Siyabonga Mathe

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An independent cleaning contractor does not assume a shopping mall owner’s duty of care

By Siyabonga Mathe on March 9, 2021 Posted in Insurance

The duty to take reasonable steps to ensure that a shopping mall is reasonably safe, falls on the owner or any person who may be in control of the premises. The appointment of an independent cleaning contractor, does not entitle the owner or the person in control to avoid liability for claims which arise as … Continue reading

A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA

By Siyabonga Mathe on December 17, 2020 Posted in General

A forfeiture clause, entitling the lessor to cancel the agreement, without notice to the lessee, in the event of breach by lessee is not void for unfairness in terms of the Consumer Protection Act 2008. The CPA should not be construed to invest the court with the power to refuse to enforce contractual terms on … Continue reading

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

By Siyabonga Mathe and Patrick Bracher (ZA) on November 23, 2020 Posted in General

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?

By Deniro Pillay (ZA) and Siyabonga Mathe on November 16, 2020 Posted in General

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

Doctors must act in accordance with a reasonable and respected body of medical opinion

By Siyabonga Mathe on August 18, 2020 Posted in General

A doctor is not negligent if they act in accordance with a practice accepted at the time as proper by a reasonable and respected body of medical opinion. This is so even if other doctors might have acted differently based on other acceptable medical opinions. In McGregor and another v MEC Health, Western Cape, the … Continue reading

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

By Siyabonga Mathe and Romy Allen on July 2, 2020 Posted in General

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

By Siyabonga Mathe on June 24, 2020 Posted in Insurance

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

By Siyabonga Mathe on June 3, 2020 Posted in General

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

An arbitrator’s notes are irrelevant and not part of the record on review

By Siyabonga Mathe on May 11, 2020 Posted in General

An arbitrator’s notes do not form part of the record of arbitration proceedings, and the losing party, intent on a review, cannot compel the disclosure of the notes. In Zamani Marketing and Management Consultants v HCI Invest 15 Holdco, the claimant instituted proceedings in terms of the Arbitration Act 1965 to review and set aside … Continue reading

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

By Siyabonga Mathe on May 3, 2020 Posted in General

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

Keep calm and litigate: court orders virtual trial during COVID-19 (Australia)

By Siyabonga Mathe on April 28, 2020 Posted in General

An Australian court refused to postpone a six-week trial, and ordered the parties to work out the details of how the trial can proceed electronically. The parties have to decide on an electronic platform, how documents are to be exchanged, and how experts will confer prior to the trial. In light of COVID-19, the defendant … Continue reading

Service of summons on one surety does not interrupt running of prescription for other sureties

By Siyabonga Mathe on April 22, 2020 Posted in General

The service of a summons on one surety does not interrupt the running of prescription in favour of a co-surety. Although the surety undertakes to be liable if the principal debtor does not pay the debt, the surety does not become a co-debtor with the principal debtor, nor does the surety become a co-debtor with … Continue reading

Evidence relating to a contract: contradicting versus interpreting the terms

By Siyabonga Mathe on April 21, 2020 Posted in General

Where a contract has been reduced to writing the writing is regarded as the exclusive embodiment of the transaction and no extrinsic (parol) evidence which would have the effect of contradicting, altering, adding to or varying the written contract may be relied on. This is referred to as the parol evidence rule. The inadmissibility of … Continue reading

Enforceability of a clause excluding liability for negligence

By Siyabonga Mathe on April 14, 2020 Posted in General

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)

By Siyabonga Mathe on March 30, 2020 Posted in General

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

By Siyabonga Mathe on November 28, 2019 Posted in General

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

Valuation of stock at year end: time-based write-down not enough

By Siyabonga Mathe and Dale Cridlan on November 22, 2019 Posted in General

The Income Tax Act 1962 requires opening and closing trading stock to be taken into account in determining taxable income derived from carrying on any trade in any assessment year. Section 22(1)(a) of the Act deals with the valuation of the stock, and provides that in respect of a taxpayer’s trading stock that is held … Continue reading