Johan du Toit SC

Johan has been at the bar for more than 25 years, having been called to the South African Bar in 1984.  He is a highly regarded silk who has served on occasion as an Acting Judge in the High Court of South Africa.  In 2008, he joined the English Bar, bringing with him outstanding international experience, complementing the areas of expertise of chambers.

Johan has recently been instructed to advise ‘Lloyds Action Now' (an association of the shareholders of Lloyds TSB) on a potential claim against the directors of the Bank and HM Treasury.  It became clear early on that Johan had the ability to not only deal with financial matters of this nature and magnitude, but also to quickly grasp the essence of the issues under consideration.  In so doing, he was approached by another group of shareholders to lead a similar initiative against the directors of another well-known financial institution.

His superior international commercial, property and professional negligence experience has lead to his acting as lead counsel on contentious and commercially valuable cases.  Whilst financial/share disputes have recently been Johan's focus, he has a particularly strong following for advice in other general commercial/company matters.  Most recently, he has acted for or advised national and international companies in relation to various high value disputes whether in court or on arbitration.  Notable cases include Total SA (France) relating to fuel supply, Eskom (South Africa) (a regional electricity supplier) regarding ownership of a power station, Air Products (USA) on numerous occasions dealing with retail disputes and disputes with competitors, represented several oil companies in relation to franchise agreements and disputes, British American Tobacco (BAT) regarding a damages claim arising out of the illegal importation of cigarettes, as well as Alfa Laval (Sweden) in respect of enforcing restraint of trade agreements.  

Johan's diverse practice means that he is still instrumental in a wide variety of other areas of law, both at home in England and abroad, including stock exchanges and financial markets (frequently appearing on behalf of shareholders, partners and trustees and, notably, the South African Futures Exchange in both litigation and arbitration), complex arbitrations in respect of property and contractual matters as well as several mining law disputes with major environmental law implications.

featured cases 

Commercial (General)

Currently acting as lead counsel for Lloyds TSB shareholders ("Lloyds Action Now - LAN") in class action against directors of Lloyds TSB and HM Treasury for damages of approximately £14bn arising out of the acquisition of HBOS.

Acted for defendant in very high value defence of a claim arising from futures markets transactions.

Acted for British American Tobacco ("BAT" - listed on LSE) resisting high value claim by illegal counterfeit cigarette importer.

Acted for Total SA (France) in protracted litigation against franchise holder involving freezing orders and subsequent delivery claims and debatement of accounts.

Acted for Alfa Laval (Sweden) in enforcing restraint of trade clause against ex-employees.

Acted for International SOS, the world's largest provider of medical assistance, resisting a claim by the provider of a database linking members to SOS for roadside assistance.

Advised and appeared for largest franchisors in Africa, Metcash Ltd, on franchise agreement, security held and the recovery of debts.

Advising Novartis Pharmaceutical (Switzerland) and its predecessor Sandoz regarding several agreements with suppliers and/or end users.

Acted for a preference shareholder in successfully opposing winding up proceedings arising from Stock Exchange listing requirements.

Acted for a listed insurance company which sponsored an electronic National Golf handicapping system, successfully resisting a claim for substantial damages in contract by the developer of the software in lengthy arbitration.

Acted on behalf of estate of deceased shareholder in dispute regarding possession of rural property owned by company; question whether remaining shareholder was entitled to authorise the company to engage in litigation. Successful; also on appeal.

Acted for a successful bidder for very high value contract for the installation of ultra violet lighting in hospitals resisting claims for setting aside of the award of the tender.

In numerous matters for or against stockbrokers arising from stock exchange transactions.

For a developer of a housing estate in staving off payment to investors (and co-shareholders) in scheme.

On behalf of a company claiming that an agreement was made with a government agency for the supply of a database warehouse, claiming specific performance.

On behalf of a company and its majority shareholder in protracted litigation between the shareholder and the minority shareholder in dispute over a unique software programme.

