Topic: General

Section 129 National Credit Act notice must state the amount in arrears

By Patrick Bracher (ZA) on January 20, 2020 Posted in General

Section 129 of the National Credit Act requires the creditor to specify the default including the actual amount of the arrears. The requirement for ‘drawing the default to the attention of the consumer’ means more than just the fact that the consumer is ‘in default’. Section 130(4) gives the debtor an opportunity to remedy the … Continue reading

Incomplete or inaccurate record of agreement does not make it void (NCA extended warranties in issue)

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

The Supreme Court of Appeal upheld the validity of extended warranties in respect of goods sold on credit under the National Credit Act 2005 despite the fact that the warranties were filled in incompletely or inaccurately. The evidence was that, despite the inaccuracies, the extended warranties were correctly applied and gave extended warranty cover for … Continue reading

Where there is a right there is a remedy

By Patrick Bracher (ZA) on January 8, 2020 Posted in General

The granting of a full pardon by the State President to a veteran pensioner entitled the pensioner to continue receiving payment from the date of the pardon. The Special Pensions Appeal Board was obliged to restore the pension from the date of the pardon. The pensioner could not be deprived of his pension on the … Continue reading

Women’s rights upheld in landmark gender-based violence judgement

By Nicki van't Riet on December 12, 2019 Posted in General

As 16 Days of Activism Against Gender-Based Violence drew to a close, the Constitutional Court has sent out an unequivocal message of the judiciary’s commitment to develop and implement the strongest laws to fight South Africa’s scourge of gender based violence. The judgment of Tshabalala v S takes a firm stand which protects the values … Continue reading

Limits of self-defence

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

The Supreme Court of Appeal reminded us that the act of self-defence is justifiable if it is reasonable defensive action taken against an imminent act of aggression. Future danger, danger which is not imminent or conduct that has ceased to constitute danger does not entitle one to raise the defence. The act of defence is … Continue reading

What is ‘reasonably practicable’ for preferred language education?

By Patrick Bracher (ZA) on December 5, 2019 Posted in General

The South African Constitutional Court was called on to examine the 2016 Language Policy of Stellenbosch University which effectively gives preference to English in the circumstances specified in the Policy to advance the university’s goals of equal access, multi-lingualism and integration. The policy maintains and preserves Afrikaans but this is now subject to demand and … Continue reading

You don’t have to own property to sell it

By Patrick Bracher (ZA) on November 28, 2019 Posted in General

The South African Supreme Court of Appeal has again reminded us that it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold. Although the parties to a contract of sale usually contemplate the transfer of ownership, this is not an essential feature of … Continue reading

Constitutional values of ubuntu and fairness are not the basis for the courts’ interference with contractual relationships

By Siyabonga Mathe on November 28, 2019 Posted in General

It has long been held that although values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent rules that courts can employ to intervene in contractual relationships (South African Forestry Co Ltd v York Timbers Ltd). The fact that a term of a contract is … Continue reading

Proroguing the United Kingdom Parliament – The Supreme Court speaks

By Donald Dinnie on November 24, 2019 Posted in General

The case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland dealt with whether the advice given by the UK Prime Minister to Her Majesty the Queen to prorogue Parliament (that is, discontinue its session) for a number of days between September and October 2019 was lawful. The Supreme Court … Continue reading

Valuation of stock at year end: time-based write-down not enough

By Siyabonga Mathe and Dale Cridlan on November 22, 2019 Posted in General

The Income Tax Act 1962 requires opening and closing trading stock to be taken into account in determining taxable income derived from carrying on any trade in any assessment year. Section 22(1)(a) of the Act deals with the valuation of the stock, and provides that in respect of a taxpayer’s trading stock that is held … Continue reading

Things done contrary to law are not always a nullity

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

Where an attorney had acted in two litigation matters whilst not holding a fidelity fund certificate that is compulsory for all practising attorneys, it was held that the litigation was not a nullity. The Attorneys Act (in force at the time) prescribed the consequences of not having a certificate as disentitlement to a fee for … Continue reading

South Africa 2019 Medium-Term Budget Policy Statement

By Dale Cridlan on November 13, 2019 Posted in General

The 2019 Medium-Term Budget Policy Statement (MTBPS) was recently delivered by Finance Minister Tito Mboweni and recognises that South Africa’s economic growth has been slowing alongside productivity and competitiveness. South Africa’s debt-to-GDP ratio is among the highest of its peer countries, with only Argentina, Croatia, Ukraine and Zambia worse off. It is projected that the … Continue reading

Mediation in the High Court

By Donald Dinnie on November 12, 2019 Posted in General

Successful mediation of any dispute is largely dependent on the skills and expertise of the mediator and the willingness and good faith of the parties to the mediation to engage in that process. So it is to be welcomed that the proposed new High Court Rule 41A doesn’t make mediation compulsory but is rather intended … Continue reading

A luta continua: Caster Semenya’s story

By Gregory Nott, Patrick Bracher (ZA) and Andrew Keightley-Smith on November 11, 2019 Posted in General

On a clear and sunny Friday afternoon in July 2009, Ms Mokgadi Caster Semenya ascended to athletics greatness. On day two of the African Junior Athletics Championships, at the Stade Germain Comarmond in Bambous, Mauritius, Caster Semenya won the women’s 800m race in a time of 1:56:72. Her time was a new personal best, a … Continue reading

Vicarious liability for creating a risk

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

The Supreme Court of Appeal has again extended the scope of vicarious liability. A security company was found liable for a murder committed by their site supervisor in an attempt to rob the deceased who was the financial manager at the premises which the security company were required to guard. The court held that placing … Continue reading

Nike out-bids New Balance for branded Liverpool FC shirts

By Patrick Bracher (ZA) on November 5, 2019 Posted in General

Liverpool Football Club had an existing deal with New Balance to manufacture and sell replica football shirts with their logo. At renewal time Nike out-bid New Balance’s terms and were held entitled to the contract. The question was whether New Balance had matched Nike’s offer. Nike made a detailed offer including a large number of … Continue reading

Split Constitutional Court decision is no decision

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

In a matter involving disputed patents under the Patents Act 1978, ten judges of the Constitutional Court sat and there were five judges on each side whether to uphold or dismiss the appeal. Where there is no majority decision, the judgment of the lower court stands. Each party was ordered to pay their own costs. … Continue reading

Holder of trust money is liable for paying incorrect party

By Patrick Bracher (ZA) on October 24, 2019 Posted in General

A firm of attorneys involved in a property transaction paid R1 744 599.45 into the bank account of a hacker in response to emailed instructions. It was held that the attorneys were liable to the true client to pay this amount for failing to perform their mandate in regard to the trust money with sufficient care and … Continue reading

‘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