Fidelity Guarantee Insurance

A "guarantee policy" means a contract in terms of which a person, other than a bank, in return for a premium, undertakes to provide policy benefits if an event, contemplated in the policy as a risk relating to the failure of a person to discharge an obligation, occurs; and includes a reinsurance policy in respect of such a policy.

Fidelity guarantee insurance covers an insured for losses due to fraud or theft by his/her/its employees, directors, principals, partners or anyone else colluding with an employee.

We are on the panel of various insurance companies. On occasion, they instruct us to assist their insureds where they have been defrauded in this way, either by laying charges with the SAPS and/or instituting recovery proceedings against responsible parties.

We are also able to institute actions against insurers, where we do not have a conflict of interest, in instances where those insurers refuse to indemnify their insureds who have valid claims of this nature.

Compliance Law

Former US Deputy Attorney General Paul McNulty once said: "If you think compliance is expensive, try non-compliance!" Non-compliance can have serious consequences including the imposition of huge fines and imprisonment. In a fast-evolving legislative and governance landscape, executives are faced with the challenge of setting up compliance divisions within their organisations.

The increased demand for legal compliance within organisations compels executives to evolve and restructure their business strategies to focus more on ensuring compliance within a legislative framework.

Juta's publication Compliance: Protecting your Licence to Operate presents a strong business case for the establishment of a compliance function within organisations, with the aim of enabling an enterprise-wide compliance management program to protect their licence to operate. Areas to focus on are:

Chapter 1

• Corporate compliance in modern day business
• New corporate order
• Defining compliance
• Defining statutory and regulatory compliance
• What is corporate compliance?
• The evolution of compliance
• The external environment
• External pressures on the organisation to comply
• Response to the pressure
• Industry footprint
• Influence of geography
• Compliance trends

Chapter 2

• Corporate immune system
• Global trends
• Widening risk exposure
• The relevance and theoretical foundations
• The need to converge
• Pressure from the top
• Executive and senior management support
• Beyond compliance - explaining businesses participation
• The need to converge
• Pressure from the top
• Executive and senior management support
• Beyond compliance - explaining businesses participation

Chapter 3

• The bottom line
• Corporate resilience
• Defining the role
• Vision of compliance – the mandate
• What is the intended scope?
• Defining the compliance function
• Enabling the Chief Compliance Officer
• Determining the governance structure
• Who is the Chief Compliance Officer?
• Chief Compliance Officer vs Chief Ethics & Compliance Officer
• Potential benefits of outsourcing
• Optimised benefits
• Strategic relationships

Chapter 4

• Your current landscape
• Role players – Who is accountable and responsible for compliance?
• Regulators
• Board of directors
• Board committee's
• Executives and senior management
• Line management
• Employees
• Risk Management Department
• Internal Audit Department
• The framework: getting from here to there
• A compliance culture
• Essential elements of enabling culture of compliance
• Designing your roadmap
• Best practice principles
• Integration
• An effective compliance program
• How regulators evaluate compliance programs

Chapter 5

• Return on investment ("ROI")
• Measuring value add
• Transparency
• Board oversight
• Talent planning and recruitment
• Ensuring a high-performance culture
• Prioritising leadership behaviours that matter
• Developing employees
• Talent reviews and succession planning
• Networking and collaboration
• Continued separation of the compliance function and the Legal Department
• Increased board supervision
• Technology – a focus on compliance analytics and tools
• Increased focus on ethical leadership
• Chief Compliance Officers as rising stars
• Whistleblowers
• Compliance professionals as monitors
• Due diligence and monitoring

Fire Insurance

A "property policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event, contemplated in the contract as a risk relating to the use, ownership, loss of or damage to movable or immovable property occurs; and includes a reinsurance policy in respect of such a policy;

Fire insurance is property insurance covering damage and losses caused by fire. An insured can cover his/her/its buildings, permanent fittings and goods used for his/her/its business under a fire insurance policy.

We are on the panel of various insurance companies. On occasion, they instruct us to defend their insureds when liability claims are instituted against them based on fire, or to institute recovery actions against third parties responsible for their insureds' loss under a fire policy. This usually involves both forensic fire investigators and electrical installation experts, who either are instructed by the insurers or us.

We are also able to institute actions against insurers, where we do not have a conflict of interest, in instances where those insurers refuse to indemnify their insureds who have valid fire claims.

Public Liability Insurance

A "liability policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event, contemplated in the contract as a risk relating to the incurring of a liability, occurs; and includes a reinsurance policy in respect of such a policy.

Public liability insurance covers damages that a private person (under a personal policy) or business entity (under a business policy), is legally liable to pay to third parties, relating to an incident at their private house or business premises, or about their business. Private persons or business entities can also be held liable for the actions of any of their members, partners, directors, principals or employees, as the case may be, representing either their business or them personally, based on the principle of vicarious liability.