In action between former husband and wife, one a TV sports commentator and the other a public figure, in dissolving partnerships and companies.

Advice and litigation in respect of several instances of oppression of minorities, usually on behalf of minority shareholders.

Several actions regarding the dissolution of partnerships of solicitors, medical practitioners, veterinary surgeons, commercial concerns and the like.

Many appearances for and against banks.

Commercial (Insurance)

Advised city solicitors on indemnity insurance and aggregation clauses; devised terms of client care letter protecting firm against personal liability arising from possible exposure to multiple claims where client is an unincorporated association without gain (multiple individuals) as opposed to an incorporated entity.

Acted on behalf for and against insurance companies in a variety of cases regarding the interpretation of the policies.

On the instructions of city firm advised extensively on indemnity insurance cover in respect of defendant solicitors, particularly aggregation clause.

On instructions of city firm advised Lloyds names on interpretation of policy
Middle junior work consisted predominantly on insurance based work.
Reported judgment on the issue of the payment of interest payable by insurer when delay in paying out benefit under life insurance.

Commercial (Supply, carriage and ownership of goods)
In major arbitration regarding the supply of defective baggage conveyors to International Airport.
For SASOL (South Africa) (multi-national oil-out-of-coal company) in dispute regarding rights to pipeline use for conveyance of fuel.
Advised large diamond retailer on several occasions regarding their business of buying diamonds from diggers and selling on; also pertaining to legality of diamond exports.
For a national electricity supplier regarding ownership of power station.
Advising Novartis Pharmaceutical (Switzerland) and predecessor Sandoz on several contracts with suppliers and/or end users and engaged in litigation regarding a contract to medical supplies to hospital (pending).
Trial on behalf of farmer arising from defective food supplied to livestock.
Acted on numerous occasions for Air Products, a US- based gas supply company, regarding disputes with retailers, as well as disputes with competitors. Ownership of gas canisters a particular issue.
Acted on several occasions for or against oil companies regarding retail outlet franchises; lease agreements and sale agreements in connection therewith.
Litigation regarding liability under insurance policy for damage to goods in transit overland - responsibility for securing freight on trucks in issue by virtue of the specific provisions of the policy.
A number of cases involving supply of defective vehicles, usually on behalf of defendant sellers.
Numerous sets of litigation regarding ownership of goods in general.

Professional Negligence
For several individual investors in futures products jointly in an arbitration against futures traders, claiming damages on the basis of misrepresentation/professional negligence, resulting in favourable settlements.
In arbitration claiming damages on behalf of investor who was misled by broker regarding nature of futures investment product.
For Pension Fund Trustees who are sought to be held liable for substantial damages on the basis of alleged professional negligence.
On behalf of claimants in several complicated lender claims against solicitors; against accountant and others who advised on investment in film schemes; against financial service provider; against solicitors who failed to register transfer of a portion of a property.

Product Liability and Group Actions
On behalf of the Lloyds TSB shareholders in a claim for damages against HM Treasury and directors of Lloyds TSB, arising from the acquisition of HBOS in late 2008.
Advised Novartis Pharmaceutical (Switzerland) on steps to be taken to avoid liability in the course of reduction of dose of medication.
On behalf of a farmer who suffered crop losses as a result of defective/incorrect pesticide prescribed - matter settled on trial.
Class action on behalf of the Gaming Association of South Africa on public law issues.
Class actions by virtue of Constitutional provisions in several matters on behalf of parents and/or school governors and/or teachers relating to public law issues.

