Lomdard v McDonald's Wingtip [2023] ZAGPPHC 258; 38117/2020 (17 April 2023)

Lomdard v McDonald's Wingtip [2023] ZAGPPHC 258; 38117/2020 (17 April 2023)

The court found that the applicant failed to establish reasonable prospects of success for an appeal to the Supreme Court of Appeal. The disclaimer notice relied upon by the respondent did not contravene section 49 of the Consumer Protection Act and was not ambiguous. The area where the applicant fell was found, on the probabilities, to be safe and not wet. The credibility findings regarding the respondent's witnesses were not such that another court would interfere. No compelling reasons were advanced to justify granting leave to appeal, and the indemnification clause was not found to be against public policy in the circumstances. Accordingly, leave to appeal was dismissed with costs.

Citation
[2023] ZAGPPHC 258
Parties
Applicant: Mandi Lomdard; Respondent: McDonald's Wingtip
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 April 2023
Case Number
38117/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Following a High Court Judgment
Outcome
Leave to appeal is dismissed with costs.
Judges
Vuma
Legal Topics
Leave to Appeal, Disclaimer Clause, Consumer Protection Act, Public Policy, Judicial Discretion
Civil Procedure Commercial and Corporate Leave to Appeal Disclaimer Clause Consumer Protection Act Public Policy Judicial Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

Mandi Lomdard

Applicant

McDonald's Wingtip

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Following a High Court Judgment

Legal Issues

  1. 1 Whether the applicant has demonstrated reasonable prospects of success for leave to appeal to the Supreme Court of Appeal.
  2. 2 Whether the disclaimer notice contravened section 49 of the Consumer Protection Act 68 of 2008 and was against public policy.
  3. 3 Whether the indemnification clause is unenforceable under the Consumer Protection Act and relevant regulations.

Ratio Decidendi

The court found that the applicant failed to establish reasonable prospects of success for an appeal to the Supreme Court of Appeal. The disclaimer notice relied upon by the respondent did not contravene section 49 of the Consumer Protection Act and was not ambiguous. The area where the applicant fell was found, on the probabilities, to be safe and not wet. The credibility findings regarding the respondent's witnesses were not such that another court would interfere. No compelling reasons were advanced to justify granting leave to appeal, and the indemnification clause was not found to be against public policy in the circumstances. Accordingly, leave to appeal was dismissed with costs.

Court Disposition

Leave to appeal is dismissed with costs.

Orders

  • Leave to appeal is dismissed with costs.