Devin Flesch July 2012 BRANDING RULES

Devin Flesch July 2012 BRANDING RULES

Salma Munshi/Lee-Anne Groener DISCLAIMERS CONTRACT VS CONSTITUTION

DISCLAIMER NOTICES

DURBAN S WATER WONDERLAND (PTY) LTD V BOTHA & ANOTHER SCA (27 NOVEMBER 1998)

DISCLAIMER The amenities which we provide at our amusement park have been designed and constructed to the best of our ability for your enjoyment and safety. Nevertheless we regret that the management, its servants and agents, must stipulate that they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever whether arising from negligence or any other cause howsoever which is suffered by any person who enters the premises and/or uses the amenities provided.

COURT S DECISION Disclaimers must: Be clear and unambiguous Not be vague and remote Apply to the facilities Expressly exempt the owner from liability Be prominently displayed

COURT S DECISION In this case: The disclaimer was clear and unambiguous and applied to the situation The disclaimer was on the ticket office windows. It was prominently displayed, readily visible and legible The owner took reasonable steps to bring this disclaimer to the attention of visitors

COURT S DECISION If the visitor read the terms of the notice, there was consensus and a contract was established If she did not read the notice and still entered the premises, the owner was entitled to assume that she had agreed to be bound by the contract (there was quasimutual consent ) Mrs Botha entered the park. Her conduct indicated acceptance of the contract The disclaimer could be incorporated into the contract between the amusement park and Mrs Botha

COURT S DECISION The amusement park was not liable for damages

AFROX HEALTHCARE BPK V STRYDOM SCA (31 MAY 2002)

DISCLAIMER (Translated from Afrikaans) absolved the hospital and/or its employees and/or agents from all liability and indemnified them from any claim instituted by any person (including a dependant of the patient) for damages or loss of whatever nature (including consequential damages or special damages of any nature) flowing directly or indirectly from any injury (including fatal injury) suffered by or damage caused to the patient or any illness (including terminal illness) contracted by the patient whatever the cause/causes are, except only with the exclusion of intentional omission by the hospital, its employees or agents

STRYDOM CHALLENGED THE VALIDITY OF THE DISCLAIMER Not in the public interest Conflicted with principles of good faith Unusual - the admissions clerk should have brought it to his attention Infringed on his Constitutional right to health care He just signed the document he did not agree to the clause and there was no contract

COURT S DECISION Exemption clauses are not contrary to public policy The public interest dictates that where parties enter a contract freely and voluntarily such contracts must be enforced Good faith is an abstract principle Court could not rely on it Failure to read the document before signing it did not mean that he was not bound to the contents (there was quasimutual assent )

COURT S DECISION The clause did not encourage negligent conduct of medical staff The right to health care in Section 27(1)(a) of the Constitution was not a guarantee The clause did not pose an obstacle to his right to health care The Court appreciated the impact of the Constitution but found that the Constitution did not have retrospectivity

COURT S DECISION The hospital was not liable for damages

REYNEKE V INTERCAPE FERREIRA MAINLINER (PTY) LTD GRAHAMSTOWN HIGH COURT (23 MAY 2013)

DISCLAIMER All persons entering Intercape coach/bus and/or property owned by Intercape or under its control, do so entirely at their own risk and the liability of Intercape is excluded for any loss or damages (including consequential or special damages or loss of profits), loss of life, bodily injury or damage to or loss of property, of whatsoever nature and however so caused and whether or not caused by any form of negligence of Intercape, its directors, its officers, servants, agents, or any other person acting on behalf of Intercape, arising out of or connected in any way with the conveyance or non-conveyance by Intercape of any passenger or persons and/or the property of any passenger or persons.

