An acceleration clause that allows a creditor to call in a full debt payable by instalments can be drafted to operate automatically on default by a debtor, or it can allow the creditor an election to accelerate the debt. The distinction between automatic and elective acceleration clauses is important because it affects when prescription on … Continue reading
The Interpretation Act 1957 applies to the interpretation of all laws, so it is a useful act to know. The act was last amended to incorporate the 1993 Interim Constitution. While there are some archaic and strange provisions, like the mention of the former colonies and the Royal Letters Patent of His Majesty King William … Continue reading
The court in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd had to decide whether a retailer was breaching its lease by operating a supermarket selling a range of perishable and non-perishable food products within its general retailer store. The court said that regard must first be had to the word “supermarket” itself. The … Continue reading
An arbitrator has no power to fix the scope of the arbitrator’s jurisdiction. Jurisdiction must be fixed by the terms of reference of the arbitration. Its scope must be objectively ascertainable in advance of the arbitration. An arbitrator cannot make a decision conferring jurisdiction on the arbitrator that is not possessed in law. That is … Continue reading
A statute should be construed to conform with the common law unless the statute itself evidences a plain intention on the part of the legislature to change the common law. This observation was made in Engen Petroleum Limited v The Business Zone 1010 CC t/a Emmarentia Convenience Centre. The court found that section 12B of the Petroleum … Continue reading
A commercial agreement should not lightly be determined unenforceable simply because the parties set out the terms in an unclear manner. The Supreme Court of Appeal, in Novartis v Maphil, dealt with whether a pharmaceutical drug manufacturer and a medical device supplier had concluded a contract. The court had to consider written documents, oral agreements … Continue reading
When you import the provisions of one document or statute into another it is common to do so “mutatis mutandis”. The Supreme Court of Appeal in Mayo No v De Montlehu reminded us that there is an imperative nuance when you use that Latin expression. The words mean “subject to the necessary alterations” not the … Continue reading
In a recent decision the Constitutional Court reminded us that where there is a constitutional issue there is a new approach to interpreting statutes. The courts must seek an interpretation that promotes the spirit, purport and objects of the Bill of Rights. The courts will apply a generous construction over a merely textual or legalistic … Continue reading
Where a suretyship was headed “Deed of Suretyship – Tuning Fork (Pty) Limited t/a After Market Products” it was held that the surety only owed money for the debts incurred by the After Market Products division of the company even though that division was not a separate legal person. The court in Ian Kilburn v … Continue reading
Ideally, when you contract with a trust, the agreement should be in the name of the trustee or trustees acting on behalf of the named trust. But where the trust is named as a party to the contract that does not render the contract invalid. This is the welcomed finding by the Supreme Court of … Continue reading
The Land and Agricultural Development Bank of South Africa lent the sum of R18.5 million to Panamo Properties 103 (Pty) Limited to enable it to purchase agricultural land that was going to be developed into a township. That agreement was invalid. The mortgage bond registered over the property to secure the loan was nonetheless valid to … Continue reading
The factual matrix may have to be set out and proved in a case involving the interpretation of an ambiguous contract. We have previously written about the method of interpreting a contract in our posts Golden rule of interpretation – Good riddance and Interpret contracts according to words, purpose and context. The Supreme Court of … Continue reading
In recent blogs we have made the point that the background and context of an agreement will be taken into account in the interpretation of an ambiguous provision. Here are two quotes from US cases which have a neat approach to ambiguity: “It is well settled that ‘[a] contract is unambiguous if the language it … Continue reading
The evidence of the parties to a written agreement about what either of them may have had in mind when they concluded the agreement is irrelevant for the purpose of finding the meaning of the words they used. The process of giving meaning to the words used in a contract has regard to the context … Continue reading
A contract specifying that interest must be “calculated daily” does not mean compounded daily or capitalised daily. Simple interest therefore applies. In Euro Blitz 21 (Pty) Ltd and Another v Secena Aircraft Investments CC the appeal court found that the words “calculated daily” in a written lease agreement and consequent court order did not mean … Continue reading
A recent tax case has a nice illustration of the ejusdem generis rule that where general words follow specific words, the general words must be confined to things of the same kind as those specified. The words in question are in the Eighth schedule of the Income Tax Act where section 35(3)(c) provides that the proceeds … Continue reading
We make no apologies for repeating what we have said in previous blog posts about how contracts are interpreted. Old habits with emphasis on the words used are difficult to break. In the latest case (Cloete Murray v FirstRand Bank Limited) the court said: “The inevitable point of departure in interpreting a statute is the … Continue reading
An English court has held that a dispute resolution clause in a contract that requires the parties to try to resolve a dispute by friendly discussions in a limited period of time before referring the dispute to arbitration is enforceable. Where commercial parties have agreed a dispute resolution clause which purports to prevent them from … Continue reading
In any marginal question of statutory interpretation, evidence that it has been interpreted in a consistent way for a substantial period of time by those responsible for the administration of the legislation is admissible. The evidence may be relevant to tip the balance in favour of a particular interpretation. It is consistent with the modern … Continue reading
It is ultimately up to the court to determine the meaning of a statute. If the meaning of a law is clear and unambiguous, any other views expressed by a regulator, for instance in a registrar’s practice directive, are irrelevant to the proper interpretation of the statute. This was held in an interesting battle under … Continue reading
Parties to contracts frequently allege that the other party has repudiated the contract by expressing an intention not to be bound by its terms and cancelling the agreement as a consequence. That step must be taken with care. The Supreme Court of Appeal in Braun Medical (Pty) Limited v Ambasaam CC pointed out that the … Continue reading
There is no reason why foreign companies and individuals should not arbitrate their disputes in South Africa according to South African law. The South African courts will encourage the selection of South Africa as a venue for international arbitrations. Where a dispute “arising out of” the relationship between the parties is subject to arbitration, the … Continue reading
An arbitration clause should include an express provision that the clause survives the agreement. There was an important shift in Cool Ideas 1186 CC v Hubbard. An unregistered homebuilder was trying to recover the costs of building a home even though the Housing Protection Act prohibits payment and makes it a criminal offence to build … Continue reading
In a UK case, the contract included a provision that “the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England will have non-exclusive jurisdiction”. It was held that this is not an arbitration agreement. The parties did not specifically agree to refer the … Continue reading