Topic: General

Doctor liable for failing to warn patient about side effects (UK)

By Natasha Naidoo on August 27, 2019 Posted in General

The claimant, a retired teacher, developed a limb tremor in 2006. The defendant treated the claimant between 2007 and 2012 and prescribed a dopamine agonist. The claimant stated that the medication resulted in her overindulging in online shopping to the extent that she placed 200 bids on eBay during the course of one night. She … Continue reading

Personalised medicine and medical malpractice

By Natasha Naidoo on August 27, 2019 Posted in General

Personalised medicine involves the consideration of health risk factors and genetic information to determine individual risk profiles. This customisation of healthcare uses medical decisions, practices, treatments, and products that are tailor-made to an individual’s requirements, and is based on hereditary profile. This could result in quicker diagnosis and a more targeted form of treatment for … Continue reading

Prescription of debt for restitution after contract cancelled

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

Where one party cancels a contract because of repudiation by the other party there is an obligation to make restitution and to pay money or deliver assets which were received as performance under the cancelled contract. The cancellation gives rise to a personal obligation to pay or deliver what was received. The same would apply … Continue reading

International Arbitration Act does not override local law

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

The purchaser of a consignment of coal sought to join the party which had loaded hot coal on board the vessel causing an explosion and abandonment of the voyage. It was held that the International Arbitration Act 2017 does not override the admiralty jurisdiction of the court. The Admiralty Jurisdiction Regulation Act 1983 is a … Continue reading

Setting aside arbitration finding for fraud discovered after award (UK)

By Patrick Bracher (ZA) on August 7, 2019 Posted in General

The English commercial court set out the limited basis on which an arbitration award can be set aside when it is alleged that evidence of fraud that would have affected the decision only came to light after the award. The merits of an arbitration award are rarely reviewed. Public policy exceptions such as fraud can … Continue reading

The State’s liability for damages at a school under the Schools Act

By Patrick Bracher (ZA) on August 6, 2019 Posted in General

The South African Schools Act 1996 makes the State liable for any delictual damage or loss caused as a result of any act or omission in connection with any school activity for which the school would otherwise have been liable. The State is only liable to the extent that the event is not covered by … Continue reading

POPI progress

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

At the end of June 2019 the Information Regulator announced that the process of putting the Protection of Personal Information Act into effect is “going very slowly” and that: A CEO started on 1 June 2019; A CFO started on 1 July 2019; Other executives are being appointed; They are now at a point where they are … Continue reading

Rationality of an administrative decision

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

A government administrator’s decision may be irrational because it does not take into account a vital material fact for making a rational decision in the light of the empowering legislation and its purpose. The relevant question for rationality is whether the means, including the process of making a decision, are linked to the purpose or … Continue reading

Corporate joint venture not a partnership

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

Section 13(1)(d) of the Prescription Act 1969 delays prescription where there is a debt between partners arising out of the partnership relationship. The legal relationship of partnership arises from a contract between two or more persons who each agree to make a contribution (whether in money, property or service) to a venture to be carried on … Continue reading

Distribution of pension benefit under section 37C is determined at the date of distribution

By Michelle David on July 18, 2019 Posted in General

Where the board of a pension fund makes a distribution under section 37C(1)(a) of the Pension Funds Act 1956, the distribution must be made according to the circumstances at the time of the distribution and not at the date of death of the deceased member of the fund. The fund had distributed part of the benefits … Continue reading

Meaning of the word ‘acquire’ and other interpretation issues

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

A building contractor sought to argue that the word ‘acquire’ in the Housing Consumers Protection Measures Act 1998 meant ‘buying or obtaining ownership’. The court held that the primary meaning of ‘acquire’ is ‘come to possess something’. The suggestion that persons who have rented their places of permanent residence have not ‘acquired a home’ as … Continue reading

Powers of CIPC to investigate a Companies Act related complaint

By Patrick Bracher (ZA) on June 25, 2019 Posted in General

The Supreme Court of Appeal made important findings regarding the powers of the Companies Commission to investigate a complaint. Where the complaint relates to the inaccuracy of the company records as to who was a director, the failure to ensure that the record was maintained accurately constitutes either an ongoing act or omission under section 219(1)(a) … Continue reading

