In 2026, the Supreme Court of Appeal confirmed that a party cannot rely on broadly worded disclaimers or indemnities to escape delictual liability where those terms are not properly brought to the consumer’s attention or validly agreed.
The appeal arose from a personal injury claim brought by a tourist who fell from a moving safari truck during a guided tour in Botswana. While the vehicle was in motion, the passenger stood up to access a locker inside the truck. A side window dislodged, causing her to fall onto the road and sustain serious injuries.
The tour operator denied liability, relying on two exclusionary provisions. The first was a disclaimer contained in a pre-departure brochure emailed to the passenger’s life partner. The second was a written indemnity form signed by the life partner on the claimant’s behalf shortly before the tour commenced. The operator argued that these documents exempted it from liability and that the life partner had authority to bind the passenger to their terms.
The court rejected these defences. While confirming that exclusionary clauses are enforceable in principle, the court reiterated that the party relying on such clauses bears the onus of proving that a binding agreement was concluded, that the terms were properly incorporated, and that they clearly cover the conduct complained of.
On the facts, the court found that the passenger had not authorised her life partner to bind her to any disclaimer or indemnity. She had no knowledge of the indemnity form, was not present when it was signed, and had not consented to the exclusion of the operator’s liability. Arguments based on implied authority, ostensible authority, ticket-case principles, and quasi-mutual assent were rejected.
The brochure disclaimer also failed. Although it referred generally to the operator not accepting responsibility for injury or loss, it appeared under an “Insurance” heading and did not clearly or conspicuously alert the consumer to the exclusion of delictual liability for negligence. The brochure further indicated that a separate indemnity would still need to be signed before departure, reinforcing that no binding exclusion had yet been agreed.
The court also held that the Consumer Protection Act applied, notwithstanding that the booking and payment occurred outside South Africa. Once the passenger presented herself in South Africa to participate in the tour, a consumer transaction arose within South Africa. Sections 49 and 58 of the CPA therefore required any limitation of liability or notice of risk to be communicated in plain language and in a conspicuous manner, requirements that were not met. The clauses relied upon did not clearly and unequivocally exclude liability for the negligent conduct alleged. Exemption clauses are interpreted restrictively, and general wording is insufficient to absolve a supplier from liability for negligence.
[Tourvest Holdings (Pty) Ltd v Murti (806/2024) [2026] ZASCA 8]