THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO. 453/2000
Reportable
In the matter between
UNION SPINNING MILLS (PTY) LIMITED

Appellant
and
PALTEX DYE HOUSE (PTY) LIMITED

First Respondent
PALTEX KNITTING (PTY) LIMITED
Second Respondent

_____________________________________________________________
CORAM:  SMALBERGER ADP, HOWIE, ZULMAN AND NAVSA
JJA et LEWIS AJA
HEARD: 5 MARCH 2002
DELIVERED: 22 MARCH 2002
_____________________________________________________________
Applicability, on the facts, of standard trading terms

JUDGMENT

ZULMAN JA

[1]  This is an appeal with special leave against a judgment of the Full Court
of the Bophuthatswana High Court.  The judgment is reported as Paltex
Dyehouse (Pty) Ltd and Another v Union Spinning Mills (Pty) Ltd 2000(4)
SA 837 (BHC).

[2]  For the purposes of convenience I will refer to the parties as they were at
the trial.  The plaintiff (the appellant) instituted two separate actions against
the defendants (the first and second respondents on appeal).  The actions
were consolidated.

[3]  In each of the actions the plaintiff sued the defendants for the purchase
price of yarn sold and delivered to the defendants during the period August,
October and November 1991.  In each action the defendants raised
counter-claims for damages.  By agreement a preliminary issue fell to be
decided by the trial court.  The issue is stated as follows in the judgment of
the trial court:-

“Which terms and conditions governed the contractual relationship
between the plaintiff and the defendants”.

[4]  The plaintiff contended that the terms and conditions which governed
the contractual relationship between it and the defendants were set out in
certain order confirmation documents which it posted to the defendants.
These terms and conditions were its standard terms and conditions relating
to the supply of yarn to its customers.   The defendants denied receipt of
such documentation and accordingly knowledge of the standard terms and
conditions.  The defendants averred that the yarn that it admitted receiving
from the plaintiff was defective and that it suffered damages as a
consequence.

[5]  After hearing oral evidence, the trial court (Khumalo J) found for the
plaintiff.  Leave to appeal was refused but in terms of an order granted by
this Court leave to appeal to the Full Court of the Bophuthatswana High
Court was granted.  The appeal was upheld.

[6]  The legal principles applicable to the imposition of standard terms of
contract are well known.   They are clearly stated in Christie The Law of
Contract1.   Furthermore, where a party alleges an agreement, that party
bears the onus of proving the terms of the agreement, even if this involves

4th Edition Pages  204 - 209

proving a limitation of liability or that exclusion clauses did not form part of
the agreement   It is also necessary for a party relying upon special terms and
conditions to prove that the document in which such terms and conditions
appear is the type of document where the recipient would expect to find such
conditions and in addition that reasonable steps were taken to bring the
conditions to the attention of the recipient. (See for example Stocks & Stocks
(Pty) Ltd  v T J Daly & Sons (Pty) Ltd2  and Micor Shipping (Pty) Ltd v
Treger Golf and Sports (Pty) Ltd & Another.3)

[7]  The determination of the issue is essentially a factual one.  Some
guidance as to how a court is to approach such a matter is to be found in the
following remarks of Franklin J in Micor Shipping4:-

“Those cases show that in the case of private individuals the Court
requires positive evidence to show some sort of office practice from which
the inference of posting can be drawn.. But the onus remains on the
plaintiff to prove that the letter was sent; and even then the presumption
means no more that this; the fact that the letter was posted is evidence
from which the inference that it reached the addressee may be drawn; but
all the circumstances must be considered in order to decide whether on a
balance of probabilities that inference ought to be drawn; Goldfields
Confectionary and Bakery (Pty) Limited v Norman Adam (Pty) Ltd 1950
(2) SA 763 (T) at p 768"

1979(3) SA 754 (A) at 765A – 767C.
1977(2) SA 709 (W)  at 713 H – 714 F.
Supra at 715 A – C.

