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BEST LAWYERS 2026

Wed, 05 Nov 2025 09:32:16 GMT

ASG Lawyers honoured in The Best Lawyers in South Africa (2026).

The directors and team at Assheton-Smith Ginsberg Inc. (ASG) are proud to announce that two of our lawyers have been recognised in The Best Lawyers in South Africa (2026) — an accolade based entirely on peer review and widely regarded as one of the most respected honours in the legal profession.

Celebrating our recognised lawyers

Craig Assheton-Smith , Director, has once again been acknowledged for his excellence in both Litigation and Insolvency and Reorganization Law. This marks his 15th consecutive year being recognised for Litigation — a testament to his unwavering commitment to clients, his strategic approach to complex disputes, and his respected standing among peers.

Andrew Ginsberg, Director, has been recognised f or Arbitration and Mediation as well as Litigation , continuing a six-year streak of consecutive recognition in both categories. Andrew’s ability to navigate high-stakes disputes has earned him a reputation as a leading dispute resolution practitioner.

Recognition that reflects outstanding legal practice

Each year, Best Lawyers identifies the top legal talent across jurisdictions through an exhaustive peer-review process. Lawyers are nominated and evaluated by their professional peers, ensuring that recognition is based solely on the quality of legal practice and ethical standards — not submissions or sponsorships.

Learn more about the process at https://www.bestlawyers.com/article/legal-industry-secret-behind-best-lawyers/6602

This recognition reflects not only the individual achievements of Craig and Andrew, but also the collective strength of the ASG team. It is a reaffirmation of our continued focus on excellence, integrity, and client-centred service in every matter we undertake.

Continuing the tradition of excellence

At ASG, we view such recognition not as an endpoint, but as encouragement to continue setting the standard for litigation and dispute resolution in South Africa. We congratulate our colleagues on these well-deserved honours and thank our clients and peers for their ongoing trust and recognition.

"Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. More than four decades later, we proudly continue to serve as the most reliable, unbiased source of legal recognitions worldwide,"

says CEO Phillip Greer.

PROCEEDINGS IN SOUTH AFRICA LEAD TO PROCEEDINGS IN THE NETHERLANDS

Mon, 19 Feb 2024 14:13:30 GMT

Client Background:

Client Profile: Our Client, a Dutch Shipbuilder and his companies, owns and manages a shipyard as the second generation of the family that started the shipyard. The shipyard is one of the oldest shipyards in the Netherlands. The business, situated in Sliedrecht in the southwest of Holland, began as a small shipyard offering general repairs and maintenance services to various shipping companies and has expanded to a large shipyard over 90 years with two floating docks and offering in addition to repairs and maintenance, conversion, construction, and design of new parts for ships.

Challenges Faced: In mid-2009, 12 barges, a pontoon and two halves of floating dock that the Dutch Shipbuilder and his companies had ordered the construction of in China, were stranded at JacobsBaai on the West Coast of South Africa and were lost. This loss arose from the tugboat operator and owner’s negligence in towing these items from China to Rotterdam.

The Dutch Shipbuilder had arranged financing from his bank for the purchase of these items. His bank assisted him with the negotiation of the contracts for the construction, the arrangement of insurance, as well as the final arrangements for the towing of the constructed items from China to Rotterdam, representing themselves as experts in doing so.

The Dutch Shipbuilder completely trusted his bank with whom he had a relationship for numerous years.

Given the bank’s failure to inter alia put proper insurance in place, a settlement agreement was then concluded between the Dutch Shipbuilder and his companies, and his bank, following the calamity, in which the bank agreed to assist him in pursuing an action in South Africa against the tug-boat operator and owner to recover the loss.

The key component of the items constructed was the two halves of a floating dock, which was destined to be moored and operated in Sliedrecht Holland to expand the operations of the shipyard, which was fully supported by the local, regional and state authorities.

Action was instituted against the tugboat operator and owner for damages in an amount of €42 million, which included a claim for loss of profits suffered from the loss of the two halves of the floating dock.

By the beginning of 2015, some 6 years later, the attorneys who had been appointed by the Dutch Shipbuilder had not progressed the action to a point where it was ready to go to trial.

ASG was approached by the Dutch Shipbuilder to take over the case from the existing attorneys. ASG took over the case in May 2015, and the action was settled in September 2016.

The Problem:

Legal Issues: What did not form part of the settlement was the loss of profit claim in respect of the two halves of the floating dock as the bank refused to assist the Dutch Shipbuilder in providing evidence that he had applied for finance to order a replacement of the two halves of the floating dock to mitigate his loss.

