Representatives of the Professional Provident Society (PPS) of South Africa Foundation and the UKZN Foundation gathered on the University’s Howard College campus to extend their partnership and celebrate PPS postgraduate bursaries being awarded to medical students. The PPS Foundation was established in 2016, to improve access to Science, Technology, Engineering and Mathematics (STEM) fields for students. They also contribute to the sustainable development of South African communities. PPS Group Executive Trustee and Group Executive: HR, Ms Masenyane Molefe, gave a brief presentation on her organisation which has been in existence for more than 80 years. Molefe said the Foundation’s bursary and university support programme led to the collaboration with UKZN. ‘The PPS bursary is a holistic bursary that covers students for tuition fees, residence accommodation, meals and laptops. The Foundation is currently funding IT and medical students.’ One of the students was Ms Fanelesibonge Mkhize, a Bachelor of Medicine and Bachelor of Surgery (MBChB) candidate. ‘I didn’t know much about PPS until my roommate at residence, who is a recipient of one of their bursaries, suggested I approach the society,’ said Mkhize. ‘After having applied unsuccessfully for a bursary from several other sources I was surprised and elated when I got a response from PPS!’ Commenting on the funding, Mkhize, who holds a cum laude Bachelor of Pharmacy Degree, said: ‘It has helped me so much because otherwise I would have been stressing about books and fees as it not easy to get a bursary when you already have a degree. I’m happy to be part of the UKZN community and grateful to my sponsors – because of them, I have no (student) debt which makes life so much easier and less stressful, allowing me to concentrate on my work.’ Professor Suvira Ramlall of UKZN’s Psychiatry Discipline and President of the College of Psychiatrists (CMSA) thanked PPS on behalf of the Medical School. ‘I am so glad you have shifted beyond giving hand-outs. We really appreciate these partnerships,’ said Ramlall.

This is done to optimise the hearing and performance of your cochlear implant to ensure you are hearing your best at all times! Dr Kara Hoffman (Au.D) has been a co-ordinator and now member of the Durban Cochlear Implant Programme since she became additionally licensed in cochlear implantation through the University of Stellenbosch in 2008. The candidacy process is a lengthy and in-depth assessment that touches on all facets of the hearing impaired patient’s life – communication, family, surgical, emotional, financial, medical, audiological and psychological – for the most incredible outcomes that technology can offer in this day-and-age! Each company supported by the DCIP has FDA approved, internationally manufactured products with years of research and technology – many of whom have welcomed the team to their advanced training in their overseas laboratories and by their expert engineers and audiologists. https://www.thaudiology.co.za/

Bone conduction technology and headphones are receiving a lot of attention worldwide and have hit the South African market with great reviews. Bone-conduction technology is medical grade certified technology. As sound travels faster through a solid than through air, bone conduction technology is based on the principle of conducting sound to our inner ear via the bones on our cheeks and hence bypassing the eardrum. This is an important feature as bone conduction headphones rest on the side of the face and do not fit into or over the ear. In this way their use completely eliminates the damage that normal ear pods or headphones cause to our hearing ability. The World Health Organization report on hearing (March 2021) states that over 1.1 billion people are at risk of permanent hearing loss due to listening to audio at harmful volumes. This is mainly caused by regular use of conventional headphones and ear pods. The youth population – especially those under 35 years are particularly at risk. Hence, at WeHear SA, our mission is to save as many people as possible in South Africa from hearing loss due to using the wrong listening and connectivity devices. Bone-conduction devices are much safer than traditional headphones and reduce damage to your ears, especially on prolonged usage. Obviously, the volume used must be controlled to a safe level. Bone Conduction Technology Advantages Bone conduction technology offers many advantages over traditional earphones, but the main benefits are: They do not fit inside or over your ear. So, your ear health is not impacted negatively. You are not bombarding your ear canal with high volume sound from a close range. The leading cause of ear infections are by devices that fit into the ear. The human ear was not designed to have devices inside the ear. Bone conduction offers what we call “Audio Freedom” with the “Open Ear Experience” which provides better interaction between the person and the environment. All ambient sounds can be heard while still connected to audio. This provides a great degree of safety from potential threats and awareness of the surroundings. A bone conduction device can be worn for extended periods without any of the usual negative impacts from traditional headphones. However, people who want to listen to high volume audio without interference from ambient sounds will not prefer bone conduction. Also there may be minor sound “leakage” so your audio may be heard by people very close to you. Product Features The WeHear product range are aspirational products that have been designed to offer market leading quality and features. We have purposely built the “Rolls Royce” of