[8]  The plaintiff led evidence from a number of witnesses which dealt in
detail with the plaintiff’s office practice at the relevant time concerning the
handling and confirmation of orders that it received from customers via its
representative, Mr Ferguson. Amongst these witnesses were Mr Scheffer,
the plaintiff’s administration director,  Mrs Cusse, a sales administrator of
the plaintiff and Mr Bester, an employee of the plaintiff in its sales and
administration department.  I will deal more fully later in this judgment with
the office practice in question.

[9]  Business dealings between the parties commenced during 1990.
Ferguson testified that he had acted as “agent” for the plaintiff for
approximately eight or nine years.  (It would seem that in law Ferguson was
a broker and not an agent in the true sense.)  The plaintiff has its factory and
principal place of business in Port Elizabeth.  He stated that he had
knowledge of the plaintiff’s prices, mode of operation and procedures for the
delivery of yarn to his customers.  He described the modus operandi for
placing orders with the plaintiff as follows:-

(1)
When he received an inquiry from a customer for the supply of
yarn, he would inquire from the plaintiff whether the order
could be executed.

(2)
If the plaintiff was able to supply the yarn, he prepared a form
or indent bearing his firm’s name (Ferguson Agencies) and
entitled “Order Confirmation”.  He despatched copies of the form
to the plaintiff and the customer.   I will refer to this type of
document as “Ferguson’s confirmation”.

(3)
Thereafter he would receive one copy of a document headed
“Order Confirmation” from the plaintiff.  I will refer to this
type of document as “plaintiff’s confirmation document”.  This
would take place a week or two after the despatch of
Ferguson’s confirmation.

(4)
Ferguson
checked
plaintiff’s
confirmation
against
his
confirmation before the delivery of the goods took place.

(5)
According to Ferguson this procedure was followed in every
case with the defendants including the orders forming the
subject matter of the dispute.

[10]  At the foot of the plaintiff’s confirmation document the

following appears in capitals and in clear print:-

“THIS CONTRACT IS SUBJECT TO THE GENERAL CONDITIONS OF SALE APPEARING ON
THE REVERSE HEREOF.   THE CUSTOMER’S ATTENTION IS DRAWN SPECIFICALLY TO
CLAUSE 19 THEREOF.

DELIVERIES UNDER THIS CONTRACT WILL BE MADE IN ACCORDANCE WITH CREDIT
INSURANCE LIMITS.”

(I have sought to reproduce the same print size as appears on the plaintiff’s
confirmation document.)

Twenty-two standard “Conditions of Sale” are printed on the reverse side of
the document.   In its judgment the Full Court attached a photostatic copy of
the terms and conditions describing them as being “in minuscule print and
difficult to read”.  We have been furnished with a specimen of the actual
document in question.   In my view although the conditions are printed in
small type they are legible.  In any event legibility was not an issue before us
and counsel for the defendants did not seek to attach any significance to it.

[11]  Condition 19 provides as follows:-

“19.
Acceptance of Conditions

19.1
Upon delivery of the Order Confirmation to the Customer,
the Customer shall, in the absence of signature of this
Agreement by the Customer, be deemed to have accepted
the terms and conditions of this Agreement unless the
Customer gives written notice to the contrary to the
Company within 3 (three) days of receipt of this Order
Confirmation.

19.2
In the event of the Customer rejecting these terms and
conditions the Company shall be entitled in its discretion to
cancel this agreement at any stage thereafter by giving
written notice to that effect to the Customer.  In such event
the Company shall not be liable for any direct or indirect
loss suffered by the Customer in pursuance of such
cancellation.”

[12]  Condition 14 deals extensively with the question of warranties in
respect of goods supplied.  In essence the company’s contractual liability in
respect of any latent or patent defect in the goods is limited to the
replacement of the defective goods or to the repayment of the purchase price
paid in respect of  defective goods but the company is not liable to the
customer for any loss, including consequential loss, suffered by the customer
(see conditions 14.7 and 14.8 respectively).

[13]  It is common cause that the defendants did not give any notice to the
plaintiff that they rejected the standard terms and conditions.  The
defendants allege that they had never received the plaintiff’s confirmation
documents.

