5 June 2019 – By Devan Baird (Candidate Attorney at Gert Nel Incorporated)
Bike parks are the location for both novice and experienced cyclists alike. But how does legal liability revolve around those who use the parks and those that own them?
The simple answer it seems is that legal liability on the part of the owners of such parks is waived by the users of such parks. One Bike Park provides an online indemnity form for users to complete. This indemnity agreement (herein after referred to as the agreement) provides that those cyclists using the park acknowledge that they forfeit substantial rights when using the facilities.
The agreement provides : “I acknowledge that by submitting this document, I am assuming risks and agree to indemnify, not to sue and release from liability…the indemnified parties and that I am giving up substantial rights”[own emphasis added].
And further that those cyclists who use the park fully understand and assume the risks associated with cycling. This include but is not limited to “the dangers of collision with pedestrians, vehicles, other riders and racers, fixed or moving objects, the dangers arising from surface hazards, including potholes, equipment failure…the riders own negligence, the negligence of others…the possibility of serious physical and/or mental trauma or injury, or death associated with cycling and competition; for myself, my heirs, executors, administrators, legal representatives, and that such persons thereby agree that none of the indemnified parties shall be liable to the injured party for any such loss or damage sustained as a result of death, injury…any loss or damage to any property occurring within the premises”.(own emphasis added)
The agreement goes on further to state that those riders/cyclists who make use of such facilities irrevocably waive their rights. It provides; “I hereby irrevocably waive, release, discharge, hold harmless and promise to indemnify and not to sue any and all of the indemnified parties, from any or all rights and claims arising from the riders own negligence”(own emphasis added).
Many other Bike / Theme Parks require cyclists who make use of such parks to irrevocably waive any rights they may have had in holding the indemnified parties liable.
One could accept that cyclists who injure themselves as a result of their own negligence may not be able to claim but under what circumstances will a cyclist still be able to hold the Bike Park owners liable despite having signed a waiver?
Take the example of a bike park owner who is aware of a potentially dangerous hazard on the premises, but takes no steps to ensure the safety of those riders who use the facility.
Regardless of any indemnification agreement, that purports to exclude liability on the part of the park owner, the Consumer Protection Act (hereafter referred to as the Act) regulates the terms that can be included in an agreement between a supplier and consumer. Part G of the Act deals with the right to fair, just and reasonable terms and conditions and section 48 provides that a supplier must not ‘offer to supply, supply or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable or unjust’(own emphasis added). In this regard section 48 further provides that a supplier of goods or services may not ‘require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer to waive any liability of the supplier on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction’ (own emphasis added). Taking the above into account in the context of the example illustrated above, any term that purports to exclude liability on the part of the park owner for damages resulting from injury caused to the rider as a result of the sole negligence of the park owner would not be justifiable in terms of section 48 of the Act. A term is considered being unreasonable, unfair or unjust if it is ‘excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied’ (own emphasis added). In this regard section 51 of the Act provides that a supplier ‘must not make any transaction or agreement subject to any term or condition if it purports to limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier’ [own emphasis added].
Section 58 provides that a supplier of any activity or facility that is subject to any risk that could result in serious injury or death must specifically draw the fact, nature and potential effect of the risk to the attention of the consumer in a form and manner that meets the standards set out in section 49(own emphasis added).
Simply put, even if the park owners draw the riders attention to the risk involved in using their facility, they cannot escape legal liability for injury sustained by riders using their facilities through terms included in an indemnity agreement, if the injury was the result of the sole negligence of the park owner, as such a term would violate the provisions of sections 48 and 51 of the Act.
As in all legal matters, legal precedents set by our judiciary need to be examined. Taking the same example of the park owner who knows about a serious and potentially dangerous hazard but does nothing to ensure the safety of those users, illustrated above, our judiciary has set precedent regarding the establishment of negligence. The court in Kruger v Coetzee, established the test for negligence. It provided that negligence is established through the individual who would foresee the reasonable possibility of his conduct causing injury/damage to another person or his property and causing such person patrimonial loss and would have taken reasonable steps against such occurrence and failed to take such steps. Therefore in the context of the above example sole negligence can be established.