bone conduction headphones. We have designed the business model to make ear health, hearing and connectivity affordable but also offer the best quality product on the market. Consequently, the WeHear OX is the world’s first truly smart headphone. The standout features include: The build quality and materials used can immediately be noticed as superior The sound quality from high end Qualcomm processors 8 hours of usage from just 45 minutes of charge time IPX6 certified to be resistant to sweat, dust and water splash proof We offer an industry-leading 3-year warranty and regular online support. Most other electronic products have much shorter warranties. Dual connectivity, allowing you to connect to two Bluetoot h devices at the same time The 30ft connection range offering greater freedom. The market leading mobile app offers features that really takes this headphone into a new league. These include: A 72-language live translator. No more language barrier. Learn a language feature. WeConverse – allows texting in any language and immediate translation. Hearing aid mode – To assist hearing impaired people. Hearing test feature – Test your Ear Age. User Profile WeHear OX is designed to suit several different users. The busy professional who will benefit from dual connectivity. The app also removes the language barrier and ensures that ternational clients can be communicated with more effectively. All sportspersons, especially those who would like to listen to audio while engaging in their sports but need to be aware of ambient sounds in their vicinity. Students and youth who spend long periods of time connected to devices can now do so without damaging their hearing. For more information contact: E: dash@groupd.co.za W: www.wehear.co.za

BEESCORE spoke with Africa Talks Business and shared their goals and objectives with us. BEE is crucial for businesses in South Africa. It is so frequently thought of as a duty or simply a rule, but it is so much more than that. Understanding BEE requires knowledge of South Africa’s past, including the suffering and tribulations that led to its current prevalence. BEESCORE discusses their goals for South Africa as well as their competitive advantages. How their role as a moral and effective verification agency has a significant impact. Learn more about BEESCORE and why you need to consult with them if you are a SMME, or organization. 1. Tell us about BEESCORE? BEESCORE was established in 2006, being one of the initial batches of verification agencies who were accredited to conduct B-BBEE ratings. We are committed to the process of broad-based black economic empowerment. We share knowledge and know what counts in B-BBEE scoring. Business Goals and Objectives: BEESCORE aims to be the preferred supplier of BEE scorecard ratings to South African businesses, making the process of verification simpler, better, and faster to benefit our clients and aid in the necessary transformation of the South African economy. Company Vision: To be a leading rating agency within the top 3 in SA by continuing to provide exceptional services. Company Mission: It is our mission to be a preferred supplier of BEE scorecard ratings and aligned value added services to South African businesses. We are committed to providing our clients excellent service by acting with integrity and upholding the principles of this mission. We aim to inspire confidence in the rating process by committing to uphold the principles of: Impartiality, Competence, Responsibility, Openness, Confidentiality, and Resolution of Complaints. 2. How did the name BEESCORE come about? The original name was registered in 2006 as BEESA Rating Services. The name was changed to BEESCORE in June 2009. The reason for the change was because there was a separate independent consulting company called BEESA, and the rule has always been that there should be no link/commonalities between “consulting” and “BEE Verification” services. Hence, the name change. BEESCORE was chosen because it represented what the essence of BEE Verification entailed, which is to assess and validate the BEE Scores of measured entities. 3. What services does BEESCORE offer. Clients that choose BEESCORE can take advantage of offerings unique to our company. We specialize in interim and final B-BBEE scorecard ratings, B-BBEE verification training, ownership analysis and certification, Enterprise (ED) and Socio-Economic (SED) certifications and JV/Consortium certification. 4. How is BEESCORE Different? We are client-centric. We pride ourselves on excellent turn-around times and excellent customer service. BEESCORE is a SANAS accredited,100% Black Female owned entity which qualifies for 135% back in procurement spend and bonus points when clients utilise our services. Our SANAS accreditation extends to all industry sectors, except for the Defence sector. Using highly qualified analysts and our ‘value add’ philosophy, we ensure prompt turnaround of certification. We adopt a pragmatic approach in applying BBBEE verification methodologies. • We pride ourselves in 100% customer service and accuracy in our BBBEE assessments. The owner and managing director is a lawyer who applies her legal and interpretational skills in the application of complex provisions in the various BEE Codes and supplementary legislation. At BEESCORE we embrace certain values. Integrity, respect, diversity, efficiency, and service excellence are of ultimate importance. One can expect to find these values consistently threaded throughout the fabric of our business. We have been operating for 17 years and have, over this period, conducted verifications across multiple sector codes servicing both private sector and public sector entities. Our client base includes those that we continue to service from 2006, which can attest to their customer service experience with us. 5. What impact is BEESCORE making in South Africa? BEESCORE’s reputation in the market as an ethical and efficient verification agency holds us in good stead. We have years of experience in verifying clients in the industry and can easily identify suspicious activity and fronting. We have forged great relationships with clients and other rating agencies/peers which creates mutual respect and an overall positive outcome for our industry. 