THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1174/2018

In the matter between:

OSMAN TYRES AND SPARES CC
FIRST APPELLANT

SHIRAZ MOHAMMED OSMAN
SECOND APPELLANT

and

ADT SECURITY (PTY) LTD
RESPONDENT

Neutral citation: Osman Tyres and Spares CC & another v ADT Security
(Pty) Ltd [2020] ZASCA 33 [3 April 2020]

Coram:
Ponnan, Saldulker, Mokgohloa and Nicholls JJA and
Koen AJA

Heard:
5 March 2020

Delivered:
3 April 2020

Summary: Contract – civil procedure – clause in contract excluding liability
for negligent conduct of security service provider – Private Security Industry
Regulation Act 56 of 2001 and the Code of Conduct for Security Service
Providers 2003 – whether liability for gross negligence excluded – whether a
court could find for the plaintiffs on the evidence adduced – what evidence to

take into account - whether absolution from the instance should have been
granted.

ORDER

On appeal from: North West High Court, Mahikeng (Hendricks J sitting as
court of first instance): judgment reported Osman Tyres and Spares CC and
Another v ADT Security (Pty) Ltd [2017] ZANWHC 113.

The appeal is dismissed with costs, to be paid by the appellants jointly and
severally, the one paying the other to be absolved.
_____________________________________________________________

JUDGMENT
_____________________________________________________________

KOEN AJA:

[1] This appeal1 concerns an order granted by the North West High Court,
Mahikeng (the high court) at the close of the appellants’ case, absolving the
respondent from the instance and directing the appellants jointly and severally
to pay the costs, the one paying the other to be absolved. The high court
concluded that the first appellant, Osman Tyres and Spares CC (the CC) and
the second appellant, Mr Shiraz Mohammed Osman had ‘failed to make out a
case on the probabilities’, presumably meaning on a balance of probabilities.
In that respect it clearly applied the wrong test and erred. The high court was

1 The appeal is with the leave of this court.

however correct, for reasons which will be set out below, in granting an order
absolving the respondent, ADT Security (Pty) Ltd (ADT) from the claim of
Mr Osman. The material remaining question in this appeal is whether an order
of absolution was justified in respect of the CC’s claim. This judgment will,
in what follows, consider the nature of the appellants’ claims, record a brief
reminder of the essentialia of those claims, assess the allegations made in the
pleadings and the evidence adduced by Mr Osman, identify what were
properly the issues which served before and had to be decided by the high
court, and conclude by applying the correct test for absolution to the admitted
facts and evidence.

The appellants’ claims
[2] The standard of the appellants’ representation2 before the high court
was disappointingly poor.3 The particulars of claim were not a model of
clarity.4 They were however clear that the claims by the CC and Mr Osman,
against ADT were damages claims. The CC’s claim was for contractual
damages based on a written agreement, a copy whereof was annexed as
annexure ‘A’ to the particulars of claim,5 concluded between the CC and ADT
on 6 February 2005, for the rendering of security services at the CC’s business
premises. This agreement was admitted by ADT. All that remained to be
considered to complete a cause of action for contractual damages were the

2 Counsel who appeared for the appellants in the appeal did not appear in the high court.
3 During argument on the application for absolution, counsel for the appellants presented a ‘thesis’ on
constitutionalism which was irrelevant and misguided, rather than addressing the true issues involved.
4 It is undoubtedly so that pleadings play an important role in litigation as set out in paragraph 38 below. But
pleadings are made for the convenience of the court, and not the court for pleadings. Pleadings are drafted
by practitioners of various levels of skills; some perhaps not all that skilled, and allowance must be made for
that fact.
5 The CC’s cause of action could only be contractual - Lillicrap Wassenaar and Partners v Pilkington
Brothers (S.A) (Pty) Ltd [1985] 1 All SA 347 (A).

breaches of the agreement and the damages caused by such breaches. By the
time the matter was argued before the high court, it was apparent that
Mr Osman’s claim, on the other hand, was a delictual claim.

[3] The particulars of claim did not distinguish clearly between the
allegations relating to the alleged breaches of the agreement for the purposes
of the contractual claim, and those relating to wrongfulness, fault and
causation for the purposes of Mr Osman’s delictual claim. Instead, they were
conflated in general terminology alleging ‘a duty of care’, and that ADT had
been negligent alternatively grossly negligent in rendering its services to the
CC. The interest of justice nevertheless require that the particulars of claim be
examined carefully to identify the factual allegations relevant to each cause of
action. Particulars of claim must be construed properly, even generously if
ambiguous, as with exceptions,6 to identify the material factual allegations
advanced in respect of a particular cause of action.

Mr Osman’s claim
[4] It is convenient to deal first with the order of absolution in respect of
Mr Osman’s claim. The conflated allegations in the particulars of claim7
referring to Mr Osman’s claim were as follows:
‘11
[ADT] by concluding an agreement with the [CC], created and imposed upon itself,
although tacitly and/or implied, a legal duty not to be negligent in the discharge of its
contractual obligations. Further in the alternative, public policy and legal consideration,
places upon [ADT] the legal duty not to be negligent and to render services in accordance
with highest standards of care expected of a professional in the position of [ADT]. The

6 First National Bank of Southern Africa Ltd v Perry No and Others 2001 (3) SA 960 (SCA) para 36.
7 The particulars of claim are set out more extensively in the judgment of Ponnan JA below.

above stated burglary and damages suffered by the [CC] alternatively [Mr Osman] (in his
capacity as the sole member of the [CC]) was caused by the sole negligence alternatively
the gross negligence of [ADT] in the sense that [ADT] had a duty of care towards the
[CC’s] premises, and to exercise reasonable care in the rendering of security services which
duty of care was not reasonably exercised by [ADT] in one or more or all of the following
respects:
11.1
[ADT] was negligent alternatively grossly negligent by its failure to apply
reasonable care when it responded to the emergency signal at [ADT’s] premises.
11.2
[ADT] was negligent alternatively grossly negligent to attend to the matter only
minutes after the alarm went off.
11.3
[ADT] was negligent alternatively grossly negligent in finding that everything was
in order, when it eventually arrived at the premises, whilst a serious burglary in fact
happened.
11.4
[ADT] was negligent alternatively grossly negligent by its omission to take positive
steps to avoid alternatively to minimise the damages caused to the [CC] and or [Mr
Osman] by the burglary, by neglecting to immediately inform the police and the
[CC] as duly represented by [Mr Osman].
12.
As a result of [ADT’s] above stated sole negligence alternatively gross negligence, the
[CC] and [Mr Osman] suffered damages  . . .

