Details of the captioned case were widely circulated in various media recently.
The facts are highly relevant for any business, not just tourism and more specifically what is known as adventure tourism. The crux of the case was the issue of the Drifters indemnity and whether or not it was applicable to their client Murti. However the case can in my view be extended to any written indemnities and tacitly accepted indemnities to which the client may be exposed online in the process of making a booking or when any premises is entered and disclaimer signage is displayed at the entrance and/or at any activities on the premises such as swimming pools, gyms, etc.
Included in the scope and risk involved in any activity is the extent to which the risk(s) in question have been brought to the attention of the client adequately and accepted by the client. Concomitant the question to be addressed is whether or not the operator, owner of the premises etc has adequately complied with the duty of care obligation.
Drifters did provide the clients with two (2) indemnities i.e. a disclaimer clause in the Drifters booking terms and conditions (‘T&C’) and a ‘hard copy’ indemnity which all clients are required to sign. However in this case the latter was signed by Murti’s boyfriend (‘Hannon’) but not by her as the trip was supposed to be a surprise.
The court found that, despite having worked in the tourism industry and thus having experience of T&C and disclaimers and having read the T&C (The detail of which Murti could not recall), the key issue was not only the fact that she had not signed the 2nd indemnity but that furthermore she had not explicitly or by implication/tacitly authorised Hannon to accept and sign on her behalf. Accordingly Drifters could not enforce the indemnity vis a vis Murti and thus ‘escape’ liability.
The court ‘rubbed salt into the wounds’ by stating that both the disclaimers (Disclaiming respectively ‘... any act, omission .... negligence’ and ‘..any loss, injury, damage .....on tour’ and client ‘waives any claims whatsoever and howsoever’) were ‘vague’ and the court would even regard them as ‘contra bonos mores’ (See my article on ‘Ubuntu’ and public policy vis a vis indemnities article #11 published by SATSA October 12 2024), ‘ambiguous ..general and unspecified’ and therefore not enforceable – rather damning!
I agree with the court’s finding in principle based on the lack of Hannon being authorised to sign on behalf of Murti, but many of their comments, such as my previous paragraph, are a ‘red flag’ for the industry. I will address the issues pertaining to the latter in my next article on this case and it will include the role and wording of the booking form, customer briefing, wording of the T&C disclaimer clause, the indemnity to be signed and signage, voluntary acceptance of risk, duty of care and insurance.................. watch this space!
© ADV LOUIS NEL
Louis-THE-lawyer
February 16 2026
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances
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