In a January 2024 judgment the Labour Court reaffirmed the principles pertaining to the doctrine of common purpose in relation to violent acts committed by groups of employees during strike action. In November 2018, about 2500 employees of a pharmaceutical retailer embarked on a protected strike which was subject to picketing rules.  Following non-compliance with the picketing rules, the employer successfully obtained two court orders, the first of which interdicted the employees from committing further acts of violence and intimidation, and the second of which suspended the picketing rul ..read more

This blog was co-authored by Michael McCarthy, trainee associate, litigation insurance. On 20 March 2024 the Financial Sector Conduct Authority published a number of administrative sanctions for financial services providers who had failed to comply with the Financial Intelligence Centre Act (FICA). The FSCA, the supervisory body responsible for financial services providers under FICA, issued the sanctions following inspections it conducted during the course of 2023. Each FSP was found to have contravened section 42(1) and (2) of FICA for failing to spell out in detail the minimum information t ..read more

On 8 April 2024 the Supreme Court of Appeal delivered a judgment affirming that the residence of the defendant alone does not confer jurisdiction on the South African courts where no other link exists between the claim and the jurisdiction of the South African courts.        A South African company sought an order in terms of the Swaziland Companies Act against the directors of an Eswatini company, holding them personally liable for debts owed by the Eswatini company to the South African company.  This order was sought on the alleged basis that the directors ..read more

In case you as an FSP missed it, FSCA Communication 13 of 2024 (FAIS) updates FSPs on the manner and process for future submissions of annual financial statements and other statutory returns required under section 19 of the FAIS Act and other applicable subordinate legislation. The communication includes a useful User Guide on the process ..read more

In the course of a judgment dealing with two reinsurance contracts, issued within days of each other with different jurisdiction clauses, the court made the following remarks in passing regarding the description of the one contract as ‘the signed slip’: “That terminology brings to mind the practice … whereby a binding contract would be included by the underwriter scratching a slip, which both parties intended would be superseded at a later stage by a formal policy … It is not unknown in the insurance market, therefore, for an initially binding contract to be superseded by a later contract pote ..read more

Water damage cover under a property policy excluded losses from “water that backs up or overflows or is otherwise discharged from a sewer, drainpipe …” except as provided for in additional coverage. The additional coverage insured “water that backs up or overflows from a sewer or drainpipe” but “the most we will pay for loss or damage under this coverage is $5 000 per building. Despite some fanciful arguments by the insured who was looking for cover of $59 000 for its damages, the court found that the terms of the policy did not cover the water damage at issue unless the insured secu ..read more

“Shadow trading” occurs when someone possessing insider information about a company thereby possesses inside information about another company and trades in the shares of a similarly situated competitor. A senior executive of a biopharmaceutical firm received confidential information about the impending takeover of his former company. Within seven minutes after receiving an email about the parties being “on track to sign the deal”, the former executive bought shares in a similarly situated biopharmaceutical company. When the merger was announced four days later that similar company’s stock pri ..read more

The plaintiff bank gave a loan to a trust at a time when there were only two trustees instead of the requisite three to bind the trust. The bank conceded that therefore the loan agreement and mortgage bond were invalid. The bank sued under an enrichment claim that the trust was enriched to the extent of the balance outstanding of about R5.436 million. The question arose whether the bank’s mistake in not doing an initial proper due diligence of the trust was reasonable under the enrichment action pursued, the condictio indebiti. The requirements for a claim based on unjustified enrichment ..read more

Per- and polyfluoroalkyl substances (“PFAS”) are a group of synthetic fluorinated substances. PFASs are “forever chemicals” because they do not break down via a natural processes and are subject to significant regulatory action.  Recently the Swedish Supreme Court t-486-23-eng.pdf (domstol.se) dealt with a PFAS liability claim arising from drinking water contaminated with PFAS.  The court held that the increased risk of adverse health effects in the future did not in itself constitute, with certainty, personal injury but that significant personal impairment that was manifested in the ..read more

In this recent United Kingdom Supreme Court judgment discussed here, in addition to considering the meaning of “catastrophe” in the context of the Covid-19 losses and the treaty wording, the application of the “hours clause” was also considered.  The reinsurers argued that even if there was a catastrophe only business interruption that had occurred in the first 168 hours specified in the “hours clause” was recoverable.  That is losses would be suffered on a “day to day basis” rather than all being considered to arise on the day the business was ordered to close.   The court ..read more