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Study Unit 7.5

Exemption Clauses
and Prescription

Exemption Clauses

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Example:
Sharon decides to visit Water Wonderland, an amusement park
with exciting new rides. At the entrance, Sharon buys her tickets
at a booth where the following notice is displayed on the window:

“Water Wonderland is absolutely unable to accept liability or responsibility for injury

or damage of any nature whatsoever whether arising from negligence or any other
cause howsoever which is suffered by any person who enters the premises and/ or
uses the amenities provided.”

Sharon wants to first try out the new “Jet Ride”. While she is on
her first turn, the mechanism malfunctions and she is thrown
from the ride. She fortunately lands on a patch of grass but
nevertheless sustains injuries. Sharon wants to hold Water
Wonderland liable in delict but she is concerned that the
disclaimer posted at the ticket booths will exempt it from liability
for negligence. What would your advice to Sharon be?

Exemption clauses

• Prior agreement in terms of which

one person undertakes not to claim
damages if she suffers harm due to
conduct of other party
• Also known as –
• “Owner’s risk” clause
• Indemnity
• Disclaimer
• Typically found in indemnity forms for
potentially dangerous activities e.g.
bungee jumping

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Exemption clauses
• Also notices/ signs posted in parking garages, shopping
centres and other public venues e.g. “Vehicles are left here
at owner’s risk.”
• Usually in context of service being provided
• Exemption clause may exempt service provider from liability
for negligence
• Where person suffers harm arising from use of service, she
will not be able to hold provider liable (depending on wording
of exemption clause)
• Why deal with it here – under delict?
• Exemption clause may exclude both contractual and
delictual liability – limits liability, may determine whether
plaintiff has a claim in delict

Effect of exemption clauses

• Means that one party is “protected” (indemnified) against
delictual or contractual claims against him for harm which
may arise from –
• Breach of contract
• Failure to comply with legal duty not to act negligently (delict)
• Already seen: where defendant contractually excluded
liability for harm caused by negligence, plaintiff cannot get
around this by suing in delict [see SU 7.4.2]
• Note: Consumer Protection Act 68 of 2008 limits the scope
of exemption clauses in contracts – [see SU 9]

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Effect of exemption clauses

• Person bound by notice (plaintiff) will be held to the terms of
notice if she was aware of it or if it was so clearly displayed that
it can be said that she must have been aware of it e.g. posted
on ticket booth at amusement park
• If plaintiff not aware, service provider may still avoid liability if it
can be shown that the latter did everything that was reasonably
required to ensure proper notice to users
• Courts interpret exemption clauses restrictively
• Agreement to exclude liability for harm caused intentionally
not accepted by courts
• BUT: agreement to exclude liability for harm caused through
negligence is valid

Exemption clause on behalf of another person

• Requirements for valid agreement to exclude liability are the

same as for any other contract
• Means that authorisation is required in order to contract on
behalf of another person
• Where breadwinner enters into prior agreement that no claim
will be brought in the event of injury/ death caused by
negligence of other party: will not exclude right of his/ her
dependants to claim compensation for loss of support (in case
of death of breadwinner)
• Therefore: exemption clause that would have been effective
against deceased person not necessarily effective against
dependants

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Exemption
clauses

• BUT: accepted that

parents can conclude
exemption agreement on
behalf of minor child

• Typically where parents

have to sign form before
child can go on outing or
participate in sport

Back to example
Sharon wants to hold Water Wonderland liable in delict but she is
concerned that the disclaimer posted at the ticket booths will
exempt it from liability for negligence. What would your advice to
Sharon be?

Answer:
• Agreement deals with harm through negligence – valid from
that perspective
• Question whether Sharon was aware of notices at ticket booths
- so prominently displayed that she must have been aware?
• If answer is “yes”, defendant (Water Wonderland) will be able to
rely on exemption as a defence against Sharon’s claim

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Prescription

Note: Because the topic of prescription is covered in depth

in the module on civil procedure, this section contains
a very broad overview only.

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Prescription

• Effect of passage of time on

claims
• After certain period: no longer
possible to enforce claim arising
from delict – claim effectively
lapses or falls away
• Debt is now “extinct”  referred
to as “extinctive” prescription

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Prescription

• Prescription Act 68 of 1969: prescription periods for different

types of debt
• Generally debts have a three year prescription period
unless another period is specified.
• Debts that arise from delict also fall within this three year
prescription category.
• Note: Sec 23 of Road Accident Fund Act 56 of 1996
specifies different prescription periods for claims arising from
road accidents [we will cover this in SU 13]

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Beginning of prescription

• Begins to run as soon as debt is due:

• When all the elements of delict are present OR
• When debt is owing and immediately payable
• Question whether all elements of delict are present is often
determined by element of harm: debt only becomes due
when some harm has occurred
• Does not have to be all the harm that is anticipated
• Prescription begins to run as soon as some harm caused
• Effect of “once and for all” rule: plaintiff must claim for all harm/
loss arising from single cause of action at the same time –
including future loss

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Beginning of prescription

• Exception: continuing/ ongoing wrong

• E.g. factory spilling toxic chemicals into river for period of 8
months
• Continuing wrong causing ongoing harm: cause of action
exists over period of time during which harm occurs
• This means that debt to pay damages remains due during
the whole period

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Beginning of prescription
• What does it mean to say that the debt is due?
• Sec 12(3) of Prescription Act: debt not due until the creditor
has, or should have had -
• Knowledge of who debtor is
• Facts from which delict arises
• Important exception recognised in Van Zijl v Hoogenhout [2004]
All SA 427 (SCA)
• Please read judgment: summary in textbook not sufficient

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Delayed completion of prescription

• Sec 13(1) of Prescription Act: completion (ending) of

prescription may be delayed under certain circumstances
• Means that there is an obstacle/ impediment preventing
completion of prescription e.g. creditor (plaintiff) is minor
• Further examples:
• Debtor (defendant) is outside the Republic
• Creditor and debtor are married to each other

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Delayed ending of prescription

Example: plaintiff is 14 years old
when delict occurs

Cause of action arises

(all material elements Plaintiff Plaintiff After one
are present) turns 17 turns 18 year

PRESCRIPTION
ENDS

Three yrs
Prescription
starts running
Prescription would Obstacle to end
have ended, of prescription
but plaintiff is still falls away
a minor – end
of prescription
delayed

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Interruption of prescription

• This means that the “clock is stopped”: running of

prescription is interrupted
• Act provides for two types of interruption:
• Judicial interruption by service of process on debtor e.g.
where creditor (plaintiff) issues summons against debtor
(defendant) OR
• Where debtor acknowledges liability

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Prescription and the Constitution

• Prior to introduction of Constitution: special notice and
limitation periods for actions against State and state organs
• Effect was to limit claims against state organs (e.g. police)
• Constitution introduced: certain provisions declared
unconstitutional – infringing right of access to courts
• Institution of Legal Proceedings against Certain Organs of
State Act 40 of 2002: law reform
• Introduced to regulate and harmonise prescription periods of debts
in case of certain organs of state

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Significance of prescription

• Why is prescription so important to attorneys?

• Legal practitioners (especially attorneys) have professional
duty to ensure that client’s claim is instituted timeously to
avoid prescription
• Where legal practitioner does not bring claim in time: can be
held liable in delict for professional negligence
• Example: look at Mlenzana v Goodrick & Franklin Inc 2012 2
SA 433 (FB) again [SU 5.4.2]
• Another example: Question 3 in Sem Assessm 2 (Thandi &
Gideon)

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This is the end of Study Unit 7.

Please go back to the Learning Outcomes in the
MOD to ensure that you can complete them.

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