Elgin Brown & Hamer (Pty) Ltd. v Industrial Machinery Suppliers (Pty) Ltd. (272/92) [1993] ZASCA 55; 1993 (3) SA 424 (AD); (1 April 1993)

Elgin Brown & Hamer (Pty) Ltd. v Industrial Machinery Suppliers (Pty) Ltd. (272/92) [1993] ZASCA 55; 1993 (3) SA 424 (AD); (1 April 1993)

The court held that clause 8 of the defendant's Standard Conditions of Contract is clear and unambiguous in excluding liability for any loss or damages, including those arising from negligence or defective workmanship. The introductory words do not create a reciprocal obligation that limits the exclusionary effect of the clause. South African law does not recognize the doctrine of fundamental breach as a limitation on exemption clauses; the scope of such clauses is determined by their wording. The plaintiff's particulars of claim, which allege breaches covered by the exemption clause, do not disclose a cause of action against the defendant. The exception was correctly upheld, and the...

Citation
[1993] ZASCA 55
Parties
Appellant: Elgin Brown & Hamer (Proprietary) Limited; Respondent: Industrial Machinery Suppliers (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 April 1993
Case Number
272/92
Procedural Posture
Civil Appeal / Appeal From Exception Upheld in the Court a Quo
Outcome
Appeal dismissed with costs, including costs of two counsel. Plaintiff's particulars of claim against the first defendant set aside with leave to amend within thirty days.
Judges
Hoexter, Smalberger, F H Grosskopf, Van Coller, Kriegler
Legal Topics
Contractual Exemption Clauses, Fundamental Breach, Malperformance, Striking Out of Pleadings
Commercial and Corporate Civil Procedure Contractual Exemption Clauses Fundamental Breach Malperformance Striking Out of Pleadings

Case Brief

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Parties

Elgin Brown & Hamer (Proprietary) Limited

Appellant

Industrial Machinery Suppliers (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Exception Upheld in the Court a Quo

Legal Issues

  1. 1 Whether clause 8 of the defendant's Standard Conditions of Contract excludes liability for damages arising from negligence or defective workmanship, including fundamental breaches.
  2. 2 Whether the plaintiff's particulars of claim disclose a cause of action in light of the exemption clause.
  3. 3 Whether the exemption clause applies to alleged complete non-performance or only to malperformance.

Ratio Decidendi

The court held that clause 8 of the defendant's Standard Conditions of Contract is clear and unambiguous in excluding liability for any loss or damages, including those arising from negligence or defective workmanship. The introductory words do not create a reciprocal obligation that limits the exclusionary effect of the clause. South African law does not recognize the doctrine of fundamental breach as a limitation on exemption clauses; the scope of such clauses is determined by their wording. The plaintiff's particulars of claim, which allege breaches covered by the exemption clause, do not disclose a cause of action against the defendant. The exception was correctly upheld, and the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel. Plaintiff's particulars of claim against the first defendant set aside with leave to amend within thirty days.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.
  • The order of Mall AJ is altered to read: (a) The exception is upheld. (b) The plaintiff's particulars of claim as against the first defendant are set aside and the plaintiff is given leave, if so advised, to file amended particulars of claim within thirty days. (c) The plaintiff is to pay the costs, including the...