Disclaimers and Indemnities Are Not a Safety Net

Disclaimers Are Not a Safety Net

Why a recent court ruling matters to lodges, safari operators and adventure businesses

Many tourism and safari operators take comfort in a familiar routine. Guests arrive. A disclaimer is signed. The paperwork is filed. The assumption follows quietly in the background: we are protected.

A recent Supreme Court of Appeal ruling makes it clear that this assumption can be dangerously wrong.

The judgment sends a simple but serious message to operators across South Africa: a disclaimer only protects you if it is properly executed. And “properly executed” means far more than having a form on file.

What actually happened

An Australian tourist was seriously injured during a guided safari experience. While the vehicle was moving, she stood up to access a storage locker. This was not unusual behaviour; passengers were encouraged to use the lockers while the vehicle was in motion.

She lost her balance. A window came loose. She fell from the moving vehicle onto the road and suffered severe injuries.

When the matter went to court, the operator relied on a signed indemnity and disclaimer as its primary defence.

That is where the problem began.

The indemnity that did not indemnify

The disclaimer had not been signed by the injured guest. It was signed by her partner, who completed the form on her behalf without her knowledge.

From the operator’s perspective, this may have seemed reasonable. Couples travel together. One person often handles the booking. One form, one signature, job done.

The courts did not agree.

What the courts said

Both the High Court and the Supreme Court of Appeal rejected the operator’s defence outright.

The courts confirmed several principles that every operator should understand:

A person cannot be bound by an indemnity they did not personally sign.
A partner, spouse or companion does not have automatic authority to sign on someone else’s behalf.
Broad, generic disclaimers do not protect an operator from negligence.
The responsibility lies with the operator to ensure the indemnity process is properly handled.

In this case, the appeal was dismissed in full. The question of damages will now be decided separately, but liability has already been established.

Why this matters beyond this one case

This ruling is not limited to safari vehicles or adventure tourism. It applies to any business relying on disclaimers to manage liability.

Think about common industry practices:

• One guest signs for an entire group
• Indemnities are emailed to a booking agent or lead traveller
• Forms are signed hurriedly at reception without explanation
• Staff assume that “a signature is a signature”

This judgment confirms that these shortcuts create exposure rather than protection.

A disclaimer is not a shield against negligence. It is a legal instrument that must be correctly executed, properly explained, and individually signed.

What operators should take from this

Disclaimers still have a role. But they are not a substitute for risk management or insurance, and they are not effective if treated as admin.

At a minimum:

• Each participant must sign their own indemnity
• Signatures must be obtained before the activity begins
• The process should be supervised, not rushed
• The document should be clear, specific and relevant to the actual activity
• Staff should understand why the process matters, not just how to collect a form

If a guest is injured and the paperwork is flawed, the liability does not disappear. It lands squarely with the operator.

The bottom line

Disclaimers are often treated as a safety net. This case confirms they are not.

If the paperwork is sloppy, if assumptions are made, or if the process is treated as a formality, the protection operators think they have may not exist at all.

Good risk management is deliberate. Proper insurance is essential. And legal documents only work when they are handled with the seriousness the courts expect.

* This article is provided for informational purposes only and should not be construed as legal or financial advice.