This blog is co-authored by Kamogelo Madiba, a candidate attorney.

The approach of the Western Cape High Court in a January 2025 judgment in Morrison v MSA Devco diverges from established legal principles regarding the enforceability of disclaimer notices.

The claimant sustained injuries after slipping on a wet floor at a McDonald’s restaurant owned by the defendant. In contesting delictual liability for the claimant’s injuries, the defendant relied on a disclaimer notice at the entrance of the restaurant, which was intended to absolve it of liability for any injuries sustained on the premises.

The court dismissed the disclaimer defence, saying that a disclaimer notice is not an automatic legal shield and must be evaluated in the context of the overall safety management of the premises. According to the court, reliance on a disclaimer notice is conditional on proof that the defendant took reasonable steps to guard against the incident. The court also ignored the defendant’s valid argument that disclaimer notices are permitted by the Consumer Protection Act, 2008 and enforceable if they are written in plain language, drawn to the consumer’s attention in a conspicuous manner before the transaction or activity, and the consumer is given an adequate opportunity to comprehend the notice. The court’s stated intention was to “reshape how South African courts view disclaimer notices”.

In the well-known case of Durban’s Water Wonderland (Pty) Ltd v Botha and Another, the SCA decided that if the language of a disclaimer notice clearly and unambiguously exempts a defendant from liability, it must be enforced if the defendant did what was reasonably necessary to bring it to the claimant’s attention. If there is ambiguity, the language must be construed against the defendant.

The decision in Durban’s Water Wonderland has been approved in many subsequent cases, including by the SCA in Afrox Healthcare Bpk v Strydom. There is an appreciation that judgments such as Naidoo v Birchwood Hotel, where the court questioned whether disclaimer clauses are constitutional, should be approached with caution.

And, although there are cases such as Duffield v Lillyfontein School and Others and Minister of Education and Culture (House of Delegates) v Azel and Another which found that the enforceability of a disclaimer notice can be conditional upon the defendant taking certain steps, the disclaimer notices in those cases themselves alluded to those steps with phrases such as “although stringent measures will be in place” or “ in the knowledge that [the person] will take all reasonable precautions for… safety and welfare”. There was no such condition in Morrison.

If the approach to disclaimer notices in Morrison were to be accepted, there would be little purpose to them. The approach also runs counter to previous SCA decisions, which were binding on the court.

The Morrison judgment is available here. It is not known if it has been appealed. We must all hope that it has, to restore certainty to the issue.

For more on the Morrison judgment, see a previous blog on other aspects of the decision here.