Topic: General

Administrative law: Legal status of departmental Directive

By Patrick Bracher (ZA) on November 19, 2018 Posted in General

The Department of Home Affairs issued an Immigration Directive which required departmental functionaries to refuse all applications for temporary or permanent residence visas made by the holder of an asylum seeker permit. The court found that the directive was treated as binding by the departmental officials tasked to implement it and it was therefore open … Continue reading

Hospital receptionists owe duty to inform patients accurately regarding available medical assistance

By Sandra Sithole (ZA) on November 12, 2018 Posted in General

A judgment of the English Court of Appeal which we called ‘bizarre’ and ‘peculiar’ has been predictably overturned by the UK Supreme Court. The Supreme Court found that the hospital run by the NHS Trust is liable to a patient with a head injury who had been given misinformation by the hospital receptionist that he … Continue reading

Private equity firm not liable for investing in competing company (US)

By Patrick Bracher (ZA) on November 4, 2018 Posted in General

A Delaware court dismissed a claim that a private equity firm and its affiliated funds had misappropriated trade secrets acquired from a portfolio company via their directors on the board of the company and misused the information by investing in a competitor. The court found that no reasonable inference of misappropriation could be drawn because … Continue reading

Administrative law: Obligation to exhaust internal remedies

By Patrick Bracher (ZA) on October 29, 2018 Posted in General

The Constitutional Court re-examined section 7(2) of the Promotion of Administrative Justice Act which creates an obligation on applicants for the court review of an administrative decision to exhaust all internal remedies first. The obligation to exhaust internal remedies should not be rigidly imposed nor used by administrators to frustrate an applicant’s efforts to review the … Continue reading

One hundred and eighty day period for court review not extended

By Patrick Bracher (ZA) on October 26, 2018 Posted in General

The supreme court of appeal refused to extend the 180 day period for court review proceedings to challenge administrative action by the Free State Gambling and Liquor Authority because there was no reasonably satisfactory or acceptable explanation for the delay. In the absence of any proper explanation for the delay the court refused to grant … Continue reading

Fraudulent misrepresentation defeats voetstoots clause in sale

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

Where a seller had fraudulently failed to disclose a defective roof and sewerage system covered by buildings constructed without required statutory approval he was successfully sued in delict for fraudulent misrepresentation and fraudulent nondisclosure. Because the conduct was fraudulent the delictual claim defeated the voetstoots clause in the deed of sale as well as the … Continue reading

Termination of employment is only grounds for eviction if agreed

By Jonathan Jones on October 17, 2018 Posted in General

The Extension of Security of Tenure Act 1997 (ESTA) distinguishes between individuals whose right of residence arises solely from the employment agreement and those whose right arises from the general consent of the owner of the land. Only in the former instance can the right of residence be terminated on termination of employment. In the … Continue reading

Amazon has no product liability for third party product warehoused and shipped (US)

By Patrick Bracher (ZA) on October 15, 2018 Posted in General

A New Jersey court found that Amazon is not liable for a defective laptop battery it sold that caused a home to burn down. The plaintiff bought a laptop battery using an Amazon account which was sold by a Hong Kong company. She left the battery charging on her bed and the house burnt down … Continue reading

Companies Tribunal to adjudicate BEE referrals in proposed Companies Act amendments

By Kaede Wildschut on October 4, 2018 Posted in General

In the first proposed amendments to the Companies Act 2008 since coming into force in 2011, it is proposed that the Companies Tribunal be given the power to adjudicate matters referred to it by the BEE Commission. This amendment would enable the BEE Commission to refer matters to the Tribunal, particularly where complaints and reported … Continue reading

Appeal court reluctantly finds a once-off loan requires registration as credit provider

By Riccardo Petersen (ZA) on October 3, 2018 Posted in General

The appeal court has found that the requirement to register as a credit provider is applicable to all credit agreements once the prescribed threshold is reached (currently zero), irrespective of whether the credit provider is involved in the credit industry and irrespective of whether the credit agreement is a once-off transaction. The appeal court reluctantly … Continue reading

Covering doctors have an immediate legal duty of care to patients

By Deniro Pillay (ZA) on October 2, 2018 Posted in General

A doctor who covers for a colleague has an immediate legal duty to care for his colleague’s patients whilst on call. This was recently confirmed by the Supreme Court of Appeal in a case where a doctor (gynaecologist/obstetrician) agreed to cover for a colleague. The doctor positively responded to a telephone call from a midwife … Continue reading

Financial assistance to subsidiaries reviewed in the Companies Amendment Bill: What is ‘its own subsidiary’?

