The recent judgment of Lombard v McDonald’s Wingtip (GP) (unreported case no 38117/2020, 14-11-2022) (Vuma AJ), Vuma AJ considered, inter alia, whether a disclaimer clause in an establishment, which estopped an injured party from claiming damages for personal injury caused when a customer slipped and fell on a wet floor were applicable. In this instance the court found that the provisions of s 49 of the Consumer Protection Act 68 of 2008 did not avail the plaintiff and, as a result, dismissed her claim.

In his judgment, the acting judge did not deal with the judgments referred to hereunder, the first being Barkhuizen v Napier 2007 (5) SA 323 (CC) in which the Constitutional Court considered the enforceability of a time bar clause in an insurance contract.

In writing the majority judgment (which in this instance upheld the validity of such a clause) Ngcobo J (as he was then) at paras 35 and 36 said:

‘Under our legal order all law derives its force from the Constitution and is thus subject to constitutional control. Any law that is inconsistent with the Constitution is invalid. No law is immune from constitutional control. The common law of contract is no exception. And courts have a constitutional obligation to develop common law, including the principles of the law of contract, so as to bring it in line with values that underlie our Constitution. When developing the common law of contract, courts are required to do so in a manner that “promotes the spirit, purport and objects of the Bill of Rights”. Section 39(2) of the Constitution says so. All this is, by now, axiomatic. Courts are equally empowered to develop the rules of the common law to limit a right in the Bill of Rights “provided that the limitation is in accordance with s 36(1)”.

The proper approach to this matter is, therefore, to determine whether clause 5.2.5 is inimical to the values that underlie our constitutional democracy, as given expression to in s 34 and thus contrary to public policy.’

He continued at para 46 and para 52 in ruling:

‘The question whether public policy tolerates time-limitation clauses in contracts must be considered in the light of the fact that time limitations are a common feature both in our statutory and contractual terrain. Their effect is the same whether they occur in a statute or a contract. They deny the right to seek the assistance of a court once the action gets barred because an action was not instituted within the time allowed. This is true of all of them, regardless of the amount of time they allow. These clauses therefore limit the right to seek judicial redress.’

‘In my judgment … redress is consistent with the notions of fairness and justice which inform public policy. There is no reason in principle why this test should not be applicable in determining whether a time-limitation clause in a contract is contrary to public policy.’

In Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ), Heaton-Nicholls J (as she was then) considered the existence of disclaimer clauses where in a store or at a shopping centre, or in a hotel it was sought to exclude liability for any harm befalling a member of the public who is injured while in the store or hotel or in a mall, arising out of possible negligence of the owner or its employees agents or servants. In this matter, Naidoo was a guest at the hotel where there was disclaimer notice pinned to the back of the entrance door to his room and where on hotel property a gate fell on him causing injury.

The judge was alive to the dictum of Barkhuizen and Naidoo where at para 53 she states:

‘In summary, although I am of the view that the exemption clause, in which liability for negligently causing bodily injuries or death is excluded, will not pass constitutional muster, this is not the issue before me. In applying the principles … in Barkhuizen a further enquiry is necessary where a contractual clause limits a person’s right to a judicial remedy. This is whether in the circumstances of a particular case the enforcement of such a contractual term would result in an injustice. I have come to the conclusion that in the circumstances of this particular case, to enforce the exemption clause would be unfair and unjust. In the words of Ngcobo J: “A court will bear in mind the need to recognise freedom of contract, but the court will not let blind reliance on the principle of freedom of contract override the need to ensure that contracting parties must have access to courts.”’

I am of the view that when it comes to applying the validity or otherwise of the contents of a disclaimer notice, which precludes an injured victim from recovering damages for personal injury caused by the negligence of the owner of the property or establishment or his agent or servant it will be held to be contrary to public policy on the grounds that such exclusion from liability will be inimical to the norms and values of South Africa’s Constitution, as set out in the Bill of Rights, and on the grounds that such an exclusion of liability will be unfair and will lead to injustice.

Leslie Kobrin Dip Iur (Wits) Dip Bus Man (Damelin) is a consultant legal practitioner at Bove Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 8.