The word indemnification means security or protection from financial liability. It usually takes the form of a contractual agreement between the parties, in which one of the parties agrees to pay for any loss or damage suffered by the other party. The court stated that in the event of an error in this regard, it would consider whether or not the defendant`s liability could be excluded by the compensation contained in the registration document. The relevant registration document contained a number of waiver and indemnity clauses, including a clause agreeing that the defendant would not be liable for bodily injury „for any reason, including, but not limited to, damages… „, a waiver and waiver of all claims of „. whatever the nature and all that is created… ” and recognizing that waiver and surrender are based on „. any claim, for any reason whatsoever… ». Trade (customs and excise duties) – Interpretation of the exemption clause – Liability to customs duties, VAT and other charges: in Cornerstone Logistics (Pty) Ltd and Another v. Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA), the defendant (Zacpak), holder of a customs and excise warehouse licence, was liable within the meaning of Article 19(6) of Law 91 of 1964 on Customs and Excise for customs duties and VAT on all goods stored in its warehouse. That liability arises only if it is established that the goods in question have been duly declared within the meaning of Article 20(4) of the Law, either for domestic consumption or for export, and have been delivered or exported in connection with that introduction.

These clauses constituted waiver and indemnity clauses, which the court referred to as „compensation” for the purposes of the judgment. In Cornerstone Logistics (Pty) Ltd and Another v Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA), interpretation of the indemnification clause – liability for customs duties, VAT and other charges on goods originally stored in a warehouse and not exported. Any provision which in any way limits the risk or liability of the supplier, constitutes the assumption of the risk or liability of the consumer, imposes on the consumer the obligation to compensate the supplier for whatever reason, or constitutes an acknowledgement of a fact by the consumer, must be brought to the attention of the consumer. The provision must be written in clear and intelligible language and the consumer must have a reasonable opportunity to fully accept and understand the provision. What remains clear in our current legislation is that, despite the CPA, the world of compensation is still thorny and requires careful consideration. The plaintiff also argued that the compensation fell within the provisions of paragraphs 48(2)(a) and (b) of the Consumer Protection Act (CPA) and that its terms were unfair, unreasonable or unjust and that the respondent had failed to comply with subsections 49(2) and 58(1) of the CPA>. The court was also aware that the presumption of unfairness in section 44(3)(a) of the CPA is only indicative and that a clause listed in these regulations may be unfair in the particular circumstances of the case. The tribunal stated that, in view of the presumption of injustice provided for in paragraph 3 of the Rules and the question of whether or not compensation was fair in the particular circumstances, it would focus on the reasons advanced by the claimant in support of the argument that compensation was contrary to public policy. The court also had to consider whether it would be unfair to apply compensation. The plaintiff argued that compensation should be interpreted narrowly and limited to activities such as game watching, boat trips and hiking trails. The applicant was aware of the existence of the pool.

It was visible from the point of view of the sun loungers at the entrance to the bridge. She hadn`t forgotten the pool. In these circumstances, the court stated that it would not be unfair to impose compensation. The court distinguished the situation from that of the court in Naidoo v Birchwood Hotel 2012 (6) SA 170 GSJ, in which the court found that the plaintiff had proved the hotel`s negligence, but did not determine whether the disclaimer in question was inappropriate or not, but concluded that it would be unfair and unfair in enforcing them. The Naidoo Court ruled that entry and exit are an integral part of a guest`s stay in a hotel and that a guest does not take charge of his life when he walks through the doors of the hotel. These factors all affect indemnities and waivers and the law that governs them, including our common law, because the CPA is a legal act that overrides the provisions of the common law. However, the CPA does not completely prohibit compensation. It only captivates them by limiting its scope and impact on the consumer. Providers may continue to have disclaimers and indemnities, and consumers may continue to be bound by them, provided that these disclaimers and indemnities meet the requirements of the CPA.

The complainant (Cornerstone) had applied to Zacpak for credit facilities for warehousing services and signed the application form waiving the benefits of exclusion and sharing. Cornerstone asked Zacpak to store goods in its warehouse. Zacpak then handed over the goods to a road truck (bridge), which was to export the goods to Mozambique. Although the shipments were declared for export to Mozambique, they were illegally diverted and therefore transferred to South Africa for domestic consumption. When the South African Revenue Authority demanded payment of the duties, Zacpak successfully enforced its compensation clauses against Cornerstone in court. That is what led to this appeal. If the indemnification was well worded, it was enforceable, although over time our courts have developed clearer guidelines for assessing the enforceability and scope of indemnification provisions.