[14]  In their plea and  counterclaims the defendants allege that they,
represented by their managing director, Mr Beraru, entered into oral

agreements of sale with the plaintiff, represented by Ferguson, at the
plaintiff’s principal place of business, for the supply of various quantities of
cotton yarn;  that it was an express or alternatively an implied or tacit term
of the agreements that the cotton yarn would be of good quality and would
be free from defects, in particular that the yarn would be fit for the purpose
for which it was manufactured; and that it  was in the contemplation of the
parties when the agreements were concluded that the defendants would
suffer certain consequential damages if the yarn were not of good quality.
In its amended plea to the counterclaim the plaintiff avers that its liability in
respect of defective material (it being  denied that defective material was
delivered by it to the defendants) was limited to the remedies and procedure
provided for in condition 14 of the Conditions of Sale.

[15]   Scheffer gave evidence as to the operation of the plaintiffs internal
system.   He was responsible for customer service as well as the processing
of orders received by the plaintiff from customers.   He testified that the
processing of an order would be dependent on various factors, particularly
whether the plaintiff could meet the required delivery dates.  He stated that
after an order was accepted from a representative such as Ferguson or
directly from a customer, four copies of the plaintiff’s confirmation

documents were generated by the plaintiff’s computer - a green, a pink, a
blue and a yellow copy.  The green and pink copies were posted to the
customer.  The intention was that the pink copy would be signed by the
customer and returned to the plaintiff, signifying agreement with the
standard terms.  The yellow copy was posted to the agent and the blue copy
was retained by the plaintiff. The standard terms and conditions to which I
have referred were printed on the reverse side of all four copies.  Scheffer
positively asserted that the plaintiff’s system ensured that such  confirmation
documents were placed in envelopes and posted to customers.  He was sure
that confirmation documents would have been posted to the defendants
although he personally did not do the posting.  For a delivery to be effected
by the plaintiff, the plaintiff would generate an invoice, a packing list and a
delivery note.  Scheffer prided himself on the efficient running of his
department.  He personally ensured that “paper work” was timeously executed
and that all necessary documentation was sent to customers and agents.  He
testified that no post addressed to either of the defendants had ever been
returned to the  plaintiff as having been uncollected.   If documentation was
returned by the post office it was referred to him and he would personally
ascertain the reason for the return and would take steps to rectify the
position.   Scheffer confirmed that Ferguson had taken the initial orders from

the defendants and used his own confirmation document.

[16]   Cusse also gave evidence in regard to the procedure which was
followed in the sales administration department of the plaintiff company.
Scheffer was her immediate superior.  She described Scheffer as a
meticulous person who ensured that the office under his control should “run
like clockwork”.  She corroborated Scheffer in regard to the plaintiff’s system
and method in regard to orders, order confirmations and all the relevant
documentation.  Generally, Scheffer signed the plaintiff’s confirmation
documents.   Cusse personally, or through the staff immediately under her
control, ensured that the plaintiff’s confirmation documents were placed in
correctly addressed envelopes, were franked and taken by a driver to the post
office.  She asserted that Scheffer checked regularly to see that the post had
been timeously despatched.  In cross-examination she was perplexed to hear
that the defendants contended that they did not receive a single copy of the
plaintiff’s confirmation documents.  Her view was that this was impossible.
Cusse also testified that invoices were generated in her department and were
posted in the same manner as the plaintiff’s confirmation documents.

[17]   Bester gave evidence about the system employed by the plaintiff and

corroborated both Scheffer and Cusse.

[18]  Three customers of the plaintiff who had no connection with the
defendants testified on behalf of the plaintiff.  Each of them had placed
orders with the plaintiff over a substantial period.  They stated that they
always received the plaintiff’s confirmation documents in the post as well as
the invoices and other documents described by Scheffer and Cusse.  Two of
them testified that they actually read the terms and conditions appearing on
the reverse side of the plaintiff’s confirmation document.

