Tourism Tattler - - LE­GAL - Part 1 Part 2 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. can be found on page 25 of the June 2016 edi­tion and on page 33 of the Au­gust edi­tion here. 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.

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 two ar­ti­cles 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. IN­DEM­NITY

Ur­ban leg­end will have you be­lieve that an in­dem­nity is not worth the paper it is writ­ten on – sure it can be con­tested in court but if prop­erly drafted and ap­plied (see be­low) it should not only as­sist the in­sured in ne­go­ti­at­ing a (higher) de­ductible and a lower pre­mium, but it is a very use­ful bar­gain­ing chip in set­tle­ment ne­go­ti­a­tions and may well get you ‘Off the hook'! The bottom line is that it is le­gal and en­force­able.

How­ever, as al­luded to above, it is im­per­a­tive that it is prop­erly ‘ap­plied' and in­ter alia all the Con­sumer Pro­tec­tion Act, Act 68 of 2008 (‘the CPA') re­quire­ments must be met re­gard­ing the word­ing and in the lead up to and sig­na­ture thereof (see be­low).

One of the most im­por­tant as­pects is a de­tailed brief­ing of par­tic­i­pants well be­fore they en­gage in the ac­tiv­ity – this must be done ver­bally and it can be sup­ple­mented by a doc­u­ment but the lat­ter must be sup­ple­men­tary and not a sub­sti­tute!


What are the CPA re­quire­ments? Here is a brief sum­mary:

Sec­tion 22 – all your doc­u­ments (in­clud­ing your web­site and sig­nage) must be in plain lan­guage and this per­tains not only to gram­mar but also to di­a­grams.

Sec­tion 41 – you must en­sure that the par­tic­i­pant has no ‘mis­ap­pre­hen­sion' e.g. is not con­fused, hence my sug­ges­tion that the brief­ing must be ver­bal as by do­ing so, you can ob­serve the party's body lan­guage – the CPA re­quires of you to cor­rect any such mis­ap­pre­hen­sion! This may well re­sult from an in­no­cent or un­in­tended ‘ex­ag­ger­a­tion, in­nu­endo or am­bi­gu­ity' which is out­lawed by this sec­tion, as is any ‘false, mis­lead­ing or de­cep­tive rep­re­sen­ta­tion con­cern­ing a ma­te­rial fact'.

Sec­tion 48 – deals with terms and con­di­tions that are ‘ex­ces­sively one-sided, in­equitable' and, as with sec­tion 41, rep­re­sen­ta­tions that are ‘false, mis­lead­ing or de­cep­tive' (This sec­tion must be read in de­tail with reg­u­la­tion 45).

Sec­tion 49 – risks that are usu­ally en­coun­tered in ad­ven­ture tourism may well be linked to po­ten­tial ‘se­ri­ous in­jury or death' or be of an ‘un­usual char­ac­ter', over and above which an in­dem­nity or waiver and the con­comi­tant as­sump­tion of risk clearly fall within the am­bit of this sec­tion. Con­se­quently such risks must be clearly ex­plained (see ‘Brief­ing' above) AND ac­cepted by par­tic­i­pants and this must take place as early as pos­si­ble e.g. not when they are on the point of par­tic­i­pat­ing but the ‘ear­lier of' when they en­ter into the con­tract, pay or par­tic­i­pate. The rea­son the CPA stip­u­lates is to en­able the par­tic­i­pant to ‘re­ceive and com­pre­hend' the im­pli­ca­tions – clearly not the case when a par­tic­i­pant is pre­sented with an in­dem­nity as he is about to bungee jump or get into a kayak!

Sec­tion 51 – out­laws the ex­clu­sion of, or lim­i­ta­tion of, li­a­bil­ity for/to gross neg­li­gence and such an agree­ment (e.g. in­dem­nity) will be null and void!

Sec­tion 61 – this is the so-called no fault/ ab­so­lute li­a­bil­ity pro­vi­sion and is linked to faulty equip­ment and/or in­ad­e­quate in­struc­tions (see ‘Brief­ing' above).

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', Septem­ber 2016.

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