This Tourism Week Number 33 Sunday, 7 September 2003. Knysna.

 This Tourism Week Number 33 Sunday, 7 September 2003. Knysna.

B&B’s LIABLE FOR STOLEN GOODS – PART 2

If you’re a regular reader of This Tourism Week, you’ll know that, in my last letter, I published – verbatim and with permission – a paper by Professor Patrick Vrancken of the Director: Tourism Law Unit at the University of Port Elizabeth. And so alarmed was I by its contents that I published it in full

In Gabriel and Another v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C), the good Professor told us about a  certain Mr. and Mrs. Gabriel, who visited Cape Town on holiday in March 2001 and booked in at the Enchanted Bed and Breakfast in Sea Point, which was owned and operated by the defendant (the defendant, mind).

As it was summer, the Gabriels went to bed in their first-floor room leaving the door open – although the security gate was securely locked. “On waking up the next morning,” wrote the Professor, “Mr. Gabriel was unable to find his watch and wallet, Mrs. Gabriel’s watch and jewelry 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 travelers 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 owner of the B&B raised four defenses –

(1) that the loss was unforeseen, unexpected and irresistible  – but the Court found that the incident was clearly not unforeseeable since “thefts from houses in the area were common at the time;”

(2) that the he, the defendant, was exempt from liability because an indemnity notice was exhibited on the front door of the establishment as well as in a brochure left in the room. The notice read “The owner and the staff will not be held liable for any loss or damage sustained by whatsoever cause.” The Court, however, accepted the Gabriels’ argument 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].

(3) that the plaintiffs’ negligence caused the loss. “This,” wrote Vrancken, “was the aspect which received most attention during the course of the evidence” – and the court found that access was most probably gained through the bathroom window, which was unbarred and had had been left slightly open. 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 table top within their room; and

(4) “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].”

And now here’re the killer, the coup de grace, as it were: “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].”

Can you imagine losing a quarter of a million rand – plus costs? How many small tourism businesses are there that even turn over that amount in a year? If I was dealing with the public, I’d be very scared.

And What Now? How Do I Protect Myself?

In fact, as a businessperson I am scared because I am my business. If anything goes wrong (like if you were to sue me successfully or if my bank was to decide that my breath smelled), I’d lose the little bit that I’ve built up in recent years. So it was quite fortuitous that I should have had breakfast last Saturday with Peter Caruthers, author of Pete’s Weekly, a business e-zine which reaches more than 22,000 readers.

And yes, it’s happened to Pete – he lost everything on the whim of the banks. But he’s bounced back, and in the process learned how we small business people should go about protecting ourselves.

What he has to say is as relevant to us in the tourism industry as much as it is to any other person in Business in South Africa. That’s why I urge you to click here to visit Pete and find out how to protect yourself and your family should the worst come to the worst.

As Pete says, the banks sneezed and he, Pete, caught pneumonia. For the owners of the Enchanted B&B, it was a tourist who sneezed.

And who’ll sneeze on you?

Makes you sweat, doesn’t it?

 “Excuses are the nails used to build a house of failure” – Don Wilder, business executive

 

… Have a Great Tourism Week!

 

MARTIN HATCHUEL – BarefootWriter

 

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