Topic: General

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

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

By Patrick Bracher (ZA) on April 16, 2019 Posted in General

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

By Rosalind Lake (ZA) and Candice Upfold on April 9, 2019 Posted in General

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

By Lovanya Moodley on April 9, 2019 Posted in General

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

Relief denied for director who put personal interests first (US)

By Patrick Bracher (ZA) on April 8, 2019 Posted in General

Under the business judgment rule, a director or officer may be excused from conduct which has adverse circumstances for the company if their judgment, albeit poor judgment, was exercised in good faith and in the interests of the company. In an action in Delaware, USA, the CEO was denied this assistance by the court because, … Continue reading

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

By Riccardo Petersen (ZA) on April 4, 2019 Posted in General

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

By Patrick Bracher (ZA) on April 4, 2019 Posted in General

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

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

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

Principles of unlawful use of confidential information and trade secrets

By Patrick Bracher (ZA) on March 26, 2019 Posted in General

The Supreme Court of Appeal restated the principles on liability for unlawful competition by the use of the trade secrets of a competitor. Every person is entitled to freely carry on their trade or business in competition with rivals but the competition must remain within lawful bounds. If it involves a wrongful interference with another’s … Continue reading

Energy update from the Minister of Energy

By Jackie Midlane and Raghemah Hendricks on March 26, 2019 Posted in General

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

Liability of auditor for incorrect accounting treatment advice (UK)

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

The English Court of Appeal found that the plaintiff building society had not proved damages against its auditors who gave them incorrect information about how to treat long-term interest rate swaps on its balance sheet under the IFRS requirements. The swaps were not included on the balance sheet from 2005 till 2013, when they were … Continue reading

Business rescue application does not terminate provisional liquidation

By Patrick Bracher (ZA) on March 13, 2019 Posted in General

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

By Patrick Bracher (ZA) on March 13, 2019 Posted in General

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

By Richard de la Harpe on March 10, 2019 Posted in General

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

Duty of lateral support applies to reasonably built-on land

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

The Western Cape High Court found that the common law duty to provide lateral support to a neighbouring property falls within the law of neighbours where the guiding principle is reasonableness. The duty of lateral support relates to contiguous pieces of land even where the land has been built on, provided the buildings have not … Continue reading

UK regulator to drop general counsel from accountability

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

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