Patrick Bracher (ZA)

Subscribe to all posts by Patrick Bracher (ZA)

Certifying documents as copies of the original without seeing the originals is dishonest

The facts in a Financial Services Tribunal debarment matter were that the financial services’ representative had certified certain documents as copies of the original without having seen the original documents.  She failed to ensure that she complied with the statutory requirements for certifying copies and the duties made mandatory upon her through her position as … Continue reading

True brokers may be paid a secret commission (UK)

In negotiations between parties who were negotiating charterparty terms for the chartering of two vessels, third parties involved in the negotiations received commission unknown to the party paying the price for the charter of the two vessels. It was held that although the third parties were intermediaries they were not agents in the full legal … Continue reading

New York state financial regulator warns of cyber risk

In April 2021 the New York State Department of Financial Services issued a Report on the SolarWinds Cyber Espionage Attack and Institutions’ Response warning that the next great financial crisis could come from a cyberattack because with each passing day our world gets more interconnected. The report ends with the following passage: “The SolarWinds Attack … Continue reading

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract The dispute concerned a lease for a hotel in Coffee Bay, Transkei for a period of 20 years that was held to be constitutionally invalid because the lease had been signed contrary to the laws relating to public … Continue reading

Powers of the Financial Services Tribunal

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action.  Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

“Reasonable prior notice” discussed (UK)

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

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

Advocate has no direct access to client for fees

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

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

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

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)

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