By Jackie Midlane and Steve Chemaly on October 1, 2018 Posted in Banking, General

The amendments proposed in the Companies Amendment Bill 2018 have caught the attention of financiers and attorneys in so far as the provision of financial assistance (e.g. providing a loan, guaranteeing a loan, and securing any debt or obligation), to ‘its own subsidiary’ is concerned. The Amendment Bill proposes to amend section 45 by removing … Continue reading

The South African Companies Amendment Bill 2018

By Stephen Kennedy-Good on September 27, 2018 Posted in Banking, General

The long awaited South African Companies Amendment Bill (Bill) was published on 21 September 2018 for comment. Substantial changes to the South African Companies Act 2008 (Companies Act), which became law in 2011, have been proposed. Comments may be submitted to the SA Department of Trade and Industry by 20 November 2018, and we encourage business to consider … Continue reading

Competition Amendment Bill proposes significant changes to Market Inquiries

By Rosalind Lake, Nelisile Thanjekwayo and Nonkululeko Sibanyoni on September 20, 2018 Posted in General

The Competition Amendment Bill proposes giving the Competition Commission broader powers, with more substantial remedies and the threshold for initiating a market inquiry has been lowered. Key changes include the expansion of the scope of market inquiries, the provision of a notification and consultation process with sector regulators and the granting of substantial powers to … Continue reading

Medical prosthesis not defective nor abnormal risk (UK)

By Patrick Bracher (ZA) on September 18, 2018 Posted in General

The manufacturer of a hip prosthesis system (which was of a metal-on-metal design) for use in total hip replacement operations was sued by 313 individual claimants who alleged metal-wear debris damaged surrounding soft tissues necessitating revision surgery. The court found that the system was not defective and the claimants had not proved that it did … Continue reading

Responsibility of holding company for delicts of subsidiary (UK)

By Patrick Bracher (ZA) on September 10, 2018 Posted in General

A group of 218 Kenyans sued the English holding company of a subsidiary company in Kenya for which the plaintiffs worked, for failing to protect them against political violence that erupted in Kenya after the 2007 presidential election. The English court held that there was no arguable case against the holding company that it owed … Continue reading

Bank escapes liability for credit reference

By Patrick Bracher (ZA) on August 28, 2018 Posted in General

Playboy Club London sued an Italian bank for losses it suffered after it extended a credit facility to one of the bank’s customers on the basis of a favourable credit reference provided by the bank. A ‘well-known figure at a casino in Lebanon’ applied to Playboy Club for a cheque-cashing facility up to £800 000 to … Continue reading

Competition Amendment Bill proposes tougher penalties

By Rosalind Lake and Erwyn Durman on August 19, 2018 Posted in General

The Competition Amendment Bill of 2018 introduces harsher penalty provisions which increase the enforcement powers of the competition authorities for purposes of deterring anti-competitive conduct. Removal of the ‘yellow card’ Currently, the Competition Act only allows for administrative penalties to be imposed in relation to certain prohibited practices if the conduct has been repeated by … Continue reading

SA poised to follow suit in utilisation of non-competition merger control to protect State security in foreign mergers

By Jason van Dijk (ZA) on August 16, 2018 Posted in General

A controversial introduction in the latest draft of the Competition Amendment Bill of 2018 is the inclusion of a section that requires the State President to constitute a standing committee of cabinet ministers and public officials to consider whether a merger, involving a foreign acquiring firm, will be adverse to national security interests in the … Continue reading

Competition Amendment Bill 2018 aims to protect market participation of non-dominant firms

By Rosalind Lake and Erwyn Durman on August 13, 2018 Posted in General

The overriding intention of the Competition Amendment Bill of 2018, introduced in parliament on 12 July 2018, is to address perceived high levels of concentration and the skewed ownership profile of the South African economy. The competition authorities have consistently expressed concerns about the large number of dominant firms operating in the economy which they … Continue reading

Dispute not settled if made subject to written agreement

By Patrick Bracher (ZA) on July 24, 2018 Posted in General

A UK court examined whether a construction dispute had been settled in the course of without prejudice correspondence between the parties’ lawyers. The letter of acceptance of the offer said the settlement was subject to approval by the board of the builder and would only become valid and binding when executed by authorised signatories. The … Continue reading

No absolute duty to clear natural vegetation to prevent fire spreading

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

A reasonable landowner is not obliged to ensure that in all circumstances any fire on its property will not spread beyond its boundaries. The landowner is obliged to take steps that are reasonable in the circumstances to guard against such an event occurring. If the landowner takes those steps and a fire spreads nevertheless, the … Continue reading

Director’s personal liability (UK)

By Patrick Bracher (ZA) on July 10, 2018 Posted in General

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Deafness from acoustic shock caused by a Wagner opera

By Patrick Bracher (ZA) on July 4, 2018 Posted in General

The claimant, a professional viola player at the Royal Opera House, was found to have suffered acoustic shock whilst sitting in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle. It was found he was exposed to noise levels which created a risk to and resulting injury of his … Continue reading