However, the Dutch Shipbuilder had indeed done so and, as such, the bank’s refusal to assist him breached its obligation to do so in terms of the settlement agreement and its duty of care as banker to its customer in terms of the Dutch laws.

In 2017, on advice from ASG the Dutch Shipbuilder agreed to pursue his bank for damages arising from their breach of the settlement agreement in the Dutch Courts.

ASG was instructed to formulate the claim and work with Dutch advocates to do so. The amount claimed from the bankers was €10,609,527 alternatively, €6,293,046. The Dutch Shipbuilder’s bankers raised a counterclaim of €2.75 million plus interest and costs claiming that it was entitled to be paid this amount in terms of the settlement agreement it had concluded with the Dutch Shipbuilder and his companies.

In 2018, the Dutch Shipbuilder and his companies were ordered to pay €2.75 million plus interest and costs in terms of judgments of the Central Netherland District Court Utrecht.

Impact: The many years of legal proceedings in South Africa, without support from the bank who had undertaken to provide the financial support for the proceedings, had taken a major toll on the Dutch Shipbuilder both financially and personally.

The Dutch Shipbuilder, now diagnosed with cancer, and his wife who had supported much of his legal costs financially, were determined that ASG should appeal the judgment to preserve what little relief to their financial loss the settlement in the tugboat operator case in South Africa had brought.

Our Approach:

Strategic Analysis: ASG knew that to win an appeal, they would need one of the senior employees of the bank to confirm that there was an agreement by the bank to fund the litigation in South Africa to recover the cost and loss of income incurred by the shipyard from the tugboat owner.

Solution: Through thorough investigation and unearthing vital correspondence, it was discovered that a former senior employee of the bank that had been approached previously to provide a witness statement, was willing to do so, as the Dutch shipbuilder had in fact approached him to seek financing to procure a replacement floating dock. He had been prepared to provide a witness statement previously, but had been forbidden by the bank to do so.

Execution:

Legal Actions Taken: Subsequently in 2018 notification was given of an appeal being raised. This was followed by witness hearings in November 2019 and in January 2020. The evidence given by witnesses at the witness hearings provided vital evidence to establish that the bank had indeed prevented evidence being provided with regard to the assistance for the Dutch shipbuilder in the South African proceedings, and that the bank had also lied to the court in Utrecht.

Pleadings were then filed in the appeal to deal with the merits of the appeal and not the quantum of the claim.

Results Achieved:

At the hearing, the judges of appeal expressed their disapproval of the way in which the bank had conducted itself and suggested the parties attempt to reach a settlement.

A settlement agreement was concluded in terms of which the bank agreed to waive its claim against the Dutch Shipbuilder and his companies in full and final settlement.

Sadly, the Dutch Shipbuilder had passed away before the outcome of the appeal. May he rest in peace as he was much loved by all who came across him.

REPRESENTING JOINT CURATORS OF A PENSION FUND IN THE GAUTENG HIGH COURT

Mon, 19 Feb 2024 12:52:44 GMT

Client Background:

Client Profile: Our client, a senior attorney who is very experienced in curatorship of Pension Funds and the various acts that impact the administration of pension funds, was appointed as the provisional curator of a pension fund in December 2010.

The Fund was placed in provisional curatorship following an investigation by the Financial Services Board given irregularities in the conduct of the business and affairs of the Fund by its trustees and improper use of the Fund’s monies.

The provisional order, granted on 21 December 2010, provided for the former trustees of the Fund to pay the costs of the curatorship, and appointed a provisional curator to administer and investigate the affairs of the Fund.

Challenges Faced: After the provisional order was granted, the former trustees of the Fund resigned, and newly appointed trustees brought a counter application to seek the removal of the provisional curator on the basis that he was conflicted.

They, however, did not oppose the necessity of the Fund being placed under curatorship, and nominated persons not experienced in pension fund administration to be appointed as curators of the Fund.

During the proceedings, it was found by the High Court that the newly appointed trustees had brought the counter-application at the behest of the former Chairman of the Fund that had always controlled the affairs of the Fund prior to it being placed into provisional curatorship.

The High Court in Johannesburg granted an order placing the fund into final curatorship, confirming the final appointment of the provisional curator as the curator (our client), and confirming that the former trustees of the Fund were obliged to pay the costs of the curatorship.

