With the kids back at school, many parents receive the school’s Consent, Indemnity and/or Waiver in respect of general school activities, school outings and/or the school’s swimming academy, which they are told to sign.

Most of these indemnities incorporate legal terminology that not many people understand. They usually contain terms relating to your consent that the person in charge of your child act in loco parentis (“in the place of a parent”) whilst in their care, that all tours and excursions shall be taken at your child’s own risk; that you indemnify the school, including its teachers, staff, employees, volunteers, servants or agents, from any and all claims that may arise in connection with damage or loss that may arise to your child during tours/excursions and/or whilst in their care. You are also asked to indemnify and absolve the school against any loss, damage, injury expenses and costs suffered and/or incurred by your child in or on the school premises or in the course of any extra-mural activity your child participates in.

The school is effectively excluded from any and all liability to do with your child, regardless of any action that its teachers, staff, employees, volunteers, servants or agents may or may not take to prevent the source of the ensuing harm. And you are asked to initial all over the form that you have read and understood the consequences of what you are undertaking.

Our Consumer Protection Act 68 of 2008 (“CPA”) contains certain restrictions on the party requiring the indemnity. Section 49 of the CPA requires special notice requirements for contracts or contractual terms which constitute an assumption of risk or liability by its signee. Section 51 prohibits certain contracts or contractual terms, including terms which purport to waive, or deprive a consumer of rights under the CPA and terms purporting to limit or exempt a supplier of goods or services from liability for loss attributable to gross negligence of the supplier or a person acting for or controlled by the supplier.

Two Supreme Court of Appeal (“SCA”) cases refer to the consequences of indemnities: Minister of Education and Culture (House of Delegates) v Azal 1995 1 SA 30 (A) and Durban’s Water Wonderland (Pty) Ltd v Botha 1991(1) SA 982 (A).

In the Minister of Education and Culture case, Azar, whilst still a minor and a pupil at a school under the jurisdiction of the department, had been seriously injured in a motor vehicle accident whilst on a tour arranged by one of his teachers. The accident was caused by the negligent driving of the teacher. In an action instituted by Azar (after attaining majority) against the school, the school relied on an indemnity signed by Azar’s mother (his natural guardian until he turned 18). The relevant part of the indemnity provided as follows:

“I fully understand and accept that all  tours and excursions shall be undertaken at my child's own risk and I undertake, on behalf of myself, my executors and my child aforesaid to indemnify, hold harmless and absolve the Department, the principal and his staff (of school attended by minor) against and from any or all claims whatsoever that may arise in connection with any loss or damage to the property or injury to the person of my child aforesaid in the course of such tour or excursion, in the knowledge that the principal and his staff will, nevertheless, take all reasonable precautions for the safety and  welfare of my child.”

The SCA ruled that the exemption contained in the indemnity unambiguously absolved the school from liability, however, that Azar’s mother had accepted the exemption specifically on condition that the school took all reasonable precautions for the safety and welfare of her child. The school had failed to take these reasonable precautions and was thus held to be liable.

In the Durban’s Water Wonderland case, a mother and her two-and-a-half-year-old daughter were injured when they were flung from a ride at an amusement park as a result of a mechanical failure in the machinery. The seat that the mother and daughter were strapped to parted from the car and they were flung into the air. They missed the paved area surrounding the amenity and landed in a flowerbed.

The mother and father (in his capacity as the child’s father), instituted an action for damages in a local magistrate's court. In its plea, the amusement park denied that it had been negligent, and in addition pleaded that the contract that governed the ride had been subject to an indemnity exempting it from liability in respect of any injury or damage arising from the use of the amenities at the park. The indemnity read:

“…management…stipulate(s) that they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever.”

The SCA held that it was immediately apparent from the language employed in the disclaimer put up at the ticket office that any liability founded upon negligence in the design or construction of the park’s amenities, was covered by the disclaimer. The use of words 'do not accept liability' or 'unable to accept liability' meant that liability would not be incurred. The parents therefore lost the case.

If you have already signed an indemnity in favour of your child’s school, you cannot retract the undertakings you have given, unilaterally. It can only be amended by agreement between the parties (you and the school).

Our case law, tells us, that our courts have adopted the approach that indemnities are enforceable, particularly when the giver of the indemnity applies his or her mind to the content thereof. The CPA has sought to make this latter process unambiguous, by having that person initial alongside the margin.  Inserting a clause to the effect that in signing the indemnity you expect the school to at all times take all reasonable precautions for the safety and welfare of your child, will even the playing fields.