Topic: General

Employee injured during protest action by trade union denied COIDA claim

By Patrick Bracher (ZA) on May 6, 2021 Posted in General

The Supreme Court of Appeal held that an executive employee who was injured whilst at work when she became caught up with trade union protestors and was assaulted and mistreated by them and evicted in a humiliating and degrading way, was involved in an accident in the course of, but not arising out of, her … Continue reading

New CIPC recommendation: Disclose your company’s solvency and liquidity tests in your AFS

By Raghemah Hendricks on May 5, 2021 Posted in General

A trend has arisen, which has not gone unnoticed by the CIPC, where companies are failing to conduct the solvency and liquidity test in accordance with section 4 of the Companies Act, 2008, for instance when declaring a dividend. A failure to do so can have personal consequences for directors. The CIPC reviews annual financial … Continue reading

Pension Fund Adjudicator: Complainants cannot keep raising new issues

By Michelle David on May 4, 2021 Posted in General

In Nicolaas Albertus Van Rhyn and Another v The Pension Funds Adjudicator and Others, the applicants brought an application for review and remittal back for reconsideration of a determination by the Pension Fund Adjudicator (PFA). Providing the High court of South Africa (Court) with an opportunity to consider the final and binding nature of decisions … Continue reading

Advocate has no direct access to client for fees

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

The applicant was a practising advocate who sought to recover fees of nearly R500 000 from the Legal Practitioner’s Fidelity Fund Board of Control where the money due to the advocate had been held in trust by the attorney and misappropriated. The court found that the money entrusted to the attorney by the clients was held … Continue reading

When is information “required” for PAIA access to be granted

By Patrick Bracher (ZA) on April 30, 2021 Posted in General

In a dispute between the parties as to whether the applicant was a partner in a partnership with the respondent, the court gave the applicant access to the annual financial statements of the close corporation that had arisen out of the transactions of the alleged partnership. The court found that an applicant under section 50 … Continue reading

A person cannot be ordered to restore possession of goods not in their possession

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

The court refused to order the return of goods by a spoliation order because the respondent was not in possession of the goods. The claimant gave his motor vehicle to a dealer for a routine maintenance service. When he went to collect the vehicle he discovered that the keys to the vehicle had been handed … Continue reading

The meaning of “to pay” orders and the public health defence

By Carol Holness (ZA) and Deniro Pillay (ZA) on April 7, 2021 Posted in General

In April 2021, the Constitutional Court handed down a seminal judgment relating to the public health defence which will influence medical malpractice claims against the state across the country. In Member of the Executive Council for Health, Gauteng Provincial Government v PN [2021] ZACC 6, the court considered whether an order finding the MEC liable … Continue reading

Tenders cannot be awarded to non-existent entities

By Candice Grieve on April 6, 2021 Posted in General

The High Court has handed down judgement in proceedings involving Primedia (Pty) Ltd, the Passenger Rail Agency of South Africa and others in March 2021. The court has held that a tender had to be set aside because: Prasa, as a public body which knew that the tenderer did not exist when the tender closed, … Continue reading

More debarment guidance from the Tribunal

By Patrick Bracher (ZA) on March 31, 2021 Posted in General

More debarment guidance from the Tribunal A representative’s dishonesty, negligence or incompetence must be sufficiently serious to impugn the honesty and integrity of the representative as a person before debarment is justified. The ambit of the enquiry determining fit and proper characteristics is that a representative must conduct themselves with honesty and integrity and be … Continue reading

POPIA: 100 days to go

By Priyanka Naidoo on March 26, 2021 Posted in General

24 March 2020 marked 100 days to the deadline to ensure compliance with the Protection of Personal Information Act, 2013 (POPIA). The Information Regulator (IR) has prioritised certain processes that may be applicable to your organisation (which can be completed before 1 July 2021): Registration of information offices – registration commences on 1 May 2021. … Continue reading

Registration of your POPIA Information Officer (1 May 2021)

By Priyanka Naidoo on March 25, 2021 Posted in General

On 18 March 2021, the Information Regulator announced on Twitter that: the registration of information officers will commence on 1 May 2021; the Draft Guidelines will be finalised once all public comments are taken into consideration; and registration will be an on-going process to enable new entities to register and for existing one to update … Continue reading

Pension Funds: Section 37D(1)(b)(ii) and Employer requests to withhold member benefits