We are on the panel of various insurance companies. On occasion, they instruct us to defend their insureds against court actions of this nature, instituted by third parties against them.

We are also able to institute actions against insurers, where we do not have a conflict of interest, in instances where those insurers refuse to indemnify their insureds for public liability claims made against them.

Personal Injury

The law of delict forms a part of private law and more particularly the law of obligations. In terms of an obligation arising from delict, the wrongdoer has a personal duty to compensate the victim for the harm done, conversely, the victim has a personal right to claim reparation of harm done from the wrongdoer.

The main forms of delictual conduct which are recognised in South Africa are the wrongful causing of patrimonial or pecuniary loss, the wrongful infliction of pain and suffering associated with bodily injury to the plaintiff and the wrongful infringement of interests of personality.

Of the three forms of delictual conduct, personal injury occurs most frequently. Claims in South Africa are mostly unlimited. Under present road accident legislation, however, claims against a wrongdoer (i.e. negligent driver or owner of a vehicle) are prohibited and must be instituted against the Road Accident Fund. Whilst that part of the legislation is understandable (namely statutory insurance), the concomitant abolishment of the plaintiff's common law right to sue the wrongdoer for any shortfall of compensation payable to a plaintiff, due to limitations imposed by statute, is absurd. Bizarre, further, is the proposed legislation that will give the wrongdoer the right to claim exactly the same compensation from the Road Accident Benefit Scheme, which is to be established. This is tantamount to rewarding a bad driver for the harm that he inflicts on others, because not only can he claim exactly the same compensation as the victims can, but they are statutorily prohibited from suing him for any shortfall in compensation due to them, because of statutory limitations. The legislature deems this legislation to be salutary. It remains to be seen whether the Constitutional Court agrees.

Similarly, claims arising from injuries sustained at the workplace, must be instituted against a statutory insurer, namely the Workmen's Compensation Fund.

We have limited capacity to assist claimants to institute claims against the current Road Accident Fund on a "no win-no fee basis" but only where the prospects on the merits under the present RAF Act, are reasonably good. Fees charged will be subject to the Contingency Act prescripts.

Further, because we are on the panel of a number insurers, we deal with claims by third parties against insureds for personal injury sustained.

The personal injury field is specialised and in severe cases, require the appointment of a number of medico-legal specialists. This is an extremely costly exercise.

We are also able to institute actions against insurers, where we do not have a conflict of interest, in instances where those insurers wrongfully refuse to indemnify their insureds who enjoy liability cover for incidents of this nature.

Construction Law

A "guarantee policy" means a contract in terms of which a person, other than a bank, in return for a premium, undertakes to provide policy benefits if an event, contemplated in the policy as a risk relating to the failure of a person to discharge an obligation, occurs; and includes a reinsurance policy in respect of such a policy.

Insurers provide guarantees in the construction field, relating to the performance of obligations under construction contracts. We give advice in this area including on:

The Building Contract and the JBCC Agreements

• Principal Building Agreement (PBA) Edition 6.2
• Minor Works Agreement (MWA)
• Nominated/Selected Subcontract Agreement (NSSA)
  • Interpretation
  • Insurances and securities
  • Execution
  • Completion
  • Payment
  • Suspension and termination
  • Dispute resolution
  • Agreements
    • PBA Contract Data
    • MWA Contract Data
    • JBCC® N/S Subcontract Agreement

Demand Guarantees in the Construction Industry

• The construction context
• Guarantees in general legal perspective
• Guarantees in the construction industry
• The abuse of, and other problems relating to, demand guarantees in the construction industry
• Documentary compliance, identity of the parties, and other defences based on the guarantee and its terms
• Negative stipulations in the underlying contract
• Recommendations and measures to counter abusive calls on demand guarantees in the construction context

Engineering Insurance

An "engineering policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event contemplated in the contract as a risk relating to-
(a) the possession, use or ownership of machinery or equipment, other than a motor vehicle, in the carrying on of a business;
(b) the erection of buildings or other structures or the undertaking of other works; or
(c) the installation of machinery or equipment,
occurs; and includes a reinsurance policy in respect of such a policy.

Engineering insurance products include cover for:

• Contractors all risk and public liability cover
• Machinery breakdown cover
• Deterioration of stock cover
• Dismantling transit and erection (D.T.E) insurance
• lant all risks
• Loss of profits cover
• Applied electronics cover
• Renewable Energy cover

We are on the panel of various insurance companies. On occasion, they instruct us to defend their insureds where they face liability claims for which they are indemnified under an engineering policy.

We are also able to institute actions against insurers, where we do not have a conflict of interest, in instances where those insurers refuse to indemnify their insureds who have valid claims under their engineering policy.