If the meaning of a word or clause in a written document is not clear, or the word or clause is ambiguous, the verba fortuis accipiuntur contra proferentem rule applies.  In other words this rule provides that if there is any doubt about the meaning or scope of an exclusion clause, the ambiguity should be resolved against the party seeking to rely on the exclusion clause. It is the other party who is given the benefit of the doubt.


Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom (99/2002) [2003] ZASCA 51; [2003] 3 All SA 496 (SCA) (23 May 2003) at para [13]

Fedgen Insurance Ltd. v Leyds (475/93) [1995] ZASCA 20; 1995 (3) SA 33 (AD); [1995] 2 All SA 357 (A) (27 March 1995) per Smalberger JA:

“Any provision which purports to place a limitation upon a clearly expressed obligation to indemnify must be restrictively interpreted…for it is the insurer’s duty to make clear what particular risks it wishes to exclude…. A policy normally evidences the contract and an insured’s obligation, and the extent to which an insurer’s liability is limited, must be plainly spelt out. In the event of a real ambiguity the contra proferentem rule, which requires a written document to be construed against the person who drew it up, would operate against Fedgen as drafter of the policy.”

Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (A) at 121-123. [On page 121 Grotius is quoted as giving the reason why there is a rule that works against the proferens, ‘for he has himself to blame for not speaking more plainly’].

Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co of SA Ltd 1961 (1) SA 103 (AD) at 108C