Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited (CCT 32/22) [2023] ZACC 20; 2023 (9) BCLR 1054 (CC); (2023) 44 ILJ 2391 (CC); 2023 (6) SA 327 (CC) (28 June 2023)

Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited (CCT 32/22) [2023] ZACC 20; 2023 (9) BCLR 1054 (CC); (2023) 44 ILJ 2391 (CC); 2023 (6) SA 327 (CC) (28 June 2023)

The majority of the Constitutional Court held that clause 17 of the SAAFF standard terms and conditions is clear and unambiguous in excluding liability for loss of valuable goods, including theft by an employee, unless special arrangements are made in writing. The Court found that Fujitsu did not make such arrangements and therefore Schenker is not liable. The Court reasoned that the parties voluntarily agreed to the terms, and there is no evidence of unequal bargaining power or unfairness. The clause does not offend public policy, as it does not benefit the employer from the theft, and the risk was assumed by the applicant. The Court distinguished between exclusion of liability for an...

Citation
[2023] ZACC 20
Parties
Applicant: Fujitsu Services Core (Pty) Limited; Respondent: Schenker South Africa (Pty) Limited
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 June 2023
Case Number
CCT 32/22
Procedural Posture
Civil Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Zondo CJ, Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J, Tshiqi J
Legal Topics
Contractual Exemption Clauses, Public Policy, Vicarious Liability, Interpretation of Contracts, Deliberate Wrongdoing, Standard Form Contracts
Commercial and Corporate Civil Procedure Contractual Exemption Clauses Public Policy Vicarious Liability Interpretation of Contracts Deliberate Wrongdoing Standard Form Contracts

Case Brief

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Parties

Fujitsu Services Core (Pty) Limited

Applicant

Schenker South Africa (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court of Appeal, Following High Court Judgment

Legal Issues

  1. 1 Whether the exemption clauses in the SAAFF standard terms and conditions exclude liability for theft by an employee of the respondent.
  2. 2 Whether the exemption clause offends public policy under the Constitution.
  3. 3 Whether the interpretation of the exemption clauses should be restrictive or literal in the context of intentional wrongdoing.

Ratio Decidendi

The majority of the Constitutional Court held that clause 17 of the SAAFF standard terms and conditions is clear and unambiguous in excluding liability for loss of valuable goods, including theft by an employee, unless special arrangements are made in writing. The Court found that Fujitsu did not make such arrangements and therefore Schenker is not liable. The Court reasoned that the parties voluntarily agreed to the terms, and there is no evidence of unequal bargaining power or unfairness. The clause does not offend public policy, as it does not benefit the employer from the theft, and the risk was assumed by the applicant. The Court distinguished between exclusion of liability for an...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

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