CASE LAW UPDATE

Facts: The case involves The SPAR Group Limited, The SPAR Guild of Southern Africa NPC, and SPAR South Africa (collectively referred to as SPAR) as applicants, and Twelve Gods Supermarket and other entities and individuals (collectively referred to as the Giannacopoulos Group) as respondents. The Guild was established to facilitate, promote and regulate the SPAR voluntary trading group system. Members of the Guild are granted the right to participate in this trading group using the SPAR trademark names, subject to terms laid down by the Guild. The dispute arose from SPAR's unilateral alteration of credit and drop shipment terms under a long-standing contractual relationship with the Giannacopoulos Group, which operates multiple SPAR stores. SPAR cited financial instability and compliance issues as reasons for the changes, while the Giannacopoulos Group argued that the alterations were made in bad faith and were part of a broader effort to undermine their business. The clause under scrutiny concerns the alteration of credit facilities and drop shipment by the applicants, in terms of the contract concluded between them.

Application: The applicants brought an application for special leave to appeal against a decision of the High Court, which was dismissed by two judges of this court. Subsequently, the applicants applied for reconsideration of the dismissed application for special leave in terms of section 17(2)(f) of the Superior Courts Act 10 of 2013. The central issue was whether SPAR's unilateral contractual discretion to alter credit and drop shipment terms was subject to the arbitrio boni viri standard, which requires that such discretion be exercised reasonably, honestly and for a proper purpose. Additionally, the court had to determine whether SPAR met this standard in altering the terms.

Discussion: Giannacopoulos Group contended that SPAR's alterations were part of a broader strategy to pressure them out of their businesses, following SPAR's failed attempts to terminate their Guild membership and take control of their stores. The court examined whether the arbitrio boni viri standard, as established in NBS Boland Bank Ltd v One Berg River Drive [1999] ZASCA 60, applied to SPAR's discretion to alter the credit terms. SPAR argued that the standard did not apply because the Giannacopoulos Group had no contractual right to credit and could choose to accept or reject the new terms. The argument advanced by SPAR’s counsel was that the granting and acceptance of a credit facility, each time, constituted a new contract. The respondents contended that the standard applied because SPAR's actions altered their existing contractual obligations. SPAR’s construction is incorrect. The Giannacopoulos Group members completed applications for credit facilities which contained "Standard Terms of Sale". Clause 5, together with other clauses, form part of these terms. Some of these applications were completed some twenty years ago. Those applications were accepted by SPAR. The court found that the credit terms were part of an ongoing contractual relationship, and SPAR's unilateral alteration of these terms impacted the respondents performance, thus engaging the arbitrio boni viri standard.

Findings: SPAR did not provide any evidence to show that the Giannacopoulos Group had or was likely to purchase excessive stock beyond its ability to sell. There was merit in the contention by the Giannacopoulos Group that the sudden alteration by SPAR of the credit terms had no reasonable basis and was not executed for a legitimate purpose. It seemed that the alteration of the credit and drop shipment terms was part of a concerted effort by SPAR to throttle the Giannacopoulos Group out of its businesses, since it had failed to sustain the execution of the ex parte orders and to terminate their membership from the Guild. The findings of the full court to that effect, therefore, cannot be faulted. SPAR's discretion to alter the credit terms was subject to the arbitrio boni viri standard. SPAR's actions were not exercised reasonably or in good faith, as the reasons provided for the alterations (financial instability and compliance issues) were not substantiated. The court concluded that the alterations were part of a broader strategy to pressure the Giannacopoulos Group out of their businesses, following SPAR's failed attempts to terminate their Guild membership and take control of their stores.

Order: The application for reconsideration of the application for special leave to appeal was dismissed with costs, including those of two counsels where applicable.

MABINDLA-BOQWANA JA and MASIPA AJA (KGOELE JA, BAARTMAN AJA and DOLAMO AJA concurring)

Facts: The appellant, who was employed by Parade Total Transportation (a courier company) as an anti-hijack team member stated that, on the fateful evening, he was carrying his 9mm firearm in its holster, concealed by his jacket. The safety catch of the firearm was off and there was a bullet in the chamber. He normally carries the firearm like that to enable him to draw it and shoot when in imminent danger. His neighbour, Jabulile, had asked for assistance and she reported that the deceased was harassing her. Mr Tangzwane, the security officer at the complex, unsuccessfully attempted to remove the deceased and the appellant attempted to help him. The deceased was holding a bottle of beer and appeared to be intoxicated. The appellant alleges that the deceased grabbed for his firearm and during the scuffle a shot was discharged that hit the deceased in the head.

