Terms & Conditions

In this agreement the following words or expressions shall have the following meanings:

1.1 “The Company” – means SMG Services (Pty) Ltd, as referred to in the schedule to these terms and conditions of hire;

1.2 “the hirer” – means the entity or individual referred to in the schedule to these terms and conditions of hire, and include the hirer’s representative(s) and driver(s) of the vehicle;

1.3 “the driver” – means the individual referred to in the schedule to these terms and conditions of hire, together with any additional driver of the vehicle authorised by the Company in writing to drive the vehicle;

1.4 “the vehicle” – means the motor vehicle described in the schedule to these terms and conditions of hire, together with all keys, documents, tyres, tools, equipment and other accessories in and on the vehicle;

1.5 “day” – means a period of 24 hours (or any part thereof), calculated from the “date out” of the vehicle referred to in the schedule to these terms and conditions of hire;

1.6 “the schedule” – means the schedule signed by the hirer in respect of the vehicle;

1.7 “this agreement”– means the schedule and these terms and conditions of hire;

1.8 “the insurer” – means the insurer of the vehicle to whom the Company is required to submit any insurance claim in respect of the vehicle;

1.9 “the SMG Group” – means all companies forming part of the SMG group of companies, including the Company.

2.1 Delivery and transfer of risk in and to the vehicle shall pass to the hirer at the time and place that the hirer takes possession of the keys and/or vehicle from the Company, until the vehicle is returned to the Company.

2.2 The hirer acknowledges and agrees that the vehicle was delivered to him in good order and repair, was defect free, and without any damage thereto, save and except for any defects or damages recorded in the vehicle inspection document on the date of delivery of the vehicle to the hirer.

2.3 The hirer acknowledges that he/she was afforded a reasonable opportunity to inspect the vehicle on the date of delivery thereof, and had in fact thoroughly inspected the vehicle.

2.4 The hirer furthermore acknowledges and agrees that at the time of delivery of the vehicle to him/her:

2.4.1 the vehicle’s tools and other equipment (including jack) and odometer (kilometer indicator) were all in good working order and condition;

2.4.2 the fuel tank, radiator and oil reservoirs were filled to capacity; and

2.4.3 the vehicle’s tyres were in a good and roadworthy condition, with the tyre tread being at least the legal limit.

2.5 Save as expressly agreed to in writing by the Company, only the driver shall drive the vehicle.

2.6 In the event of any other third party being in possession of, or driving the vehicle (whether authorised or not), the hirer shall remain liable for all of the possessor’s/driver’s acts or omissions, as if the hirer himself/herself had been in possession of, and/or driving the vehicle.

2.7 The Company shall at all material times remain the owner of the vehicle, alternatively the bona fide possessor thereof.

2.8 The hirer shall return the vehicle to the Company, at the hirer’s expense, to an authorised representative of the Company, at such time and location agreed to by the Company.

2.9 The hire acknowledges that failure to return the vehicle when required, shall constitute illegal possession of the vehicle by the hirer, who expressly authorises the Company to repossess the vehicle, either directly or via the tracking company, wherever same may be found, and from whoever is in possession thereof. All costs incurred by the Company to retrieve the vehicle shall be paid for by the hirer. The hirer shall be liable to pay damages equivalent to the daily rental payable, until the vehicle is returned to the Company.

2.10 The hirer shall return the vehicle to the Company in the same good order and condition that the vehicle was in when delivered to the hirer at the inception of this agreement.

3.1 The vehicle shall not be used for the conveyance of passengers and/or goods for reward, nor used to convey any animals, birds or reptiles, nor used to propel or tow any other vehicle, including but not limited to a caravan or trailer, nor be used in the participation of any motor sport, drag or track racing, or other high risk activity, nor be driven beyond the borders of the Republic of South Africa, nor convey any chemicals or other potentially hazardous substances.

3.2 When not in use, the vehicle and keys to the vehicle shall be kept locked and properly secured to avoid any theft of, or damage to the vehicle, or any of its component parts or contents.