6. Who can Benefit from partnering with BEESCORE? Any entity wishing to maximize on their preferential procurement points could partner with BEESCORE, to ensure their supply chain is compliant. We often see large entities lose valuable points on their scorecards due to many suppliers being non-compliant or producing incorrect/invalid BEE certificates and affidavits. These entities could partner with BEESCORE to potentially handhold their suppliers through the process of becoming BEE certified. 7. How do people get in touch with BEESCORE? BEESCORE can be contacted from our website: www.beescore.co.za ; telephonically on 031-5830640; admin@beescore.co.za ; reception@beescore.co.za ; usha@beescore.co.za Article by Africa Talks Business June 26, 2023

Driven by his determination to make a real impact on society, rather than just making loads of money and becoming another ‘celebrity entrepreneur’, 24-year-old Umhlanga business owner Muhle Ndwalane recently made it onto the exclusive Forbes Africa ‘30 under 30’ list. Making it onto a shortlist that includes the continent’s brightest achievers under the age of 30 is a remarkable feat and a life-changing achievement. But this seems only to be the beginning for this determined and driven young ‘techpreneur’. As the owner and founder of Asante Solutions – an Umhlanga-based digital marketing and tech agency – Muhle’s ultimate goal is to bridge the digital divide in South Africa and formulate unique solutions that suit our local market. Originally from Port Shepstone, Muhle completed his schooling at Adam’s College boarding school in Amanzimtoti, where he was a good student and an even better soccer player. “I came from a middle-class family and was really lucky to get into the school. When my family ran out of funds for my last two years, my soccer club stepped in and covered my accommodation fees.” Muhle got his first taste of entrepreneurship after he started helping his brother (an architect) with some digital work and began playing around with technology. “I taught myself how to do different designs and logos on T-shirts and then started selling these at taxi ranks and on the beaches in the holidays. While everyone was partying around me, I was working.” Muhle had a natural knack for, and understanding of, both business and technology from a young age and he very quickly became passionate about both. After school, Muhle decided he wanted to study computer science, but with only 58% for maths (he needed 60%), he wasn’t accepted right away. Unwavering in his determination though, he convinced UKZN to accept him as a B Com student for the first semester and then, based on his marks, allow him to pursue computer science. Of course, he knocked it out of the park and now holds a degree in Information Systems and Technology, with a second major in Supply Chain Management. Amongst his biggest achievements to date though, Muhle says, was his involvement with the Enactus World Cup. Enactus is an international non-profit organisation that arranges social entrepreneurship project competitions for university students around the world. Being a part of the organisation not only exposed him to and taught him about international practices and ideas, but also sparked his passion for finding ways to address socio-economic challenges in the community. In 2018, Muhle was chosen to represent UKZN in the Enactus World Cup in California’s Silicon Valley in the USA. “It was amazing to be exposed to the incredible people and businesses over there. I returned more ambitious, driven and determined than ever.” Over the next two years, Muhle served as the executive president of the Enactus group, where he not only pioneered their Covid-19 response solution (which won a global award), but also represented South Africa at an International Social Business Summer Programme in Bangladesh where he spent time with Nobel Prize winner Professor Muhammed Yunus (who founded the Grameen Bank). “The international exposure I’ve had has allowed me to fully understand the digital divide in South Africa and I’m determined to put solutions that suit our African context into practice. We have a number of our own continent-specific challenges and the result is that there is not much innovation happening in Africa. I want to find ways to innovate existing concepts to make them relevant to us.” Having started his business with making logos and helping people with brand development and digital presence (and even, very successfully, selling perfume on campus, which he says he did to polish up his ‘people skills and gain confidence), Muhle made the decision to take Asante Solutions to the next level when he qualified. “I could either go for a corporate job or focus on growing my business. My qualifications and the connections I’ve made meant I could probably have walked into a really good position at a top corporate and start earning great money straight away, but I decided to go the entrepreneurship route instead,” he says. “My aim is to advance our youth and find solutions offered by South Africans and