The Problem:

This judgement was then taken on appeal to the Supreme Court of Appeal where the final appointment of the curator was hotly contested. At the hearing, the parties agreed to an order that two curators be appointed together with the original curator appointed by the High Court, and that all issues of costs were referred to determination by the High Court afresh.

The above process took some seven years at substantial cost to the Fund and its members.

Our Approach:

Even though the Financial Services Board was the applicant in the original application to place the Fund into curatorship, it had not taken steps to set the matter down in the High Court for the issue of costs to be determined as per the order of the Supreme Court of Appeal.

These included the curatorship costs already awarded by the High Court, but which had been referred for determination by the High Court afresh by the Supreme Court of Appeal.

On advice from ASG, the curators of the Fund instructed ASG to set down a determination of the costs in the High Court in 2021, including the curatorship costs, which at that stage was some R45 million.

Execution:

The Judge allocated to the matter raised at the first hearing the question whether the issue of costs was not to be determined by the Supreme Court of Appeal.

The Supreme Court of Appeal then subsequently stated the obvious - that it had referred the issue of costs to the High Court to determine the same afresh.

Rather unfortunately, thereafter, the Judge postponed the matter and called for a report from the curators on the costs. Despite having postponed the hearing yet again, the Judge subsequently in the further hearing, confirmed his error in requesting such a report from the curators which was not at all relevant to the determination of the matter.

On 19 May 2023 the High Court confirmed that the former trustees of the Fund are obliged to pay all the costs of the curatorship, which at the time of the final hearing amounts to in excess of R60 million, primarily arising from extensive litigation that has arisen at the hand of the former Chairman of the board of trustees of the Fund, who plundered the Fund for his own benefit prior to the Fund being placed in curatorship.

The judgment of the High Court is currently the subject matter of applications for leave to appeal which have not yet been heard.

BEST LAWYERS 2024

Wed, 13 Dec 2023 15:08:15 GMT

Two lawyers at the boutique commercial and litigation firm, Assheton-Smith Ginsberg Inc, have yet again received recognition by being included in the 2024 edition of the Best Lawyers in South Africa™.

Best Lawyers is respected by the profession, media, and the public as a reliable unbiased source of legal referrals. With lists in more than 75 countries, it is universally regarded as the definitive guide to legal excellence.

Assheton-Smith Ginsberg Inc. is therefore pleased that two of its lawyers have been named consistently in the publication for several years now. In relation to their expertise in litigation, Craig Assheton-Smith has been included on the list since 2011 and Andrew Ginsberg since 2019. For the first time, in 2023, Andrew Ginsberg was also named to the arbitration and mediation listing. The firm has established a solid reputation over the past 12 years, delivering litigation and commercial services in highly complex voluminous matters for corporate clients and small and medium businesses.

Lawyers on The Best Lawyers in South Africa list are divided by geographical region and practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to make sure they are in current practice and good standing.

For 2024, the two Assheton-Smith Ginsberg Inc. lawyers were acknowledged as follows:

Craig Assheton-Smith – Litigation

Andrew Ginsberg – Arbitration and Mediation and Litigation

About Assheton-Smith Ginsberg Inc.

ASG is a boutique commercial and litigation firm. Its attorneys are dedicated to successfully resolving clients’ commercial objective and disputes. They serve clients diligently with integrity and vision; clearly focused on finding solutions to resolve their legal disputes and helping them achieve success in their commercial and property transactions.

The firm leaves nothing to chance when building successful strategies for its clients. Exercised with precision and combines with formidable relationships with Counsel, Correspondents and the Court Community the hands-on litigation tactics of its attorneys ensure impeccable service delivery to clients across a vast range of economic sectors and legal disputes. Assheton-Smith Ginsberg Inc. proudly offers the full array of corporate and commercial, dispute resolution, insolvency and business rescue, maritime, property and notarial legal services.

The attorneys really listen to the clients, and by listening, understand their client’s businesses and strategies. If required, they research the commercial exigencies that clients face and align this accumulated intelligence with the law. Only then do they undertake to offer legal advice and strategic direction in achieving their commercial objectives.

About Best Lawyers

Best Lawyers is the oldest and most respected lawyer ranking service in the world. For more than 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialities. These awards are published in leading local, regional, and national publications across the globe.

"Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. More than four decades later, we proudly continue to serve as the most reliable, unbiased source of legal recognitions worldwide,"

says CEO Phillip Greer.

