86:, the court did not favour this interpretation. The word "driving" occurred in the context of other adventure activities; it therefore made better sense to understand it to entail driving over unmade roads or slippery, steep or otherwise exciting terrain. Since Drifter's, as a cross-border tour operator, was statutorily obliged to have passenger liability insurance, it would be perverse for it to have contracted out of this liability altogether.
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Drifter's declared that it was excluded from such liability on the basis of an indemnity form signed by
Hircock before the tour. The front of the form had a wide indemnity clause and a statement that the conditions on the reverse had been read, fully understood and accepted. These reverse conditions
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On appeal, the SCA affirmed that indemnity provisions in general should be construed restrictively, and that the wider indemnity clause had to be read and interpreted in the context of the contract as whole, including its reverse side. In case of doubt, an exemption clause reasonably capable of
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The court said that it was possible to interpret the expression "driving" as driving anywhere in the country and on any terrain, including passenger transportation on a public road. The reasonable reader, however, would probably not interpret it in this way, and so, in light of established
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The respondent, Hircock, had sustained injuries as a result of a motor vehicle accident negligently caused by an employee of
Drifter's Adventure Tours, the appellant, while she had been a passenger on a tour arranged by Drifter's. She claimed damages.
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39:, Farlam JA, Conradie JA, Mlambo JA and Maya JA. Counsel for the appellant was AR Sholto-Douglas SC (with him S Miller); RS van der Riet SC appeared for the respondent.
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bearing more than one meaning should be given the interpretation least favourable to, and with a bias against, the
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The appeal was accordingly dismissed and the decision in the Cape
Provincial Division, in
35:(SCA) on 4 September 2006, with judgment handed down on 29 September. The judges were
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140:. Edited by Dale Hutchison, Chris-James Pretorius, Mark Townsend and Helena Janisch.
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contained a more limited clause that exempted
Drifter's from liability arising from,
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31:, especially in the area of exemption clauses. It was heard in the
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Drifter's from liability.
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266:Supreme Court of Appeal of South Africa cases
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167:Drifter's Adventure Tours CC v Hircock
91:Hircock v Drifters Adventure Tours CC
21:Drifters Adventure Tours CC v Hircock
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137:The Law of Contract in South Africa
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271:South African contract case law
261:2006 in South African case law
113:Unfair Contract Terms Act 1977
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103:South African contract law
29:South African contract law
27:is an important case in
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150:Oxford University Press
33:Supreme Court of Appeal
190:2007 (2) SA 83 (SCA).
130:Du Plessis, Jacques,
108:English contract law
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255:Categories
120:References
59:The Court
54:inter alia
173:83 (SCA).
169:2007 (2)
142:Cape Town
75:proferens
37:Zulman JA
25:ZASCA 174
244:Para 17.
235:Para 16.
226:Para 14.
217:Para 13.
208:Para 10.
97:See also
67:Judgment
199:Para 9.
84:canons
178:Notes
161:Cases
132:et al
125:Books
61:a quo
43:Facts
154:2010
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171:SA
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