I am afraid I may have to stop watching and participating in the Go-kart that I love so much. Every time I arrive at the venue, I am required to sign the Go-kart waiver and liability release forms, which almost coerce me to indemnify the facility owners, employees, and all agents from blame or liability. Is this akin to forfeiting my rights?

Hallo go-kart enthusiast,

This column advances a justice-based argument rather than treating a signature on a consent form as conclusive proof of legality, whether the form derives its force from statute, policy, or another binding instrument. Article 19(3) of the Constitution provides that the rights and fundamental freedoms in the Bill of Rights belong equally to every person and are not granted by the State or any other agency. They are therefore universal, inherent, and inalienable. Remember, when a breach is alleged, Article 20 requires courts to apply the Bill of Rights, develop the law where it does not give effect to a right or fundamental freedom, and adopt the interpretation that most favours enforcement of the right. This framework, grounded in the interdependence of rights, provides a legally significant safeguard against socio-economic or political abuse and reflects the defining principles of human rights.

Although go-kart participants have long signed consent forms that purport to waive or release liability, that established practice does not make such forms absolute. Article 2(4) of the Constitution renders void any law or conduct, including contractual conduct, that is inconsistent with the Constitution. Our rejection of absolute waivers and releases is founded on this provision, read together with Article 24.

A go-kart waiver is a private contract governed primarily by contract law. Its legitimate purpose is limited to notifying participants of the activity’s inherent risks, recording their voluntary assumption of those risks, and limiting liability for injuries arising from ordinary, non-negligent hazards. The broader legal and justice framework, however, is that any limitation of a right must satisfy the conditions prescribed by the Constitution.

Person signing a legal document.

Photo credit: File| Nation

On this basis, no clause in a recreational waiver can extinguish the rights to life, dignity, security of the person, health, and fair legal process protected by Articles 26, 28, 29, 43, and 50. If go-karting is treated as a service, every participant is a consumer, bringing Article 46 of the Constitution and the Consumer Protection Act into operation. A participant pays for track access, use of karts, helmets, suits, and other equipment where applicable, the recreational experience, supervision and safety oversight. Article 46 requires goods and services of reasonable quality, information necessary to obtain their full benefit, protection of consumers’ health, safety, and economic interests, and compensation for loss or injury caused by defective goods or services.

In operationalising these constitutional protections, sections 3, 4, 12, 13, 55, and 56 of the Consumer Protection Act address conduct that, taken together, may reach unconstitutional extremes. The relevant wrongs include unfair commercial practices, false, misleading, or deceptive representations, attempted exclusion of liability for defective or unsafe services, and clauses purporting to waive statutory consumer rights.

Accordingly, go-kart operators and their agents or representatives cannot avoid liability arising from defective karts, poorly maintained tracks, inadequate or absent safety gear, negligent supervision, or failure to provide clear warnings of foreseeable hazards. The presence of any one safety measure does not, by itself, establish a safe go-karting environment. A detected fault may also make regulatory inspection reports relevant. In litigation, the responsible regulatory agency may consequently be joined as an interested party or respondent.

If go-karting is further characterised as a product transaction, the Sale of Goods Act becomes relevant. Sections 15 and 16(a) and (b) imply conditions and warranties concerning merchantable quality, fitness for purpose, correspondence with description, and safety and suitability for the intended use. The operator must therefore supply goods that meet these standards.

Case law has clarified the permissible scope of waivers and liability releases. In Qureshi v Aga Khan Hospital (2025), the High Court held medical practitioners and institutions jointly liable for gross negligence despite signed consent forms, reaffirming that a patient's signature on generic forms cannot waive fundamental duties of professional care or procedures performed outside authorised scopes. It is the opinion of this column that waivers are necessary instruments of business, but their interpretation must be strict, not to include negligence. The same concerns appear in the proposed Law of Contract (Amendment) Bill, 2025, which would prohibit exclusion of liability for death caused by negligence and subject other exclusions to a reasonableness test.

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In conclusion, both law and justice support the position that waivers do not extinguish rights, they allocate risk only within lawful limits. Although waivers may regulate civil liability, they cannot displace constitutional entitlements. Constitutional rights cannot be waived by private contract, particularly where the limitation fails the constitutional tests of legality, reasonableness, necessity, and proportionality.

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