The
OK Grand Challenge Jackpot promotion has become an exciting annual
national event to many Zimbabweans as it affords many lucky winners a
rare opportunity to win various prizes ranging from motor vehicles,
residential Stands and an assortment of other items. It is an event
which is aggressively advertised both in the print and electronic
media.
Having
responded ...
The
OK Grand Challenge Jackpot promotion has become an exciting annual
national event to many Zimbabweans as it affords many lucky winners a
rare opportunity to win various prizes ranging from motor vehicles,
residential Stands and an assortment of other items. It is an event
which is aggressively advertised both in the print and electronic
media.
Having
responded to the OK Grand Challenge Jackpot Promotion in 2010, the
plaintiff landed himself in trouble. This civil suit is a direct
result of the plaintiff's desire to participate in one such a
promotion. It caused a nightmare to the plaintiff. Indeed, it earned
the plaintiff quite some traumatic experience.
The
largely agreed facts in this matter can be summarised as follows:-
The
plaintiff is employed as a manager by the Zimbabwe Institute of
Public Administration and is based in Darwendale, a few kilometres
outside Harare, the capital city of Zimbabwe. His duties entail being
in charge of around 100 employees and it is his sole responsibility
to oversee the day to day operations of the institute.
In
2010, and pursuant to the irresistible advertisement by the defendant
inviting customers to participate in the OK Grand Challenge Jackpot
Promotion, the plaintiff went to OK Bazaars Supermarket in Marimba
and bought various groceries worth $999=98 as a result of which he
got coupons enabling him to participate in the exciting competition.
Exhibit
I…, was produced to confirm the transaction made by the plaintiff.
At
the conclusion of the OK Grand Challenge Jackpot Promotion, and to be
precise, on 9 June 2010, the plaintiff emerged as one of the few
lucky winners of the items on offer. The plaintiff's name appeared
in the Herald and the Chronicle (two national newspapers) as having
won a microwave.
After
attending to one or two housekeeping issues with the organizers of
the promotion, the plaintiff was confirmed as a winner and invited to
attend the prize giving ceremony which was to be held at Rainbow
Towers, Zimbabwe on 16 June 2010. Rainbow Towers is one of the
leading hotels situated in the capital city of Zimbabwe, Harare. On
16 June 2010 the plaintiff excitedly attended at the Rainbow Towers
for the prize-giving ceremony. To demonstrate his excitement in
attending the grand occasion the plaintiff went to the Rainbow Towers
in the company of his family and some workmates so that they would be
witness to his rare exciting moment.
There
was a dramatic turn of events at the Rainbow Towers.
The
plaintiff was later to regret why he had ever participated in the OK
Grand Challenge Jackpot Promotion. The plaintiff, and two of his
colleagues (also winners of the OK Grand Challenge Jackpot
Promotion), were lured into a car and arrested for having committed
fraud in the acquisition of the coupons which they had used in
participating in the competition.
For
the next four days, the plaintiff and his colleagues were shoved from
one police station to the other starting with Braeside Police
Station, Ahmed House, and Harare Central Police Station. They were
made to endure extremely difficult and painful experiences as they
were forced to sleep in squalid conditions, being routinely
transferred from Ahmed House to Harare Central Police Station
barefooted and in handcuffs. The plaintiff and his colleagues were
treated as criminals. To the ordinary onlooker, they were indeed
criminals on parade.
The
plaintiff and his co-accused were only released after Osborne Tariro
Mawere (Mawere) (the
Risk
and Services Manager of the defendant)
had submitted an affidavit which outlined the plaintiff's innocence
in the whole exercise….,.
During
his testimony, Mr Osborne
Tariro Mawere's attention was drawn to a portion of the
advertisement by the defendant which was to the effort that “all
participants and winners indemnify OK Zimbabwe (the defendant), their
agencies and partners against any and all claims of any nature
whatsoever arising out of and/or from their participation in anyway
whatsoever in the promotion including as a result of any act or
omission, whether negligent, grossly negligent or otherwise on the
part of OK Zimbabwe.”…,.
The
witness testified that to the best of his knowledge the plaintiff's
participation in the Grand Challenge Jackpot Promotion was not
excluded by this rule implying that the defendant should be exempted
from liability….,.
The
plaintiff's counsel moved the court to award the plaintiff at least
$50,000= in the form of damages for the unlawful arrest whilst
counsel for the defendant maintained that the defendant be exempted
from liability basically on two fronts, namely, that the plaintiff
had targeted the wrong defendant, and that, in any event, the
plaintiff's participation was governed by the defendant's rules
of indemnification. He relied on Rule 6 which was one of the rules
regulating the conduct of the participants in the competition….,.
THE
INDEMNIFICATION CLAUSE
It
was argued, by the defendant's counsel, that the plaintiff, having
indemnified the defendant by participating in the competition, as per
the rules of the competition, could not possibly bring the instant
civil action against the defendant.
Heavy
reliance was placed on Rule 6 of the competition which was to the
following effect:
“All
participants and winners indemnify OK Zimbabwe Limited, the
Advertising Agencies and partners against any and all claims of any
nature whatsoever in the promotion (including as a result of any act
or omission, whether negligent or otherwise on the part of OK
Zimbabwe).”
I
note that in practice such clauses are not blindly or religiously
accepted by our courts as the learned author R H CHRISTIE observes
when he states:
“Obviously
the law cannot stand aside and allow such traps to operate unchecked,
and the courts have protected the public from the worst abuses of
exemption clauses by setting limits to the exemptions they will
permit and by interpreting exemption clauses narrowly.”
The
Law of Contract in South Africa, R.H. CHRISTIE, Butterworths, Durban,
Pretoria 1st
ed. 1983 re-print…,.
In
the same breadth, I also find the remarks by INNES CJ quite apposite
when the learned judge stated:
“Hence,
contractual conditions by which one of the parties engages to verify
all representations for himself and not to rely upon them as inducing
a contract, must be confined to honest mistake or honest
representations. However
wide the language, the court will cut down and confine its operations
within these limits.”
Wells
v SA Alumenite Co. 1972 AD 69…,.
Questioned
around this exemption clause during cross-examination, the plaintiff
explained that he could not have thrown away his Constitutional
rights, as afforded by the Bill of Rights, by participating in the
defendant's jackpot promotion.
I
agree with the observation by the plaintiff.
I
have already made a specific finding that Osborne
Tariro Mawere was both reckless and malicious in the manner he dealt
with the plaintiff and I am satisfied that the defendant must not be
allowed to avoid liability by seeking refuge in clause six of the
competition. Allowing it to do so would offend public policy
considerations which demand that innocent and unsuspecting
individuals be protected by the law.
