There has been much discussion around disclaimer notices in community schemes, mainly concerning the correct wording thereof. However, the effectiveness of a disclaimer is also determined by other factors which are often neglected.

Wording

The disclaimer must be worded in plain and concise language for ease of reading and understanding. More importantly, the language used must be unambiguous.

Location & Visibility

The consumer must be made aware of the fact, nature, and effect of the disclaimer notice. To achieve this, one must consider its size, distance from the viewer, visibility, font, and positioning when affixing it to the premises.

Opportunity

The consumer must be given an adequate opportunity in the circumstances to receive and comprehend the disclaimer notice. In other words, the disclaimer notice must be properly displayed.

Negligence

An effective disclaimer notice does not absolve the body corporate or HOA from the duty of care “owed” to the public. Should any person or animal suffer bodily or material harm as a result of gross negligent conduct, the scheme will stand to be held liable.

There is an important legal distinction between “negligence” and “gross negligence”. Negligence implies that harm was caused that resulted from a careless mistake or inattention. Gross negligence infers an additional element of deliberateness or recklessness that can only be determined by context.

Negligence is established by the “reasonable person” test which asks the following questions as simplified here:

1.     would a reasonable person have foreseen the possibility of harm;

2.     would a reasonable person have taken steps to avoid the possibility;

3.     did the person fail to take the steps which he or she should reasonably have taken to avoid it?

If all three questions can be answered with “yes”, a case of negligence can be proclaimed. Whether gross negligence is at play will be subject to further investigation.

Below are examples of judgments relating to disclaimer notices:

–      Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A)

–      Klaassen v Blue Lagoon Hotel & Conference Centre Case No 2154/2011, Eastern Cape Local Division, judgment delivered on 12 September 2014

–      Black and others v Erasmus and others [2021] JOL 49992 (NWM).

Infectious Diseases

Liability from claims relating to infectious diseases (such as COVID-19) is covered under the wording concerned with “illness or death”, however, indemnity also requires compliance with the prevailing government regulations. As explained above, the disclaimer notice does not protect against gross negligence.

Video Surveillance

The community scheme must process personal data and CCTV footage in compliance with the POPI Act and, therefore, cannot be indemnified from its responsibilities by a disclaimer notice.

Where can I get a disclaimer notice for my complex?

Generic disclaimer signs are available online for less than R100, however, these are unlikely to be adequately worded or suitable for prolonged outdoor use.

A specialist attorney will advise you on the correct wording for a cost ranging between R1 000 and R3 000, while custom-printed signs typically cost anywhere between R200 and R800 per sign, depending on your preferred size, material, quality and vendor.

Prices

Signs can be ordered at subsidised prices from merch@mirfin.co.za.

Please state the required size, quantity and your shipping address.

Disclaimer: Mirfin Valuation Services (Pty) Ltd is not a provider of legal advisory services. The above information has been compiled from consultations with legal advisors.
Mirfin Valuation Services (Pty) Ltd is not liable for the use of the information.