The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The applicant in this application sought for an order staying the execution of the
judgment of the court of appeal until the determination of the appeal to this court, and
that costs of the application be provided for.
In this case, the court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed.
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.
The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.
In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.
The court dismissed the appeal.
This case dealt with a claim for wages of a ship’s crew members for having been kept hostage by Somali pirates. This case illustrated the similarities between Indian and South African maritime law.
The crisp issue before this court was whether at the time of the second appellant’s arrest at the respondent’s instance, there existed a maritime lien for crew’s wages entitling the respondent to arrest the second appellant by way of an in rem arrest in terms of s 3(4)(a) of the Admiralty Jurisdiction Regulation Act. The court held that a maritime lien is a maritime claim that constitutes one of the bases upon which a claimant may found an action in rem. It also confers a certain preference in ranking of claims.
The court considered the two-pronged enquiry into the existence of a maritime lien, Firstly, on a prima facie basis, whether the respondent had established the existence and nature of the claims sought to be enforced in rem against the second appellant. Secondly, the court had to determine whether the respondent prima facie established claims which, by reason of their nature and character, were protected by maritime lien in South African law.
The court was satisfied that there was no obligation on the second appellant to pay crew’s wages as these payments. The court reasoned that there had been a supervening event that caused the fulfillment of the crew’s employment contracts impossible. Therefore, there was no claim for unpaid wages giving rise to a maritime lien enforceable by an action in rem. Accordingly, the court upheld the appeal and ordered that the deemed arrest be set aside.
The dispute related to dishonored cheques that were issued for payment of supplies. After several cheques were dishonored, the respondents went to the premises of the appellant to recover the remaining products. The trial court award general, special and nominal damages. However, the Court of Appeal reduced the general damages. They also held that nominal damages should not be awarded when there was a failure to prove special damages.
The court dealt with three issues relating to a potential error of law when the Court of Appeal substituted their judgment for that of the trial High Court, failure by the Court of Appeal to exercise their discretion judicially and issuing a judgment against the weight of evidence.
The Supreme Court held that the Court of Appeal could not set aside the trial High Court decision when there was no appeal against the relief granted by the High Court or challenge against the findings made. The Court of Appeal can only set aside aspects of the judgment that have been appeal against. The Court of Appeal can only reverse a trial court if the trial court made orders that were oppressive, excessive or contrary to the law.
The High Court gave a summary judgment in favour of a party relating to a declaration of title to a house, payment of accumulated rent and an order of ejection. The Court of Appeal overturned the judgment but invoked supervisory jurisdiction to make an order compelling issuing of land title to the interested party.
The court held that the interested party could not apply for the supervisory jurisdiction for a judgment that was overturned – and this was impermissible. A party is not permitted to undermine a decision of an appellate court overturning a decision of the trial court to apply for supervisory jurisdiction when the judgment to be supervised has been set aside. For these reasons the application to set aside the supervisory orders was set aside.
The applicant filed a motion before the Supreme Court in order to stay proceedings under the judgement of the appellate court pending final judgement by the Supreme Court.
With its limited jurisdiction, the court had to consider whether there were any proceedings that necessitated the staying of proceedings.
The court held that there were no such proceedings impending under the appellate court’s judgement that would warrant the staying of proceedings.
The court stated that ‘proceedings’ referred to lawful proceedings within the ambit of the rules and that such ‘proceedings’ were not evident in the application before the court.
The application was dismissed.
The application before the court concerns a multilayered application for summary judgement, an application for a writ to set aside consent judgement, an application to dismiss the writ and an application to the High Court to stay execution among others.
The court had to consider whether the High Court exceeded its jurisdiction (i) when it varied the ruling dismissing the 4th interested party’s application for the stay in execution pending the appeal, (ii) when it substituted the order to stay execution pending the appeal that had already been decided upon. Lastly, (iii) whether the High Court exceeded its jurisdiction regarding the 4th interested party for the suspension of the enforcement of consent judgement.
The court held that the application on the grounds (i) and (ii) be granted but dismissed the (iii) ground. The court went on to order a stay in execution pending determination before the appellate court. The court was of the view that the judges in the lower courts fell into an error of law and committed procedural irregularities.
The application was granted except on the 3rd ground, which was dismissed.
The applicant sought an order setting aside the judgement of the trial court due to a procedural flaw.
The court had to consider whether the trial court acted without jurisdiction when it struck out the application for a stay in proceedings.
The court held that the trial court, in not carrying out the required procedure when it struck out the application, acted without jurisdiction.
The court stated that the trial judge erred by allowing the respondent to make oral application and ought to have informed the respondent to file an application to relist the motion that was struck out. The court went on to say that it was settled practice that a formal application is required to restore motions that were previously struck out. As a result, the trial court, in deviating from settled practice acted without jurisdiction.
Consequently, the application for certiorari succeeds and the ruling of the trial court was quashed.
The respondent raised preliminary points against the application on the grounds that a valid and appropriate affidavit did not support the application according to the Civil Procedure Code, Cap 33 of the Revised Edition 2002 order XLIII rule 1. Further, that the application was incompetent for being omnibus.
The court considered whether wrongfully mentioning a person in the chamber of summons which has been sworn by another in support of the application is a fatal ailment. Further, whether the application is omnibus because it contained two applications, namely, for extension of time, if successful a stay of execution.
The court held that wrongfully mentioning a person in the chamber of summons in support of an application is trivial to warrant striking out the whole application. Further taking the course will be conforming to the spirit of the Constitution art 107A (2) (e). The court also held that the vision of the judiciary is to administer justice effectively. Therefore, it would not be inappropriate for courts of law to encourage a multiplicity of proceedings. More so, an application comprising of two or more applications which are interrelated is allowable at law.
The court found that striking out the application will amount to wasting of resources because the applicant would possibly come back later with the replacement of names in the application.
The court accordingly allowed the applicant to substitute the names in the chamber summons, rectify the names by hand with an initial beside the handwriting alteration.