Patrick Bracher (ZA)

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

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

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

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

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)

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

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

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

Directors & Officers insurance – Exclusion for director gaining personal advantage (AUS)

The Federal Court of Australia found in March 2023 that a claim under a Directors & Officers Policy was excluded because the director had gained personal advantage from his wrongful act to which he was not legally entitled when he concealed information to avoid cancellation of a contract held with another company owned and controlled … Continue reading

Claim for punitive constitutional damages after tender is set aside fails

The applicants had succeeded in a government tender which was subsequently set aside when irregularities in the tender were uncovered. Although the action for relief was moot, they asked the Constitutional Court for a judgment because they intended to pursue a claim for punitive constitutional damages. The relief was refused by the court because the … Continue reading

Insurers lose subrogation rights due to underlying contract waiver (US)

After paying about $80 million for claim for an explosion and fire that damaged the glass furnace and associated equipment of the insured’s glass manufacturing plant, the insurers unsuccessfully attempted to pursue subrogation claims against the defendant-contractors who were allegedly responsible for the incident because of negligence and breach of contract. The loss was in … Continue reading

Majority shareholder has no legal standing to protect its purely financial interests against third parties

The Supreme Court of Appeal refused to grant legal standing to a 64% shareholder of a company that challenged the decision of the North West Gambling Board in relation to the licence held by the company. Something more than a pure financial interest is required where a shareholder seeks to assert rights that correctly belong … Continue reading
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