Topic: General

Duty to protect the public prevails over a healthcare practitioner’s need to practice

By Natasha Naidoo on February 23, 2021 Posted in General

A gynaecologist and obstetrician, appeared before the Professional Conduct Committee of the Health Professions Council of South Africa (HPCSA) on charges lodged against him by his patient, Mrs M. He pleaded guilty to 2 out of 7 counts of alleged unprofessional misconduct, and was found guilty only of the 2 counts which he pleaded guilty … Continue reading

Legal professional privilege promotes the rule of law

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

In a matter regarding unlawful surveillance the Constitutional Court held that the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client. That promotes the rule of law. Although originally sourced from the common law, legal professional privilege is now supported by the Constitution. The court reaffirmed a … Continue reading

Protection of journalists’ sources is supported by the Constitution

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible. Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists … Continue reading

International law does not cover expropriations of property belonging to a country’s own nationals

By Patrick Bracher (ZA) on February 9, 2021 Posted in General

An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals. … Continue reading

Life policy proceeds due to insolvent must be paid to their trustees

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where an unrehabilitated insolvent was the beneficiary of the proceeds of a life policy taken out on the life of his wife, and the couple’s joint estate had been sequestrated, it was held that the proceeds of the policy were payable to the trustees of the insolvent estate and not to the insolvent surviving husband. … Continue reading

Meaning of payment for electricity under lease at ‘prevailing commercial rates’ (UK)

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where a tenant was required to pay for electricity and gas ‘at no more than … the … prevailing commercial rates’ the court held that this meant the prevailing commercial rates of the private utility networks of major UK airports including airports receiving international and internal passengers rather than the rates payable to public networks … Continue reading

Direct versus indirect damages, and effect of non-variation clause

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

A cell phone service provider had wrongfully repudiated a contract with a dealer in cell phone products. The Supreme Court of Appeal held that the indemnity clause did not preclude the dealer from claiming damages. The clause which excluded liability for indirect damages did not preclude the damages claim because the amount claimed did not … Continue reading

Expert determinations under contract and the role of the courts (UK)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

In a case regarding a share purchase agreement with an adjustable base price of USD 2.258 billion and the adjustment to be determined by an independent accountancy firm acting as an expert, the court dealt with the supervision and control by the court of expert determinations. The approach is: The parties may agree that an … Continue reading

Sale of shares for “fair value” under MOI (UK)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

Where a minority shareholder (24.99%) was obliged to sell his shares to the majority at a “fair value” according to the articles of association (memorandum of incorporation) it meant a sale at the value of the shares on a sale between a willing buyer and a willing seller discounted to reflect the fact that the … Continue reading

Merger ends due to failure to operate in the ordinary course, but COVID-19 not MAE (US)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

In December 2020 the Delaware court held that the COVID-19 pandemic did not cause a Material Adverse Effect on the target of a merger because the MAE excluded ‘natural disasters and calamities’. Despite this, the buyer was not obliged to close the transaction and was entitled to terminate the sale agreement because the target made … Continue reading

$200 M for deceptively positive disclosures holds lessons (US)

By Patrick Bracher (ZA) on February 3, 2021 Posted in General

In December 2020 the US Securities and Exchange Commission imposed a $200 million negotiated fine on a corporation for alleged disclosure failures relating to its power and insurance businesses. The company was said by the SEC to have given a ‘deceptively positive picture to investors about its operations’ from 2015 to 2017. The company also … Continue reading

No liability for cricket ball injury

By Patrick Bracher (ZA) on February 1, 2021 Posted in General

Anyone who has studied the law of delict since 1951 is aware of the English case of Bolton v Stone which found that hitting a cricket ball out of a cricket ground is an incidence of the game and did not amount to negligence so that the passer-by injured by the ball could not sue … Continue reading

Amazon may be liable for a defective item bought online (US)

By Patrick Bracher (ZA) on February 1, 2021 Posted in General

In dismissing an application for summary judgment a US supreme court found that the trial court may well decide that Amazon was liable as the ‘seller’ of a defective thermostat that was installed in premises and caused a fire resulting in damage. Amazon alleged that all they did was to allow a third party seller … Continue reading

When does prescription start running in a malicious proceedings claim?

By Donald Dinnie on February 1, 2021 Posted in General

In a recent judgment the supreme court of appeal, unsurprisingly, reaffirmed that a favourable result of the prosecution for the claimant remains a requirement for a complete cause of action in a claim based on malicious proceedings. In terms of the Prescription Act a debt is due, owing and payable when the creditor, that is … Continue reading

HPCSA – primary guardian of morals of the health profession

By Natasha Naidoo and Hishaam Khan on January 27, 2021 Posted in General

On 15 January 2021 the Supreme Court of Appeal handed down a judgment which pronounced on the jurisdiction of the Health Professions Council of South Africa (HPCSA) as a medical malpractice watchdog and the primary guardian of morals of the health profession. The judgment confirmed that the HPCSA’s jurisdiction is not limited to the conduct … Continue reading

The dangers of not challenging a court order and the doctrine of peremption

By Donald Dinnie on January 26, 2021 Posted in General

It is not proper or capable for a party to institute subsequent but related proceedings to nullify an existing order of court. The only remedies are a successful application to rescind the order or to set the order aside through a successful appeal. The applicants in Whitehead v Trustees of the Insolvent Estate of Dennis … Continue reading

Can South African employers require their employees to undergo mandatory vaccination and testing for COVID-19?

By Jason Whyte on January 26, 2021 Posted in General

Global efforts have successfully developed both expedited means of testing for the COVID-19 virus and, more recently, vaccines. Employers may thus wish to explore the introduction of workplace policies which formalise mandatory testing and vaccination protocols in order to restore their workplaces to some level of normality, particularly workplaces where remote working is not suitable. … Continue reading

Nasdaq proposes board diversity for listed companies

By Patrick Bracher (ZA) on January 22, 2021 Posted in General

Nasdaq has proposed board diversity requirements as a condition to continued listing of corporations. The proposal adopts a ‘comply or disclose’ approach to encourage greater diversity on company boards requiring them to have at least one director who self-identifies as female and have one director who self-identifies as black or African American, Hispanic or Latinx, … 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

Lawful, reasonable and procedurally fair FAIS debarment process

By Desiree Reddy (ZA) on December 9, 2020 Posted in General

Anyone embarking on a FAIS process to debar a financial service provider or representative would do well to read a recent Financial Services Tribunal decision setting out what constitutes a lawful, reasonable and procedurally fair process. The matter is Mothei v Advicecube (FSP35/20). The decision sets out the statutory and regulatory basis for debarment proceeding … Continue reading

No special circumstances when sentencing a doctor for culpable homicide

By Donald Dinnie on November 25, 2020 Posted in General

The Constitutional Court in Van der Walt v The State set aside a doctor’s criminal conviction for culpable homicide on the basis of irregularities committed by the regional magistrate, which infringed the doctor’s right to a fair trial. The conviction was not set aside on the merits. Therefore, whether the doctor’s guilt was proved beyond a reasonable … 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

Scope of right of pre-emption

By Patrick Bracher (ZA) on November 18, 2020 Posted in General

Where a person is granted a right of pre-emption or right of first refusal and the grantor breaches the right (by selling or otherwise granting it to a third party), the so-called Oryx mechanism comes into place and the holder of the right steps into the shoes of the person to whom the right was … 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