[5] The further allegations in the particulars of claim specific to Mr
Osman’s claim were as follows:
‘CLAIM 2 – DAMAGES SUFFERED BY [MR OSMAN]
13.
The allegations contained in paragraph 1 to 11 above are herein repeated.
14.
As a result of the burglary, which  [ADT] at all relevant times had a duty of care to
reasonably avoid,  [Mr Osman] (in his capacity as a sole member of the [CC]) suffered
emotional damages, which damages were caused by the sole negligence alternatively gross
negligence of [ADT], in one or more of the respects being:

14.1
[Mr Osman] is constantly in a depressed mood, as a result of Depressive Mood
Disorder and Post Traumatic Stress Disorder.
14.2
[Mr Osman] is constantly in an anxious mood.
14.3
[Mr Osman] is experiencing intrusive images of the All [CC’s] business in ruin as
a result of the burglary.
14.4
[Mr Osman] suffers from sleep disturbances.
14.5
[Mr Osman] is experiencing feelings of being a completely different person from
what he was before the burglary.
15.1
[Mr Osman] is experiencing continual feeling of his life coming to an end.
15.
15.1
As a result of the above stated emotional damages [Mr Osman] must attend to
Specialist Psychiatry Treatment’.

[6] Mr Osman did not give any evidence on which it could be found that
ADT had acted wrongfully. The high court further correctly found that Mr
Osman ‘did not testify in any detail about the emotional stress, trauma and
depression he suffered as a result of the burglary. No expert and/or medical
evidence was tendered’. Accordingly, there was no evidence on which a court
acting carefully could or might find in his favour in respect of his personal
claim. That was sufficient reason on its own to justify the order of absolution
in respect of Mr Osman’s claim. The high court in its judgment however also
concluded that ‘clause 6.28 exonerated [ADT] from liability arising out of
delict . . .’ That was a misdirection, as I shall endeavour to explain when
dealing with clause 6.2 below.9 It does not however effect the conclusion that
the appeal against the order of absolution in respect of Mr Osman’s claim falls
to be dismissed.

8 Paragraph 9(b)(v) below.
9 Paragraphs 31 and 32 below.

[7] The appellants’ counsel, although not authorised to make any
concession in that regard, fairly stated that she could not advance any cogent
argument that the order of the high court absolving ADT from Mr Osman’s
claim was incorrect.

The CC’s claim.
[8] In identifying the material issues relevant to the CC’s contractual claim,
reference must be had not only to the issues pleaded but also to issues arising
from the pleadings as widened by the evidence. 10 Thus widened, the issues
included, amongst others, the specific obligations undertaken by ADT as part
of the service it would render to the CC in terms of the agreement, and details
of the respects in which the CC contended that ADT had breached the
agreement. Some of the terms of the agreement were not pleaded in the

10 Shill v Milner 1937 AD 101 at 105. In paragraph 42 below Ponnan JA contrasts this statement to the
provisions of the parol evidence rule, the decision in KPMG Chartered Accountants (SA) v Securefin Ltd and
Another [2009] ZASCA 7; 2009 (4) SA 399 (SCA) para 39, the provision in clause 11.8 of the agreement
providing that the written agreement contains the entire agreement between the parties and the decision in
Johnson v Leal 1980 (3) SA 927 (A) at 938. My statement does not seek to introduce anything in conflict
with those principles. It simply deals with identifying what are truly the issues (as opposed to evidence) and
determining which issues are in dispute. The issues in any contractual claim would ordinarily be whether a
contract exists, the terms thereof, the breach of any of the terms, and the remedy the aggrieved party wishes
to enforce. These would all be pleaded in the particulars of claim. In the present matter the terms of the
agreement have not all been pleaded. They are however not disputed, as all the provisions contained in the
written agreement, which document is acknowledged to be the ‘entire agreement’ between the parties,
constitute the terms of the agreement. ADT does not dispute that. Many of these terms, notably those
contained in clause 6 and the exclusionary provision relied upon, although not pleaded in the particulars of
claim, were pleaded by ADT. Some that were not pleaded, such as the ambit of ADT’s contractual
obligations, have now been set out in paragraphs 37 and 39 of Ponnan JA’s judgment below. Paragraphs 37,
39 and 40 of his judgment now record all these terms, which have become common cause, more extensively.
All my statement seeks to convey is that at the level of the technical adequacy of the particulars of claim,
terms not pleaded but referred to in the evidence of Mr Osman, where these specific terms were put to him
in cross examination and conceded to be part of the agreement, resulted in the issues for determination by
the high court, and which would be relevant also to adjudicating the application for absolution, not being
confined to the issues expressly pleaded in the particulars of claim. The terms expressly pleaded in the
particulars of claim have been broadened by these additional terms identified in his evidence. To that extent
the issues have been widened by the evidence. Mr Osman’s evidence does not contradict or add to the terms
of the agreement, in contravention of clause 11.8 or the parol evidence rule. It simply cures the omission of
these terms not having been pleaded fully in the particulars of claim. My statement relates to the facta
probanda, not the facta probantia.

particulars of claim, but were elicited during the cross examination of Mr
Osman, confirmed by him, and hence became common cause during the trial.

The existence of the contract
[9] The following were common cause:
(a)
The existence of the agreement, annexure ‘A’ to the particulars of
claim;
(b)
The terms11 thereof,12 which included, inter alia, the following:
(i)
ADT would supply security services, including radio
monitoring, telephone monitoring, and armed response in respect
of the CC’s business premises (the premises) in Rustenburg
(ii)
Armed personnel of ADT would attend at the premises in
response to activation signals received from the alarm system
fitted at the premises, as quickly as operational circumstances
would permit, if no satisfactory explanation was given
telephonically from the premises,;
(iii)
On arrival of the armed personnel at the premises ADT would
take such further steps as might be reasonably necessary to
safeguard the premises, the contents thereof, the customer and/or
the customers invitees;
(iv)
ADT would exercise reasonable care13 in the rendering of the
services, but did not guarantee assurance of safety or against any

11 In paragraph 44 below, Ponnan JA refers to evidence being given by Mr Osman of certain representations.
Such evidence would clearly be inadmissible. In this judgement I have made no reference thereto. I did not
understand that argument to be advanced by the CC in the High Court either. The parties were bound by the
‘fine print’ of the written agreement. The practice sometimes resorted to by counsel to engage in legal debates
with lay litigants about the legal niceties of their claim, quoted by Ponnan JA, is to be avoided.
12 The terms are set out more extensively in the judgment of Ponnan JA at paragraphs 39 and 40 below.
13 Clause 6.1 of the agreement provided that:

loss, liability, injury or damage of whatsoever nature and
howsoever arising;
(v)
Subject to the provisions of the Act,14 neither ADT nor any other
persons for whom ADT may be liable in law would be liable to
the CC in respect of, or pursuant to any loss, liability, injury,
damage or claims of whatsoever nature, including without any
limitation, any loss of profits and/or any special or consequential
loss or damages whether arising through the rendering or non-
rendering or attempted rendering by ADT of the service, if any
such loss, liability, injury, damage or claims arose as a result of
or pursuant to any innocent or negligent act or admission on
ADT’s part or any persons for whom ADT may be liable in law15
(the exclusionary clause); and
(vi)
The CC waived certain claims and indemnified ADT against
certain claims by others.16