Appeal: The appellant was charged in the Regional Court, Benoni, on one count of murder. The appellant was convicted as charged and sentenced to 15 years’ imprisonment. The appellant denied that he intended to kill the deceased. It was submitted on his behalf that he should rather have been convicted of culpable homicide.

Discussion: The most pressing difficulty with the appellant’s version is the absence of any rational explanation for the trajectory of the bullet if things happened as the appellant says they did. The evidence from the post-mortem showed that the bullet entered the left parietal region on the upper part of the deceased’s skull and exited the right occipital region at the back. It was accepted by both the State and defence that the bullet followed a downward trajectory in the skull. In other words, the firearm was fired from above the head at an angle pointing downwards, so as to exit further down on the right-hand side. There was not much height difference between the two men. It is this glaring improbability in the appellant’s version, coupled with several other improbabilities, that combine to render the appellant’s version so improbable that it cannot be reasonably possibly true.

Findings: The state’s version must be accepted: the appellant was facing the deceased when he shot him. It is clear that the appellant acted with the requisite intention when he did so. On his version, the appellant exited his unit to assist Mr Tangzwane in dealing with the deceased. He did so in full knowledge that he had his loaded firearm, primed to fire, strapped to him in a holster. Even on the appellant’s own version, he must subjectively have foreseen that his actions could result in the death of the deceased and reconciled himself with that consequence. It is the conduct of one who foresees the possibility of death and proceeds reckless of that possibility eventuating. It is a clear case of someone acting, not negligently, but with the requisite dolus eventualis for murder. Therefore, even on the appellant’s own version, his conviction on a charge of murder was sound.

Order: The appeal against conviction is dismissed. The appeal against sentence is upheld. The order of the high court is amended to provide for a sentence of eight years which is antedated to 11 September 2019.

MABINDLA-BOQWANA JA and KEIGHTLEY JA (CHILI AJA and MOLITSOANE AJA concurring)

WEINER JA (dissenting) found that the State has not proved “subjective foresight” beyond a reasonable doubt. The events unfolded quickly and chaotically. Accordingly, the State has not proved dolus eventualis and the appeal against the conviction of murder ought to have succeeded and a verdict of culpable homicide would have been appropriate.

Facts: The applicant (AJE) and the first respondent (WRE) are divorced parents of two young boys, A (9) and R (6), who has special needs (ADHD). The parties had a shared residency arrangement and a court-ordered agreement. In accordance with the agreement the parties’ exercise a shared residency arrangement with specifically defined contact on special days and holidays. The agreement further contains provisions relating to the parties’ respective maintenance obligations. The agreement makes provision for the parents to be equally liable for the payment of A and R’s school fees. The issue before court pertains to the provisions contained in the agreement in respect of joint decision making around the children’s education. In January 2025, the respondent unilaterally removed the children from their respective schools, citing financial constraints, despite the applicant’s objections. The children missed the start of the 2025 academic year.

Application: The applicant sought an urgent order to re-enroll the children in their schools, arguing that the respondent’s actions breached the court-ordered agreement and were detrimental to the children’s well-being and education. The respondent, appearing in person, claimed financial constraints and argued that he was acting in the children’s best interests by seeking alternative schooling options. The central issue is whether the respondent’s unilateral decision to remove the children from their schools, without the applicant’s consent, violated the court-ordered agreement and was contrary to the children’s best interests. Additionally, whether the matter is urgent and whether the children should be immediately re-enrolled in their schools.

Discussion: In response to the correspondence from the respondent of his decision to remove the children from the schools, the respondents were informed by the applicant that both parents need to consent to R’s removal from his school and that the applicant did not give permission or consent to his removal from his pre-primary school. The applicant went on to advise that she would engage directly with the school in respect of the payment of fees in order to ensure that R remained a student there. She emphasised that it was not in R’s best interests to be removed from the school for numerous reasons, not the least of which being that he had expressed a love for the school and staff and his friends, the smaller classes, his stability and the consistency that he required. The respondent advised that he had met with a lawyer and had been to maintenance court where he alleged he was informed that he had every right to cancel his contract with the school and further that he could not be held liable for payments beyond the amount he had already stipulated. He further advised that his decision was final and that neither A nor R would be returning to their schools. He further claimed in email correspondence and during submissions made in open court that he had sought advice directly from the court and that he would not entertain the notion of the children attending their respective schools. He then requested urgent mediation.

