Contract: Exclusion clause covered theft, rules ConCourt

The Constitutional Court has brought a long-running dispute between Japanese tech group Fujitsu and a logistics company to a close after it ruled that the logistics firm does not have to reimburse the electronics giant for the theft of laptops from an SAA warehouse a decade ago, reports Fin24. The majority ruling, penned by Chief Justice Raymond Zondo, found that the logistics group Schenker was not liable for the theft, even though the laptops were stolen by one of its own employees in 2012. Zondo found that Schenker and Fujitsu had entered a contract stating that the Japanese tech group had to inform the logistics company in writing when it was asked to handle high-value goods. It was common cause, he found, that the Fujitsu did not do this.

A clause in the contract stated that Schenker would incur no liability if it handled high-value goods on behalf of Fujitsu without being informed in advance. In a 6-5 ruling, the Chief Justice found that this exclusion clause even covered theft by an employee of Schenker. He said: ‘If Fujitsu chose not to make prior special arrangements in writing with Schenker, it chose to voluntarily take the risk that, if something happened to the goods … it would take responsibility for its choice.’ Four justices agreed with Justice Rammaka Mathopo, who penned a minority opinion. Mathopo found Schenker should pay damages, stating that while there was an exclusion clause for high-value goods, this did not cover theft. ‘Theft of goods does not constitute an undertaking of business or the giving of advice, information or services,’ found Mathopo. Fujitsu's appeal was dismissed with costs, including the costs of two counsel.