BEST LAWYERS 2023

Wed, 01 Feb 2023 07:19:08 GMT

Assheton-Smith Ginsberg Inc. is pleased to announce that two lawyers have been included in the 2023 edition of The Best Lawyers in South Africa™. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Best Lawyers has published their list for more than four decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in more than 75 countries.

"Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. More than four decades later, we proudly continue to serve as the most reliable, unbiased source of legal recognitions worldwide," says CEO Phillip Greer.

Lawyers on The Best Lawyers in South Africa list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to make sure they are in current practice and in good standing.

Assheton-Smith Ginsberg Inc. would like to congratulate the following lawyers named in the 2023 Best Lawyers in South Africa list:

Craig Assheton-Smith - Litigation
Andrew Ginsberg - Arbitration and Mediation and Litigation

It is not the first time these well-respected lawyers received recognition from Best Lawyers. Craig Assheton-Smith has been included on the list since 2011 and Andrew Ginsberg since 2019. The firm has established a solid reputation over the past 10 years, delivering excellent litigation and commercial services in highly complex voluminous matters for corporate clients and small and medium businesses.

About Assheton-Smith Ginsberg Inc.

ASG is a boutique commercial and litigation firm. Our attorneys are dedicated to successfully resolving our clients' commercial objectives and disputes. We serve our clients diligently with integrity and vision; clearly focused on finding solutions to resolve their legal disputes and on helping them achieve success in their commercial and property transactions.

We leave nothing to chance when building successful strategies for our clients. Exercised with precision and combined with our formidable relationships with Counsel, Correspondents and the Court Community, the hands-on litigation tactics of our attorneys ensure impeccable service delivery to clients across a vast range of economic sectors and legal disputes. Assheton-Smith Ginsberg incorporated proudly offers the full array of corporate and commercial, dispute resolution, insolvency and business rescue, maritime, property and notarial legal services. We listen. By listening we understand our clients’ businesses and strategies. If required, we research the commercial exigencies that our clients face. We align this accumulated intelligence with the law. Only then do we undertake to offer legal advice and strategic direction in achieving their commercial objectives.

About Best Lawyers

Best Lawyers is the oldest and most respected lawyer ranking service in the world. For more than 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers awards are published in leading local, regional, and national publications across the globe.

"Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. More than four decades later, we proudly continue to serve as the most reliable, unbiased source of legal recognitions worldwide,"

says CEO Phillip Greer.

BEST LAWYERS 2021

Sun, 01 Nov 2020 10:26:14 GMT

The annual Best Lawyers® South Africa Edition were announced publicly today. Our congratulations to all our colleagues in the profession that were awarded Best Lawyer 2021, and especially to Craig and Andrew of Assheton-Smith Ginsberg Incorporated in the category Litigation.

Craig has been nominated and awarded Best Lawyer in the field of litigation every year from 2011 to date, Andrew also being awarded Best Lawyer in the field of litigation for the past two years.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world.

COVID19 AND BUSINESS INTERRUPTION, THE DEBATE RAGES ON

Sun, 01 Nov 2020 07:19:08 GMT

One of the most hotly debated issues in the short term insurance world at present, is the nature and extent of an insured’s cover under what are termed Infectious or Notifiable Disease extensions in certain indemnity insurance policies (the standard all risk policy that most businesses have in place). There have been at least three matters that have come or are currently being considered by our Courts regarding various Insurer’s liability under and in terms of these extensions. The first of these matters to be determined, which was ruled upon by the Western Cape High Court (per Le Grange J) in Cafe Chameleon CC v Guardrisk Insurance Co Limited is set to be heard on appeal by a full bench of the Supreme Court of Appeal on 23 November 2020. There are at least two other matters, yet undecided, which are currently before full benches of the High Court.

The provision in question, relates to the business interruption section of the policy which is voluntary cover obtained to protect an insured against the business having to temporarily cease operation. In ordinary claims, such as those caused by fire for instance, an insured who has taken business interruption cover, would be covered against the physical damage caused by the fire itself as well as the business’s loss of profit for the period during which the business was forced to close whilst repairs were completed.

Enter the novel coronavirus (SARS-CoV-2) and the path of destruction it has and continues to leave in its wake. National lock downs have been imposed globally including in South Africa restricting, and in most cases completely prohibiting, the operation of businesses deemed to be ‘non-essential’, imposing travel bans stifling the hospitality and tourism industry; and forcing restaurants, even under level 3 of Government’s risk adjusted strategy, to remain closed other than for delivery or take-away. Even under level 1, these businesses are required to operate at less than capacity with strict safety protocols being imposed.