By Ntokozo Ngubane and Michelle David on March 24, 2021 Posted in General

In February 2021, the Financial Services Tribunal (“FST”) in L.S Ngqengelele v Afrisam South Africa (Pty) Ltd considered the question of when a fund may withhold and deduct money from a member’s benefit in accordance with section 37D(1)(b)(ii) of the Pension Funds Act (“PFA”). Section 37D(1)(b)(ii) of the PFA, allows a fund to deduct from … Continue reading

Unrepresented parties carry the costs

By Candice Grieve on March 17, 2021 Posted in General

A full bench of the High Court in Cape Town has handed down a punitive cost order against unrepresented applicants – an unusual move considering the more lenient approach our courts usually show unrepresented litigants. The Cassiems had instituted proceedings against the Government Employees Medical Scheme (GEMS) before various forums with “ostensible impunity”. In 2018 … Continue reading

Zero tolerance for bad budgeting in public sector

By Candice Grieve and Busisiwe Nhlapo on March 15, 2021 Posted in General

The Budget Speech delivered by the Minister of Finance on 24 February 2021 cast some light on what developments we can expect on the public procurement front in South Africa. The government spends close to a trillion rands on public procurement which accounts for approximately one fifth of South Africa’s gross domestic product, and is … Continue reading

Duty to protect the public prevails over a healthcare practitioner’s need to practice

By Natasha Naidoo on February 23, 2021 Posted in General

A gynaecologist and obstetrician, appeared before the Professional Conduct Committee of the Health Professions Council of South Africa (HPCSA) on charges lodged against him by his patient, Mrs M. He pleaded guilty to 2 out of 7 counts of alleged unprofessional misconduct, and was found guilty only of the 2 counts which he pleaded guilty … Continue reading

Legal professional privilege promotes the rule of law

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

In a matter regarding unlawful surveillance the Constitutional Court held that the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client. That promotes the rule of law. Although originally sourced from the common law, legal professional privilege is now supported by the Constitution. The court reaffirmed a … Continue reading

Protection of journalists’ sources is supported by the Constitution

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

In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible. Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists … Continue reading

International law does not cover expropriations of property belonging to a country’s own nationals

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

An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals. … Continue reading

Life policy proceeds due to insolvent must be paid to their trustees

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where an unrehabilitated insolvent was the beneficiary of the proceeds of a life policy taken out on the life of his wife, and the couple’s joint estate had been sequestrated, it was held that the proceeds of the policy were payable to the trustees of the insolvent estate and not to the insolvent surviving husband. … Continue reading

Meaning of payment for electricity under lease at ‘prevailing commercial rates’ (UK)

By Patrick Bracher (ZA) on February 8, 2021 Posted in General

Where a tenant was required to pay for electricity and gas ‘at no more than … the … prevailing commercial rates’ the court held that this meant the prevailing commercial rates of the private utility networks of major UK airports including airports receiving international and internal passengers rather than the rates payable to public networks … Continue reading

Direct versus indirect damages, and effect of non-variation clause

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

A cell phone service provider had wrongfully repudiated a contract with a dealer in cell phone products. The Supreme Court of Appeal held that the indemnity clause did not preclude the dealer from claiming damages. The clause which excluded liability for indirect damages did not preclude the damages claim because the amount claimed did not … Continue reading

Expert determinations under contract and the role of the courts (UK)

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

In a case regarding a share purchase agreement with an adjustable base price of USD 2.258 billion and the adjustment to be determined by an independent accountancy firm acting as an expert, the court dealt with the supervision and control by the court of expert determinations. The approach is: The parties may agree that an … Continue reading

Sale of shares for “fair value” under MOI (UK)

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

Where a minority shareholder (24.99%) was obliged to sell his shares to the majority at a “fair value” according to the articles of association (memorandum of incorporation) it meant a sale at the value of the shares on a sale between a willing buyer and a willing seller discounted to reflect the fact that the … Continue reading

Merger ends due to failure to operate in the ordinary course, but COVID-19 not MAE (US)

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

In December 2020 the Delaware court held that the COVID-19 pandemic did not cause a Material Adverse Effect on the target of a merger because the MAE excluded ‘natural disasters and calamities’. Despite this, the buyer was not obliged to close the transaction and was entitled to terminate the sale agreement because the target made … Continue reading