Delict and consumer protection -SCA rules on liability and disclaimers

The Supreme Court of Appeal (SCA), on 27 January 2026, delivered a judgment with significant and far-reaching implications for the insurance industry, particularly liability insurers.

- Mthokozisi Maphumulo

The matter pertained to a delictual claim for personal injuries suffered by the respondent after she fell from a moving safari truck during a Southern African tour operated by the applicant's touring division.

While the truck was travelling in Botswana, the respondent stood to access a rear locker - a window dislodged and she fell onto the road, sustaining injuries. She alleged negligent maintenance/warnings and negligent driving.

Pre-tour materials included a brochure and itinerary referring to compulsory insurance and a general “no responsibility” statement, and a “Tour Registration, Disclaimer and Indemnity” form. The respondent did not sign any form; her partner signed two, including one completed in her name, without her knowledge or authority.

The High Court separated and determined the enforceability of the brochure disclaimer and the indemnity, holding the respondent was not bound; the applicant appealed.

Issues for determination

The key question was whether the applicant had successfully excluded delictual liability.

The Court considered whether:

• The brochure “Insurance” disclaimer communicated to the respondent (first disclaimer) and/or

• The indemnity/disclaimer signed by the respondent's partner (second disclaimer).

This raised questions of actual, implied, or ostensible authority; the “ticket cases” and quasi mutual assent; compliance with the Consumer Protection Act (CPA); and the proper, restrictive interpretation of exemption clauses.