Siyabonga Mathe

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Provincial MEC not liable for child injured by swing in the private school playground – delictual liability for breach of statute

The Supreme Court of Appeal found that the Provincial MEC for Social Development was not liable for the injury of a child in the playground of a nursery school operated by an NGO in the province. The school was treated as if registered under the Child Care Act 1983 because the incident occurred in 2008 … Continue reading

When does a healthcare practitioner’s claim for damages for malicious HPCSA proceedings prescribe?

A healthcare practitioner, who is the subject of malicious HPCSA proceedings, may institute a damages claim for malicious prosecution against the complainant who initiated the proceedings within three years from the date the HPCSA informs the practitioner of its decision to dismiss the complaint. The claim only arises, and prescription starts to run, from the … Continue reading

Courts will rarely refuse to enforce contracts on grounds of public policy

Contracting parties cannot escape the enforcement of a contract on the basis of the terms being contrary to public policy unless they can prove that the terms are so unfair, unreasonable or unjust in the circumstances that a court should intervene. The Constitutional Court reaffirmed that although constitutional values such as Ubuntu, reasonableness and fairness … Continue reading

Refund of overpayment of insurance benefit because error was excusable

An insurer (like any other erroneous payer) can recover a benefit erroneously paid under an insurance policy if its conduct in making that payment was not inexcusably negligent. In deciding whether the erroneous conduct is excusable, the court will take into account a number of factors, including: the relationship between the payer and the recipient; … Continue reading

Cancellation for breach of contract: 10 things to know

Cancellation as a remedy for breach of contract is only available where the parties have incorporated a right to cancel in their contract, or where the breach is of a sufficiently serious nature to justify cancellation. The contract may expressly state that if one of the parties breaches terms of the contract or fails to … Continue reading

The State’s good name is incapable of being defamed: South African government loses a bid to interdict publication of ‘defamatory’ material

The government or an organ of state is incapable of being defamed, and therefore not entitled to interdict publication of any material it perceives to be defamatory. The state should not use the courts as a means to muzzle or stifle the freedom of its citizens to criticise government, no matter how harsh it may … Continue reading

Enforceability of a clause excluding liability for negligence

A clear and unambiguous exclusion clause may be relied upon to avoid liability for damages arising from the negligent failure to fulfil a contractual duty. The wording of the exclusion clause must, however, specifically mention the extent to which liability is excluded. The courts generally interpret an exclusion clause as not covering negligent conduct if … Continue reading

Impossibility may be no defence if performance overdue (COVID-19)

As a general rule, a party is excused from rendering contractual performance if it becomes physically or legally impossible for such party to perform. But a defence of impossibility of performance will not succeed if, when the impossibility intervened, the performance was overdue. In such a case, the rule is that lateness perpetuates the obligation, … Continue reading

Constitutional values of ubuntu and fairness are not the basis for the courts’ interference with contractual relationships

It has long been held that although values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent rules that courts can employ to intervene in contractual relationships (South African Forestry Co Ltd v York Timbers Ltd). The fact that a term of a contract is … Continue reading
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