African agencies. I want to inspire young people and be a reflection of what is possible. I don’t believe you have to have grey hair to succeed in this industry. The youth are entirely capable of being the ones who tap into the digital economy and drive it.” Being chosen as one of Forbes Africa’s ‘top 30 under 30’, Muhle says, has been a great validation and testament that the business is moving in the right direction. “It’s pushed us to challenge ourselves even more, think bigger and set more ambitious goals.” Partnering and working with some of the top businesses in the country, Muhle and his Asante Solutions team deliver creative digital transformation solutions for brands, with expertise in digital marketing, brand development, drone technology, systems development and data analytics.” Details: www.asantesolutions.co.za BY LEAH SHONE | EDITOR - GET IT 26TH AUG 2022

This Week@Work Pavlo’s meetings with long-established business owners left him concerned about their runway to an exit. They have spent their careers focused on operational issues to generate income to sustain the business. Only now are they realising they should have been focused on growth and capital value to secure a profitable exit. What are you spending your time on? Your prosperity is largely in your hands. It's also in the wellbeing of your suppliers, customers, friends and family who run their own businesses. You're welcome to share This Week@Work with them. Pavlo Phitidis www.aurik.com

THE 2023 Durban Ultra is waiting for you to take up the challenge on the 6th of August. Entries close in 2 days time, so pick your race and challenge your friends to race over the beautiful Durban course. With full road closure and flat running routes, this event gives athletes fast times and rewarding challenge. Entries on the 7th of July 2023. Come join us for the weekend, we hope to see you there! (CLICK) RACE WEBSITE INFORMATION

One of the healthiest options to enrich our lives is walking. Studies have been done all over the world showing the incredible heath benefits people get from walking. Running too has great benefits, and so does swimming, exercising, etc. However, making a habit of walking regularly helps to maintain a healthy weight and lose body fat; prevent or manage conditions such as heart disease, high blood pressure, and type 2 diabetes; improve cardiovascular fitness; strengthen bones and muscles; improve muscle endurance; and increase energy levels. Walking in a forest, gorge, or natural area adds greatly to our physical and mental health. Being exposed to forests in all their biodiversity boosts our immune system, reduces stress levels, improves our mood, accelerates recovery from surgery or illness, improves sleep, increases our ability to focus, and even reduces effects of ADHD in children. Walking, and more so walking in a natural area such as a forest or gorge contributes in many ways to our personal health. The Upper Highway area is blessed with many wonderful natural areas for people to walk in and enjoy the magic and health that nature gives to us. One of these wonderful natural areas is the Everton Gorge formed by the Molweni river. The Everton Gorge is rich in indigenous trees and plants and has many beautiful trails and majestic waterfalls. The wildlife includes 250 different bird species and many mammal species such as bats, porcupines, bush pigs, blue duiker, grey duiker, bush buck, genets, caracals and even serval cats. The plant life includes many wonderful flowers such as the lovely orchid, Mysticidium capense. The Everton Conservancy committee, made up entirely of volunteers, has assumed the responsibility of maintaining this wonderful natural area, and they do this through employing a team of people that focus on this task. They maintain the trails and remove non-indigenous plants and trees. After last year’s floods they moved rapidly to clear the damage done to the trails. They fund their endeavours through donations from walkers and runners who use the Everton gorge for their fun and exercise. The present monthly costs for this maintenance are R8500 per month. Unfortunately the Everton Conservancy has seen a huge reduction in the number of people making donations. However, thanks to a group of business leaders in the Upper Highway area, the Conservancy has been given some generous donations which will enable them to continue with their efforts to maintain the trails. A huge ‘Thank-you’ to the organisations that have contributed, which include Stimela, Stimela Marine, DRG, DRG Siyaya, BusinessFit, CC&A and The Sanctuary. It is the hope of the Everton Conservancy to continue to attract people to visit and enjoy the wonderful Everton Gorge, not only to contribute towards management of this natural wonder. They want people to enjoy the natural areas which are on their doorstep, gain from the many health benefits associated with walking in them and ultimately to raise awareness of the fragility of these pristine areas. Everton Conservancy was the first Urban Conservancy established in South Africa.Everton suburb now has some 280 homes, with properties no less than 2 acres.It is a uniquely special area in the Upper Highway, and maintaining its jewel, the Everton Gorge, is critical in helping to conserve biodiversity, store carbon, and kindle a passion in people to enjoy and want to protect nature. The Conservancy has a special request to all Everton residents, asking each household to contribute R40.00 per month towards maintenance and management of the Gorge. Any Everton residents, or other persons or businesses interested in contributing towards this important and meaningful cause to please contact Tony Kee at tonykee@telkomsa.net

