Patrick Bracher (ZA)

Subscribe to all posts by Patrick Bracher (ZA)

Homeowners policy excludes claim for excessive rainfall damage (US)

By Patrick Bracher (ZA) on May 29, 2023 Posted in Finance

In May 2023 a Michigan US court held that an exclusion in a homeowners policy covering physical loss caused by water or waterborne material which backed through sewers or drains but excluded cover for “the inability of the sewer or drain to handle the amount of rainwater, surface water or groundwater trying to enter the … Continue reading

A settlement concluded in full and final settlement of all matters means just that

By Patrick Bracher (ZA) on May 24, 2023 Posted in General

A February 2023 Labour Appeal Court judgment interpreted a settlement agreement that agreed to the “full and final settlement of all matters between” the parties and “in full and final settlement of all and any claims which the parties may have against each other”. The employer and employee were parties to an employment agreement that … Continue reading

US court refuses to apply war exclusion to cyberattack

By Patrick Bracher (ZA) on May 23, 2023 Posted in Insurance

In May 2023 a New Jersey US Appellate Division refused to exclude insurers from coverage under an all-risks property insurance policy because the cyberattack which infected and damaged thousands of the claimant’s computers in its global network did not amount to “hostile/warlike action”. Merke & Co, a multinational pharmaceutical company was the victim of the … Continue reading

Sale of land agreement is void if it omits material terms (in this case subdivision)

By Patrick Bracher (ZA) on May 17, 2023 Posted in Insurance

The parties concluded a written sale of land agreement for unimproved erven purchased with the aim of subdividing and developing them into residential erven but an immediate subdivision was required because one erf extended into an adjacent development. The agreement was void because the parties had not agreed on the exact property sold because of … Continue reading

Where parties reach a settlement it puts an end to dispute and any litigation

By Patrick Bracher (ZA) on May 10, 2023 Posted in General, Insurance

The essence of a compromise (settlement) is the final settlement of disputed or uncertain rights or obligations by agreement between the disputing parties. Unless the settlement provides otherwise, it extinguishes the disputed rights or obligations. Where there is litigation, the purpose of a compromise is to prevent or put an end to the litigation. It … Continue reading

Trustees’ money laundering reporting obligations under the amended Trust Property Control Act

By Patrick Bracher (ZA) on May 5, 2023 Posted in General

This blog was co-authored with Michael McCarthy, Candidate Attorney In response to the now-implemented threat of greylisting, South Africa enacted the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022. The following amendments to the Trust Property Control Act, 1998 became operational with effect from 1 April 2023. Every trustee needs to understand … Continue reading

The consequences of acceptance or rejection of a business rescue plan

By Patrick Bracher (ZA) on May 2, 2023 Posted in General

This blog is longer and more dense than usual. Most of it is taken directly from the precise wording of the judgment and it will be of use to anyone interested in the business process. Section 151 of the Act requires a business rescue practitioner to convene and preside over a meeting of creditors and … Continue reading

Prescribed rate of interest is 11.25% from 1 May 2023

By Patrick Bracher (ZA) on May 2, 2023 Posted in General

The prescribed rate of interest is 11.25% per annum with effect from 1 May 2023. The previous rate was 10.75% per annum. 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 debts … Continue reading

Loan between friends not arms’ length and not invalid under NCA

By Patrick Bracher (ZA) on April 11, 2023 Posted in General

A High Court judgment in March 2023 applied good law and common sense in finding that a loan between parties who had a closely knitted friendship was not an arms’ length transaction and was therefore not governed by the National Credit Act, 2005 (NCA). A credit transaction is not governed by the NCA if the … Continue reading

The tale of the unluckiest yacht – why you need insurance

By Patrick Bracher (ZA) on March 27, 2023 Posted in Insurance

A US case between an insured and an insurer involved the tale of the unluckiest yacht and the series of unfortunate events that she encountered. In January 2013 a new expertly designed custom built yacht Fearless was insured for a year. Two days later she struck a submerged rock in the US Virgin Islands. In … Continue reading

Directors & Officers insurance – Exclusion for director gaining personal advantage (AUS)

By Patrick Bracher (ZA) on March 24, 2023 Posted in Insurance, Uncategorized

The Federal Court of Australia found in March 2023 that a claim under a Directors & Officers Policy was excluded because the director had gained personal advantage from his wrongful act to which he was not legally entitled when he concealed information to avoid cancellation of a contract held with another company owned and controlled … Continue reading

Claims occurring D&O policy: when is claim first made against insured (AUS)