[19]  None of the aforegoing evidence was seriously challenged by the
defendants

[20]  Reverting to the evidence of Ferguson, he also testified that he received
the plaintiff’s confirmation documents.  He referred to his own confirmation
documentation which states at the foot:-

“Orders are accepted by us as Agents only and are subject to Supplier’s
confirmation.  Neither the Suppliers nor ourselves can be held responsible
for delays of delivery of goods caused by Strikes, Lock-outs, Prohibition
of Import or Export or other circumstances or contingencies unavoidable
or beyond our control, Force Majeure or Act of God.  We are acting as
Agents only and accept no responsibility.”

He testified about a meeting at the plaintiff’s premises in Port Elizabeth
during 1991 when there were discussions concerning the plaintiff’s terms
and conditions for the supply of yarn.   Mr Snijman, a director of  the
plaintiff, and Beraru were present.  According to Ferguson, Snijman bluntly
told Beraru that if the defendants were not satisfied with the plaintiff’s yarn
they must stop ordering it.  Snijman indicated, according to Ferguson, that
the plaintiff’s attitude was based upon the existing terms and conditions of
sale.  Ferguson also gave evidence to the effect that he visited the
defendants’ premises on a reasonably frequent basis.  He estimated that the
defendants ordered approximately 30 to 40 tons of yarn per month from the
plaintiff.  On the occasion that they met in Port Elizabeth Beraru complained
about the  dye on the cotton not having come out correctly.

[21]  Snijman in his evidence stated that he was not involved in the
processing of the day to day orders taken by the plaintiff.   He recalled three
occasions when he had had discussions with representatives of the
defendant.  The first was in April/May 1990 at the defendants’ factory at
Garankuwa.  The second was in 1991 also at the defendants’ factory.  The
third occasion was on 24 September 1991 when Beraru came to Port
Elizabeth.   On the two occasions that he visited the defendants’ premises he

was accompanied by Ferguson.  The Port Elizabeth meeting concerned a
complaint about yarn.  As a result a piece of cloth was sent to the CSIR in
Port Elizabeth for testing.  Snijman made it clear to Beraru that any
complaints would be dealt with in accordance with the plaintiff’s terms and
conditions and that no claims for consequential loss would be entertained by
the plaintiff.  He testified that it was possible to check the suitability of
cotton in a matter of days by dyeing a sample.  He said that if the defendants
thought that the conditions of sale did not give enough time to test the cotton
it was open to them to refuse to accept the yarn.  He further said that the
plaintiff  did not consider it necessary to insist on the return of pink copies of
the plaintiff’s confirmation documents because this was considered to be
superfluous.  He made it plain that he wanted Beraru to understand that the
plaintiff had a standard procedure for all its customers.  He denied that
reliance on the conditions of sale was an afterthought.

[22]  The defendants called two witness in support of their contentions.  The
first was Mrs Verhoef who testified that she was employed by the
defendants from the beginning of 1991 until the end of 1994 as a secretary.
She performed these duties for Beraru and  Mr Brin who was also a director
of  the defendant company.  According to her Brin generally dealt with

deliveries.  She said she did not receive much post at the time.  She could
not recall what documentation she received from the plaintiff apart from
packing slips.  She had a vague recollection of the relevant events and facts.
When she was giving evidence she repeatedly said that she “could not
recollect” or “did not remember”.  She, however, remembered receiving
orders from Ferguson by fax.  She could not recall receiving any documents
which were pink or green; she remembered only white documents.  Beraru
was away much of the time and mail was kept for him in a file for his
attention until he was available to read it.  According to her when Beraru
spent time at the defendants’ premises in Garankuwa “he would look at all
our documents that we had received in the past month or two that he was not
there.  If anything was not right or done right, he would get angry.  He was
very precise on what his documents had to look like and what he had to
receive.  If he had not received a document and he was expecting it he would
ask us for it, we would have to look for it.”  In cross-examination she
admitted that her memory of the events was very vague.  She said that all the
documents she received were filed in a secure cabinet.  She also conceded
that invoices were received through the post from the plaintiff.   She also
testified that Brin and Beraru “had all the documents or looked at all the
documents that I had to give them through the post.”  Brin was not called to

give evidence.

