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.
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 applicants sought to interdict the respondents from applying the provisions of the Medicines and Related Substances Act (Medicines Act) and prevent them from seizing and detaining Playboy e-cigarettes and hookahs pending the outcome of part B of the application. A consignment of e-cigarettes belonging to the first applicant was seized by the first respondent. Part B of the application was a review of the decision by the respondents to amend Schedules 1, 2, and 3 of the Medicines Act.
The two issues in dispute were that the Medicines Act was being selectively enforced against the applicant as there had been no measures or steps taken in the past against other importers, distributors or retailers of e-cigarettes. Secondly, that the seizure of the consignment was not in accordance with the Medicines Act.
The respondents contended that selective enforcement took place due to capacity constraints. Whether or not the selective enforcement was constitutional depended upon whether there was a rational basis therefor. The court held that the selection was irrational and targeted the applicant for no objective reason. The means by which the respondent went about enforcing the Medicines Act against the applicant and no other retailer, distributor or importer was not connected to the governmental purpose of regulating e-cigarettes containing nicotine. The seizure of the consignment was set aside in terms of the Promotion of Administrative Justice Act. The court held that there was no need to make a determination on the interpretation of the Medicines Act.
The application was granted with costs.
South African Airways (SAA) received government funding on four occasions (since 2007). The applicant contended that SAA’s operation was non-commercial, anti-competitive and prejudicial to other air transport services. The decisions to issue a R5.6 billion guarantee to SAA on 26 September 2012, and to extend the guarantee’s period, were the subject of the review. Applicant argued that the decision was unlawful and ultra vires of the Public Finance Management Act; violated the separation of powers; violated sections 7(2), 9, and 22 of the Constitution; irrational; procedurally unfair; and in violation of Comair’s legitimate expectations.
The court held that pronouncing on the legality of the first decision was moot as there would be no utility in the order or in pronouncing on the issues related to it. It was separate from the extended guarantee. Furthermore, the court found that it did not have jurisdiction to decide issues based on Competition Law. The court also held that it was not in its jurisdiction to decide on matters of policy, to which the decision to issue the guarantee amounted.
Due to the dynamic nature of the market, need for flexibility, and to intervene in the dire circumstances of SAA as a strategic asset, the court held that there was no basis for forming a legitimate expectation by the applicant. The court also held that the decision was rational as it considered all relevant factors and involved multi-level input from different governmental departments.
The application was dismissed with no order as to costs.
The issue was whether it would be just and equitable to wind up the respondents in terms of s 81(1)(c)(ii) and s 81(d)(iii) read with s 157(1)(d) of the act on the grounds that executive directors of the first respondent unconsciously abused the corporate personality of the second respondent by acting unlawfully. The other issue was whether the minister had locus standi (the right or capacity to bring an action) to bring the application.
The court held that it was just and equitable to wind up a company if the company is conducting unlawful activities and where there is a deadlock between the parties. Further, that s 157 extends locus standi to a broad range of people.
The court found that there were just and equitable grounds to wind up the first respondent because there was a deadlock between the parties, unlawful misappropriation of public funds and non-disclosure. In that light, also wind up the second respondent because its existence depended on that of the first respondent. The court, also, found that the minister, as a member of the executive, had established the necessary locus standi to bring the application in the public interest in terms of s 157(1)(d).
Accordingly, the court granted the final liquidation and ordered that the costs of winding up include costs of the application.
Freedom of association – Labour unions – Membership in labour union