The SCA disallowed the appeal and in interpreting a contractual time-limitation clause in a services agreements decided that delictual, as opposed to contractual claims, were not subject to the time-limitation clause.  The nature of interpreting such clauses also considered.

G4S Cash Solutions v Zandspruit Cash & Carry (Pty) Ltd (852/2015) [2016] ZASCA 113 (12 September 2016) per PB Fourie AJA (Lewis and Mathopo JJA and Schoeman and Potterill AJJA concurring)


[1]     The issue in this appeal is whether a time-limitation clause in written agreements concluded by the parties precluded the respondents from instituting delictual claims for damages against the appellant.  The Gauteng Local Division of the High Court, Johannesburg (Van Oosten J), dismissed the appellant’s special plea based on the time-limitation clause, which decision was confirmed on appeal to the full court of that division.  The present appeal against the judgment of the full court is with the special leave of this court.

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[5]     Clause 15 deals with insurance and records the appellant’s undertaking to assist the respondents in effecting insurance cover against the loss of money caused by an armed robbery or by the negligence or dishonesty of employees or agents of the appellant during the performance of the services to be undertaken by the appellant.

[6]     The events giving rise to the respondents’ claims against the appellant are set out in their particulars of claim and may be summarised as follows:

 (a)    On 3 April 2010 and 12 March 2011, respectively, the respondents fell victim to thefts perpetrated by unknown third parties.  The perpetrators imitated the procedure of the appellant, utilising vehicles, personnel uniforms, collection boxes and identification cards identical to that used by the appellant, thereby deceiving the respondents into believing that they were dealing with employees of the appellant.

(b)     During the course of the theft of 12 March 2011, an employee of the second respondent sought to verify the identity of the third party perpetrator as being an employee of the appellant, by telephoning the appellant’s call centre.  The call centre operator confirmed that the perpetrator was an employee of the appellant.

(c)      Thus, utilising the exact procedure employed by the appellant in conducting collections of cash for purposes of cash in transit collections and deposits from the respondents’ premises, the perpetrators collected amounts of R265 465,25 and R641 744 from the respondents respectively and appropriated same.

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[8]     The respondents’ summons was served on the appellant on 28 June 2012, more than 12 months after the alleged events giving rise to the claims.  In addition to a plea to the merits, the appellant raised a special plea alleging that the respondents’ claims were time-barred by virtue of the provisions of clause 9.9 of the agreements.

[9]     The respondents replicated to the special plea, alleging, inter alia, that their claims did not arise from the agreements, but by virtue of delict, and therefore did not fall within the ambit of the time-limitation clause.  In the event, the matter proceeded to trial and by agreement between the parties it was ordered in terms of Uniform rule 33(4) that the special plea be heard first, with the remaining issues to stand over for later determination, if necessary.

[10]   No evidence was led at the trial and, after argument, Van Oosten J held that the time-limitation in clause 9.9 of the agreements did not apply to the respondents’ delictual claims.  The trial court accordingly dismissed the special plea.  As recorded above, the appellant’s subsequent appeal was dismissed by the full court which agreed with Van Oosten J that clause 9.9 of the agreements did not apply to delictual claims and that the respondents’ claims were accordingly not time-barred.

[11]   It is common cause that the respondents’ claims are in delict for the loss suffered as a consequence of the theft of their money, caused by the alleged wrongful and reckless or negligent conduct of the appellant.  The appellant raised the special defence that the claims were time-barred by virtue of clause 9.9 of the agreements and accordingly bore the onus of proving this defence.  See Gericke v Sack 1978 (1) SA 821 (A) at 827H and Masuku & another v Mdlalose 1998 (1) SA 1 (SCA) at 11B-C.

[12]   To determine whether or not the respondents’ delictual claims are time-barred, it is necessary to interpret the agreements and in particular clause 9.9 thereof.  Whilst the starting point is the words of the agreements, it has to be borne in mind, as emphasised by Lewis JA in Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA 111; 2016 (1) SA 518 (SCA) para 27*, that this court has consistently held that the interpretative process is one of ascertaining the intention of the parties ─ in this case, what they meant to achieve by incorporating clause 9.9 in the agreements.  To this end the court has to examine all the circumstances surrounding the conclusion of the agreements, ie the factual matrix or context, including any relevant subsequent conduct of the parties.

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[15]   This construction of clause 9.1 is fortified by clauses 9.6 and 9.7, as well as other provisions of the agreements, such as clauses 5.3 and 15.

(a)     Clause 9.6 deals with the respondents’ responsibility for the security of their premises ‘in the event of any services to be rendered by [the appellant]’, and limits the appellant’s liability for the loss that the respondents may suffer in the event of the theft of their money at their premises whilst such money is in the custody of the appellant’s employees. 

(b)     Clause 9.7 makes it clear that the appellant’s liability in respect of any loss will only commence when the money is in the custody of the appellant, ie upon the physical collection of the money by the appellant’s employees.

(c)      Clause 5.3 records that where the appellant provides services in terms of the agreements, the respondents shall, before handing over money to an employee of the appellant, verify the identity of such employee by reference to the employee’s personal official Fidelity identity card.

(d)     Clause 15 relates to insurance which the respondents may effect with Fidelity Insurance Limited against the loss of money caused by an armed robbery or by the negligence or dishonesty of employees or agents of the appellant ‘during the performance of the services’ in terms of the agreements.