Breaches of the agreement
[10] The issues which arose from the allegations in the amended particulars
of claim in this regard have been set out in paragraph 4 above. If ADT required

‘The Customer acknowledges that to the extent that the Services function as a deterrent, they are not a
guarantee of safety against or prevention of loss liability, injury and damage of whatsoever nature and
howsoever arising. Accordingly while ADT shall exercise reasonable care in the installation of the System
and in the rendering of the Services, nothing herein contained shall be construed or interpreted in any manner
whatsoever as providing the Customer or any third party whomsoever with any guarantee or assurance of
safety or against any loss, liability, injury or damage of whatsoever nature and howsoever arising.’
14 The agreement defined ‘Act’ as ‘The Private Security Industry Regulation Act 56 of 2001 and the
Regulations in respect thereof.’ It would also include the code.
15 Clause 6.2.
16 Clause 6.3 provided that:
6.3
Subject to the provisions of the Act, the Customer:
6.3.1 hereby irrevocably waives all and any such claims referred to in clause 6.2 above.
6.3.2 hereby irrevocably indemnifies ADT or any other person for whom ADT may be liable in law against
all claims of third parties arising out of the said acts or omissions, as referred to in clause 6.2 above, at the
Premises.’

more particulars of the negligent alternatively gross negligent breaches, then
it could have requested further particulars for trial.17 ADT was however left
in no doubt, having regard to these allegations, as amplified by Mr Osman’s
evidence explaining and widening the issues insofar as might be necessary,
that the CC contended that ADT had breached its contractual obligations
negligently, alternatively grossly negligently. The high court had no difficulty
with the allegations regarding the various breaches of the agreement, as the
judgment did not refer to a failure to plead breaches of the agreement, or a
lack of evidence establishing the breaches, otherwise that would have been
stated in the high court’s reasons for granting absolution.

Causation and damages
[11] It is trite law that a plaintiff ‘is not required to establish the causal link
(between breaches of an agreement and damages) with certainty, but only to
establish that the wrongful conduct was probably a cause of the loss, which
calls for a sensible retrospective analysis of what would probably have
occurred, based upon the evidence and what could be expected to have
occurred in the ordinary course of human affairs, rather than an exercise in
metaphysics.’18 A plaintiff who at the end of a trial can show no more than a
probability that he would not have suffered the loss if the contract had been
properly performed, will succeed unless the defendant can discharge the onus
of proving that there was no such probability.19 This requirement will not be
considered further in view of the separation of issues which occurred at the
commencement of the trial.

17 Rule 21.
18 Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) 449.
19 Primesite Outdoor Advertising (Pty) Ltd v Salvianti and Santori (Pty) Ltd 1999 (1) SA 868 (W) at
881F-882B.

The separation of issues
[12] Not all the issues ordinarily required to be proved to succeed with a
contractual damages claim, were to be adjudicated before the high court. In
regard to the application for absolution the question thus became whether
there was evidence on which a court acting carefully might or could find for
the CC on the issues separated for determination, not all the issues. The
parties agreed at a pre-trial conference that ‘the merits and quantum should be
separated in terms of Rule 33 (4)20 and that the trial would be confined at first
to the merits of the plaintiffs’ claims.’ Where parties conclude such an
agreement, the sub-rule nevertheless requires that it is for the court to grant
such an order for separation. It will ordinarily do so, unless it appears that the
issues sought to be separated, cannot conveniently be decided separately. But
it remains for the court to identify the issues which it orders to be separated
clearly and with precision, otherwise considerable prejudice could ensue.

[13] Thus, it has been held that:
‘It is imperative at the start of the trial that there should be clarity on the questions that the
court has been called upon to answer. Where issues are to be separated rule 33(4) requires
the court to make an order to that effect. If for no reason but to clarify matters for itself a
court that is asked to separate issues must necessarily apply its mind to whether it is indeed
convenient that they be separated, and if so, the questions to be determined must be
expressed in its order with clarity and precision.’21

20 Rule 33 (4) provides:
‘If, in any pending action, it appears to the court mero motu that there is a question of law or fact which may
conveniently be decided either before any evidence is led or separately from any other question, the court
may make an order directing the disposal of such question in such manner as it may deem fit and may order
that all further proceedings be stayed until such question has been disposed of, and the court shall on the
application of any party make such order unless it appears that the questions cannot conveniently be decided
separately.’
21 Absa Bank Ltd v Bernert 2011 (3) SA 74 (SCA) para 21.

The high court however made no formal order and did not identify the issues
separated with clarity and precision. It simply requested the pre-trial minute,
referred to the paragraph number containing the parties’ agreement, and then
said ‘Okay. Yes proceed.’ The appellants’ counsel then referred to the
breaches of the agreement. Nothing was said as to whether causation would
form part of the merits or quantum. The learned judge simply remarked ‘Yes,
thank you’ and the trial proceeded. No formal separation was ordered. It seems
that the parties might have been ad idem as to what was included under ‘the
merits’, but that begs the question as to which specific issues the high court
and any appeal court might consider should have been dealt with separately.
It has been held by this court in FirstRand v Clear Creek Trading22  that the
failure to make a formal order for separation of the issues, and the failure to
specify an issue with clarity, would render the process incompetent. This
would be particularly so, as in the present case, where the failure to address
the matter properly under rule 33(4), introduced uncertainty.

[14] The high court and the parties do not appear to have experienced any
particular difficulty in this regard.23 During argument before this court it was
however suggested24 to counsel that there was no evidence on causation,
specifically in respect of an alleged loss of profits claimed. That question
presupposes that the element of causation formed part of the merits that had
been separated for determination. Because no formal order was granted, there
is no order to interpret in accordance with the usual principles applicable to

22FirstRand v Clear Creek Trading 2018 (5) SA 300 (SCA) para 13-14.
23 In this regard I respectfully go beyond the statement by Ponnan JA in paragraph 46 below. Not only had
the parties approached the matter on the basis that the issues of liability and quantum had been separated and
that the trial would proceed in relation to the former, but further that causation was not included under the
merits.
24 See also paragraph 46 below.

the interpretation of court orders. The uncertainty as to what might have been
separated would work to the CC’s prejudice if it was now found that it should
have provided evidence on causation, whilst it had thought, that the
requirement of causation was separated for subsequent determination. This
uncertainty, whether real or perceived, simply reinforces the importance of
issues separated for hearing always being formulated with precision and
clarity.

[15] Accepting even in the absence of an express court order that the
‘intention’ was that the ‘merits’, whatever the exact meaning thereof might
be, were to be separated, then the reference to the ‘merits’, in contradistinction
to ‘quantum’, would still be ambiguous. On that basis alone, absolution should
not have been granted, and the trial should be referred back for clarity to be
obtained, the trial to continue, and the CC possibly to re-open its case, if so
advised. If I am wrong in that conclusion then the discussion which follows
remains apposite.

