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The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses
Mini Dissertation (LLM)--University of Pretoria, 2015.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2016
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| _version_ | 1867613560019877889 |
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| access_status_str | Open Access |
| author2 | Nagtegaal, A. |
| author_browse | Nagtegaal, A. |
| author_facet | Nagtegaal, A. |
| collection | Thesis |
| dc_rights_str_mv | © 2016 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini Dissertation (LLM)--University of Pretoria, 2015. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/53209 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:38:04.955Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2016 |
| publishDateRange | 2016 |
| publishDateSort | 2016 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/53209 The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses Nagtegaal, A. adelewestraat@gmail.com Westraat, Adele Suzanne UCTD SDG-03: Good health and well-being SDG-16: Peace, justice and strong institutions Law theses SDG-03 Law theses SDG-16 Mini Dissertation (LLM)--University of Pretoria, 2015. Exemption clauses are commonly used in hospital contracts to exclude the liability of the hospital or hospital personnel for personal injury or death and presented to the patient on a take-it-or-leave-it-basis. Patients usually sign these contracts containing the exemption clauses because it is impossible to negotiate the terms of the contract. Exemption clauses that are not contrary to public policy are enforceable between parties. Courts have generally favoured the application of the principles of freedom of contract and pacta sunt servanda to determine the enforceability of exemption clauses. The Consumer Protection Act, 68 of 2008 (CPA) was recently enacted, and among other things, it addresses the unfairness that is associated with exemption clauses and aims to improve consumer awareness. The common law principles were modified by the CPA. Exemption clauses, after the enactment of the CPA, are only enforceable if it complies with the requirements as set out in the Act. Exemption clauses must be drafted in plain and understandable language especially clauses that can be construed to be unfair and the risks pertaining to these clauses must also be drafted in an understandable manner. Such a clause must be brought to the patient s attention and a consumer must sign next to the clause after any term that can be interpreted as unfair terms and risks that is associated with such term is explained to him. A drafter should take into consideration greylist and blacklist terms when drafting exemption clauses, since certain clauses are prohibited and other terms are presumed to be unfair. A drafter can include a term that excludes liability for personal injury of the patient, but the hospital or its personnel will have to prove that such term is fair under the circumstances. A clause that excludes liability for death is not permissible. The enactment of the CPA was long overdue and it was vital, especially in respect of fairness of exemption clauses and the protection of patients against unfair contract terms. Private Law LLM Unrestricted 2016-06-14T09:45:25Z 2016-06-14T09:45:25Z 2016-04-14 2015 Mini Dissertation Westraat, AS 2016, The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses, LLM Mini Dissertation, University of Pretoria, Pretoria, viewed yymmdd <http://hdl.handle.net/2263/53209> A2016 http://hdl.handle.net/2263/53209 en © 2016 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD SDG-03: Good health and well-being SDG-16: Peace, justice and strong institutions Law theses SDG-03 Law theses SDG-16 The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title | The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title_full | The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title_fullStr | The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title_full_unstemmed | The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title_short | The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses |
| title_sort | influence and interpretation of the consumer protection act 68 of 2008 on hospital exemption clauses |
| topic | UCTD SDG-03: Good health and well-being SDG-16: Peace, justice and strong institutions Law theses SDG-03 Law theses SDG-16 |
| url | http://hdl.handle.net/2263/53209 |