Topic: General

Burden of proof in actions against ship owner for loss of cargo and the principles of bailment (UK)

By Patrick Bracher (ZA) on April 16, 2019 Posted in General

England’s highest court finally, after over four centuries of reported decisions on the issue, definitively held that the burden of proof lies on the carrier where cargo owners sue a ship owner for loss or damage to cargo. If the carrier could and should have taken precautions which would have prevented some inherent characteristic of … Continue reading

Penalties for failing to notify mergers will increase in South Africa

By Rosalind Lake (ZA) and Candice Upfold on April 9, 2019 Posted in General

In March 2019, the Competition Commission published its latest guidelines for the determination of administrative penalties for failure to notify mergers and implementation of mergers contrary to the Competition Act 1998. The highest penalty to date for a failure to notify is R10 million. The methodology in the Guidelines could result in much higher figures … Continue reading

Religious practices and workplace incapacity

By Lovanya Moodley on April 9, 2019 Posted in General

The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs. In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her … Continue reading

Relief denied for director who put personal interests first (US)

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

Under the business judgment rule, a director or officer may be excused from conduct which has adverse circumstances for the company if their judgment, albeit poor judgment, was exercised in good faith and in the interests of the company. In an action in Delaware, USA, the CEO was denied this assistance by the court because, … Continue reading

A settlement agreement is not governed by the National Credit Act if the underlying dispute is not

By Riccardo Petersen (ZA) on April 4, 2019 Posted in General

The Supreme Court of Appeal found that if the underlying cause of a settlement does not fall within the parameters of the National Credit Act (NCA), then the settlement agreement cannot logically be converted to a credit agreement under the NCA. The underlying cause (in this case the rental agreement) is of vital significance because … Continue reading

Repudiation of a contract

By Patrick Bracher (ZA) on April 4, 2019 Posted in General

Where the purchase price of imported sugar included the import duty and the purchase price had to be reduced if the duty was reduced, the persistent claim by the seller for the unreduced amount was a repudiation and led to the lawful cancellation of the sugar contract. Payment of the sugar contract was to be … Continue reading

Acceptance of settlement offer must be unconditional

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

The Supreme Court of Appeal has reaffirmed the principle that where a party alleges that a compromise (settlement) has been effected in an exchange of correspondence it must be proved that the offer of compromise was accepted. The acceptance must be absolute, unconditional and identical with the offer. Otherwise there is no consensus and no … Continue reading

Principles of unlawful use of confidential information and trade secrets

By Patrick Bracher (ZA) on March 26, 2019 Posted in General

The Supreme Court of Appeal restated the principles on liability for unlawful competition by the use of the trade secrets of a competitor. Every person is entitled to freely carry on their trade or business in competition with rivals but the competition must remain within lawful bounds. If it involves a wrongful interference with another’s … Continue reading

Energy update from the Minister of Energy

By Jackie Midlane and Raghemah Hendricks on March 26, 2019 Posted in General

The Minister today committed government to a collaborative approach with the private sector in dealing with the current energy crisis in South Africa. At the DLO Africa Power Roundtable Conference today (26 March 2019), the Minister spoke positively about the imminent release of the final Integrated Resource Plan (IRP), the unbundling of Eskom and long-term … Continue reading

Liability of auditor for incorrect accounting treatment advice (UK)

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

The English Court of Appeal found that the plaintiff building society had not proved damages against its auditors who gave them incorrect information about how to treat long-term interest rate swaps on its balance sheet under the IFRS requirements. The swaps were not included on the balance sheet from 2005 till 2013, when they were … Continue reading

Business rescue application does not terminate provisional liquidation

By Patrick Bracher (ZA) on March 13, 2019 Posted in General

An application for business rescue does not terminate the office of provisional liquidators nor does it result in the assets and management of the company in liquidation re-vesting in the directors of the company. Where a company had been liquidated, an application was made for business rescue in GCC Engineering v Lawrence Maroos. Although section 131(6) … Continue reading

