UPS SCS South Africa (Pty) Ltd v Hendrik Cornelis van Wyk t/a Skydive Mossel Bay (421/2020; 422/2020) [2021] ZASCA 131 (1 October 2021)

UPS SCS South Africa (Pty) Ltd v Hendrik Cornelis van Wyk t/a Skydive Mossel Bay (421/2020; 422/2020) [2021] ZASCA 131 (1 October 2021)

The Supreme Court of Appeal held that the contract of carriage was concluded via the exchange of emails, and the exemption clauses in the credit application did not form part of the contract as they were neither furnished nor brought to Van Wyk's attention prior to conclusion. The appellant's attempt to rely on the quotation document was rejected as it was not pleaded or canvassed in evidence. The court found that UPS undertook to arrange the transport of the engine and failed to perform, resulting in the destruction of the engine. UPS was liable for the full replacement value of the engine, as Van Wyk's evidence on quantum was uncontested and substantiated by expert testimony. The appeal...

Citation
[2021] ZASCA 131
Parties
Appellant: UPS SCS South Africa (Pty) Ltd; Respondent: Hendrik Cornelis van Wyk t/a Skydive Mossel Bay
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2021
Case Number
421/2020; 422/2020
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs of two counsel. Application for leave to appeal dismissed with costs.
Judges
Ponnan, Wallis, Saldulker, Mokgohloa, Mabindla-Boqwana
Legal Topics
Contract of Carriage, Exemption Clause, Consumer Protection Act, Quantum of Damages
Commercial and Corporate Civil Procedure Contract of Carriage Exemption Clause Consumer Protection Act Quantum of Damages

Case Brief

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Parties

UPS SCS South Africa (Pty) Ltd

Appellant

Hendrik Cornelis van Wyk t/a Skydive Mossel Bay

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the exemption clauses in the credit application formed part of the contract of carriage between the parties.
  2. 2 Whether the exemption clauses were adequately brought to the respondent's attention as required by the Consumer Protection Act.
  3. 3 Whether the appellant is liable for the full replacement value of the destroyed aircraft engine.

Ratio Decidendi

The Supreme Court of Appeal held that the contract of carriage was concluded via the exchange of emails, and the exemption clauses in the credit application did not form part of the contract as they were neither furnished nor brought to Van Wyk's attention prior to conclusion. The appellant's attempt to rely on the quotation document was rejected as it was not pleaded or canvassed in evidence. The court found that UPS undertook to arrange the transport of the engine and failed to perform, resulting in the destruction of the engine. UPS was liable for the full replacement value of the engine, as Van Wyk's evidence on quantum was uncontested and substantiated by expert testimony. The appeal...

Court Disposition

Appeal dismissed with costs, including costs of two counsel. Application for leave to appeal dismissed with costs.

Orders

  • The application in terms of s 17(2)(b) of the Superior Courts Act 10 of 2013 for leave to appeal against the whole of the judgment of the court below is dismissed with costs, such costs to include the costs of two counsel.
  • The appeal is dismissed with costs, such costs to include the costs of two counsel.