MUSUNDIRE v OK ZIMBABWE LTD 2012 (1) ZLR 292 (H)

Flynote

Contract —exemption clause — validity — clause purporting to indemnify one party against all claims — only entitled to be protected in respect of honest mistake or honest representations

Damages — assessment — delict — claim for injuria and for unlawful imprisonment arising out of same facts — not permissible to claim under both heads

Headnote

The plaintiff took part in a promotional draw sponsored by the defendant company, having bought various groceries at one of the defendant's shops, as a result of which he got coupons enabling him to participate in the competition. He and a few other persons emerged as the winners of the items on offer and they were invited to a presentation ceremony. At the hotel where the ceremony was to take place, he two of his colleagues (also winners of the promotion) were lured into a car and arrested for having committed fraud in the acquisition of the coupons which they had used in participating in the competition. For the next four days they were shoved from one police station to another, and made to endure extremely difficult and painful experiences as they were forced to sleep in squalid condition, being routinely transferred barefoot and in handcuffs. The arrest had been instigated by the defendant's risk and services manager, a former senior police officer. He had received an anonymous telephone call alleging fraud involving coupons for the competition. He had not investigated the veracity of the allegation before having the plaintiff arrested, nor had he investigated the plaintiff's explanation of his innocence. The plaintiff and the other arrested persons were released only after the manager had submitted an affidavit which established the plaintiff's innocence in the whole exercise.

The plaintiff claimed damages for defamation, injuria and contumelia, and unlawful arrest. The claim in respect of defamation was abandoned. The defendant argued that the plaintiff could claim for injuria and contumelia or for unlawful arrest, but not under both heads. It was also argued that the defendant was not liable because of a clause in the competition rules, which read:

"All participants and winners indemnify [the defendant], the advertising agencies and partners against any and all claims of any nature whatsoever in the promotion (including as a result of any act or omission, whether negligent or otherwise on the part of [the defendant]."

Held, that in a claim for damages one may not refer to unlawful arrest without triggering the aspect of the injury to the plaintiff's feeling caused by such an act. Damages for unlawful arrest are awarded in recognition of the injuria associated with that unlawful conduct. It would be quite superfluous to claim for injuria under one heading and unlawful arrest under another heading. The claim should basically be under one heading.

Held, further, that the courts will protect the public from the worst abuses of exemption clauses by setting limits to the exemptions they will permit and by interpreting exemption clauses narrowly. Contractual conditions by which one of the parties engages to verify all representations for himself and not to rely upon them as inducing a contract must be confined to honest mistake or honest representations. However wide the language, the court will cut down and confine its operations within these limits. The risk manager was both reckless and malicious in the manner he dealt with the plaintiff and the defendant should not be allowed to avoid liability by seeking refuge in the exemption. Allowing it to do so would offend public policy considerations which demand that innocent and unsuspecting individuals be protected by the law.