Signing of indemnities – the Supreme Court of Appeal (‘SCA’) case of Tourvest Holdings (Pty) Ltd (‘Tourvest’) trading as Drifters Adventours (‘Drifters’) & Anu Bekha Murti (‘Murti’) - part 2: Lessons learnt
My article on the captioned case published February 16th refers.
I thought long & hard about the additional article I promised (‘...watch this space’) and I thought rather than a legal dissertation I’d try and focus on (what I believe to be) the lessons we can learn/should have learned from the captioned case, so here we go.
You should always have comprehensive terms and conditions (‘T&C’) which should be signed or at least acknowledged by the client
Over and above clauses such as jurisdiction, the comprehensive nature of the T&C, an indemnity, comprehensive insurance should be a compulsory requirement and the fact that you can ask for proof of the latter if required must be stipulated.
Signature on behalf of other parties must be suitably worded such as duly authorised, be it another individual or the group.
Despite having an indemnity clause in the T&C a separate, comprehensive indemnity is imperative and the above requirements regarding the signing on behalf of another individual or group/party is essential.
Any matter/claim arising in relation to the above (T&C and/or indemnity) will be of a contractual nature.
However, if for some reason either document (T&C and/or indemnity) cannot be enforced you should be in a ‘belt and braces’ position where such a claim is brought in common law due to inter alia a breach of your duty of care (‘DOC’) and negligence
The key to your defence will/must be that the risk was accepted and that in turn will be based on the knowledge of the plaintiff of the risks involved i.e. voluntary acceptance of risk i.e. volenti non fit injuria – translated it means that voluntary acceptance of risk does not give rise to a delict (English law tort) i.e. wrong or unlawful act causing harm or damage.
How is this knowledge and acceptance of the risk achieved? This is achieved by a detailed briefing at the outset/before embarking on any activity whatsoever. The presenter must sketch in fine details to risks that will/may be encountered and ascertain e.g. whether any party has back issues as very rough, bumpy roads will be traversed.
Finally compliance with the Consumer Protection Act is crucial and is addressed in detail in the case and in particular (without watering down the generality of the aforementioned) is the wording of the indemnity (stand alone and the clause in your T&C) e.g. is must not be ‘ambiguous and vague’.
GOOD LUCK!