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04 JULY 2023 | INSURANCE LAW The Constitutional Court considered this and delivered a split decision on the debate. Can public policy considerations exclude the enforceability of an exclusion of liability clause? The Constitutional Court, by a narrow majority, says no in this case. On 28 June 2023, the Constitutional Court handed down judgment in the matter of Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd [2003] ZACC. This case deals with the proper interpretation of an exemption clause in the context of liability for losses suffered as a result of an employee’s theft of a consignment of laptops. The legal considerations in the case were: 1. whether the exemption clauses relied upon can be interpreted as excluding liability for wrongful acts committed outside the contractual context (i.e. theft by an employee); and 2. whether an exemption clause in the contract between parties was contrary to public policy, and therefore unenforceable. FACTS: Fujitsu, an importer, seller and distributor of laptops and related goods concluded a national distribution agreement with Schenker, a company which carries on business as a warehouse operator, freight forwarder, distributor and forwarding agent. The distribution agreement (which was subject to the terms of the South African Association of Freight Forwarders trading terms and conditions) provided that Schenker would collect, clear and carry goods and, thereafter, deliver them to Fujitsu in accordance with Fujitsu’s instructions. The agreement essentially identified two categories of goods which Schenker was permitted to deal with on behalf of Fujitsu: high value and normal, non-high value goods. High value goods included jewellery, precious stones and valuables, amongst other things. Clause 17 of the agreement recorded that Schenker would not accept or deal with high value goods on behalf of Fujitsu unless under special arrangements made in writing in advance. In the event Schenker was required to handle or deal with high value goods without prior written special arrangements, Schenker would not incur any liability “whatsoever”, specifically in respect of its negligent acts or omissions when handling such goods. In 2012, Fujitsu purchased a consignment of laptops and in doing so, it engaged Schenker’s services to assist with the logistics of the consignment, by importing the goods into South Africa and receiving them from the airline. Importantly, no prior special arrangements were made in writing permitting Schenker to deal with the high value goods for Fujitsu. When Fujitsu’s consignment arrived, one of Schenker’s employees collected the consignment of laptops, loaded them into an unmarked car, and never returned to work. Fujitsu instituted a delictual claim against Schenker for damages on the basis that Schenker was vicariously liable for the loss it suffered because of the theft. Schenker argued that it was not liable having regard to the exclusion of liability in clause 17 of the distribution agreement. Fujitsu argued that the exclusion of liability did not apply to intentional conduct such as theft. HIGH COURT The court, of first instance, rejected Schenker’s argument that it was excluded from liability for theft and upheld Fujitsu’s argument that clause 17 did not apply to intentional conduct such as theft. The court held that theft was an act outside the performance of the parties’ contract and the exemption clause did not apply. Put another way, Schenker could not rely on the exemption clause where the contract was not being executed, and if Schenker intended the exclusion clauses to apply to the delictual claim of theft, it ought to have made this clear in the contractual terms, which it held was not contemplated by clause 17. THE SUPREME COURT OF APPEAL (“SCA”) On appeal, the SCA held that the claim against Schenker in respect of the valuable goods was governed by the contractual clauses which excluded liability for any claim of “whatsoever” nature (whether in contract or delict) and whether for damages or otherwise “howsoever arising”. The SCA was of the view that these words should be accorded their ordinary and literal meaning and reasoned that they were “sufficiently wide enough in their ordinary import to draw into the protective scope of the exemption the deliberate and intentional conduct of the employees of Schenker”. The SCA also held that, because the goods were valuables, commercial rationale required that the goods be specified and special arrangements be made with Schenker to enable it to take steps to mitigate the risk of theft or any other potential claim. In the absence of any special arrangements, Schenker would not be liable “whatsoever” (whether in contract or delict) in respect of such goods nor incur liability in respect of its negligent acts or omission. Accordingly, the SCA overturned the decision of the High Court. CONSTITUTIONAL COURT On appeal to the Constitutional Court, the pertinent issue was whether exemption clauses, properly interpreted, exclude liability for a delictual claim for theft by employees. Fujitsu contended that the exemption clause should not be interpreted to exclude liability for theft by Schenker’s employee, especially where the employee’s actions were unlawful and not in accordance with the contract. Fujitsu submitted that on a proper interpretation of the contract, the words no claim “whatsoever” and “howsoever arising” do not include intentional acts. Finally, and although the point was not raised before the High Court or SCA, Fujitsu argued that enforcing a contractual term such as the exclusion from liability