In the context of an indemnity agreement, the principle of quasi mutual consent becomes applicable. This principle encompasses the idea that it is assumed, that a user of facilities goods/services, through the act of signing such an agreement, signifies their intention to be bound by the terms thereof. In order to rely on this principle however, a party has to demonstrate that it took sufficient steps to bring these terms to the notice of the other party and was therefore entitled to assume that by their conduct in going ahead and notwithstanding the disclaimer/ indemnity agreement, the other party had assented to the terms thereof. In this regard where one party seeks to be absolved either wholly or partially from liability which could arise at common law under a contract, it is for that party to ensure that the extent to which he, she or it is to be absolved is plainly spelt out.
In that regard the language used in such a disclaimer is of importance. Our judiciary has provided that if the language in a disclaimer is such that it exempts the party, which proposes a condition in a contract, in clear and
unambiguous terms then effect must be given to that meaning. However, if the language used is ambiguous or unclear then the language must be construed against the party that proposed the condition in the contract. Of further importance is the principle of public policy. The Constitutional Court has illustrated that public policy imports the notions of fairness, justice and reasonableness and would preclude the enforcement of a contractual term if its enforcement would result in an injustice.
In summary, a clause included in an indemnity agreement, which purports to release the indemnified parties from liability, resulting from damage caused by the sole negligence of the indemnified parties, would not pass Constitutional muster and would therefore be contrary to public policy as well as contrary to section 51 of the Consumer Protection Act. While liability can be avoided if terms are brought to the attention of the user and these terms have been laid out in a clear and unambiguous manner, liability cannot be avoided for damage caused as a result of the sole negligence of the park owner.
Consumer Protection Act 60 of 2008.
https://bikeparkuitsig.co.za/indemnity-agreement/ (accessed on 14/05/2019).
Kurger v Coetzee 1966 (2) SA 428 (A).
Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ) (3 April 2012).
First National Bank of SA Ltd v Rosenblom and Another 2001 (4) SA 189 (SCA).
Durbans Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA).
Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794.
14 May 2019 – By Reinhardt Nel & Taylor Burls (Candidate Attorneys at Gert Nel Incorporated)
In terms of the section 17(1) of the Road Accident Fund Act 56 of 1996, as amended, the Fund or its agents shall be liable for a claim of compensation under this section from any accident arising as a result from a motor vehicle being driven either by an identified or unidentified driver.
Compensation shall be awarded to a third party for any proven loss or damage that the third party sustained as a result of the accident.
According to the Road Accident Fund Act a motor vehicle can be defined as a vehicle designed for propulsion or haulage on a road by means of fuel, gas or electricity.
Thus, a bicycle does not meet the requirements of the definition given in the Act as it is not designed to be propelled by either fuel, gas or electricity.
Therefore, should a cyclist collide with either a pedestrian or another cyclist they will not be able to lodge a claim against the Road Accident Fund.
The Road Accident Fund Act, 1996(Act No. 56 of 1996)
6 May 2019 – By Taylor Burls & Reinhardt Nel (Candidate Attorneys at Gert Nel Incorporated)
With South African roads in such a bad state, many cyclists may wonder, do I have a claim for any damages I suffer should I get injured from driving into a pothole? The short answer is yes, as many courts have held municipalities or other government bodies responsible for injuries suffered by unfortunate victims who have driven into a pothole.
Such an example happened in 2008. During a group ride, Ian Vowles hit a pothole which left him with bad brain injury, a fractured skull, a neck injury and facial damage. Vowles spent a month in hospital after first being in a coma. Six years after the accident, the Durban High Court had ordered the eThekwini Municipality to pay R 2.1 million in damages suffered by the cyclist.
Another example is the Supreme Court case of McIntosh v Premier of the Province of KwaZulu-Natal. The appellant who was an avid cyclist suffered severe bodily injuries when he swerved into a pothole. The appellant proceeded to the High Court on the basis that he suffered damages due to the respondents being negligent in their duties of maintaining the road or even providing warning signs to make road users aware of the danger in the road. However, the court found that the appellant was solely liable for the injuries he sustained. The appellant approached the Supreme Court of Appeal stating that the pothole had been in existence for more than a year. There was no maintenance done on the public Pietermaritzburg road which caused the pothole to become large and dangerously deep. The Department in defence stated that there was no money to maintain the roads in KwaZulu-Natal.
