Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom (99/2002) [2003] ZASCA 51; [2003] 3 All SA 496 (SCA); 2003 (5) SA 180 (SCA) (23 May 2003)

Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom (99/2002) [2003] ZASCA 51; [2003] 3 All SA 496 (SCA); 2003 (5) SA 180 (SCA) (23 May 2003)

The Supreme Court of Appeal held that Forbes's standard terms and conditions, including the exemption clause, were not incorporated into the contract with the Government. The reference to 'See Terms and Conditions Overleaf' in the faxed quotation was insufficient, as only one page was sent and there was no 'overleaf'. The court found that the natural and objective interpretation of the fax was that no additional terms applied. Even if incorporation was arguable, Forbes failed to take reasonable steps to bring the exemption clause to the Government's attention, as required by the 'ticket' cases doctrine. The clause was not prominently displayed and was buried among non-contractual...

Citation
[2003] ZASCA 51
Parties
Appellant: Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing; Respondent: Government of the United Kingdom
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 May 2003
Case Number
99/2002
Procedural Posture
Civil Appeal / Appeal From the High Court
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Schutz, Cloete, Heher
Legal Topics
Incorporation of Standard Terms, Exemption Clauses, Quasi Mutual Assent, Contractual Construction
Commercial and Corporate Civil Procedure Incorporation of Standard Terms Exemption Clauses Quasi Mutual Assent Contractual Construction

Case Brief

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Parties

Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing

Appellant

Government of the United Kingdom

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court

Legal Issues

  1. 1 Whether Forbes's standard terms and conditions formed part of the contract concluded with the Government of the United Kingdom.
  2. 2 Whether the reference to 'See Terms and Conditions Overleaf' in the faxed quotation was sufficient to incorporate the exemption clause.
  3. 3 Whether Forbes took reasonable steps to bring the exemption clause to the attention of the Government.

Ratio Decidendi

The Supreme Court of Appeal held that Forbes's standard terms and conditions, including the exemption clause, were not incorporated into the contract with the Government. The reference to 'See Terms and Conditions Overleaf' in the faxed quotation was insufficient, as only one page was sent and there was no 'overleaf'. The court found that the natural and objective interpretation of the fax was that no additional terms applied. Even if incorporation was arguable, Forbes failed to take reasonable steps to bring the exemption clause to the Government's attention, as required by the 'ticket' cases doctrine. The clause was not prominently displayed and was buried among non-contractual...

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.