THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1048/17

In the matter between:

FOUR WHEEL DRIVE ACCESSORY

APPELLANT
DISTRIBUTORS CC

and

LESHNI RATTAN N O

RESPONDENT

Neutral citation: Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018]
ZASCA 124 (26 September 2018)

Coram:
Lewis, Zondi, Molemela and Schippers JJA and Mokgohloa AJA

Heard:
27 August 2018

Delivered: 26 September 2018

Summary: Locus standi in judicio – appellant claimed that it bore the risk of
damage to a courtesy vehicle damaged when user fatally shot by assailants – locus
standi to sue for cost of repairs not established – alleged lease between appellant
and user not proved – appeal dismissed – judgment must be confined to issues
raised by the parties – court should not decide issues irrelevant to outcome of the
case.

ORDER

On appeal from: KwaZulu-Natal Local Division of the High Court, Durban (D
Pillay J sitting as court of first instance): judgment reported sub nom Four Wheel
Drive Accessory Distribution CC v Rattan NO 2018 (3) SA 204 (KZD).
The appeal is dismissed with costs

JUDGMENT

Schippers JA (Lewis, Zondi and Molemela JJA and Mokgohloa AJA
concurring):

[1] The rule that a party who asserts a claim must prove it lies at the heart of
this appeal. The appellant, Four Wheel Drive Accessory Distributors CC,
(plaintiff) sued the respondent (defendant), the executrix of the estate of the late
Mr Ivin Rattan (the deceased), in the KwaZulu-Natal Local Division of the High
Court, Durban, for R559 817.45 arising from the breach of a written agreement
relating to the use of a courtesy vehicle, which the deceased allegedly concluded
with Land Rover Experience Rentals CC, a non-existent entity. In terms of the
agreement the deceased was obliged to return the courtesy vehicle in the same
condition that he received it. He did not comply with this obligation. He was shot
and fatally wounded by unknown persons whilst travelling in the vehicle, which
was riddled with bullet holes. The amount claimed was the cost of repairs to the
vehicle.

[2] The court a quo dismissed the plaintiff’s claim on the following grounds.
It failed to establish locus standi as it did not prove its interest in the litigation.
The deceased signed an incomplete agreement without reading it, and there was
no consensus about the contents of the agreement upon which the plaintiff based
its claim. The claim was unsustainable ‘for want of good faith on the part of the
plaintiff’. The agreement relating to the use of the courtesy vehicle was against
public policy and violated the Consumer Protection Act 68 of 2008 (the Act). The
appeal is with the leave of the court a quo.

[3] The basic facts are largely common ground. On 26 November 2012 the
deceased delivered his Land Rover Range Rover Sport motor vehicle to the Land
Rover dealership in Umhlanga for repairs. That day Mr Chase Murton, who said
that he was the plaintiff’s ‘assistant manager’ responsible for the day-to-day
running of the business (Mrs Jane Brown, the plaintiff’s sole member, said that
he was employed as a driver), delivered a courtesy vehicle, a Land Rover
Freelander (the Freelander) to the deceased at the Umhlanga dealership. The
deceased signed a written document, purportedly an agreement between Land
Rover Experience Rentals CC and him, in the presence of Mr Murton. This
document, entitled, terms & conditions, comprised a single page with nothing
appearing overleaf, contrary to what was stated therein. It contained no provision
for payment of rental by the deceased.

[4] Two days later, on 28 November 2012, another courtesy vehicle, a Land
Rover Discovery 4 SE (the Discovery), became available. Mr Murton delivered
it to the business address of the deceased who signed a document with identical
terms and conditions as the one he signed in respect of the Freelander. The
particulars of the vehicle (the make, model, registration number and mileage) and
those of the deceased (his address and identity number) were written by hand on
the document by Mr Murton.