As a proprietor or shareholder of one of these businesses, one would not have been remiss in breathing a deep sigh of relief at reading that you are covered for interruption to your business caused by infectious disease, invariably assuming that interruptions caused by Covid-19, an infectious disease determined to be notifiable by the National Institute for Communicable Diseases, would be covered.

Unfortunately, as with most insurance cover, it is not quite as simple as that. Insurance companies are being faced with a flood of claims due to a risk that has not been seen on this scale for more than 100 years. A number of significant questions have been begged worldwide as to what duty insurers have to their clients to step up and assist, particularly when many of these clients face the stark reality of having to close their doors with the attendant impact, that this would have on the surrounding communities who rely on these companies for employment. Ironically, standard business interruption clauses usually exclude any cover should the insured be placed into liquidation. An irony which is likely not to be much appreciated by those facing the decision of throwing in the towel or waiting for a binding determination on the issue.

On the other hand, the response from almost all (barring one or two Insurer), has predictably but quite unfortunately been a slew of very narrowly interpreted opinions which unsurprisingly have concluded that they are not liable in terms of the infectious disease clauses for the majority of disruptions caused by COVID19. Whilst the precise wording of the clause will be critical in interpreting the extent of cover, the four most prevalent defences to such claims, are: (1) the infectious disease clauses do not cover global pandemics but only localized outbreaks (despite no such express differentiation being made in the wording), based on the prevalence of words such as “an outbreak of which the competent local authority has stipulated shall be notified to them” , the argument being that if a global pandemic were envisaged the words would not be limited to a local authority; (2) it is not the virus that has caused the loss but the lockdown which is a risk not covered under the policy; (3) that if the business had to close because there was an outbreak within a defined radius, it had to be that specific incidence which caused the closure rather than a closure due to the general prevalence of the infection; and (4) Covid19 is not an identifiable disease as contemplated by the definition of same contained in the policy wording. The definition that appears in at least two similar policies is “Notifiable Disease shall mean illness sustained by any person resulting from any human infectious or human contagious disease an outbreak of which the competent local authority has stipulated shall be notified to them excluding Acquired Immune Deficiency Syndrome (AIDS) or an AIDS related condition”. Needless to say, it is difficult to engage with these arguments without at least some cynicism.

The retort by one hotel group, supported by a team of arguably the finest legal minds in the Country, is that the particular insurer’s reliance on the abovementioned arguments are entirely indefensible, a view that seems to have been independently echoed by the Court in Café Chameleon and by Lord Justice Flaux and Mr Justice Butcher in a recent decision of the British High Court of Justice (Queens Bench).

Many believe that insurer’s attempts to hide behind restrictive and narrow interpretations of these clauses is aimed at avoiding large scale payments rather than an earnest belief that the clause was not intended to cover Covid19 as a global pandemic. It is indeed unfortunate that insurers guided by their reinsurers have elected to hide behind narrow contractual interpretations rather than meaningfully contributing to the relief effort at a time when their financial strength is most desperately needed by their loyal customers.

Whilst it must be said that certain insurers have offered relief in the form of ex gratia payments pending the final determination of the issue by the Courts, many see this as an attempt to save face under steadily mounting pressure from the public and private sector rather than a genuine attempt to assist.

Perhaps now is the time for some introspection for the industry as a whole which rather than taking up the cudgel, seems to have adopted a far less magnanimous position. Whether this position is ultimately justifiable, will in all likelihood be a decision for the apex court in due course. This will however be cold comfort to the lodges, game reserves and hotels that are battling to keep their staff employed and their doors open.

INHERITANCE SCAM ABUSING THE CREDENTIALS OF OUR FIRM

Mon, 01 Jun 2020 10:43:10 GMT

We have been made aware of an inheritance scam which uses the credentials of our firm.

The scam was in the form of an email sent from a Hector Belt of Belt LLP Attorneys using the email domain name “beltllp.com”.

The person who received the email, suspecting it was a scam, navigated to the beltllp.com website which had our contact details thereon. After further researching “Assheton-Smith Ginsberg Incorporated”, our official website was found whereupon the person realised “our good name” was being abused.

The site can subsequently no longer be reached.

It also appears from research that we have done that other South African law firms contact details have been abused in a similar scam, as have many law firms in Australia and the United States.

Please be aware of scams such as these. Our firm cannot be held responsible for our contact details being fraudulently used, and you would be well advised to check any and all credentials whenever receiving unsolicited correspondence purporting to offer you a benefit of any kind. Unfortunately, the vast majority of such correspondence is not bona fide and is usually a scam.

