Patrick Bracher (ZA)

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No insurance cover because of exclusion of contract-based claims (US)

By Patrick Bracher (ZA) on December 9, 2020 Posted in Insurance

The insured was sued for and settled a claim for $77.5 million under the California False Claims Act for overcharging California government entities under the terms of particular contracts despite their offer of low prices to the government. The insured sued the insurer for an indemnity for its loss. The court denied the claim on … Continue reading

Tacit agreement on intermediary commission

By Patrick Bracher (ZA) on December 2, 2020 Posted in Insurance

Despite there being no explicit agreement on the amount of an intermediary’s commission, the client’s consent to payment of the commission may arise from the circumstances rather than an express agreement. A recent English case (on solicitors’ fees but pertinent here) points out that informed consent to pay commission may arise when the client knows … Continue reading

Provincial MEC not liable for child injured by swing in the private school playground – delictual liability for breach of statute

By Siyabonga Mathe and Patrick Bracher (ZA) on November 23, 2020 Posted in General

The Supreme Court of Appeal found that the Provincial MEC for Social Development was not liable for the injury of a child in the playground of a nursery school operated by an NGO in the province. The school was treated as if registered under the Child Care Act 1983 because the incident occurred in 2008 … Continue reading

Scope of right of pre-emption

By Patrick Bracher (ZA) on November 18, 2020 Posted in General

Where a person is granted a right of pre-emption or right of first refusal and the grantor breaches the right (by selling or otherwise granting it to a third party), the so-called Oryx mechanism comes into place and the holder of the right steps into the shoes of the person to whom the right was … Continue reading

Prescribed rate of interest is 7% from 1 September 2020

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

The prescribed rate of interest has been changed with effect from 1 September 2020 to 7.00% per annum. The previous rate was 7.25%. 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

Hot tub expert evidence catching on

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

Evidence of experts in dispute hearings can be dealt with efficiently by using the ‘hot tub’ method to deal with disputes issue-by-issue rather than expert-by-expert: The parties decide between them what remaining issues have to be resolved by expert evidence and the list is given to the experts to deal with. The experts for all … Continue reading

Court applies ‘arising out of the operations’ exclusion in liability policy (US)

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

A Texas federal judge ruled that the insurer did not have to defend a design and construction consultant against the employer’s liability claim for a defective oil well because cover was excluded for property damage to ‘that particular part of real property on which any contractor working directly or indirectly on your behalf are performing … Continue reading

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

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