AD­VEN­TURE TOURISM from a le­gal per­spec­tive

Tourism Tattler - - LEGAL - By ‘Louis The Lawyer'

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 1 can be found on page 25 of the June 2016 edi­tion or read the ar­ti­cle online here. Clearly the topic gives rise to many is­sues as the word ‘ad­ven­ture' im­plies a def­i­nite el­e­ment of risk and with it is­sues such li­a­bil­ity, re­spon­si­bil­ity, ac­count­abil­ity and in­sur­ance. Fur­ther­more the fact that many of the ac­tiv­i­ties listed in the pre­vi­ous ar­ti­cle take place in nat­u­ral en­vi­ron­ments means the im­pact thereof on na­ture and sur­rounds need to be ad­dressed – the lat­ter is not only about the par­tic­i­pant foot­print but also the difficulty of ac­cess in the case of an emer­gency and com­mu­ni­ca­tions.

Let's con­sider the is­sue of risk and deal with it in the se­quence that par­tic­i­pa­tion will un­fold:


• Each coun­try has dif­fer­ent laws and ap­proaches to risk e.g. in Europe in­dem­ni­ties are frowned upon (Ar­ti­cle on re­cent EC di­rec­tive to fol­low soon)

It is there­fore im­per­a­tive that the ser­vice provider (‘SP') pro­vides in its terms and con­di­tions (‘T&C') that South African law & ju­ris­dic­tion will ap­ply

The im­pact of the afore­men­tioned can be ame­lio­rated fur­ther by the in­clu­sion in the T&C of com­pre­hen­sive me­di­a­tion and ar­bi­tra­tion clause – this not only is a great plus as far as brand man­age­ment is concerned but is also less ex­pen­sive and quicker.


• Each case may well be dif­fer­ent i.e. it may be the pax ‘do­ing his own thing' (‘FIT') thus book­ing the en­tire trip from/back to coun­try of ori­gin and par­tic­i­pat­ing with­out a guide/pro­fes­sional as­sis­tance; con­versely it may in­volve the pax, a travel agent, tour op­er­a­tor and a guide or a com­bi­na­tion of the afore­said.

The im­por­tant as­pect here from a le­gal per­spec­tive is the net­work of con­tracts and ‘cross-in­dem­ni­ties' in­volved – be­tween each of the par­ties men­tioned in the pre­ced­ing para­graph there should be clearly de­mar­cated risk (pro­file and ac­cep­tance) and with it li­a­bil­ity, re­spon­si­bil­ity, ac­count­abil­ity and in­sur­ance and this should be con­tained in a writ­ten, signed con­tract. • • • BOOK­ING

• The book­ing can be online and/or in­volv­ing one or more of the SP men­tioned above – it is ad­vis­able to en­sure clear ac­cep­tance of risk and an au­dit trail. It may seem ‘airy fairy' un­til an ac­tual claim arises!

As the Con­sumer Pro­tec­tion Act, Act 68 of 2008 (‘the CPA') will play a ma­te­rial role in the risk sce­nario, li­a­bil­ity and the in­dem­nity, strict ad­her­ence is re­quired to sec­tions per­tain­ing to such as non-re­fund­able de­posits/can­cel­la­tion (17), dis­clo­sure/ trans­parency (41 & 49), li­a­bil­ity (48, 51

& 61) and the content of the terms per se (Reg­u­la­tion 45) (See dis­cus­sion in next in­sert).

Cog­nizance will also have to be taken of the in­for­ma­tion dis­closed by the Pax and man­aged by the SP in terms of the Pro­tec­tion of Per­sonal In­for­ma­tion Act, Act 4 of 2013 (‘the POPI') – given the no fault li­a­bil­ity ap­proach con­tained in POPI, in­sur­ance is im­per­a­tive.


I have from time to time been asked why there is a need for T&C (1) by a travel agent who was under the false im­pres­sion that it was pro­tected by the sup­plier/tour op­er­a­tor's T&C; (2) When there is an in­dem­nity! Both ques­tions of course are of a se­ri­ous na­ture es­pe­cially when the 1st comes from ‘an old hand' in tourism and the 2nd from an ex­pe­ri­enced un­der­writer!

The an­swer to the 1st ques­tion is that un­less very specif­i­cally drafted/worded, the sup­plier/ tour op­er­a­tor's T&C will not ex­tend to/pro­tect the travel agent

The an­swer to the 2nd ques­tion is that un­less very specif­i­cally drafted/worded, the in­dem­nity does not usu­ally deal with is­sues such as lim­i­ta­tion of li­a­bil­ity, law and ju­ris­dic­tion, domi­cil­ium, in­ter­est in late pay­ments, pass­ports and visa, health risks etc – this is usu­ally the do­main of the T&C so you need both (T&C & in­dem­nity). • •

Im­age courtesy of Canopy Tours

Dis­claimer: This ar­ti­cle is in­tended to pro­vide a brief overview of le­gal mat­ters per­tain­ing to the tad­ven­ture tourism in­dus­try and is not in­tended as le­gal ad­vice. © Adv Louis Nel, 'Louis The Lawyer', Au­gust 2016.

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