Patrick Bracher (ZA)

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Every word must be given a meaning when interpreting a statute

By Patrick Bracher (ZA) on May 12, 2021 Posted in General

When interpreting a statutory provision, one must proceed from the fundamental premise that meaning must be given to every word (provided the context lends itself to such meaning). The rationale for this principle is that a statute is not taken to use words without meaning. No clause, sentence or word must be construed to be … Continue reading

“Reasonable prior notice” discussed (UK)

By Patrick Bracher (ZA) on May 11, 2021 Posted in General

A UK admiralty court held that 12 hours’ notice of a change of tariff for berthing charges and other services in a port for a vessel that had been delayed by the Covid-19 pandemic was not reasonable notice. The regulation required “reasonable prior notice”. The requirement of reasonable prior notice was not complied with because … Continue reading

English law and exclusive jurisdiction clauses

By Patrick Bracher (ZA) on May 7, 2021 Posted in General

In a claim between reinsurers and a South African banking group, the English High Court, in an application that was not opposed by the South African party, granted an anti-suit injunction preventing the proceedings taking place in South Africa for various reasons including that the English law exclusive jurisdiction clause was binding. English legislation allows … Continue reading

Employee injured during protest action by trade union denied COIDA claim

By Patrick Bracher (ZA) on May 6, 2021 Posted in General

The Supreme Court of Appeal held that an executive employee who was injured whilst at work when she became caught up with trade union protestors and was assaulted and mistreated by them and evicted in a humiliating and degrading way, was involved in an accident in the course of, but not arising out of, her … Continue reading

Advocate has no direct access to client for fees

By Patrick Bracher (ZA) on May 3, 2021 Posted in General

The applicant was a practising advocate who sought to recover fees of nearly R500 000 from the Legal Practitioner’s Fidelity Fund Board of Control where the money due to the advocate had been held in trust by the attorney and misappropriated. The court found that the money entrusted to the attorney by the clients was held … Continue reading

When is information “required” for PAIA access to be granted

By Patrick Bracher (ZA) on April 30, 2021 Posted in General

In a dispute between the parties as to whether the applicant was a partner in a partnership with the respondent, the court gave the applicant access to the annual financial statements of the close corporation that had arisen out of the transactions of the alleged partnership. The court found that an applicant under section 50 … Continue reading

A person cannot be ordered to restore possession of goods not in their possession

By Patrick Bracher (ZA) on April 28, 2021 Posted in General

The court refused to order the return of goods by a spoliation order because the respondent was not in possession of the goods. The claimant gave his motor vehicle to a dealer for a routine maintenance service. When he went to collect the vehicle he discovered that the keys to the vehicle had been handed … Continue reading

Covid-19 claim rejected because of virus exception (US)

By Patrick Bracher (ZA) on April 14, 2021 Posted in Insurance

A Kentucky US district court rejected the business interruption insurance claim of a retail business specialising in sale of outdoor sportswear and equipment for losses suffered as a result of government restrictions following the outbreak of Covid-19. The all-risks policy covered physical loss and damage but excluded damage caused directly or indirectly regardless of any … Continue reading

More debarment guidance from the Tribunal

By Patrick Bracher (ZA) on March 31, 2021 Posted in General

More debarment guidance from the Tribunal A representative’s dishonesty, negligence or incompetence must be sufficiently serious to impugn the honesty and integrity of the representative as a person before debarment is justified. The ambit of the enquiry determining fit and proper characteristics is that a representative must conduct themselves with honesty and integrity and be … Continue reading

Subrogated claim against fire-causing students rejected because students were insureds (US)

By Patrick Bracher (ZA) on March 29, 2021 Posted in Insurance

The insurer was denied the right to sue two former college students for $4.5 million the insurer had paid to the school after the students accidentally set fire to the dormitory. It was held that the students accommodated in dormitories were equivalent to tenants and insured under the school’s fire policy. The two students used a … Continue reading

Insurer not required to pay for medical marijuana (US)

By Patrick Bracher (ZA) on March 3, 2021 Posted in Insurance

The Massachusetts Appeals Court refused to order an insurance company to pay for the medical marijuana expenses to treat the claimant’s pain stemming from a work-related injury he sustained in 2014. The US situation is curious in that medical marijuana is allowed in some states but is still unlawful under federal law. The Massachusetts law … Continue reading

