Patrick Bracher (ZA)

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Public participation in South African law-making process is essential

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

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

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

Extinctive prescription: When is a debt due?

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

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)

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

Damages for denying gender-confirming medical care (US)

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

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

PI policy cannot be ceded to third party

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

Private equity firm not liable for investing in competing company (US)

A Delaware court dismissed a claim that a private equity firm and its affiliated funds had misappropriated trade secrets acquired from a portfolio company via their directors on the board of the company and misused the information by investing in a competitor. The court found that no reasonable inference of misappropriation could be drawn because … Continue reading

Administrative law: Obligation to exhaust internal remedies

The Constitutional Court re-examined section 7(2) of the Promotion of Administrative Justice Act which creates an obligation on applicants for the court review of an administrative decision to exhaust all internal remedies first. The obligation to exhaust internal remedies should not be rigidly imposed nor used by administrators to frustrate an applicant’s efforts to review the … Continue reading

Fraudulent misrepresentation defeats voetstoots clause in sale

Where a seller had fraudulently failed to disclose a defective roof and sewerage system covered by buildings constructed without required statutory approval he was successfully sued in delict for fraudulent misrepresentation and fraudulent nondisclosure. Because the conduct was fraudulent the delictual claim defeated the voetstoots clause in the deed of sale as well as the … Continue reading
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