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
Siyabonga Mathe
A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA
By Siyabonga Mathe on
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…
Provincial MEC not liable for child injured by swing in the private school playground – delictual liability for breach of statute
By Siyabonga Mathe & Patrick Bracher (ZA) on
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…
When does a healthcare practitioner’s claim for damages for malicious HPCSA proceedings prescribe?
By Deniro Pillay & Siyabonga Mathe on
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…
Doctors must act in accordance with a reasonable and respected body of medical opinion
By Siyabonga Mathe on
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.
Courts will rarely refuse to enforce contracts on grounds of public policy
By Siyabonga Mathe & Romy Allen on
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…
Refund of overpayment of insurance benefit because error was excusable
By Siyabonga Mathe on
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;
…
Cancellation for breach of contract: 10 things to know
By Siyabonga Mathe on
- 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
…
An arbitrator’s notes are irrelevant and not part of the record on review
By Siyabonga Mathe on
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…
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
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…