Topic: General

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A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA

Siyabonga MatheBy Siyabonga Mathe on 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

Desiree Reddy (ZA)By Desiree Reddy (ZA) on 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

Donald DinnieBy Donald Dinnie on 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

Siyabonga MathePatrick Bracher (ZA)By Siyabonga Mathe and Patrick Bracher (ZA) on 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

Patrick Bracher (ZA)By Patrick Bracher (ZA) on 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?

Deniro Pillay (ZA)Siyabonga MatheBy Deniro Pillay (ZA) and Siyabonga Mathe on 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

Changes to the exchange control environment to promote investment

Mpho DuikerBelinda SussmanBy Mpho Duiker and Belinda Sussman on Posted in General
In the February 2020 Budget, the Minister of Finance, Tito Mboweni stated that the current exchange control regulations will be replaced with new less stringent regulations. On 28 October 2020, it was announced that the government will be pursuing steps to promote investment into South Africa. The following measures were announced: Inward listing All remaining … Continue reading

International contracts, arbitration and choice of law

Donald DinnieBy Donald Dinnie on Posted in General
For international commercial contracts subject to an arbitration agreement to resolve disputes (including insurance or reinsurance agreements), two systems of national law may be engaged: The law governing the contract from which the dispute has arisen. The law governing the arbitration. That is usually the law of the seat of the arbitration – the place … Continue reading

Unreasonable delay in review of tender

Busisiwe NhlapoBy Busisiwe Nhlapo on Posted in General
The Constitutional Court in State Information Technology Agency Soc Limited v Gijima Holdings (Pty) Ltd held that a state applicant seeking the judicial review of their own decision may not rely on the Promotion of Administrative Justice Act 2000 and must do so in terms of the principle of legality. An application for review must … Continue reading

Principle of equity cannot override the provisions of the Pension Funds Act

Michelle DavidBy Michelle David on Posted in General
The principles of equity, despite the equitable jurisdiction of the Pension Funds Adjudicator, cannot override the provisions of the Pension Funds Act (PFA) by permitting a fund to act in contravention of the PFA. The Financial Services Tribunal (Tribunal) has reaffirmed this position. The applicant had been a municipal councillor since 5 August 2016 but … Continue reading

Conduct of Financial Institutions

Desiree Reddy (ZA)By Desiree Reddy (ZA) on Posted in General
On 28 September 2020, National Treasury released the second draft Bill regulating the conduct of Financial Institutions, for comment. The aim of the Bill is to impose conduct standards for financial institutions to protect financial customers. The Bill is the second peak of the Twin Peaks model and will require market conduct that emphasises the … Continue reading

‘De bloedige hand’ principle and its application in s37C pension fund distributions

Amina YudaMichelle DavidBy Amina Yuda and Michelle David on Posted in General
The Pretoria High Court has refused to extend the ‘bloedige hand’ principle in instances where the beneficiary of a death benefit was the child of the deceased’s killer. The ‘bloedige hand’ principle holds that no person who unlawfully causes the death of another may inherit from the deceased. The deceased and his wife were killed … Continue reading

Trustees’ duty to exercise independent discretion on withholding pension benefits

Michelle DavidBy Michelle David on Posted in General
If an employer requests that provident fund benefits be withheld from an employee due to misconduct, the trustees of the fund must still independently exercise their discretion to satisfy themselves that a sufficient case against the employee has been established, in order to withhold the benefit. The Financial Services Tribunal has again considered the withholding … Continue reading

Tacit acknowledgement of a debt: payments and queries interrupts prescription

Candice GrieveMaxine RodriguesBy Candice Grieve and Maxine Rodrigues on Posted in General
The Supreme Court of Appeal (SCA) in Investec Bank Limited v Erf 436 Elandspoort (Pty) Ltd and Others gave useful examples of what constitutes a tacit acknowledgement of liability (which interrupts the running of prescription of a debt in terms of section 14 of the Prescription Act 1969). The case involved a debt related to … Continue reading

Defences to liability for dog bites

Donald DinnieBy Donald Dinnie on Posted in General
The owner of a dog that attacks a person who neither provoked the attack nor by their negligence directly caused their own injury is liable, as owner, to make good the resultant damages. Based on Roman law, for nearly 200 years the law in South Africa has been accepted that owners of animals are strictly … Continue reading

Digitisation of trade finance transactions

Steve ChemalyDarragh MeakerBy Steve Chemaly and Darragh Meaker on Posted in General
The paper-based nature of trade finance presents significant risks of error, fraud and duplicated costs. The COVID-19 pandemic has revitalised efforts towards digitisation, because the transport of these documents is dependent on courier services and the processing is dependent on in-person handling. The International Chamber of Commerce (ICC) called on governments and central banks in … Continue reading

No general ‘prejudice principle’ protecting sureties

Olivia RadfordLisa EllefsenBy Olivia Radford and Lisa Ellefsen on Posted in General
The court in Firstrand Bank Limited v Barreiro reconfirmed that there is no general ‘prejudice principle’ which holds that a debtor or surety is released from their obligations to a creditor if the creditor does anything that prejudices them. The court reiterated that a surety can be released, either wholly or in part, from their obligations … Continue reading

A warning to all unlicensed over-the-counter derivative providers

Shawn Barnett (ZA)Roxanne van RooyenBy Shawn Barnett (ZA) and Roxanne van Rooyen on Posted in General
JP Markets, which markets itself as a global forex powerhouse, has been placed under final winding up as a result of a successful liquidation application brought by the Financial Sector Conduct Authority (FSCA). The FSCA brought the application in terms of section 38B of the Financial Advisory and Intermediary Services Act (FAIS Act) and section … Continue reading

Cross-border considerations for electronic signatures

Lisa EllefsenSteve ChemalyBy Lisa Ellefsen and Steve Chemaly on Posted in General
The use of electronic signatures in cross-border transactions can be fraught with difficulties given the lack of uniformity relating to electronic signatures across countries. This position is further exacerbated by the lack of widespread adoption of the Convention on the Use of Electronic Communications in International Contracts 2005, which sought to standardise electronic communications. The … Continue reading

The scope and limits of the exercise of a public power

Candice GrieveMaxine RodriguesBy Candice Grieve and Maxine Rodrigues on Posted in General
The Supreme Court of Appeal held that a public authority may not exercise powers which are not given to it by the express wording of its empowering statute. The relevant empowering provision in the Medical Schemes Act gives the Registrar the power to decide whether a medical scheme’s proposed name is likely to mislead the … Continue reading

High time for legislative change

Candice GrieveAndrew Keightley-SmithBy Candice Grieve and Andrew Keightley-Smith on Posted in General
Almost two years after the landmark Constitutional Court judgment legalising the private use of cannabis, the Bill regulating Cannabis for Private Purposes has been introduced. The Bill arrives just in time to meet the deadline set by the Constitutional Court in September 2018 and follows the trail blazed by other countries in legalising cannabis for … Continue reading
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