By Patrick Bracher (ZA) on March 24, 2023 Posted in Insurance, Uncategorized

In March 2023 the Australian Federal Court found that a claim had first been made against a director when an email was sent to his address but allegedly not read by him till much later. A “claim” made against the director under the claims occurring policy was the “written notice received by a director for … Continue reading

Claim for punitive constitutional damages after tender is set aside fails

By Patrick Bracher (ZA) on March 13, 2023 Posted in Insurance

The applicants had succeeded in a government tender which was subsequently set aside when irregularities in the tender were uncovered. Although the action for relief was moot, they asked the Constitutional Court for a judgment because they intended to pursue a claim for punitive constitutional damages. The relief was refused by the court because the … Continue reading

Insurers lose subrogation rights due to underlying contract waiver (US)

By Patrick Bracher (ZA) on March 10, 2023 Posted in Insurance

After paying about $80 million for claim for an explosion and fire that damaged the glass furnace and associated equipment of the insured’s glass manufacturing plant, the insurers unsuccessfully attempted to pursue subrogation claims against the defendant-contractors who were allegedly responsible for the incident because of negligence and breach of contract. The loss was in … Continue reading

Prescribed rate of interest is 10.75% from 1 March 2023

By Patrick Bracher (ZA) on February 28, 2023 Posted in General

The prescribed rate of interest is 10.75% per annum with effect from 1 March 2023. The previous rate was 10.5% per annum. 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 debts … Continue reading

Some important principles of arbitrations and appeal arbitrations

By Patrick Bracher (ZA) on February 23, 2023 Posted in General

The Supreme Court of Appeal has reaffirmed some important principles about arbitrations. An arbitrator ‘has the right to be wrong’ on the merits of the case and being wrong does not mean that the arbitrator misconceived the nature of the enquiry. Secondly, an arbitrator only has the powers afforded to them in terms of the … Continue reading

Majority shareholder has no legal standing to protect its purely financial interests against third parties

By Patrick Bracher (ZA) on February 6, 2023 Posted in General

The Supreme Court of Appeal refused to grant legal standing to a 64% shareholder of a company that challenged the decision of the North West Gambling Board in relation to the licence held by the company. Something more than a pure financial interest is required where a shareholder seeks to assert rights that correctly belong … Continue reading

Prescribed rate of interest is 10.5% from 1 January 2023

By Patrick Bracher (ZA) on January 25, 2023 Posted in General

The prescribed rate of interest changed with effect from 1 January 2023 to 10.5% per annum. The previous rate was 9.75% per annum. 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

Insurance indemnity denied because insured withheld material financial information (US)

By Patrick Bracher (ZA) on January 24, 2023 Posted in Insurance

The insured sought loss of hire coverage from various US and London insurers claiming in part that its factory processing vessel was unable to process fish in Alaska because of engine damage. The court held that the insured had breached an express duty to cooperate by withholding from the adjuster’s historical financial information, thus discharging … Continue reading

UK court refuses South Africa’s claim to 2 364 bars of silver lost in the Indian Ocean in 1942

By Patrick Bracher (ZA) on January 23, 2023 Posted in Uncategorized

In October 2022 the English Court of Appeal held that the Republic of South Africa is not entitled to state immunity in the context of a claim relating to 2 364 bars of silver recovered from the seabed of the Indian Ocean, having been lost in the 1942 sinking of the SS Tilawa sailing from Bombay to … Continue reading

Matters within magistrate’s court jurisdiction can be heard by High Court

By Patrick Bracher (ZA) on January 13, 2023 Posted in Finance

In December 2022 the Constitutional Court held that a High Court may not decline to adjudicate a matter over which both it and the Magistrates’ Courts have concurrent jurisdiction. Where a number of banks had brought actions for the enforcement of credit agreements in the High Court where the amounts at stake fell within the … Continue reading

Forklift injury not excluded by ambiguous exclusion

By Patrick Bracher (ZA) on December 8, 2022 Posted in Insurance

The insured drove a forklift decorated like a float with his wife on a swing hung from the forks to celebrate her 50th birthday, surrounded by partygoers. It was held that his liability for running over a party guest’s foot was covered because it was not excluded coverage for bodily injury arising out of mobile … Continue reading

When is a sub-subcontractor an insured (AUS)

By Patrick Bracher (ZA) on December 1, 2022 Posted in Insurance

An Australian supreme court was faced with the question whether a sub-subcontractor was a named insured or agent of the named insured under a general liability policy relating to demolition work on a construction site where a fire attributed to the conduct of the sub-subcontractor caused damage. The court held that on the policy wording … Continue reading