Written by Roy Bregman, admitted attorney with over 51 years’ experience in commercial litigation and consumer law.
Last updated: 24 August 2026
| Key takeaways
• You can still exclude liability for ordinary negligence. You cannot exclude liability for gross negligence or dishonesty, and a clause that tries to is void. • Most disclaimers fail on how they were displayed, not on what they said. That is a management problem, not a drafting problem. • The Supreme Court of Appeal has recently upheld one disclaimer and rejected another on the same legal test. The difference was evidence. • Your largest exposure is usually not the clause at all. It is your records, and how your team behaves once a claim is on the table. |
Yes, your business can still exclude liability in South Africa, but the ground has narrowed considerably and most standard disclaimers in use today would not survive a properly argued challenge. The Consumer Protection Act 68 of 2008 did not outlaw exemption clauses. It did two things that matter to any board. It made certain exclusions void outright, and it imposed a notice standard that a great many businesses are quietly failing.
What does the Consumer Protection Act prohibit outright?
Three things, and there is no room to negotiate on any of them.
Section 51(1)(c)(i) prohibits any term that limits or exempts a supplier from liability for loss attributable to its own gross negligence, or that of anyone acting for it. Gross negligence means a serious and reckless departure from the required standard, not an ordinary mistake. A term that contravenes section 51 is void by operation of the Act. No court declaration is needed.
Section 51(1)(b) prohibits any term that waives a consumer’s rights under the Act or avoids a supplier’s duties under it. Read with section 54(1)(b), which entitles a consumer to services performed in a manner and quality that persons are generally entitled to expect, this puts blanket exclusions of service quality at real risk.
At common law, quite apart from the Act, you have never been able to exclude liability for your own fraud or dishonesty, and you never will be.
Section 48 sits behind all of this and prohibits terms that are unfair, unreasonable or unjust. The distinction worth knowing is one of mechanism. A section 51 term is simply void. A section 48 challenge requires a court or the Tribunal to declare the term unfair and to grant relief under section 52. In practice that means a section 51 defect is fatal, while a section 48 defect is a fight.
Why do most disclaimers actually fail?
On notice, not on wording. Section 49 requires that any term limiting your liability, or asking a customer to assume a risk, be written in plain language and drawn to the customer’s attention in a form likely to attract the attention of an ordinarily alert consumer, with an adequate opportunity to understand it before committing.
Two recent judgments show what that means on the ground, and they were decided on the same legal test.
In Cenprop Real Estate (Pty) Ltd v Holtzhauzen [2022] ZASCA 183 the Supreme Court of Appeal held a shopping centre liable to a woman who slipped on a wet tiled floor. The disclaimer notices existed, but the board inside the mall was obstructed by objects and nobody had done anything about it. The defence failed, and the centre paid.
In Siyamanga v Balcony Shisa and Chill [2025] ZAGPJHC 67 the High Court in Johannesburg dismissed a slip and fall claim outright. The notice was hung on the wall at the main entrance, the heading was in large print, the paragraphs were separated and legible, and two employees could testify that it had been there throughout. The claim was dismissed with costs.
The same law, opposite results. The difference was housekeeping and evidence.
It is worth noting how narrowly the restaurant escaped. Its notice purported to exclude liability even for gross negligence, which section 51(1)(c)(i) prohibits. The Consumer Protection Act was simply never argued against it. A better prepared opponent would have taken that point, and the outcome could have gone the other way.
| Factor | Where it usually fails | What a court wants to see |
| Wording | A blanket exclusion covering gross negligence and every conceivable loss | Clear, unambiguous language, with gross negligence and dishonesty expressly carved out |
| Visibility | A notice behind a plant, above eye level, or obstructed by stock | Displayed where a person would expect to find it, at the point of entry |
| Legibility | A large heading over five lines of small grey print | A distinct heading and body text an ordinary person can read at a glance |
| Signed forms | The clause buried in a block of terms above the signature | Its own heading, its own initial or signature, and a copy given to the customer |
| Evidence | Oral evidence years later that the notice was probably there | Dated photographs, installation records and staff who can testify |
| Consistency | Notices at some entrances but not others, or wording left over from a previous owner | The same current notice at every point of access, reviewed on a schedule |
Does a properly drafted clause still work?