Findings: The court emphasized the importance of joint decision-making as per the court-ordered agreement and found that the respondent’s unilateral actions were a clear breach of this agreement. The respondent’s financial concerns did not justify keeping the children out of school, especially since the applicant had offered to cover the school fees. The respondent’s allegations as to his financial circumstances, which were vague and unsubstantiated, appeared to focus more on his interests and his rights to make decisions in order to further or protect his rights. He appeared unable to comprehend the damage that his actions may have caused to his children. The court highlighted the detrimental impact of the children missing school, particularly for R, who has special needs and requires stability. The respondent’s actions were not in the children’s best interests and violated the court-ordered agreement. The matter was urgent due to the children’s prolonged absence from school and the need to ensure their education and well-being. The court rejected the respondent’s financial arguments, noting that the applicant had undertaken to pay the school fees and that the respondent’s actions were obstructive and punitive.

Order: The court granted the applicant’s request, ordering that the children be immediately re-enrolled in their respective schools. The court also ordered the first respondent to pay the applicant’s party and party costs on scale B, rejecting the request for punitive costs but emphasizing that the respondent’s conduct necessitated the application.

ABRO AJ

Facts: The plaintiff testified that in 2017 she met Mr Winspear at the the McDonald’s restaurant in Milnerton, Western Cape, as they had planned a private meeting to talk about work-related concerns. She recounted that they walked into the restaurant. Winspear told her to find a place to sit while he collected their coffee order. The plaintiff narrated that as she was walking, she slipped and hit the ground hard. Her left knee was pulled out of joint and she had to push it back. The plaintiff recalled that when she put her hands on the floor she felt that the floor was damp, which made her realise that the floor had been washed. The plaintiff further testified that she looked around after she had fallen to see whether there were any yellow warning notices and saw none. She did not recall seeing or noticing the disclaimer notices on the entrance door of the restaurant. The plaintiff was taken out of the restaurant on a stretcher. She underwent an operation on her right ankle and left knee as she had torn ligaments of the left knee. According to the plaintiff she wore comfortable sandals with non-slip ripples. She explained that she was walking at a normal pace when she fell.

Claim: A delictual action instituted against the defendant for payment of damages for the injuries sustained. The parties agreed to separate the determination of merits and quantum. The matter accordingly proceeded on the merits only.

Discussion: There are mutually destructive versions insofar as the placement of the warning signs. The evidence of the plaintiff and Winspear was uncontested. It can be safely accepted, on a balance of probabilities, that because there were no wet floor notices in the existing dining area, there was no indication that the floor had been mopped or that the floor was wet and/or damp. The evidence suggested that it was not possible to ascertain whether the floor was wet by merely looking at it. The failure of the defendant to call the actual person who mopped the floor to give evidence, would justify the invocation of the doctrine of res ipsa loquitur. The defendant submitted that the disclaimer notice located on the front entrance door of the restaurant is quite conspicuous and would have come to the plaintiff’s attention as she confirmed accessing the restaurant through the front entrance. The plaintiff could not remember seeing the notice on the entrance door.  

Disclaimer notice: Even if the doctrine of quasi-mutual consent finds application, and even if the wording of the disclaimer notice was written in plain language, was brought to the attention of the plaintiff and was understood by the plaintiff, a disclaimer is not an automatic legal shield, and must be evaluated in the context of the overall safety management of the premises. The enforcement of an indemnity clause will depend on the facts of each case. The application of an indemnity clause is conditional upon it being established that the indemnifier took reasonable steps to guard against the incident from which it wishes to be indemnified. The defendant has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them. If the correct cleaning protocols were observed, the harm was reasonably preventable.

Conclusion: The defendant failed to comply with its self-imposed reasonable measures to guard against the occurrence of the incident. Having regard to the entirety of the evidence, the court is satisfied that the plaintiff has proven that the defendant wrongfully and negligently breached its duty of care owed to members of the general public at large as alleged. The court is satisfied that the plaintiff slipped and fell as a result of the wet floor, which incident was occasioned by the negligence of McDonald’s employees and she is thus entitled to be fully compensated by the defendant for such damages as she may prove in the future.

Order: The plaintiff’s claim on the merits is upheld. It is ordered that the defendant is liable to pay to the plaintiff 100% of such damages as she may establish. The defendant is ordered to pay the plaintiff’s costs on a party-and-party scale, including the cost of counsel to be taxed on a Scale B.

ANDREWS AJ