Patrick Bracher (ZA)

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Cessions in security, parate executie, and performing unenforceable agreements

By Patrick Bracher (ZA) on July 7, 2023 Posted in Insurance

In a decision involving an elaborate set of facts, the Supreme Court of Appeal reminded us of certain legal principles relating to parate executie and the performance of contracts which the law says have no force. When an asset (in this case loan account claims) is ceded in securitatem debiti (as security), the principle of … Continue reading

Contract works exclusion not limited to works owned by or in possession of insured (AUS)

By Patrick Bracher (ZA) on July 6, 2023 Posted in Insurance

A July 2023 judgment by the Federal Court of Australia held that by reason of the definition of “Contract Works” in the Contractors Liability Policy, the contract works exclusion was not limited to those parts of the works owned by or in the possession of the insured because the natural and ordinary reading of the … Continue reading

Problems with ‘other insurance’ clauses

By Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In a US decision as to which of two insurers was the primary insurer with a duty to defend the policyholder, the ‘other insurance’ clauses in each policy were different. The ‘other insurance’ provision in the Secura policy provide that “if other valid and collectable insurance is available to the insured for a loss” coverages … Continue reading

Covid-19 Insurance and Damage (UK)

By Donald Dinnie and Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

In this judgment the insured restaurant argued that the requirement in the murder, suicide or disease extension that the interruption or interference with the insured business be caused by damage did not require physical damage. It was common cause that there had been no physical loss or damage to the insured premises or property used … Continue reading

The Rocket Docket in the US

By Patrick Bracher (ZA) on July 3, 2023 Posted in General

Every year in the US an assessment is made as to the fastest civil trial court in 94 US court districts. The results are interesting. The fastest Rocket Docket was in the district of Montana with 18.3 months from start to finish. Texas and Arkansas followed soon after with 18.8 months. At the other end … Continue reading

Many risks are exceeding the capacity of the insurance market

By Patrick Bracher (ZA) on July 3, 2023 Posted in Insurance

An increasing number of non-life risks are seen as being too large to be absorbed by the private insurance and reinsurance market or needing premiums or limits or both that reduce the cover available. Since the Covid-19 claims were shoe-horned in by the courts of the UK and South Africa to provide extensive interruption cover … Continue reading

Prescribed rate of interest is 11.75% from 1 July 2023

By Patrick Bracher (ZA) on June 28, 2023 Posted in Finance

This blog was co-authored with Michael McCarthy, Candidate Attorney. The prescribed rate of interest is 11.75% per annum with effect from 1 July 2023. The previous rate was 11.25% per annum. 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%. … Continue reading

If you copy and paste or chat to AI acknowledge your sources

By Patrick Bracher (ZA) on June 22, 2023 Posted in General

In a recent finding by the CCMA the Commission upheld the dismissal of a university senior academic who had copied and pasted blocks of borrowed material into a published article without acknowledging the sources. He was also accused of not supervising his students to ensure that they had not copied the work of others and … Continue reading

Breach of an insurance policy may lead to damages not cancellation

By Patrick Bracher (ZA) on June 22, 2023 Posted in Insurance

Depending on the wording of an insurance policy, a breach by the insured will not necessarily entitle the insurer to cancel the policy without a specific right to do so. According to the wording or, if not explicitly dealt with, the materiality of the breach, the insurer may only have a damages claim for loss … Continue reading

New emerging risk insights

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

Swiss Re has published their latest SONAR (Systematic Observation of Notions Associated with Risk). Many of the risks mentioned are specific to the northern hemisphere but some of them will be of interest locally in South Africa.… Continue reading

A forklift is a motor vehicle as defined in the Road Accident Fund Act

By Patrick Bracher (ZA) on June 21, 2023 Posted in Insurance

The Supreme Court of Appeal held in June 2023 that a forklift is not a motor vehicle as defined in the Road Accident Fund Act of 1996 which defines a ‘motor vehicle’ as “any vehicle designed or adopted for propulsion or haulage on a road by means of fuel, gas or electricity …”. The three … Continue reading

Prescribed rate of interest is rate when original judgment delivered

By Patrick Bracher (ZA) on June 15, 2023 Posted in General

The Supreme Court of Appeal confirmed that where post-judgment interest is payable at the prescribed rate of interest under the Prescribed Rate of Interest Act, 1975 is the appropriate rate of interest that prevails at the time when judgment is granted in favour of the claimant in the initial court in which the proceedings take … Continue reading

