Patrick Bracher (ZA)

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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

Contribution between insurers (US)

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

When Empire Insurance Company paid the claim for losses sustained by a car hire company when the hirer crashed their Lamborghini, it sought to recover its outlay from Allstate Insurance who insured the driver who was responsible for damage to the vehicle under the rental contract. The court held that Allstate was not entitled to … Continue reading

Setting aside arbitration finding for fraud discovered after award (UK)

By Patrick Bracher (ZA) on August 7, 2019 Posted in General

The English commercial court set out the limited basis on which an arbitration award can be set aside when it is alleged that evidence of fraud that would have affected the decision only came to light after the award. The merits of an arbitration award are rarely reviewed. Public policy exceptions such as fraud can … Continue reading

The State’s liability for damages at a school under the Schools Act

By Patrick Bracher (ZA) on August 6, 2019 Posted in General

The South African Schools Act 1996 makes the State liable for any delictual damage or loss caused as a result of any act or omission in connection with any school activity for which the school would otherwise have been liable. The State is only liable to the extent that the event is not covered by … Continue reading

Separating good from bad in a statute

By Patrick Bracher (ZA) on July 30, 2019 Posted in Drafting tips

It has been reaffirmed that where part of a law is invalid for being beyond the powers of the lawmaker (ultra vires) the good in the law will not be separated from the bad if it is complicated and impractical to do so. If there is an incoherent remainder, the entire law will be set … Continue reading