On 27 August 2026, Gauteng Women in Insurance (GWII) hosted another thought-provoking Continuous Professional Development (CPD) session, this time exploring the topic Gone with the Window: A Safari, a Signature, and Serious Court Drama through an interactive mock trial.
Proudly sponsored by Leppard and Webber Wentzel in alliance with Linklaters, the session brought together insurance professionals for an engaging morning of legal debate, practical learning and real-world case analysis. Accredited for 1.5 CPD hours, the event examined the legal complexities surrounding indemnities, consumer rights and liability when a routine safari excursion took an unexpected turn.
A safari, a signature and a legal showdown
Led by Caroline Theodosiou and the Webber Wentzel insurance team, the mock trial was inspired by a real South African court case involving a guest who fell from a moving game-viewing vehicle through a window onto a tar road during a surprise birthday safari. At the heart of the dispute was whether an indemnity had been validly signed and, if so, whether it could shield the tour operator from liability in light of the common law and the Consumer Protection Act (CPA).
Explaining the case that inspired the session, the Webber Wentzel insurance team said: “The Mock Trial is based on the case of Tourvest Holdings (Pty) Ltd v Murti 2026 (3) SA 539 (SCA). Ms Anu Rekha Murti (Ms Murti) was surprised by her partner who planned a trip Southern Africa.”
According to the team, Ms Murti’s partner completed and signed all necessary forms, including the indemnity form indemnifying the company operating the tour, Tourvest Holdings (Pty) Ltd (Tourvest), from liability for injury.
The team explained: “As part of the tour, on 17 November 2018, Ms Murti was travelling in a safari truck in Botswana. The truck was fitted with large side windows to facilitate game viewing and private lockers accessible to passengers even while the truck was in motion. While the truck was moving, Ms Murti got up from her seat to access her locker, lost her balance and fell out of the window onto a tar road. She sustained injuries.”
Ms Murti claimed damages for injuries and Tourvest stated that they were not liable on the basis of the signed indemnity form. As the team explained, “Ms Murti argued that the form had been signed by her partner and that she had not seen or agreed to indemnify Tourvest from liability for injuries resulting from her participation in the safari trip.”
The High Court found in favour of Ms Murti and Tourvest then took the matter on appeal. The Supreme Court of Appeal (SCA) dismissed Tourvest’s appeal and upheld the High Court’s finding that Tourvest was liable for Ms Murti’s injuries.
Why this case matters to insurance professionals
The Webber Wentzel insurance team said the case was chosen because “it canvasses various important legal issues that are directly relevant to insurance professionals, including agency, consent, disclaimers generally, and when the CPA applies in consumer relationships.”
They added: “The facts are vivid: a surprise birthday safari, a partner who signs an indemnity form, and a window that gives way while the truck is in motion, making them ideally suited to a mock trial format.”
The case, they said, “provides a practical and engaging platform for insurance professionals to actively engage with each layer of the dispute and draw meaningful lessons for their day-to-day work.”
The legal questions at the heart of the dispute
The team explained that the court had to consider whether the tour operator could rely on a disclaimer in the brochure sent to Ms Murti’s life partner and an indemnity signed by him without her knowledge or consent.
This involved “actual, implied or ostensible authority, the applicability of quasi-mutual assent and the ticket cases, the prominence of the disclaimer, and the restrictive interpretation of exemption clauses.”
The court also had to determine whether the CPA applied even though booking and payment occurred abroad and, if so, whether Tourvest complied with ss 49 and 58 of the CPA by drawing the limitation of liability and the unusual and potentially serious risks to Ms Murti’s attention conspicuously, in plain language, and with adequate opportunity for comprehension.
The importance of the signature
The validity of the indemnity was central to the dispute. The team explained: “Our law establishes that a person may contractually agree to limit her right to claim for a loss caused by another, and Tourvest bore the onus of proving the conclusion of such a contract and its terms.”
They continued: “In this instance, the signature on the indemnity form represented the alleged agreement to indemnify for any liability. Ms Murti denied any knowledge of the indemnity form and its contents, which her partner, Mr Hannon signed.”
The team noted that the questions then turned to “whether Mr Hannon had authority to act on Ms Murti’s behalf and whether she was bound by the indemnity.”
When indemnities and disclaimers can be upheld
For businesses that rely on indemnity forms and liability waivers, the team highlighted the different forms of assent recognised by the SCA.
“The SCA confirmed that the court’s recognise three forms of assent to a disclaimer: actual consensus where the participant reads and accepts the terms; tacit consensus where a participant has seen the notice and realised it contained conditions but did not bother to read it; or quasi-mutual assent, where the defendant was reasonably entitled to assume from the participant’s conduct that he/she had agreed to the terms without having read them.”