[5] The relevant terms of the agreement relating to the Discovery were these:
‘In these terms and conditions (a) “the Company” means Land Rover Experience Rentals cc
(b) “the Customer” means the person, firm or organisation by or on behalf of whom vehicles
are rented under these Terms and Conditions . . . (d) “Vehicle” means the vehicle described
overleaf  (e) “Own Damage Insurance (‘ODI’)” means insurance against damage caused to the
Vehicle, including theft …
1. The Company agrees to rent and the Customer agrees to take the Vehicle on the Terms
and Conditions as set out herein.
2. The Customer will pay the Company on demand all charges due hereunder including
where relevant, sums in respect of ODI, surcharges, additional charges and VAT or
other taxes thereon.
3. ODI and TPI [third party insurance] are available through the Company. There will be
an additional charge, subject to the terms of issue, for ODI and TPI . . . If ODI is not
taken out by the Customer for any reason whatsoever, the Customer will be liable for
the full cost of any damage sustained by the Vehicle.
4. If the Customer has opted to arrange his own insurance on the Vehicle, the cover must
be comprehensive. Any excess on the policy is the responsibility of the Customer. The
Company reserves the right to ask for satisfactory proof of the Customer’s own
insurance prior to the commencement of rental. The Customer is responsible for
ensuring the Vehicle is properly insured from the time of delivery until 12.00 hours on
the first working day following termination of the rental and indemnifies the Company
against the loss incurred or damage to the Vehicle in the event that such cover fails to
be effective. If the Customer becomes aware of any changes in his insurance cover
during the period of the rental the Company’s Insurance Department (insert detail
____________) must be notified immediately in writing. In the event of accident/loss
or damage to the Vehicle the Company will undertake repairs or select a repairer if
applicable and will invoice the Customer for such repairs and any associated costs. Such
invoice will be subject to payment on demand. The Company may at its discretion
accept payment from the Customer’s insurer, however ultimate responsibility is with
the Customer. …

5. The Customer acknowledges that notwithstanding the provisions of (3) and (4) above
he has a duty to ensure that all reasonable care is taken of the Vehicle against damage
or loss throughout the rental period. The Customer accepts responsibility for any loss
or damage to the vehicle caused by his wilful act or negligence. This includes but is not
restricted to responsibility for any loss or damage to the Vehicle or its accessories as a
result of theft occurring when the Customer or his servant or agent has left the keys in
or with the Vehicle and the Customer hereby indemnifies the Company against such
loss or damage
6. …
7. The Customer undertakes to return the Vehicle with all satellite navigation, tyres, tools,
audio equipment and other accessories in the same condition as when received to the
place and on the date set down overleaf.
8. The Company undertakes to provide a Vehicle to the customer which is in good
working order and which functions satisfactorily throughout the rental period. . . .’

[6] As in the case of the Freelander, the document consisted of a single page,
did not provide for rental payable by the deceased and did not describe the vehicle
overleaf, nor the place to, or date on which, the Discovery had to be returned. In
what follows, I refer to this document as ‘the agreement’. The deceased did not
take out own damage insurance in respect of the Discovery and, as already stated,
did not return it due to his tragic demise. The plaintiff obtained the Discovery
from the police.

[7] The logical starting point is locus standi – whether in the circumstances the
plaintiff had an interest in the relief claimed, which entitled it to bring the action.
Generally, the requirements for locus standi are these. The plaintiff must have an
adequate interest in the subject matter of the litigation, usually described as a
direct interest in the relief sought; the interest must not be too remote; the interest
must be actual, not abstract or academic; and it must be a current interest and not

a hypothetical one.1 The duty to allege and prove locus standi rests on the party
instituting the proceedings.2

[8] The rule that only a person who has a direct interest in the relief sought can
claim a remedy, is no more clearly expressed than in the judgment of Innes CJ in
Dalrymple:3
‘The general rule of our law is that no man can sue in respect of a wrongful act, unless it
constitutes a breach of a duty owed to him by the wrongdoer, or unless it causes him some
damage in law.’

[9] The claim as pleaded, in sum, was this. The plaintiff leased the Discovery
from its owner and in terms of that agreement bore the risk of loss or damage to
it. On 28 November 2012 the deceased concluded the agreement in terms of
which he hired the Discovery until his vehicle was repaired. He undertook to
return the Discovery in the same condition that he received it, and accepted
responsibility for the full cost of any damage to the vehicle if he did not take out
own damage insurance. He did not obtain such insurance. The plaintiff retrieved
the Discovery from the police in a damaged condition and therefore the deceased
was liable for the costs of the repairs to it.

[10] In the plea and a reply to a notice in terms of rule 37 of the Uniform Rules
of Court, the defendant denied that the plaintiff had leased the Discovery from its
owner or that it bore the risk of loss or damage to it under such agreement. She
also declined to admit the plaintiff’s identity and that it formerly traded under the
style of Land Rover Experience Rentals. The defendant further denied that the
deceased hired the Discovery from the plaintiff as a replacement for his own
vehicle. She alleged that the Discovery was a courtesy car (provided by Land

1 D E van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-
186.
2 Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575H–I; Kommissaris van Binnelandse
Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1057G–H.
3 Dalrymple & others v Colonial Treasurer 1910 TS 372 at 379.