3.3 The hirer and/or driver warrant and undertake that:

3.3.1 He/she is the holder of a valid and effective drivers license entitling him/her to lawfully drive the vehicle under the circumstances;

3.3.2 He/she shall not drive the vehicle while under the influence of alcohol or narcotic drug, or any other substance which would impair his/her ability to drive the vehicle effectively or legally under the circumstances;

3.3.3 He/she shall obey the rules of the road and drive within the designated speed limit;

3.3.4 He/she shall not drive recklessly or negligently;

3.3.5 Only he/she shall drive the vehicle to the exclusion of anyone else, without the prior written authorization from the Company, and if such authorization is given, to ensure that such person so authorized has a valid and effective driver’s license to legally drive the vehicle;

3.3.6 He/she shall not drive, park or otherwise utilize the vehicle in such a manner which would invalidate any insurance policy, insurance cover, or other indemnity given in respect of the vehicle, or cause the insurer of the vehicle to repudiate liability for any theft from, or of the vehicle, or any loss of, or damage sustained to the vehicle, howsoever caused, including hijacking;

3.3.7 He/she shall keep the vehicle in good working order and a roadworthy condition and fit state of repair at all times;

3.3.8 The vehicle shall not be used or driven in any way which would constitute a breach of any law, and/or any provision of this agreement;

3.3.9 He/she shall return the vehicle to the Company should the vehicle need to be serviced in terms of the manufacturer’s requirements, or should the hirer experience any mechanical or electronic issues with the vehicle, and in the case of the vehicle alerting the driver that the vehicle is overheating, immediately stop driving the vehicle and contact the Company to arrange for the vehicle to be towed to the Company’s premises.

3.4 The hirer and/or driver shall immediately notify the Company should the odometer (kilometer indicator) of the vehicle malfunction or stop working.

3.5 Should the hirer exceed the maximum kilometers per day, as stipulated in the schedule, in addition to paying the rental due in terms of this agreement, the hirer shall pay the amount stipulated in the schedule for each and every kilometer that the vehicle exceeds the maximum kilometers per day aforementioned, and which amount shall be paid by the hirer to the Company on receipt of the Company’s invoice in respect thereof, without deduction, demand or set-off.

3.6 The hirer shall not be granted any rental reduction for travelling less than the maximum mileage per day stipulated in the schedule to this agreement.

3.7 The amount referred to in clause 3.5 above shall be calculated when the vehicle is returned to the Company at the end of this agreement.

3.8 A dash camera is installed in the vehicle to record the manner in which the vehicle is driven and assist with identifying how any accident occurred in the vehicle and who was at fault.

In the event of the vehicle being damaged, stolen, hijacked, destroyed, or lost, the hirer and/or driver shall take every reasonable precaution to safeguard the interests of the Company by inter alia:

4.1 Notifying the Company in writing of the incident within 12 hours of the incident occurring. In the event of the theft or hijacking of the vehicle, additionally the hirer and/or driver shall immediately contact both the insurer’s 24/7 call centre on telephone number 0800 139 111, and the Company on the number provided in the schedule, to report the theft or hijacking of the vehicle;

4.2 Submit within 3 days a completed insurance claim form to the Company’s insurer in respect of the vehicle, and providing them with all the necessary information and documentation required pertaining to the incident concerned;

4.3 Reporting the incident to the South African Police Service as soon as practically possible, but at least within 24 hours of the incident occurring, and retaining a copy of the police accident report and/or CAS number and police station at which the incident was reported;

4.4 Obtaining the full names, identity numbers, physical residential and employment addresses, contact details, vehicle details (including make, model, type, colour, VIN and engine numbers and registration letters and numbers) and driver’s license details of all drivers involved in the incident involving the vehicle, together with the names, physical address and contact details of any witnesses to the incident;

4.5 Submitting a comprehensive statement, supported by a diagram, to the Company detailing and depicting how the incident occurred, duly signed by the hirer, and if not the driver at the time of the incident, by the driver of the vehicle at the time of the incident occurring;

4.6 Taking photographs of the vehicles in their damaged condition, if involved in an accident, as well as where possible, photographs of the positioning of the vehicles post-accident;

4.7 Providing the Company with copies of the information and documentation referred to in paragraphs 4.3 to 4.6 above within 24 hours after the incident;

4.8 Making adequate provision for the safety and security of the vehicle following the incident, and not abandoning the vehicle under the circumstances;

4.9 Co-operating fully with the Company in respect of any investigation carried out by the Company and/or its insurers pursuant to the incident involving the vehicle, including the institution or defence of any claim or legal action;

4.10 Submitting himself/herself, or, if not the driver of the vehicle at the time of the incident, the driver of the vehicle at the time of the incident, to a lie detector test, if requested by the Company.

4.11 Not allowing any tow truck operator to tow away the vehicle unless authorised to do so by the Company, or the Company’s insurer, and to contact the insurer’s 24/7 call centre on 0800 139 111 to arrange for the vehicle to be towed to a safe and secure location;

4.12 Not admitting or claiming any responsibility or liability for any collision in which the vehicle is involved with any third party.

