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 matter dealt with an application for foreclosure and sale of mortgaged property as a result of failure to make loan repayments by defendant.
The main issue was whether the plaintiff could exercise its right to foreclose the property. The court cited s 8(1) of the Mortgage Act that allows one to redeem the property at any time of breach and or to get a court order effecting the redemption. Reference to How v Vigures was also made regarding the triggers for foreclosure proceedings as being when due payment has not been made on date for redemption (default) or when there is a breach of any terms of the mortgage.
The court established that as the defendant had not complied with the terms of the credit facility agreement by not paying the agreed monthly instalments for a period of two years despite repeated demands, the exercise of the right to foreclosure was held to be fit and proper.
The court therefore concluded that the plaintiff could exercise the right to foreclose and accordingly allowed the application.
The underlying dispute between the parties related to an entitlement of the appellants to a proper statement of account by the respondents. The question at issue was whether the order of the high court was appealable and if so, whether the appellants had made out a case for a two-state judicially controlled procedure, dealing first with the adequacy and second with the accuracy of the accounts.
In making a decision the court was guided by the principle that a judgment or order has three attributes, first, the decision made must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definite of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. The principles however are neither exhaustive nor cast in stone. An order may not possess all three attributes, but will nonetheless be appealable if it has final jurisdictional effect.
The court held that the order of the court a quo had effectively precluded the appellants from contesting the adequacy of the accounts, an issue that had been a bone of contention between the parties thus making the decision of the court a quo appealable. In the result, the appeal succeeded.
The matter involved a question of competency of appeal regarding a land dispute.
The court referred to section 47(1) of the Land Disputes Courts Act which allows a person, when aggrieved by the decision of the High Court, to appeal to the Court of Appeal provided they have been granted leave in accordance with the Appellant Jurisdiction Act.
The court reasoned that as there was no valid and surviving leave to appeal, the appeal was incompetent. It considered this failure to comply with a mandatory step in the appeal process as fatal to the appeal and therefore struck out the appeal fo incompetence