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 court was confronted with a question of liability for undelivered goods by the driver of a haulage company contracted by the plaintiff. The meat of the enquiry focused on the issue of the effect of a failure to sign the delivery note on bailment. Having assessed the understanding and intentions of the parties the court reasoned delivery occurred at the moment of loading by the supplier, upon which liability passed to the carrier. The issue of the signing of the note or lack of by the driver thus bore no significance on the question of liability. Only sufficient reasons for failure to adduce the signature and evidence of collusive fraud by defendant would commute the carrier’s responsibility. Consequently, a claim of contributory negligence could not stand once loading had been made by the supplier as they did not have an express duty of care to ensure signing of the notes. Moreover, the mere loading was in itself delivery thus the plaintiff failed to demonstrate negligence.
Finally, the court dealt with the question of whether a contract actually existed between the parties as this had an effect on surcharges deducted by the defendant. The court found that given the nature of the contracts involved, the defendant had no contractual relationship with the plaintiff and therefore could not sue on the surcharge agreement as they were not party to the contract made for their benefit.
The court thus dismissed the appeal.
In 1998 the appellant filed a suit against the respondent, to which the responded reacted with a counter-claim. The appellant’s claim was withdrawn in 2006 but the respondent’s counter-claim was not. The trial judge ruled in favour of the respondent. The appellants were dissatisfied with the decision and filed an appeal.
The Court of Appeal considered whether the burden of proof of fraud alleged in the counter-suit rested on the appellants. The court held that the burden of proof rests on the party who alleges that fraud was committed. In this case, the appellants had withdrawn their case against the respondent and only the respondent’s counter-claim remained. Consequently, the court upheld the appellant’s complaint and placed the burden to prove that fraud was committed on the respondent.
The court then considered whether the lease of the suit property to the first appellant was fraudulent and reviewed the lower court’s order in cancellation. The court held that fraud must be specifically pleaded and strictly proved and cannot be left to be inferred from the facts. Neither party attempted to prove fraud against the other. Therefore, the courts held that the lease of the suit property to the first appellant was not fraudulent and that the trial judge should not have cancelled the first appellant’s certificate of title.
The court also considered whether the respondent’s lease agreement was breached because the first appellant denied the respondent possession of the suit land and reviewed the lower court’s order to extend the respondents lease. The court found that the respondent was in breach of contract and, therefore, had no right of possession and overturned the trial judge’s order to extend the respondent’s lease because the respondent had failed to request it in due course.
All grounds of the appeal succeeded.
The applicant brought an application for interim order against the respondents disposing of the
suit property fraudulently mortgaged by her husband without spousal consent the same being
matrimonial property. The applicant’s suit was dismissed by the trial court hence the appeal from
which the application arose.