Rover, Umhlanga, to the deceased); that she had no knowledge of the
circumstances surrounding the agreement; that the Discovery was damaged when
unknown persons shot and fatally wounded the deceased whilst he was inside it;
and that the police had taken possession of the Discovery. The plaintiff’s locus
standi was thus squarely in issue.

[11] The plaintiff’s case that it suffered damage when the Discovery was not
returned in the condition in which it was given to the deceased, was not
established in evidence. Put differently, the plaintiff did not establish an interest
in the Discovery entitling it to claim damages from the defendant. Mrs Brown, in
her evidence-in-chief, said nothing about the plaintiff’s lease agreement with the
owner of the Discovery or that it bore the risk of damage to the vehicle under that
agreement, as alleged in the particulars of claim. In cross-examination she said
that Land Rover South Africa (SA) owned the vehicle; that it had leased the
vehicle to her and then leased it back from her.

[12] In this regard Mrs Brown testified as follows:
‘[MR McINTOSH, counsel for the defendant] The agreement between the plaintiff and Land
Rover is that a written agreement? --- No …
Is it just done orally? --- Yes …
And so how much rental was paid to your company for the hiring of these vehicles by Land
Rover South Africa? --- I think at that stage for the Freelander it was . . . round about R800 per
day and I think the Discovery is slightly higher by about another R200 per day …
…
And who is the owner of the vehicle that got damaged? --- The owner of the vehicle that got
damaged was Land Rover South Africa.
So your evidence is now Land Rover South Africa owns the vehicle that they . . .  lease to
you? --- That is correct.

That they then [lease] back from you? --- That is correct.
So where are the documents that show that agreement? --- There was no contract it was an
agreement.
PILLAY J oral agreement? --- Yes, an oral agreement.
MR McINTOSH Where is the agreement of lease between you and Land Rover, surely there
must be something in writing? --- No …
Mrs Brown, I find that astounding. What gives you the right to sue on this case if the vehicle
belongs to Land Rover South Africa? … we in effect lease the vehicle from them.
Is that all you know about that? --- Yes .…’

[13] That was the sum total of the plaintiff’s evidence on its interest in the
Discovery and its entitlement to institute proceedings. It was as clear as mud. Mrs
Brown’s evidence that the plaintiff ‘in effect’ leased the Discovery from Land
Rover SA makes no sense. Why would Land Rover SA, the owner of the
Discovery, lease it to the plaintiff, only to rehire it again? This, when it was a
courtesy vehicle made available to Land Rover SA’s customers at no cost. And
if Land Rover SA rehired the Discovery, how then did the deceased become a
‘lessee’ of the Discovery? On the plaintiff’s case there was no vinculum iuris
between him and Land Rover SA. Mrs Brown’s evidence also cannot be correct
because it is unclear which entity in the alleged arrangement between the plaintiff
and Land Rover SA is the lessor, and which the lessee. Further, it is highly
improbable that Land Rover SA, a national motor dealership, would have
concluded an oral contract with the plaintiff, a close corporation. And it is equally
improbable that as owner, Land Rover SA would not have insured the Discovery
against loss or damage. The vehicle was virtually brand new – it had covered only
5 588 km.

[14] Mrs Brown’s evidence regarding the alleged agreement between Land
Rover SA and the plaintiff was more confusing in the light of her earlier
testimony, which was at odds with the alleged agreement with Land Rover SA.
She referred to a document entitled, ‘Car Hire Request’, apparently prepared by
Lazarus Car Hire (a name under which Mrs Brown formerly traded), on which
the deceased’s name appeared, but which reflected Europe-Assist – a wholly
different entity – as the ‘client’ (of Lazarus Car Hire) regarding the hire of the
Freelander. Even more confusingly, she testified that the deceased was the ‘client’
and that the instruction came from Europe-Assist which provided the Freelander
for use by the client. Then she said that when the Land Rover dealership did not
repair the deceased’s vehicle within 72 hours, it approached Europe-Assist
directly (and not the plaintiff) for an extension of the hire of the Freelander for an
extra day, which was granted.

