We have gone to great lengths in these articles, to stress the importance of reading through agreements presented to you for signature before you sign on the dotted line as once the contract is signed the consequences that flow therefrom kick in immediately. Our Courts are frequently called upon to adjudicate these matters as was the Supreme Court of Appeal recently in the case of  

Mutual Construction v Komati Dam (466/2007) [2008] ZASCA 107 (23 September 2008).

In the early hors of 5th October 2000, a Truck operator fell asleep whilst the Truck along a road at a building site. The truck left the road and collided with an embankment. The owner of the Truck had hired the Truck with the driver to the Plaintiff in this matter in accordance with a written contract, and this accident occurred whilst the Truck was on hire. The Truck owner sued the hirer claiming payment of damages being the cost of repairing the damage caused to the Truck by the accident, together with a claim for loss of income that the Company lost as for the period of time the Truck was being repaired.

At the Trial of this matter before the Johannesburg High Court, and on the issue of liability, the Learned Presiding Judge Van Oosten J, after hearing evidence found that the Truck driver had negligently fallen asleep as he had failed to rest even after the hirer had afforded him an opportunity to do so, which failure went beyond the hirer's power of control, and in these circumstances policy and fairness dictated that the hirer could not be held liable for the driver's negligence.

On Appeal to the Supreme Court of Appeal, Leach AJA, with whom Scott Cameron Lewis JJA and Mhlantla AJA concurred, accepted that the accident occurred as a result of the negligence of the truck driver however he had this to say at numbered paragraph 6 of his judgment:

"It is a trite principle of our law that the hirer of an article is obliged to return it in the same condition in which it had been at the outset of the period of hire, fair wear and tear excluded. Accordingly, in the absence of agreement to the contrary, all the owner of a hired article has to allege and prove is that it was in a damaged state when returned and it will then be up to the hirer to show that this is due to no negligence on the part of himself or others under his control for whose acts he would be liable.


Eensaam Syndicate v Moore 1920 AD 457 at 458 and
Manley van Niekerk v AssegaaiSafari and Film Productions (Pty) Ltd 1977 (2) SA 416 (A) at 422G-423B.

 In the present case, the parties are agreed that the damage was due to the operator's negligence in driving when he was so tired that he fell asleep. The hirer’s liability is thus entirely dependent on the parties’ contract ".

Thus it was necessary for the Court to have regard to the terms of the Contract of hire concluded between the Parties. In this case there was a written agreement which they signed and the relevant terms are reproduced as follows:-

"10. Owner's operator
If the plant is supplied with the owner's operator, then while on site the operator shall be under the sole and absolute control of the hirer who/which warrants and undertakes that he/it will give to the operator clear and specific instructions and directions regarding the nature and the manner of all work to be performed by the operator and the plant on site, the hirer shall be obliged and warrants that he/it will during the hours that the hirer requires the plant to operate provide responsible supervision for the operator while the plant is on the site during the period of hire.
Notwithstanding anything to the contrary hereinbefore contained, the owner shall remain the general employer of the operator and no obligation shall be placed upon the hirer to observe the provisions of any statutory laws regulating the relationship between the owner and the operator …."

"12. Indemnity.
Anything to the contrary herein contained notwithstanding while the plant is on site, the owner shall not be responsible or liable to the hirer or any other person for any damages of any nature whatsoever (consequential or otherwise) arising out of the plant being faulty or in a defective state of repair or for any acts or omissions on the part of the owner's operator while such operator is carrying out the instructions of the hirer or any acts or omissions on the part of the hirer's operator or for any loss or damage (consequential or otherwise) whatsoever occasioned to the hirer or any
other person, property or thing and the hirer indemnifies and holds harmless the owner against all claims of any nature whatsoever for any loss or damage aforesaid including all costs relating to such claims.

21. Care of plant.

Subject to clause 10 & 12 above the hirer shall be responsible for all expenses arising from the breakdown, loss or damage to the plant occurring through the hirer's negligence, misdirection or misuse, or for any theft of the plant or parts thereof, and shall include the travelling time and costs of the owner and his/its nominee and time lost and expenses incurred through the plant being immobilised or bogged in wet ground, rockfall, subsistence, inundation or the like. The hirer undertakes at all times to exercise adequate security and care in respect of the plant
22. Self propelled plant.

Where the plant is self propelled and is required to travel under its own power then save as is provided below, the hire period shall be deemed to commence from the time it commences to move on despatch from the owner's depot or site nominated by the owner, whichever is the nearer to the site where it is required by the hirer. In such event, the risk shall be with the hirer for the entire period. When the plant, being self propelled, is required to travel under its own power with an operator supplied by the owner, the risk of loss of or damage to the plant shall pass to the hirer when the plant is delivered or presented for delivery to the hirer's site specified overleaf and shall revert to the owner when the plant commences to move on its return to the owner's depot or site nominated by the owner.’

At numbered paragraph 8 of his Judgment, Leach AJA stated the following:-

"It will be observed that under clause 21 the respondent (as hirer) became
responsible for all expenses arising from the truck breaking down or being damaged through ‘the hirer's negligence, misdirection or misuse’ until such time as it was restored to the appellant. The issue that arose for determination in this appeal was therefore whether the negligence of the operator who, under clause10, was to work on site under the respondent's ‘sole and absolute control’, was to be construed as negligence for which the respondent bound itself to be liable under clause 21. This question is to be answered with reference to the contract and not to the principles of vicarious liability in delict, which appears to have been the approach of the high court."

  Next page>>

Back to Articles