Gautrain hits the brakes on disclaimer
Rail company rethinks terms, no thanks to consumer watchdog
THE Gautrain’s one-sided disclaimer notice, unlawfully absolving it of responsibility for any and all possible harm to passengers, is finally coming down.
No more will users of the Bombela Concession Company’s trains be misled by illegal terms seeking to void basic consumer rights. Which is exactly what has happened for the past five years, every time a passenger has boarded one of its trains.
Bombela’s original disclaimer — still displayed on the walls of its carriages — states that the Gauteng provincial government, Bombela Concession Company and Bombela Operating Company are not liable “in any way whatsoever for any loss, injury or damage . . . of whatsoever nature . . . whether or not caused by the negligence (gross or otherwise)”.
Gross negligence is a legal concept that means serious carelessness or reckless disregard for the safety or lives of others. Ordinary negligence is merely a failure to exercise reasonable care.
So up until now, if the Gautrain’s operators had knowingly hired untrained drivers, neglected to fix damaged tracks or ignored requests to replace faulty brakes — and any one of these reckless acts had caused an accident, killing or maiming passengers — it could simply point to its disclaimer and walk away from the wreck.
Hard to believe this nonsense has been allowed to go on for so long.
The Bombela Concession Company replaced the offensive disclaimer online this week, a few days after I queried it.
Bombela’s contracts and commercial executive, Ian Findlay, said the delay in getting its disclaimer right had been caused by the number of parties involved, all of whom had sought separate legal advice.
“[It] has meant a lengthy process of reviews and re-reviews before a new disclaimer signed off by all parties could be developed,” said Findlay on Tuesday. “The disclaimer is in print as we speak and I’m told all signs will be replaced before the end of July.”
The new disclaimer, posted on its website on Wednesday, now states that the operator shall not be liable for loss, injury or damage, “to the extent permissible by law”. The words “gross negligence” no longer appear.
Not that the Gautrain would have gotten away with the original disclaimer had victims challenged it.
Under the Consumer Protection Act, a supplier cannot make a transaction or agreement subject to any term or condition if it purports to limit or exempt a supplier from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier.
But too few consumers know any better, and many blindly accept non-compliant terms and conditions. To protect consumers, such illegal terms should never be tolerated.
Which is why I find the National Consumer Commission’s approach to this issue baffling. When I first expressed concerns about the disclaimer, in a column published in May 2013, the consumer watchdog didn’t mince its words.
“No company or supplier can contract out of gross negligence,” I quoted commissioner Ebrahim Mohamed as saying. “If so, it would mean that Bombela could do what it liked and never be held liable.” Well, exactly.
He assured consumers that the commission would investigate the disclaimer as part of a “planned wider probe” into Bombela’s business practices.
Comforting words at the time. And although Bombela disagreed with my (and effectively the commissioner’s) “interpretation” of the act, it committed to a review of all its terms and conditions.
Following the column, an alarmed South African National Consumer Union lodged a formal complaint with Bombela.
But despite all this, nothing changed. I initially put it down to problems at the beleaguered commission, which at that stage had not fully recovered from the controversial exit of its first commissioner and had no fully fledged call centre, a limited budget and at least 100 vacant posts.
It was thanks to a recent e-mail from a concerned reader that I was prompted to revisit the case.
Sancu, meanwhile, is still not convinced. Said vice-chairman Clif Johnston: “The phrase ‘ to the extent permissible by law’
Many consumers blindly accept non-compliant terms and conditions Our assessment of this matter revealed a much bigger problem in the public transport sector
makes a very big concession to the CPA, but does nothing to clarify the situation to the consumer. Only the NCC would be in a position to review this aspect, and Sancu would urge it again to take up this matter.”
That’s not likely. It didn’t honour its commitment to investigate the first one. When questioned early this week on the progress of the original probe, spokesman Trevor Hattingh said investigators were “still looking into this matter” and had not yet approached the commissioner to authorise an investigation.
“The commission, however, maintains the view that a supplier cannot contract out of gross negligence, and that at face value Bombela’s terms and conditions [in its original disclaimer] would appear to be in violation of the provisions of the Consumer Protection Act.
“Further details on our approach and intentions will be communicated at a more opportune time,” said Hattingh.
Seriously? How much time and effort would it have taken for the NCC to have tackled Bombela on the disclaimer?
“The NCC must exercise the functions assigned to it by the CPA in the most cost-effective and efficient manner,” said Hattingh.
“Our assessment of this matter revealed a much bigger problem in the public transport sector holistically and this has widened the investigative scope.
“As it stands, this particular matter would be a single element [in] what is likely to be a much broader investigation.”
Considering that a revised disclaimer has now been released, that’s a moot point. As for a broader investigation into public transport? Forgive me if I don’t hold my breath.
Tune in to Power FM 98.7’s Power Breakfast (DStv audio channel 889) at 8.50am tomorrow to hear more from Megan