Topic: General

‘In writing’ does not mean implied acceptance of written clause

By Patrick Bracher (ZA) on October 14, 2019 Posted in General

Article 25 of the Recast Brussels Regulation which requires an agreement conferring jurisdiction to be ‘in writing or evidenced in writing’ is not satisfied by a clause in the contract being in writing and the consent being solely implied from conduct of the parties. The consent itself has to be in writing or evidenced (or confirmed) … Continue reading

Equitable financial compensation instead of land restitution

By Patrick Bracher (ZA) on October 8, 2019 Posted in General

The applicant in Jacobs v Department of Land Affairs had been deprived of land through a racist fraudulent transfer of the land in 1907 and subsequent eviction in 1921. They claimed financial compensation and were awarded R780 000. On appeal it was held that the Land Claims Court had correctly calculated the amount. The calculation is not … Continue reading

Information Regulator: CR17 campaign leaks

By Priyanka Naidoo on October 3, 2019 Posted in General

Privacy and data protection concerns have been triggered by Public Protector Busisiwe Mkhwebane’s reliance on President Cyril Ramaphosa’s private emails and bank statements of various entities used by his CR17 presidential campaign team. These records were used by Mkhwebane to support her report, which found that Ramaphosa had misled Parliament by failing to declare the … Continue reading

Electronic signatures confirmed in UK

By Patrick Bracher (ZA) on September 25, 2019 Posted in General

Everyone involved in agreements governed by English law will be pleased to hear that the UK Law Commission has confirmed that an electronic signature can be used to execute an English law document (including a deed) if: the person signing the document intends to authenticate the document; and any formalities relating to the execution of … Continue reading

Prescribed rate of interest is 10% from 1 September 2019

By Patrick Bracher (ZA) on September 22, 2019 Posted in General

The prescribed rate of interest has been changed with effect from 1 September 2019 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 … Continue reading

Expert evidence

By Donald Dinnie on September 18, 2019 Posted in General

Parties to any dispute who rely exclusively on opinions of experts without establishing the factual basis for those opinions do so at their peril. The opinion of an expert must be based on facts that are established by the evidence. The court then assesses the opinions of experts on the basis of ‘whether and to … Continue reading

Contracting with a trust

By Patrick Bracher (ZA) on September 18, 2019 Posted in General

Where an agreement was purportedly entered into with a trust where one of two required trustees did not sign and in fact refused to do so, the agreement was void and there was no basis for an action compelling the sale to the trustee who did sign to buy the property. A signatory who warrants … Continue reading

Presenting your evidence in the small claims court

By Donald Dinnie on September 8, 2019 Posted in General

The small claims court resolves matters speedily, inexpensively and informally. Whether you are the claimant (plaintiff) or the party opposing the claim (the defendant), you must conduct your own case in court without legal representation. Here are some tips on dealing with your small claims court case. Proceedings are inquisitorial so the commissioner plays an … Continue reading

Hospital’s negligence not causally linked to baby’s brain damage

By Erwyn Durman on September 5, 2019 Posted in General

In the AN case, the Supreme Court of Appeal held that despite the failure by the hospital to properly monitor the mother and foetus, during delivery, that did not cause the brain damage to the baby, which resulted from an unpreventable cause. The hospital had a legal duty to monitor the condition of the mother … Continue reading

Doctor liable for failing to warn patient about side effects (UK)

By Natasha Naidoo on August 27, 2019 Posted in General

The claimant, a retired teacher, developed a limb tremor in 2006. The defendant treated the claimant between 2007 and 2012 and prescribed a dopamine agonist. The claimant stated that the medication resulted in her overindulging in online shopping to the extent that she placed 200 bids on eBay during the course of one night. She … Continue reading

Personalised medicine and medical malpractice

By Natasha Naidoo on August 27, 2019 Posted in General

Personalised medicine involves the consideration of health risk factors and genetic information to determine individual risk profiles. This customisation of healthcare uses medical decisions, practices, treatments, and products that are tailor-made to an individual’s requirements, and is based on hereditary profile. This could result in quicker diagnosis and a more targeted form of treatment for … Continue reading

Prescription of debt for restitution after contract cancelled

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

Where one party cancels a contract because of repudiation by the other party there is an obligation to make restitution and to pay money or deliver assets which were received as performance under the cancelled contract. The cancellation gives rise to a personal obligation to pay or deliver what was received. The same would apply … Continue reading

