Patrick Bracher (ZA)

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Powers of CIPC to investigate a Companies Act related complaint

The Supreme Court of Appeal made important findings regarding the powers of the Companies Commission to investigate a complaint. Where the complaint relates to the inaccuracy of the company records as to who was a director, the failure to ensure that the record was maintained accurately constitutes either an ongoing act or omission under section 219(1)(a) … Continue reading

Cyber risk warnings for insurers

The cautionary warnings continue for insurers regarding the cyber risks that they underwrite. Although cybersure is seen as one of the major opportunities for the insurance industry, there are a number of risks including the increasing frequency of cyberattacks, the difficulty in pricing for the risks, and the fact that existing policies, including liability and … Continue reading

The elements of defamation

The Johannesburg High Court discussed the balance between the constitutional right of freedom of expression and the required respect for inherent dignity ‘to all human beings’. The defendant argued the allegedly defamatory statements made about the plaintiff were true and in the public interest. It is for the defendant in a defamation claim to establish … Continue reading

Employees of municipality and government proportionately liable for breach of finance management laws

Where a former managing director of a municipal entity was sued by that entity for alleged breach of the Municipal Finance Management Act 2003 (MFMA) it was held that she was entitled to join 19 other municipal officials on the ground that they were allegedly joint wrongdoers and equally liable to the municipality if she … Continue reading

Importing a tacit term into a contract

Where a non-variation clause and a whole agreement clause were included in a comprehensive contract dealing in detail with the subject matter between the parties, the court refused to import a tacit term into the contract. A tacit term is an unexpressed provision in the contract which derives from the common intention of the parties … Continue reading

What’s on the horizon for the insurance industry in 2019?

Our lawyers across ten jurisdictions have created a guide detailing the top legal concerns for insurers from various regions. Some developments are concerns only in a specific market while other topics appear to be common across several jurisdictions. Increasing focus on personal accountability, greater oversight of distribution chains and the protection of customer interests and … Continue reading

Concourt will only decide on non-constitutional law points if in the interests of justice

Where an appeal does not raise any constitutional issue, the South African Constitutional Court will only consider a law point on appeal if the interests of justice require it to do so no matter how interesting, arguable or important the point is. The applicant in Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) … Continue reading

Informed consent to medical procedure

The claim in R B v Smith was based on an alleged failure by a surgeon (who performed a laparoscopic hernia repair on the appellant) to provide the appellant with sufficient information to enable her to give informed consent for the surgery which resulted in colon perforation. There was no negligence on the surgeon’s part in … Continue reading

Difference between advice and information provided by a professional (for example a broker) – English law

English law relating to professional negligence draws an interesting distinction between whether the professional person is giving information or giving advice. This is not specifically part of South African law but it is relevant when considering liability, for instance, of brokers under the FAIS Act. The difference is between providing information for the purpose of … Continue reading

Burden of proof in actions against ship owner for loss of cargo and the principles of bailment (UK)

England’s highest court finally, after over four centuries of reported decisions on the issue, definitively held that the burden of proof lies on the carrier where cargo owners sue a ship owner for loss or damage to cargo. If the carrier could and should have taken precautions which would have prevented some inherent characteristic of … Continue reading

Repudiation of a contract

Where the purchase price of imported sugar included the import duty and the purchase price had to be reduced if the duty was reduced, the persistent claim by the seller for the unreduced amount was a repudiation and led to the lawful cancellation of the sugar contract. Payment of the sugar contract was to be … Continue reading

Acceptance of settlement offer must be unconditional

The Supreme Court of Appeal has reaffirmed the principle that where a party alleges that a compromise (settlement) has been effected in an exchange of correspondence it must be proved that the offer of compromise was accepted. The acceptance must be absolute, unconditional and identical with the offer. Otherwise there is no consensus and no … Continue reading
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