large amounts of people visit frequently. However, the use of a disclaimer notice is a potentially risky practise, as it must be ensured that the wording and placement thereof is sufficient for the reliance thereon. It is recommended that an attorney be consulted before putting up such a notice.

Bibliography

Cases

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A)

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

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Dog bites and the financial risk it poses to owners

A1_bHaving received a number of matters that ended up in costly litigation we have decided to point out certain risks to dog owners regarding how liability arises and how to manage such risks and protect oneself against potential liabilities.

When a person is bitten and injured by a dog the injured person can institute action against the owner of the dog to recover his/her damages suffered. Guilt on the part of the owner is not a requirement for liability to attach. If the requirements discussed below are met, the injured person need not prove any guilt on the part of the owner of the dog. Thus, irrespective of whether the owner of the dog was negligent or not, the owner can still be held liable for harm caused by his animal.

What must be proven for a successful claim?

In order to succeed with a claim for damages, the injured person must show that:

  1. The person being sued must have been the owner of the relevant animal at the time of the incident. The mere fact that a person is in control of an animal is not sufficient;
  2. The animal is a domesticated animal, which by implication excludes wild animals;
  3. Injury was caused by the actions of the animal acting contrary to the nature of its kind. The animal must have acted differently to what could be expected of a proper and well-mannered animal of its kind. A dog that bites is deeded by our courts to act contrary to the nature of its kind. Where the animal does not act spontaneously but acts due to incitement or other external factors such as a dog that is being teased etc., the animal does not act contrary to its nature when it reacts aggressively;
  4. He/she had a right to be present at the place where the damage was caused. Where a person enters the property of another without invitation, the person will not be able to succeed with this action because the injured person was unlawfully present on the property.

Defences available to the owner of the dog

Although guilt on the side of the owner is not a pre-requisite, a number of defences are available to the owner of the animal in the case of a claim for damages. Defences available to the owner include the following:

  1. Guilty conduct on the part of the injured person. For example, where the injured person provoked the animal by hitting, throwing objects at or teasing the animal;
  2. Causing of damage by a guilty third party. For example, where another person provokes the dog or hurts or teases the animal with the result that the injured person is attacked;
  3. Provocation by another animal. For example, where another dog attacks the owner’s dog and the owner’s dog in the attack bites the injured person;
  4. Consent to prejudice. Where the injured person expressly or tacitly through his/her conduct consents to prejudice. For example, where a person is bitten by a dog but was pre-warned against the dog and then indicates that he/she is not afraid of dogs – “the dog won’t bite me” – a court should find that the injured person tacitly consented to the prejudice and would the person not be able to claim damages from the owner.

What damages can be claimed?

Where a dog bites a person, the person usually suffers damage, therefore he/she can claim for a wide range of damages, including for pain and suffering, loss of life enjoyment, disfiguration or disability, medical expenses incurred and to be incurred in future, loss of income, etc. All of these damages are in principle recoverable from the owner of the dog. Even a person who witnesses the attack on another person, may as a result of the emotional trauma suffered (and upon proving it) claim for damages.

It is important for owners of dogs to take note of their potential liability for the actions of their animals. This liability may be extensive and owners are encouraged to be serious about the proper control of their animals and to keep the animals within the confines of their property.

Short Term Insurance

Most short term householder policies will make provision for liability such as this at a minimal cost to the policyholder. Take the time to discuss this with your broker or insurer. Make sure that adequate insurance is in place. A claim such as this can amount to significant proportions. Your insurer can, however, help you cater for such a risk.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Me, my neighbour and that tree

A2_bThe house was just perfect – the right neighbourhood, well-established garden, beautiful trees waving graciously in the summer breeze with just the right amount of shade next to your swimming pool and veranda. And as the trees are those of your neighbour, no problem with pruning or the leaves, said the estate agent. You fell in love and your family loves the new home.

