In late January 2025 the Supreme Court of Appeal held that, in circumstances where a contractual discretion is to be exercised impacting on the counterparty’s performance, the discretion must be exercised in good faith, with reasonable judgment, and without arbitrariness (known under the common law as the arbitrio bono viri standard). The court held that
The importance of legal due diligence
Understanding legal due diligence
In the fast-paced world of business transactions, the importance of legal due diligence cannot be overstated. This process, often seen as a tedious necessity, is actually the base of informed decision-making and risk management. But what exactly is legal due diligence, and why is it so important?
Legal due diligence is…
Settlement agreement prior to litigation cannot be made an order of court
In January 2025, the High Court addressed an application to enforce a settlement agreement made before litigation. The case revolved around a claim by the applicant seeking to enforce a settlement agreement against the respondent, the developer of a retirement village. The central issue was whether a settlement agreement concluded prior to any litigation between…
Consequences of insuring under another law
It happens not infrequently that a South African insurer, in agreeing to insure a South African, or other African risk, provides that the policy and disputes arising under the policy are subject to the laws of England (or another jurisdiction).
That might have unlooked for and unappreciated consequences in respect of prescription of any claim.…
Business interruption loss not proved for interrupted cannabis business (US)
In January 2025 a Connecticut district court rejected an insurance claim for a business interruption loss allegedly caused when a fire damaged the insured’s facility, equipment and hundreds of marijuana plants used to produce cannabis products. Business interruption policies require proof of a causal link between the actual loss of income and the necessary suspension…
A realistic tax judgment on contingency insurance
In December 2024 the Cape Town tax court found that an additional assessment made by SARS in relation to a contingency policy premium was out of time and had prescribed. In doing so, the court made some important findings regarding the nature of contingency insurance that properly recognise the nature of modern insurance.
The citrus…
Wrong lane car-accidents and contributory negligence
In a January 2025 judgment the high court dealt with a claim for compensation by the claimant, who was involved in a motor vehicle accident on 27 March 2017. The claimant sought damages from the Road Accident Fund (RAF) for injuries sustained in the collision. The central issue in this case was whether the accident…
Legal Privilege and Dominant Purpose
The test to determine whether a document that is brought into existence for different purposes, only one of which is to obtain legal advice for contemplated litigation, is protected by legal professional privilege has previously not been decided by the South African Supreme Court of Appeal. The law is now clear that legal privilege only…
No liability for slip-and-trip in an area not under control
This blog was co-authored by William Hayne, Candidate Attorney.
In December 2024, the High Court dismissed a claim for damages by the claimant, who slipped and fell at the entrance of a toilet in a shopping complex. The claimant alleged that the defendant was responsible for the area where the incident occurred and failed to…
Slip and Trip – warning signs for hazards
In a January 2025 judgment the high court dealt with a claim for damages by a claimant who tripped and fell in a shopping mall. The claimant alleged that the defendants who owned the mall were responsible for the area where the incident occurred and failed to ensure it was safe for patrons. The central…