Brief Summary

Delict — Claim for damages — Respondent injured after falling from moving safari truck operated by appellant — Appellant relying on disclaimers in brochure and indemnity signed by respondent's partner — High court finding disclaimers ineffective and respondent not bound — Appeal dismissed — Court affirming that disclaimers did not exempt appellant from liability due to lack of proper authority and clarity.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal to the Supreme Court of Appeal of South Africa against an interlocutory-type determination made in a delictual action, namely the adjudication of a separated issue concerning the enforceability and effect of alleged disclaimers/exemption clauses relied upon by a tour operator to avoid delictual liability for bodily injuries.

The appellant was Tourvest Holdings (Pty) Ltd, trading as Drifters Adventours (referred to in the judgment as Drifters). The respondent was Ms Anu Rekha Murti (Ms Murti), a tour participant who sustained injuries while travelling on Drifters’ safari truck.

In the Gauteng Division of the High Court, Johannesburg, Ms Murti instituted an action for delictual damages arising from injuries suffered when she fell from a moving safari truck in Botswana. Drifters pleaded that it was exempt from liability by reason of two disclaimers: one contained in a brochure (the “first disclaimer”) and another contained in a tour registration/disclaimer/indemnity form (the “second disclaimer”). The High Court ordered that the disclaimer issue be determined separately, found that Ms Murti was not bound by the disclaimers, and ordered Drifters to pay the costs of the separated issue.

The appeal concerned whether the High Court erred in rejecting Drifters’ reliance on the disclaimers—raising questions about incorporation, notice, agency/authority, quasi-mutual assent (the “ticket cases”), statutory consumer protection requirements, and (in the background) public policy/constitutional values relevant to exemption clauses.

2. Material Facts

Ms Murti was injured on 17 November 2018 while travelling as a passenger on a Drifters safari truck in Botswana. The truck had been converted to carry passengers and contained private lockers in the rear passenger compartment. Drifters promoted the lockers as being accessible to passengers even while the truck was moving. While the truck was in motion, Ms Murti left her seat to access her locker. She lost her balance, fell against a side window, the window fell out of its frame, and she fell through the opening onto the tar road, sustaining injuries.

Ms Murti’s life partner, Mr Brendan Luke Hannon (Mr Hannon), arranged the safari as a surprise gift. On 18 February 2018, he made an online booking through an Australian travel agent (Destination International Holidays (DIH)). He later became aware the tour was operated by Drifters when he received an email requiring payment, which he made directly to Drifters. A Drifters/Tourvest brochure and an itinerary were attached to the email.

The brochure included (under a heading dealing with “Insurance”) a statement that Drifters did not accept responsibility for “any loss, injury, damage, accident, fatality, delay or inconvenience experienced whilst on tour” and that passengers would be required to complete and sign a “full indemnity” prior to departure. The itinerary stated that clients would, before departure, be required to enter into an agreement regarding booking conditions and general information, and that comprehensive travel insurance was required.

It was common cause that an indemnity form headed “Tour Registration, Disclaimer and Indemnity” existed and that Mr Hannon signed a form containing Ms Murti’s details. Ms Murti’s case was that she did not sign it, did not know of it at the time, and did not authorise Mr Hannon to sign it on her behalf. Drifters’ employee, the driver Mr Innocent Christopher Mathabela (Mr Mathabela), asserted that Ms Murti completed and signed the form herself on 3 November 2018 (before the tour commenced). This factual dispute was material to whether Ms Murti had actual knowledge of, and assented to, the second disclaimer.

The High Court, applying the credibility and probability assessment associated with mutually destructive versions, accepted Ms Murti’s version (corroborated by Mr Hannon) and rejected Mr Mathabela’s version as improbable. In particular, the High Court relied on the variation of signature dates across different participants’ indemnity forms, and the absence of corroborating electronic scanning/transmission evidence that would have supported Drifters’ account. The Supreme Court of Appeal found no basis to interfere with these factual findings, with reference to the deference generally afforded to trial courts on factual and credibility determinations.

On the accepted facts, the indemnity forms were handed out on 4 November 2018 (prior to a Peninsula tour), Ms Murti was not present when the form was handed to Mr Hannon, and Ms Murti did not know that Mr Hannon signed a form for her, nor that it contained an exclusion of liability.

3. Legal Issues

The central legal questions were whether Drifters established, on whom the onus rested, that it had validly contracted out of delictual liability towards Ms Murti through either or both disclaimers.

This required determination of mixed questions of fact (what notice was given; what Ms Murti knew; whether authority existed; whether conduct induced reasonable reliance) and law (requirements for incorporation and enforceability of exemption clauses; the effect of the Consumer Protection Act 68 of 2008; principles of interpretation; and the limits of reliance on quasi-mutual assent in “ticket cases”).

