Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v The Government of the United Kingdom

The Government of the United Kingdom owned a residence in Bishopscourt, Cape Town, which required urgent roof repairs. Cape Group Construction (Pty) Ltd trading as Forbes Waterproofing faxed a one-page quotation to the British Consulate’s estates manager, Mrs Woolley. The faxed quotation contained the words “See Terms and Conditions Overleaf” at the bottom, but no additional page was transmitted. Mrs Woolley did not notice the reference to further terms and accepted the quotation telephonically, thereby concluding the contract. Subsequently, Forbes posted the original quotation, which included standard terms and conditions on the reverse side containing a sweeping limitation of liability clause. Before Mrs Woolley saw these terms, the roof caught fire due to the negligence of a Forbes employee. The Government sued Forbes, contending that the standard terms, including the exemption clause, were not incorporated into the contract.

The appeal was dismissed with costs, including the costs of two counsel.

The case is a leading South African authority on the incorporation of standard terms and exemption clauses in contracts concluded by fax or similar means. It clarifies that references to untransmitted terms are insufficient to incorporate them and reinforces the application of the ‘ticket cases’ and quasi-mutual assent principles. The judgment underscores the requirement that parties relying on exemption clauses must take clear and reasonable steps to draw such clauses to the attention of the other contracting party.