We will never ask you to make payment into a different banking account over e-mail and will not notify any client of a change in our banking details over e-mail.

Image by mohamed Hassan from Pixabay

COVID19 AND YOUR BUSINESS INTERRUPTION INSURANCE: ARE YOU COVERED UNDER THE INFECTIOUS DISEASE EXTENSION

Mon, 01 Jun 2020 07:19:08 GMT

One of the most hotly debated issues in the short term insurance world at present, is the nature and extent of an insured’s cover under what are termed Infectious or Notifiable Disease extensions in certain indemnity insurance policies (the standard all risk policy that most businesses have in place).

The particular provision relates to the business interruption section of the policy which is voluntary cover obtained to protect an insured against the business having to temporarily cease operation.

In ordinary claims, such as those caused by fire for instance, an insured who has taken business interruption cover, would be covered against the damage caused by the fire itself as well as the business’s loss of gross profit for the period during which the business was forced to close whilst repairs were completed.

Enter the novel coronavirus and the path of destruction it has and continues to leave in its wake. National lock down has been imposed restricting, and in most cases completely prohibiting, the operation of businesses deemed to be ‘non-essential’, imposing travel bans stifling the hospitality and tourism industry; and forcing restaurants, even under level 3 of Government’s risk adjusted strategy, to remain closed other than for delivery or take-away.

One would not be remiss in breathing a deep sigh of relief at reading that you are covered for interruption to your business caused by infectious disease invariably assuming that interruptions caused by coronavirus, an infectious disease determined to be notifiable by the National Institute for Communicable Diseases, would be covered.

Unfortunately, as with most insurance cover, its not quite as simple as that. Insurance companies are being faced with a flood of claims due to a risk that has not been seen on this scale for more than 100 years. It seems clear that no one, not even the insurance companies (or their reinsurers) could have predicted the effect a pandemic on this scale would have had and what paying out on such a large scale would do to their business.

The response, predictably, has thus unfortunately been a slew of very narrowly interpreted opinions from insurers which unsurprisingly have concluded that they are not liable in terms of the infectious disease clauses for the majority of disruptions caused by COVID19.

Whilst the precise wording of the clause will be critical in interpreting the extent of cover, the three most prevalent defences raised are

the infectious disease clauses do not cover global pandemics but only localized outbreaks (despite no such express differentiation being made in the wording), based on the prevalence of words such as “an outbreak of which the competent local authority has stipulated shall be notified to them”, the argument being that if a global pandemic were envisaged the words would not be limited to a local authority;
it is not the virus that has caused the loss but the lockdown which is a risk not covered under the policy; and
that if the business had to close because there was an outbreak within a defined radius, it had to be that specific incidence which caused the closure rather than a closure due to the general prevalence of the infection.

One thing is for certain, it is always advisable to take advice rather than accepting that you are not covered.

COVID-19 - LOCKED DOWN: DOES YOUR BUSINESS NEED OUR HELP?

Sun, 01 Mar 2020 11:00:00 GMT

As knowledge workers, we regularly deal with a number of national and international disputes in a variety of jurisdictions. We are fortunate that, as a firm, we have consciously adopted a tech forward business strategy and have thus been using technology to work remotely for several years. Adapting to our unprecedented State imposed lock down, at least from a business and workflow perspective, has made little difference to our productivity.

Whilst the firm has been business as usual, being locked down and not able to catch up with clients or friends has been challenging. These social gaps have been filled catching up in creative ways online via Zoom or Skype and always trying to uplift spirits with laughter and good cheer, not to forget the immense fear and sadness that this pandemic instills, but to ensure that we do not allow ourselves to become overwhelmed by its sheer magnitude.

Although the South African courts are open, only prioritized matters under the COVID-19 regulations are being heard. This does not detract from the fact that many businesses need sound advice and guidance at this difficult time.

We can help – from providing comprehensive legal opinions needed by large and small businesses to contractual defaults, and everything in between, we will assist you navigate through this crisis and beyond. Call us now on +27 21 424 7390.

PUBLIC POLICY AND THE IMPECUNIOUS INSURED

Fri, 01 Feb 2019 11:06:17 GMT

The Western Cape High Court handed down judgment on 14 February 2019 in the matter of Watson & Another v Renasa Insurance Co Limited .