would bring exemption clauses out of step with the boni mores of the community and would be contrary to public policy. CONSTITUTIONAL COURT: MAJORITY JUDGMENT Zondo CJ. for the majority held that, on a proper reading of the clause, the loss for which Fujitsu sought to hold Schenker liable was the loss of goods which fell within the goods listed in clause 17. The majority considered Fujitsu’s position (that the clause does not apply to cases of deliberate or intentional conduct such as theft) against the commercial context in which the agreement was concluded and noted the peculiarity of the notion that a freight forwarder, which wanted to protect itself against the risk that may be posed by its employees in the course of dealing or handling the consumer’s goods, would want a clause in a contract that protects it against the risk of negligent conduct by its employees but does not protect it against the risk of intentional conduct such as theft on the part of its employees. On Fujitsu’s logic, Schenker sought to protect itself against a lesser risk and not protect itself against a bigger risk. The majority held that this construction of the agreement was neither sound nor sustainable, as it was not business-like and would not make sense for a businessperson or entity to protect itself against the negligent conduct but not against intentional conduct such as theft. The Court accepted that in terms of clause 17, the parties agreed that prior special arrangements had to have been made in writing before Fujitsu sent valuable goods to Schenker. Put differently, Schenker’s liability in respect of the special category of goods would depend on special arrangements being made before Fujitsu could send such goods to Schenker. The majority was of the view that this deal must be upheld unless there were valid reasons to the contrary. Zondo CJ. for the majority considered Fujitsu’s argument that clause 17 only applies in the execution of the agreement. He held that there was no merit in this submission as, if it were valid, it would mean that Clause 17 would protect Schenker from liability when, for example, its employee acts in accordance with the contract but not so when he or she acts in breach of the contract. The majority held that exemption from liability is required for conduct that is in breach of the contract or law and not for conduct that is in line with the contract and with the law. Even though it was only raised on appeal for the first time, Zondo CJ., considered Fujitsu’s contention that to the extent that clause 17 exempts Schenker from liability for loss arising from the theft of its employees, it is contrary to public policy and is therefore unenforceable. In doing so, he relied on Barkhuizen v Napier in which the Constitutional Court gave meaning to the phrase “public policy” and stated that: “What public policy is and whether a term in a contract is contrary to public policy must now be determined by reference to the values that underlie our constitutional democracy as given expression by the provision of the Bill of Rights. Thus a term in a contract that is inimical to the values enshrined in our constitution is contrary to public policy and is therefore unenforceable” . In addition, the Court elaborated on the public policy considerations and provided that: “Notions of fairness, justice and equity, and reasonableness cannot be separated from public policy. Public policy takes into account the necessity to do simple justice between individuals. Public policy is informed by the concept of ubuntu. It would be contrary to public policy to enforce a time limitation clause that does not afford the person bound by it an adequate and fair opportunity to seek judicial redress. Having regard to Barkhuizen, the majority held that there was nothing unfair or unreasonable about the terms of clause 17. On the contrary, it found that clause 17 was fair to both parties as Schenker agreed not to handle goods generally other than where there were special prior arrangements. This was to avoid the risk in doing so. If Fujitsu chose not to make prior special arrangements in writing with Schenker to handle the special goods, it chose to voluntarily assume the risk that, if something happened to the goods (including if they were stolen), it would be responsible for its choice. On the other hand, if Fujitsu made prior special arrangements with Schenker, Schenker could take out an insurance policy to cover the risk and pass on the cost to its customer by way of a higher fee, but if Fujitsu elected to send high value goods without prior written arrangement, Fujitsu bore that risk. The majority confirmed, as per Barkhuizen, that contracts that have been voluntarily and freely concluded should, as a general rule, be enforced unless there is something contrary to public policy about them. The Court also noted that there was nothing to suggest Fujitsu was in a weaker bargaining position than Schenker when the agreement was concluded. Accordingly, the majority held that there was nothing unfair or unreasonable about clause 17 and for that reason, it was found not to be contrary to public policy. In arriving at this conclusion, the Court considered various authorities which reject the proposition that it is contrary to public policy to have a clause in a contract which exempts one of the parties from liability for loss arising from the intentional conduct of its employees such as theft. In Goodman Brothers the clause in the contract was similar to clause 17 in substance, and the question was whether the clause absolved a contracting party (the respondent) from any liability to the other when goods were stolen by