Interpretation of statutes must be consistent with the Constitution

By Patrick Bracher (ZA) on March 13, 2019 Posted in General

The Constitutional Court has reminded us in the context of mineral rights that a statutory provision must be interpreted in accordance with the spirit, purport and objects of the Bill of Rights (s 39(2)) and consistently with the Constitution and consistently with international law (s 233), and the courts must apply customary law when that law is … Continue reading

Proposed Companies Act Amendments would compromise company privacy

By Richard de la Harpe on March 10, 2019 Posted in General

Currently section 26 of the Companies Act 2008 provides only for holders of securities and beneficial interests in securities to have access to the notices and minutes of annual meetings, written communications sent generally to any class of security holders, resolutions adopted at a shareholders meeting and any documents made available in relation to such … Continue reading

Duty of lateral support applies to reasonably built-on land

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

The Western Cape High Court found that the common law duty to provide lateral support to a neighbouring property falls within the law of neighbours where the guiding principle is reasonableness. The duty of lateral support relates to contiguous pieces of land even where the land has been built on, provided the buildings have not … Continue reading

UK regulator to drop general counsel from accountability

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

The UK’s Financial Conduct Authority intends to drop plans to hold heads of legal departments at banks and insurance firms responsible for ignoring misconduct because it would hamper lawyers from giving independent legal advice. General counsels will be excluded from the new accountability regime for senior managers. Binding legal counsel to the accountability provisions would … Continue reading

The elements of defamation

By Patrick Bracher (ZA) on February 27, 2019 Posted in General

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

Buyer beware – new competition laws restricting dominant firm purchases

By Rosalind Lake (ZA) on February 14, 2019 Posted in General

The Competition Amendment Act was signed into law on 13 February 2019. The Act’s aim is to ‘open up new opportunities for many South Africans to enter various sectors of the economy and compete on an equal footing’. This sentiment is the spirit throughout the Act and the draft regulations that are undergoing an extensive … Continue reading

Draft Expropriation Bill published

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

On 21 December 2018 the government published their Draft Expropriation Bill 2019 for comment by 21 February 2019. As the laws will affect all of us you should read it and consider commenting. The Bill only relates to registered rights and will therefore mainly affect land rights and mineral rights. The government has said that the law … Continue reading

Prescribed rate of interest is 10.25% from 1 January 2019

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

The prescribed rate of interest has been changed with effect from 1 January 2019 to 10.25% per annum. The previous rate was 10%. 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

Damages not recoverable for raising IVF conceived child born without father’s informed consent

By Natasha Naidoo on January 24, 2019 Posted in General

The England Appeal Court has held that a father’s claim against a clinic for breach of contract for damages suffered as a result of raising his child who was born by IVF to his estranged wife without his consent were not recoverable due to legal policy. The child was conceived via IVF using the gametes … Continue reading

Terms of sale can be implied by law – Meaning of ‘ex-warehouse’

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

Section 59 of the Customs and Excise Act 1964 provides that the seller of goods may recover the amount of duty paid on the goods in addition to the contract price ‘in the absence of agreement to the contrary’. The fact that the sale in Starways Trading v Pearl Island Trading was said to be ‘ex-warehouse’ … Continue reading

Public participation in South African law-making process is essential

By Patrick Bracher (ZA) on January 13, 2019 Posted in General

South Africa is a participatory democracy and where legislation is passed without facilitating public participation, especially by those members of the public most affected, the law is invalid. The Veterinary Association was successful in having the word ‘veterinarian’ severed from an amendment to the Medicine and Related Substances Act because of lack of consultation regarding … Continue reading

Test for a simulated transaction avoiding the payment of tax

By Patrick Bracher (ZA) on December 21, 2018 Posted in General

A transaction is not necessarily a disguised one because it is devised for the purpose of avoiding liability for tax. If the parties honestly intend the contract to have the effect stated in the contract then the only question is whether there is liability for the tax or not. The court will ascertain the intention … Continue reading

Protection of Personal Information Act – Regulations published

By Patrick Bracher (ZA) on December 17, 2018 Posted in General

The Regulations to the Protection of Personal Information Act have been published by the Information Regulator. They will commence on a date to be determined. The regulations are fairly short, but contain a raft of forms relating to the processing of information, for example: a form for objecting to the processing of personal information; requests … Continue reading