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 considered whether the appellant has a right in law to lodge the appeal.
The court held that there is no right of appeal against a decision of a court of competent jurisdiction unless that right is expressly provided for by statute. Further, an application brought to the High Court in terms of s 16(6) of the Arbitration and Conciliation Act is final and not subject to appeal.
The court found that the facts of the subject of the preliminary objection to the arbitrator's decision, the application by the respondent to the high court and the decision thereof fall within the ambit of s 16 of the act, therefore there is no right of appeal against the decision of the high court. Further, even under s 34 of the act there is no right of appeal against the decision of the high court. Further, there was no right to appeal in the high court because respondent did not comply with time limits, thus nullifying the order.
Accordingly, the court found that the appellant had no right of appeal, parties were ordered to pay their own costs. Further, the appellant as the successful party in the arbitration entitled to costs of the high court and arbitrator.
This was an appeal from decision of the Court of Appeal on grounds that;
The Justices of Appeal erred in law and fact when they granted orders for
cancellation of the fifth appellant’s title to the suit property which was neither
sought nor pleaded by the respondents, thereby occasioning miscarriage of
The matter involved an application for the setting aside of an order for default judgment and the order of execution of the default decree. It also involved an application for unconditional leave to defend the underlying suit that gave rise to the default judgment.
Substantively, the first issue was whether the applicant had been aware of the summons to defend the suit for the amount claimed. It was established that there was a serious flaw in the service by respondents particularly in the absence of a return of service summons. There was therefore no evidence of summons or a court order being served to the applicant on the court record and the application for leave to defend outside the stipulated timeframe could not be said to be in breach of a court order. Further, it was also held that the absence of effective summons justified the setting aside of the default decree.
Secondly, there was a question of the legality of the suit brought against the appellant for default as it was argued that the basis was an illegal instrument. As there was an argument that the cheque and acknowledgement the suit was based on were forged, the court reasoned that there was no difference between the signature on the cheque and on the acknowledgment. However, as there was no forensic evidence supporting this, the court offered the applicant conditional leave to defend the underlying suit against him. The court therefore concluded under a conditional pretext of the suit’s illegality and thus allowed the application for conditional leave to defend.
The court considered an application where the applicant argued that the Court of Appeal, in an earlier judgment in the same case, erroneously misconstrued s 272 of the Succession Act. The court held that an appeal could be re-heard if the matter is of great public importance. The court confirmed that great public importance and general importance depends on the facts and circumstances and may vary from case-to-case.
The guidelines for what would constitute public or general importance in certain cases are statements of law which affect
(1) a considerable number of people in their commercial practice;
(2) enjoyment of fundamental rights;
(3) the proper functioning of public institutions;
(4) the court’s scope to dispense redress; or (4) the discharge of duties of public officers.
If an appeal meets one of the criteria constituting public or general importance, the court will be permitted to re-hear an appeal on its merits. The court in this case held that this case raised a question of law of general importance and could be reheard.
The appellant sought a declaration that it was the lawful owner of a piece of land in dispute, and that the respondent has been a trespasser. The respondent filed seeking to strike out the appellant’s suit for being time-barred. The trial judge allowed the application. The appellant appealed to the Court of Appeal against the dismissal. The Court of Appeal found no merit in the appeal and dismissed the same, hence this appeal.
The issue for determination for the appeal was whether the appellant could appeal to the Court of Appeal against the order of the trial court without the leave of court.
The court applied the principle that if the decision conclusively determines the rights of the parties, then it would be a decree; otherwise it would be an order. If for instance portions of a plaint are struck out as being frivolous, or if a suit is stayed, such a decision would be an order, whereas if a suit is dismissed with costs, that would be a decree. A decree is appealable as of right, whereas under the Civil Procedure Rules most orders are only appealable with leave of the court.
In applying the principle, the court found that the High Court decision disposed of the suit conclusively and the decision was therefore a decree within the meaning of s 2(c) of the Civil Procedure Act, even though it was worded as an order. It held that the appellant therefore had a right of appeal as against the decision and did not need to apply for leave to appeal to the court of appeal.
The appeal succeeded.