The team further explained: “Absent actual authority, a disclaimer must have been displayed with sufficient prominence to reasonably come to the attention of the party against whom it is sought to be enforced.”
They added: “If a party wishes to contract out of liability, it must do so in clear and unequivocal terms. It should also always be borne in mind that disclaimers will be interpreted restrictively and against the drafter.”
The Consumer Protection Act raises the bar
Turning to the impact of the CPA, the team stated plainly: “The CPA raises the bar for liability waivers and indemnity clauses in consumer contexts.”
Section 49 of the CPA, they explained, “requires that any provision limiting a supplier’s liability must be written in plain language; its fact, nature and effect must be drawn to the consumer’s attention in a conspicuous manner likely to attract an ordinarily alert consumer; and the consumer must be given an adequate opportunity to comprehend the provision.”
Section 58 of the CPA further requires that the supplier of any activity involving unusual risks or risks that could result in serious injury or death must specifically draw the fact, nature and potential effect of that risk to the attention of consumers in a form and manner that meets the standards set out in section 49.
The team added: “Where a term fails to satisfy any requirement in section 49, a court may declare the notice void, remove it from the agreement, or declare it to have no force or effect with respect to the transaction.”
Public policy and freedom of contract
The team also considered the role of public policy, referring to Afrox Healthcare Bpk v Strydom (172/2001) [2002] ZASCA 73, where the SCA held that “a contract term that is so unfair that it is contrary to public policy is unenforceable in law”, and that the question is always whether enforcement of the relevant exclusion clause, due to either extreme unfairness or other policy considerations, is contrary to the community’s interests.
They also referred to the Constitutional Court’s decision in Barkhuizen v Napier (CCT72/05) [2007] ZACC 5, which “emphasised that courts should employ the Constitution and its values to achieve a balance that strikes down the unacceptable excesses of “freedom of contract” while seeking to permit individuals the dignity and autonomy of regulating their own lives.”
However, the team stressed that “it is important to note that the SCA found that the issue of public policy was not a determinative issue in this matter.”
Businesses must take responsibility for the indemnity process
The team emphasised that ultimately, “if a business wishes to enforce an indemnity, they bear the burden of proving it.”
Accordingly, they said: “it is advisable that the process of concluding indemnity agreements be closely supervised, each customer must sign their own indemnity, with an identifiable witness co-signing and confirming that the signatory is indeed the person whose particulars were inserted on the form.”
The team cautioned that “both businesses and customers alike should not approach disclaimers casually.” Businesses must comply with the CPA’s warning and notice requirements, while recognising that “the threshold is even higher if the service involves risks of an unusual character that could result in serious injury or death.”
Practical lessons for businesses
The SCA’s findings provide a clear practical lesson for businesses using indemnities. The team said: “It is clear from the SCA’s findings, that the key lesson is that Tourvest only had itself to blame for not obtaining a properly signed indemnity from Ms Murti herself.”
They added: “If a business wants every participant to be bound by a waiver, it needs to make sure each person actually signs it, and that the process is properly managed.”
A general disclaimer, they warned, is not necessarily enough. “A general disclaimer tucked away under a heading like ‘Insurance’ on the reverse side of a document is not enough if it does not clearly warn customers that the business is trying to avoid liability for negligence.”
The team added that “The warning also needs to be clear, easy to notice, and preferably given before the customer signs up, starts the activity, or pays.”
Ultimately, “The content of the indemnity needs to be clear, in plain language and not susceptible to ambiguity.”
What brokers and insurers should take away
For the insurance industry, the team identified a significant takeaway: “The big takeaway is that if a disclaimer is not properly obtained and clear, the business (and in turn their insurer) may have no defences available to them.”
They pointed out that disclaimers are “widely used in a host of industries, such as tourism, travel, events, sports, recreation, healthcare, transport and construction.” Insurers who provide cover for businesses in these industries should bear this in mind.
The team advised: “Brokers should encourage clients to use clear, properly managed signing processes, and to ensure that disclaimers are properly drawn to customers’ attention.” They added: “Disclaimers need to be drafted clearly.”
Importantly, “In disputes, businesses (and their insurers) bear the burden of proof and so it is vital that businesses retain all their documentary evidence.”
Waivers are more than paperwork
The session closed with a reminder that the process surrounding an indemnity is just as important as the document itself.
The Webber Wentzel insurance team said: “The case is a good reminder that waivers are not just paperwork, they need to be properly drafted, brought to customers’ attention, explained and signed.”
For insureds and insurers alike, they concluded: “the lesson is simple: if the indemnity process is not completed properly, the waiver may fall away, and liability may lie squarely on their shoulders.”