NDOU J: The
parties have agreed that their dispute be resolved in terms of a stated special
case pursuant to the provisions of Order 29 Rule 199. The parties concurred in a special case for
the opinion of this court. The
plaintiffs entered into a carriage contract with the defendant in terms of
which the defendant was at a fee, to transport on behalf of the plaintiffs from
Harare to Bulawayo one teak wardrobe and one x 3 piece teak room divider. The defendant only managed to deliver the
wardrobe but has failed to deliver or account for the room divider which
appears to have been lost by or stolen from the defendant in transit. The plaintiffs are claiming the current
market value for the lost room divider as compensation. Alternatively, the plaintiffs claim for an
order that the defendant specifically performs by delivering to them, the room
divider tendered for transportation. The
consignment note that was issued to and signed by 1st plaintiff for
the transportation of the goods in question had a provision to the following
effect.
“Received and forwarded by ………..
The
under-mentioned goods to the said destination in accordance with the Bye-Laws,
Regulations and Conditions published in the current edition of the Official
Railway Tariff Books (or any amendment thereof or supplement thereto) of the
administration specified above or regulations of any other Railway
Administration over whose lines the goods may travel to reach their
destination, and it is agreed that the said conditions and regulations shall be
applicable to this contract in the same manner as though they were fully sent
out herein.
………………………………………..
Signed by the Sender”
It is beyond dispute that the
Bye-Laws, Regulations or the Official Railway Tariff Books referred to above,
were not shown to the 1st plaintiff at the time of the signing of
the consignment note. The 1st
plaintiff, however, had the option of requesting such documents from the
defendant. It is common cause that the
defendant's insurance tariff for lost goods is based on the mass/weight of the
lost goods for ordinary consignments and also, on the amount paid for insured
consignments. In casu, the quantified amount for compensation for the plaintiffs'
room divider is $3 282 363 an amount which is below the current value of the
lost room divider even at the time of the loss.
The defendant accepts liability only to a limited amount in
the sum of $3 282 363,00, which is the amount calculated in terms of its
official insurance tariff.
The
dispute: On the one hand, the
amount tendered as compensation for the lost room divider is below the market
value of the piece of furniture, but the defendant maintains that such an
amount is contractually fair and binding against the plaintiffs who freely and
voluntarily signed the consignment note.
On the other hand, whilst the
plaintiffs accept that they freely and
voluntarily signed the consignment note, they maintain that the
consignment note did not contain enough details concerning the issue of
compensation and, in any event, the contractual terms are unfair, unreasonable
and oppressive hence unenforceable against them.
It is trite law that while carriers
of goods may contract out the strict liability imposed on them by the common
law or by contract limit their liability, the clause exempting the carrier from
liability must do so in clear terms, with express reference to negligence. In the absence of such clear terms, the
clause is to be construed as relating to a different kind of liability and not
to liability based on negligence – Cotton
Marketing Board v National Railways
of Zimbabwe 1988 (1) ZLR 304 (SC) at 324-325; Canada Steamship Lines Ltd v Regem
[1952] 1 ALL ER 18 (HL) and Lewis v R R 1921 SR 80. The defendant's original Tariff Book and
Regulations fell foul of the above principle.
The defendant has since changed its Tariff Book and Regulations to
specifically include negligence. In
clause (5)(e) of the current Tariff Book it is provided:-
“The
phrase “at the risk of the other”, “at the sole risk of the owner,” “at owners'
risk” and any other phrases in this Tariff Book, the purport of which is that
the risk of damage to or loss of goods in transit being carried by the Railways
or in storage or being kept by the Railways for any reason and whether or not
for a fee or charge levied by or paid to the Railways, is to be a risk by the
owner, consignor or consignee of such
goods, shall be so construed as to absolve the Railways of any and all
responsibility for loss of damage to or any detriment to such goods whilst they
are in Railways custody unless such damage, loss or detriment is due to gross
negligence or willful malfeasance on the part of the Railways or their agents
and servants whilst such agents and servants are acting within the course and
scope of their duties as such agents and servants. For the avoidance of doubt, no claim against
the Railways shall be capable, in circumstances where goods are carried or kept
subject to such conditions as aforesaid, of being founded upon ordinary
negligence on the part of the Railways or their agents or servants.”