[23]   Beraru testified that he was the managing director of the defendants
from 1990 to 1992.  He spent approximately ten days out of every two
months at the premises of the defendants.   During these visits he checked all
correspondence, all accounts and invoices.  These were filed.  He also
enquired about progress at the production facility of the defendants.  He
testified that the plaintiff was the defendants’ sole supplier of cotton yarn.
All orders placed by the defendants were placed through Ferguson.  The
defendants received indents from Ferguson.  He claimed that the indents
contained all the relevant terms of the contract with the plaintiff.  According
to Beraru he at no time saw any of the plaintiff’s confirmation documents
containing terms and conditions of sale.  If he had received such
documentation he would “immediately” have approached his attorney for
advice  concerning the conditions and he would  “never have agreed” to
condition 14 appearing on the reverse side of the plaintiff’s confirmation
document because it was impossible “to see immediately a defect in the
yarn” and react timeously.  Beraru testified that he met Snijman on at least
two occasions,  the latter being at the plaintiff’s premises in Port Elizabeth.
During this meeting Snijman said that the plaintiff did not guarantee that

there were no defects in the yarn and that if the defendants did not like it
they must stop buying the yarn.  Beraru had brought to Snijman’s notice
certain defects in yarn supplied.  He had had many years of experience in the
textile industry and was aware of the importance of standard terms and
conditions.  He said conditions of sale which existed in South Africa did not
apply in other countries.  He confirmed that his own company had its own
standard terms and conditions of sale which had been prepared by the
defendants’ attorneys.

[24]  A trial court has the obvious and important advantage of seeing and
hearing the witnesses and of being steeped in the atmosphere of the trial.
These advantages were not possessed by the Full Court and indeed this
Court.  Although courts of appeal are slow to disturb findings of credibility
they generally have greater liberty to do so where a finding of fact does not
essentially depend on the personal impression made by a witness’s
demeanour but predominantly upon inferences from other facts and upon
probabilities.  In such a case a court of appeal with the benefit of an overall
conspectus of the full record may often be in a better position to draw
inferences, particularly in regard to secondary facts.   (See, for example, R v

Dhlumayo and Another5, S v Robinson and Others6  and Hoffman and
Zeffertt – The South African Law of Evidence7.)

[25]  In his evaluation of the evidence Khumalo J commented as follows:-

“The plaintiff’s witnesses have corroborated one another on important
aspects affecting the issue to be decided.  Their demeanour cannot be
faulted and was not criticised nor was their credibility attacked.   The
defendants’ witness Mrs Verhoef appeared to be an honest witness but the
difficulty I have with her evidence is that her recollection of events was
very poor and the statements she made were repeatedly qualified by her
uncertainty as to what documents were received at the time.  She vaguely
remembered invoices and statements.  She also thought that she had seen
one order confirmation.  Her evidence is dangerously unreliable.  The
evidence of Mr Beraru also suffers certain defects.  Although he appeared
honest a number of questions remain unanswered.”

[26]  In discussing the evidence of Beraru the learned trial judge said that if
Beraru’s evidence was scrutinised carefully “the impression I get is that honest as
he may be, he was not adequately informed about what was happening within the
companies.”  It seemed a case of “the right hand not knowing what the left hand
does”.

[27]  Refusing an application for leave to appeal, Khumalo J specifically
rejected as being incorrect an argument addressed to him by counsel for the

1948 (2) SA 677 (A) at 698
1968 (1) SA 666 (A) at 675 G - H
4th Edition pages 489/490

defendants that he had made no credibility findings on any of the witnesses
called at the hearing.   He then went on to refer to passages in his judgment
dealing with the credibility of the main witnesses and concluded:-

“From all these extracts it is clear that I believe the witnesses of the respondent
and not those of the applicant.  Credibility did play a role in the matter.  As
correctly pointed out by Mr Buchanan the determination of the credibility of
witnesses was obviously inextricably bound up with the overwhelming
probabilities which support the respondent’s version.”

