D & H Piping Systems (Pty) Ltd v Trans Hex Group Ltd. and Another (119/05) [2006] ZASCA 29; 2006 (3) SA 593 (SCA) ; [2006] 3 All SA 309 (SCA) (24 March 2006)

D & H Piping Systems (Pty) Ltd v Trans Hex Group Ltd. and Another (119/05) [2006] ZASCA 29; 2006 (3) SA 593 (SCA) ; [2006] 3 All SA 309 (SCA) (24 March 2006)

The Supreme Court of Appeal held that the respondent's general terms and conditions, including exclusion clauses, were not incorporated into the contracts of purchase and sale, as no authorized representative of the appellant had knowledge of or assented to them. The respondent was found to be a manufacturing seller, as the processes applied to the raw dolomitic rock resulted in aggregate and sand with commercial utility distinct from the original material. The court confirmed that a manufacturing seller is liable for consequential loss caused by latent defects in the goods sold, regardless of knowledge or expertise, unless liability is expressly or tacitly excluded. In this case, there...

Citation
[2006] ZASCA 29
Parties
Appellant: D & H Piping Systems (Pty) Limited; Respondent: Trans Hex Group Limited; Respondent: Trans Hex Mining Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 March 2006
Case Number
119/05
Procedural Posture
Civil Appeal / Appeal From Court a Quo; Preliminary Issues Separated and Decided
Outcome
Appeal upheld; respondent declared liable as manufacturing seller for consequential damages arising from latent defects, subject to proof.
Judges
Howie, Mthiyane, Cloete, Maya, Cachalia
Legal Topics
Liability of Manufacturing Seller, Latent Defect, Exclusion of Consequential Loss, Incorporation of Standard Terms, Course of Dealing, Contractual Damages
Commercial and Corporate Civil Procedure Liability of Manufacturing Seller Latent Defect Exclusion of Consequential Loss Incorporation of Standard Terms Course of Dealing Contractual Damages

Case Brief

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Parties

D & H Piping Systems (Pty) Limited

Appellant

Trans Hex Group Limited

Respondent

Trans Hex Mining Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Court a Quo; Preliminary Issues Separated and Decided

Legal Issues

  1. 1 Was it a term of the contracts that the respondent would supply dolomitic aggregate and sand for use in the manufacture of concrete piping.
  2. 2 Did the respondent's general terms and conditions, including exclusion clauses, form part of the contracts of purchase and sale.
  3. 3 Is the respondent liable as a manufacturing seller for consequential damages arising from latent defects in the goods sold.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent's general terms and conditions, including exclusion clauses, were not incorporated into the contracts of purchase and sale, as no authorized representative of the appellant had knowledge of or assented to them. The respondent was found to be a manufacturing seller, as the processes applied to the raw dolomitic rock resulted in aggregate and sand with commercial utility distinct from the original material. The court confirmed that a manufacturing seller is liable for consequential loss caused by latent defects in the goods sold, regardless of knowledge or expertise, unless liability is expressly or tacitly excluded. In this case, there...

Court Disposition

Appeal upheld; respondent declared liable as manufacturing seller for consequential damages arising from latent defects, subject to proof.

Orders

  • The appeal succeeds, with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and substituted with a declaration that (i) the respondent undertook to supply dolomitic aggregate and sand for use in the manufacture of concrete piping; (ii) the respondent's general terms and conditions did not form part of the contractual relationship; and (iii) the...