Autumn arrives. The leaves have changed colour and you have actually taken the competition-winning photographs right from your doorstep! When the leaves started falling, the swimming pool pump required repairs twice due to blockage and your Saturday golf has been replaced with hauling loads of leaves to the garden refuse. During the first thunder storm of the new season the wind ripped a branch off and whipped the branch through your electric fence, taking all off the wall.

The acorns made dents into your brand new pride and joy, whilst the ripe fruit falling down on your lawn has started to rot whilst you were at the beach house. You can’t wait for them to leave this weekend to jump over the fence with your chainsaw … Problems with trees from adjacent gardens are as old as townships itself and since man moved into closer proximity to each other.

To merely jump over the fence and prune, or worse, cut down the tree to your satisfaction will not only constitute trespassing but also malicious damage to property. Many disgruntled neighbour has approached the courts demanding relief. The courts have carefully considered the basis on which you can approach the court, now generally considered as “nuisance”.

You will have to prove to the court that the inconvenience caused to you by your neighbour’s tree is more than you just being fanciful, elegant or having dainty modes and habits of living. The inconvenience caused must materially interfere with your ordinary physical comfort and your human existence.

The standard that the court will consider regarding this infringing of your health, well-being or comfort in occupation of your property, will be that of a normal person of sound and liberal tastes and habits. The test of reasonableness shall be applied taking into account general norms acceptable to a particular society. Actual damage to your property is not a requirement.

The court will, however, also consider the nuisance, even if the tree(s) is actually causing damage, balancing this with your responsibility to tolerate the natural consequence of the ordinary use of the land. In other words, the court will consider the dispute and the decision will involve balancing the competing interests of you and your neighbour.

The judgement of Judge De Vos in Vogel vs Crewe and another 2003 (4) SA 50 (T) raised a further very important aspect – the environment.

In a world where trees and nature are considered all the more important for our well-being and that of the earth, all the more careful consideration should be taken before a demand for the cutting down of a tree is granted.

Judge De Vos noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen. And, like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance.

With our increasing awareness of the importance of protecting our environment, we need to become more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours, and consequently, the neighbours’ trees.

Before you sell your property and move to another neighbourhood altogether, consider a friendly discussion with your neighbour and his pruning company of choice, from YOUR side of the fence.

Explain to your neighbour which branches of which trees are problematic or show him the cause for your concern. And be willing to reach an agreement somewhere in the middle, taking the type of tree, its form of growth and the balance of the tree into consideration. It will not suffice to demand the removal of a large branch unbalancing the tree which will then fall over during the next storm taking down your wall!

If all your efforts, including friendly letters and e-mailed correspondence fall on deaf ears, you are allowed to prune all branches as from the point that it protrude over the wall into your property. You are not allowed to lean over the wall to cut those branches at the neighbour’s side of the wall. You will also be responsible for removing the branches from your property after you have pruned the tree in this manner.

So take your cup of tea, and have a good, impartial look at that “offending” tree. See the insects, the birds fluttering around and the odd lizard. Tranquil, is it not? Must that tree go, or can you tolerate its existence, maybe with a little pruning? Cutting it down, you might just open a view into your neighbour’s garden (or house), which is even less pleasing!

Consider the environment. Tolerate that tree. In the summer you will relish the shade.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Do’s and don’ts of suretyship

A4_bOn 29 May 2015, in the case of Dormell Properties 282 CC v Bamberger[1], the Supreme Court of Appeal (SCA) set out the importance of, firstly, expressly pleading a suretyship clause in a plaintiff’s particulars of claim and, secondly, ensuring that the contract to which a deed of suretyship is annexed is duly signed by all parties thereto.