International Arbitration Act does not override local law

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

The purchaser of a consignment of coal sought to join the party which had loaded hot coal on board the vessel causing an explosion and abandonment of the voyage. It was held that the International Arbitration Act 2017 does not override the admiralty jurisdiction of the court. The Admiralty Jurisdiction Regulation Act 1983 is a … Continue reading

Setting aside arbitration finding for fraud discovered after award (UK)

By Patrick Bracher (ZA) on August 7, 2019 Posted in General

The English commercial court set out the limited basis on which an arbitration award can be set aside when it is alleged that evidence of fraud that would have affected the decision only came to light after the award. The merits of an arbitration award are rarely reviewed. Public policy exceptions such as fraud can … Continue reading

The State’s liability for damages at a school under the Schools Act

By Patrick Bracher (ZA) on August 6, 2019 Posted in General

The South African Schools Act 1996 makes the State liable for any delictual damage or loss caused as a result of any act or omission in connection with any school activity for which the school would otherwise have been liable. The State is only liable to the extent that the event is not covered by … Continue reading

POPI progress

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

At the end of June 2019 the Information Regulator announced that the process of putting the Protection of Personal Information Act into effect is “going very slowly” and that: A CEO started on 1 June 2019; A CFO started on 1 July 2019; Other executives are being appointed; They are now at a point where they are … Continue reading

Rationality of an administrative decision

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

A government administrator’s decision may be irrational because it does not take into account a vital material fact for making a rational decision in the light of the empowering legislation and its purpose. The relevant question for rationality is whether the means, including the process of making a decision, are linked to the purpose or … Continue reading

Corporate joint venture not a partnership

By Patrick Bracher (ZA) on July 18, 2019 Posted in General

Section 13(1)(d) of the Prescription Act 1969 delays prescription where there is a debt between partners arising out of the partnership relationship. The legal relationship of partnership arises from a contract between two or more persons who each agree to make a contribution (whether in money, property or service) to a venture to be carried on … Continue reading

Distribution of pension benefit under section 37C is determined at the date of distribution

By Michelle David on July 18, 2019 Posted in General

Where the board of a pension fund makes a distribution under section 37C(1)(a) of the Pension Funds Act 1956, the distribution must be made according to the circumstances at the time of the distribution and not at the date of death of the deceased member of the fund. The fund had distributed part of the benefits … Continue reading

Meaning of the word ‘acquire’ and other interpretation issues

By Patrick Bracher (ZA) on July 3, 2019 Posted in General

A building contractor sought to argue that the word ‘acquire’ in the Housing Consumers Protection Measures Act 1998 meant ‘buying or obtaining ownership’. The court held that the primary meaning of ‘acquire’ is ‘come to possess something’. The suggestion that persons who have rented their places of permanent residence have not ‘acquired a home’ as … Continue reading

Powers of CIPC to investigate a Companies Act related complaint

By Patrick Bracher (ZA) on June 25, 2019 Posted in General

The Supreme Court of Appeal made important findings regarding the powers of the Companies Commission to investigate a complaint. Where the complaint relates to the inaccuracy of the company records as to who was a director, the failure to ensure that the record was maintained accurately constitutes either an ongoing act or omission under section 219(1)(a) … Continue reading

Restrictions on transfer of benefits on termination of pension fund membership is valid

By Michelle David on June 18, 2019 Posted in General

Provisions in pension fund rules that a member may not withdraw from membership of the fund while remaining in service of the employer to transfer benefits to another fund, were held to be valid and not unconstitutional or contrary to public policy, said the appeal court. Section 13A(5) of the Pension Funds Act read with the … Continue reading

The trustees’ authority to act on behalf of a trust

By Carina van Vuuren on June 13, 2019 Posted in General

A sale agreement had been signed on behalf of a trust, as purchaser, by a single trustee whose conduct was thereafter ratified by the remaining trustees. The court held that the agreement of sale was not valid and enforceable and it could not be ratified after the fact. In terms of section 2(1) of the … Continue reading

The elements of defamation

By Patrick Bracher (ZA) on June 11, 2019 Posted in General

The Johannesburg High Court discussed the balance between the constitutional right of freedom of expression and the required respect for inherent dignity ‘to all human beings’. The defendant argued the allegedly defamatory statements made about the plaintiff were true and in the public interest. It is for the defendant in a defamation claim to establish … Continue reading