Author: GilesFiles

Contra proferentem rule: Interpretation and application

If the meaning of a word or clause in a written document is not clear, or the word or clause is ambiguous, the verba fortuis accipiuntur contra proferentem rule applies.  In other words this rule provides that if there is any doubt about the meaning or scope of an exclusion clause, the ambiguity should be resolved against the party seeking to rely on the exclusion clause. It is the other party who is given the benefit of the doubt. See: Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom (99/2002) [2003] ZASCA 51; [2003] 3 All SA 496 (SCA) (23 May 2003) at para [13] Fedgen Insurance Ltd. v Leyds (475/93) [1995] ZASCA 20; 1995 (3) SA 33 (AD); [1995] 2 All SA 357 (A) (27 March 1995) per Smalberger JA: “Any provision which purports to place a limitation upon a clearly expressed obligation to indemnify must be restrictively interpreted…for it is the insurer’s duty to make clear what particular risks it wishes to exclude…. A policy normally evidences the contract and an insured’s obligation, and the extent to which an insurer’s liability is limited, must be plainly spelt out. In the event of a real ambiguity the contra proferentem rule, which requires a written document to be construed against the person who drew it up, would operate against Fedgen as drafter of the policy.” Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA...

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Unemployed citizens need to be empowered to work

Yesterday the Director of the Free Market Foundation, Eustace Davie, called upon President Cyril Ramaphosa to empower unemployed citizens and set them free by allowing them to agree their own contractual terms and grant them job seeker’s exemption certificates. Set South Africa’s forgotten people free – in defence of the unemployed – Eustace Davie “Mr Ramaphosa, like most South Africans I am relieved that you have ascended to the country’s highest political post. However, you of all people know that you start your Presidency with an economy in deep trouble – and one in which the unemployed have been almost completely ignored. By first adopting an option for the “relief of the unemployed” through job seeker’s exemption certificates, you will ensure that when even more people become unemployed as the inevitable result of the impending implementation of the national minimum wage (NMW), there will be relief available to them. Proof that unemployed South Africans are truly the forgotten people is contained in the Socio-Economic Impact Assessment (SEIA) attached to the NMW Bill circulated for comment by the Department of Labour. Shockingly, the “affected stakeholders” in the exercise are listed as being “Government Departments, Business, Organised Labour and Civil Society”. No mention is made of the interests of the most “affected stakeholders” of all, the 9.2 million unemployed who make up over 36% of SA’s potential workforce. Costs of complying...

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How does the LRA regulate temporary employment?

 Essence On 22 February 2018 the Constitutional Court will hear the appeal by a Temporary Service Provider (TES) which contends that LRA s198A(3)(b) creates a ‘deeming’ statutory temporary employment relationship after 3 months when workers earning below the statutory threshold (currently about R17,000  per month) are placed with a client, but still remain employees of the TES.  Judgment Assign Services (Pty) Ltd v Numsa CCT 194/17 Date of hearing: 22 February 2018.  An appeal against the judgment of the labour appeal court dated 10 July 2017.  Judges Awaiting the outcome of the appeal.  Related books Significance The outcome of this important appeal will be awaited with great interest.  According to the media summary the TES, Assign Services, will argue that its ability to provide a service post-deeming would be tantamount to banning so-called Labour Brokers and that the legislature could not have intended to impose such a ban.  It is argued that the Labour Appeal Court acknowledged that Labour Brokers could continue to provide their services and this indicates that the relationship was intended to be of a ‘dual’ nature. Court summary The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. “On 22 February 2018 at 10h00 the Constitutional Court will hear an application for leave to appeal...

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Breaching trade restraint undertaking and agreement

For subscribers only Whilst some judgment summaries are available to all, this judgment summary is reserved for subscribers only. If you are already a subscriber, you can login to see this judgment summary. If you cannot login, email us and we’ll arrange to give you access. You can subscribe by paying a reasonable monthly fee. You can cancel at any time. No fixed contracts. Subscribe You can read a summary of a landmark judgment to see what a judgment summary looks like. We provide free access to landmark judgments. You can also read more about Gilesfiles and who subscribes to GilesFiles and why.  ...

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Failure to annex standard supply conditions

 Essence Failing to attach standard supply conditions to an agreement means they were not incorporated and did not form part of the agreement. See also Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom.  Judgment Eskom Holdings Limited v Grundy (AR380/2017) [2018] ZAKZPHC 1 (16 February 2018).  Disallowed appeal.  Judges Ploos van Amstel J (Jappie JP and Nkosi AJ concurring)  Related books Significance Agreements that purport to incorporate provisions of another document need to carefully drafted and if the conditions are not attached to the agreement the other parties need to have them specifically drawn to their attention. Discussion by GilesFiles Quotations from judgment [1] The appellant (‘Eskom’) appeals against an order made by Marks AJ, directing it to remove certain overhead power lines and ancillary equipment from a particular portion of a farm owned by Mr D J Grundy in the Kokstad area. Eskom also applied for condonation of its failure to make written application for a date for the hearing of the appeal timeously. Its attorney provided a satisfactory explanation, the application was not opposed and condonation was granted at the hearing of the appeal. [2] The farm is described in the title deed as Portion 1 (Fernill Annex) of the Farm Kruis-Fontein no 215, Registration Division ES, Province of KwaZulu-Natal; in extent 143, 4691 hectares. Mr Grundy...

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