4.13 Not releasing any party from any liability or potential liability, nor settle any claim or potential claim against, or by any party, nor accept any disclaimer of liability;

4.14 Submitting a certified copy of his/ her driver’s license to the Company within 24 hours of the incident;

4.15 Submitting to the Company any claim, demand, summons or the like immediately on receipt thereof in respect of the incident involving the vehicle;

4.16 Not effecting any repairs to the vehicle, whether mechanical, structural, cosmetic or otherwise, without the prior written consent of the Company.

5.1 The hirer agrees to pay the Company the rental rates together with all other fees and charges opted for, and utilised by the hirer, as stipulated in the schedule up until the vehicle is returned to the Company, in advance, and before delivery of the vehicle to the hirer.

5.2 The hirer shall be liable for all traffic fines, e- toll fees, and any other expenses incurred in respect of the vehicle, irrespective of whether or not the hirer and/or driver was physically in the vehicle at the time. All traffic fines incurred shall be re-directed to the hirer and/or driver of the vehicle for payment thereof.

5.3 All amounts due, owing and payable by the hirer to the Company in terms of this agreement shall be paid without any deduction, demand or set-off whatsoever, and the hirer acknowledges and agrees that he/she shall not be entitled to withhold or defer payment of any amount due to the Company in terms of this agreement for any reason whatsoever.

5.4 The hirer agrees to pay interest to the Company on all overdue amounts at the rate of 2% per month from the due date of payment of any such amount, until the actual date of payment thereof.

5.5 The hirer also agrees to pay to the Company:

5.5.1 the cost to fill up the vehicle with fuel in the event of the hirer not returning the vehicle to the Company with a full tank of fuel, which the hirer is obliged to do when returning the vehicle to the Company at the end of the hire period;

5.5.2 all costs incurred by the Company in repairing any damages sustained to the vehicle as a result of any abuse or misuse of the vehicle, or as a result of the reckless or negligent driving of the vehicle, or in circumstances where such damages are not covered by the Company’s insurer, or the damages sustained are less than R5 000.00.

5.5.3 any loss or damage suffered by the Company in respect of the vehicle where any claim made by the Company with its insurer is repudiated by the Company’s insurer, including the fair, reasonable and necessary costs to repair the vehicle when damaged, and where the vehicle is damaged beyond economic repair, the market value of the vehicle, less the salvage value of the vehicle. Where the vehicle is stolen or hijacked or otherwise lost, and not recovered for a period of 1 month from the theft, hijacking or loss thereof, the market value of the vehicle at the time of the theft, hijacking or loss thereof;

5.5.4 any reconditioning costs incurred by the Company to restore the vehicle to the same good order and condition that it was in when initially delivered to the hirer, including any valet charge to clean the vehicle, if necessary;

5.5.5 any and all insurance excesses payable by the Company to its insurer in respect of any insurance claim approved by the Company’s insurer;

5.6 The Company shall be entitled to deduct from the deposit paid as stipulated in the schedule, and/or the hirer authorises the Company to withdraw from the hirer’s credit card, any and all costs, expenses or damages incurred or suffered by the Company, including but not limited to any refueling charges, insurance excesses and vehicle damages.

5.7 The aforesaid deposit shall be forfeited in the event of a breach of this agreement, use of the vehicle for illegal activities, conveying passengers or goods for reward, failure to return the vehicle on the agreed return date, or if the vehicle is driven by an unauthorised driver. Forfeiture of the deposit is in addition to any other legal rights and remedies available to the Company under the circumstances.

5.8 No interest shall accrue on the deposit paid by the hirer to the Company, and any deposit refunded by the Company to the hirer shall be paid back free of interest.

5.9 The aforesaid deposit shall be refunded without interest if not utilised or forfeited as aforementioned within 7 working days from the date that the vehicle is returned to the Company.

6.1 The Company shall not be liable for any loss or damage suffered by the hirer and/or driver, passenger(s), or any third party whomsoever, whether direct, indirect, consequential or otherwise, arising from the use of the vehicle, including any loss of life, personal injury, loss of, or damage to property or otherwise, howsoever arising, and of whatsoever nature, and whether or not due to any failure of the Company to detect any mechanical or electronic problems with the vehicle, or due to any intentional or negligent act or omission on the part of the Company

6.2 The Company is accordingly indemnified by the hirer and/or driver against any claim of any nature whatsoever, and howsoever arising, connected with, or pursuant to the use or possession of the vehicle by the hirer and/or driver.