Justice Scott in his judgment stated that the respondents could not provide sufficient evidence on the reason why their lack of funds caused them to neglect their duties on keeping the roads safe for all users.
Thus, a cyclist that suffered as a result of bad road conditions, need not be worried, they do have a claim for any injuries sustained as the government bodies responsible for road maintenance have a clear responsibility to maintain our roads.
Contact us today at: www.gertnelincattorneys.co.za should you have any queries in this regard.
McIntosh v Premier of the Province of KwaZulu-Natal and Another (632/2007)  ZASCA 62; 2008 (6) SA 1 (SCA) ;  4 All SA 72 (SCA) (29 May 2008)
2 May 2019 – By Bronwin Human & Rainier Rademan
According to the National Traffic Act 93 of 1996 (‘the Act’) cyclists are free to ride on any road except freeways or those roads which specifically prohibit cycling. Unfortunately, road accidents involving cyclists occur all too frequently, and the latest Arrive Alive statistics indicate that this prevalence is increasing. Which measures should our Legislature then introduce to protect the safety of cyclists on South Africa’s roads? Unfortunately, the Act currently places no duties on the drivers of motor vehicles to exercise due care when sharing the road with cyclists, but the Provincial Government of the Western Cape has enacted specific provincial legislation that may act as precedent to the other provinces.
Laws governing cyclists on South African roads:
While it is morally imperative that the drivers of motor vehicles take responsibility for the safety of those road users that are (more) vulnerable on our roads, like cyclists or pedestrians, it is also equally important that cyclists and pedestrians obey the laws as they apply to this subset of road users.
The Act enforces certain laws that apply specifically to cyclists. Cyclists are obliged to wear safety helmets at all times when using a public road; and must at all times be seated on the saddle of their bicycle. Furthermore, when cycling in a group, the cyclists must ride in a single file. There are also laws governing the bicycle itself. The bicycle must have at least one brake operating the rear wheel, a lamp fitted to the front of the bicycle which emits a white light, and white and red retro-reflectors must be fitted to the bicycle.
Cyclists should also conform to the laws that relate to races that take place on South African roads. When participating in a road cycling event which is sanctioned by Cycling SA, cyclists must hold a licence which has been issued by Cycling SA or which is recognised by the Union Cycliste Internationale (‘UCI’).
Cyclists holding Cycling SA licences are prohibited from taking part in any unsanctioned events. The importance of the sanctioning of cycling events lies in the regulation and oversight afforded to these events in order to ensure the maximum safety for the cyclists that take part in these events.
A formidable example to follow:
The Western Cape Provincial Government has gone to great measures to ensure the safety of cyclists on the road by implementing regulations specifically relating to the safety of cyclists.
The Western Cape Provincial Road Traffic Administration Act assigns a duty to drivers of motor vehicles to exercise due care when passing a cyclist on the road. This includes leaving a distance of at least one metre between the motor vehicle and the cyclist, and maintaining such distance until the driver is safely clear from the cyclist. Drivers of motor vehicles may even encroach any solid barrier line in order to safely pass the cyclist (where it is of course safe to do so). Drivers not adhering to these laws are guilty of a criminal offence and may become liable for a fine or be imprisoned.
While cyclists have every right to share the road with motor vehicles, and should be able to safely use the road, the unfortunate truth is that drivers of motor vehicles have little regard for the safety of cyclists. Even with the Stay Wider of the Rider initiative, drivers rarely pass cyclists safely.
The rights of cyclists as road users are severely dependant on preventative measures taken by them to ensure their safety. If cyclists follow the laws applicable to them and exercise extreme caution, they can minimise their chances of being involved in a serious accident, but until every province follows the exemplary measures taken by the Provincial Government of the Western Cape, we will not see a marked change in attitude from drivers towards the safety of cyclists on our public roads.
 Act 93 of 1996, section 323(1)(b).
 Note 1 above (Section 207).
 Note 1 above (Section 311(1)).
 Note 1 above (Section 311(2)).