Regulatory and Disciplinary
Advised association of Lloyds TSB shareholders regarding their constitution and settled related issues.
Advised London firm of solicitors on issues pertaining to its possible bankruptcy and the consequences of IVA's for partners and PVA for firm; position of salaried partner.
Advised South African energy regulator (NERSA) regarding interpretation of regulations under which they operate.
For two major futures market traders in protracted disciplinary proceedings brought by the Johannesburg Stock Exchange (JSE). Numerous charges. Challenged constitutionality of JSE rules regarding reverse onus provisions. Settlement arrived at and censure avoided; huge penalty paid.
For several individual investors jointly in futures products in an arbitration against futures traders, claiming damages on the basis of misrepresentation/professional negligence, resulting in favourable settlements.
In arbitration before JSE-appointed arbitrator claiming damages on behalf of investor who was misled regarding nature of futures investment product; involved expert evidence on the structuring and risks involved in positions taken in futures markets.
For Pension Fund Trustees who are sought to be held liable on the basis of alleged professional negligence for wrong investment choices.
Interceding on behalf of Futures Exchange in dispute between futures investor and trader brought in High Court to compel them to abide by the rules of the Exchange and have their dispute determined by arbitration.
For Futures Exchange opposing an appeal before statutory appeal tribunal after a trader was censured in disciplinary proceedings.
For stock exchange traders on several occasions claiming balances on account of carry trades; also twice on behalf of investors opposing such claims.
Advice to major financial institution regarding structuring of complicated futures product and risks involved.
On behalf of divers' financial service providers in appeals before appeals tribunal against the refusal of licenses to practice.
Acted for a University in disciplinary proceedings involving both students and lecturers.

Technology and Construction
On behalf of a company and its majority shareholder in protracted litigation between the shareholder and the minority shareholder regarding software programme.
In litigation regarding IT copyright.
Dispute on supply of check-in counters at International Airport.
On behalf of a clay miner whose pits became flooded due to negligence of adjacent local authority in unlawfully erecting structures directing flood water on to mine property. Part of the damages suffered had a bearing on the fact that the operation of kilns (used for baking clay products) adjoining the mine was seriously affected by the continued high water level in the mine and eventually collapsed. The reconstruction of the kilns in accordance with plans drawn in Italy circa 1950 was complicated by the lack of craftsmen able to construct kilns.
On behalf of an electrical contractor in claim against local authority for repairs to an electrical system.
For a company that supplied sub-contracting services to a contractor for the erection of a power station and another contract - disputes regarding execution contract and damages claimable in terms thereof.
Acted for insurer in dispute regarding road-building contract; issue of penalties levied specifically in issue.
For a landowner in arbitration before architect regarding construction of a nursery school.
For a landowner in action to remedy defects in domestic building due to failure to use the correct thickness of the under-slab membrane and the adequacy of foundation walls.
Advising a sub-contractor of rights in event of bankruptcy of contractor.

Mining, Safety and Environment
In ground-breaking trial for respondent where judicial interpretation given by Supreme Court of Appeal of the verb "mine" as found in the Minerals Act 1990, essentially in accordance with the submissions presented on behalf of the respondent.
On behalf of clay mine operator whose pits became flooded due to negligence of adjacent local authority in unlawfully erecting structures directing flood water onto mine property.
For a contractor in a claim against one of the oldest gold mines (ERPM) for compensation for the recovery of gold dust.
On behalf of indigent tribe for injunction against De Beers (the largest diamond miner in the world at that time).
Recovery of costs by riparian owners of cleaning the spillage of tar into river.
Successfully resisted claim by State Environmental Agency for closure of company manufacturing chemicals allegedly causing nuisance to neighbours in the form of offensive vapours.
Involved in several sets of litigation to set aside the award of prospecting and mining permits.

Local Government and Public Law
Major arbitration against local government arising from damages caused by unlawful structures erected by it - most aspects of municipal law and town planning covered.
For teachers and state school governing bodies in judicial review proceedings against governmental bodies in charge of education on more than 80 occasions, including several Supreme Court of Appeal and Constitutional Court judgments under legislation very similar to UK legislation. Several reported judgments. Virtually all matters dealt with limitation and demarcation of statutory powers of government bodies.
Advice on numerous occasions to state schools and governing bodies regarding statutory rights and obligations; control of property; the right of schools to use school property; ownership of state schools; rights to effect improvements to school buildings; admission criteria; discipline; appointment of teachers; constitutional rights as regards relationship with other organs of state.