It does, and the highest court in the country has confirmed it. In Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd [2023] ZACC 20 the Constitutional Court upheld an exemption clause in a freight forwarding contract even though the loss arose from theft by the supplier’s own employee. The court divided six to five, but the majority held that the clause did not offend public policy, reasoning in part that the customer could have made special arrangements in writing and that the risk could then have been insured and priced.
That was a commercial contract between two substantial companies, so the Consumer Protection Act did not apply. The lesson for a board is nonetheless a practical one. Where you are dealing business to business and outside the Act, a clear and carefully drafted allocation of risk will usually hold. Where you are dealing with consumers, it will not carry the same weight, and you should be pricing and insuring on that basis rather than relying on the clause.
What is the risk that is bigger than the clause?
Your records, and your conduct once a claim arrives.
In Itokolle-Clinix Private Hospital (Pty) Ltd v MNT obo DORM [2025] ZASCA 153 a private hospital was held jointly liable for a child born with cerebral palsy after its midwives failed to monitor the mother and foetus properly. No exemption clause was raised at all. What sank the hospital was the record keeping, notes that did not match the partograph, and its decision not to call the sister who had made the key entries.
The costs finding should concentrate any executive mind. The claimant had offered before trial to settle on the basis of 85 per cent liability. The hospital rejected it, counter offered at 20 per cent and then 50 per cent, ran the trial, and lost on 100 per cent. It was ordered to pay costs on the attorney and own client scale from the date of that offer, because rejecting it had been unreasonable on the material the hospital already had.
That is the modern shape of the risk. Litigation is decided on documents and expert evidence, and unreasonable settlement decisions now carry a punitive costs tail.
What should a board actually do?
Where does this leave you?
A disclaimer is a risk management tool, not a shield. Treated as a shield, it encourages exactly the complacency that produces the claim in the first place, and it will not be there when you reach for it.
The businesses that come through these cases well are not the ones with the most aggressive wording. They are the ones that can produce a dated photograph, a clean maintenance log, a trained employee who remembers the procedure, and a defensible decision on when to settle. Those things are all within management control, and none of them requires a court to decide anything in your favour first.
Frequently asked questions
Are disclaimer notices legal in South Africa?
Yes. Disclaimer notices remain lawful and enforceable. What the Consumer Protection Act changed is their reach. A notice cannot exclude liability for gross negligence or dishonesty, and it binds a customer only if reasonable steps were taken to bring it to that customer’s attention before they committed.
Can a business exclude liability for negligence in its terms and conditions?
For ordinary negligence, generally yes, provided the wording is clear and the clause was properly drawn to the consumer’s attention under section 49. For gross negligence, no. Section 51(1)(c)(i) prohibits it outright and the term is void to that extent, however carefully it is drafted.
Does the Consumer Protection Act apply to business to business contracts?
Not usually. The Act protects natural persons and only those juristic persons below the prescribed asset and turnover threshold. Contracts between substantial companies fall outside it, which is why the Constitutional Court could uphold the exemption clause in the Fujitsu case in 2023.
What happens if our disclaimer excludes gross negligence?
That part of the clause is void. Whether the rest survives depends on the wording and on severability, but the practical risk is worse than the legal one. A prohibited exclusion signals to a court that the document was drafted without regard to the Act, and it makes every other term easier to attack.
Have your terms reviewed before someone else tests them
We review exemption clauses, disclaimer notices, admission forms and standard trading terms for hospitals, clinics, retailers, landlords, gyms, schools, event organisers and service businesses. We tell you plainly which parts are void, which are vulnerable, and what has to change on the premises rather than only on the page.
Telephone +27 (0)11 646 0335, email roy@bmalaw.co.za, or visit bregmans.co.za. We are at Suite 316, Killarney Mall, Riviera Road, Killarney, Johannesburg. Every email we receive is followed up with a phone call.
| Free download: The Disclaimer and Exemption Clause Compliance Checklist
A four part checklist covering drafting, display, evidence and governance, with the three exclusions that are void outright and the records to keep so that your disclaimer still works three years later when the summons arrives. |
This article is general information about South African law and is not legal advice on your particular situation. Bregman Moodley Attorneys Inc., Suite 316, Killarney Mall, Riviera Road, Killarney, Johannesburg. Telephone +27 (0)11 646 0335.