Legal tips and questions to check before signing your child's indemnity form
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:
"Not one church or synagogue in Sea Point will help us, nor will the City of Cape Town", says the Seaboard Community Action Network (CAN).Read More
Malusi Booi says the City is concerned with illegally-occupied low-lying flood plains that flood every winter as it is dangerous.Read More
South African living in London, Carmen Alger posted the video on her Facebook page to share with friends and it has gone viral.Read More
On Sunday the government reinstated the ban on alcohol sales in a bid to relieve pressure on the country's trauma units.Read More
Cogta Minister could easily have made these administrative fines not criminal to avoid this entire problem, says Howard Dembovsky.Read More
A medical expert who serves on the Ministerial Advisory Committee (MAC) says the alcohol ban is not a sustainable solution in the fight against Covid-19.Read More
Sara-Jayne King chats to two of the contributors to the newly released book The Lockdown Collection, Lindiwe Hani and Tracy Going.Read More
South Africa is one of several middle-income countries including India and Brazil, experiencing rapidly rising levels of hunger.Read More
The National Liquor Traders Council says the government's decision to reinstate the alcohol ban will lead to illegal trade.Read More
W Cape Dept of Health's Dr Saadiq Kariem says freedom of movement plus alcohol leads to a massive increase in trauma cases.Read More
Arabile Gumede interviews actress Dineo Moeketsi (Langa) about her attitude to money and beliefs about it.Read More
Cogta Minister Nkosazana Dlamini-Zuma gazetted updated regulations on Sunday removing any ambiguity around overnight leisure travel.Read More
Bruce Whitfield interviews reps from the Restaurant Association Of SA, Business Unity SA and the National Liquor Traders Council.Read More
The town of Sutherland was covered with snow and received some of the most significant rainfall in years this past weekend.Read More
Wendy Alberts, the CEO of Rasa, says Sunday's announcement was a blow in the dark that will force dozens of restaurants to close.Read More
Doctors are warning that many private medical practices may be forced to close down without an intervention from medical aid schemes.Read More
Cape Town tennis coach Louise Chiat says she and thousands of others have had recurring and debilitating coronavirus symptoms for months.Read More
Shark expert Ryan Johnson recounts, in detail, the strategic way a Great White went about killing a whale 10 times its size.Read More
UK ballet dancer Sophie Rebecca is the first openly transgender person to train on the Royal Academy of Dance's syllabus for female dancers.Read More
This is literally a matter of life or death exclaims Bill in his TikTok video that has had over 10 million views.Read More