A non-life insurer can insure its first-party risks

By Patrick Bracher (ZA) and Tristan Marot on June 13, 2023 Posted in Insurance

A March 2023 decision of the Financial Services Tribunal found that there is no implied prohibition in the Insurance Act on ‘traditional’ insurers (not cell) underwriting risks for both its own first party risks and third party risks. Abacus Insurance Limited (“Abacus”), a traditional insurer, holds a non-life insurance licence, permitting it to underwrite third … Continue reading

Homeowners policy excludes claim for excessive rainfall damage (US)

By Patrick Bracher (ZA) on May 29, 2023 Posted in Finance

In May 2023 a Michigan US court held that an exclusion in a homeowners policy covering physical loss caused by water or waterborne material which backed through sewers or drains but excluded cover for “the inability of the sewer or drain to handle the amount of rainwater, surface water or groundwater trying to enter the … Continue reading

A settlement concluded in full and final settlement of all matters means just that

By Patrick Bracher (ZA) on May 24, 2023 Posted in General

A February 2023 Labour Appeal Court judgment interpreted a settlement agreement that agreed to the “full and final settlement of all matters between” the parties and “in full and final settlement of all and any claims which the parties may have against each other”. The employer and employee were parties to an employment agreement that … Continue reading

US court refuses to apply war exclusion to cyberattack

By Patrick Bracher (ZA) on May 23, 2023 Posted in Insurance

In May 2023 a New Jersey US Appellate Division refused to exclude insurers from coverage under an all-risks property insurance policy because the cyberattack which infected and damaged thousands of the claimant’s computers in its global network did not amount to “hostile/warlike action”. Merke & Co, a multinational pharmaceutical company was the victim of the … Continue reading

Sale of land agreement is void if it omits material terms (in this case subdivision)

By Patrick Bracher (ZA) on May 17, 2023 Posted in Insurance

The parties concluded a written sale of land agreement for unimproved erven purchased with the aim of subdividing and developing them into residential erven but an immediate subdivision was required because one erf extended into an adjacent development. The agreement was void because the parties had not agreed on the exact property sold because of … Continue reading

Where parties reach a settlement it puts an end to dispute and any litigation

By Patrick Bracher (ZA) on May 10, 2023 Posted in General, Insurance

The essence of a compromise (settlement) is the final settlement of disputed or uncertain rights or obligations by agreement between the disputing parties. Unless the settlement provides otherwise, it extinguishes the disputed rights or obligations. Where there is litigation, the purpose of a compromise is to prevent or put an end to the litigation. It … Continue reading

Trustees’ money laundering reporting obligations under the amended Trust Property Control Act

By Patrick Bracher (ZA) on May 5, 2023 Posted in General

This blog was co-authored with Michael McCarthy, Candidate Attorney In response to the now-implemented threat of greylisting, South Africa enacted the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022. The following amendments to the Trust Property Control Act, 1998 became operational with effect from 1 April 2023. Every trustee needs to understand … Continue reading

The consequences of acceptance or rejection of a business rescue plan

By Patrick Bracher (ZA) on May 2, 2023 Posted in General

This blog is longer and more dense than usual. Most of it is taken directly from the precise wording of the judgment and it will be of use to anyone interested in the business process. Section 151 of the Act requires a business rescue practitioner to convene and preside over a meeting of creditors and … Continue reading

Prescribed rate of interest is 11.25% from 1 May 2023

By Patrick Bracher (ZA) on May 2, 2023 Posted in General

The prescribed rate of interest is 11.25% per annum with effect from 1 May 2023. The previous rate was 10.75% per annum. 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

Loan between friends not arms’ length and not invalid under NCA

By Patrick Bracher (ZA) on April 11, 2023 Posted in General

A High Court judgment in March 2023 applied good law and common sense in finding that a loan between parties who had a closely knitted friendship was not an arms’ length transaction and was therefore not governed by the National Credit Act, 2005 (NCA). A credit transaction is not governed by the NCA if the … Continue reading

The tale of the unluckiest yacht – why you need insurance

By Patrick Bracher (ZA) on March 27, 2023 Posted in Insurance

A US case between an insured and an insurer involved the tale of the unluckiest yacht and the series of unfortunate events that she encountered. In January 2013 a new expertly designed custom built yacht Fearless was insured for a year. Two days later she struck a submerged rock in the US Virgin Islands. In … Continue reading