While performing services on a construction site owned by a Port Authority, an employee of a contractor slipped and fell on wet soil and rocks because of unsafe working conditions and sued for damages. The construction management firm, Techno, was insured under a comprehensive general liability policy. When the port authority was sued by the
Interpretation
How does good faith feature in our law of contract?

The July 2021 Supreme Court of Appeal judgment in Capitec Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Ltd and Others (10530/2020) [2021] ZAWCHC 65, deferred to the Constitutional Court in Beadica 231 CC and Others v Trustees, Oregon Trust and Others [2020] ZACC 13; 2020 (5) SA 247 (CC) which authoratively dealt with…
Evidence that may be led to interpret a contract

The dispute arose under a settlement agreement in obliging the defendants to deliver 100 000 cubic metres of “clean sand (top soil excluded)” which was “stockpiled”. It was not clean sand nor properly stockpiled and yielded only two thirds of the amount of clean sand, leading to a large damages claim. The Supreme Court…
Every word must be given a meaning when interpreting a statute

When interpreting a statutory provision, one must proceed from the fundamental premise that meaning must be given to every word (provided the context lends itself to such meaning). The rationale for this principle is that a statute is not taken to use words without meaning. No clause, sentence or word must be construed to be…
Interpreting insurance contracts (part 7 – causation)

An insured loss must be caused legally and factually by the insured peril.
Even where factual causation is established legal causation does not automatically follow.
In Concord Insurance Co Limited v Oelofsen N.O. (1992) the court said that in the contractual context policy considerations do not enter the enquiry (unlike in criminal law or delict,…
Interpreting insurance contracts (part 6 – objective interpretation)

The interpretation process is objective, not subjective.
Where the meaning of any policy is clear, effect must be given to it.
The court cannot substitute what it regards as reasonable, sensible or business-like for the words actually used. The court should not in those circumstances rewrite the contract made by the parties.
Courts should not…
A forfeiture clause providing for summary cancellation of lease agreement on breach is not unfair under the CPA

A forfeiture clause, entitling the lessor to cancel the agreement, without notice to the lessee, in the event of breach by lessee is not void for unfairness in terms of the Consumer Protection Act 2008. The CPA should not be construed to invest the court with the power to refuse to enforce contractual terms on…
The contra proferentem rule and insurance policies – again

The application of the contra proferentum rule was one of the issues which the English High Court considered in Financial Conduct Authority v Arch Insurance (UK) Limited and Others.
The rule provides that where there is doubt about the meaning of a contract, the words will be construed against the person who proffered them.…
Interpreting insurance contracts: a refresher (part 5 – fairness and reasonableness)

A court may not refuse to enforce contractual terms on the basis that the enforcement would, in its subjective view, be unfair, unreasonable or unduly harsh. It is only where a contractual term or its enforcement is so unfair, unreasonable or unjust that it is contrary to public policy that a court may refuse to…
Interpreting insurance contracts: a refresher (part 4 – fraudulent claims)

At common law, in the absence of a fraud clause in the insurance policy, fraud can only be relied upon to the extent to which it prejudices the insurer. If an element of the claim is fraudulent only the fraudulent portion of the claim is forfeited at common law. There is no implied term in…