More specifically, the appeal raised the following interlinked issues.

Whether Ms Murti was bound to the first disclaimer in the brochure, including whether it was sufficiently brought to her attention and whether her conduct could support tacit consent or quasi-mutual assent.

Whether Ms Murti was bound to the second disclaimer (indemnity form) by reason of agency (express, implied, or ostensible authority) allegedly conferred on Mr Hannon to sign on her behalf, or by her own conduct.

Whether the Consumer Protection Act 68 of 2008 applied to the tour arrangement and, if so, whether Drifters complied with the CPA’s requirements (particularly section 49, and the related provisions in sections 52(4) and 58) for drawing risk-limiting terms and risky activities to a consumer’s attention.

Whether, assuming incorporation, the disclaimers—properly interpreted—were sufficiently clear to exclude liability for the kind of negligence alleged.

4. Court’s Reasoning

The Supreme Court of Appeal approached the matter by first identifying the applicable principles regarding exemption from liability, then addressing factual questions of knowledge and authority, then the adequacy of notice (both at common law and under the CPA), and finally (in the alternative) the proper interpretation of the disclaimers.

Onus and the contractual nature of exemption from delictual liability

The Court reaffirmed that it is permissible in principle for a person to contractually limit or exclude a right to claim for loss caused by another, but that the party relying on such a clause bears the onus of proving the conclusion of the contract and its terms. The standard is a balance of probabilities, and whether a valid contractual exclusion exists depends on the particular facts.

The Court recognised different pathways by which disclaimer terms may become binding: actual consensus (reading and acceptance), tacit consensus (seeing the notice and appreciating it contains conditions but choosing not to read), and quasi-mutual assent/reliance (even without actually seeing the notice, where conduct reasonably induces the belief that the person assented).

Actual knowledge and authority regarding the indemnity form

The Court treated the question whether Ms Murti knew of and assented to the second disclaimer as turning materially on credibility and probabilities, because the parties presented mutually destructive versions regarding when and by whom the indemnity was signed.

The Court held that the High Court correctly applied the credibility assessment associated with Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA). It accepted that the High Court’s rejection of Mr Mathabela’s version was supported by probabilities (including inconsistent dates on participants’ forms) and by the absence of corroborating documentary evidence that should have been readily available if Drifters’ account were true.

Applying the principle that appellate courts are slow to interfere with trial courts’ factual findings unless clearly wrong, the Court found no basis to disturb the High Court’s findings. On the accepted facts, Ms Murti neither signed the indemnity nor knew of it at the time, and there was no credible evidence that she authorised Mr Hannon to sign it for her. In the absence of knowledge of the form, the Court reasoned, there was no foundation to infer agreement to it or actual authority to sign it.

Adequacy of notification and the Consumer Protection Act 68 of 2008

The Court then addressed whether, even absent actual authority, Ms Murti could be bound through tacit assent or reliance principles, which presuppose that the disclaimer was displayed with sufficient prominence to come reasonably to her attention. It treated this as a factual enquiry leading to a legal conclusion.

A significant component of the reasoning was the application of the Consumer Protection Act 68 of 2008 (CPA). Ms Murti invoked the CPA; Drifters argued it did not apply because booking and payment occurred in Australia and there was therefore no transaction “occurring within the Republic”, and because Ms Murti paid no consideration and conceded no direct contract existed between her and Drifters.

The Court rejected these contentions. It reasoned that the agreement concluded by Mr Hannon with Drifters conferred a benefit on Ms Murti as a third-party beneficiary, and once she accepted the benefits by presenting herself at the start of the tour in Cape Town, Drifters became obliged to supply the service to her. The Court also noted that the indemnity form itself provided (in its “Acceptance” clause) that the place and conclusion of the contract would be taken as South Africa and disputes would be under South African jurisdiction, reinforcing that the contractual relationship with the tour participant was established when the tour commenced in South Africa.

The Court further held that the arrangement remained a transaction involving consideration, even though Ms Murti personally did not pay, because the services were supplied in exchange for consideration paid by Mr Hannon. Consequently, the CPA applied.

Turning to compliance, the Court set out the requirements of section 49 of the CPA: risk-limiting and indemnity terms must be in plain language; their fact, nature, and effect must be drawn to the consumer’s attention conspicuously and before the consumer enters the transaction, begins the activity, or is required to offer consideration; and the consumer must have an adequate opportunity to receive and comprehend them. The Court also referred to section 52(4) (remedies where section 49 is not satisfied) and section 58 (warnings regarding risky activities and facilities, tied back to section 49’s standards).