[15] So, the relationship between Land Rover SA, the owner of the Discovery,
and the plaintiff, was not at all clear from Mrs Brown’s evidence. And the role of
Europe-Assist in the provision of courtesy vehicles to customers of Land Rover
SA only added to the obscurity. It is thus hardly surprising that counsel for the
appellant glossed over the plaintiff’s interest in the Discovery which entitled it to
sue for damages. It was merely submitted (without any reference to the record)
that the plaintiff supplied courtesy vehicles to customers of Land Rover SA ‘in
terms of a contract it has with Europe-Assist and Land Rover South Africa’.
However, there was no evidence of any contract between the plaintiff and Europe-
Assist.

[16] Apart from this, the agreement itself was not proved. Contrary to the
plaintiff’s assertion, it was not a lease. It is trite that the essential terms of such a
contract are an undertaking by the lessor that the lessee shall have the use and
enjoyment of the thing leased for a limited period of time, in consideration for the

payment of a certain or ascertainable rental amount.4 The agreement did not
provide for any rental payable by the deceased. Mr Murton conceded that the
client paid no rental for the vehicle, but nonetheless insisted that the agreement
was a rental agreement between the deceased and the plaintiff. The allegation in
the particulars of claim that the deceased ‘hired the … Discovery from the
plaintiff as a replacement for his vehicle’, was simply not proved. It is accordingly
unnecessary to decide what kind of agreement was concluded between the
plaintiff and the deceased. If anything, it was a contract of loan for use.

[17] Further, the evidence disclosed that the agreement was incomplete; that its
terms were not discussed with the deceased; and that he did not appreciate that
he was concluding a contract with the plaintiff for the hire of the Discovery. Mrs
Brown conceded that the agreement was incomplete. Mr Murton testified that he
became aware for the first time during the trial that the word ‘overleaf’ appeared
in the agreement, and that he did not notice that there was a reference to a close
corporation in it. He said that usually when he delivered a vehicle, he would ‘go
through the handover period, explain to the client the insurance excess and get
the client to sign the document’. He conceded that when he went through the
agreement he did not notice that it referred to Land Rover Experience Rentals
CC, and that it would appear to a third person reading the document that the said
corporation was a party to it; and further that when concluding such agreements
he had used the wrong documentation without noticing it. Mrs Brown testified
that Land Rover Experience Rentals was a former trading name, that it was not a
close corporation and that the agreement referred to the wrong entity. In the light
of this evidence it cannot be suggested that at the relevant time, the deceased
appreciated that he was concluding an agreement with the plaintiff.

4 P J Badenhorst, J M Pienaar and H Mostert Silberberg and Schoeman’s: The Law of Property 5 ed at 430 para
18.1; Southernport Developments (Pty) Ltd v Transnet Ltd [2005] 2 All SA 16 (SCA); 2005 (2) SA 202 (SCA)
para 6.

[18] In addition, when asked whether the deceased had read the agreement, Mr
Murton replied that the deceased ‘scanned over’ the agreement, as he did not have
much time.Mr Murton said that he delivered between five and ten vehicles a day,
and could not explain the whole document to a customer. He said that he
explained to the deceased the ‘insurance process and fuel and where to return the
vehicle’, and that the deceased signed the agreement. Later in his testimony
however, Mr Murton could not explain how the insurance worked, referred to in
clause 3 of the agreement. He said that the agreement was in a flip folder, which
the deceased merely held and signed in his presence. The evidence and
probabilities point overwhelmingly to the conclusion that the deceased did not
enter into any agreement for the hire of the Discovery – he simply acknowledged
receipt of a courtesy car.

[19] The court a quo was thus correct in holding that the plaintiff did not prove
that it bore any risk in respect of the Discovery. It did not prove an interest in the
litigation and consequently failed to establish locus standi. The court also rightly
found that no contract came into being because there was no consensus regarding
the terms (and nature) of the agreement. That should have been the end of the
matter. Indeed, the court a quo held that the failure to prove locus standi was
‘dispositive of the entire action’.

[20] But then the court embarked on an analysis of the common law duty to act
in good faith, and, with extensive reference to Barkhuizen,5 concluded that the
agreement was against public policy and therefore invalid. This, after it had
scarcely found that no agreement had been concluded between the plaintiff and
the defendant. The court stated that the public policy concerns discussed in
Barkhuizen found expression in the Act and went on to find that the agreement

5 Barkhuizen v Napier 2007 (5) SA 323 (CC).

violated the Act in numerous respects. Neither of these issues was raised in the
pleadings; they were introduced by the court a quo of its own accord.

