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Director’s personal liability (UK)

Patrick BracherBy Patrick Bracher on 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

Armed robbery is vis major

Patrick BracherBy Patrick Bracher on 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)

Patrick BracherBy Patrick Bracher on 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

When the costs exceed the claim (UK)

Patrick BracherBy Patrick Bracher on 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)

Patrick BracherBy Patrick Bracher on 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)

Patrick BracherBy Patrick Bracher on 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

Informed Consent Principles (UK)

Yash NaidooBy Yash Naidoo on Posted in General
The English Court of Appeal in a June 2018 judgment confirmed the principles relating to informed consent in medical malpractice claims. A woman had been suffering painful, heavy periods and lower back pain, for which she sought medical advice. After being given various treatment options, she chose to undergo a total abdominal hysterectomy and bilateral … Continue reading

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

Patrick BracherBy Patrick Bracher on 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

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

Patrick BracherBy Patrick Bracher on 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

How to politely tell someone they are lying

Patrick BracherBy Patrick Bracher on 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

The EU’s data protection regulations and South African business

Kerri Crawford (SA)Adriaan LouwBy Kerri Crawford (SA) and Adriaan Louw on Posted in General
On 25 May 2018, the EU’s new General Data Protection Regulation (GDPR) will come into force. While the regulations are aimed at protecting EU citizens and residents, its reach will be global and will impact on certain businesses operating in South Africa. The GDPR replaces the Data Protection Directive and is far-reaching, imposing additional obligations … Continue reading

Deliberations of Judicial Services Commission must be revealed

Patrick BracherBy Patrick Bracher on Posted in General
The Constitutional Court has held that the private deliberations of the Judicial Services Commission in exercising its mandate to appoint judges must be disclosed as part of the record of proceedings when a decision is challenged. The judicial candidates are interviewed in public and this is followed by private deliberations and recommendations to the President … Continue reading

Good faith requirement in a guarantee

Patrick BracherBy Patrick Bracher on Posted in General
Where a retention guarantee was provided to a construction company for an amount to be demanded but not exceeding ‘a good faith estimate of the costs’ claimed, the contractor had to show that the demand was made in the honest belief that it was a correct estimate of what it was entitled to be paid … Continue reading

Defence of lack of authority to conclude agreement rejected

Patrick BracherBy Patrick Bracher on Posted in General
A provident fund entered into an investment consulting agreement but subsequently contended that the signatories were not authorised and that the agreement was beyond its powers granted by the fund rules. Although there were strong objections to the agreement at the trustees meeting approving the agreement, no voting took place but the decision to appoint … Continue reading

Sanctity of contracts is good public policy

Patrick BracherBy Patrick Bracher on Posted in General
A lease was challenged on the grounds that the cancellation for non-payment of rent, after prior notice that the rent had not been paid, should not be enforceable because it was against public policy to cancel the agreement for the lease of a hotel that had been in place since 1982. Although good faith is … Continue reading

Prescribed rate of interest is 10% from 1 May 2018

Patrick BracherBy Patrick Bracher on Posted in General
The prescribed rate of interest has been changed with effect from 1 May 2018 to 10% per annum. The previous rate was 10.25%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts … Continue reading

Statutory self-help provision to deduct money from employee’s earnings declared unconstitutional

Patrick BracherBy Patrick Bracher on Posted in General
The Constitutional Court declared unconstitutional a provision in the Public Service Act entitling the government to deduct money due by an employee without any hearing. The employee had been overpaid a salary for a five year period because of a wrong grading and the Department of Health Gauteng deducted R56 257 from a gross salary of … Continue reading
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