WHEN A SAFARI GOES WRONG: CAN TOUR OPERATORS HIDE BEHIND DISCLAIMERS?

Adventure tourism often promises unforgettable experiences, breathtaking landscapes, close encounters with wildlife, and the thrill of exploring unfamiliar terrain. But when something goes wrong, an important legal question arises: can a tour operator rely on a disclaimer hidden in brochures or forms to escape liability for serious injuries?

The Supreme Court of Appeal (SCA) recently confronted this issue in Tourvest Holdings (Pty) Ltd v Murti, delivering a judgment that clarifies how far disclaimer clauses can go. The decision reaffirms key principles relating to exemption clauses, authority, consumer protection, and the limits of freedom of contract in South African law.

Passenger thrown from moving safari truck

The matter arose from a safari tour operated by Tourvest Holdings, trading as Drifters Adventours. Although the tour was booked and paid for in Australia, it commenced in Cape Town and travelled through the region, including Botswana, where the incident occurred. The safari truck, typical of overland adventure tours, carried both passengers and their luggage, with storage lockers built into the sides of the vehicle for easy access during the journey. Passengers were informed that they were free to move about the vehicle while it was in motion. This was intended to enhance the safari experience by allowing them to take in the surroundings, engage with fellow travellers, and capture the moment. While appealing, this practice carried obvious risks, particularly on uneven roads.

While travelling along a public road, the respondent, Ms Anu Rekha Murti, stood up from her seat to access her locker. As the vehicle continued in motion, she steadied herself by leaning against one of the side windows. In a moment that turned an ordinary part of the journey into a life-altering event, the window suddenly dislodged from its frame. With nothing to support her, she lost her balance and was thrown from the moving vehicle onto the roadway below, sustaining serious injuries.

Passenger instituted damages

She instituted an action for damages, alleging negligence in the maintenance of the vehicle, the failure to secure the window, the failure to warn passengers of the dangers of moving around while the vehicle was in motion, and negligent driving.

Tourvest did not initially dispute the negligence allegations. Instead, it relied on two disclaimers. One contained in its brochure and another in an indemnity form signed by Ms Murti’s life partner. The high court first dealt with the enforceability of these disclaimers and found against Tourvest. The appeal to the SCA therefore focused on whether the company could rely on those clauses to avoid liability. In resolving this issue, the court considered three central questions: whether the disclaimer clauses were valid and clearly drafted; whether Ms Murti could be bound by them through knowledge or authority; and how consumer protection legislation and public policy affected their enforcement.

Disclaimer in brochure

The first disclaimer appeared in a brochure under the heading “Insurance.” It broadly stated that Drifters would not accept responsibility for injury or death experienced on tour and that passengers would be required to sign a full indemnity before departure. The court found that this clause lacked clarity and was not presented in a manner that would alert an ordinary traveller that they were surrendering important rights. It’s wording also suggested that a later indemnity, rather than the brochure, would regulate liability, rendering the clause incomplete.

Indemnity form

The second disclaimer was contained in an indemnity form signed by Ms Murti’s partner. The court then examined knowledge and authority. The evidence showed that Ms Murti did not sign the form, was not present when it was signed, and had no knowledge that it had been signed on her behalf. The court reaffirmed that a person may only be bound by another’s signature where permission exists. That permission may be express, implied, or created through conduct giving rise to ostensible authority. None of these were established. Simply travelling together or allowing one person to manage bookings does not mean that person may waive another’s legal rights.

Tourvest argued that by joining the tour in Cape Town after the overseas booking, Ms Murti tacitly accepted the disclaimers. The court rejected this contention. Participation alone does not constitute agreement, particularly where significant limitation clauses were not properly brought to the person’s attention.

Payment was made in Australia

Another key issue concerned the application of the Consumer Protection Act. Tourvest contended that because payment was made in Australia, South African consumer law did not apply. The court disagreed. The services were supplied in South Africa, and Ms Murti’s contractual relationship effectively became operative when she presented herself to begin the tour in Cape Town. She therefore qualified as a consumer under the Act.

Section 49 of the Act requires that clauses limiting liability must be written in plain language, drawn to the consumer’s attention in a conspicuous manner, and specifically highlighted where the risk may result in serious injury or death. In the context of adventure tourism, where such risks are foreseeable, strict compliance is required. The court found that Tourvest failed to meet these statutory obligations. The disclaimers were not adequately brought to Ms Murti’s attention, nor was her informed assent obtained.

Disclaimer did not exclude negligence

Even if the disclaimers were assumed to apply, the court held that they did not clearly and unequivocally exclude liability for negligence. Applying established principles of interpretation, the court reaffirmed that exemption clauses must be interpreted restrictively and that ambiguity is resolved against the drafter. Where a party intends to exclude liability for negligent driving or negligent maintenance, it must do so expressly. The clauses in question did not.

The court further observed that, had it been necessary to decide the issue, it would have been inclined to find that a disclaimer seeking to exempt liability in circumstances where passengers were encouraged to move about the vehicle while it was in motion could be contrary to public policy. Freedom of contract remains subject to constitutional values of fairness and reasonableness.

Ultimately, the appeal was dismissed with costs.

Exemption clauses not self-executing shields

This judgment serves as a firm reminder that exemption clauses are not self-executing shields. Businesses operating across jurisdictions must ensure that limitation clauses follow the consumer through the entire contractual journey, from booking abroad, to commencement of performance locally, to execution of the activity itself. The decision reinforces the careful balance our law maintains between holding parties to agreements they freely entered into, and the constitutional commitment to fairness, transparency, and accountability. Where serious injury arises from alleged negligence, courts will not lightly permit a party to escape liability through vague, procedurally deficient, or improperly authorised disclaimers.

For travellers, the judgment offers a practical lesson. Tourists should not assume that standard booking documents or brochures automatically strip them of legal protection, but they should nevertheless read indemnities carefully, ask questions, and ensure they understand the risks they are accepting, particularly in adventure or safari activities where safety depends heavily on the operator. Where one person signs documents for a group, each traveller should confirm what has been agreed on their behalf. The case demonstrates that while the law protects consumers from unclear or hidden disclaimers, informed participation remains essential in managing risk when travelling.