29 October 1999
Ann Eveleth and Aaron Nicodemus
Roelf de Waal lived his life to the full, revelling in daredevil sports such as hang- gliding and flying, and keeping active as a competitive cyclist, horse- riding teacher and falconer.
These days, De Waal ( 49) spends his mornings navigating the stairway of his Pretoria home with the help of a walking frame.
Hours after his cycle team claimed 25th place in the Cape Town Argus race in March 1995, De Waal’s active lifestyle came to an abrupt end when the rented minibus ferrying him home to Johannesburg overturned.
He suffered permanent brain damage and will never work – or walk unassisted – again.
De Waal’s multimillion – rand lawsuit against Avis, the multinational car rental company he says rented his company a vehicle with faulty tyres, was heard in the Johannesburg High Court this week.
Although the case will turn on the usual technicalities of personal injury lawsuits, Avis’ defence brought into focus a glaring gap in South African consumer protection legislation.
Avis points to a clause in its rental contract that says, “Avis shall not be liable for any damages arising out of any defect in or mechanical failure of the vehicle; nor for any loss of or damage to any property transported or left in the vehicle; nor for any indirect damages, consequential loss, loss of profits or special damages of any kind for any breach of this agreement.”
In short, Avis says clients hire the company’s vehicles at their own risk.
Avis legal officer Eugene Thom says the clause is a standard feature of Avis contracts in South Africa.”The terms and conditions are different for each country, according to the laws of that country.”
But a top Johannesburg advocate slammed the dearth of protective legislation that allows companies to include such clauses in their contracts.
Wim Trengove, SC, says such clauses are symptomatic of South Africa’s “outdated freedom of contract that has not yet been appropriately addressed by social protective legislation. Other countries have fair trade terms laws which limit the ability to contract out of responsibility.”
One such country is the United Kingdom, where the head office of Avis’ parent company, Avis Europe plc, is located. Such clauses have been outlawed in the UK since 1977, in terms of the Unfair Contract Terms Act.
The British Act says : ‘A person cannot by reference to any contract term, or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”
Agnes Tsele, a deputy director in the national consumer affairs directorate of the Department of Trade and Industry confirms the absence of similar delimiting legislation in South Africa. This legal gap allows liability limitation clauses to flourish across a range of industries , often to the benefit of corporations and sometimes to the detriment of consumers.
A representative of Budget Rent-a – Car says such clauses are standard across the local rental car industry.
Tsele says the Unfair Business Practices (Consumer Affairs) Act was amended last year to enable a national consumer affairs committee to investigate a wide range of unfair business practices.
“In my view, this would include whether liability clauses which unfairly prejudice consumers should be allowed,” says Tsele says.
Unfortunately, any such investigation may come too late to benefit people such as De Waal, who has asked the court to award him R3.4 million in compensation for past and future medical bills, lost earnings, pain and suffering, and lost amenities of life. But, he says, even if they pay me R20- million, my life will never be the same.”