Donald Dinnie

How does good faith feature in our law of contract?

By Donald Dinnie on July 28, 2021 Posted in Interpretation

The July 2021 Supreme Court of Appeal judgment in Capitec Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Ltd and Others (10530/2020) [2021] ZAWCHC 65, deferred to the Constitutional Court in Beadica 231 CC and Others v Trustees, Oregon Trust and Others [2020] ZACC 13; 2020 (5) SA 247 (CC) which authoratively dealt with … Continue reading

Interpreting the wording of a subscription judgement

By Donald Dinnie on July 27, 2021 Posted in Insurance

In a July 2021 judgment the Supreme Court of Appeal in Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others (470/2020) [2021] ZASCA 99 considered the question of how to interpret the wording of a subscription agreement in dispute which governed the basis on which a sale of shares … Continue reading

Business interruption claims and physical damage

By Donald Dinnie on July 22, 2021 Posted in General, Uncategorized

There has been a plethora of Covid-19 policy coverage litigation across the United States. Absent non-damage extensions under business interruption policies the courts have had to consider whether amongst other things government restrictions on businesses including shutdown orders constituted interruption of business caused by loss to property insured. That included whether those restrictions on businesses … Continue reading

Jurisdiction over an insurance dispute where both parties are foreigners

By Donald Dinnie on July 21, 2021 Posted in Insurance

In this judgment both the insured and insurer were foreign peregrini, that is neither was resident nor domiciled in the Republic of South Africa. The insured was a resident of the Virgin British Islands and the insurer, Russia. The policy provided that it was governed by the laws of the insured’s country of domicile, that … Continue reading

Setting aside a settlement agreement due to common mistake

By Donald Dinnie on July 14, 2021 Posted in General

This blog was co-authored by Tristan Marot, Candidate Attorney. The Labour Appeal Court has recently restated the law on common mistake as it applies to having a settlement agreement set aside in Murray and Roberts (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration & Others. The matter stemmed from a dispute between the … Continue reading

Repudiating a contract – again

By Donald Dinnie on July 13, 2021 Posted in General

In its June 2021 judgement, the Constitutional Court restated the principles relevant to repudiation of a contract. A party commits the breach of repudiation when through words or conduct that party manifests an unequivocal intention to no longer be bound by the contract or by material obligations forming part of the contract. The intention to … Continue reading

Interpreting contracts and contextual evidence

By Donald Dinnie on July 6, 2021 Posted in General

The Constitutional Court has reaffirmed that that approach to interpretation of contracts requires that from the outset one considers the context and the language together with neither predominating over the other. The approach to interpretation is a unitary exercise. Interpretation is to be approached holistically, simultaneously considering the text, content and purpose. Context and purpose must … Continue reading

Judges changing their minds

By Donald Dinnie on June 30, 2021 Posted in General

A Google search will produce a long list of quotations affirming the right to change one’s mind. When a judge gives a decision contradicting one of their earlier judgments that becomes more difficult. Judges have a way of finessing a reversal of opinions which they may have expressed in an earlier judgment. Two of the … Continue reading

Indemnity clauses and the Consumer Protection Act

By Donald Dinnie on June 22, 2021 Posted in Insurance

Indemnity clauses and the Consumer Protection Act In a recent Eastern Cape High Court judgment which you can read about here, the claimant fell into an unfenced pool at the game reserve and injured herself. The court found in the evidence that the claimant’s conduct was the sole cause of her stepping into the pool and … Continue reading

Personal injury claims and swimming pools

By Donald Dinnie on June 22, 2021 Posted in Insurance

Rarely are our trial courts required to deal with delictual claims arising from injuries sustained in the course of the use of or arising from a swimming pool. In this recent judgment the court swiftly disposed of the claimant’s multiple allegations that the defendant game lodge operator was at fault and liable to the claimant … Continue reading

Exclusion of deliberate acts in insurance policies (UK)

By Donald Dinnie on June 18, 2021 Posted in Insurance

A June 2021 UK Supreme Court judgment has highlighted the difficulties insurers may face when relying on a intentional or deliberate acts exclusion. A bouncer at a pub in Aberdeen, Scotland had applied a non-approved neck hold on a rowdy customer resulting in the customer’s death due to mechanical asphyxiation. In a subsequent criminal trial, … Continue reading

FAIS Ombud must determine jurisdiction before determining complaints

By Donald Dinnie on June 18, 2021 Posted in Finance

In April 2021, the Supreme Court of Appeal dismissed the review of determinations made by the FAIS Ombud established in terms of the Financial Advisory and Intermediary Services Act of 2002 (FAIS Act). The SCA was called upon to decide whether the Ombud had committed a reviewable error in determining complaints lodged by the respondents. … Continue reading