The judgment dealt in part with the application of what has come to be known as the Reinstatement Value Conditions (“RVC”) clause, a common clause in many contemporary indemnity insurance policies (most notably, the Multimark III policy wording). This clause should not be confused with the Insurer’s right to reinstate (usually found in the general conditions to the policy) which affords the insurer the right to elect to either reinstate the property or effect payment in lieu thereof.

The RVC clause affords the insured the election to be paid the cost of reinstating or repairing the damaged property with new property rather than accepting an indemnity payment calculated as being what it would have cost the insured to purchase similar used property immediately before the damage. The reinstatement value is often substantially higher than the indemnity value however, the RVC clause has a number of provisos including, the proviso that the work of reinstatement or repair “… must be commenced and carried out with reasonable dispatch, otherwise no payment, beyond the amount which would have been payable if these reinstatement value conditions had not been incorporated herein, shall be made ” as well as the proviso that “ until expenditure has been incurred by the insured in replacing and reinstating the property, the company shall not be liable for any payment in excess of the amount which would have been payable if these conditions had not been incorporated herein” .

In the Watson matter, the argument arose before the Court that these provisos envisage that expensive print finishing machinery and premises needed to be secured by Mr Watson and monies expended thereon before he would be entitled to rely on the RVC clause. It was argued on behalf of Mr Watson, that he did not have the financial wherewithal, as a result of the delay caused by the insurer to do so and that it could not be expected of an impecunious insured to have to do so, without any undertaking from the insurer that payment would be forthcoming.

The Court stated “ Clauses of this nature can give rise to difficulty and are open to potential abuse by an insurer who is less than bona fide. If no payment is made by an insurer at all, it places an impecunious (or relatively impecunious) claimant at a severe disadvantage when compared to similarly-placed insured parties, who are possessed of greater means. Such an impecunious insured would be required not merely to evidence a sincere intention to replace or reinstate the destroyed or damaged property, but would further be required to do so, absent any firm commitment by the insurer that it accepts liability for the resultant costs ”.

Following the judgment in Grand Central Airport (Pty) Ltd v AIG South Africa Ltd the Court found that, in the context of the insurers argument that it should be the person that manages the insured’s reinstatement by being entitled to determine payment once and if compliance by the insured with the RVC clause has, in it’s view, taken place, the Court said “ To interpret these words as sanctioning the defendant’s conduct is a bridge too far. To my mind, it would offend against the legal convictions of the community to find that, in the present case, the defendant insurer should nonetheless be permitted to effectively slash the extent of its payment liability after having withheld the performance of its own indemnity payment obligation under the policy ”.

Andrew Ginsberg of Assheton-Smith Ginsberg Inc., Mr Watson’s attorneys stated that “ this judgment should serve as a word of caution to insurers when the RVC clause is invoked by relatively impecunious insureds. If there is no argument as to liability, this judgment seems to be precedent that, at the very least, the indemnity value should be paid which will give the insured the necessary capital to commence reinstatement” .

IT WAS DARG’S DAY FOR MANDELA

Sun, 01 Jul 2018 11:21:52 GMT

Team Assheton-Smith’s hard bitten animal lovers won out in the choice of how to give back for Mandela day and we spent our 67 minutes for Mandela on 18 July 2015 working for the Domestic Animal Rescue Group (DARG).

Everyone buckled down to making treats and toys for the animals at DARG. Assheton-Smith Incorporated represents the Court appointed facilitator for DARG which has entailed a number of court applications which are ongoing, brought in order to clarify DARG’s legal rights to continue to occupy the land upon which it operates and in order to recover funds that were unaccounted for.

It was our pleasure to once more help with the fantastic work the facilitator and his team are doing to not only put things right at DARG but to amplify and preserve an amazing organisation that really does make an enormous difference to abused, abandoned and diseased animals, restoring them and finding good homes for them.

LEADERSHIP AND DEVELOPMENT CONFERENCE FEBRUARY 2015

Thu, 05 Feb 2015 05:52:42 GMT

As an ongoing part of our growth and development, Team Assheton-Smith gathered in Riebeeck Kasteel in early February 2015 to share ideas and workshop team processes, facilitated by the Yellowbaobab Institute of Leadership. Everyone was highly inspired and a lot of fun was had by all finding out how we all fit together and how to harness our strengths and mitigate our weaknesses. At the end of the weekend we celebrated the new Assheton-Smith Incorporated’s third birthday in style!

