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Legal tips and questions to check before signing your child's indemnity form

21 January 2020 7:59 AM
Tags:
legal
Enock Mpianzi
indemnity forms

Senior Associate at Webber Wentzel Justin Malherbe explains the scope of indemnity forms and what to look for in the fine print.

Following the tragic death of 13-year-old Parktown High school pupil Enock Mpianzi who went missing from an orientation camp outside Brits, in the North West on Wednesday and was later found to have drowned in the river during a raft building activity.

The Mpianzi family has accepted the offer from the SAHRC to legally represent them in this matter.

But how protected are those involved by the indemnity form parents have to sign when their children attend off-sight field trips?

Like so many answers in law, it depends. But as a general proposition, indemnity forms and indemnity clauses are binding in our law.

Justin Malherbe, Senior Associate - Webber Wentzel

He says they form part of South African law but for an indemnity clause to be valid, it has to meet certain requirements.

These clauses have to be fair. One has to ask questions such as is the clause clear? What does it cover and what doesn't it cover in terms of the conduct?

Justin Malherbe, Senior Associate - Webber Wentzel

Did the party providing the form and the party having to sign it have equal bargaining power? Did both parties understand what they were agreeing to?

Justin Malherbe, Senior Associate - Webber Wentzel

He adds that if the form forms part of a consumer agreement, for example, that is governed by the Consumer Protection Act, then an additional layer of protection needs to be added to ensure these clauses are fair, reasonable and just.

he says forms can vary widely in length and complexity and it depends on the circumstances of the planned activity.

Indemnity forms are a type of contract so like other contracts they may be binding if they are validly concluded and don't include any invalid or unlawful terms.

Justin Malherbe, Senior Associate - Webber Wentzel

Can negligence void these forms and where does the burden of proof lie?

I get the impression - in the days following the tragic events regarding Enock Mpianzi - is that there may be a general misunderstanding of what tyes of conduct these types of clauses can validly exclude.

Justin Malherbe, Senior Associate - Webber Wentzel

He says there is an important distinction between negligence and gross negligence.

One cannot contract out of your own gross negligence for intentional conduct. But one can certainly contract out of liability in respect of one's own negligence.

Justin Malherbe, Senior Associate - Webber Wentzel

He says courts have weighed in on this distinction often.

Gross negligence in law would mean a complete failure to take care. We are talking about a conscious deliberate taking of risks - whereas the standard which our courts apply in determining where conduct is negligent, is the reasonable person test.

Justin Malherbe, Senior Associate - Webber Wentzel

Consequences of refusing to sign your child's indemnity form?

Does that mean your child cannot go on the school outing?

Justin Malherbe, Senior Associate - Webber Wentzel

Malherbe says that it would infringe on your child's right to receive an education. He adds that if such a case came before the court, the court would take a very dim view of such a contract which has such an effect.

Listen to this informative interview below:


21 January 2020 7:59 AM
Tags:
legal
Enock Mpianzi
indemnity forms

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