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Westhuizen v Arnold (3) (414/2000) [2002] ZASCA 86 (29 August 2002)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Reportable

CASE NO: 414/2000

In the matter between :

GIDEON ANDRIES VAN DER WESTHUIZEN Appellant

and

JOHAN HEINRICH ARNOLD Respondent

___________________________________________________________________________

Coram: MARAIS JA HEHER et LEWIS AJJA

Heard: 22 February 2002

Delivered: 29 August 2002

___________________________________________________________________________

J U D G M E N T

___________________________________________________________________________

MARAIS JA/

MARAIS JA: [1] I have had the advantage of reading the judgments of Heher AJA and Lewis AJA. I agree with the conclusion reached by Lewis AJA but prefer to rest it upon a narrower and perhaps less controversial ground. If appellant wished to exclude liability for a breach of the warranty against eviction which warranty arose ex lege and existed whether or not the parties turned their minds to it, it behoved him to say so plainly and unambiguously. Having initially thought otherwise, maturer reflection has led me to conclude that the language he chose failed to achieve that purpose (if that was indeed his purpose).

[2] The words “en dat geen waarborge hoegenaamd aan my gegee is of word deur gemelde verkoper of sy agent(e) nie” are of the widest connotation but of critical importance, in my view, are the words “gegee is of word deur gemelde verkoper of sy agent(e)”. Their ordinary meaning is that the appellant (or his agent(s)) neither gives nor has given any guarantees or warranties whatsoever. They are, in my opinion, certainly apt to exclude all expressly given warranties whatever their content. I grant too that the word “hoegenaamd” would cover both expressly given and tacitly given warranties. By tacit I mean: to be inferred as having been the unspoken but yet clearly intended consensus of the parties. But a warranty which arises ex lege and owes nothing to the consensus of the parties is another matter altogether. It is not a warranty which is given (either expressly or tacitly) by the seller or his agent(s). Are the chosen words apt to exclude such a warranty? I think not. In my judgment, plainer language than that which appellant chose would have been necessary to exclude effectively such a warranty.

[3] This conclusion makes it unnecessary for me to express any opinion on the question which the court raised and upon which counsel addressed further submissions. The appeal is dismissed with costs.

______________________

R M MARAIS

JUDGE OF APPEAL