Ad­ven­ture Tourism from a Le­gal Per­spec­tive - Part 7

This se­ries of ar­ti­cles ex­plores the le­gal as­pects as­so­ci­ated with the risks of op­er­at­ing an ad­ven­ture tourism busi­ness, with spe­cific rel­e­vance to the le­gal frame­work ap­pli­ca­ble to South Africa Part 7

Tourism Tattler - - EDITORIAL - By 'Louis The Lawyer'

Sum­mary

Part 1 pro­vided def­i­ni­tions for the term Ad­ven­ture, while Part 2 looked at risk in terms of Na­tion­al­ity of Par­tic­i­pant, Ser­vice Providers, Book­ings, and Terms & Con­di­tions, and Part 3 cov­ered In­dem­nity and Re­quire­ments of the CPA. Part 4 ex­plained why sig­nage must go in hand with a sound in­dem­nity and waiver form, Part 5 dealt with Duty of Care in re­la­tion to Neg­li­gence, Omis­sion, and Re­la­tion­ship, and Part 6 con­cluded Duty of Care with Ac­cep­tance of Risk and In­sur­ance.

RISK IDEN­TI­FI­CA­TION & MAN­AGE­MENT CHECK­LIST FOR AD­VEN­TURE SPORT OP­ER­A­TORS

Many, and prob­a­bly most, of the ad­ven­ture sport ac­tiv­i­ties in South Africa are pro­vided by busi­nesses that spe­cialise in their field, are pas­sion­ate about it, are sound in terms of risk man­age­ment, and have a good track record. On the other hand there are no doubt op­er­a­tors who sup­ple­ment their own ser­vices with that of third par­ties, and then there are those travel and tourism busi­nesses who do not ac­tu­ally carry out or pro­vide the ser­vices it of­fers to its clients (‘pax'/'par­tic­i­pants') it­self but ‘farm out’ the en­tire process to a third party ser­vice provider (‘SP').

Legally speak­ing it means that the op­er­a­tor acts as the prin­ci­pal where it pro­vides the ser­vice it­self and where SP is in­volved, it could still be act­ing as the prin­ci­pal but mostly it will be act­ing as an agent, fa­cil­i­ta­tor, bro­ker or as re­ferred to in the Con­sumer Pro­tec­tion Act (‘the CPA'), an ‘in­ter­me­di­ary’ – the lat­ter has changed the li­a­bil­ity land­scape not only as far as im­pos­ing sub­stan­tial obli­ga­tions on the op­er­a­tor but adding to it the mat­ter of ab­so­lute li­a­bil­ity. (More about this later). This ar­ti­cle is aimed at all ad­ven­ture sport op­er­a­tors, no mat­ter in which guise it trans­acts busi­ness (‘the Busi­ness') and in a man­ner of speak­ing, it is a guide­line to en­sure that the ex­po­sure of the Busi­ness is iden­ti­fied and dealt with as ef­fec­tively as pos­si­ble. It per­tains not only to such SP but also to the Busi­ness it­self – some in­tro­spec­tion and au­dit of its own sys­tems is re­quired and should be an an­nual pre­req­ui­site.

I will not go into much de­tail about the dif­fer­ent types of en­tity, save to say that the Busi­ness can be e.g. a sole pro­pri­etor, part­ner­ship, close cor­po­ra­tion, com­pany or trad­ing trust. Each of th­ese has its own idio­syn­cra­sies but given the na­ture of the ac­tiv­i­ties ad­ven­ture sport en­tails, I would strongly ad­vise against the first two as li­a­bil­ity is ef­fec­tively per­sonal and the owner(s) can lose ev­ery­thing they own in the event of a catas­tro­phe! Add to this cock­tail the highly pub­li­cized and preva­lent ‘Duty of Care’ is­sue (see Parts 5 and 6 of this se­ries) and you may end up with a han­gover of note!

It is im­per­a­tive that your terms and con­di­tions (‘T&C') stip­u­late the ca­pac­ity in which you are act­ing i.e. prin­ci­pal or agent or bro­ker. This has very im­por­tant le­gal, ac­count­abil­ity and li­a­bil­ity im­pli­ca­tions. It is not un­com­mon that the T&C states that all ser­vices pro­vided by a SP will be sub­ject to the SP’s terms and con­di­tions (‘SP T&C') and that the con­trac­tual re­la­tion­ship will be es­tab­lished (re­gard­ing such ser­vices) di­rectly be­tween the SP and pax. How­ever such a clause has var­i­ous im­pli­ca­tions and has, will, and may, give rise to prob­lems. The Busi­ness may have a prob­lem with Euro­pean Com­mu­nity (‘EC') pax and agents who will cite the EC reg­u­la­tions. (More about that later).

I have also (and more so re­cently) ex­pe­ri­enced cases where pax (or agent on be­half of the pax) re­fuses to sign the T&C con­tain­ing such a clause and/or call for the SP T&C. This is now their right in terms of the CPA and the Busi­ness must pro­vide it or pro­vide ac­cess thereto.

There are also con­fi­den­tial­ity im­pli­ca­tions

- not only from a com­mon law point of view, but also in terms of the Pro­tec­tion of Per­sonal In­for­ma­tion Act (‘POPI') in so far as in­for­ma­tion is shared with third par­ties, whether lo­cally or over­seas (More about this later).

To be con­tin­ued in Part 8.

Dis­claimer: This ar­ti­cle is in­tended to pro­vide a brief over­view of le­gal mat­ters per­tain­ing to the ad­ven­ture tourism in­dus­try and is not in­tended as le­gal ad­vice. © Adv Louis Nel, 'Louis The Lawyer', Jan­uary 2017.

Im­age cour­tesy of Canopy Tours

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