BEST LAWYERS 2015

Wed, 01 Oct 2014 11:08:20 GMT

Craig Assheton-Smith was once again selected to be listed on the Best Lawyers awards for 2015 in the specialist category Litigation. Craig has received nominations and selections from various independent bodies such as Chambers and Partners, Legal 500 and Best Lawyers over the past decade, ranking him among not only South Africa’s top legal minds but also in the world. The attached article on Craig was published in the Business Day on 30 October 2014 together with the announcement of the awards.

BEST LAWYERS 2014

Tue, 01 Oct 2013 11:24:45 GMT

Best Lawyers have once again selected Craig Assheton-Smith for their 2014 awards which were announced in the Business Day on 23 October 2013.

ASSHETON-SMITH INCORPORATED IN CAPE TIMES 18 JULY 2013

Mon, 01 Jul 2013 11:41:41 GMT

1Mobile paid the rent, wife tells liquidators

Excerpt: “…The liquidator’s attorney, Craig Assheton-Smith, said Ernst has served a prison sentence after being found quilty of fraud in the MasterBond case in the 1990s…”

ASSHETON-SMITH INCORPORATED IN DIE BURGER 27 JUNE 2013

Sat, 01 Jun 2013 11:45:43 GMT

Masterbond-man erken dat hy al weer bedrieg

Translation:

Masterbond man once again admits that he committed fraud

Yesterday one of the masterminds behind the Masterbond case admitted to committing fraud and not paying tax.

Yesterday, Ernst Coetzee appeared in the Stellenbosch Civil Court where there was an enquiry held in relation to the affairs of 1Mobile.

The Company, 1 Mobile, which was registered under the name of Red Sunset Trading 14 (Pty) Ltd, was liquidated in October 2012.

Coetzee, who served a prison sentence after being found guilty of fraud in the Masterbond case in the 1990’s, was sequestrated. He was one of the managers of 1Mobile. A total of 94 investors invested money with 1Mobile for the purchasing of cellphone terminals which one would be able to purchase airtime from.

The concept of the Company was that the investors would pay R6000.00 per terminal which terminal would be installed, managed and maintained by 1Mobile.

1Mobile promised a return of 40% per year (on the R6000.00), if an investor was to conclude a joint venture agreement with 1Mobile, such investor would be able to earn 50% on the turnover which the investor’s terminal would generate.

The terminal is a small machine, just bigger than a regular office telephone landline, which can be installed in any shop where airtime for a cellphone can be purchased.

According to court documents approximately R84 000 000.00 flowed through the Company’s bank statements.

According to Ryno Engelbrecht, the liquidator of the Company, it still remains to be determined exactly how much money investors lost, since the forensic audit has not yet been completed.

Shortly after Red Sunset Trading 14 was liquidated, a handful of investors requested that an enquiry be conducted into the affairs of the Company.

Attorney Craig Assheton-Smith, who conducted the enquiry, put various aspects of the venture to Coetzee. He wanted to know, inter alia, about Dirk Joubert a director of 1Mobile, and if he was aware that the Company financed various payments of a personal nature to Mr Coetzee. Such payments included payments in relation to Coetzee’s wife- and son’s motor vehicles, their cell phone contracts, DSTV and groceries. Coetzee advised that Joubert had been aware of this.

Assheton-Smith further examined Coetzee as to if he ever paid any tax on the aforesaid payments.

“No”, Coetzee answered. He further admitted that the Company also paid for the rental; of a farm near Franschoek (were Coetzee and his family lived) but that these payments were in arrears because of the fact that the Company went into liquidation.

“The landlord had to get an eviction order to remove you from the premises because you did not want to move”, Assheton-Smith said. Coetzee admitted same.

Finally Assheton-Smith questioned him if any of the promises made to one of the investors, Theo Oosthysen, were fulfilled by the Company. Coetzee admitted that not all the monies Oosthyzen had invested were allocated to buying terminals.

SUCCESS IN SUPREME COURT APPEAL

Thu, 28 Feb 2013 05:44:17 GMT

The Supreme Court of Appeal recently dismissed an appeal that was brought in respect of a judgment of Rabie J in the High Court, Pretoria.

The judgment of Rabie J dismissed an application brought against Senwesbel Limited and Senwes Limited by the Treacle Fund II Trust to set aside certain share transactions.

Craig Assheton-Smith said, “The success in this matter is attributable to attention to detail, sound knowledge of the legal principles and hard work by all members of the legal team. The judgments by Rabie J and by the Supreme Court of Appeal are well reasoned and based upon well-established legal principles.”

The judgment can be viewed by following this link:

http://www.saflii.org/za/cases/ZASCA/2013/35.html