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Is Indemnity form the be-all, end-all

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The death of 13-year-old Enoch Mpianzi has sent tremors through the country. The grade 8 Parktown Boys’ High School pupil was confirmed dead on Friday after he drowned while attempting to cross a river in a hand-made raft on a school orientation camp. The camp was held at a Nyati Bush lodge in the North West.

It was discovered that another drowning incident happened at the same lodge a decade ago when a matric learner from Kimberley died during her hockey camp.

But one pressing question has emerged: could indemnity forms signed by the parents of Mpianzi and others absolve the school from being held accountable for the his death? Justin Malherbe, Senior Associate at Webber Wentzel says clauses which exclude liability for gross negligence are expressly prohibited under the consumer protection act.

Malherbe says it all depends on the circumstances whether gross negligence can be negated or not. “One cannot contract out of one’s own negligence or recklessness as our courts have discussed it in the past. But in theory it is possible that one can exclude liability for some types of conduct by agreement. Even if that conduct turns out to be negligent.”

Malherbe uncovers how the courts measure gross negligence. “In order to determine negligence the standard which our courts routinely apply is that of the reasonable person. It considers how a reasonable person would view and respond to a given factual situation.”

Malherbe firmly believes that further education is needed for both schools, and parents on the indemnity form and what it entails and the ramifications that comes with signing it. “One of the primary considerations for parties that enter an agreement such as this is, do both parties understand what they’re signing, and what they’re agreeing to? These clauses have to be crystal clear.”

The rule of thumb is for parents to make sure they know what they are signing. Some might see this as problematic as the child is seemingly being deprived of an holistic schooling career. “The bottom line is ultimately a court will take a dim view of any contract which has the effect of depriving children of their constitutional right to education.”

Lastly, the public is urged to be more aware of the risks they take as they navigate their lives from day to day.

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