Topic: General

Competition Amendment Bill proposes significant changes to Market Inquiries

By Rosalind Lake, Nelisile Thanjekwayo and Nonkululeko Sibanyoni on September 20, 2018 Posted in General

The Competition Amendment Bill proposes giving the Competition Commission broader powers, with more substantial remedies and the threshold for initiating a market inquiry has been lowered. Key changes include the expansion of the scope of market inquiries, the provision of a notification and consultation process with sector regulators and the granting of substantial powers to … Continue reading

Medical prosthesis not defective nor abnormal risk (UK)

By Patrick Bracher (ZA) on September 18, 2018 Posted in General

The manufacturer of a hip prosthesis system (which was of a metal-on-metal design) for use in total hip replacement operations was sued by 313 individual claimants who alleged metal-wear debris damaged surrounding soft tissues necessitating revision surgery. The court found that the system was not defective and the claimants had not proved that it did … Continue reading

Responsibility of holding company for delicts of subsidiary (UK)

By Patrick Bracher (ZA) on September 10, 2018 Posted in General

A group of 218 Kenyans sued the English holding company of a subsidiary company in Kenya for which the plaintiffs worked, for failing to protect them against political violence that erupted in Kenya after the 2007 presidential election. The English court held that there was no arguable case against the holding company that it owed … Continue reading

Bank escapes liability for credit reference

By Patrick Bracher (ZA) on August 28, 2018 Posted in General

Playboy Club London sued an Italian bank for losses it suffered after it extended a credit facility to one of the bank’s customers on the basis of a favourable credit reference provided by the bank. A ‘well-known figure at a casino in Lebanon’ applied to Playboy Club for a cheque-cashing facility up to £800 000 to … Continue reading

Competition Amendment Bill proposes tougher penalties

By Rosalind Lake and Erwyn Durman on August 19, 2018 Posted in General

The Competition Amendment Bill of 2018 introduces harsher penalty provisions which increase the enforcement powers of the competition authorities for purposes of deterring anti-competitive conduct. Removal of the ‘yellow card’ Currently, the Competition Act only allows for administrative penalties to be imposed in relation to certain prohibited practices if the conduct has been repeated by … Continue reading

SA poised to follow suit in utilisation of non-competition merger control to protect State security in foreign mergers

By Jason van Dijk (ZA) on August 16, 2018 Posted in General

A controversial introduction in the latest draft of the Competition Amendment Bill of 2018 is the inclusion of a section that requires the State President to constitute a standing committee of cabinet ministers and public officials to consider whether a merger, involving a foreign acquiring firm, will be adverse to national security interests in the … Continue reading

Competition Amendment Bill 2018 aims to protect market participation of non-dominant firms

By Rosalind Lake and Erwyn Durman on August 13, 2018 Posted in General

The overriding intention of the Competition Amendment Bill of 2018, introduced in parliament on 12 July 2018, is to address perceived high levels of concentration and the skewed ownership profile of the South African economy. The competition authorities have consistently expressed concerns about the large number of dominant firms operating in the economy which they … Continue reading

Dispute not settled if made subject to written agreement

By Patrick Bracher (ZA) on July 24, 2018 Posted in General

A UK court examined whether a construction dispute had been settled in the course of without prejudice correspondence between the parties’ lawyers. The letter of acceptance of the offer said the settlement was subject to approval by the board of the builder and would only become valid and binding when executed by authorised signatories. The … Continue reading

No absolute duty to clear natural vegetation to prevent fire spreading

By Patrick Bracher (ZA) on July 17, 2018 Posted in General

A reasonable landowner is not obliged to ensure that in all circumstances any fire on its property will not spread beyond its boundaries. The landowner is obliged to take steps that are reasonable in the circumstances to guard against such an event occurring. If the landowner takes those steps and a fire spreads nevertheless, the … Continue reading

Director’s personal liability (UK)

By Patrick Bracher (ZA) on July 10, 2018 Posted in General

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Deafness from acoustic shock caused by a Wagner opera

By Patrick Bracher (ZA) on July 4, 2018 Posted in General

The claimant, a professional viola player at the Royal Opera House, was found to have suffered acoustic shock whilst sitting in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle. It was found he was exposed to noise levels which created a risk to and resulting injury of his … Continue reading

