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

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

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

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

Informed consent to medical procedure

The claim in R B v Smith was based on an alleged failure by a surgeon (who performed a laparoscopic hernia repair on the appellant) to provide the appellant with sufficient information to enable her to give informed consent for the surgery which resulted in colon perforation. There was no negligence on the surgeon’s part in … Continue reading

Burden of proof in actions against ship owner for loss of cargo and the principles of bailment (UK)

England’s highest court finally, after over four centuries of reported decisions on the issue, definitively held that the burden of proof lies on the carrier where cargo owners sue a ship owner for loss or damage to cargo. If the carrier could and should have taken precautions which would have prevented some inherent characteristic of … Continue reading

Penalties for failing to notify mergers will increase in South Africa

In March 2019, the Competition Commission published its latest guidelines for the determination of administrative penalties for failure to notify mergers and implementation of mergers contrary to the Competition Act 1998. The highest penalty to date for a failure to notify is R10 million. The methodology in the Guidelines could result in much higher figures … Continue reading

Religious practices and workplace incapacity

The Labour Appeal Court (LAC) has reaffirmed that employers must be tolerant of employee religious beliefs. In TDF Network Africa (Pty) Ltd v Deidre Beverley Faris, it ruled that the employee was discriminated against and unfairly dismissed for practising her religion. Faris, a Seventh Day Adventist, refused to attend monthly Saturday stock takes as her … Continue reading

A settlement agreement is not governed by the National Credit Act if the underlying dispute is not

The Supreme Court of Appeal found that if the underlying cause of a settlement does not fall within the parameters of the National Credit Act (NCA), then the settlement agreement cannot logically be converted to a credit agreement under the NCA. The underlying cause (in this case the rental agreement) is of vital significance because … Continue reading

Repudiation of a contract

Where the purchase price of imported sugar included the import duty and the purchase price had to be reduced if the duty was reduced, the persistent claim by the seller for the unreduced amount was a repudiation and led to the lawful cancellation of the sugar contract. Payment of the sugar contract was to be … Continue reading

Acceptance of settlement offer must be unconditional

The Supreme Court of Appeal has reaffirmed the principle that where a party alleges that a compromise (settlement) has been effected in an exchange of correspondence it must be proved that the offer of compromise was accepted. The acceptance must be absolute, unconditional and identical with the offer. Otherwise there is no consensus and no … Continue reading

Energy update from the Minister of Energy

The Minister today committed government to a collaborative approach with the private sector in dealing with the current energy crisis in South Africa. At the DLO Africa Power Roundtable Conference today (26 March 2019), the Minister spoke positively about the imminent release of the final Integrated Resource Plan (IRP), the unbundling of Eskom and long-term … Continue reading

Business rescue application does not terminate provisional liquidation

An application for business rescue does not terminate the office of provisional liquidators nor does it result in the assets and management of the company in liquidation re-vesting in the directors of the company. Where a company had been liquidated, an application was made for business rescue in GCC Engineering v Lawrence Maroos. Although section 131(6) … Continue reading

Interpretation of statutes must be consistent with the Constitution

The Constitutional Court has reminded us in the context of mineral rights that a statutory provision must be interpreted in accordance with the spirit, purport and objects of the Bill of Rights (s 39(2)) and consistently with the Constitution and consistently with international law (s 233), and the courts must apply customary law when that law is … Continue reading

Proposed Companies Act Amendments would compromise company privacy

Currently section 26 of the Companies Act 2008 provides only for holders of securities and beneficial interests in securities to have access to the notices and minutes of annual meetings, written communications sent generally to any class of security holders, resolutions adopted at a shareholders meeting and any documents made available in relation to such … Continue reading

UK regulator to drop general counsel from accountability

The UK’s Financial Conduct Authority intends to drop plans to hold heads of legal departments at banks and insurance firms responsible for ignoring misconduct because it would hamper lawyers from giving independent legal advice. General counsels will be excluded from the new accountability regime for senior managers. Binding legal counsel to the accountability provisions would … Continue reading
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