[21] On first principles, a judgment must be confined to the issues before the
court.6 In Slabbert,7 this court said:
‘A party has a duty to allege in the pleadings the material facts upon which it relies. It is
impermissible for a plaintiff to plead a particular case and seek to establish a different case at
the trial. It is equally not permissible for the trial court to have recourse to issues falling outside
the pleadings when deciding a case.’

[22] Our adversarial system of determining legal disputes is a procedural system
in which parties actively and unhindered may put forward a case before an
independent decision-maker. An important component of the system is the rule
that the parties must frame the issues for decision and present their case, and
assign to the court the role of neutral arbiter of the case presented. In Fischer,8
this court stated the rule as follows:
‘Turning then to the nature of civil litigation in our adversarial system, it is for the parties,
either in the pleadings or affidavits (which serve the function of both pleadings and evidence),
to set out and define the nature of the dispute, and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining to the basic human rights
guaranteed by our Constitution, for “(i)t is impermissible for a party to rely on a constitutional
complaint that was not pleaded.” There are cases where the parties may expand those issues by
the way in which they conduct the proceedings. There may also be instances where the court
may mero motu raise a question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no prejudice will be caused to

6 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA) paras 15 and 19.
7 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para 11.
8 Fischer & another v Ramahlele & others 2014 (4) SA 614 (SCA) para 13, affirmed by the Constitutional Court
in South African Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA 123 (CC) para 210, and
Molusi & others v Voges NO & others [2016] ZACC 6; 2016 (3) SA 370 (CC) para 28.

any party by its being decided. Beyond that it is for the parties to identify the dispute and for
the court to determine that dispute and that dispute alone.’9

[23] In my view, a fundamental reason for maintaining the adversarial system
in which the parties identify the dispute, is to ensure that judicial officers remain
independent and impartial and are seen to be so. This is a cornerstone of any fair
and just legal system.10 When a judge intervenes in a case and has recourse to
issues falling outside the pleadings which are unnecessary for the decision of the
case and departs from the rule of party presentation, there is a risk that such
intervention could create an apprehension of bias. The court could then be seen
to be intervening on behalf of one of the parties, which would imperil its
impartiality.

[24] As already stated, a defence that the agreement was contrary to public
policy or that it violated the Act was neither pleaded, nor canvassed in evidence
in the sense that the court was expected to decide it as an issue.11 The court a quo
erred in raising and pronouncing upon these issues: they did not impact on the
decision. Whether the agreement was against public policy or violated the Act
was not material, and the outcome of the case would not have been different had
the court not considered these issues. Thus the statement by the court a quo that
the Act could have influenced its decision, is incorrect.

[25] Moreover, the court a quo incorrectly applied Barkhuizen12 and the
provisions of the Act which, if left undisturbed, may be followed as precedents,
particularly given that the judgment has been reported. The court concluded,

9 Emphasis added, footnotes omitted.
10 President of the Republic of South Africa & others v South African Rugby Football Union & others 1999 (4)
SA 147 (CC) para 35.
11 South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd 1976 (1) SA 708 (A) at 714G.
12 Footnote 5 above.

apparently on the authority of Barkhuizen,13 that the duty to act in good faith was
a common law principle that applied to the plaintiff’s assertion that the deceased
had to insure the Discovery or return it within 72 hours. It found that the lack of
an explanation why Land Rover SA did not sue the defendant; the non-disclosure
as to whether any insurer paid for the damages in the action; and the convoluted
arrangements amongst the plaintiff, Land Rover SA, Land Rover Experience
Rentals, Lazarus Car Hire and Europe-Assist, ‘simply fortifies the finding of bad
faith against the plaintiff’ and dismissed its claim for that reason. Then the court
stated that the agreement ‘was impractical to decipher without costs and
inconvenience to those who had to read and understand it’; and concluded, on the
authority of Barkhuizen, that the agreement was against public policy and
therefore invalid because it was ‘offensive as it impairs the dignity of the
deceased and all those who have to work with it’.

[26] Barkhuizen concerned the constitutionality of a time-limitation clause in
an insurance contract alleged to have infringed the right of access to court under
s 34 of the Constitution. Ngcobo J, writing for the majority, held that s 34 not
only reflects the foundational values that underlie our constitutional order, it also
constitutes public policy. A court could decline enforcement of a time-limitation
clause if a litigant was able to demonstrate that its enforcement would result in
unfairness or would be unreasonable. A court would declare the clause contrary
to public policy and thus invalid, if it does not afford a contracting party fair and
reasonable access to court.

