Topic: General

FAIS Exemption of banks in respect of certain clients extended to 30 June 2023

By Patrick Bracher (ZA) on July 28, 2021 Posted in General

The exemption under the FAIS Act of registered banks from the need to comply with the FAIS Act in respect of certain sophisticated or major clients has been extended once again to 30 June 2023. The exemption relates to clients who are another bank, a South African insurer, a foreign bank or similar business, a central … Continue reading

Hospitality guest indemnity upheld under Consumer Protection Act

By NRF Digital Team on July 28, 2021 Posted in General

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

By Juliana Munyembate and Marianne Wagener (ZA) on July 23, 2021 Posted in General

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

By Donald Dinnie on July 22, 2021 Posted in General, Uncategorized

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?

By Shawn Barnett (ZA) on July 16, 2021 Posted in General

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

By Donald Dinnie on July 14, 2021 Posted in General

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

By Donald Dinnie on July 13, 2021 Posted in General

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

By Donald Dinnie on July 6, 2021 Posted in General

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

By Donald Dinnie on June 30, 2021 Posted in General

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

By Danielle Ebrahim-Naseem on June 29, 2021 Posted in General

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

When does independent consultant to sub-contractor owe a duty of care to the main contractor? (UK)

By Patrick Bracher (ZA) on June 9, 2021 Posted in General

The UK High Court found that an independent consultant to a sub-contractor relating to the design and construction of a slipform rig did not owe a duty of care to the main contractor and could not be sued for damages for negligence. There was no assumption of responsibility to the main contractor which sought damages … Continue reading

Extra-territorial jurisdiction of the Prevention of Organised Crime Act

By Candice Grieve on June 7, 2021 Posted in General

In May 2021, the Supreme Court of Appeal delivered a judgment with two important principles namely: The High Court has jurisdiction to make a forfeiture order in terms of section 50(1)(b) of the Prevention of Organised Crime Act, 1998 (POCA) in respect of property situated outside the territory of South Africa and belonging to persons … Continue reading

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

By Candice Grieve on June 4, 2021 Posted in General

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

By Patrick Bracher (ZA) on June 4, 2021 Posted in General

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

Moratorium on legal proceedings in business rescue

By Patrick Bracher (ZA) on June 3, 2021 Posted in General

Section 133 of the Companies Act, 2008 provides for a moratorium on legal proceedings against a company which is in business rescue. It does not include an action to recover a deposit on a transaction with the company that was never completed because the money does not belong to the company under business rescue and … Continue reading

Prescription against notary for badly drafted antenuptial contract

By Patrick Bracher (ZA) on June 1, 2021 Posted in General

A notary negligently drafted an antenuptial contract in December 1998. The antenuptial contract was declared void from inception in a judgment delivered in October 2016. The court held that prescription began to run from the date in May 2014 when the claimant was told by his attorneys of the problems with the contract. In order … Continue reading

Adopted children cannot be excluded from trust benefits for ‘children’

By Patrick Bracher (ZA) on May 28, 2021 Posted in General

A notarial deed of trust executed in 1953 granted the benefits to legal descendants including a “child or any children” of descendants. A lower court held that because adopted children were not specifically included they could not benefit from the inheritance (which was the law in 1953). The Constitutional Court held that the words in … Continue reading

Fires at Sea: An ever-increasing hazard after 5 000 years of shipping

By Malcolm Hartwell on May 28, 2021 Posted in General

On 18 May 2021, the fire and resultant probable loss of the brand new container ship, the mv X-Press Pearl, along with all her cargo off Sri Lanka is a timely reminder of the devastating effect of fires at sea on seafarers and ships. It is also a continuing reminder of the ever-increasing hazard caused … Continue reading

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract

By Patrick Bracher (ZA) on May 14, 2021 Posted in General

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract The dispute concerned a lease for a hotel in Coffee Bay, Transkei for a period of 20 years that was held to be constitutionally invalid because the lease had been signed contrary to the laws relating to public … Continue reading

Making the Covid-19 vaccine injury no-fault compensation scheme work

By Donald Dinnie on May 14, 2021 Posted in General

The extent to which claimants choose to use the scheme rather than litigate will in part depend on the cost-effective, accessible and timeous claims process and the extent of the compensation provided by the scheme. Read more here.… Continue reading

Powers of the Financial Services Tribunal

By Donald Dinnie and Patrick Bracher (ZA) on May 13, 2021 Posted in General

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action. Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

Every word must be given a meaning when interpreting a statute

By Patrick Bracher (ZA) on May 12, 2021 Posted in General

When interpreting a statutory provision, one must proceed from the fundamental premise that meaning must be given to every word (provided the context lends itself to such meaning). The rationale for this principle is that a statute is not taken to use words without meaning. No clause, sentence or word must be construed to be … Continue reading

“Reasonable prior notice” discussed (UK)

By Patrick Bracher (ZA) on May 11, 2021 Posted in General

A UK admiralty court held that 12 hours’ notice of a change of tariff for berthing charges and other services in a port for a vessel that had been delayed by the Covid-19 pandemic was not reasonable notice. The regulation required “reasonable prior notice”. The requirement of reasonable prior notice was not complied with because … Continue reading

English law and exclusive jurisdiction clauses

By Patrick Bracher (ZA) on May 7, 2021 Posted in General

In a claim between reinsurers and a South African banking group, the English High Court, in an application that was not opposed by the South African party, granted an anti-suit injunction preventing the proceedings taking place in South Africa for various reasons including that the English law exclusive jurisdiction clause was binding. English legislation allows … Continue reading