In the case of Dormell Properties 282 CC v Bamberger[2] (Dormell case) there were two agreements of importance. The first agreement was a written offer to lease agreement concluded between Dormell and Edulyn, duly represented by Bamberger in his capacity as sole director, in terms of which Bamberger undertook to bind himself as surety for Edulyn’s obligations under a second agreement, being the agreement of lease.[3]

The first agreement was properly signed by the parties; however, the agreement of lease was only signed by Bamberger. Annexed to the agreement of lease was a deed of suretyship which Bamberger signed. The deed of suretyship and agreement of lease were annexed to Dormell’s particulars of claim as if this suretyship was the instrument that bound Bamberger as surety and co-principal debtor for the fulfilment of the obligations of Edulyn.[4]

In the court a quo, Savage AJ found that ‘a contract of suretyship requires a valid principal obligation with someone other than the surety as debtor and the liability of the surety does not arise until this principal obligation has been contracted (Caney [C F Forsyth and J T Pretorius Caney’s The Law of Suretyship in South Africa 6 ed (2010)] at 47)’.[5] In the SCA the appellant conceded that no express reference to the first suretyship clause was made in the particulars of claim, but argued, inter alia, that the omission caused no prejudice to Bamberger.[6]

Dormell’s cause of action was based on the deed of suretyship attached to the agreement of lease and not on the suretyship clause in the first agreement. To seek to change this now would amount to an amendment of the particulars of claim and the advancing of a case which was not initially pleaded. Bamberger therefore contended that he was not given the opportunity to raise any defence which he could have raised to the suretyship clause.[7]

The SCA set out that ‘the purpose of pleadings is to define the issues for the parties and the court. Pleadings must set out the cause of action in clear and unequivocal terms to enable the opponent to know exactly what case to meet. Once a party has pinned its colours to the mast it is impermissible at a later stage to change those colours.’[8] Furthermore the court found that Dormell should have expressly alleged a valid contract of suretyship (i.e. that the terms of the deed of suretyship were embodied in a written document signed by or on behalf of the surety which identified the creditor, the surety and the principal debtor). Dormell had to allege the cause of the debt in respect of which the defendant undertook liability as well as the actual indebtedness of the principal debtor.[9]

In the Dormell case the deed of suretyship was invalid and enforceable because it was annexed to an agreement of lease which wasn’t signed by Dormell, and therefore the suretyship was in respect of a non-existent obligation. Dormell conceded that the suretyship pleaded was invalid, but argued that Bamberger would not suffer any prejudice if Dormell was allowed to rely on the suretyship in the first agreement instead. The court found that although it does have discretion regarding keeping parties strictly to their pleadings, it does not agree that this discretion reaches as far as to place a party in the disadvantageous position of not being permitted to raise any legal defence.[10]

In deciding the above, the court looked at whether Bamberger would have conducted his case materially differently, had Dormell’s case been pleaded properly. The court found that he would have, in that he would have been in the position to raise the defence of non-excussion (i.e. that Dormell should have first claimed the outstanding amounts owed from Edulyn and only if they could not pay this amount, should Dormell have claimed from Bamberger).[11] He had not raised this defence in his plea or at the trial because the deed of suretyship annexed to the agreement of lease in terms of which he had waived the defence of non-excussion (which was not signed by Dormell) was relied upon.[12]

The SCA therefore found that Bamberger would suffer prejudice if it were to allow Dormell to rely on the suretyship clause in the first agreement which was not relied upon in the particulars of claim.[13] It is therefore crucial to, firstly, expressly plead the details of a valid suretyship clause in a plaintiff’s particulars of claim and, secondly, to ensure that the contract to which a deed of suretyship is annexed is duly signed by all parties thereto. If you do not do so you may find yourself in a situation where the courts will not allow you to enforce a valid suretyship.

[1] (20191/14) [2015] ZASCA 89 (29 May 2015)

[2] (20191/14) [2015] ZASCA 89 (29 May 2015)

[3] ibid para 1-3

[4] ibid para 5

[5] Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015) para 8

[6] ibid para 8

[7] ibid para 10

[8] ibid para 11

[9] ibid para 12

[10] Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015) para 15

[11] ibid para 19

[12] ibid para 20

[13] ibid para 21

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)