[16] It would be dangerous to speculate on what the non-existent order of
separation possibly would have meant, by just having regard to the wording
of the pre-trial minute. Nevertheless, the parties and the high court appeared
to have accepted that causation was not an issue for determination. It is useful
to have regard briefly to how the action was conducted, as such conduct is
consistent with causation not having been considered as part of the ‘merits’.

[17] As far as the learned judge was concerned, when Mr Osman
commenced giving evidence of what ‘other damages’ the CC had suffered and
he referred specifically to the ‘loss of profits for the year 2008 after the

burglary’, the court interjected and stopped the appellant’s counsel stating, ‘I
thought that merits and quantum are separated’. Counsel responded, ‘No, we
are not going to the quantum’ and the learned judge remarked approvingly,
‘Oh, okay’. Counsel had clearly taken his cue from the learned judge who, on
probability, would not have interrupted the evidence, if the issues separated
for determination before him included causation.

[18] Likewise in his judgment, the learned judge did not refer to an absence
of evidence regarding causation, as being a reason why the order of absolution
should be granted. The high court simply held that the exclusionary clause in
the agreement, excused ADT from liability to the CC for any loss, liability,
injury, damage or claims of whatsoever nature, that the CC had irrevocably
waived any claims that may arise out of contract or delict against ADT, and
that the claim was not proved on a balance of probability. If evidence had been
required on causation as well, then the failure to have adduced such evidence
would have featured prominently in the judgment, just like the absence of
evidence in support of Mr Osman’s personal action featured in the high court’s
reasons for having granted absolution in respect of his claim.

[19] The court was responsible for formulating clearly which issues were
separated. It did not do so. It was also never debated what order the high court
would be required to make, should it, after a full trial, have decided the
separated issue in favour of the CC. Presumably it would be a declaratory
order that ADT was directed to compensate the CC for such damages as it
would be able to prove it had suffered as a result of the breach of the
agreement. That formulation would leave the issue of causation for
subsequent determination.

[20] Considerations of convenience also render it unlikely that a separation
of the ‘merits’, would have included causation. Evidence on causation would
have to be repeated in the mechanical process of calculating the amount of the
CC’s damages. For example, the proof of the quantum of damages for
computers stolen, would require evidence that computers were stolen, the
number stolen and the value of each, which except for the last, would also be
the evidence in respect of causation. To have separated causation as part of
the merits, would result in a duplication of the same evidence, which would
render such a separation not ‘convenient’ for the purposes of rule 33(4).

[21] The aforesaid uncertainty should have been clarified by the high court.
The resultant ambiguity in the non-existent ‘order’, should not summarily be
assumed against the CC. This is particularly so where the above facts and
circumstances, indicate that the court was not even interested in hearing
evidence on the general nature (loss of profits) of damages which the CC
would contend had been caused by ADT’s breach. For the purposes of
adjudicating the application for absolution, the issue of causation did not and
should not feature. The cursory manner in which the question of a separation
of issues was dealt with, would be reason to refer the trial back to the high
court. But absent such a referral considerations of practicality can be served
by the order of absolution in respect of the CC’s claim for that reason alone
be dismissed, so that the matter may continue in the high court, and these
issues can be addressed in that forum. At worst for the CC, evidence was given
in general terms that the breaches of the agreement had resulted in it suffering
various losses. That should satisfy the requirement of causation at the
absolution stage, if causation in fact formed part of the ‘merits’. On that basis,

alternatively, the basis that causation was not an issue before the high court, I
turn to consider the facts and evidence the high court should have had regard
to in deciding whether to grant absolution.

The facts and evidence the high court should have had regard to.
[22] For the purpose of considering whether absolution from the instance
should have been granted, the relevant facts would be the allegations in the
particulars of claim that were admitted in the plea, as widened by or explained
in the evidence of Mr Osman in chief and reply, together with any concessions
made by him during cross examination. Propositions put during cross
examination as to what ADT’s version might be when called upon to testify,
not expressly admitted by Mr Osman, are not evidence and have no probative
value.

[23] A court must not evaluate a plaintiff’s evidence at the absolution stage,
but must accept the evidence as true.25 Nor should a court weigh up different
possible inferences. It must rather determine whether any one inference, from
a range of possible reasonable inferences, might favour the plaintiff.26 The
truthfulness or otherwise of Mr Osman’s evidence and any conclusions drawn
on what may be perceived to be the probabilities, would also be irrelevant at
the absolution stage. Mr Osman was clearly an excitable witness, who felt
very aggrieved by how he had been treated by ADT. Due allowance must be
made for that, particularly where his evidence is considered in an application
for absolution at the end of the plaintiffs’ case. The statement by the high court

25 Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E) at 527C-E.
26 Gandy v Makhanya 1974 (4) SA 853 (N) at 856B-C; Marine & Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26 (A) at 39.

in its judgment that the appellants had not proved their claims ‘on the
probabilities’, was a misdirection.

[24] Keeping these very stringent considerations in mind, the following
constituted the factual foundation on which the high court had to decide
whether it should grant absolution, or not –
(a)
The CC had concluded an agreement, with the terms set out above, in
terms of which ADT was to render security services at its business
premises. It was required to exercise reasonable care in doing so;
(b)
At 06h48:38 on 21 December 2007 Mr Osman received27 a text
message on his cellular phone from ADT indicating that an emergency
vehicle of ADT had ‘responded to an alarm’ at the premises;
(c)
He attempted on numerous occasions to contact the offices of ADT, but
was unsuccessful and they did not answer at all;
(d)
At around 8h00 he proceeded to the premises where he found at the
front that the locks were smashed, and the door had been left open. At
the front door he found a slip of the kind issued by ADT when attending
at the premises when the alarm had been activated, which recorded that
the premises had been attended by a security response officer of ADT,
Isaac, at 00h24 who, inconsistent with what Mr Osman discovered,
recorded that he had found ‘all in order’;
(e)
Mr Osman entered the building and realised that no one from ADT was
present;

27 Consistent with Mr Osman’s evidence the plaintiffs’ amended particulars of claim alleged that a short text
message (sms) was received at 06h48:38. The defendant pleaded that a sms was sent at approximately
00h45:56 to cellular number 0824874512 advising that a reaction unit responded to a false emergency at the
premises, but that it had no knowledge as to when the message was received by the recipient.

