Author: James Donald, Candidate Attorney

In an April 2021 judgement, the Eastern Cape high court held that a standard form guest indemnity used by a game reserve was not in conflict with applicable provisions in the Consumer Protection Act 2008 (the CPA). The plaintiff was a tourist to South Africa, on holiday at a local game reserve. Upon returning from a game drive after dark and on her walk to the restaurant, she did not see the swimming pool and stepped into the pool with her right leg. This resulted in a fracture of her right femur and she instituted a claim under various heads of damages.

Although the court found that the game reserve was not negligent, it went on to consider the plaintiff’s allegation that the signed indemnity was not enforceable on the basis that it was in conflict with certain provisions of the CPA and that it was contrary to public policy.

The plaintiff’s primary contention was that the indemnity falls within the provision of section 48(2) (a) and (b) of the CPA, which states that a term or condition of a transaction or agreement is unfair, unreasonable or unjust if it is excessively one-sided or the terms are so adverse as to be inequitable.

Significantly, the court held that a consideration of whether the indemnity policy fell within the relevant provisions of the CPA must involve a consideration of the plaintiff’s contention that the indemnity was against public policy. A determination of the fairness of an indemnity policy in terms of section 48(2)(a) and (b) involves the application of the seminal test of Barkhuizen v Napier 2007 (5) SA 323 (CC).

The determination of fairness is a two-part enquiry. One must first ask if the clause is unreasonable, in terms of which one must balance the principle that agreements voluntarily entered into must be kept to against the consideration that all persons have a right to seek judicial redress.

The second part of the enquiry relates to the whether the indemnity should not be enforced based on the circumstances of the case.

The indemnity was held to be neither ambiguous nor unreasonable because there was no unequal bargaining position when the plaintiff had signed it, admittedly voluntarily. The plaintiff was not obliged to holiday at the reserve of the defendant, or any other reserve for that matter.

On the basis of specific circumstances, a plaintiff must show that there is good reason for the indemnity not to apply. In this case, as the plaintiff had prior knowledge of the swimming pool and its position on the deck, it was not considered unreasonable to require adult hotel guests to look where they are going and to exercise care on the premises. Nor was the pool a facility that was subject to a risk of an unusual character that obliged the owners to provide a special warning of the risk for the purposes of section 49 and 58 of the CPA.