Payment to broker may not be payment to insurer (US)

By Patrick Bracher (ZA) on February 10, 2021 Posted in Insurance

The Georgia Court of Appeals (US) found that payment of premiums by house owners insurance policyholders to their insurance agent was not payment to the insurer where notice had been given to the policyholders to pay directly to the insurer. In October 2014, the insurer sent a renewal notice to the policyholders requiring them to … Continue reading

124 food poisoning claims is one ‘occurrence’ (US)

By Patrick Bracher (ZA) on February 10, 2021 Posted in Insurance

A Texas district court held that 124 claims for food poisoning from salmonella bacteria suffered by patrons at a restaurant was one ‘occurrence’ within the terms of the restaurant’s insurance policy. An occurrence was defined as ‘an accident including continuous or repeated exposure to the same general harmful conditions’. An occurrence was ‘an accident’ and … Continue reading

Claim for loss of use of building precluded by ‘impaired property’ exclusion (US)

By Patrick Bracher (ZA) on February 10, 2021 Posted in Insurance

A conveyor company failed in its claim against its insurers for a loss arising from the supply of a defective cookie packaging machine to a biscuit manufacturer because the policy specifically excluded coverage for “impaired property”. The claim by the biscuit manufacturer against the insured alleged that they were unable to use their new building … Continue reading

Legal professional privilege promotes the rule of law

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

In a matter regarding unlawful surveillance the Constitutional Court held that the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client. That promotes the rule of law. Although originally sourced from the common law, legal professional privilege is now supported by the Constitution. The court reaffirmed a … Continue reading

Protection of journalists’ sources is supported by the Constitution

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible. Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists … Continue reading

International law does not cover expropriations of property belonging to a country’s own nationals

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals. … Continue reading

New York regulator issues a cyber-insurance risk framework

By Patrick Bracher (ZA) on February 9, 2021 Posted in Insurance

Concerned about pandemic-related extra cyber activity, the rise in ransomware and recent cyber-espionage campaigns, the New York State Department of Financial Services (DFS) issued a cyber-insurance risk framework on 4 February 2021. After describing the risks for insurers and concluding that insurers play a critical role in mitigating and reducing the risks of cyber-crime, the … Continue reading

Life policy proceeds due to insolvent must be paid to their trustees

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where an unrehabilitated insolvent was the beneficiary of the proceeds of a life policy taken out on the life of his wife, and the couple’s joint estate had been sequestrated, it was held that the proceeds of the policy were payable to the trustees of the insolvent estate and not to the insolvent surviving husband. … Continue reading

Meaning of payment for electricity under lease at ‘prevailing commercial rates’ (UK)

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where a tenant was required to pay for electricity and gas ‘at no more than … the … prevailing commercial rates’ the court held that this meant the prevailing commercial rates of the private utility networks of major UK airports including airports receiving international and internal passengers rather than the rates payable to public networks … Continue reading

Direct versus indirect damages, and effect of non-variation clause

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

A cell phone service provider had wrongfully repudiated a contract with a dealer in cell phone products. The Supreme Court of Appeal held that the indemnity clause did not preclude the dealer from claiming damages. The clause which excluded liability for indirect damages did not preclude the damages claim because the amount claimed did not … Continue reading

Expert determinations under contract and the role of the courts (UK)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

In a case regarding a share purchase agreement with an adjustable base price of USD 2.258 billion and the adjustment to be determined by an independent accountancy firm acting as an expert, the court dealt with the supervision and control by the court of expert determinations. The approach is: The parties may agree that an … Continue reading

Sale of shares for “fair value” under MOI (UK)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

Where a minority shareholder (24.99%) was obliged to sell his shares to the majority at a “fair value” according to the articles of association (memorandum of incorporation) it meant a sale at the value of the shares on a sale between a willing buyer and a willing seller discounted to reflect the fact that the … Continue reading

Merger ends due to failure to operate in the ordinary course, but COVID-19 not MAE (US)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

In December 2020 the Delaware court held that the COVID-19 pandemic did not cause a Material Adverse Effect on the target of a merger because the MAE excluded ‘natural disasters and calamities’. Despite this, the buyer was not obliged to close the transaction and was entitled to terminate the sale agreement because the target made … Continue reading