REVISITING THE INTERPRETATION OF EXEMPTION CLAUSES Drifters Adventure Tours CC v Hircock 2007 2 SA 83 (SCA)

Abstract

The influence of the Constitution on the enforceability of exemption clauses contained in contracts has received some attention in the recent jurisprudence and literature on the subject. (Tladi “One Step Forward Two Steps Back for Constitutionalising the Common Law: Afrox Healthcare v Strydom” 2002 2 SA Public Law 473-478; Young “Indemnification Clauses in Multiple Contract Transactions” March 2002 IBL 115-118. Van der Heever “Exclusion of Liability in Private Hospitals” April 2003 De Rebus 47-48; Richardson “Managing HIV/AIDS Impact No Easy Task; Interpreting an Indemnity Clause: Insurance” Jun-Jul 2005 Executive Business Brief 28-29; Hopkins “Exemption Clauses in Contract” June 2007 De Rebus 22-25; and Visser “Drifters Adventures Tours CC v Hircock [2006] SCA 130 (RSA)”2007 1 De Jure 188-193.) In particular, decisions of the Supreme Court of Appeal, the traditional upper custodian of the common law, have drawn much interest and criticism for their apparent failure to approach contractual issues from a constitutional perspective. The recent case of Drifters Adventures Tours CC v Hircock (2007 2 SA 83) provides a further opportunity to obtain some insight into that court’s approach in interpreting exemption clauses in contracts. This note endeavours to analyse the court’s approach and decision in the Drifter’s case against the background of the well-established traditional approach to contractual interpretation as well as recent cases which have raised the role of the Constitution with respect to exemption clauses. A further objective of this paper is to consider the impact of the court’s decisions on the wording which drafters of such clauses choose to use when seeking to protect their clients or themselves.