On Drifters’ own version, the tour exposed participants to risks that could result in serious injury or death, and Drifters explicitly referenced such dangers in the second disclaimer. The Court therefore treated CPA compliance as required. It concluded that Drifters failed to comply with the CPA’s notice requirements: the second disclaimer did not come to Ms Murti’s attention at all; and the first disclaimer, even at common law, was not presented with sufficient prominence.

In relation to the brochure, the Court placed weight on context: the first disclaimer appeared under the heading “Insurance”, which would not reasonably alert a consumer that a sweeping waiver of delictual liability was being imposed. The Court accepted that Ms Murti’s attention, when reading the brochure shortly before departure, was directed to practical matters such as packing requirements rather than to discovering that she was allegedly waiving delictual rights—an approach the Court did not characterise as unreasonable. Moreover, the wording of the first disclaimer itself foreshadowed that a “full indemnity” would still need to be signed prior to departure, indicating that Drifters itself contemplated that the operative exclusion would be dealt with later in a more formal way (which aligned with the later handing out of indemnity forms).

For these reasons, the Court held that Drifters failed, at the threshold, to establish that the disclaimers should reasonably have come to Ms Murti’s attention (and, in the case of the second disclaimer, that it came to her attention at all). It rejected as insufficient the notion that a participant should simply expect disclaimers of this nature and be treated as bound despite inadequate disclosure.

Interpretation of the disclaimers (in the alternative)

Although the Court considered its findings on notice and authority sufficient to dispose of the appeal, it addressed interpretation in the alternative and held that even if the disclaimers applied, they did not exclude liability for Ms Murti’s damages.

The Court applied the established interpretive approach explained in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA), emphasising contextual and purposive reading, objectivity, and preferring sensible meanings. It also noted the contra proferentem principle in cases of ambiguity, with reference to Government of the Republic of South Africa v Fiber Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A).

Consistent with authority on exemption clauses, the Court reiterated that disclaimers must be construed restrictively, and if a party wishes to contract out of liability it must do so in clear and unequivocal terms. In support of that approach the Court referred (among others) to Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited [2023] ZACC 20; 2023 (6) SA 327 (CC); 2023 (9) BCLR 1054 (CC); (2023) 44 ILJ 2391 (CC) (noting that the relevant summary was expressed in a minority judgment, but treating the principles described as trite).

Applying these interpretive principles, the Court reasoned that the first disclaimer was too wide and vague, and in any event contemplated that a separate indemnity agreement would be concluded prior to departure. It also did not exclude negligence in unambiguous terms, including negligent driving by an employee, and thus did not clearly cover the kind of negligence alleged.

Implied authority, “ticket cases”, quasi-mutual assent, and ostensible authority

The Court then addressed Drifters’ reliance on implied authority and quasi-mutual assent, and its comparisons to “ticket cases” such as Durban’s Water Wonderland (Pty) Ltd v Botha and Another [1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA) and Reyneke v Intercape Ferreira Mainliner (Pty) Ltd (108/2012) [2013] ZAECGHC 47 (23 May 2013).

On the first disclaimer, the Court held there was no evidence that Ms Murti agreed to or accepted it, and no conduct by her amounting to a representation that she assented to the exemption. It summarised the reliance/quasi-mutual assent doctrine with reference to Smith v Hughes (1871) LR 6 QB 597, Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), and Van Huyssteen NO and Another v Mila Investment and Holding Company (Pty) Ltd [2017] ZASCA 84, and concluded that the necessary misrepresentation (by conduct) on Ms Murti’s part was absent.

On the second disclaimer, the Court held that tacit authority could not be inferred merely from the relationship between Ms Murti and Mr Hannon, his role in arranging the tour, his payment for it, or their past travel arrangements. Ms Murti was an adult individual, and the evidence did not establish that she gave Mr Hannon an open mandate to bind her to an exclusionary clause of whatever breadth. There was also no basis for ostensible authority, because Ms Murti made no representation that Mr Hannon was authorised to sign the indemnity on her behalf.

The Court distinguished Reyneke and Durban’s Water Wonderland on their facts, emphasising that in those matters the relevant plaintiff or representative had authorised the ticket purchase or the circumstances supported incorporation of the exclusion in a way not present here, particularly given Ms Murti’s lack of knowledge of the indemnity form and the inadequacy of notice.

Public policy / contra bonos mores (obiter)

The Court briefly addressed the public policy dimension, noting that the question whether the disclaimers were contra bonos mores had not received much attention in the appeal. It nonetheless indicated that if it had been determinative, the Court would have been inclined to find that disclaiming liability in circumstances where Drifters promoted passenger movement to lockers while the vehicle was in motion would be contrary to public policy and mores, unfair, and unenforceable. This was not, however, the decisive basis for the outcome.