Restrictions on transfer of benefits on termination of pension fund membership is valid

By Michelle David on June 18, 2019 Posted in General

Provisions in pension fund rules that a member may not withdraw from membership of the fund while remaining in service of the employer to transfer benefits to another fund, were held to be valid and not unconstitutional or contrary to public policy, said the appeal court. Section 13A(5) of the Pension Funds Act read with the … Continue reading

The trustees’ authority to act on behalf of a trust

By Carina van Vuuren on June 13, 2019 Posted in General

A sale agreement had been signed on behalf of a trust, as purchaser, by a single trustee whose conduct was thereafter ratified by the remaining trustees. The court held that the agreement of sale was not valid and enforceable and it could not be ratified after the fact. In terms of section 2(1) of the … Continue reading

The elements of defamation

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

The Johannesburg High Court discussed the balance between the constitutional right of freedom of expression and the required respect for inherent dignity ‘to all human beings’. The defendant argued the allegedly defamatory statements made about the plaintiff were true and in the public interest. It is for the defendant in a defamation claim to establish … Continue reading

When the Master compiles a panel of liquidators it is administrative action

By Patrick Bracher (ZA) on June 9, 2019 Posted in General

One of the functions of the Master of the High Court is to compile a panel of suitable candidates to be appointed as liquidators or trustees of insolvent persons and to remove people who are unsuitable. The adding or exclusion of persons from the panel is administrative action for the purposes of the Promotion of … Continue reading

Exclusion of liability in carriage document for deck cargo

By Patrick Bracher (ZA) on June 9, 2019 Posted in General

Where a bill of lading provided that ‘the carrier shall in no case be responsible for loss of or damage to the cargo, howsoever arising … in respect of deck cargo’ the English High Court held that the provision effectively excluded liability for deck cargo which was lost overboard from the vessel in heavy seas. … Continue reading

Employees of municipality and government proportionately liable for breach of finance management laws

By Patrick Bracher (ZA) on June 6, 2019 Posted in General

Where a former managing director of a municipal entity was sued by that entity for alleged breach of the Municipal Finance Management Act 2003 (MFMA) it was held that she was entitled to join 19 other municipal officials on the ground that they were allegedly joint wrongdoers and equally liable to the municipality if she … Continue reading

Take implementation, good faith and disclosure clauses seriously

By Patrick Bracher (ZA) on May 28, 2019 Posted in Drafting tips, General

Where one of the parties to a contract had secretly entered into agreements with third parties to gain an unfair advantage for itself, the court held that it was in breach of the good faith and non-disclosure provisions and liable for damages. The implementation clause required the parties ‘to do all such things, perform all … Continue reading

Suspensive condition of tender not met – no valid contract

By Patrick Bracher (ZA) on May 15, 2019 Posted in General

A builder submitted a tender to the Development Bank of Southern Africa (DBSA) for construction of a school. The tender was ‘conditionally accepted’ and further documents had to be submitted by a deadline date after which the construction contract would be signed. The documents were not submitted in time nor was the construction contract signed. … Continue reading

Failing to call a witness does not automatically lead to an adverse inference

By Natasha Naidoo on May 7, 2019 Posted in General

The judgment handed down in Manzi v King’s College Hospital NHS Foundation Trust is a clear indication that the absence of a witness does not automatically lead to an adverse inference being drawn by the courts. The case involved a patient who suffered a haemorrhage following a surgery to remove placental tissue. One of the … Continue reading

Concourt will only decide on non-constitutional law points if in the interests of justice

By Patrick Bracher (ZA) on May 2, 2019 Posted in General

Where an appeal does not raise any constitutional issue, the South African Constitutional Court will only consider a law point on appeal if the interests of justice require it to do so no matter how interesting, arguable or important the point is. The applicant in Tiekiedraai Eiendomme (Pty) Ltd v Shell South Africa Marketing (Pty) … Continue reading