Patrick Bracher (ZA)

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CyRiM warns of up to $193 billion cyber risk – Insurers beware!

By Patrick Bracher (ZA) on February 6, 2019 Posted in Insurance

The Cyber Risk Management (CyRiM) Report 2019 shows that the economic damage to the world from a concerted global cyber-attack propagated by malicious email could range between $85 billion (least severe) to $193 billion (most severe). Retail at least could suffer the highest total economic loss globally ($15 billion), followed by healthcare ($10 billion) and manufacturing ($9 billion). It … Continue reading

Power station damaged by shocked squirrel is excluded

By Patrick Bracher (ZA) on February 6, 2019 Posted in Insurance

Where a squirrel found its way onto a power station’s electrical transformer triggering an electrical arc that killed the squirrel and caused damage to the municipality’s property of $213 524, the court denied the municipality all-risks insurance cover because of an exclusion for ‘loss caused by arcing or by electrical currents other than lightning’. The court … Continue reading

Draft Expropriation Bill published

By Patrick Bracher (ZA) on January 25, 2019 Posted in General

On 21 December 2018 the government published their Draft Expropriation Bill 2019 for comment by 21 February 2019. As the laws will affect all of us you should read it and consider commenting. The Bill only relates to registered rights and will therefore mainly affect land rights and mineral rights. The government has said that the law … Continue reading

Prescribed rate of interest is 10.25% from 1 January 2019

By Patrick Bracher (ZA) on January 25, 2019 Posted in General

The prescribed rate of interest has been changed with effect from 1 January 2019 to 10.25% per annum. The previous rate was 10%. 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 debts … Continue reading

Terms of sale can be implied by law – Meaning of ‘ex-warehouse’

By Patrick Bracher (ZA) on January 21, 2019 Posted in General

Section 59 of the Customs and Excise Act 1964 provides that the seller of goods may recover the amount of duty paid on the goods in addition to the contract price ‘in the absence of agreement to the contrary’. The fact that the sale in Starways Trading v Pearl Island Trading was said to be ‘ex-warehouse’ … Continue reading

Interpretation: Meaning of ‘in terms of’ and ‘under’ in a contract

By Patrick Bracher (ZA) on January 21, 2019 Posted in Drafting tips

In the context of a tax dispute the court held that the phrases ‘in terms of’ and ‘under’ a contract can have an ordinary or wide meaning of ‘by virtue of’ or ‘in consequence of’, or a narrow meaning requiring a direct and immediate connection between the contract and the money earned under the contract. … Continue reading

Public participation in South African law-making process is essential

By Patrick Bracher (ZA) on January 13, 2019 Posted in General

South Africa is a participatory democracy and where legislation is passed without facilitating public participation, especially by those members of the public most affected, the law is invalid. The Veterinary Association was successful in having the word ‘veterinarian’ severed from an amendment to the Medicine and Related Substances Act because of lack of consultation regarding … Continue reading

Interpretation: ‘Litigation pending’ means awaiting a decision

By Patrick Bracher (ZA) on January 13, 2019 Posted in Drafting tips

Litigation is pending if the court still has the power to hear it and dispose of it. The pending proceeding remains undecided or is awaiting a decision or settlement. This principle also applies to administrative tribunals. In Malebane v Dykema the Spatial Planning and Land Use Management Act 2013 included transitional provisions that ‘all applications, … Continue reading

EIB report on Banking in Africa: Read the findings of our review of the state of bank recovery and resolution laws in Africa

By Patrick Bracher (ZA) on January 9, 2019 Posted in Banking

On 22 November 2018, the European Investment Bank (EIB) published the fourth edition of its banking in Africa report. This latest report, Banking in Africa: Delivering on Financial Inclusion, Supporting Financial Stability, focuses on recent developments in Africa’s banking sectors and the policy options for all stakeholders, and includes the results of the EIB’s survey of … Continue reading

Test for a simulated transaction avoiding the payment of tax

By Patrick Bracher (ZA) on December 21, 2018 Posted in General

A transaction is not necessarily a disguised one because it is devised for the purpose of avoiding liability for tax. If the parties honestly intend the contract to have the effect stated in the contract then the only question is whether there is liability for the tax or not. The court will ascertain the intention … Continue reading

Protection of Personal Information Act – Regulations published

By Patrick Bracher (ZA) on December 17, 2018 Posted in General

The Regulations to the Protection of Personal Information Act have been published by the Information Regulator. They will commence on a date to be determined. The regulations are fairly short, but contain a raft of forms relating to the processing of information, for example: a form for objecting to the processing of personal information; requests … Continue reading

Consider your verdict: Does motor insurer pay for fire caused while immobilised vehicle being repaired?