(f)
He called ADT and a ‘guard’ Abel arrived to see what had transpired.
Upon inspection they noted that the premises had been broken into at
the front and also at the back, where the ‘wall was broken down’. He
discovered that various rims and tyres for motor vehicles, being stock
in which the CC traded, and computers and cash had been stolen, and
locks damaged;
(g)
Mr Osman would have no personal knowledge as to when the premises
were broken into early that morning.28 The only information he had,
was from a Customer History form for the period from 13 December
2007 to 2 January 200829 generated in the offices of ADT, which he
introduced in evidence. It was not challenged that this history report
accurately reflected the events contained therein. Additional matter put
to him, as being what ADT’s version of events would be, was invariably
disputed and can therefore not be taken into account in deciding
whether absolution should have been granted;
(h)
According to ADT’s own document, alarm signals were received from
the premises twice at around 00h33, twice at around 00h47, twice at
around 00h49, and once each at 00h50 and 00h51, that is eight times
over a period of 18 minutes. These indicated that the alarm system had
been triggered, in Mr Osman’s words, at the ‘front, front, front’ of the
building, which on probability would be indicative, as the only
reasonable inference, that the building was being broken into at the
front at that time. The repeated activations would be consistent, at the
level of a reasonable inference, with continuous breaking-in activity

28 The amended particulars of claim had alleged that a burglary took place at the premises at about 00h00.
29 Significantly after each of the four distinct activations, the record reflects a ‘restoral’, which has not been
explained by ADT.

and movement at the front of the building, where Mr Osman
subsequently, not surprisingly, discovered evidence of a break in. Yet
no one from ADT attended at the premises in response;
(i)
Mr Osman also referred to the written report which he had found at the
premises that morning around 08h00. He explained that the procedure
was that ADT was to remain at the premises and to phone him whenever
there was a break in.

[25] Had ADT discharged its obligations properly, the break in would, on
probability have been detected and the intruders probably caught red-handed.
ADT was then required to have safeguarded the premises and to have
prevented further damage and loss. It did not do so.

The test for absolution from the instance
[26] The test for absolution, to be applied by a trial court at the end of a
plaintiff’s case, was formulated in Claude Neon Lights (SA) Ltd v Daniel30 as
follows:
‘(W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be
applied is not whether the evidence lead by plaintiff establishes what would finally be
required to be established, but whether there is evidence upon which a Court, applying its
mind reasonably to such evidence, could or might (not should, nor ought to) find for the
plaintiff ’.
This court added in Gordon Lloyd Page & Associates v Rivera and Another31
that:
‘This implies that the plaintiff has to make out a prima facie case - in the sense that there
is evidence relating to all the elements of the claim - to survive absolution because without

30 Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H.
31 Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) para 2.

such evidence no court could find for the plaintiff. . . As far as inferences from the evidence
are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the
only reasonable one . . . The test has from time to time been formulated in different terms,
especially it has been said that the court must consider whether there is “evidence upon
which a reasonable man might find for the plaintiff” . . . a test which had its origin in jury
trials when the “reasonable man” was a reasonable member of the jury. Such a formulation
tends to cloud the issue. The court ought not to be concerned with what someone else might
think; it should rather be concerned with its own judgement  . . . Having said this, absolution
at the end of the plaintiff’s case, in the ordinary course of events, will nevertheless be
granted sparingly but when the occasion arises, a court should order it in the interests of
justice.’

[27] The fact that a defendant had at that stage not yet given evidence, is
often a cogent factor to be taken into account, particularly where the facts are
within the peculiar knowledge of the defendant and the plaintiff has made out
a case to answer. In those circumstances a plaintiff should not lightly be
deprived of his remedy without the court first hearing what the defendant has
to say.32 Issues of negligence alternatively gross negligence are questions of
fact best determined only after all the evidence has been heard. This is exactly
the position in this matter.

[28] When the interpretation of a document foundational to a plaintiff’s
claim is in issue, a court will also normally refuse absolution unless the proper
interpretation of the document is beyond question.33 Generally, a trial court is
a very chary of granting absolution at the close of a plaintiff’s case.34

32 Supreme Service Station (1969) (Pty) Ltd v Fox and Goodridge (Pty) Ltd 1971 (4) SA 90 (RA) at 93.
33 Gafoor v Unie Versekeringsadvisuers (Edms) Bpk 1961 (1) SA 335 (A) at 340; Malcolm v Cooper and
Others 1974 (4) SA 52 (C) at 59.
34 Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E) at 526 H.

Discussion
[29] Although submissions were advanced as to the application of the
Private Security Industry Regulation Act 56 of 2001 and the Regulations in
respect thereof (the Act)35, and the Code published in Government Notice 305
of 2003 issued pursuant thereto, these have no material bearing on the issues
in the appeal. The exclusionary provision in the agreement did not offend
against the provisions of the Act.36 In terms of the wording of the exclusionary
provision ADT did not, and indeed as a matter of law in terms of the
provisions of the Act, could not contract out of liability for ‘any malicious,
intentional, fraudulent, reckless or grossly negligent act or omission’.

35 Section 8(3) of the Act provides that, ‘Every security provider must endeavour to prevent crime, effectively
protect persons and property and refrain from conducting himself or herself in a manner which will or may
in  any manner whatsoever further or encourage the commission of an offence or which may unlawfully
endanger the safety or security of any person or property’.
Section 8(11) provides that a ‘security service provider must in practising this occupation . . . always act in
an honest and trustworthy manner’.
Section 9(5) provides that a security service provider ‘must render the security service for which he or she
has bound himself or herself contractually in accordance with the terms and conditions of the contract, the
Act and this Code’ and … with ‘such a degree of skill, diligence and care as may be expected of a reasonable,
competent and qualified security service provider in the circumstances’
In terms of section 9(15)(b) a security service provider may not ‘intentionally or through gross negligence
damage or lose any property of a client’.
36 In terms of section 9(3) of the code:
‘A security service provider may not-
. . .
(d)
make a contractual offer to conclude a contract with the client containing any term, condition or
provision that –
(i) excludes, limits or purport to exclude or limit the legal liability of the security service provider
towards the client in respect of any malicious, intentional, fraudulent, reckless or grossly
negligent act or the security service provider, his or her security officers or other personnel, or
any other person used by the security service provider or recommended by him or her to the
client; or
(ii) places a duty or purport to place a duty on the client to indemnify will compensate the security
service provider or any other person in respect of any act referred to in subparagraph (i) by a
person for whose conduct the client is not independently responsible in law;
(e)
make a contractual offer or conclude a contract with the client containing any term, condition or
provision that excludes or limits or purport to exclude or limit any duty on the security service
provider in terms of the Act or this Code or any right which the client has in terms of this Act or this
Code, or which constitute or purport to constitute a waiver of any such right by the client’ (Emphasis
added.)

[30] The high court should also have considered that there is a potential issue
arising in regard to the proper interpretation of the agreement. I put it no
higher at this stage, than that it seems incongruous that an agreement can
positively undertake on the one hand that ADT ‘would exercise reasonable
care in the rendering of its services’, that is according to an objective standard,
but then simultaneously provide that ADT could contract out of liability for
negligent conduct, which is determined with reference to that same objective
standard. That issue, or at least how this apparent contradiction can be
reconciled, should properly be considered only after all the evidence had been
heard. The pleadings are wide enough to raise that enquiry, regardless of s 48
of the Consumer Protection Act37 not having been pleaded specifically.

