September 12, 2005
By Fatima Schroeder and Anel Powell
In two huge boosts for consumers, the Cape High Court has ruled that the fine print on contracts is not always legally binding, and corporate giant Telkom has withdrawn a R5 million claim against a fierce critic.
In a landmark ruling two judges found on Friday that consumers could not be bound by the terms and conditions printed on the reverse of an invoice, if the consumer's attention had not been brought to them when signing the document.
And Telkom has withdrawn its damages case against Gregg Stirton, a graphic designer-cum online lobbyist who took them on, and won.
The telecoms provider has also agreed to pay all his "considerable" legal costs.
The withdrawal is a victory for Stirton and, presumably, for the frustrated Telkom users who log onto his irreverent website hellkom.co.za to complain about what they claim are Telkom's inflated prices and poor service.
In the "small print" ruling, the Cape High Court found against security gate specialists Maxidor in a case brought against it by Flexware, which bought R21 000 worth of security gates for the outside of a house in March 2003.
The gates were under a 12-year guarantee against rust and chipping, but, weeks after they were installed the gates started showing signs of rust.
Flexware sued Maxidor for damages in the Goodwood Magistrate's Court.
Witnesses testified on behalf of Flexware that they had been informed that Maxidor had two ranges of products: the top-of-the-range and middle-of-the-range.
A Maxidor representative had recommended the middle-of-the-range gates, but had not informed Flexware that these gates were not suitable for exterior use. The guarantee applied only to products when installed indoors.
But the witnesses also claimed the terms and conditions of the sale on the reverse of the invoice were never brought to their attention, and the magistrate ruled in favour of Flexware.
Maxidor appealed to the Cape High Court, where it argued that a reasonable customer would have noticed the terms on the reverse of the invoice or inquired about any material terms and conditions.
In a judgment delivered on Friday, Acting Justice Dumisani Zondi said : "I have some difficulty with this submission as it is premised upon the assumption that the terms and conditions were contained on the face of the document which (Flexware) was asked to sign. This is not the case in this matter."
He added that the front of the document had been signed and there was no evidence Flexware had been aware that there were such terms and conditions or that its representative's attention had been brought to them.
Judge Zondi said it was "inconceivable" that Flexware could have agreed to the terms and conditions on the reverse of the invoice.
The court found it was not enough for the document to be signed, but that the attention of the consumer should have been drawn to the terms and conditions. Justice Siraj Desai agreed.
The Telkom case referred to Stirton's website, which includes blatant parodies of Telkom logos complete with distorted slogans such as "Hellkom" and "Melk-hom". The site was launched in January last year. Stirton has also included on his site statistics about Telkom, ranging from the CEO's annual salary of more than R11 million and the claim that more than 80% of the population cannot afford Telkom's basic telephone service.
Stirton also attacks Telkom for being "Proudly unSouth African", despite being one of the founder members of the organisation.
Stirton insists that "everyone should have access to voice calls and internet access, without having to save up for it or find an extra job".
He says he has been overwhelmed by the response to his site, saying it appears many people are dissatisfied with Telkom.
Not just useful for a good cyber-rant, the site also includes updates of Telkom's prices and links to surveys that rate Telkom as one of the world's more expensive telecom providers.
He may have won the freedom of expression battle, but for Stirton, the war against high telecoms prices is far from over.
Although hellkom.co.za will stay as it is, Stirton has refused to sign any agreement with Telkom regulating the site's content.
Stirton's website may be protected by the Freedom of Expression Act, but his attorneys have advised him against using the logos on marketable merchandise in case he ends up in court.
Justin Nurse of Laugh it Off promotions, the satirical T-shirt company that set the precedent for free speech when the Constitution Court ruled in its favour earlier this year, declined to comment on Stirton's victory.
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