Topic: Insurance

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Contractual or delictual liability

This blog was co-authored by Maano Manavhela, Candidate Attorney. In this case, the parties entered into a written contract whereby the defendant would provide cash management and security services. The claimant’s money was lost during a cash-in-transit heist whilst in the custody of the defendant. The court found that the loss sustained by the plaintiff … Continue reading

Exemption clause enforceable in cases of liability arising from employee theft

An exemption clause which has the effect of excluding a party’s liability for theft by its employees is not contrary to public policy and is enforceable. This was the ruling of the Constitutional Court in Fujitsu Services Core (Pty) Limited v Schenker South Africa (Pty) Limited [2023] ZACC 20.  This issue divided the Court, with five judges … Continue reading

Insurance and aggregation clauses (UK)

There is a substantial body of English case law explaining the import of a contrast between different aggregation clauses. AXA Reinsurance (UK) PLC v Field (1996) 1 WLR 1026 at 1035 contrasted the words “arising from one originating cause” with the words “arising out of one event” used to define the unifying factor used in … Continue reading

Problems with ‘other insurance’ clauses

In a US decision as to which of two insurers was the primary insurer with a duty to defend the policyholder, the ‘other insurance’ clauses in each policy were different. The ‘other insurance’ provision in the Secura policy provide that “if other valid and collectable insurance is available to the insured for a loss” coverages … Continue reading

Covid-19 Insurance and Damage (UK)

In this judgment the insured restaurant argued that the requirement in the murder, suicide or disease extension that the interruption or interference with the insured business be caused by damage did not require physical damage. It was common cause that there had been no physical loss or damage to the insured premises or property used … Continue reading

Voetstoots clause does not cover fraudulent misrepresentation

The Supreme Court of Appeal awarded damages to the purchasers of a guesthouse which had a serious leaking roof because the seller failed to disclose the defects he was aware of. The voetstoots clause in the deed of sale was inapplicable because the claim was founded on delictual liability for fraudulent non-disclosure/misrepresentation and not on … Continue reading

A non-life insurer can insure its first-party risks

A March 2023 decision of the Financial Services Tribunal found that there is no implied prohibition in the Insurance Act on ‘traditional’ insurers (not cell) underwriting risks for both its own first party risks and third party risks. Abacus Insurance Limited (“Abacus”), a traditional insurer, holds a non-life insurance licence, permitting it to underwrite third … Continue reading

School Injury and Liability

This blog was co-authored with: Maano Manavhela, Candidate Attorney In this case, the Plaintiff’s two children aged 5 and 6 years old, sustained severe injuries at Shoshanguve Primary school when a newly constructed gate fell on them whilst they were on their way to the school’s portable toilets unsupervised. These severe injuries included broken bones … Continue reading

Revisiting repudiation of a contract

This blog was co-authored with: Jason Hudson, Candidate Attorney Platinum Property Enterprise (Pty) Ltd v Mcshane and Another The Western Cape High Court heard an application for an interdict and specific performance relating to the sale and transfer of immovable property. The purchaser and seller concluded a sale agreement where the purchaser would pay the … Continue reading

US court refuses to apply war exclusion to cyberattack

In May 2023 a New Jersey US Appellate Division refused to exclude insurers from coverage under an all-risks property insurance policy because the cyberattack which infected and damaged thousands of the claimant’s computers in its global network did not amount to “hostile/warlike action”. Merke & Co, a multinational pharmaceutical company was the victim of the … Continue reading

Sale of land agreement is void if it omits material terms (in this case subdivision)

The parties concluded a written sale of land agreement for unimproved erven purchased with the aim of subdividing and developing them into residential erven but an immediate subdivision was required because one erf extended into an adjacent development. The agreement was void because the parties had not agreed on the exact property sold because of … Continue reading

Where parties reach a settlement it puts an end to dispute and any litigation

The essence of a compromise (settlement) is the final settlement of disputed or uncertain rights or obligations by agreement between the disputing parties. Unless the settlement provides otherwise, it extinguishes the disputed rights or obligations. Where there is litigation, the purpose of a compromise is to prevent or put an end to the litigation. It … Continue reading