Understanding the Consumer Act

Jonathan Le Riche, an associate at Phatshoane Henney Attorneys, said a disclaimer is generally a way for an entity or a company to deny liability or a waiver of responsibility for damages or losses which occur on their premises.

In Nkuna’s case, the disclaimer specifically refers to losses which could occur on the premises of the employer, to which Nkuna would have agreed. Such a disclaimer does not cover damages that are caused by the direct negligence of an employee. He said the employer can also be held liable in terms of vicarious liability; that the employee acted negligently in the course and scope of employment.

Le Riche said in terms of section 49 of the Consumer Protection Act: “Any notice to consumers or provision of a consumer agreement that purports to limit in any way the risk or liability of the supplier or any other person; constitutes an assumption of risk or liability by the consumer; impose an obligation on the consumer to indemnify the supplier or any other person for any cause; or be an acknowledgement of any fact by the consumer – must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of subsections (3) to (5). “A consumer must understand what risk is involved, the obligations it is agreeing to and the consequences of agreeing to these obligations. “In this case, the consumer would need to be aware of the disclaimer and that by accepting the terms thereof, indemnifies the employer from lability.