Armed robbery is vis major

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

Two consignments of cigarettes which were imported into South Africa from Zimbabwe were stolen in August 2009 by unknown armed robbers during a robbery from a customs and excise warehouse. The owners of the consignment claimed a rebate of customs duty under the Customs and Excise Act which allows a rebate in circumstances of vis … Continue reading

Arbitration clause not void for vagueness (UK)

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty. The court quoted a nice passage from a previous … Continue reading

Strategically blocking an insolvency reorganisation plan is not bad faith (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Where a creditor blocked a bankruptcy plan by buying available claims to get sufficient votes to do so, it was held that this was not a bad faith purchase. A finding of bad faith requires evidence of an ulterior motive. If a creditor seeks to protect its claim to the fullest extent by a strategic … Continue reading

When the costs exceed the claim (UK)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Two UK judges have expressed their dismay over a matter that went to court for three plaintiffs with modest claims in the lower hundreds of pounds where the parties ended up spending GBP2 million on costs. The claim was against an airline for air tickets for cancelled flights. The court observed that from an early … Continue reading

No right to claim for negligent referral (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

An appeal court in New Jersey found that there is no law in terms of which a law firm can be held liable for a “negligent referral” for referring a former personal injury client to another lawyer who mishandled the claim. The plaintiff alleged that the referral lawyer who acted in the personal injury matter … Continue reading

Scope of arbitration clause (UK)

By Patrick Bracher (ZA) on June 20, 2018 Posted in General

The UK Chancery Division held that an arbitration clause relating to any dispute regarding a contractual undertaking to renegotiate port licensing conditions in the event of ‘any major physical or financial change in circumstances affecting the operation’ of the importer’s works, was broad enough to cover a dispute about the fees for the use of … Continue reading

Administrative action can be reviewed from when it adversely affects a person’s rights

By Patrick Bracher (ZA) on June 12, 2018 Posted in General

The Supreme Court of Appeal decided that a decision by the National Energy Regulator of South Africa to determine gas prices was not reviewable at the stage when NERSA decided on a methodology to determine the prices, but was reviewable when NERSA subsequently determined the prices imposed on customers. In February 2012, NERSA concluded that … Continue reading

European Commission’s approach to artificial intelligence (AI)

By Patrick Bracher (ZA) on June 11, 2018 Posted in General

The European Commission has labelled AI as one of the most strategic technologies of the 21st Century (so far of course) and has proposed a three-pronged approach to EU members which is worth considering: Investment in AI research and innovation must be increased. The EU (public and private sectors) is boosting investment by at least … Continue reading

Cancellation of contract not justified where most of the price already paid and restitution unlikely

By Patrick Bracher (ZA) on June 6, 2018 Posted in General

The court refused to uphold cancellation of an agreement of sale for a members’ interest in a close corporation because only a total of R160 000 out of a purchase price of R4 million (96%) was outstanding and three of the appellants had been paid in full. In addition, restitution of the amount already paid was doubtful … Continue reading

Failure to object to short payment may be a waiver and result in prescription

By Patrick Bracher (ZA) on June 4, 2018 Posted in General

An intention to waive must be inferred reasonably; no-one can be presumed to have waived rights without clear proof. The test for such intention is objective. Silence and inaction will do when a positive duty to act or speak arises. A security company rendered security services to a municipality for six years. During the second … Continue reading

Enforce your arbitration award right away or the debt may prescribe

By Todd Petersen and Daniel McConnell on May 31, 2018 Posted in General

An arbitration award does not create a new debt for purposes of prescription. Parties who wait more than one year to have an arbitration award made an order of court with a 30 year prescription period may find that, when they attempt to enforce the award, the underlying debt has prescribed. Parties should deal expressly … Continue reading

How to politely tell someone they are lying

By Patrick Bracher (ZA) on May 27, 2018 Posted in General

In a recent case which went through two courts in the UK relating to a ‘fiscally clandestine organisation’, the evidence of the various ‘utterly dishonest’ witnesses was described in the following phrases which you may find useful: One witness was ‘egregiously dishonest’ and in his evidence was ‘as heroically dishonest as he is in everyday … Continue reading