 Note 1 above (Section 152).
 Note 1 above (Section 178).
 Note 1 above (Sections 186(3) and 187(4)).
 Cycling South Africa Rules and Regulations, Part 3: Road Cycling, Section 2, Paragraph 18.104.22.168 – 22.214.171.124.
 Western Cape Provincial Road Traffic Administration Act, 2012 (Act 6 Of 2012): Safety of Cyclists Regulations, 2013.
 Note 3 above (Section 2(1)).
 Note 3 above (Section 2(2)).
 Note 3 above (Section 6).
30 April 2019 – By Reinhardt Nel (Article Clerk at Gert Nel Inc.)
As we all know riding your bicycle on public roads can be a hazardous situation in South Africa, especially late afternoon as the sun is about to set or early morning.
During the evening the chances of a car driver missing you and causing an accident increases dramatically. There are however some new high-tech innovations to keep you out of the way of danger.
First of these is the Laserlight Core and it’s something really special. Simply attach it to your handle bars and it will project a symbol of a bike onto the road approximately 6 meters in front of you. This supposedly makes you up to 32 percent more visible to fellow road users.
Next up we have the Livall Bling Helmet BH60. This specially designed helmet has integrated LED indicators that highlights the direction that the rider of the bike intends to go. It is operated by a wireless handlebar mount. Further features include connecting with your smartphone to send out an SOS message if it has detected any unusual acceleration or sudden stoppage to alert a friend or family member that you were involved in an accident.
Lastly, we have the Hövding Airbag. Unfortunately, no matter how careful you drive, accidents do still happen. Although to many the Hövding Airbag might seem weird looking, it is in fact an inflatable collar that can replace the use of a helmet all together. The sensors within the device detects an accident taking place and triggers the airbag. One might think why not use a conventional helmet? Well tests at Stanford University have found that it may be up to 8 times better in preventing a concussion.
These devices of course don’t guarantee you safety, but with new tech innovations like these our roads might be just a little bit safer for all road users.
- Adele Peters “This bike-shaped laser projection warns cars that you’re coming” https://www.fastcompany.com/90248592/the-laserlight-core-warns-cars-that-youre-coming-with-lasers (Accessed 18 April 2019).
- https://beryl.cc/shop/laserlight-core (accessed 18 April 2019).
- Phil Barker “Check out the genius new cycling tech designed to keep you safe” https://www.redbull.com/za-en/best-new-cycling-safety-tech (Accessed 18 April 2019).
- https://livall.co.za/ (Accessed 18 April 2019).
- https://hovding.com/( Accessed 18 April 2019).
“Test At Stanford University: Airbag Helmet Protects Up To 8x Better” https://hovding.com/how-hovding-works/ (Accessed 18 April 2019).
18 April 2019
SPECIALIZED is a well-known brand in the cycling world as they were established already in 1974. Their motto is to “innovate and inspire to improve riders’ lives” and that they have definitely done in their new innovative helmet.
This helmet is called the ANGi Helmet which is a first of its kind. ANGi stands for Angular and G-Force indicator. This helmet is a patented design which has a sensor that measures the forces that occurred during the accident and also any harmful rotational forces, therefore the helmet in fact does not need to hit the ground.
The way in which the ANGi works is once there is a threatening danger the helmet will connect to the Ride App it will send your GPS co-ordinates to your emergency contact list, however, if you have not been hurt during your fall the Ride App will start a countdown which allows you to cancel this countdown and no notification will be sent out.
As we know cyclists often ride in areas where there is no cell phone signal, however SPECIALIZED has already covered that. If you know you are going to ride in an area where there is no cell phone coverage set your estimated time that you are going to ride. If you have not completed your ride within the time that you have set the ANGi will send your last location to your emergency contacts.
This piece of technology definitely fits the SPECIALIZED’s motto as it is innovative and will most likely save a rider’s life.
16 April 2019 – BY MR KEAGHAN TATE (ARTICLE CLERK AT GERT NEL INC.)
The National Traffic Act 93 of 1996 and the National Road Traffic Regulations outline the rights and duties of cyclists on the South African road network. Such provisions include required safety gear, designated and legal riding paths as well as standard rules of the road that apply to both motorists and cyclists alike.
