Patrick Bracher (ZA)

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Arbitration clauses usually do not survive termination of contract for fraud

By Donald Dinnie and Patrick Bracher (ZA) on July 21, 2020 Posted in General

An arbitration or similar adjudication clause, contained in an agreement that is found to have been induced by fraud, does not survive the avoidance of the agreement. That would be offensive to justice. The position can only change if the parties specifically make provision in their contract for a dispute regarding fraud, misrepresentation or concealment … Continue reading

No lease renewal unless the rent is fixed by the parties or a third party

By Patrick Bracher (ZA) on July 21, 2020 Posted in General

An option to renew a lease at a rental to be agreed between landlord and tenant, failing which to be determined by a third party, was not validly renewed by the lessee offering an increased rent that was unacceptable to the landlord and then not invoking the process for third party determination. The tenant gave … Continue reading

Cyber risk cover – the pandemic lesson

By Patrick Bracher (ZA) on July 7, 2020 Posted in Insurance

One lesson for insurers from the COVID-19 pandemic is that carefully considered wording for potentially massive losses is essential. Cyber risk can lead to such losses. Here are links to some of the articles we have written on cyber risk to remind you: Cyber risk warnings for insurers Cyber cover must be specifically provided or … Continue reading

Even peremptory provisions in a statute may yield

By Patrick Bracher (ZA) on July 7, 2020 Posted in General

Even peremptory provisions in a statute may yield to two rules of interpretation: Laws must be interpreted to promote the spirit, purport and objects of the Bill of Rights. Due regard must be had to the purpose of the statute and more particularly whether adopting a strict or literal interpretation is consistent with what the … Continue reading

Prescribed rate of interest is 8.75% from 1 May 2020

By Patrick Bracher (ZA) on June 28, 2020 Posted in General

The prescribed rate of interest has been changed with effect from 1 May 2020 to 8.75% per annum. The previous rate was 9.75%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all … Continue reading

Obligations of independent schools before expelling a pupil

By Hishaam Khan and Patrick Bracher (ZA) on June 18, 2020 Posted in General

On 17 June 2020 the Constitutional Court handed down a landmark judgment which pronounced on a child’s own right to take part in due process or hearings concerning the termination of the contract between independent schools and their parents. The judgment concerns the constitutionality of a decision by an independent school to expel two scholars … Continue reading

The difference between ‘significant’ and ‘substantial’

By Patrick Bracher (ZA) on June 16, 2020 Posted in Drafting tips

In April 2020 the UK Supreme Court had reason to discuss the difference between ‘significant’ and ‘substantial’ in the context of what is a ‘significant reduction in life expectancy’. The court said that ‘like the skin of a chameleon, the adjective takes a different colour so as to suit a different context’. The word ‘significant’ … Continue reading

Insurance renewal not concluded by emails in the absence of clear acceptance (Aus)

By Patrick Bracher (ZA) on June 16, 2020 Posted in Insurance

When a fire and other perils policy came up for renewal on 24 August 2018, the insurer and the insured’s broker exchanged emails regarding renewal terms and hold-covered arrangements. The Victoria Supreme Court in Australia found that cover had not been renewed nor extended because the insured had not unequivocally accepted the renewal terms nor … Continue reading

Contracts interpreted according to wording, context and purpose

By Patrick Bracher (ZA) on June 8, 2020 Posted in Drafting tips

We have published a number of blogs about modern concepts of interpretation of legislation and contracts. A June 2020 decision of the Supreme Court of Appeal sets it out well. There is nothing new in what is said but it is a nice little package of how to interpret an agreement: ‘It is trite law … Continue reading

Defence of justifiable error in signing a suretyship fails

By Patrick Bracher (ZA) on May 17, 2020 Posted in General

The respondent in Airports Company SA Limited v Masiphuze Trading (Pty) Ltd was unsuccessful in relying on the defence of justifiable error in trying to avoid being bound by a suretyship agreement that he signed but did not read. The respondent entered into a suretyship for a lease debt in respect of premises at the … Continue reading

1000 strong: brush up on your legal knowledge

By Aneesa Bodiat and Patrick Bracher (ZA) on May 8, 2020 Posted in General

Our archive now contains over one thousand accessible, searchable blog posts, covering a wide range of topics. Here are some you may have missed – read them to quickly brush up on your legal knowledge: Corporate law How to establish a business in South Africa Blockchain, syndicated lending and secondary market trades 10 things to … Continue reading

DUI proved despite no conclusive blood test

By Patrick Bracher (ZA) on May 4, 2020 Posted in Insurance

The motor policy considered in Bantho v Alexander Forbes Insurance Co Ltd excluded an indemnity if the accident occurred while the driver was driving under the influence of intoxicating liquor or while the level of alcohol in the bloodstream exceeded the statutory limit. The court applied the exclusion despite a dispute about the accuracy of … Continue reading