In my view Khumalo J was overly  generous in his assessment of Beraru’s
evidence.  A careful consideration of his evidence leaves me with the
distinct impression that Beraru was untruthful more particularly when he
stated that he saw no documentation emanating from the plaintiff which
contained contractual terms such as those set out in the plaintiff’s
confirmation documents.

[28]  In my view the learned trial judge was correct in his assessment of the
probabilities which I believe fully support the plaintiff’s version.  Some of
the more important probabilities which favour the plaintiff’s case are the
following:-

(1)
It is remarkable that other documentation such as invoices and
statements which were sent to the defendants in the same
manner as the plaintiff contends the confirmation documents
were sent, were admittedly received by the defendants, but the
plaintiff’s confirmation documents were not.

(2)
It is strange also that other customers of the plaintiff who
testified at the trial received the plaintiff’s confirmation
documents, which they read, but that the defendants allegedly
did not receive such documents.

(3)
On the probabilities documentation that was received at the
defendants’ offices such as the plaintiff’s confirmation
documents would have come to Beraru’s attention.

(4)
Beraru stated that he was aware that orders had been booked to
the second defendant (Paltex Knitting (Pty) Limited) because
the first defendant  (Paltex Dye House (Pty) Limited) was no
longer covered by credit insurance.  He stated that a certain Mr
Mor who was employed by the defendants at the relevant time

had requested this arrangement from the plaintiff but that he
had no authority to do so.  Credit insurance is a matter covered
by clause 20 of the terms and conditions of the confirmation
document.  It is also referred to in the endorsement in the left
hand corner of the confirmation document.  It is strange how
Mor would have known about this if he had not seen the
confirmation documents in question.  The probability is that he
would have reported it to his superior, Beraru.  If he did not
know about this how he was able to discuss the matter with
Ferguson or Scheffer?  Mor was not called as a witness.

(5)
It is also not improbable that Beraru had been given the
documentation and simply did not trouble to read it or apply his
mind to it.  His immediate concern was to get delivery of the
yarn.

(6)
Ferguson’s confirmation had a clear endorsement on it to the
effect that the plaintiff was to “confirm” every order placed
through Ferguson.  It is passing strange why the plaintiff would

not confirm orders received in its standard manner and send the
confirmation to the defendants.

(7)
Beraru was away from the defendants’ premises for much of the
time.  In the circumstances he may not have been sufficiently
informed as to what orders, executed by Brin, were confirmed
in his absence.  Even though there was no onus on the
defendants in this regard, it is a matter for comment that they
chose not to call Brin to testify, especially since he was
responsible for the day to day running of the business of the
defendants in the absence of Beraru.

(8)
This is not a case of a single  confirmation document being lost
in the post but, on the defendants’ case, a significant number of
such documents, properly addressed to the defendants and
posted over a substantial period of time, not reaching their
destination.

(9)
Although the defendants acknowledge receiving documents
such as invoices, delivery notes and packing slips from the

plaintiff no explanation was given, although this was requested
by the plaintiff, why these documents were not discovered
when a discovery affidavit was deposed to, and a reply given to
a rule 35(3) notice, neither of which made reference to the
defendants ever having had such documentation.

[29]  In my view the judgment of the  Full Court was, with respect, incorrect
where it stated “the plaintiff relies on the following proposition - that the mere posting
of the order confirmation to the defendants, is proof of its receipt”.   The evidence and
the argument reveals that the plaintiff did not rely upon mere posting alone
but upon the totality of the facts, particularly concerning its practice and
method of confirming orders received from its representative.

[30]  I believe that the Full Court also erred in its view that had Beraru
received, or been aware, of condition 14 of the conditions of sale he would
never have been prepared to agree to it because, having regard to the
production process of the defendants, defects may have manifested
themselves only after the expiry of 30 days.  This contention loses sight of
the fact that evidence was given by Snijman to the effect that late claims
would have been considered and that in any event if Beraru had wished to

debate this clause before the orders were executed he could easily have done
so.

