Topic: General

No absolute duty to clear natural vegetation to prevent fire spreading

By Patrick Bracher (ZA) on July 17, 2018 Posted in General

A reasonable landowner is not obliged to ensure that in all circumstances any fire on its property will not spread beyond its boundaries. The landowner is obliged to take steps that are reasonable in the circumstances to guard against such an event occurring. If the landowner takes those steps and a fire spreads nevertheless, the … Continue reading

Director’s personal liability (UK)

By Patrick Bracher (ZA) on July 10, 2018 Posted in General

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Deafness from acoustic shock caused by a Wagner opera

By Patrick Bracher (ZA) on July 4, 2018 Posted in General

The claimant, a professional viola player at the Royal Opera House, was found to have suffered acoustic shock whilst sitting in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle. It was found he was exposed to noise levels which created a risk to and resulting injury of his … Continue reading

Armed robbery is vis major

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

Two consignments of cigarettes which were imported into South Africa from Zimbabwe were stolen in August 2009 by unknown armed robbers during a robbery from a customs and excise warehouse. The owners of the consignment claimed a rebate of customs duty under the Customs and Excise Act which allows a rebate in circumstances of vis … Continue reading

Arbitration clause not void for vagueness (UK)

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty. The court quoted a nice passage from a previous … Continue reading

Strategically blocking an insolvency reorganisation plan is not bad faith (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Where a creditor blocked a bankruptcy plan by buying available claims to get sufficient votes to do so, it was held that this was not a bad faith purchase. A finding of bad faith requires evidence of an ulterior motive. If a creditor seeks to protect its claim to the fullest extent by a strategic … Continue reading

When the costs exceed the claim (UK)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

Two UK judges have expressed their dismay over a matter that went to court for three plaintiffs with modest claims in the lower hundreds of pounds where the parties ended up spending GBP2 million on costs. The claim was against an airline for air tickets for cancelled flights. The court observed that from an early … Continue reading

No right to claim for negligent referral (US)

By Patrick Bracher (ZA) on July 2, 2018 Posted in General

An appeal court in New Jersey found that there is no law in terms of which a law firm can be held liable for a “negligent referral” for referring a former personal injury client to another lawyer who mishandled the claim. The plaintiff alleged that the referral lawyer who acted in the personal injury matter … Continue reading

Scope of arbitration clause (UK)

By Patrick Bracher (ZA) on June 20, 2018 Posted in General

The UK Chancery Division held that an arbitration clause relating to any dispute regarding a contractual undertaking to renegotiate port licensing conditions in the event of ‘any major physical or financial change in circumstances affecting the operation’ of the importer’s works, was broad enough to cover a dispute about the fees for the use of … Continue reading

Administrative action can be reviewed from when it adversely affects a person’s rights

By Patrick Bracher (ZA) on June 12, 2018 Posted in General

The Supreme Court of Appeal decided that a decision by the National Energy Regulator of South Africa to determine gas prices was not reviewable at the stage when NERSA decided on a methodology to determine the prices, but was reviewable when NERSA subsequently determined the prices imposed on customers. In February 2012, NERSA concluded that … Continue reading

European Commission’s approach to artificial intelligence (AI)

By Patrick Bracher (ZA) on June 11, 2018 Posted in General

The European Commission has labelled AI as one of the most strategic technologies of the 21st Century (so far of course) and has proposed a three-pronged approach to EU members which is worth considering: Investment in AI research and innovation must be increased. The EU (public and private sectors) is boosting investment by at least … Continue reading

Cancellation of contract not justified where most of the price already paid and restitution unlikely

By Patrick Bracher (ZA) on June 6, 2018 Posted in General

The court refused to uphold cancellation of an agreement of sale for a members’ interest in a close corporation because only a total of R160 000 out of a purchase price of R4 million (96%) was outstanding and three of the appellants had been paid in full. In addition, restitution of the amount already paid was doubtful … Continue reading

Failure to object to short payment may be a waiver and result in prescription

By Patrick Bracher (ZA) on June 4, 2018 Posted in General

An intention to waive must be inferred reasonably; no-one can be presumed to have waived rights without clear proof. The test for such intention is objective. Silence and inaction will do when a positive duty to act or speak arises. A security company rendered security services to a municipality for six years. During the second … Continue reading

Enforce your arbitration award right away or the debt may prescribe

By Todd Petersen and Daniel McConnell on May 31, 2018 Posted in General

An arbitration award does not create a new debt for purposes of prescription. Parties who wait more than one year to have an arbitration award made an order of court with a 30 year prescription period may find that, when they attempt to enforce the award, the underlying debt has prescribed. Parties should deal expressly … Continue reading

How to politely tell someone they are lying

By Patrick Bracher (ZA) on May 27, 2018 Posted in General

In a recent case which went through two courts in the UK relating to a ‘fiscally clandestine organisation’, the evidence of the various ‘utterly dishonest’ witnesses was described in the following phrases which you may find useful: One witness was ‘egregiously dishonest’ and in his evidence was ‘as heroically dishonest as he is in everyday … Continue reading

Requirements for claim for sequestration/liquidation

By Patrick Bracher (ZA) on May 24, 2018 Posted in General

In order to claim the liquidation of a company or the sequestration of a trust or individual person it is necessary to show that the target is the claimant’s debtors and the target is insolvent. The claim must be a liquidated claim because a damages claim yet to be proved cannot found an application for … Continue reading

Deliberations of Judicial Services Commission must be revealed

By Patrick Bracher (ZA) on May 22, 2018 Posted in General

The Constitutional Court has held that the private deliberations of the Judicial Services Commission in exercising its mandate to appoint judges must be disclosed as part of the record of proceedings when a decision is challenged. The judicial candidates are interviewed in public and this is followed by private deliberations and recommendations to the President … Continue reading

Good faith requirement in a guarantee

By Patrick Bracher (ZA) on May 13, 2018 Posted in General

Where a retention guarantee was provided to a construction company for an amount to be demanded but not exceeding ‘a good faith estimate of the costs’ claimed, the contractor had to show that the demand was made in the honest belief that it was a correct estimate of what it was entitled to be paid … Continue reading

Defence of lack of authority to conclude agreement rejected

By Patrick Bracher (ZA) on May 9, 2018 Posted in General

A provident fund entered into an investment consulting agreement but subsequently contended that the signatories were not authorised and that the agreement was beyond its powers granted by the fund rules. Although there were strong objections to the agreement at the trustees meeting approving the agreement, no voting took place but the decision to appoint … Continue reading

Sanctity of contracts is good public policy

By Patrick Bracher (ZA) on May 7, 2018 Posted in General

A lease was challenged on the grounds that the cancellation for non-payment of rent, after prior notice that the rent had not been paid, should not be enforceable because it was against public policy to cancel the agreement for the lease of a hotel that had been in place since 1982. Although good faith is … Continue reading

Prescribed rate of interest is 10% from 1 May 2018

By Patrick Bracher (ZA) on May 2, 2018 Posted in General

The prescribed rate of interest has been changed with effect from 1 May 2018 to 10% per annum. The previous rate was 10.25%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all debts … Continue reading

Statutory self-help provision to deduct money from employee’s earnings declared unconstitutional

By Patrick Bracher (ZA) on May 1, 2018 Posted in General

The Constitutional Court declared unconstitutional a provision in the Public Service Act entitling the government to deduct money due by an employee without any hearing. The employee had been overpaid a salary for a five year period because of a wrong grading and the Department of Health Gauteng deducted R56 257 from a gross salary of … Continue reading