Security companies, vicarious liability and joint wrongdoers

By Donald Dinnie on June 17, 2021 Posted in Insurance

The May 2021 Supreme Court of Appeal judgment is a useful reminder that liability in a delictual claim based on vicarious liability is a form of liability which is imposed upon one person for the wrongful and unlawful conduct of another. It is, in essence, a strict liability. The liability arises through no fault of … Continue reading

Days of grace do not apply to a repudiated life insurance policy

By Donald Dinnie on June 14, 2021 Posted in Insurance

In a June 2021 judgment, the Supreme Court of Appeal held that the 30 day grace period for an unpaid premium in a life policy does not apply where the cancellation of the policy is a result of a repudiation by the insured herself. The grace period only applies where the non-payment of the premium … Continue reading

Covid-19 insurance claims and physical loss (US)

By Donald Dinnie on May 18, 2021 Posted in Insurance

Another American court in G & A Family Enterprises, LLC d/b/a Smokin’ Pig BBQ & Others v American Family Insurance Company 1: 20-CV-03912-JPB has held that State-imposed Covid-19 restrictions do not qualify as a “direct physical loss” under the insurance policy held by the insureds. The court held that while the phrase “direct physical loss” … Continue reading

Making the Covid-19 vaccine injury no-fault compensation scheme work

By Donald Dinnie on May 14, 2021 Posted in General

The extent to which claimants choose to use the scheme rather than litigate will in part depend on the cost-effective, accessible and timeous claims process and the extent of the compensation provided by the scheme. Read more here.… Continue reading

Powers of the Financial Services Tribunal

By Donald Dinnie and Patrick Bracher (ZA) on May 13, 2021 Posted in General

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action. Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

The payment of medico-legal damages in services not money

By Donald Dinnie on April 26, 2021 Posted in Healthcare, Insurance

The problem facing departments of health around the country is how to improve service delivery to the public and the quality of medical care provided to patients and so significantly reduce the number and quantum of medico-legal claims. Instead of funding healthcare programmes and facilities, a large portion of the annual budgets is allocated to … Continue reading

Insurance fraud and fraud clauses

By Donald Dinnie on April 23, 2021 Posted in Insurance

The Supreme Court of Appeal in an April 2021 judgment dealt with the interpretation and application of a fraud clause found in the policy.. The clause read: “If you, or anyone acting on your behalf submits a claim, or any information or documentation relating to a claim, that is in any way fraudulent, dishonest or … Continue reading

Excess reinsurances and the applicable jurisdiction regime

By Donald Dinnie on April 19, 2021 Posted in Insurance

The United Kingdom High Court in the judgment of 13 April 2021 granted the excess reinsurer’s UK interim anti-suit injunction in respect of the insurer/defendants’ claims in South Africa under the excess reinsurance agreements. Those claims in the English courts to the exclusion of the South African courts will represent the bulk of the defendants’ claims … Continue reading

Insurance policies and absolute and relative warranties

By Donald Dinnie on April 14, 2021 Posted in Insurance

In South African insurance law a warranty is usually a condition precedent to inception or continuation of cover or payment of a claim. The consequence of breach or non-fulfilment is that there is no obligation on the insurer to indemnify the insured. Warranties may be absolute or relative. An obligation requiring that a certain state … Continue reading

Business Interruption Insurance and the absence of Damage

By Donald Dinnie on April 6, 2021 Posted in Insurance

A claim under a business interruption policy generally requires a valid claim under the material damage section of the policy. And the damage must occur during the currency of the policy. In TKC London Limited v Allianz Insurance PLC [2020] EWHC 27 10 (Comm.), the insured operated a café in London. Following the Covid-19 outbreak of … Continue reading

Policy interpretation – “interruption”

By Donald Dinnie on March 31, 2021 Posted in Insurance

The United Kingdom Supreme Court, in the FCA Test case appeal, dealt with the meaning of “interruption” in a Business Interruption policy. The policy wording required there to be losses resulting from “an interruption to your activities…” The court held that the ordinary meaning of “interruption” is quite capable of encompassing interference or disruption which … Continue reading

Policy interpretation – prevention of access

By Donald Dinnie on March 29, 2021 Posted in Insurance

The United Kingdom Supreme Court in the FCA Test Case appeal dealt with the meaning of “prevention of access” in respect of the prevention of access due to the actions or advice of the local authority because of an emergency which is likely to endanger life or property in a Business Interruption policy. The relevant … Continue reading