[31]  In my view there is also no support for the conclusion of the Full Court
that the terms contained in the plaintiff’s  confirmation documents were
imposed after the orders were placed and that they differed from what had
been agreed upon.  The totality of the evidence reveals that it was part of the
plaintiff’s system of acceptance of orders, and thus part and parcel of the
contractual process, that orders placed with  Ferguson were confirmed only
upon the terms set forth in the plaintiff’s confirmation documents.  This is
not a question of a belated variation of a contract to incorporate standard
terms and conditions.  The terms here were part of the contract concluded.
The contract only came into being upon the non-rejection by the defendants
of the terms of the confirmation documents, as provided for in condition
19.1.

[32]  The judgment of the Full Court is also erroneous in so far as it suggests
that what it considered harsh conditions imposed a greater burden of proof
upon the plaintiff than the normal burden of a balance of probabilities.  The
type of conditions which are found in the plaintiff’s confirmation documents

are standard conditions relating to the supply of manufactured goods.
Indeed, Beraru in his evidence went so far as to state that his company
employed similar conditions in supplying its customers with goods.  This
latter fact also lends support to the proposition that the plaintiff’s
confirmation document is the type of documentation which a purchaser of
the goods in question would expect to receive and expect to find conditions
in.  (See, for example, Micor Shipping8).

[33]  In argument before this Court counsel for the defendants, whilst not
conceding that the plaintiff had established that its confirmation documents
had been sent and probably received by the defendants stressed, if I
understood the argument correctly, that the defendant, represented by
Beraru, concluded an oral agreement with Ferguson, in the terms set out in
the body of Ferguson’s confirmation document, for the supply of cotton yarn
at the prices specified and for delivery as stated therein; and  that the words
appearing at the foot of that document were to be ignored, or at least meant
no more than that the plaintiff was to  “confirm” post-contractually what was
already agreed by way of Ferguson’s confirmation.

Supra at 713 H – 714 A

[34]  These contentions were never put to Ferguson or any of the plaintiff’s
witnesses, nor led in the evidence-in-chief of Beraru.  The whole focus of
the proceedings before the trial court was simply directed towards
ascertaining whether the defendants ever received the plaintiff’s
confirmation documents.  Counsels’ contentions are in any case untenable,
for the following reasons:-

(1)
There is no evidence to support the proposition that
Ferguson who, as I have already indicated, was more a
broker and not the plaintiff’s agent in the legal sense, had
any authority to conclude such an agreement   The terms
printed at the foot of Ferguson’s confirmation state
clearly that Ferguson acted as “Agent only and accepted
no responsibility”.

(2)
The “confirmation” required from the plaintiff was not
merely to confirm the terms set out regarding price and
delivery as set out in Ferguson’s confirmation but to
stipulate the terms and conditions upon which the yarn
was to be supplied.   The argument entirely  ignores the

true effect of the  terms and conditions set out in the
plaintiff’s confirmation document and its role in effecting
conclusion of the parties’ contracts of sale.

[35]  In my view the plaintiff established on a clear balance of probabilities
not only that  it sent its confirmation documents to the defendants  (a matter
not really in dispute) but that:

(1)
As a matter of fair inference, such documentation was
received by the defendants.

(2)
The documentation was of the type on which a
reasonable purchaser would expect to find standard terms
and conditions.

(3)
The plaintiff had done all that was reasonably necessary
to bring the terms and conditions to the defendants’
attention.

(4)
In all the circumstances the terms and conditions set out
on the reverse side of the plaintiff’s confirmation
document “governed the contractual relationship between
the plaintiff and the defendants”.

(5)
In any event Beraru, who read all relevant documentation
carefully, either read the terms and conditions or knew of
their existence.

(6)
The confirmation documents preceded deliveries in every case.

[36]  In the circumstances the parties’ contracts were governed by the
plaintiff’s standard terms and conditions, as held by the trial Court.

[37]  The appeal is accordingly allowed with costs and the order of the Full
Court is set aside.  Substituted for it is the following:

“The appeal is dismissed with costs.”

----------------------------------------
R H ZULMAN
JUDGE OF APPEAL

SMALBERGER ADP
)
HOWIE JA

)
CONCUR
NAVSA JA

)
LEWIS AJA

)