Law - Salim Case Study Assessment Answer

Law - Salim Case Study Assessment Answer

Task:

Salim Case Study

During the December holidays, Salim took his two children to Sun City’s Valley of the Waves for the day. As they entered the premises, there was a large white sign up at
the boom gate stating the following in bold black writing:
‘The owners, management and employees of the Valley of the Waves do not accept liability or responsibility for any loss or damage of any nature whatsoever caused
negligently or otherwise to any person’s property whilst on the premises.’
In his hurry to make the most of the good weather and keep an eye on the excited children, Salim did not see the sign.
Salim and his children ran to the water and jumped into the waves. Unfortunately, parts of the machinery used to create the waves had not been properly secured, and Salim hit his head on a protruding piece of metal. He was seriously injured and was taken to hospital. He was unable to work for three months after this accident.
To add to Salim’s misfortune, whilst he was being carried out of the water, his cell phone was stolen. CCTV footage shows that the thief was an employee of the Valley of
the Waves.

Salim submitted a claim to the valley of the waves for payment of his medical expenses and his loss of income as a result of the accident. He also submitted a claim for the
value of his cell phone. The management of the Valley of the Waves rejected the claim.

Question 1 
Advise the management of the Valley of the Waves on their chances of success in an action that Salim has brought for:
1.1 The cost of his medical expenses arising from the physical injuries that he sustained, and the resulting loss of income; and
1.2 The cost of replacing his phone. Refer to relevant sources of law, including case law, in your answer.

Question 2
Before Salim left on his holiday to Sun City, he had entered into a contract with Paul for the purchase of a car. The purchase price was R100 000, and Paul and Salim had
agreed that on Salim’s return from holiday, the car would be delivered to Salim who would then pay for the car. Whilst in hospital, Salim is concerned about his future
income, and he decides he can no longer afford the car. He writes to Paul, advising him that he will not purchase the car, and that he will not pay the purchase price.
You are required to advise Paul of his legal position. In your answer, you are required to identify the type of breach that has occurred and set out the relevant remedies for
breach.
For Questions 1 and 2, students are required to write a well-structured legal opinion to the client, based on the legal principles of South African law. The answer should
include the following:

(i) A brief background;
(ii) The correct identification of the legal issues;
(iii) Setting out of the relevant legal principles;
(iv) An application of the relevant legal principles to the facts in the scenario; and
(v) A well-considered legal opinion and conclusion.

Question 3 
In Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that: “Public policy had to be determined with reference to the Constitution, so that a
contractual term that violated the Constitution was by definition contrary to public policy and therefore unenforceable (paragraph 29 at 333E - F).” Consider this extract from the Barkhuizen case in relation to the sign outside the Valley of the Waves, set out above.
In law, there are arguments that support the enforceability of the type of term relied upon by the ‘Valley of the Waves’ and hold that it is necessary for these terms and
contracts generally, to be binding. There are also arguments that hold that such terms should not be enforceable if the result will be that important constitutional rights of a
party may be infringed.
Advise whether, in your opinion, such a term, as well as other types of terms that are commonly inserted in contracts by means of notices, ‘tickets’ or standard exclusion
clauses, should be enforceable in South African law.
Students are required to engage with the role of the Constitution and public policy in South African contract law and provide a logical and well-argued discussion of both sides of the argument.

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