37 Section 48 of the Consumer Protection Act 68 of 2008 deals with ‘Unfair, unreasonable or unjust contract
terms. It provides:
(1) A supplier must not-
(a) offer to supply, supply, or enter into an agreement to supply, any goods or services-
(i)
at a price that is unfair, unreasonable or unjust; or
(ii)
on terms that are unfair, unreasonable or unjust
(b) . . .
(c) require a consumer, or other person to whom any goods or services are supplied at the direction of
the consumer-
(i)
to waive any rights;
(ii)
assume any obligation; or
(iii)
waive any liability of the supplier,
on terms that are unfair, unreasonable or unjust, or impose any such term as a condition of entering into a
transaction.
(2) Without limiting the generality of subsection (1), a transaction or agreement, a term or condition of a
transaction or agreement, or a notice to which a term or condition is purportedly subject, is unfair,
unreasonable or unjust if-
(a) it is excessively one-sided in favour of any person other than the consumer or other person to whom
goods or services are to be supplied;
(b) the terms of the transaction or agreement are so adverse to the consumer as to be inequitable ;
(c) the consumer relied upon a false, misleading or deceptive representation, as contemplated in section
41 or a statement of opinion provided by or on behalf of the supplier, to the detriment of the
consumer; or
(d) the transaction or agreement was subject to a term or condition, or a notice to a consumer
contemplated in section 49(1), and –
(i)
the term, condition or notice is unfair, unreasonable, unjust or unconscionable; or
(ii)
the fact, nature and effect of that term, condition or notice was not drawn to the attention
of the consumer in a manner that satisfied the applicable requirements of section 49.’

[31] That interpretation issue aside, the exclusionary clause did not, contrary
to the finding of the high court, exclude liability for any grossly negligent act
or omission.38 Jurisprudentially it is now39 accepted that gross negligence is
different to and separate and distinct from negligence.40 Whether an act or
omission is negligent or grossly negligent, is a question of fact. Where the
conduct in question falls peculiarly within the knowledge of the defendant,
that question cannot be determined properly until all the evidence has been
heard. A court should not be called upon to decide the issue of gross
negligence until all the evidence is concluded.41

[32] The high court did not at all consider whether there was evidence on
which a court might find that there was gross negligence. The established
facts, in the absence of evidence in rebuttal, were consistent with recklessness,
or at least gross negligence, which is what the CC had pleaded. It certainly
could not be said that there was no evidence on which a court might or could
find grossly negligent conduct on the part of ADT. The alarm was activated
repeatedly on eight, but at least at four separate and distinct times, within a
short period of 18 minutes. There was no reaction to those activations. On

38 In paragraph 41 below, Ponnan JA refers to the decision in First National Bank of SA Ltd v Rosenblum
and another 2001 (4) SA 189 (SCA) at para6 – 7. I draw attention specifically to the dicta in that decision
that an exclusionary provision, as in this appeal, is to be interpreted strictly. The court held that, ‘(t)he
strictness in approach is exemplified by the cases in which liability for negligence is under consideration.
Thus, even where an exclusionary clause is couched in language sufficiently wide to be capable of
excluding liability for a negligent failure to fulfil a contractual obligation or for a negligent act or omission,
it will not be regarded as doing so if there is another realistic and not fanciful basis of potential liability to
which the clause could apply and so have a field of meaningful application…’ In this matter liability for
’gross negligence’ is not excluded. Yet the high court did not consider such liability at all.
39 Contrary to earlier dicta in for example Cape Town Municipality v Paine 1923 AD 207.
40 Transnet Limited v Owners of the ‘Stella Tingis’ [2003] 1 All SA 286 (SCA) para 7; Bickle v Joint Ministers
of Law and Order 1980 (2) SA 764 (R). In an entirely different context of company law it is significant that
s22 of the Companies Act 71 of 2008 provides for instances of a company carrying on its business ‘recklessly,
with gross negligence, with intent to defraud any person or for any fraudulent purpose’ (emphasis added)
41 Arthur v Bezuidenhout and Mieny [1962] 2 All SA 506 (A); 1962 (2) SA 566 (A) at 573H.

those facts the alarm was ignored while access was being gained at the CC’s
premises. There was no evidence that ADT’s staff could not attend; if was not
even suggested that they could not attend. Their failure to attend in those
circumstances, to properly inspect the premises, and had they done so, to
protect and preserve the premises, could or might be reckless, but at the very
least would give rise to a reasonable inference of gross negligence. There has,
as yet, been no answer to that evidence. Consequently, only one inference can
arise. Whether it might ultimately be the appropriate inference is not part of
the enquiry at the absolution stage, but can only be determined at the end of
the trial.

[33] When an application for absolution is considered at the end of a
plaintiff’s case is not the time to cast scorn on the plaintiff’s prospects proving
that it has suffered a particular form of damages. That would amount to an
impermissible premature determination that the balance of probabilities don’t
favour the CC, at a time when there is no evidence contradicting the only
evidence before the court. ADT should not have been absolved from the
instance in respect of the CC’s claim and the appeal must accordingly succeed
to the extent that the order of absolution from the CC’s claim is set aside.

Costs
[34] The CC has been successful and Mr Osman unsuccessful in this appeal.
Most of the argument during the appeal was devoted to the order granted
against the CC. In the exercise of this court’s discretion on costs it would be
appropriate if ADT is directed to pay 80% of the appellant’s costs. A similar
costs order would be appropriate in respect of the application before the high
court.

Order
[35] I would grant the following order:
The appeal by the first appellant is upheld;
The appeal by the second appellant is dismissed;
The order of absolution granted with costs by the court a quo is set aside
and is replaced with the following orders:
‘(a)
The application for absolution in respect of the first plaintiff’s
claim, is dismissed.
(b)
The application for absolution in respect of the second plaintiff’s
claim is granted.
(c)
The defendant is directed to pay 80% of the plaintiffs’ costs of
opposing the application for absolution.’
The respondent is directed to pay 80% of the appellants’ costs of the
appeal.

_______________
P A Koen AJA
Judge of Appeal

Ponnan JA (Saldulker, Mokgohloa and Nicholls JJA concurring)

[36] I have had the benefit of reading the judgment of Koen AJA, who
proposes to uphold the appeal of the first appellant (the CC) and dismiss the
appeal of the second appellant, Mr Osman. Whilst I agree with my colleague
in respect of Mr Osman’s appeal, I regret I arrive at a contrary conclusion as
to the fate of the CC’s appeal.

[37] Koen AJA states that the particulars of claim are not a model of clarity.
In that, he is being unduly charitable to the appellants. The particulars of claim
provide:
‘5.1
On or about 16th of February 2005 the first plaintiff, as duly represented by the
second plaintiff, entered into a written agreement with the defendant as duly represented
by Rina Du Toit, at Rustenburg.
5.2
The material terms of the agreement were inter alia as follows:
5.2.1 That the defendant will render telephonic monitoring, radio monitoring, medical
response and armed response services in respect of the first plaintiff’s premises situated at
28 Hollyhock Street, Zinnaville, Rustenburg.
5.2.2  That the defendant shall exercise reasonable care in the rendering of the above
stated services.
5.2.3 That the agreement is for an unfixed period, subject to the terms in respect of
termination or suspension of the agreement as contemplated in clause 10 of the agreement.
5.2.4 That the first plaintiff will pay the monthly fee, charged by the defendant, annually
in advance.
5.3
At all relevant times hereto the annual fee was paid to the defendant by the first
plaintiff alternatively second plaintiff further alternatively first and second plaintiffs, and
the defendant had the contractual obligation to act in accordance with the provision of
paragraph 5.2 above.
5.4
A copy of the service agreement is hereto attached as annexure ‘A’.