5. Outcome and Relief

The Supreme Court of Appeal dismissed the appeal. The High Court’s determination that Ms Murti was not bound by the disclaimers (and therefore that Drifters was not exempt from delictual liability on that basis) remained undisturbed.

The Court ordered that the appeal be dismissed with costs, thereby confirming the costs consequence against Drifters in the appeal proceedings.

Cases Cited

Inter-Continental Finance and Leasing Corporation (Pty) Limited v Stands 56 and 57 Industria Limited and Another 1979 (3) SA 740 (W).

Durban’s Water Wonderland (Pty) Ltd v Botha and Another [1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA).

Reyneke v Intercape Ferreira Mainliner (Pty) Ltd (108/2012) [2013] ZAECGHC 47 (23 May 2013).

Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).

First National Bank of SA limited v Rosenblum and Another [2001] 4 All SA 355 (A); 2001 (4) SA 189 (SCA).

Drifters Adventure Tours CC v Hircock [2007] 1 All SA 133 (SCA); 2007 (2) SA 83 (SCA).

Stocks & Stocks (Pty) Ltd v T J Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A).

George Fairmead Hotel (Pty) Ltd v D’urban 1958 (2) SA 465 (A).

Central South African Railways v James 1908 TS 221.

Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2010 (1) SA 8 (GSJ).

Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).

R v Dhlumayo and Another 1948 (2) SA 677 (A).

Tofa v S (20133/14) [2015] ZASCA 26 (20 March 2015).

S v Francis 1991 (1) SACR 198 (A).

Smith v Hughes (1871) LR 6 QB 597.

Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A).

Van Huyssteen NO and Another v Mila Investment and Holding Company (Pty) Ltd [2017] ZASCA 84.

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA).

Government of the Republic of South Africa v Fiber Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A).

Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited [2023] ZACC 20; 2023 (9) BCLR 1054 (CC); (2023) 44 ILJ 2391 (CC); 2023 (6) SA 327 (CC).

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).

AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC).

Legislation Cited

Consumer Protection Act 68 of 2008 (in particular sections 1, 5(1), 22, 49, 52(4), and 58).

The Constitution of the Republic of South Africa, 1996 (referenced in relation to public policy and constitutional values informing enforceability).

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The Supreme Court of Appeal held that Drifters failed to establish that Ms Murti was bound by either the brochure disclaimer or the indemnity-form disclaimer. On the accepted facts, Ms Murti had no actual knowledge of the indemnity form and did not authorise Mr Hannon to sign it on her behalf, and there was no basis to infer tacit or ostensible authority.

The Court further held that the disclaimers were not adequately drawn to Ms Murti’s attention for purposes of incorporation at common law, and that the Consumer Protection Act 68 of 2008 applied to the transaction and imposed notice requirements with which Drifters did not comply. In addition, even if the disclaimers were assumed to apply, the Court held that, properly interpreted, they did not exclude liability for Ms Murti’s damages in the circumstances presented.

The appeal was dismissed with costs.

LEGAL PRINCIPLES

Contractual exemption from delictual liability is recognised in South African law, but the party relying on an exemption clause bears the onus of proving, on a balance of probabilities, the existence of a binding agreement incorporating the disclaimer and establishing its terms.

A disclaimer may be incorporated through actual consensus, tacit consensus, or quasi-mutual assent, but these mechanisms presuppose that the disclaimer was displayed or communicated with sufficient prominence to reasonably come to the attention of the person against whom it is enforced, and that the person’s conduct justifies the inference of assent or reasonable reliance.

Where a defendant relies on agency to bind an injured party to an exemption clause, the authority must be shown to be express, implied (including tacit), or ostensible, and ostensible authority requires a representation by the principal that the agent was authorised.

The Consumer Protection Act 68 of 2008 supplements the common law by requiring that any term limiting the supplier’s risk or liability, or imposing indemnities or assumptions of risk, must be drawn to the consumer’s attention in a conspicuous manner, in plain language, and with an adequate opportunity for comprehension, and special warnings are required for activities involving unusual risks or risks of serious injury or death.

Exemption clauses are interpreted restrictively and, in cases of ambiguity, construed against the proferens. A party seeking to contract out of liability must do so in clear and unequivocal terms, and interpretation proceeds contextually and purposively in accordance with the Endumeni approach.

Tourvest Holdings (Pty) Ltd v Murti (806/2024) [2026] ZASCA 8 (27 January 2026)