Anglogold Ashanti Limited v Fluor SA (Pty) Ltd (06/16296) [2008] ZAGPHC 181 (13 June 2008)

Anglogold Ashanti Limited v Fluor SA (Pty) Ltd (06/16296) [2008] ZAGPHC 181 (13 June 2008)

The court found that clause 5.1 of Fluor's tender documents, which excluded liability for damages except as set out in a definitive written contract, formed part of the agreement between the parties. Anglogold's representative was aware of the clause and, by commencing with the works and failing to expressly reject the clause, Anglogold acquiesced to its inclusion. The clause operated as a transitional provision pending finalisation of outstanding terms, and its duration extended until the alleged breach occurred. The court rejected Anglogold's argument for unlimited liability, finding that both parties contemplated limited liability and that the court could not rewrite the agreement to...

Citation
[2008] ZAGPHC 181
Parties
Plaintiff: Anglogold Ashanti Limited; Defendant: Fluor SA (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
13 June 2008
Case Number
06/16296
Procedural Posture
Civil Trial / Separated Issue Under Rule 33(4) Regarding Contractual Terms and Liability
Outcome
Plaintiff's claim dismissed with costs.
Judges
Van Oosten
Legal Topics
Breach of Contract, Contractual Liability Limitation, Exemption Clause, Implied Terms, Contractual Acceptance
Commercial and Corporate Breach of Contract Contractual Liability Limitation Exemption Clause Implied Terms Contractual Acceptance

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Parties

Anglogold Ashanti Limited

Plaintiff

Fluor SA (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Separated Issue Under Rule 33(4) Regarding Contractual Terms and Liability

Legal Issues

  1. 1 Whether clause 5.1 of Fluor's tender documents formed part of the contract and excluded liability for damages.
  2. 2 Whether the agreement between Anglogold and Fluor included an implied term imposing unlimited liability on Fluor for defective work.
  3. 3 What was the duration and effect of clause 5.1 in the contractual relationship.

Ratio Decidendi

The court found that clause 5.1 of Fluor's tender documents, which excluded liability for damages except as set out in a definitive written contract, formed part of the agreement between the parties. Anglogold's representative was aware of the clause and, by commencing with the works and failing to expressly reject the clause, Anglogold acquiesced to its inclusion. The clause operated as a transitional provision pending finalisation of outstanding terms, and its duration extended until the alleged breach occurred. The court rejected Anglogold's argument for unlimited liability, finding that both parties contemplated limited liability and that the court could not rewrite the agreement to...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.