It is evident that the
above-mentioned clauses are clear on the kind of negligence that the defendant
is exempted from. It is trite that the
excluding or limiting term must be brought to the attention of the party
against whom its protection is sought or otherwise be within his knowledge – Micor Shipping (Pty) Ltd v Treger Golf and Sports Ltd 1977 (2) SA
709 (W) at 713H-714; Tubb (Pvt) Ltd v
Mwamuka 1996(2) ZLR 27 (S) at
31F-32A-G and Jiawu Manufacturers v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003
(2) ZLR 396 (H) at 376F to 377F. Where,
however, an “owner's risk” notice is displayed so conspicuously that a normal
person could hardly have failed to see it, an inference that it was seen will
be drawn. In casu, as alluded to above, the plaintiffs were not shown the
excluding or limiting term in the Tariff Book.
The consignment note that the first plaintiff signed alluded to the
existence of some limiting or excluding terms in the Tariff Book. The Tariff Book or the terms thereof were not
annexed to the consignment note. The
defendant's position is that it was available for the other party to see on
request. It is common cause that the
plaintiffs did not request for it. From
the size of the 3 piece teak room divider theft by the defendant's employees is
the only probable explanation for its disappearance. The defendant cannot exempt itself from
liability for theft by its employees – Jiawu
Manufacturers v Mitchell Cotts
Freight – supra. Theft or loss of a
big item like a room divider can only be attributed to “gross negligence or
willful malfeasance” as defined in clause 5(e) of Tariff Book, supra, and the defendant cannot
therefore, be exempted from liability.
On this finding alone I will rule in favour of the plaintiffs. If, however, I am wrong in this finding,
alternatively, I find that this contract of carriage (by land) is consumer
contract as defined in section 2 of the Consumer Contract Act [chapter
8:03]. I say so on the basis that the
explanation or limiting clause in the Tariff Book is a product subordinate
legislation which cannot limit, alter or amend statutory provisions of the
Consumer Contract Act, supra, Strydom v Strydom 2003 (1) ZLR 379(H).
In terms of section 2, supra, a Consumer Contract means a contract for sale or supply of goods
or services or both in which the seller or supplier is dealing in the course of
business. There is little doubt that the
defendant is in the business of provision of transport services. This fact is, in any event, admitted in the
defendant's plea. It is not disputed
that when the defendant so ferried their goods they were doing so in the course
of such business. In the premises the
contract between the parties is a consumer contract as defined in section 2, supra. Further, to the extent that the defendant's
Tariff Book makes provision for insurance of goods transported in the event of
loss or damage, the contract also qualifies to be treated as a contract of
insurance. Such a contract has been held
to be a consumer contract by this court in Radar
Holdings Ltd & Anor v Eagle
Insurance Ltd 1998 (1) ZLR 479 (H) at 492E-F.
Section 5(1) gives a court
discretion to find a consumer contract to be unfair if it excludes or limits
the liabilities of a party to an extent that it is not reasonably necessary to
protect its interest, it is contrary to commonly accepted standards of fair
dealing or if it is expressed in a language not readily understood by the other
party.
The current contract is unreasonably
oppressive in that it contains a provision that seeks to deny plaintiffs
adequate compensation for their goods.
The Tariff Book arbitrarily, unreasonably and without just cause seeks
to quantify the value or quantum of compensation to be paid in respect of all
goods lost or damaged by means of mass or weight. This method is unreasonably oppressive if one
has regard to the fact that weight alone is not a suitable standard used in
evaluating assets. Further, the contract
limits the defendant's liability more than is reasonably necessary. It results in owners of goods being
transported not getting real compensation in the event of loss or damage. In any event, the terms of the agreement as
contained in the Tariff Book are conveyed to the other party in a bad, vague
and less informative fashion as alluded to above. This is not readily understood by the other
party – Cotton Marketing Board of
Zimbabwe v NRZ and Lewis v R R, supra. As the contract
is unfair in terms of the Act, the plaintiffs are entitled to relief as defined
in section 4.
Accordingly, it is ordered that:
(a)
The
defendant delivers to the plaintiffs a 3 piece teak room divider;
(b)
Alternatively
the defendant pays the plaintiff the current market value of the 3 piece teak
room divider.
(c)
The
defendants shall pay costs of suit on the ordinary scale.
Marondedze, Mukuku & Ndove, plaintiffs' legal practitioners
James, Moyo-Majwabu & Nyoni,
defendant's legal practitioners
