This Tourism Week Number 32 – Saturday, 10 May, 2003. Knysna.

 This Tourism Week Number 32  – Saturday, 10 May, 2003. Knysna.

B&B’S LIABLE FOR STOLEN GOODS

A recent judgement handed down in our courts has serious implications for the accommodation sector of the tourism industry – and the judgement so concerned Professor Patrick Vrancken of the Director: Tourism Law Unit at the University of Port Elizabeth that he has written a short paper on it.

Professor Vrancken has kindly allowed me to publish the paper in its entirety. Please read it – this is information you need to have:

Gabriel and Another v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) 

Prof. PHG Vrancken

“The plaintiffs, Mr and Mrs. Gabriel, visited Cape Town on holiday in March 2001 and booked in at the Enchanted Bed and Breakfast in Sea Point, owned and operated by the defendant. One evening, the plaintiffs retired to bed with the outside door of their first floor room open (it being summer), but the security door locked. On waking up the next morning, Mr Gabriel was unable to find his watch and wallet, Mrs Gabriel’s watch and jewellery were also missing, as well as certain items of clothing. The plaintiffs further noticed that the security door was open with its key in the lock on the inside, while the outside door had been closed. During the course of the trial, the quantum of the plaintiff’s claim in respect of stolen items was settled at R252 000.

“The Court held that the Roman edict de nautis cauponibus et stabularis, confirmed as part of South African law in Davis v Lockstone 1921 AD 153, “remained unaffected by the passage of time” [at 599G-H]. In terms of the edict, innkeepers are liable for the loss or damage to the property of travellers brought onto their premises even in the absence of fault or negligence on their part.  As a result, there existed a prima facie case for the defendant to be held liable for the loss suffered by the plaintiffs.

“The defendant raised four defenses, which it bore the onus of establishing.

“Firstly, the defendant argued that the loss was unforeseen, unexpected and irresistible. The Court stated that “any event which is unforeseen, unexpected or irresistible and which human foresight cannot guard against, such as burglary with violence or unavoidable accident, can be raised as a special defence” [at 600A]. However, it was clear in this case that the burglary had not been accompanied by violence. Furthermore, the incident was clearly not unforeseeable since “thefts from houses in the area were common at the time” [at 600B].

“Secondly, the defendant argued that it was exempt from liability on the ground that a notice reading: “The owner and the staff will not be held liable for any loss or damage sustained by whatsoever cause”, was exhibited on the front door as well as in a brochure left in the room. However, the Court accepted the plaintiffs’ evidence that they were not aware of the notices and, as a result, there could “be no question of them ever having agreed to the terms of the notice” [at 601C].

“Thirdly, the defendant argued that the plaintiffs’ negligence caused the loss. This was “the aspect which received most attention during the course of the evidence” [at 601C-D]. The Court concluded that, “on a balance of probability, access was gained through the bathroom window” that had been left slightly open [at 604F-G]. The Court also held that the plaintiffs had not been negligent in leaving the key of the security door as well as other valuables on a glass table, a dresser or a kitchenette counter [at 605C-D].

“Fourthly, the defendant argued that it was entitled to an apportionment of the loss resulting from contributory negligence by the plaintiffs. Here the Court replied that it was “strictly speaking not correct to speak of contributory negligence in cases of this nature” since “[t]he defendant’s liability flow[ed] from the Praetor’s edict and not from negligence” [at 605F-G]. The Court added obiter that, “[i]f anyone was negligent, it was the defendant” because its failure “to secure the bathroom window properly was inadequate to prevent the foreseen danger” [at 605G-H].

“The defendant having been unsuccessful, judgment was entered for the plaintiffs in the sum of R252 000 and costs, the latter including the travel costs of the plaintiffs on the ground that it was necessary for them to give evidence at the trial [at 605I-606A].

“Perhaps the most problematical aspect of this decision is the fact that the owner of a B&B is assumed to be an innkeeper. There are however obvious and significant differences between a hotel consisting of tens of rooms, operated by a substantial number of professional staff and with a turnover of millions of rands, on the one hand, and a B&B offering a couple of rooms and operated by a single person, possibly assisted by a domestic, with a turnover of a few hundred thousand rands, on the other hand. Such dissimilarities would at least have warranted an examination of whether the edict, which undoubtedly applies in the case of a hotel, should also apply in the case of a B&B.

“The implications of this decision for small accommodation establishments are quite serious. It is suspected that many individuals operating B&B’s in South Africa are unaware of the liability that they could incur on the basis of the edict. As the amount involved in this case illustrates, such liability could well cripple the business to such an extent that no option is left but to close down. There is very little doubt that such an outcome would run counter to the interests of the tourism industry as well as the South African government’s efforts to transform the industry.”

Tourism And The Law In South Africa

May I remind you that Prof. Patrick Vrancken, who is Professor of Law and Director of the Tourism Law Unit at the University of Port Elizabeth, and who holds the degrees of Licence en droit (Belgium); LL.M. and LL.D. (Cape Town), is the author of Tourism and The Law In South Africa.

Published by Butterworth’s, Tourism And The Law In South Africa is divided into two sections. The first is an overview of the law as it applies to business (public law; contract and delict; legislation ensuring consumer protection; business entities; labour law; e-commerce; insurance; taxation; criminal law; and public and private international law).

The second section of the book covers the scope of tourism law and the definitions of tourism; international, national and local tourism organisations and their regulation; and the law of travel, hospitality and attractions.

For more information, or to order this important book, please contact Vanessa Griffiths of Butterworth’s: Cell 082 773 2224; telephone 041 373 6475; or e-mail vanessa.griffiths@butterworths.co.za 

I reviewed Tourism And The Law In South Africa in TTW #8 on 6 October 2002 – if you want a copy, e-mail me: reefgod@mweb.co.za

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… Have a Great Tourism Week!

 

MARTIN HATCHUEL – BarefootWriter

 

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