[27] In this case, not only was there no complaint that the agreement was
contrary to public policy, there was no constitutional value implicated in the
provision requiring the deceased to take out insurance or return the Discovery

13 Footnote 5 paras 79-82.

within 72 hours. As was said in Bredenkamp,14 the court in Barkhuizen did not
hold that ‘the enforcement of a valid contractual term must be fair and reasonable,
even if no public policy consideration found in the Constitution or elsewhere is
implicated’. How a difficulty in interpreting an agreement without costs and
inconvenience constitutes an infringement of the right to dignity, has not been
explained. In addition, and contrary to the finding by the court a quo, the
Constitutional Court in Barkhuizen expressly endorsed this court’s holding in
Brisley,15 that good faith is not a self-standing rule to avoid performance under a
contract, ‘but an underlying value that is given expression through existing rules
of law’.16

[28] In South African Forestry Co,17 Brand JA put it this way:
‘. . . although abstract values such as good faith, reasonableness and fairness are fundamental
to our law of contract, they do not constitute independent substantive rules that courts can
employ to intervene in contractual relationships. These abstract values perform creative,
informative and controlling functions through established rules of the law of contract. They
cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to
enforce a contractual provision merely because it offends their personal sense of fairness and
equity will give rise to legal and commercial uncertainty.’

[29] It is not clear from the court a quo’s judgment what rules of contract were
applied in coming to the conclusion that the agreement was invalid due to bad
faith on the part of the plaintiff. More specifically, a requirement obliging a
contracting party to obtain insurance, a failure to explain why an owner does not
sue, non-disclosure as to whether an insurer paid damages and convoluted

14 Bredenkamp & others v Standard Bank of South Africa Limited [2010] ZASCA 75; 2010 (4) SA 468 (SCA)
para 50.
15 Brisley v Drotsky 2002 (4) SA 1 (SCA) paras 31-32.
16 Footnote 5 para 82.
17 South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA) para 27, affirmed in Potgieter &
another v Potgieter N O & others [2011] ZASCA 181; 2012 (1) SA 637 (SCA) para 32.

business arrangements between entities, are neither indicative of bad faith, nor
contrary to public policy.

[30] The Act may be dealt with briefly. It is settled that when interpreting
legislation, what must be considered is the language used; the context in which
the relevant provision appears; and the apparent purpose to which it is directed.18
The preamble to the Act states that it was passed in order, inter alia, to promote
and protect the economic interests of consumers; to improve access to
information so that they are able to make informed choices; to protect them from
hazards to their well-being and safety; to develop effective means of redress for
consumers; and to promote consumer education. Section 2 provides that the Act
must be interpreted in a manner that gives effect to the purposes set out in s 3. In
terms of s 3, the essential purposes of the Act are to promote and advance the
social and economic welfare of consumers in South Africa.

[31] The court a quo dealt with the Act in some detail in its judgment. It found
that because Mr Murton could not explain the terms of the agreement, consumers
could not be expected to understand the content, significance and import thereof.
The court then found that it was impossible to interpret the agreement as required
by s 22(2) of the Act, because it was not in plain language and was therefore
invalid – a finding also unsustainable on the evidence.19 The court a quo went
further and concluded that the agreement violated s 4(5)(a) and (b) of the Act,
since deciphering the agreement was ‘possible only at great costs and

18 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para
18.
19 Section 22(2) provides, inter alia:
‘For the purposes of this Act, a notice, document . . . is in plain language if it is reasonable to conclude that an
ordinary consumer of the class of persons for whom the notice, document … is intended, with average literacy
skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand
the content, significance and import of the notice, document … without undue effort having regard to–
(a) the context, comprehensiveness and consistency of the notice, document . . . .
(b) the organisation, form and style of the notice, document . . . ;
(c) the vocabulary, usage and sentence structure of the notice, document . . . ; and
(d) the use of any illustrations, examples, headings or other aids to reading and understanding.’

inconvenience to its readers’, it was incomplete, the other party was represented
as a close corporation and material insurance arrangements were not disclosed.20
Finally, the court a quo found that the failure to include in the agreement, the
obligation to insure the Discovery after 72 hours or return it before expiry of that
period, and then enforcing that provision, was unfair, unreasonable and unjust as
contemplated in s 48(2) of the Act.21

