Tourvest Holdings (Pty) Ltd v Murti

On 17 November 2018, Ms Anu Rekha Murti, an Australian resident, was injured on a safari tour in Botswana operated by Tourvest Holdings (Pty) Ltd trading as Drifters Adventours. While the safari truck was in motion, she left her seat to access her locker (which Drifters advertised as accessible even while driving), lost her balance, fell against a window, which fell out of its frame, and she fell through the opening onto the road, sustaining injuries. Her life partner, Mr Hannon, had arranged and paid for the tour through an Australian travel agent, as a surprise birthday gift for Ms Murti. He received a brochure containing a disclaimer of liability and insurance clause. On 4 November 2018, before the tour commenced in Cape Town, Mr Hannon signed an indemnity form purportedly on behalf of Ms Murti without her knowledge or presence. Ms Murti sued Drifters for damages, alleging negligence in failing to maintain the truck, warn passengers of dangers, and misrepresenting safety. Drifters relied on two disclaimers to exclude liability: one in the brochure sent before the tour, and another in the indemnity form signed by Mr Hannon.

• Whether the disclaimers in the brochure and indemnity form were validly incorporated into a contract with Ms Murti
• Whether Mr Hannon had actual, implied or ostensible authority to bind Ms Murti to the disclaimers
• Whether the Consumer Protection Act 68 of 2008 (CPA) applied to the transaction
• Whether Drifters complied with the notification requirements under the CPA and common law
• Whether the disclaimers, properly interpreted, excluded liability for the negligence alleged
• Whether the principles of quasi-mutual assent and the 'ticket cases' applied to bind Ms Murti to the disclaimers
• Whether the disclaimers were contra bonos mores (against public policy) or contrary to constitutional values

The appeal was dismissed with costs. The High Court's order that Ms Murti was not bound by the disclaimers was upheld.

The binding legal principles established are: 1. A party seeking to rely on a contractual exemption from delictual liability bears the onus of proving, on a balance of probabilities, that a valid contract incorporating the exemption was concluded with the party against whom it is sought to be enforced. 2. Where the Consumer Protection Act applies to a transaction, sections 49 and 58 require that disclaimers and provisions limiting supplier liability for activities involving unusual risks or risks that could cause serious injury or death must: (a) be written in plain language; (b) be drawn to the consumer's attention in a conspicuous manner likely to attract the attention of an ordinarily alert consumer; (c) provide adequate opportunity for comprehension; and (d) be brought to the consumer's attention before entering the transaction or offering consideration. 3. Even at common law, disclaimers must be displayed with sufficient prominence to reasonably come to the attention of the party against whom they are sought to be enforced. A disclaimer under a heading such as "Insurance" is not sufficiently prominent notice of exemption from delictual liability. 4. Exemption clauses must be interpreted restrictively (contra proferentem) and, to exclude liability for negligence, must do so in clear and unambiguous terms. Where ambiguity exists, the interpretation least favorable to the drafter must be adopted. 5. For an agent to bind a principal to an exemption clause, actual, implied or ostensible authority must be established. Such authority cannot be inferred merely from a personal relationship, payment for services, or general arrangements for an activity; the principal must have knowledge of and consent to the specific exclusionary provision. 6. The doctrine of quasi-mutual assent requires that the party against whom the contract is asserted conducted herself in a manner that would lead a reasonable person to believe she had assented to the terms, and that the other party was actually or reasonably misled. Mere expectation that some disclaimer might exist does not constitute such conduct. 7. Contractual terms that are contrary to constitutional values, public policy (boni mores), or that result in unfairness or unreasonableness may be declared unenforceable, notwithstanding the doctrine of pacta sunt servanda.

The court made several non-binding observations: 1. Koen JA stated (paragraph 73) that had the issue been determinative, he would have been inclined to find any disclaimer for liability where Drifters expressly promoted passengers alighting from seats and moving to lockers while the truck was in motion to be contrary to public policy and mores, unfair and unenforceable. This suggests judicial concern about service providers promoting risky conduct while simultaneously seeking to avoid liability for consequences. 2. The court commented (paragraph 53) that a tour participant should be fully and timeously informed of additional risks and the extent of disclaimers so that adequate alternative provision (such as insurance) can be made. 3. The court observed (paragraph 64) that it was incumbent on Drifters to ensure proper completion of indemnity forms for each participant, closely supervised by representatives and ideally co-signed by identifiable witnesses to confirm the signatory was indeed the person named in the form. This sets a best practice standard for tour operators. 4. The court noted (paragraph 40) the significance of contractual provisions specifying South Africa as the place of contract and jurisdiction, as supporting the application of South African law including the CPA. 5. The court remarked that Ms Murti is "an adult individual in her own right" (paragraph 62), emphasizing personal autonomy in contractual relationships and that personal relationships do not automatically create agency for significant legal commitments. These observations provide guidance for the tourism industry on proper practices for obtaining valid waivers and the courts' likely approach to exemption clauses that conflict with promoted conduct or constitutional values.

This case is significant in South African consumer protection and delictual liability law for several reasons: 1. It confirms the strict application of the Consumer Protection Act's notification requirements (sections 49 and 58) for disclaimers and exemption clauses, particularly in tourism and adventure activities involving inherent dangers. 2. It reinforces that disclaimers must be interpreted restrictively (contra proferentem) and must exclude liability for negligence in clear and unambiguous terms. 3. It clarifies that the CPA applies to transactions concluded in South Africa, even where booking and payment occurred abroad, if the services are supplied within South Africa. 4. It emphasizes that service providers cannot rely on inadequate notification procedures and bear the onus of ensuring each participant personally enters into binding exclusionary agreements. 5. It demonstrates judicial willingness to scrutinize exemption clauses for compliance with constitutional values and public policy, particularly where suppliers promote risky conduct while simultaneously seeking to exempt themselves from liability. 6. It applies agency principles strictly in the context of exemption clauses, requiring clear evidence of authority (express, implied or ostensible) before a third party can bind a principal to such provisions. The judgment reinforces consumer protection principles and limits the ability of service providers in the tourism and adventure industry to avoid delictual liability through broadly worded disclaimers that do not meet statutory notification requirements.