Topic: General

Defences to liability for dog bites

By Donald Dinnie on September 16, 2020 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

Limiting the duty of care of a shop owner to customers

By Deniro Pillay (ZA) and Purnel Gangiah on September 16, 2020 Posted in General

Shop owners have a duty of care to their customers. The duty of care necessitates preventing harm to customers, which can be reasonably foreseen. The duty is however not limitless. In De Wet v Gateway Plaza Meatworld CC De Wet slipped and fell at Gateway Plaza. She alleged that her fall was caused by oil … Continue reading

Prescribed rate of interest is 7.75% from 1 June 2020

By Patrick Bracher (ZA) on September 14, 2020 Posted in General

The prescribed rate of interest has been changed with effect from 1 June 2020 to 7.75% per annum. The previous rate was 8.75%. 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

Digitisation of trade finance transactions

By Steve Chemaly and Darragh Meaker on September 14, 2020 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

By Olivia Radford and Lisa Ellefsen on September 13, 2020 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

By Shawn Barnett (ZA) and Roxanne van Rooyen on September 10, 2020 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

By Lisa Ellefsen and Steve Chemaly on September 1, 2020 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

By Candice Grieve and Maxine Rodrigues on August 26, 2020 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

By Candice Grieve and Andrew Keightley-Smith on August 25, 2020 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

Managing construction sites and other workplaces in the new normal

By Keshri Chetty and Katherine Dzwig on August 24, 2020 Posted in General

Construction sites and other workplaces need to comply with regulations and manage health and safety risks, while attempting to increase production, as we move into less restrictive lockdown levels. The announcement of South Africa’s move to lockdown Level 2 with effect from 18 August 2020 is being celebrated by almost all economic sectors. Despite this, … Continue reading

Amendments to the Financial Sector Regulations published

By Ntokozo Ngubane and Michelle David on August 18, 2020 Posted in General

The Minister of Finance, has published amendments to the Financial Sector Regulations under Gazette 43581 intended to simplify the process of appointing the Commissioner and Deputy Commissioner of the Financial Sector Conduct Authority (FSCA). The amendments provide that: The Minister must re-appoint a shortlisting panel (two panellists being the Deputy Govrnor of the South African … Continue reading

Doctors must act in accordance with a reasonable and respected body of medical opinion

By Siyabonga Mathe on August 18, 2020 Posted in General

A doctor is not negligent if they act in accordance with a practice accepted at the time as proper by a reasonable and respected body of medical opinion. This is so even if other doctors might have acted differently based on other acceptable medical opinions. In McGregor and another v MEC Health, Western Cape, the … Continue reading

Procedural fairness in investigations

By Busisiwe Nhlapo on August 17, 2020 Posted in General

Life may not be fair but investigations should be. Our courts have on many occasions expressed the importance of the principle which requires that people should be afforded a chance to participate in a decision that will affect them and more importantly given an opportunity to influence the result of the decision (the audi alteram … Continue reading

Hot tub expert evidence catching on

By Patrick Bracher (ZA) on August 16, 2020 Posted in General

Evidence of experts in dispute hearings can be dealt with efficiently by using the ‘hot tub’ method to deal with disputes issue-by-issue rather than expert-by-expert: The parties decide between them what remaining issues have to be resolved by expert evidence and the list is given to the experts to deal with. The experts for all … Continue reading

Access to personal devices in competition claims

By Juliana Munyembate and Rosalind Lake (ZA) on August 14, 2020 Posted in General

The High Court in England has ruled that it can order companies accused of breaking competition rules to require employees to disclose work-related communications stored on personal electronic devices. The court was dealing with a disclosure and inspection dispute in relation to a competition damages claim filed by a mobile phone retailer. Phones 4U’s insolvency … Continue reading

Constitutionality of the public school four week break

By Thabang Dikgale and Christina Pretorius on August 3, 2020 Posted in General

Following the President’s address on 23 July 2020, the re-closing of public schools for four weeks has left most questioning why public schools are forced to take the four week break and private schools are not. Although grade 12’s will only be taking a week break and grade 7’s two weeks, this blog is focused … Continue reading

Condonation for late notice of intention to sue

By Keaoleboga Molefe on July 28, 2020 Posted in General

Claimants who sue the State often have to apply for condonation for late notice, because the State must be notified of an intention to sue within 6 months of an incident occurring, and many claimants are unaware of this special time restriction. In Ndlovu v Member of the Executive Council for Police, Roads and Transport: … Continue reading

Sick leave and self-isolation: A guide for employers

By Murray Alexander and Jenine Naidu on July 24, 2020 Posted in General

With the increasing number of COVID-19 infections, employers must deal with employees who test positive for the virus, those who come into contact with individuals who test positive, and those who present with COVID-19 related symptoms. It is therefore important for employers to understand when sick leave must be used. The different sick leave options … Continue reading

Arbitration clauses usually do not survive termination of contract for fraud

By Donald Dinnie and Patrick Bracher (ZA) on July 21, 2020 Posted in General

An arbitration or similar adjudication clause, contained in an agreement that is found to have been induced by fraud, does not survive the avoidance of the agreement. That would be offensive to justice. The position can only change if the parties specifically make provision in their contract for a dispute regarding fraud, misrepresentation or concealment … Continue reading

No lease renewal unless the rent is fixed by the parties or a third party

By Patrick Bracher (ZA) on July 21, 2020 Posted in General

An option to renew a lease at a rental to be agreed between landlord and tenant, failing which to be determined by a third party, was not validly renewed by the lessee offering an increased rent that was unacceptable to the landlord and then not invoking the process for third party determination. The tenant gave … Continue reading

Interventions to facilitate the raising of capital on the JSE

By Alastair Dixon and Olivia Radford on July 19, 2020 Posted in General

There have been calls for the JSE to amend its Listings Requirements to allow listed companies to issue shares more quickly in times of crisis ‘without interference from shareholders’. The JSE’s regulatory framework already provides listed companies with various capital raising methods, including some expedited methods. Having to obtain shareholder approval is an important element … Continue reading

Skills and training Conduct Standard for pension fund trustees

By Amina Yuda on July 15, 2020 Posted in General

On 10 July 2020, the Financial Sector Conduct Authority (FSCA) published the awaited Conduct Standard prescribing the minimum skills and training requirements for members of the board of trustees of pension funds as contemplated in section 7A(3)(a) of the Pension Funds Act 1956, effective from date of publication. Section 7A(3)(a) requires the trustees of pension … Continue reading

Methods of raising capital on the JSE

By Alastair Dixon and Olivia Radford on July 10, 2020 Posted in General

The JSE has amended its Listings Requirements in the past few years by introducing alternative methods of raising capital and measures aimed at expediting traditional methods. The JSE is aware that, in times of crisis, listed companies may need to raise capital at short notice. Delays in the raising of capital, particularly those caused by … Continue reading

Jurisdiction of the Financial Services Tribunal: medical scheme matters

By Ntokozo Ngubane on July 9, 2020 Posted in General

A medical scheme aggrieved by a decision of the Registrar for Medical Schemes must appeal to the Council for Medical Schemes and not the Financial Services Tribunal, even if the decision relates, broadly, to financial sector laws. In Medihelp Medical Scheme v The Registrar for Medical Schemes and Another, the Council for Medical Schemes, instituted … Continue reading