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

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

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

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

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

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

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

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

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

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

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

UK’s Serious Fraud Office replaces barristers with robots

The UK’s Serious Fraud Office (SFO), a government department that investigates and prosecutes serious or complex fraud and corruption, has replaced barristers with artificial intelligence (AI) to review documents and identify legally privileged material. While barristers were previously tasked with sifting through documents, the SFO’s new AI system is able to process more than half … Continue reading

AI in the law firm – Predictive analytics

The use of artificial intelligence (AI) is a critically important tool which empowers lawyers to work more effectively, and provide increased value to clients. One of the ways that lawyers and their clients can benefit from AI is through the use of predictive analytics. AI is better suited than its human counterparts to analyse and … Continue reading

New Prudential Authority CEO: FSB now Conduct Authority

The National Treasury has announced the appointment of Deputy Governor of the Reserve Bank, Kuben Naidoo, as the CEO of the Prudential Authority under the Financial Sector Regulation Act. The announcement also explains the process for appointing the Commissioner and Deputy Commissioner of the Financial Sector Conduct Authority. The FSB will ‘close down on 31 March … Continue reading

UK loss adjusters guilty of breach of data protection

A jury in England has found four individuals and the firm providing loss adjusting and claims management services guilty on charges of unlawfully disclosing personal data that was illegally obtained regarding the financial information of a number of individuals including details of their banking transactions. The firm used private investigators who obtained and disclosed the … Continue reading

General damages and contingency deductions in medical negligence cases

When a patient’s brain injuries diminishes their awareness and full appreciation of their pain and suffering, an award for general damages is appropriate if the patient experiences intermittent periods of heightened awareness. When determining the amount to be awarded for general damages, our courts prefer a flexible approach. The award should be determined by the … Continue reading

Consequences of shareholders’ loans in Mozambique

The Mozambican commercial code provides that a loan with a maturity of 1 year or more, made by a third party who later becomes a shareholder of the borrower via equity subscription, becomes a shareholder loan. This has enforcement consequences for the lender, subordinates the loan and affects set-off because of the connection between the … Continue reading

When are statutory requirements mandatory or directory?

The failure to comply strictly with formalities and other procedural requirements imposed by a statute does not necessarily lead to invalidity. Even where the formalities required by statute are peremptory it is not every deviation from the literal prescription in the statute that is fatal. The question remains whether, in spite of the defects, the … Continue reading
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