Tour organisers not liable for ‘White Knuckle Jet Boat Thrill Ride’ injury (Ireland)

By Patrick Bracher (ZA) on April 24, 2020 Posted in General

The claimant failed in her damages claim against the organisers of her overseas holiday for an injury to her elbow suffered on a ‘White Knuckle Jet Boat Thrill Ride’ excursion that she had signed up for whilst on a cruise. She failed in her allegations of negligence that, despite the fact that she was aware … Continue reading

Interdict pending defamation action seldom granted

By Patrick Bracher (ZA) on April 22, 2020 Posted in General

In a defamation dispute between two politicians (the former and the subsequent mayor of Johannesburg) the incumbent mayor sued for defamation damages for remarks about him. At the same time he applied for a court interdict ordering the respondent to retract the offending remarks, to refrain from repeating them, and to issue an unconditional apology … Continue reading

Evidence to establish negligence of surgeon

By Patrick Bracher (ZA) on April 6, 2020 Posted in General

The case of Felicia Meyers v MEC, Department of Health, Eastern Cape deals with the evidence required to give rise to an inference of negligence on the part of an operating surgeon as to whether the injury caused in the course of the operation resulted from negligence (the failure to apply the professional skill and … Continue reading

First all-Skype trial in the UK

By Patrick Bracher (ZA) on March 25, 2020 Posted in General

The Law Society Gazette (UK) reports that the UK has had its first Skype trial which could be another way to ensure court business continues during adverse circumstances (and even generally). It was a three day hearing where the judge, seven lawyers, eleven witnesses, three experts and two journalists joined the hearing online through Skype … Continue reading

Effect of settlement agreement

By Patrick Bracher (ZA) on March 11, 2020 Posted in Drafting tips

Ten years after the 2010 World Cup the Supreme Court of Appeal has given judgment in a dispute between the South African Football Association and a travel business relating to travel arrangements for the competition. The parties had a settlement agreement which was in ‘full and final settlement’ of the dispute relating to whether SAFA … Continue reading

Club fees lawful under National Credit Act

By Patrick Bracher (ZA) on March 11, 2020 Posted in General

The respondent furniture retailer in The National Credit Regulator v Lewis Stores (Pty) Ltd offered club membership to its customers including its credit agreement customers which afforded certain benefits to the club members including the chance to win attractive prizes. Club membership is open to any person whether a credit customer or not, and the … Continue reading

Arm’s length acknowledgement of debt is an NCA credit agreement

By Patrick Bracher (ZA) on February 16, 2020 Posted in General

An acknowledgement of debt relating to a loan from one friend to another for a capital amount of R831 000 and interest at 18% per year was held to be a credit agreement for the purposes of the National Credit Act. The agreement identified the capital, the interest at 18%, deferred payments, collection fees to be … Continue reading

Extension of time for arbitration for undue hardship

By Patrick Bracher (ZA) on February 16, 2020 Posted in Drafting tips

Section 8 of the Arbitration Act 1965 allows a court to extend the period allowed for arbitration in terms of an arbitration agreement if ‘undue hardship would otherwise be caused’. The Johannesburg High Court held that it would cause ‘undue hardship’ to refuse to extend a time-bar in circumstances where the events that caused the … Continue reading

Damage caused by incorrect labelling is not insured as ‘arising out of’ the product manufactured (US)

By Patrick Bracher (ZA) on February 10, 2020 Posted in Insurance

A bulk supplier of prescription drugs, which was not a manufacturer, supplied drugs in bulk to a retailer. A customer of the retailer suffered severe bodily injury because of misleading and defective labelling by the retailer. The retailer was entitled to the benefit of the distributor’s insurance if any claim was ‘only with respect to … Continue reading

Claim ‘in respect of’ the death of the passenger includes psychiatric harm to the family (AUS)

By Patrick Bracher (ZA) on February 5, 2020 Posted in Drafting tips

The Australian High Court found that a claim for psychiatric harm made by the widow and children of a man killed in a helicopter accident is a claim ‘in respect of the death of the passenger’. The phrase ‘in respect of’ is a broad relational phrase and it does not confine the claim to a … Continue reading

Higher premiums for renewing customers investigated by UK regulator

By Patrick Bracher (ZA) on January 26, 2020 Posted in Insurance

The Financial Conduct Authority in the UK has published an interim report of its market study into pricing of home and motor insurance. The FCA found that: Insurers often sell policies at a discount to new customers and increase premiums where customers renew, targeting increases at those less likely to switch. Longstanding customers pay more … Continue reading

Jurisdiction of the National Consumer Tribunal

By Patrick Bracher (ZA) on January 22, 2020 Posted in General

The Supreme Court of Appeal discussed, without deciding, the jurisdiction of the National Consumer Tribunal to deal with matters arising under sections 90 and 91 of the National Credit Act relating to the declaration of a provision as unlawful in terms of section 90(2) and void. It appears from section 164(1) that no unlawful provision, … Continue reading