Patrick Bracher (ZA)

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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

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