Durban businessman posthumously wins High Court case

2017-07-11 14:04
High Court. (Duncan Alfreds, News24)

High Court. (Duncan Alfreds, News24)

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Durban - A Durban businessman who died in a hail of bullets while driving a courtesy car from Land Rover has posthumously emerged victorious in a claim against his estate that he is liable for the full value, about R560 000, of the bullet-riddled car.

In a recent judgment, High Court Judge Dhaya Pillay cautioned that contracts - in particular those, as in this case, which were signed on the bonnet of a car - must be clear and uncomplicated and must accord with the law and the provisions of the Consumer Protection Act and not hidden in tiny print.

This was especially in light of the fact that the man who delivered the Land Rover Discovery to Ivin Rattan in November 2012 - to use while own car was being repaired - could not, in evidence, explain the terms of the contract.

He also conceded that he had not gone through it with Rattan and could not explain why there was reference to "overleaf" when the document was a single page.

A lawyer, who was involved in the matter, told News24 "we, as lawyers, didn’t understand it...and they [the company] could not explain it".

There was also confusion about who the car belonged to because a company called Four Wheel Drive Accessory Distribution CC sued Rattan’s estate, not Land Rover, in what appeared to be a complex lease and release agreement which Rattan would not have been aware of.

'Not easy to read'

In her judgment, Judge Pillay cited a Constitutional Court ruling which said, even lawyers did not want to "hack through gratuitously unclear writing, so it seems self-evidently unethical to impose that kind of writing on others".

She said the agreement signed by Rattan - in court as exhibit B2 - "was not easy to read" and its alleged terms only emerged during evidence when the man who handed over the car to Rattan - identified as Mr Morton - said that the Discovery was made available to him for three days and was insured for that period but if he kept it longer, he had to insure it himself.

"Morton delivered the car to Rattan at his butchery in Phoenix Industrial Park and handed over the keys personally. He did not spend much time with him. Rattan scanned the contract quickly and signed it.

"Under cross examination, Morton conceded that the document was very complex, in small writing and difficult to read.

"It [was] also presented as one page and he could not explain the reference to 'overleaf'."

He conceded: "If I were to go through the whole document with each and every client and every single clause, I would not be getting any vehicles out and I am under a strict process - between five and 10 vehicles a day. I can’t sit for three hours and explain the whole document to a client."

Asked about the insurance clause, he could not explain it himself.

"This court could not read it easily, even with the aid of a magnifying glass," the judge said.

She said to enforce an unfair or unjust clause would  be contrary to public policy.

"Factors that must be considered include unequal bargaining power of the contracting parties and that many people conclude contracts without any bargaining power and without understanding what they are agreeing to."

Judge Pillay said the contract was impractical to decipher and was offensive.

Proving consensus as a prerequisite for a valid agreement would be a hard row to hoe, because it appears from its very form and content that people would not have understood it "without incurring costs and inconvenience".

She said the contract fell under the Consumer Protection Act which dictated that it should be written in "plain and understandable language".

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