employees of the respondent. The Court in Goodman held that the theft by the servant is not theft by the employer - the theft is not for the benefit of the employer but for the benefit of the employee. To allow the employer to rely on a clause excluding liability for theft of an employee would not encourage theft, as the risk of theft being committed is the same regardless of whether the exemption clause is in place. The Court (in agreement with the Full Court in Goodman Brothers) held that there was nothing contrary to public policy with two contracting parties agreeing on exemption of the one party to the agreement from liability and leaving it to the other party to take out an insurance policy, should it wish to do so. Further, the majority relied on the decision in Fibre Spinners v Weavers where the SCA drew a distinction between an exemption clause purporting to exempt a party from liability for loss or damage arising from its own wilful conduct (in which such a clause would not be enforceable as it would be contrary to public policy) versus a situation where an exemption clause exempted an employer for liability for loss or damage to property arising from the wilful misconduct (e.g. theft) of its employees or agents. The SCA accepted, even by implication, that a clause in a contract that exempted a contracting party from liability for loss arising from the wilful misconduct of its employees such as theft is not contrary to public policy. Zondo CJ., for the majority, concluded that the making of prior special arrangements in writing by Fujitsu with Schenker before Fujitsu could send valuable goods to Schenker was a condition precedent to Schenker’s liability for anything that happened to those goods, including theft. Once it is accepted (as it was), that Schenker did not make prior written special arrangements, the condition precedent for Schenker’s liability has not been met or complied with and therefore Schenker is not liable. Accordingly, the Constitutional Court ruled that the SCA’s decision was correct and the appeal was dismissed. CONSTITUTIONAL COURT: MINORITY JUDGMENT Although the majority dismissed the appeal, the minority judgment penned by Mathopo J. held that, had he commanded the majority, he would have set aside the decision of the SCA. Mathopo J. disagreed with the majority’s interpretation of clause 17, which in his view was not anchored in the proper interpretation of contractual principles. He noted that the matter was essentially one of interpretation and the common intention of the parties must be ascertained from the language of the contract, which must be given its ordinary and grammatical meaning unless it would result in absurdity, repugnancy or inconsistency with the rest of the instrument. The minority, per Mathopo J., were of the view that it was remiss to focus on individual elements of the contract and interpret them in piecemeal fashion. In order to ascertain the purpose of the clause under consideration, the correct approach was to consider the purpose of the agreement on the one hand and on the other, to ensure that a contextual approach to the proper interpretation of the exemption clause was not ignored. The minority took the view that the literal interpretation of clause 17 involved a radical departure from the proper interpretation of the contract as it would have allowed Schenker to benefit from the unlawful conduct of its employees, in conflict with other provisions of the contract. Dealing with the qualifying phrases “of whatsoever” nature, “any such goods” and “howsoever arising”, the minority disagreed with Schenker’s submission that the words should be understood to mean that no liability for any claim of whatsoever nature – whether in contract or delict – would arise under such circumstances. The minority held that even if it was accepted that the qualifying words or phrases limited the liability of Schenker, there was no compelling reason to include theft from the exclusion of liability prescribed in the contract, as theft did not constitute the performance of the contract that required Schenker to collect and deliver the goods to or on behalf of Fujitsu. Ultimately, the minority concluded that Schenker’s appeal ought to be dismissed as clause 17 was not applicable to intentional conduct such as theft and it only applied to situations where the loss occurred in the performance or execution of the contract between the parties. If clause 17 applied, the minority reasoned it would be contrary to public policy as the clause would operate to prevent Fujitsu from obtaining judicial redress which would otherwise have been available to it, and enforcing an agreement in such circumstances would offend the principles of good faith and fairness. Further, any contract which envisioned and tolerated theft would be contrary to the doctrine of legality and public policy. CONCLUSION In conclusion, although the majority found that the exemption clause was not contrary to public policy, and was therefore enforceable, it is evident from the minority’s judgment that future circumstances and facts may very well present another opportunity for the Court to depart from this judgment and find that an exemption clause may be unenforceable. It is also evident from this judgment that broad and generic wording which aims to cast the net as wide as possible is not always the prudent approach. Contracting parties ought to ensure that any exemption or limitation of liability clauses are clear and unambiguous. The wording should also make it clear that the clause excludes liability for wrongful acts committed outside the contractual context, if this is the intention of the parties.