COURT S DECISION The terms of the disclaimer were clear and unambiguous Intercape did what was reasonably sufficient to bring the disclaimer to Mrs Reyneke s attention Mrs Reyneke saw the fine print but decided not to read it She signed the register as she entered the bus and Intercape was entitled to assume that she had agreed to Intercape s terms and conditions ( Quasi-mutual consent ) It was not against public policy to enforce the disclaimer

COURT S DECISION Intercape was not liable for damages

NAIDOO V BIRCHWOOD HOTEL GAUTENG SOUTH HIGH COURT JOHANNESBURG (3 APRIL 2012)

DISCLAIMER (Found on the back of the hotel register card) The guest hereby agrees on behalf of himself and the members of his party that it is a condition of his/their occupation of the Hotel that Hotel shall not be responsible for any injury to, or death of, any person or the loss or destruction of or damage to any property on the premises, whether arising from fire, theft or any cause, and by whomsoever caused or arising from the negligence (gross or otherwise) or wrongful acts of any person in the employment of the hotel.

HOTEL S ARGUMENT Naidoo was negligent he interfered with the gate The disclaimers exempted the hotel from negligence They were prominently displayed, Naidoo read and accepted them and there was a contract between Naidoo and the hotel

COURT S DECISION Court not persuaded that disclaimers were displayed as alleged Naidoo was not contributorily negligent The language used in the disclaimer was straightforward Naidoo admitted to being aware of the clause, so there was quasi-mutual assent

COURT S VIEW ON DISCLAIMERS Prior to the Constitution, parties could contract out of liability for negligently causing injury or death But not clear that such clauses will stand up to Constitutional scrutiny While a contractual autonomy is important, an exemption clause might offend the provisions of the Constitution The ConCourt has indicated that if a term in a contract seeks to deprive a party of judicial redress, such a term is contrary to public policy and therefore to the Constitution

COURT S DECISION Naidoo was just leaving the hotel not a dangerous activity In the circumstances of this case, the enforcement of the disclaimer would result in an injustice The hotel was found liable

KLASSEN V BLUE LAGOON HOTEL AND CONFERENCE CENTRE EASTERN CAPE HIGH COURT GRAHAMSTOWN(12 SEPTEMBER 2014)

Exemption clause (Found at the foot of the registration card) The guest hereby agrees that the hotel shall not be responsible for any injury to or death of any person or harm caused to them or loss or destruction or damage to property howsoever caused, whether arising from fire, theft or any cause.

COURT S VIEW ON THE EXEMPTION CLAUSE Accepted that Klassen checked in at reception, completed and signed the registration card and that the card contained the exemption clause Referred to the caveat subscriptor rule, the person who signs a contract binds him/herself to the contents Took cognisance of the Naidoo judgment Held that the Afrox case was a Supreme Court of Appeal case disclaimer clause was similar to this one Court found it was not contrary to public policy

COURT S DECISION Decided to follow the Afrox judgment Held that the parties, as consenting, entered into the agreement freely and voluntarily Found in favour of the hotel and dismissed Klassen s claim with costs.

CONSUMER PROTECTION ACT The Consumer Protection Act does not forbid the use of indemnities and disclaimer notices According to Section 49 of the Act such a notice must be brought to the attention of the consumer; be in plain language; and give consumer adequate opportunity to comprehend such notice Insurers should take steps to ensure that the insured complies appropriately with the Consumer Protection Act

CONCLUSION In spite of the Constitution and the Consumer Protection Act disclaimers remain relevant Continue to display disclaimers and include disclaimers in your contracts Ensure that disclaimer notices are in plain and simple language that the average consumer for the specific service will understand Where possible, if disclaimer is in pre printed form (contract or bus ticket) ensure that it is brought to attention of consumer and let person initial next to it

Salma Munshi/Lee-Anne Groener LITIGATION +27 41 396 9200 salmam@jgs.co.za THANK YOU

DISCLAIMER These slides set out general legal principles and are for information purposes only. The contents should not considered as legal advice. Prior to using any of the information in the presentation, we recommend that you should obtain legal advice. For more information on this presentation, please contact Salma Munshi on 041 396 9257 or email at salmam@jgs.co.za.