Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited [2023] ZACC 20

Fujitsu Services Core (Pty) Limited (Fujitsu), an importer and distributor of laptops and accessories, entered into a national distribution agreement with Schenker South Africa (Pty) Limited (Schenker), a logistics and freight forwarding company. The agreement was subject to the South African Association of Freight Forwarders (SAAFF) trading terms and conditions, which included an exemption clause (clause 17) that excluded Schenker's liability for certain high-value goods unless special arrangements were made in writing prior to handling such goods.

In April 2012, Fujitsu imported a consignment of laptops from Germany and engaged Schenker's services for logistics, freight forwarding, warehousing, and customs clearance. The goods arrived at OR Tambo International Airport and were collected by Mr. Wilfred Bongani Lerama, a Schenker employee. However, Lerama stole the goods and disappeared.

Fujitsu instituted a delictual claim for damages against Schenker, arguing that Schenker was vicariously liable for the loss suffered due to Lerama's theft. Schenker resisted the claim, asserting that the exemption clauses in the SAAFF standard terms and conditions (clauses 17, 40, and 41) exempted it from liability. The High Court ruled in favour of Fujitsu, interpreting that the exemption clause did not apply to theft outside the execution of the contract. The Supreme Court of Appeal reversed this decision, holding that the exemption clauses were broad enough to include theft by an employee and that Fujitsu had not made the required special arrangements in writing, thus exempting Schenker from liability. Fujitsu then appealed to the Constitutional Court of South Africa.

The core legal principle underlying of the court, as articulated by Chief Justice Zondo, is that the exemption clause (clause 17) in the contract between Fujitsu and Schenker, which was subject to the South African Association of Freight Forwarders (SAAFF) standard terms and conditions, is not contrary to public policy and is enforceable. The clause stipulated that Schenker would not be liable for any loss of certain high-value goods unless special arrangements were made in writing prior to handling such goods. Since Fujitsu did not make such special arrangements in writing, Schenker was exempt from liability for the theft of the goods by its employee, Mr. Lerama.

The majority held that the exemption clause was clear and unambiguous, and it applied to the situation at hand, where the goods were stolen by an employee of Schenker. The court found that the clause was not unfair or unreasonable and that it did not violate public policy, as it was a freely and voluntarily agreed-upon term between two commercial entities with no evidence of unequal bargaining power. The court also distinguished between an employer's liability for its own intentional misconduct (which cannot be excluded by contract) and liability for the intentional misconduct of its employees (which can be excluded by contract).

The court held, therefore, is that a contractual exemption clause that excludes liability for theft by an employee is enforceable, provided that the clause is clear, the contract was freely entered into, and the clause does not contravene public policy as informed by the values enshrined in the Constitution of South Africa.