Patrick Bracher (ZA)

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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

Section 129 National Credit Act notice must state the amount in arrears

By Patrick Bracher (ZA) on January 20, 2020 Posted in General

Section 129 of the National Credit Act requires the creditor to specify the default including the actual amount of the arrears. The requirement for ‘drawing the default to the attention of the consumer’ means more than just the fact that the consumer is ‘in default’. Section 130(4) gives the debtor an opportunity to remedy the … Continue reading

Incomplete or inaccurate record of agreement does not make it void (NCA extended warranties in issue)

By Patrick Bracher (ZA) on January 14, 2020 Posted in General

The Supreme Court of Appeal upheld the validity of extended warranties in respect of goods sold on credit under the National Credit Act 2005 despite the fact that the warranties were filled in incompletely or inaccurately. The evidence was that, despite the inaccuracies, the extended warranties were correctly applied and gave extended warranty cover for … Continue reading

Where there is a right there is a remedy

By Patrick Bracher (ZA) on January 8, 2020 Posted in General

The granting of a full pardon by the State President to a veteran pensioner entitled the pensioner to continue receiving payment from the date of the pardon. The Special Pensions Appeal Board was obliged to restore the pension from the date of the pardon. The pensioner could not be deprived of his pension on the … Continue reading

Limits of self-defence

By Patrick Bracher (ZA) on December 11, 2019 Posted in General

The Supreme Court of Appeal reminded us that the act of self-defence is justifiable if it is reasonable defensive action taken against an imminent act of aggression. Future danger, danger which is not imminent or conduct that has ceased to constitute danger does not entitle one to raise the defence. The act of defence is … Continue reading

What is ‘reasonably practicable’ for preferred language education?

By Patrick Bracher (ZA) on December 5, 2019 Posted in General

The South African Constitutional Court was called on to examine the 2016 Language Policy of Stellenbosch University which effectively gives preference to English in the circumstances specified in the Policy to advance the university’s goals of equal access, multi-lingualism and integration. The policy maintains and preserves Afrikaans but this is now subject to demand and … Continue reading

You don’t have to own property to sell it

By Patrick Bracher (ZA) on November 28, 2019 Posted in General

The South African Supreme Court of Appeal has again reminded us that it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold. Although the parties to a contract of sale usually contemplate the transfer of ownership, this is not an essential feature of … Continue reading

Specific terms override general terms and insurers bound by agents (US)

By Patrick Bracher (ZA) on November 24, 2019 Posted in Insurance

The Washington Supreme Court found that an insurance company was bound by its agent’s written representations that a particular corporation was an additional insured under a policy even though the printed words in the certificate of insurance said the addition was not binding. A mobile telephone operator and a contractor together erected a cell phone … Continue reading

Things done contrary to law are not always a nullity

By Patrick Bracher (ZA) on November 18, 2019 Posted in General

Where an attorney had acted in two litigation matters whilst not holding a fidelity fund certificate that is compulsory for all practising attorneys, it was held that the litigation was not a nullity. The Attorneys Act (in force at the time) prescribed the consequences of not having a certificate as disentitlement to a fee for … Continue reading

A luta continua: Caster Semenya’s story

By Gregory Nott, Patrick Bracher (ZA) and Andrew Keightley-Smith on November 11, 2019 Posted in General

On a clear and sunny Friday afternoon in July 2009, Ms Mokgadi Caster Semenya ascended to athletics greatness. On day two of the African Junior Athletics Championships, at the Stade Germain Comarmond in Bambous, Mauritius, Caster Semenya won the women’s 800m race in a time of 1:56:72. Her time was a new personal best, a … Continue reading

Vicarious liability for creating a risk

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

The Supreme Court of Appeal has again extended the scope of vicarious liability. A security company was found liable for a murder committed by their site supervisor in an attempt to rob the deceased who was the financial manager at the premises which the security company were required to guard. The court held that placing … Continue reading

Nike out-bids New Balance for branded Liverpool FC shirts

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

Liverpool Football Club had an existing deal with New Balance to manufacture and sell replica football shirts with their logo. At renewal time Nike out-bid New Balance’s terms and were held entitled to the contract. The question was whether New Balance had matched Nike’s offer. Nike made a detailed offer including a large number of … Continue reading

The Big Read Book Series

By Donald Dinnie and Patrick Bracher (ZA) on November 3, 2019 Posted in Insurance

Norton Rose Fulbright’s insurance practice is excited to announce the launch of its Big Read Book Series with the publications of Volume 1 and 2 in the series. The series is part of the insurance practice’s contribution to resourcing the insurance industry. Volume 1 is a collection of South African insurance judgments of 2018. Volume … Continue reading

Split Constitutional Court decision is no decision

By Patrick Bracher (ZA) on November 3, 2019 Posted in General

In a matter involving disputed patents under the Patents Act 1978, ten judges of the Constitutional Court sat and there were five judges on each side whether to uphold or dismiss the appeal. Where there is no majority decision, the judgment of the lower court stands. Each party was ordered to pay their own costs. … Continue reading

Loss of profits claim for damaged taxi (UK)

By Patrick Bracher (ZA) on October 27, 2019 Posted in Insurance

Where the vehicle of a professional driver such as a taxi driver is damaged in an accident caused by another party’s fault, there is a loss of profits claim while the vehicle is repaired or replaced which may be limited to mitigation costs. The following principles apply: The starting point is the loss of profits … Continue reading

Holder of trust money is liable for paying incorrect party

By Patrick Bracher (ZA) on October 24, 2019 Posted in General

A firm of attorneys involved in a property transaction paid R1 744 599.45 into the bank account of a hacker in response to emailed instructions. It was held that the attorneys were liable to the true client to pay this amount for failing to perform their mandate in regard to the trust money with sufficient care and … Continue reading

Animals cannot commit vandalism and malicious mischief (US)

By Patrick Bracher (ZA) on October 14, 2019 Posted in Insurance

An insured sued under their Dwelling Policy for a substantial amount of damage that had been caused to their home by racoons which somehow entered the dwelling. They relied on the cover provided for ‘vandalism and malicious mischief’ which cannot be applied to animals, said the Pennsylvania court. Not surprisingly, the court found that ‘vandalism’ … Continue reading

‘In writing’ does not mean implied acceptance of written clause

By Patrick Bracher (ZA) on October 14, 2019 Posted in General

Article 25 of the Recast Brussels Regulation which requires an agreement conferring jurisdiction to be ‘in writing or evidenced in writing’ is not satisfied by a clause in the contract being in writing and the consent being solely implied from conduct of the parties. The consent itself has to be in writing or evidenced (or confirmed) … Continue reading

Equitable financial compensation instead of land restitution

By Patrick Bracher (ZA) on October 8, 2019 Posted in General

The applicant in Jacobs v Department of Land Affairs had been deprived of land through a racist fraudulent transfer of the land in 1907 and subsequent eviction in 1921. They claimed financial compensation and were awarded R780 000. On appeal it was held that the Land Claims Court had correctly calculated the amount. The calculation is not … Continue reading