Tag archives: Drafting

Interpreting insurance policies (UK)

A recent UK decision made some interesting remarks regarding the interpretation of an insurance policy which should be no different in South Africa: The wording of the schedule and the policy wording must be considered together without giving greater weight to either. The fact that clearer words could have been used does not mean that … Continue reading

Force majeure clauses – a ‘Day Zero’ respite

Property developers are not immune to the water restrictions being imposed by the City of Cape Town and, in terms of the recently published Level 6 water restrictions, have had to reduce their monthly consumption of municipal drinking water by 45% from 1 February 2018. With day zero looming, contractors need to be aware of … Continue reading

Public holidays are not bank holidays

The definition of ‘business day’ in South African agreements often includes phrases like ‘any day on which banks are open for business in South Africa’. These words are confusing and it is sufficient to refer to a day other than a Saturday, Sunday or official public holiday. The words have crept in from English law … Continue reading

Interpretation of clumsy laws

Clumsy laws must be constructively dealt with. Even where laws are clumsily and inelegantly drafted, the courts should be slow to alter the words actually used. In Kalil v Mangaung Metropolitan Municipality the court said that it must guard against the temptation to substitute what the court regards as reasonable, sensible or businesslike for the words … Continue reading

Don’t allow arbitrators to make the contract

An arbitration clause should never be drawn so broadly that the arbitrator determines the wording of the contract.  Arbitrators should be asked to interpret contracts and not make them for the parties. The consequences of such a broad arbitration clause could be that the arbitrator imposes contract terms on the parties which they would never … Continue reading

Drafting tips: vague contracts

When ascertaining the meaning of a contract, a court will first have regard to its wording. The wording must be considered in the context or factual matrix in which the contract was concluded. That is so even if, on the face of it, the words are clear. Where the words are ambiguous or lack clarity, … Continue reading

Arbitration: You get what you ask for

If you choose an informal arbitration you will usually have to accept the outcome whether you like it or not. In Reward Ventures 01 CC v Walker the arbitration agreement provided that the arbitration must be held “in a summary manner … on the basis that it shall not be necessary to observe or carry out … Continue reading

An arbitration clause may die with the contract

A clause in a contract requiring the parties to refer their disputes to arbitration is not necessarily enforceable if the contract itself is invalid.  Every arbitration clause should be coupled with a provision that the validity of the agreement may be determined by arbitration even though the existence of the agreement itself is being questioned.  … Continue reading

Definitions in context

Most definition clauses do (and should) start with the words “subject to the context” and these words are important when applying a definition. The supreme court of appeal said that definitions in an enactment (in this case a by-law) should not be slavishly applied.  Where the context requires it, the ordinary meaning of a word … Continue reading