6.1.
On or about the 15th of June 2005 the Defendant confirmed in a letter, called
security service confirmation, that:
6.1.1 That the defendant confirms security services at 28 Hoolyhock Street, Zinniaville,
Rustenburg as from March 2005.
6.1.2 That the security system linked by a radio to the defendant’s 24 hour, fully
computerised SAIDSA approved control room and 24 hour armed response service, in
respect of the first plaintiff’s premises, is operative.
6.2
A copy of the above stated letter is hereto attached as annexure ‘B’.
7.   On or about the 21st of December 2007, and about 00h00 a burglary took place at the
premises of the first plaintiff. An employee of the defendant, known as Isaac, who at all
times acted in the scope of his employment, responded to the activation of the alarm at the
premises of the first plaintiff, at 00h24, but reported that all was in order. A copy of the
relevant alarm activation report is hereto attached as annexure ‘C’.
8.  On or about 06h48:38 on the 21 December 2007, the second plaintiff received a short
text message from the defendant indicating that the defendant’s reaction unit has responded
to an emergency signal at the first plaintiff’s property.
9.   The first plaintiff, as duly represented by the second plaintiff, immediately attempted
to contact the defendant telephonically to establish the whereabouts of the emergency
signal, but could not get hold of the defendant.
10.  When the first plaintiff, as duly represented by the second plaintiff arrived at the
premises on or about 8h05 on the 21st of December 2007 the second plaintiff observed:
10.1
That a burglary took place as the door locks and walls to the premise were broken
by force.
10.2
That the alarm system was disconnected and destroyed beyond repairs.
10.3
That a big amount of stock, in form of tyres, spares and rims were stolen from the
premises.
10.4
That significant computer data was stolen.
10.5
That amounts in cash were stolen which were kept in a safe on the premises.
10.6
That the fax machine used on the premises was stolen.
10.7
That architect plans and engineering plans were stolen.
10.8
That the balancing machine was damaged.

10.9
That an antique till was stolen.
10.10 That an antique safe was stolen.’

[38] Pleadings play a vital role in litigation. The purpose of pleadings is to
bring to the attention of the court and the other party the issues in the case.
They must be lucid, logical and in an intelligible form, because they define
the issues as well as the scope and ambit of the dispute between the parties. It
will be immediately apparent that the amended particulars of claim in this case
fall short in several respects.

[39] The CC’s claim is one in contract. In that regard, reliance was placed
on a written agreement. Although the relevant provisions relied upon by the
CC were not pleaded, the entire agreement was annexed to the particulars of
claim. Thus, one simply does not know which provisions of the written
agreement are alleged to have been breached or in what respects. The
agreement described as a ‘Service Agreement’ consisted of some six pages.
The first page, which is in the nature of an offer to ADT by the customer,
contains a block for the insertion of the customer’s details. Immediately
thereunder is a block under the heading ‘Service Levels’. Three levels of
service are described: maintenance; monitoring and armed response. For the
present, the first is not relevant and I shall pass over the second. The third
provides:
‘The Armed Response Services are only applicable for Premises in areas which are
patrolled by ADT and consist only of:
Attendance by armed personnel at the Premises as quickly as operational circumstances
may permit in response to activation signals received from the system if no satisfactory
explanation is given telephonically from the premises;

On arrival of such armed personnel at the Premises, such further steps as may be reasonably
necessary to safeguard the Premises, the contents thereof, the Customer and/or Customer’s
invitees’.

[40] Pages two and three of the agreement contain the terms and conditions.
Those, inter alia, provide:
‘4.2
The System is designed to reduce the risks of loss or damage at the Premises so far
as this can be the use of this type of equipment. We do not, however, guarantee that the
System cannot be tampered or interfered with, or that there will be no miscommunication
problems, or prevent working by you or by any other person. We are accordingly not liable
to you for any loss or damage any other party may suffer however arising from any such
removal, tampering, interference or System being prevented from working in any manner:
4.3
Furthermore, ADT do not undertake or guarantee to the Customer that:
4.3.1 Particular losses or injuries will be prevented by using the System and/or the
Services;
4.3.2 The System and/or the Services will work continuously and without error; or
4.3.3 The radio signals or any other communication cannot be disrupted.
. . .
6.1
The Customer acknowledges that to the extent that the Services function as a
deterrent, they are not a guarantee of safety against or prevention of loss, liability, injury
and damage of whatsoever nature and howsoever arising. Accordingly while ADT shall
exercise reasonable care in the installation of the System and in the rendering of the
Services, nothing herein contained shall be construed or interpreted in any manner
whatsoever as providing the Customer or any third party whomsoever with any guarantee
or assurance of safety or against any loss, liability, injury or damage of whatsoever nature
and howsoever arising.
6.2
Subject to the provisions of the Act, neither ADT nor any other person for whom
ADT may be liable in law shall be liable to the Customer in respect of or pursuant to any
loss, liability, injury, damage or claims of whatsoever nature (including without limitation
any loss of profits and/or any special and/or consequential loss or damages) whether arising
through the rendering or non-rendering or attempted rendering by ADT of the Services in

terms of this Agreement or in delict or otherwise whether at the Premises if any such loss,
liability, injury, damage or claims arise as a result of or pursuant to any innocent or
negligent act or omission on the part of ADT or any other persons for whom ADT may be
liable in law.
6.3
Subject to the provisions of the Act, the Customer:
6.3.1 hereby irrevocably waives all and any such claims referred to in clause 6.2 above;
6.3.2 hereby irrevocably indemnifies ADT or any other person for whom ADT may be
liable in law against all claims of third parties arising out of the said acts or omissions, as
referred to in clause 6.2 above, at the Premises.
. . .
6.6
The Customer hereby agrees and acknowledges that the System and/or the Services
are complementary to insurance cover and do not provide an alternative to such insurance
cover. It remains at all times the duty of the Customer to ensure that the Customer has
adequate insurance where necessary and that the Premises and contents thereof (including
the premises for which the Customer, not being the owner thereof, is nevertheless
responsible) adequately insured.’