In terms of the above-mentioned act, cyclists have specific rights and responsibilities conferred upon them when using national public roads. The act specifically states the following: It is illegal for a cyclist to ride without a helmet, the bicycle must be fitted with at least one brake, must have a lamp on the front and must have a retro-reflector on the front and back of the cycle. In terms of pathways, cyclists must stop at a red traffic light and give way to pedestrians, must ride on the left of the road, must be seated on the saddle at all times, must not deliberately swerve from side to side and multiple cyclists must ride single file at all times. Cyclists are cautioned to ride in designated lanes if the public road has such markings. Most importantly, in terms of regulation 323 of the act, cyclists are further strictly prohibited from riding on freeways.
The provisions outlined in the act are implemented solely to protect cyclists from potential impact or collision with motor vehicles. If the provisions of the National traffic at are contravened, the cyclist may be prosecuted in terms of the Act. In the alternative, Cyclists who were involved in an accident which was not caused by their sole negligence may in fact claim from the Road Accident Fund.
Therefore, it is clear that cyclists have very similar rights and responsibilities to motorists on national roads as they are both protected by the enacted legislation and may be covered by the Road Accident Funds in accidents that were not their fault. Further, they may also be prosecuted for contravention of the provisions set out in the Act, towards motorists and cyclists alike.
- The National Traffic Act 93 of 1996
- National Road Traffic Regulations
- Arrive Alive. (2019). Cycling, Rules of the Road and Road Safety. [online] Available at: https://www.arrivealive.co.za/Cycling-Rules-of-the-Road-and-Road-Safety [Accessed 11 Apr. 2019].
- co.za. (2019). Road Rules for Cyclists. [online] Available at: http://www.club100.co.za/road-rules-for-cyclists.html [Accessed 11 Apr. 2019].
- co.za. (2019). Home Road Accident Fund. [online] Available at: https://www.raf.co.za/Pages/Default.aspx [Accessed 11 Apr. 2019].
Many road cyclists these days are starting to avoid cycling on the road, and with good reason!
Cyclists are vulnerable and at the mercy of other road users travelling in vehicles or other dangerous “weapons”.
We, as cyclists, are at a disadvantage in South Africa as the average driver of a vehicle and/or otherwise are generally prone to a negative reaction towards cyclists and unfortunately lack the pro-cyclist culture seen in other Countries.
In fact a cyclist is a target on the road and should be mindful of the fact that he/she needs to do everything possible to ensure their own safety. They should also earn the respect of other road users, be seen by other road users, and must have a form of identification if involved in an accident with a vehicle.
Unfortunately, cycling accidents take place every day, many of them fatal, but the good news is there are a few things you can do to make the roads a less dangerous place to cycle.
Below are a few tips on how to safely cycle on roads:
- You set the tone
One of the reasons fellow road users dislike cyclists are because cyclist ignore the rules of the road.
Try to follow the rules of the road, as far as reasonably possible.
We know that stopping at a stop sign or red robot eats into those precious Watts generated in the approach, however think of the bigger picture – safety comes first.
It simply is not worthwhile pacing yourself against a motorist and coming second, the result will be life changing and not in a good way. Rather wait one or two seconds until you are completely confident of your safety and then proceed.
Do not jump red lights and do not cycle two abreast on a busy road and try and stay in the yellow line and/or as far as possible to the left-hand side of the road.
Count to two before entering an intersection. The fact that the robot is red for the other party does not mean they will stop – make sure.
Set an example. You can change attitudes by adjusting your own approach to road safety and rules.
- Wet weather woes
In wet weather watch your speed as surfaces may be slippery and it will take you longer to stop. The same applies to motorists as it takes them longer to stop as well.
Your vision is also affected in rainy weather which means it might be harder for motorists to spot you and you them.
Be cautious to ride your bike through puddles, there may be hazards hidden beneath the water that you can’t see.
Again, ensure that you are seen. The last thing any motorist would expect on a rainy day would be a cyclist.
Try and prevent cycling in wet or muddy conditions.
Rain causes all sorts of debris to litter the road which in turn causes flats and other unwelcome headaches.