7.1 The company shall insure the vehicle comprehensively with its insurers for the duration of this agreement, and submit any claim to its insurers in respect of any loss of, or damage sustained to the vehicle while in the hirer’s possession, where such claim exceeds the sum of R5 000.00.

7.2 The items listed below are excluded from the insurance cover provided in respect of the vehicle, and if the loss of, damage to, or destruction of the vehicle is as a result of any of the following:

7.2.1 Loss or damage to property left in the vehicle;

7.2.2 Damages due to consequential loss;

7.2.3 Anything that will be paid for under the Road Accident Fund;

7.2.4 Bodily injury, death, or loss of support;

7.2.5 Damage to, or loss of the vehicle in an area governed by the Emergency Regulations promulgated from time to time in the Republic of South Africa in terms of any applicable legislation, or any area where civil unrest is prevalent;

7.2.6 Incidents that occur outside of the Republic of South Africa, and including the indemnification of other parties;

7.2.7 Where the vehicle is lost or damaged by or through any act of a political nature, and as more specifically defined by the South African Special Risks Insurance Association, the cost of any such loss or damage shall be the sole responsibility of the hirer, for the hirer’s own account, and shall be recovered by the Company from the hirer;

7.2.8 Where the vehicle is used or dealt with in breach of, or contrary to the terms and conditions of this agreement;

7.2.9 Where the vehicle is used or dealt with in breach of, or contrary to the provisions of the insurer’s policy terms and conditions;

7.2.10 Where the vehicle is damaged, stolen, hijacked or destroyed, and a person other than the hirer and/or his/her authorised driver was driving the vehicle, alternatively where the driver of the vehicle was not in possession of a valid, unendorsed driver’s license, and/or where the driver was under the age of 18 years old;\

7.2.11 Where the vehicle is damaged, lost, stolen or hijacked due to any abuse or misuse of the vehicle, the reckless and/or negligent driving of the vehicle, the vehicle driven contrary to, or in breach of any legislation, the vehicle being unroadworthy at the time of the incident, the vehicle is driven on terrain not suitable for the vehicle, or in conditions not suitable for the vehicle, or where the vehicle is driven contrary to, or in breach of the vehicle manufacturer’s warranty or owner’s manual;

7.2.12 Where the vehicle is damaged, lost, stolen or hijacked due to any breach of the National Road Traffic Act and Regulations promulgated thereunder;

7.2.13 If the hirer or driver leaves the keys for the vehicle, or ignition keys in or on the vehicle;

7.2.14 If the vehicle exceeds its registered carrying capacity for people or cargo;

7.2.15 If the driver of the vehicle was under the influence of alcohol, intoxicating substances, or any other substance which would impair the ability of the driver to drive the vehicle under the circumstances.

7.3 The vehicle must only be towed by the insurer’s dedicated towing service who will assist in the event of an accident, and which is to be arranged by calling the insurer’s 24/7 call centre on 0800 139 111. The hirer shall be liable for any and all towing, storage and other costs and charges incurred in respect of the vehicle, should the vehicle either be abandoned at the scene of the incident and/or towed away by an unauthorised towing service provider.

7.4 In the event of the Company’s insurer accepting and approving any insurance claim submitted in respect of the vehicle, the hirer shall be liable to pay the Company the following insurance excesses:

7.4.1 Driver under the age of 25 years of age: Liability amount per incident: R2500.00;

7.4.2 No third party involved (single vehicle accident): Liability amount per incident: R2500.00;

7.4.3 Second incident within 12 months, excluding windscreen repair incidents: Liability amount per incident: R2 500.00.

7.5 After the accident, loss, destruction, theft or hijacking of the vehicle, the hirer shall:

7.5.1 comply fully with the provisions of clause 4 above;

7.5.2 complete, sign and lodge with the Company its insurer’s Incident Report in the format required by the Company’s insurer, together with all information and documentation requested, within 3 days from the aforesaid accident, loss, theft, destruction or hijacking of the vehicle;

7.5.3 comply with any instructions given to him/her by the Company or the Company’s insurer; and

7.5.4 not repair the vehicle unless and until authorised in writing by the Company or its insurer to do so.

