Is ‘indemnity’ still alive?

2016-10-26 06:00
Molly Motau

Molly Motau

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories


I have read a number of articles about the new Consumer Protection Act and how it provides protection for me, the consu-mer. When I visit a shopping centre or sign an in-store agreement, I wonder whether these disclaimers and indemnities are enforceable, and how has my position as a consumer been improved by such legislation?


Prior to the Consumer Protection Act (CPA), indemnities and disclaimers that excluded sellers, owners and caretakers from all risk and responsibility, and in some cases even from their own gross negligence, abounded.

If well drafted, these were enforceable, although our courts have over time developed clearer guidelines on assessing the enforceability and scope of the indemnity provisions.

A well-drafted indemnity could largely rid a person of liability if accepted by another party.

The CPA, even though it has not outlawed the indemnity, has gone a long way to regula-ting the enforceability and validity of indemnity provisions. The CPA determines that it is unacceptable to require a consumer to waive any rights, assume any obligation, waive any liability of the supplier, on terms that are unfair, unreasonable or unjust, or to impose any such terms as a condition of entering into a transaction. A term of an agreement is unfair, unreasonable or unjust if it is excessively one-si-ded in favour of any person other than the consumer; or if terms are so adverse to the consumer as to be inequitable and the consumer relied upon a false, misleading or deceptive representation, etc.

The CPA also restricts a supplier from making a transaction subject to any term or condition that limits or exempts the supplier from liability for any loss attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier.

But, the CPA does not outlaw the indemnity outright. It merely shackles it – limiting its impact on the consumer.

Suppliers can still have disclaimers and indemnities and consumers can still be bound to them, provided these meet the requirements of the CPA.

Any provisions which in any way limit the risk or liability of the supplier, constitute an assumption of risk or liability by the consumer, impose an obligation on the consumer to indemnify the supplier for any cause, or is an acknowledgement of any fact by the consumer, must be brought to the attention of the consumer.

The provision must be in understandable language and the consumer must be given adequate opportunity to receive and comprehend the provision.
- Molly Motau, candidate attorney, Phatshoane Henney Attorneys

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Competition regulation for a growing and inclusive economy

ADVERTORIAL: The Competition Commission of South Africa is conducting advocacy work in the South African automotive aftermarket industry and has gazetted a Draft Code of Conduct for public comment.


Man scores date with tennis superstar after Twitter bet

It’s a modern day Cinderella story, but one American man took ‘shoot your shot’ seriously in 2017.


You won't want to miss...

Who are the highest paid models of 2017?
10 gorgeous plus-sized models who aren't Ashley Graham
5 top leg exercises for men
10 best dressed men of 2017
Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.