Transnet Limited T/A Transnet Frieght Rail v SA Metal And Machinery CO (Pty) Limited (A 439/2013) [2014] ZAWCHC 114 (7 August 2014)

Transnet Limited T/A Transnet Frieght Rail v SA Metal And Machinery CO (Pty) Limited (A 439/2013) [2014] ZAWCHC 114 (7 August 2014)

Clause 11 of the auctioneer's terms and conditions, properly interpreted, operates as a voetstoots clause, excluding liability for defects but not for non-delivery of the merx as advertised. The contract between the parties was for the sale of specific marine fenders described in the advertisement, inclusive of transmitters and nets. The appellant did not dispute the essentialia of the contract nor the description of the goods. The appellant failed to deliver the goods in accordance with the contractual description and quantity. The clause cannot be construed to exclude liability for non-delivery or to reduce the significance of the advertisement to a mere possibility. The appeal is...

Citation
[2014] ZAWCHC 114
Parties
Appellant: Transnet Limited t/a Transnet Freight Rail; Respondent: SA Metal & Machinery Co (Pty) Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 August 2014
Case Number
A 439/2013
Procedural Posture
Civil Appeal / Appeal From the Court a Quo, With Leave of the Supreme Court of Appeal
Outcome
Appeal dismissed with costs.
Judges
Davis, Baartman, Dolamo
Legal Topics
Voetstoots Clause, Contractual Performance, Auction Sale, Interpretation of Contract, Non Delivery of Merx
Commercial and Corporate Civil Procedure Voetstoots Clause Contractual Performance Auction Sale Interpretation of Contract Non Delivery of Merx

Case Brief

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Parties

Transnet Limited t/a Transnet Freight Rail

Appellant

SA Metal & Machinery Co (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Court a Quo, With Leave of the Supreme Court of Appeal

Legal Issues

  1. 1 Whether Clause 11 of the auctioneer's terms and conditions excluded liability for non-delivery of the advertised goods.
  2. 2 Whether the clause constituted a voetstoots clause or extended beyond its traditional ambit.
  3. 3 Whether the appellant was contractually obliged to deliver the specific marine fenders as described in the advertisement.

Ratio Decidendi

Clause 11 of the auctioneer's terms and conditions, properly interpreted, operates as a voetstoots clause, excluding liability for defects but not for non-delivery of the merx as advertised. The contract between the parties was for the sale of specific marine fenders described in the advertisement, inclusive of transmitters and nets. The appellant did not dispute the essentialia of the contract nor the description of the goods. The appellant failed to deliver the goods in accordance with the contractual description and quantity. The clause cannot be construed to exclude liability for non-delivery or to reduce the significance of the advertisement to a mere possibility. The appeal is...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The appellant is directed to deliver to the respondent 9 x 10 m fenders and 11 x 6 m fenders, inflated, reasonably usable, with nets and transmitters, as purchased by the respondent on auction on 26 November 2009.