By Patrick Bracher (ZA) on December 15, 2018 Posted in Insurance

Here is a nice exercise for you. The UK Supreme Court has heard argument and will soon be giving judgment on the question whether a UK motor policy extends to liability for damage to the property of third parties because of fire caused by repair work to the car when it is immobilised. A mechanic … Continue reading

Conduct of Financial Institutions Bill published for comment

By Patrick Bracher (ZA) on December 12, 2018 Posted in General

In case you are wondering what your holiday reading is, the draft Conduct of Financial Institutions Bill has been published by the National Treasury for comment. Comments will be accepted until 1 April 2019. The suite of documents includes the Bill itself (188 pages), the COFI Bill Policy Paper (90 pages), and the Socio-Economic Assessment setting … Continue reading

Extinctive prescription: When is a debt due?

By Patrick Bracher (ZA) on December 7, 2018 Posted in General

The Constitutional Court reaffirmed that a debt becomes due when it is immediately claimable or recoverable. Where the purchase price was not receivable under the Alienation of Land Act 1981 until the contract was recorded at the Deeds Office, prescription did not start to run until the recording of the contract took place. It is … Continue reading

Bad subcontractor work not an ‘accident’ – Ohio USA

By Patrick Bracher (ZA) on December 7, 2018 Posted in Insurance

Ohio’s high court has held that damage from a subcontractor’s faulty work is not fortuitous in the context of a commercial general liability policy which covered an ‘occurrence’ meaning an ‘accident, including continuous or repeated exposure to substantially the same general harmful conditions’ causing property damage including physical injury to or destruction of tangible property. … Continue reading

Cyber breach claim fails under GLP because information not ‘published’ (US)

By Patrick Bracher (ZA) on December 2, 2018 Posted in Insurance

A Florida court held that the insurer had no duty to defend a hotel operator’s information technology subsidiary against allegations that it was responsible for a hacking incident that exposed hotel customers’ credit card data because, under the general liability policy, there was no ‘making known to any person or organisation covered material that violates … Continue reading

Definition of ‘explosion’ cover in breakdown policy excludes liability

By Patrick Bracher (ZA) on December 2, 2018 Posted in Insurance

A refining company claimed under its equipment breakdown insurance policy following an explosion that occurred when a segment of a pipe in a charge heater designed to refine the petroleum product naphtha burst. A 600 degree naphtha mixture was running through the pipe at more than 14 000 pounds per hour and, when the charge heater … Continue reading

Interpretation of sanctions clause in a policy

By Patrick Bracher (ZA) on November 29, 2018 Posted in Drafting tips

In reaching a decision regarding the sanctions clause in a policy, the UK High Court made a number of useful comments on how a policy is interpreted: When a dictionary definition is relied on (in this case for the meaning of ‘expose’) it is a useful starting point but is not necessarily determinative of the … Continue reading

Enforceability of the sanctions exception in policies (UK)

By Patrick Bracher (ZA) on November 25, 2018 Posted in Insurance

An awaited decision on the enforceability of the sanctions provision in policies of insurance heard in the UK courts has turned out to be of not much general assistance. The English High Court found that, although an insurer is not liable to pay a claim where the payment would be prohibited under EU or US … Continue reading

Damages for denying gender-confirming medical care (US)

By Patrick Bracher (ZA) on November 25, 2018 Posted in General

A jury in Wisconsin awarded damages to two transgender women who were denied gender-confirming medical care by a state health plan. The state’s health insurance excluded procedures, services and supplies ‘related to surgery and sex hormones associated with gender reassignment’. The court found that the exclusion is unconstitutional because it ‘entrenches the belief that transgender … Continue reading

Administrative law: Legal status of departmental Directive

By Patrick Bracher (ZA) on November 19, 2018 Posted in General

The Department of Home Affairs issued an Immigration Directive which required departmental functionaries to refuse all applications for temporary or permanent residence visas made by the holder of an asylum seeker permit. The court found that the directive was treated as binding by the departmental officials tasked to implement it and it was therefore open … Continue reading

Bitcoin held to be property not money for insurance policy (US)

By Patrick Bracher (ZA) on November 19, 2018 Posted in Insurance

A court in Ohio found that bitcoin is covered ‘property’ under a homeowner’s policy and not ‘money’ and therefore the claim for lost bitcoin was not limited by the money sublimit. The decision was based partly on a recent Internal Revenue Service document that categorised virtual currency such as bitcoin as property for federal tax … Continue reading

PI policy cannot be ceded to third party

By Patrick Bracher (ZA) on November 12, 2018 Posted in Insurance

The professional indemnity policy issued by the Attorneys Insurance Indemnity Fund is incapable of cession to a third party. A purported cession to the client of a law firm who had lost misappropriated trust funds was declared invalid by the Supreme Court of Appeal. Contracts can be ceded to third parties if there is no … Continue reading

Insurer entitled to rely on third party expert’s conclusions (US)

By Patrick Bracher (ZA) on November 4, 2018 Posted in Insurance

A Delaware court held that a property insurer did not breach its policy issued to a farm when it refused to cover the collapse of a chicken coop during a blizzard because it justifiably relied on expert reports indicating that the destruction was caused by snow and faulty construction which were exclusions under the policy. … Continue reading