[16]   Turning to clause 9.9, it follows from the above interpretation that the sub-clause envisages a loss and resultant claim arising pursuant to or during the provision of services by the appellant to the respondents in terms of the agreements.  In my view the clear wording of the agreements shows that the parties did not contemplate that clause 9.9 would encompass delictual claims of the nature averred in the respondents’ particulars of claim.  These delictual claims did not arise pursuant to or during the services rendered by the appellant, nor while the money was in the possession of the appellant, but in circumstances where the respondents handed over the money to unknown third parties.  Had the appellant intended the time-limitation in clause 9.9 to also apply to delictual claims of this nature, it could easily have drafted the agreements to include such claims.  Its failure to do so justifies the inference that the parties did not intend clause 9.9 to encompass the respondents’ delictual claims.

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[19]   Insofar as the use of the word ‘any’ is concerned, it has to be borne in mind that, whilst it is a word of wide and unqualified generality and prima facie unlimited, it may be restricted by the subject matter or the context.  See R v Hugo 1926 AD 268 at 271 and Arprint Limited v Gerber Goldschmidt Group South Africa (Pty) Ltd 1983 (1) SA 254 (A) at 261B-D.  The present is a clear case where the use of the word ‘any’ is restricted by the context as appears from the wording of the agreements as a whole, and in particular clause 9 thereof.

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[23]   I should add that during argument in this court, counsel for the appellant also relied on clause 9.2 of the agreements for the submission that the delictual claims of the respondents were not competent.  As recorded above, clause 9.2 states that, save where it is expressly provided for in terms of the agreements, the appellant has no other liability to the respondents for any loss or damage suffered.

This clause too should be read in context, ie relating to loss or damage suffered by the respondents pursuant to or during the provision of services by the appellant.  However, counsel for the appellant emphasised the words ‘no other liability’ and submitted that they exclude any other claim including a delictual claim unrelated to a loss or damage suffered pursuant to or during the provision of services by the appellant.

In my view the context provided by the agreement as a whole simply does not allow for this extraordinarily wide interpretation.  One may ask why the respondents would for no apparent reason agree to relinquish all other existing or future rights which they may have, or may acquire, against the appellant.  Absent any evidence justifying this conclusion, there is simply no basis on the wording of the agreements alone for this contention.


[27] I do not understand these judgments to mean that interpretation is a process that takes into account only the objective meaning of the words (if that is ascertainable), and does not have regard to the contract as a whole or the circumstances in which it was entered into. This court has consistently held, for many decades, that the interpretative process is one of ascertaining the intention of the parties – what they meant to achieve. And in doing that, the court must consider all the circumstances surrounding the contract to determine what their intention was in concluding it. KPMG, in the passage cited, explains that parol evidence is inadmissible to modify, vary or add to the written terms of the agreement, and that it is the role of the court, and not witnesses, to interpret a document. It adds, importantly, that there is no real distinction between background circumstances, and surrounding circumstances, and that a court should always consider the factual matrix in which the contract is concluded – the context – to determine the parties’ intention.

[28] The passage cited from the judgment of Wallis JA in Endumeni summarizes the state of the law as it was in 2012. This court did not change the law, and it certainly did not introduce an objective approach in the sense argued by Novartis, which was to have regard only to the words on the paper. That much was made clear in a subsequent judgment of Wallis JA in Bothma-Botha Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA), paras 10 to 12 and in North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA) paras 24 and 25. A court must examine all the facts – the context – in order to determine what the parties intended. And it must do that whether or not the words of the contract are ambiguous or lack clarity. Words without context mean nothing.

[29] Referring to the earlier approach to interpretation adopted by this court in Coopers & Lybrand & others v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) at 768A-E, where Joubert JA had drawn a distinction between background and surrounding circumstances, and held that only where there is an ambiguity in the language, should a court look to surrounding circumstances, Wallis JA said (para 12 of Bothma-Botha):

‘That summary is no longer consistent with the approach to interpretation now adopted by South African courts in relation to contracts or other documents, such as statutory instruments or patents. While the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is “essentially one unitary exercise” [a reference to a statement of Lord Clarke SCJ in [2011] UKSC 50, [2012] Lloyd’s Rep 34 (SC) para 21].

[30] Lord Clarke in Rainy Sky in turn referred to a passage in Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) at 545, 551 which I consider useful.

‘Loyalty to the text of a commercial contract, instrument, or document read in its contextual setting is the paramount principle of interpretation. But in the process of interpreting the meaning of the language of a commercial document the court ought generally to favour a commercially sensible construction. The reason for this approach is that a commercial construction is likely to give effect to the intention of the parties. Words ought therefore to be interpreted in the way in which the reasonable person would construe them. And the reasonable commercial person can safely be assumed to be unimpressed with technical interpretations and undue emphasis on niceties of language.’

[31] This was also the approach of this court in Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund [2009] ZASCA 154; 2010 (2) SA 498 (SCA) para 13. A further principle to be applied in a case such as this is that a commercial document executed by the parties with the intention that it should have commercial operation should not lightly be held unenforceable because the parties have not expressed themselves as clearly as they might have done. In this regard see Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd [1991] ZASCA 130; 1991 (1) SA 508 (A) at 514B-F, where Hoexter JA repeated the dictum of Lord Wright in Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; 147 LTR 503 at 514:

‘Business men often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is accordingly the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects.’