[41] In First National Bank of SA Ltd v Rosenblum and another 2001 (4) SA
189 (SCA) paras 6–7, Marais JA stated:
‘Before turning to a consideration of the term here in question, the traditional approach to
problems of this kind needs to be borne in mind. It amounts to this: In matters of contract
the parties are taken to have intended their legal rights and obligations to be governed by
the common law unless they have plainly and unambiguously indicated the contrary.
Where one of the parties wishes to be absolved either wholly or partially from an obligation
or liability which would or could arise at common law under a contract of the kind which
the parties intend to conclude, it is for that party to ensure that the extent to which he, she
or it is to be absolved is plainly spelt out. This strictness in approach is exemplified by the
cases in which liability for negligence is under consideration. Thus, even where an
exclusionary clause is couched in language sufficiently wide to be capable of excluding
liability for a negligent failure to fulfil a contractual obligation or for a negligent act or
omission, it will not be regarded as doing so if there is another realistic and not fanciful

basis of potential liability to which the clause could apply and so have a field of meaningful
application. . . .
It is perhaps necessary to emphasise that the task is one of interpretation of the particular
clause and that caveats regarding the approach to the task are only points of departure. In
the end the answer must be found in the language of the clause read in the context of the
agreement as a whole in its commercial setting and against the background of the common
law and, now, with due regard to any possible constitutional implication.’

[42] The exclusionary clauses in this case are not ambiguous. They clearly
state that while ADT shall exercise reasonable care, it gives no guarantee; that
the contract is not an alternative to insurance; and that it is not liable to the
CC for any damage or loss incurred. Nothing could be plainer. Koen AJA,
para 8, states: ‘In identifying the material issues relevant to the CC’s
contractual claim, reference must be had not only to the issues pleaded but
also to the issues arising from the pleadings being widened by the evidence.’
However, as Harms DP pointed out in KPMG Charted Accountants (SA) v
Securefin Ltd and Another [2009] ZASCA 7; 2009 (4) SA 399 para 39:
‘First, the integration (or parol evidence) rule remains part of our law. However, it is
frequently ignored by practitioners and seldom enforced by trial courts. If a document was
intended to provide a complete memorial of a jural act, extrinsic evidence may not
contradict, add to or modify its meaning . . . Second, interpretation is a matter of law and
not of fact and, accordingly, interpretation is a matter for the court and not for witnesses
(or, as said in common-law jurisprudence, it is not a jury question’.

[43] Where, as here, a contract has been reduced to writing, the writing is
regarded as the exclusive embodiment or memorial of the transaction and no
extrinsic evidence may be given of other utterances or jural acts by the parties
which would have the effect of contradicting, altering, adding to or varying

the written contract. (see Johnson v Leal 1980 (3) SA 927 (A) at 938). What
is more, clause 11.8 of the agreement records that:
‘This Agreement is the entire agreement between ADT and the Customer’s and ADT shall
not be bound by any representations, undertakings, promises or the like not specifically
recorded or incorporated herein. No variation of this agreement, waiver of rights, release
from any obligations or any consensual cancellation in terms of this Agreement shall have
no effect unless in writing and signed by both ADT and the customer.’

[44] Mr Osman testified at the trial. No other witnesses were called. He tried
to suggest that at the time of signing the agreement, certain oral
representations had been made to him by an employee of ADT. That evidence
was plainly inadmissible. Under cross examination, after the exclusionary
clauses alluded to were put to Mr Osman and he was asked, ‘[y]our summons
says the opposite and I am simply asking you to explain to the court on what
basis do you say the opposite to what you agreed to?, he replied: ‘[p]erhaps
on the fact that I did not read the contract’. The evidence then ran thus:
‘Well unfortunately Mr Osman [it] is going to be argued that you are bound by the fine
print. . . .
My Lord, I cannot be bound by something that is drawn up against the client. A contract
that is prejudice the client in the very first instance of that if the company in question draws
up this contracts they can walk away from responsibility and that I am not prepared to
accept regardless of how well the contract is written, how many legal terms that are on the
contract the important thing is ADT does nothing for me’.

[45] A consideration that appears to weigh with Koen AJA (para 12) is the
failure of the high court to separate the issues ‘with clarity and precision’. It
is so that in Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile

Telephone Networks (Pty) Ltd and Another [2009] ZASCA 130; [2010] 2 All
SA 9 (SCA) paras 89–90, this court cautioned:
‘Piecemeal litigation is not to be encouraged. Sometimes it is desirable to have a single
issue decided separately, either by way of the stated case or otherwise. If a decision on the
discrete issue disposes of a major port part of a case, or will in some way lead to expedition
it might well be desirable to have that issue decided first.
This court has warned that in many cases, once properly considered, issues initially thought
to be discreet are found to be inextricably linked. And even where the issues are discrete,
the expeditious disposal of the litigation is often best served by ventilating all the issues at
one hearing. A trial court must be satisfied that it is convenient and proper to try an issue
separately.’
However, as pointed out in Consolidated News Agencies para 86 ‘[t]he
pleadings and the evidence should not be viewed microscopically. It is
necessary to step back to see the bigger picture’.

[46] In my view, although no formal order issued in terms of rule 33(4), the
CC could not have been under any illusion as to the elements of the claim that
had to be satisfied to survive absolution. The rule 37 minute recorded the
parties’ agreement that ‘the merits and quantum should be separated in terms
of Rule 33(4) and that the trial be confined to the merits of the plaintiffs’
claim’. The parties appear to have approached the matter on the basis that the
issues of liability and quantum had been separated and that at that stage the
matter would be proceeding to trial only in relation to the former. That, it
seems, is the basis on which the high court also approached the matter. That
is where matters stood until it was first raised by a member of the court. It was
not advanced on behalf of the CC, either in the heads of argument or by
counsel during argument from the bar. It has never been suggested that the
CC has suffered any prejudice as a result of the manner in which the trial

proceeded pursuant to the separation agreed upon at the rule 37 conference.
Nor, it seems to me, could such a contention be advanced. After all, the CC
was the plaintiff and thus the master of the suit. I, thus, simply cannot see how
this point, which was never invoked by the CC, can be held to be decisive
against ADT at this stage of the proceedings.

[47] However, on my analysis of the case, this hardly matters, because on a
proper interpretation of the agreement, which is a matter for the court, the CC
has failed to make out a prima facie case. The evidence of Mr Osman does
little to tip the scales in its favour. If anything, properly construed, his
evidence only serves to further detract from the CC’s pleaded case. If the
appeal were to succeed, I cannot conceive how things could possibly get any
better for the CC. Thus, despite the fact that absolution from the instance at
the end of the plaintiff’s case, should be granted sparingly, it is clearly in the
interests of justice for such an order to issue in this case.

[48] I accordingly cannot agree with Koen AJA that the order absolving
ADT from the instance should be disturbed. In my judgment no court could
find for the CC.

[49] In the result, I would dismiss the appeal with costs, to be paid by the
appellants jointly and severally, the one paying the other to be absolved.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES

For the Appellants:
C J Mouton
Instructed by:

Michael Krawitz & Co
c/o Lovius Block, Bloemfontein

For the Respondent:
H Drake
Instructed by:

Eversheds Sutherland (SA)

c/o Honey Attorneys, Bloemfontein