Disclaimers under Scrutiny

What in-house legal teams should note from the SCA’s approach to personal injury risk

Many South African businesses use disclaimers and indemnities as a routine feature of customer-facing operations. This is common in tourism and hospitality, events, transport, leisure and any setting where a consumer is exposed to foreseeable physical risk. A recent Supreme Court of Appeal decision (Tourvest Holdings (Pty) Ltd v Murti (806/2024) [2026] ZASCA 8 (27 January 2026) is a timely reminder that courts will not treat standard wording as a reliable substitute for proper formation, clear communication and Consumer Protection Act compliance, particularly where there is a risk of serious injury.

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Tourvest v Murti

The matter arose after a tourist was seriously injured when she fell from a moving safari truck. The operator relied on two sets of exclusionary documents. The first was contained in a brochure issued before the safari. The second was a “tour registration, disclaimer and indemnity” document that was completed and signed by the injured party’s life partner, not by the injured party herself.

The SCA examined whether the disclaimers were adequately brought to the consumer’s attention, whether the second document was properly concluded, and whether the terms, properly construed, could exclude delictual liability on the facts.

Three themes for GCs and risk owners to consider:

1.  Delictual exposure is not avoided by default

The court reiterated that a party may contractually limit its exposure, but the supplier bears the onus of proving a binding exclusion on a balance of probabilities. The judgment also restates that exemption and indemnity clauses are construed restrictively. If the wording is unclear, ambiguity is likely to count against the party seeking to rely on it.

2. One person signing for another is not a safe assumption

A central issue was whether the injured party’s partner had authority to bind her. The SCA upheld the finding that there was no actual authority on the evidence. It also rejected attempts to infer authority simply because the partner organised the trip and paid for it. The court treated the injured party as an adult contracting party in her own right and stressed that it was for the operator to ensure that any intended indemnity arrangement was properly concluded with each participant.

This point has wider application for businesses that deal with group bookings, corporate hospitality, visitor processes, shuttle services, or organised activities where one person often “handles the admin” for others.

3. CPA section 49 compliance is central and prominence is part of compliance

The SCA found that the CPA applied. It then focused on section 49, which requires limitation of liability terms to be in plain language, brought to the consumer’s attention conspicuously, and presented early enough for the consumer to have an adequate opportunity to comprehend them. Where an activity or facility involves a risk that could result in serious injury or death, the supplier must specifically draw the risk to the consumer’s attention and the consumer must assent, typically by signing or initialling.

The court was also critical of the way the brochure disclaimer was presented. It appeared under a heading referring to “Insurance”, which was not a context that would reasonably alert an ordinarily attentive consumer to a broad waiver of rights. The judgment reinforces that placement and presentation are not superficial issues. They are part of whether notice is effective at common law and whether statutory requirements have been met.

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Commercial significance for Corporates and Insurers

For insured corporates, the judgment underscores that enforceability often turns on execution rather than drafting alone. For insurers, it is a reminder that weak notice and sign-on processes can translate into materially increased claims exposure and reduced prospects of successfully relying on contractual risk allocation in bodily injury matters.

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A discussion with Thomson Wilks

If your organisation relies on customer disclaimers, participant waivers or visitor indemnities in operations where injury risk is foreseeable, it may be sensible to review whether the approach remains robust in light of the SCA’s reasoning and the CPA requirements.

The Thomson Wilks Insurance Law team can assist with a practical review and advise on how these principles may affect claims strategy, policy positions and risk allocation in your specific operating model.