Patrick Bracher (ZA)

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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

Vicarious liability for creating a risk

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

The Supreme Court of Appeal has again extended the scope of vicarious liability. A security company was found liable for a murder committed by their site supervisor in an attempt to rob the deceased who was the financial manager at the premises which the security company were required to guard. The court held that placing … Continue reading

Nike out-bids New Balance for branded Liverpool FC shirts

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

Liverpool Football Club had an existing deal with New Balance to manufacture and sell replica football shirts with their logo. At renewal time Nike out-bid New Balance’s terms and were held entitled to the contract. The question was whether New Balance had matched Nike’s offer. Nike made a detailed offer including a large number of … Continue reading

The Big Read Book Series

By Donald Dinnie and Patrick Bracher (ZA) on November 3, 2019 Posted in Insurance

Norton Rose Fulbright’s insurance practice is excited to announce the launch of its Big Read Book Series with the publications of Volume 1 and 2 in the series. The series is part of the insurance practice’s contribution to resourcing the insurance industry. Volume 1 is a collection of South African insurance judgments of 2018. Volume … Continue reading

Split Constitutional Court decision is no decision

By Patrick Bracher (ZA) on November 3, 2019 Posted in General

In a matter involving disputed patents under the Patents Act 1978, ten judges of the Constitutional Court sat and there were five judges on each side whether to uphold or dismiss the appeal. Where there is no majority decision, the judgment of the lower court stands. Each party was ordered to pay their own costs. … Continue reading

Loss of profits claim for damaged taxi (UK)

By Patrick Bracher (ZA) on October 27, 2019 Posted in Insurance

Where the vehicle of a professional driver such as a taxi driver is damaged in an accident caused by another party’s fault, there is a loss of profits claim while the vehicle is repaired or replaced which may be limited to mitigation costs. The following principles apply: The starting point is the loss of profits … Continue reading

Holder of trust money is liable for paying incorrect party

By Patrick Bracher (ZA) on October 24, 2019 Posted in General

A firm of attorneys involved in a property transaction paid R1 744 599.45 into the bank account of a hacker in response to emailed instructions. It was held that the attorneys were liable to the true client to pay this amount for failing to perform their mandate in regard to the trust money with sufficient care and … Continue reading

Animals cannot commit vandalism and malicious mischief (US)

By Patrick Bracher (ZA) on October 14, 2019 Posted in Insurance

An insured sued under their Dwelling Policy for a substantial amount of damage that had been caused to their home by racoons which somehow entered the dwelling. They relied on the cover provided for ‘vandalism and malicious mischief’ which cannot be applied to animals, said the Pennsylvania court. Not surprisingly, the court found that ‘vandalism’ … Continue reading

‘In writing’ does not mean implied acceptance of written clause

By Patrick Bracher (ZA) on October 14, 2019 Posted in General

Article 25 of the Recast Brussels Regulation which requires an agreement conferring jurisdiction to be ‘in writing or evidenced in writing’ is not satisfied by a clause in the contract being in writing and the consent being solely implied from conduct of the parties. The consent itself has to be in writing or evidenced (or confirmed) … Continue reading

Equitable financial compensation instead of land restitution

By Patrick Bracher (ZA) on October 8, 2019 Posted in General

The applicant in Jacobs v Department of Land Affairs had been deprived of land through a racist fraudulent transfer of the land in 1907 and subsequent eviction in 1921. They claimed financial compensation and were awarded R780 000. On appeal it was held that the Land Claims Court had correctly calculated the amount. The calculation is not … Continue reading

Russian roulette is self-inflicted injury not suicide (US)

By Patrick Bracher (ZA) on October 8, 2019 Posted in Insurance

A Texas court held that the insurers did not have to pay the death claim for a teenager who died when he pulled the trigger of a revolver with the barrel in his mouth and one bullet in the cylinder killed him instantly, because it was excluded by the policy exclusion for death caused directly … Continue reading

Electronic signatures confirmed in UK

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

Everyone involved in agreements governed by English law will be pleased to hear that the UK Law Commission has confirmed that an electronic signature can be used to execute an English law document (including a deed) if: the person signing the document intends to authenticate the document; and any formalities relating to the execution of … Continue reading

Act of God defence fails

By Patrick Bracher (ZA) on September 25, 2019 Posted in Insurance

When Superstorm Sandy struck Staten Island off New York in October 2012, a dinner cruise boat docked in a marina sustained severe damage from the storm’s high winds and rain, ultimately sinking with a loss of $750 000. The operators of the marina were held liable to the insurer which had paid out more than $900 000 … Continue reading

Prescribed rate of interest is 10% from 1 September 2019

By Patrick Bracher (ZA) on September 22, 2019 Posted in General

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

Contracting with a trust

By Patrick Bracher (ZA) on September 18, 2019 Posted in General

Where an agreement was purportedly entered into with a trust where one of two required trustees did not sign and in fact refused to do so, the agreement was void and there was no basis for an action compelling the sale to the trustee who did sign to buy the property. A signatory who warrants … Continue reading

Prescription of debt for restitution after contract cancelled

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

Where one party cancels a contract because of repudiation by the other party there is an obligation to make restitution and to pay money or deliver assets which were received as performance under the cancelled contract. The cancellation gives rise to a personal obligation to pay or deliver what was received. The same would apply … Continue reading

International Arbitration Act does not override local law

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

The purchaser of a consignment of coal sought to join the party which had loaded hot coal on board the vessel causing an explosion and abandonment of the voyage. It was held that the International Arbitration Act 2017 does not override the admiralty jurisdiction of the court. The Admiralty Jurisdiction Regulation Act 1983 is a … Continue reading

Entire building cladding replaced despite only two sides damaged

By Patrick Bracher (ZA) on August 14, 2019 Posted in Insurance

A hailstorm physically damaged the aluminium cladding on the south and west sides of the insured building. The insurer was ordered to replace the cladding on all sides of the building because a matching cladding could not be found. It was held that the obligation to pay for “direct physical loss” to the “covered property” … Continue reading

Damages under insurance contract with reinstatement value conditions

By Patrick Bracher (ZA) on August 12, 2019 Posted in Insurance

Where an insurance policy included reinstatement value conditions and the insured had taken immediate steps to comply with the reinstatement conditions, the insured could rely on the clause as long as the insured was genuinely desirous of restarting the business but was unable to do so because of the insurer’s unjustifiable decision not to indemnify … Continue reading