- The Supreme Court of Appeal ruled that Tourvest could not rely on disclaimers or an indemnity signed by a passenger’s partner to escape liability for serious injuries sustained during a safari tour.
- The court found that the disclaimers were not properly brought to the passenger’s attention and failed to meet the requirements of the Consumer Protection Act.
- The judgment reinforces that tour operators bear a strict duty to obtain clear, informed consent from each participant before relying on exclusionary clauses.
The Supreme Court of Appeal has ruled that a tour operator cannot escape liability for a passenger’s injuries by relying on vague disclaimers or an indemnity signed without the passenger’s knowledge.
In a firm rebuke to Tourvest Holdings, the court confirmed that consumer protection law requires clear, informed, and personal consent before liability can be excluded.
The ruling arises from injuries suffered by Anu Rekha Murti during a Southern African safari tour operated by Tourvest Holdings (Pty) Ltd, trading as Drifters Adventours. The court dismissed Tourvest’s appeal against a High Court decision that allowed Murti’s delictual damages claim to proceed, holding that the tour operator failed to establish any binding waiver of liability.
A fall from a moving safari truck
Murti, an Australian resident, was injured in November 2018 while travelling in a safari truck in Botswana as part of a multi-country tour that began in Cape Town. The truck had been converted to carry passengers and was fitted with lockers at the rear, which Tourvest actively promoted as accessible even while the vehicle was in motion.
While the truck was driving, Murti stood up from her seat to access her locker. She lost her balance, fell against a side window, and the window dislodged from its frame. She was thrown from the moving vehicle onto the tar road and sustained serious injuries.
Murti later sued Tourvest in the Gauteng High Court, alleging negligence in the maintenance of the vehicle, the securing of the window, the failure to warn passengers of the dangers of moving inside the truck while it was in motion, and the manner in which the vehicle was driven.
Rather than contesting negligence at this stage, Tourvest relied on two disclaimers which it claimed excluded all liability.
Two disclaimers, neither binding
The first disclaimer appeared in a brochure sent to Murti’s partner before the tour. It stated that Tourvest did not accept responsibility for any loss, injury, damage, accident, or fatality. The second disclaimer was contained in an indemnity form signed not by Murti herself, but by her life partner.
Writing for a unanimous court, Judge PA Koen found that neither disclaimer bound Murti. The brochure disclaimer was placed under a heading titled “Insurance” and appeared as part of the general information. The court held that an ordinarily alert consumer could not reasonably be expected to understand that this clause amounted to a waiver of all delictual claims, particularly claims arising from negligence.
Importantly, the brochure itself stated that passengers would still be required to complete and sign a “full indemnity” before departure. This, the court said, showed that Tourvest never intended the brochure disclaimer to operate as a final or binding exclusion of liability.
The indemnity form proved even more problematic. Although Murti’s details appeared on the form, the evidence showed that she neither signed it nor knew of its existence. The court accepted her version that her partner signed the form without her knowledge or authority.
No authority to sign away another adult’s rights
Tourvest argued that Murti’s partner had authority to bind her, either expressly, impliedly, or by virtue of their relationship and the fact that he arranged and paid for the tour.
The Supreme Court of Appeal rejected this outright. Murti was an adult acting in her own right. There was no evidence that she authorised her partner to waive her legal rights or sign an indemnity on her behalf. Nor could such authority be inferred simply because he organised the trip.
The court stressed that signing away liability is a serious legal act that requires clear authorisation. A life partnership, payment of costs, or prior travel arrangements do not give one person carte blanche to bind another to an exclusionary clause.
Consumer Protection Act applies
Tourvest further contended that the Consumer Protection Act did not apply because the booking was made in Australia and paid for by Murti’s partner. This argument was also dismissed.
The court held that Murti became a consumer when she presented herself in Cape Town to commence the tour and accepted the benefit of the agreement concluded in her favour. The tour services were supplied in South Africa, and the transaction therefore fell squarely within the scope of the Act.
Under Section 49 of the Consumer Protection Act, any clause that limits liability or requires a consumer to assume risk must be drawn to the consumer’s attention in a conspicuous manner, in plain language, and before the activity begins. Where the activity carries a risk of serious injury or death, the consumer must specifically assent to the clause.
Tourvest failed to meet these requirements. As a result, even if Murti had been vaguely aware that disclaimers existed, they would still have been unenforceable.
No tacit consent, no quasi-mutual assent
The court also rejected arguments based on tacit consent, the so-called “ticket cases”, and quasi-mutual assent. Murti did not conduct herself in a manner that could reasonably have led Tourvest to believe she had agreed to waive her rights.
She was unaware of the indemnity form; it was not presented to her, and there was no representation on her part that her partner had authority to bind her. In these circumstances, Tourvest could not rely on any doctrine to fill the gap left by its own failure to secure proper consent.
A warning to tour operators
Although not decisive to the outcome, the court went further and expressed serious concern about the fairness of disclaimers in circumstances where Tourvest actively promoted movement inside a moving safari truck.
Judge Koen indicated that even a properly signed disclaimer might have struggled to withstand scrutiny on grounds of public policy and constitutional values, particularly where a tour operator encourages conduct that carries obvious and serious risks.
The appeal was dismissed with costs, leaving Tourvest exposed to Murti’s damages claim.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