Muddy conditions have an adverse effect on the maintenance and longevity of a bicycle – rather have a cappuccino and slice of carrot cake and plan your next safe ride.
- Brighter is better
A survey showed that yellow, white and green colours are the most visible to motorists (see picture below).
Ensure that you wear a kit that is clearly visible and draws attention.
Try and prevent cycling after dark.
We know many cyclist prefer training early morning, especially in winter when it is still dark. In the event of training in the dark you owe yourself the duty to ensure that you light up like a Christmas tree when caught in a vehicles’s lights.
Always ensure that you have a clearly visible red light (at the back) and white light (in the front) mounted on your bicycle if cycling in the dark.
Be cautious not to attach the lights to your bike where the beam might be obscured, for instance, behind a tool or saddle bag.
Ensure that the front light (beam) does not interfere or cause uncomfortable glare of an approaching driver’s view.
Always wear appropriate cycling gear, such as a helmet and eyewear.
Head injuries cause a high percentage of all cycling deaths – much of which can be prevented by wearing a helmet.
Wear proper eyewear to protect your eyes from dirt, wind and bugs.
Cycling eyewear with photo chromatic lenses are a must.
Make sure to also keep your bike roadworthy and well-maintained.
- Demand to be Seen
Ensure that when you train on the road that other road users can see you.
Remember if you are cycling into the sun motorists approaching you from the back will have difficulty seeing you, take caution.
Bright and/or reflective clothing is important (see color chart above).
Make eye contact with other road users, especially at junctions, then you know they’ve seen you.
Be courteous and friendly when other road users acknowledge you.
Allow ample time to inform vehicles behind you of your intention to turn either left or right with hand signals.
Use your bell – not all pedestrians can see you.
Point out traffic hazards like potholes and rocks to other cyclist next or behind you.
- Don’t Assume
Many road crash accidents occur when a cyclist is on the inside of a vehicle which is turning right or left.
Don’t assume the vehicle is going straight ahead just because it isn’t signaling.
Always avoid overtaking any vehicle in this situation – it’s better to hang back until the vehicle has moved off.
Never cycle along the inside of large vehicles, such as trucks and buses, especially at junctions, where most accidents happen.
Avoid swerving left and right on the road as this can confuse motorists, keep to your line.
Make sure the driver of a vehicle sees you. Don’t assume that you have been seen and proceed regardless as it could end in a nasty surprise.
Avoid drafting behind a moving vehicle, if it applies its brakes unexpectedly you could crash into it.
And remember wearing Lycra does not make you bulletproof.
- Not Negotiable
Listen to reports on recent hi-jacking and accidents in a specific area and avoid at all costs.
Never cycle alone.
Make sure you know the basics on bicycle maintenance like changing a tyre or “plugging” a tyre.
Cyclists must make sure that they wear an emergency bracelet.
The ICE (In Case of Emergency) Id is an indispensable accessory for cyclists as it offers emergency and medical information if you are unable to speak or disclose the information due to an accident or otherwise.
An ICE Id can prevent you from mistakenly being admitted in a Provincial as opposed to a Private hospital.
Many cyclists owe their lives and literally limbs to the fact that they were wearing an ICE Id bracelet, allowing emergency medical personnel to immediately make the right decisions regarding treatment, allergies, etc.
- Recovery ride
Gert Nel Incorporated has partnered with ICE ID to offer our clients and the public at large the opportunity to secure a sought-after, branded Gert Nel Incorporated, ICE ID at a 20% discount, in a choice of “Sky Blue” or “Black”.
The Gert Nel Incorporated ICE ID has our call centre number embossed for ease of reference, in addition to our logo and the wearer’s personal and emergency information.
Read more on the ICE ID here.
If you require any legal advice on cycling accidents, please read the following article.
Readers are also invited to order your Gert Nel Incorporated Cycling Kit – designed to be classy and visible.
For more details click here.
By following these safety tips we as a cycling community can all contribute to creating a positive road cycling atmosphere and culture, respected by all motorists and ensuring that the rights and freedom of all road users are protected.
Everyone is equally entitled to using the road but we as cyclist should take road safety to the next level. Think ahead and don’t take unnecessary chances, it simply is not worth it.