That sinking feeling – proximate cause and insurance

That sinking feeling – proximate cause and insurance

January 20, 2020

A German appeal court determined, in a marine claim, that the proximate cause of a vessel’s grounding and ultimate sinking after its main engine cut out was bad weather rather than an engine problem. Accordingly the loss was held to be proximately caused by peril of the sea, covered under the relevant policy. The events took place off the South African east coast. The vessel had suffered temperature increases in its engines and a fire…

Section 129 National Credit Act notice must state the amount in arrears

January 20, 2020

Section 129 of the National Credit Act requires the creditor to specify the default including the actual amount of the arrears. The requirement for ‘drawing the default to the attention of the consumer’ means more than just the fact that the consumer is ‘in default’. Section 130(4) gives the debtor an opportunity to remedy the default. The consumer must therefore be informed of the extent of the arears so as to decide how to move…

Insurance, consensus and non-existent property

January 14, 2020

The basis for contractual insurance liability is actual consensus supported by the insureds’ and the insurers’ serious intention to be legally bound to what they have agreed to. There is no consensus if there is a material mistake relating to the identity of the parties to the insurance contract, or the object of the risk, or the performance undertaken by each party, according to the terms of the insurance contract. There may be a genuine…

Incomplete or inaccurate record of agreement does not make it void (NCA extended warranties in issue)

January 14, 2020

The Supreme Court of Appeal upheld the validity of extended warranties in respect of goods sold on credit under the National Credit Act 2005 despite the fact that the warranties were filled in incompletely or inaccurately. The evidence was that, despite the inaccuracies, the extended warranties were correctly applied and gave extended warranty cover for two years beyond the initial twelve month supplier’s warranty. A written document constitutes evidence of the contract concluded. If a…

Where there is a right there is a remedy

January 8, 2020

The granting of a full pardon by the State President to a veteran pensioner entitled the pensioner to continue receiving payment from the date of the pardon. The Special Pensions Appeal Board was obliged to restore the pension from the date of the pardon. The pensioner could not be deprived of his pension on the grounds that there was no explicit power in the legislation to restore the pension. The pensioner had been granted a…

Offers of settlement and time-bars in insurance policies

January 8, 2020

In South Africa, for example, under the Policyholder Protection Rules or the Short-term Ombud’s Rules the running of statutory prescription and time-bar limitation periods provided for in an insurance policy may be suspended while a dispute is resolved. German law also provides for some circumstances in which the limitation period in an insurance coverage dispute may be suspended, and which provides lessons for South African insureds and insurers. In 2019 a Dresden court found that…

Women’s rights upheld in landmark gender-based violence judgment

By Nicki van't Riet

December 12, 2019

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As 16 Days of Activism Against Gender-Based Violence drew to a close, the Constitutional Court has sent out an unequivocal message of the judiciary’s commitment to develop and implement the strongest laws to fight South Africa’s scourge of gender based violence. The judgment of Tshabalala v S takes a firm stand which protects the values of equality, human dignity, safety and security for the women of South Africa. The Constitutional Court heard an appeal from…

When does a claim under a liability policy prescribe?

December 11, 2019

A claim for indemnification under a liability insurance contract only arises when liability to a third party for a certain amount has been established. For purposes of prescription, the debt becomes due when the insured is under legal liability to pay a fixed and determined sum of money. Until then a ‘claim’ for indemnification under the policy doesn’t exist and cannot prescribe. The insured in Magic Eye Trading 77 CC v Santam Limited had been…

Limits of self-defence

December 11, 2019

The Supreme Court of Appeal reminded us that the act of self-defence is justifiable if it is reasonable defensive action taken against an imminent act of aggression. Future danger, danger which is not imminent or conduct that has ceased to constitute danger does not entitle one to raise the defence. The act of defence is justifiable only if, objectively, it was reasonably necessary for the purpose of self-protection and not excessive to the threatened harm.…

What is ‘reasonably practicable’ for preferred language education?