"Can I hold a business accountable for losing my important belongings on their premises?" Wendy Knowler advises

Imagine storing your valuables in a padlocked locker at your gym and having them stolen anyway, by a non-member who shouldn’t have been let into the gym, And then being told the gym is not liable because they put up disclaimer notices.

That’s just what happened to Bulelani Veto at Virgin Active’s Sunningdale branch back in March this year.

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One Saturday afternoon in March, he left his valuables in a padlocked locker and returned to find that his company-issued cell phone, private cell phone, a polaroid smartwatch, and his late mother's cellphone had been stolen.
 
When he reported this to the gym, he was asked to provide proof of ownership, which he did, and opened a case of theft at a police station.

But Virgin Active’s insurers then told him that his claim was “rejected in its entirety” because VA had no legal liability, given that they had disclaimer signs up.

They helpfully suggested that he claim off his own insurance, but none of the stolen items were insured.

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“I found the lawyers’ response perplexing and convenient,” he told me, “considering it was that branch of the gym which transgressed their own reception management rules by granting entry to a non-gym member, without any form of identification or proof of gym membership, and in so doing exposing us authorised gym members to theft and security related risks.”

To make matters worse, he was told by staff members that other members had had their valuables stolen from lockers at that gym. And when he opened a case of theft at a police station, a SAPS member told him he was the fifth person that week to report theft at a Virgin Active gym.


SO WHAT’S THE LEGAL POSITION?

The Consumer Protection Act states that an indemnity notice has to be conspicuous, but it can’t limit or exempt a supplier from liability for any loss directly or indirectly attributable to gross negligence of the supplier or any person acting or controlled by the supplier. 

Negligence is broadly defined as conduct which falls short of what a reasonable person in the circumstances would do to protect a person from a foreseeable risk or harm, while gross negligence is an entire failure to give consideration to the consequence of actions, a total disregard of duty.

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Responding, Virgin’s safety and facilities director Chris Evans said: “Our disclaimer notice is plainly worded and in clear view at the entrance to any club. The incidence of locker theft is not currently a concern, and is negligible proportionate to the total number of daily accesses per club.

"Should we ever notice an increase or identify a pattern, our full attention is given to the matter to ensure it doesn’t escalate. In the past we have employed the services of a private investigator in the instance where a pattern was observed, and have successfully brought the perpetrators to justice."

It’s a very important issue, given that we consumers are confronted by these disclaimer notices just about everywhere we go - building contracts, hospital admission documents,  “Enter at own risk” signage at the entrance to a facility or building, school consent forms (for the learners to go on a school outing), operators’ contracts for tours, rides, foofee slides, bungee jumping, rock climbing etc.

So I asked specialist consumer attorney Trudie Broekmann for her professional opinion on this. 

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She said each case was decided on its merits, with the following factors influencing judges’ decisions:

- When serious harm results, or where the consumer really couldn’t expect the type of harm or loss, but the proprietor knew about the risk, and where the risk is foreseeable, judges disregard the disclaimers. 

But in cases where the consumer is also at fault or the claim is petty, the judges often still enforce the disclaimer.  
 
WHAT TO DO:

Sign the disclaimer, but know that if you are harmed in some way or suffer losses due to gross negligence, that disclaimer won’t absolve the company involved from taking responsibility for what happened to you. 

Take a listen as Wendy Knowler shares more tips on how to resolve such matters:

LOYALTY PROGRAMMES ON THE UP AND UP…

How many loyalty cards do you have? And which one do you use the most?

According to the 2021 Truth & BrandMapp South African Loyalty Whitepaper -  a comprehensive annual snapshot of the loyalty habits of over 33,000 South African adults with a gross monthly household income of R10,000 or more - South Africans belong to an average of 8.7 loyalty programmes - more than ever.

Pick n Pay Smart Shopper has re-gained its position as the most used loyalty programme in South Africa, nudging the pharmaceutical chain Clicks and its ClubCard programme into second place. 

READ MORE: How to get insurance for your looted business with Wendy Knowler

Pick n Pay saw the greatest gains in retail loyalty programme usage versus pre-pandemic stats, showing 80% of South Africans using Pick n Pay’s Smart Shopper programme.

Overall, loyalty is up from 2019, taking the total number of respondents using loyalty programmes to 74%.  

Interestingly, the whitepaper highlights how the pandemic has flattened the gender curve for loyalty, with men now using loyalty programmes more and at a higher rate than women in South Africa

FNB is still leading loyalty in non-retail and is named THE loyalty programme which South Africans cannot live without.

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Whilst Pick n Pay and Clicks have dominated the top two spots in loyalty programme usage for the past five years, Dis-Chem Benefit finds itself in 3rd position once again. 

Newcomer into loyalty, Checkers Xtra Savings successfully secures 4th position as most used loyalty programme, 


OTHER HIGHLIGHTS:

FNB eBucks is still the most used loyalty programme in the financial services space and has been, in fact, the most used non-retail loyalty programme for the past six years.

When forced to choose one loyalty programme over all others, FNB eBucks is chosen as the one loyalty programme which South Africans cannot live without. 

Cash continues to remain king

Cashback remains the number one loyalty benefit of choice, followed by discount vouchers. All ages, income and genders vote for cashback. Amanda Cromhout, CEO Truth & Author of the whitepaper states: “Cash has never been more important than right now and throughout the past year in economically challenging times.  Cash-strapped South Africans have used their loyalty programme benefits to survive.”

Surprisingly, consumers still prefer to swipe a plastic loyalty card than identify themselves via apps.  In a touch-less society, driven by the global pandemic, it comes as a surprise that more South Africans prefer a card than in 2019, at a level of 76%.

Contact Wendy

Get in touch with Wendy via her website or her Facebook page. Please note that Wendy is not able to personally respond to every email she receives. If she is able to take up your case, she will contact you directly. Here are other avenues for you to consider.

Listen to more podcasts from Wendy Knowler in the Consumerwatch channel below: 

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