East Coast Radio (ECR) has partnered with business growth specialist Pavlo Phitidis on a campaign to highlight the vital importance that established businesses hold for KZN’s growth and prosperity. Called The KZN Future50 , this weekly radio feature takes the shape of a conversation between Pavlo and hosts Darren Maule and Sky Tshabalala featuring the KZN business of the week. Applications are now open for businesses who would like to be featured. Why become a KZN Future50 business? The intention is to support the business community, so this comes at no cost (yes, really). Exposure to ECR’s 1,3 million listeners at 7.50am, Monday morning peak traffic radio Exposure on their website (600 000+ unique users) & Facebook (470k followers) Get the people of KZN focused on what your business needs to get to its next level Be one of only fifty KZN business to watch The conversation will be about your business, what it does, why that matters and a call out to the audience to get behind your success and growth. If your next level growth opportunity is, amongst others, more customers, a funder, a key supplier, a specialist employee, access to information, or a listing with a retailer, Pavlo will extract it from the listeners and bring it home to you. Click here to hear examples, and apply HERE

By Desire Weaver (Business Leader) Growing up in a rural area in South Africa, and as a young girl, dreams of a life being a business owner seemed farfetched. However, after relocating to the city at the age of 15 years old, an exciting word of seemingly endless possibilities was introduced to me. Abafazi Logistics Management became that possibility in 2011, after I had acknowledged my potential in the business world, and within the logistics industry. My experience and reputation after 16 years in the industry motivated me to venture out and create my own business. With the support of my spouse, nothing was going to stand in my way to pave my own path as a successful entrepreneur in South Africa. Obstacles were inevitable, but my reputation and knowledge of the courier world kept me grounded. I decided to dive into this venture with all my heart and was determined to make it a success. I was blessed with positive credit references from people who believed in me. I left a permanent job which had huge potential. Some companies who trusted me, moved with me, as they wanted to show their commitment and loyalty. With the faith of these clients supporting me, and the encouragement of my ex-employer who soon became a supplier to Abafazi, I was able to start my business development journey. Abafazi Logistics Management is a 100% black woman owned EME Logistics Management Company, providing high-quality end-to-end logistics management services. Through our effective courier networks and industry partnerships we are able to provide an exceptional, value adding, and reliable service at competitive rates. Abafazi’s service includes our signature “one-source personalised service”, making it easy for our customers to effectively manage their courier needs and related administration. Our online administration system connects directly to our various service providers, helping us to track our clients' shipments at all times of the day. With our online administrative system, we are able to assist clients immediately with any queries or specific requirements. Abafazi Logistics Management is dedicated to exceptional communication with our clients, and we regard this as an important pillar of our business ethos. We understand the importance of getting it right first time – every time, and this is our mission. Because we take the time to understand our clients’ requirements, we are able to provide tailor-made services to suit their business needs and budget. Our customer centred approach has enabled Abafazi to identify innovative service solutions that help us to meet the changing needs of the industry and our customers. Through our commitment to customers and focus on exceptional service, we believe that Abafazi will build long term client relationships, based on confidence and trust. We are proud to be associated with many different clients from many different industries. Each of these clients will testify to our dedication and commitment in meeting tight deadlines, and in always ensuring exceptional communication. Abafazi recently was included in the 2022-3 Motus Business Fit Enterprise Development and Transformation Programme. This was an important and exciting time of growth and development for me. I gained much value from the programme by putting my heart into the process. It was a pleasure to receive support and encouragement from an appointed business mentor. It has been a great honour for me and Abafazi to be selected onto the Motus ESD Transformation Programme. Words from Desire Weaver: I love my business. My team and I do our best each day to ensure our customers are professionally serviced, and that their goods arrive “on time and in good condition”. I really want to grow my business, and believe I have the right attitude, organisational culture, and systems to support this growth. My mentor has helped me to gain confidence in believing that I have a good business, and that my estimated growth targets are possible. The BusinessFit team appointed by Motus helped me to structure my business in such a way that it has encourage me to think about the many critical aspects of my business. I have grown to understand my business better, and to better understand all that is needed to take my business to the next level. I now have confidence to introduce Abafazi Logistics Management as a capable logistics management service provider to the world at large. I am very grateful for the many opportunities I have had to learn about logistics management and business. I look forward to taking the knowledge I have gained over the past 12 years as a business owner within the logistics industry, and the golden nuggets of information I gained from the Motus BusinessFit mentoring process and using this experience and information to develop Abafazi Logistics Management further. Through the BusinessFit mentoring methodology, I learned to follow a defined set of principles, intending to create a compliant, productive, ethical, engaged, risk free, and sustainable business. My team and I at Abafazi look forward to working with companies from across South Africa and across the globe, to sharing with them our passion for exceptional logistics management services, and to adding value in their courier and logistics management requirements. Please contact Desire Weaver desire@abafazilogistics.co.za to hear how Abafazi Logistics Management can help you with your businesses courier needs.