[32] The short answer to the point that the agreement violated the Act, is that it
was not a transaction as contemplated in s 5(1)(a), which provides inter alia, that
the Act applies to every transaction occurring within the Republic. A ‘transaction’
is defined as,
‘(a) in respect of a person acting in the ordinary course of business–
(i) an agreement between or among that person and one or more other persons for the
supply or potential supply of any goods or services in exchange for consideration;
or
(ii) the supply by that person of any goods to or at the direction of a consumer for
consideration; or
(iii) the performance by, or at the direction of, that person of any services for or at the
direction of a consumer for consideration; or
(b) an interaction contemplated in section 5(6), irrespective of whether it falls within
paragraph (a).’
In terms of the Act,
‘“consideration” means anything of value given and accepted in exchange for goods or
services, including–

20 Sections 4(5)(a) and (b) provide:
‘In any dealings with a consumer in the ordinary course of business, a person must not–
(a) engage in any conduct contrary to, or calculated to frustrate or defeat the purposes and policy of, this Act;
(b) engage in any conduct that is unconscionable, misleading or deceptive, or that is reasonably likely to
mislead or deceive . . . .’
21 Section 48(2) of the Act provides inter alia:
‘… a transaction or agreement . . .  is unfair, unreasonable or unjust if-
(a) it is excessively one-sided in favour of any person other than the consumer . . . ;
(b) the terms of the transaction or agreement are so adverse to the consumer as to be inequitable;
(c) the consumer relied upon a false, misleading or deceptive representation . . . ;
(d) the transaction or agreement was subject to a term or condition . . . , and–
(i) the term, condition or notice is unfair, unreasonable, unjust or unconscionable . . . .’

(a)
money, property, a cheque or other negotiable instrument, a token, a ticket, electronic
credit, credit, debit or electronic chip or similar object;
(b)
Labour, barter or other goods or services;
(c)
loyalty credit or award, coupon or other right to assert a claim; or
(d)
any other thing, undertaking, promise, agreement or assurance, irrespective of its
apparent or intrinsic value, or whether it is transferred directly or indirectly, or involves
only the supplier and consumer or other parties in addition to the supply and consumer.’

[33]   The provision of a courtesy car to the deceased was not an agreement for,
or the supply of, goods or services; or the performance of services at the direction
of a consumer. The agreement did not constitute a transaction between a supplier
and consumer as contemplated in s 5(6) of the Act.22 The deceased gave nothing
of value and the plaintiff accepted nothing in exchange for the use of the
Discovery. So on the plain wording of the relevant provisions, there was no
consideration and thus no transaction as envisaged in the Act.

[34] There is a further principle that the court a quo seems to have overlooked
– leave to appeal should be granted only when there is ‘a sound, rational basis for
the conclusion that there are prospects of success on appeal’.23 In the light of its
findings that the plaintiff failed to prove locus standi or the conclusion of the
agreement, I do not think that there was a reasonable prospect of an appeal to this
court succeeding, or that there was a compelling reason to hear an appeal.24 In the

22 Section 5(6) of the Act provides:
‘For greater certainty, the following arrangements must be regarded as a transaction between a supplier and
consumer, within the meaning of this Act:
(a) The supply of any goods or services in the ordinary course of business to any of its members by a club,
trade union, association, society or other collectivity. . . .
(b) a solicitation of offers to enter into a franchise agreement;
(c) an offer by a potential franchisor to enter into a franchise agreement with a potential franchisee;
(d) a franchise agreement or an agreement supplementary to a franchise agreement; and
(e) the supply of any goods or services to a franchisee in terms of a franchise agreement.’
23 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 7.
24 Section 17 of the Superior Courts Act 10 of 2013 provides in relevant part:
(1) leave to appeal may only be given where the judge or judges concerned are of the opinion that–
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments
on the matter under consideration.’

result, the parties were put through the inconvenience and expense of an appeal
without any merit.

[35] The appeal is dismissed with costs.

_______________

A Schippers
Judge of Appeal

APPEARANCES

For Appellant:
M Pillemer SC and C Smart

Instructed by:

Orelowitz Incorporated Attorneys, Johannesburg
Lovius Block Attorneys, Bloemfontein

For Respondent:
K C McKintosh

Instructed by:

Pat Naidoo Attorneys, Umhlanga KZN
Honey Attorneys, BloemfonteinF