Should the hirer commit a breach of any terms or conditions of this agreement, all of which are deemed material, or commit any act of insolvency, or have made any incorrect or misleading statements or representations to the Company and/or its insurer, then upon such happening, and without prejudice to any other rights which the Company may have against the hirer, to claim damages or otherwise, the Company shall have the right, without notice, to cancel this agreement forthwith, in which event the hirer shall be obliged at his/her cost and expense to return the vehicle to the Company, and forthwith to pay all amounts which at date of cancellation are due, owing and payable to the Company.

9.1 This agreement contains the entire agreement concluded between the parties, and no cancellation or variation of this agreement, including this clause, shall be of any force or effect unless reduced to writing and signed by the parties to this agreement. 9.2 Neither party will have any right or remedy arising from any undertaking, promise, warranty or representation not included in this agreement, unless recorded in writing and signed by the hirer and the Company. 9.3 No relaxation of the terms and conditions of this agreement, and no indulgence which one party may grant the other, will in any way operate as an estoppel against the former party, or be deemed to be a waiver of its rights, or in any other way limit, alter or prejudice those rights.

9.4 The hirer consents to the jurisdiction of the Magistrate’s Court, should the Company at its sole election decide to proceed with legal action or application in a Magistrate’s Court, not withstanding the fact that the amount involved exceeds the jurisdiction of the Magistrate’s Court.

9.5 The hirer shall not be entitled to cede or assign any of his/her rights or obligations under this agreement, or to rent, or part with possession of the vehicle.

9.6 The hirer chooses the physical address specified in the schedule as his/her chosen domicilium citandi et executandi (his/her nominated address for delivery and service of all notices and legal processes).

9.7 The hirer consents to the Company supplying his/her consumer credit information to any credit bureau, and in this regard:

9.7.1 The hirer acknowledges that any information regarding the non-compliance of the terms and conditions of this agreement may be provided to any credit bureau;

9.7.2 The Company is entitled to obtain a credit profile and possibly credit scores on the credit worthiness of the hirer from any credit bureau.

9.8 The cost of fuel and lubricants are not included in the rental to be paid by the hirer to the Company in terms of this agreement.

9.9 The hirer and/or driver shall not tamper with the vehicle’s kilometer indicator (odometer).

9.10 Time shall not be of the essence insofar as delivery of the vehicle to the hirer is concerned, and while the Company shall endevour to deliver the vehicle timeously to the hirer, the Company shall not be liable for any loss or damage suffered by the hirer as a result of any late delivery of the vehicle.

9.11 Not withstanding anything else contained in this agreement, and irrespective of the rental period, the hirer agrees and undertakes to return the vehicle to the Company on written demand, who shall then forthwith return the vehicle to the Company, and who shall not have any claim or right of action against the Company for any loss or damage suffered by virtue of the premature unilateral cancellation of this agreement.

9.12 The hirer shall be liable to pay all legal costs incurred by the Company as a result of any breach of this agreement by the hirer on the attorney and client scale, including any tracking and recovery costs and collection commission.

9.13 The hirer acknowledges, warrants, and agrees that:

9.13.1 He/she is a customer of the SMG Group; and

9.13.2 He/she has elected to hire the vehicle from the Company while either waiting for delivery of any vehicle purchased from the SMG Group, or waiting for the SMG Group to service, maintain or repair his/her own vehicle, or by virtue of the SMG Group being in possession of his/her vehicle for any other purpose, with the result that the hirer requires the use of the vehicle,

9.14. The hirer acknowledges and agrees that he/she shall under no circumstances be entitled to hold the vehicle to ransom and refuse to return the vehicle to the Company as a result of any grievance or dispute which the hirer may have with the SMG Group in respect of its own vehicle which it has purchased from the SMG Group, or which has been serviced, maintained or repaired by the SMG Group.

9.15 The hirer nominates its physical and email addresses set out in the schedule as its chosen domicilium citandi et executandi address for service of all notices and legal processes pertaining to this agreement (nominated address).

9.16 Each of the provisions of this agreement shall be considered as separate terms and conditions. In the event that this agreement is affected by any legislation or any amendments thereto, or if the provisions herein contained are by virtue of such legislation or otherwise held to be illegal, invalid, prohibited or unenforceable, then any such provisions shall be ineffective only to the extent of the illegality, invalidity, prohibition or unenforceability, and each of the remaining provisions hereof shall remain in full force or effect as if such illegal, invalid, prohibited or unenforceable provision was not a part thereof.

9.17 In the event of this agreement being signed for and on behalf of the hirer, the signatory to this agreement warrants that he/she does so for and on behalf of the hirer, and that he/she is duly authorised to do so