THE FIRE, THE BURGLARY AND THE PRAETORIAN EDICT DE NAUTIS, CAUPONIBUS ET STABULARIIS

Abstract

The travel and tourism industry is the world’s largest industry. This industry is also seen as one of the priority growth areas for the South African economy. In South Africa travel and tourism activity is expected to grow at a rate of 4.8% per annum in real terms between 2007 and 2016. This will mean an increase in travel and tourism economic activity in South Africa from R198.1 billion in 2006 to R511.5 billion in 2016. Based on these figures it is estimated that the travel and tourism industry will contribute 9.3% of the South African Gross Domestic Product (“GDP”) by 2016. One of the main benefits of the travel and tourism industry is its potential for attracting foreign currency. Already, tourism is the fourth largest foreign exchange earner in South Africa. Furthermore, the travel and tourism industry has major potential for generating employment. It is expected that by 2016 the travel and tourism industry will provide 1.5 million jobs (or one in every 11.6) in South Africa. South Africa’s travel and tourism industry has experienced significant growth in the last decade. This resulted in a substantial number of guest houses and bed-and-breakfast establishments opening their doors in every city, town and in between. This growth is evidenced, for example, in that South Africa is well on its way to reaching its target of attracting 10 million foreign visitors per year with a reported 7.6% increase in foreign visitors in the first five months of 2008 to a total of 3 983 061. With the rise in travel and tourism activity, it can be safely forecasted that there will be a rise in litigation revolving around the respective rights of tourists and tourist service providers. In a nascent travel and tourism law jurisprudence, each case decided in this regard ought to be carefully considered by both legal practitioners and the industry. A matter came before the then Cape High Court during 2002, based on an action whose (continued) existence in South African law had been questioned more than eighty years earlier. The case was Gabriel v Enchanted Bed and Breakfast (2002 2 SA 597 CPD (hereinafter the “Gabriel case”)). Just to confirm that this was not to be an isolated reliance upon an almost obsolete remedy, the Gabriel case was followed in 2005 by Roy v Basson NO (2007 5 SA 84 CPD (hereinafter the “Roy case”)). The legal remedy in question is the Praetorian edict de nautis, cauponibus et stabulariis. (Considering the fairly unique nature of the legal ground under consideration in these two cases it is somewhat surprising to note that the court in the Roy case did not refer to the Gabriel case at all). Both these cases concern the liability of the proprietor of an inn in terms of the Praetorian edict de nautis, cauponibus et stabulariis and are therefore of particular relevance for the South African travel and tourism industry. It is therefore opportune to consider the Praetor’s edict and its application anew.