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Litigation funding in South Africa

In South Africa third party litigation funders are increasingly playing an important role in assisting claimants in pursuing litigation both in respect of future legal expenses and costs already incurred.  And in particular for class actions, commercial litigation, consumer disputes, and medical negligence claims. In certifying a class action the court must be told how … Continue reading

There is no direct access to the Pension Funds Adjudicator

The Pension Funds Act, 1956 (“PFA”) is the primary legislation regulating retirement funds. Section 30A of the PFA provides that any person who has a complaint as defined in section 1 “may lodge a written complaint with the retirement fund for consideration by the board, which must be properly considered and responded to within 30 … Continue reading

Affidavit commissioned via WhatsApp video call valid for COVID 19 realities

This blog was co-authored by Sa’ood Lahri, Director and Muhammad Mirza, Candidate Attorney In August 2021 the High Court[1] accepted that an affidavit commissioned over a WhatsApp video-call constitutes substantial compliance with the applicable regulations[2] and is valid in light of the practical difficulties faced by the deponent due to the raging Covid19 pandemic. The … Continue reading

Commentary on Draft Guidelines on collaboration between competitors on localisation initiatives

This blog was co-authored by James Donald, Candidate Attorney Following the economic fallout of the Covid-19 pandemic, one of the aims of government’s Economic Reconstruction and Recovery Plan (ERRP) is to encourage localisation. With a focus on purchasing local inputs instead of importing, this is intended to assist in uplifting the economy. The challenge is … Continue reading

The Rise of Digital Markets in Competition Law

This blog was co-authored by Julia Sham-Guild and James Donald The Covid-19 pandemic has forced many industries to become highly reliant on digital markets. The gradual move over the past few decades and this recent sharp uptake as a result of Covid-19 has resulted in an increased need for regulators to be able to monitor … Continue reading

Auditors not liable to employees of failed bank

This blog was co-authored by: Kristin January and James Donald On 6 May 2021, the Johannesburg high court reaffirmed that auditors do not generally owe a legal duty to the employees of an insolvent company and consequently no valid claim can arise on the part of the employees for any alleged misstatement concerning the company’s … Continue reading

Lessee who buys the leased property has rights and obligations as owner not lessor (confusio)

The lessee of a property under a 30-year notarial land lease agreement with Transnet Limited sublet portions of the property to sub-lessees who subsequently acquired rights under a lease assignment agreement.  When the lessor bought the property, payment obligations under the lease assignment agreement terminated. A sub-lessee who had taken assignment of rights under the … Continue reading

Hospitality guest indemnity upheld under Consumer Protection Act

Author: James Donald, Candidate Attorney In an April 2021 judgement, the Eastern Cape high court held that a standard form guest indemnity used by a game reserve was not in conflict with applicable provisions in the Consumer Protection Act 2008 (the CPA). The plaintiff was a tourist to South Africa, on holiday at a local … Continue reading

Competition law requirements when doing mergers in Africa: 10 Things to know

There have been a number of important developments in competition law across Africa over the past few years. An increasing number of African countries have implemented merger notification regimes. ​​​​​​​​​​​​​​Firms that wish to acquire businesses or expand their operations in Africa should be mindful that their transactions may require approval from regulator/s in the country/ies … Continue reading

Business interruption claims and physical damage

There has been a plethora of Covid-19 policy coverage litigation across the United States.  Absent non-damage extensions under business interruption policies the courts have had to consider whether amongst other things government restrictions on businesses including shutdown orders constituted interruption of business caused by loss to property insured.  That included whether those restrictions on businesses … Continue reading

Broad-based ownership structures: Do they count?

This blog was co-authored by Hishaam Khan, Candidate Attorney The Minister of Trade, Industry and Competition has recently clarified the confusion on whether Broad-Based Black Economic Empowerment (B-BBEE) trusts should be recognised as B-BBEE owners in B-BBEE structures for the purposes of the B-BBEE Codes of Good Practice.  In the Practice Note published during May … Continue reading

Setting aside a settlement agreement due to common mistake

This blog was co-authored by Tristan Marot, Candidate Attorney. The Labour Appeal Court has recently restated the law on common mistake as it applies to having a settlement agreement set aside in Murray and Roberts (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration & Others. The matter stemmed from a dispute between the … Continue reading

Repudiating a contract – again

In its June 2021 judgement, the Constitutional Court restated the principles relevant to repudiation of a contract. A party commits the breach of repudiation when through words or conduct that party manifests an unequivocal intention to no longer be bound by the contract or by material obligations forming part of the contract. The intention to … Continue reading

Interpreting contracts and contextual evidence

The Constitutional Court has reaffirmed that that approach to interpretation of contracts requires that from the outset one considers the context and the language together with neither predominating over the other. The approach to interpretation is a unitary exercise.  Interpretation is to be approached holistically, simultaneously considering the text, content and purpose. Context and purpose must … Continue reading

Judges changing their minds

A Google search will produce a long list of quotations affirming the right to change one’s mind. When a judge gives a decision contradicting one of their earlier judgments that becomes more difficult. Judges have a way of finessing a reversal of opinions which they may have expressed in an earlier judgment. Two of the … Continue reading

COVID-19 Vaccines: A step towards mandatory vaccination in the workplace

Whilst Government had initially taken the view that vaccinations against COVID-19 would not be made mandatory, the revised Consolidated Directions on Occupational Health and Safety Measures in certain workplaces (the Directions), promulgated by the Minister of Employment and Labour, on 11 June 2021, reflect a significant change of approach. In particular the Directions now implicitly permit, … Continue reading

SCA gives clarity on the meaning of conflict of interest for business rescue practitioners

SCA gives clarity on the meaning of conflict of interest for business rescue practitioners In February 2018, eight companies in the Oakbay Group were placed in voluntary business rescue. Amongst these companies were the first respondent, Tegeta Exploration and Resources (Pty) Ltd, and its three subsidiaries, Optimum Coal Mine (Pty) Ltd (OCM), Koornfontein Mines (Pty) … Continue reading

Certifying documents as copies of the original without seeing the originals is dishonest

The facts in a Financial Services Tribunal debarment matter were that the financial services’ representative had certified certain documents as copies of the original without having seen the original documents.  She failed to ensure that she complied with the statutory requirements for certifying copies and the duties made mandatory upon her through her position as … Continue reading
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