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 concerned whether the Supreme Court had the authority to quash a judgment handed down by the court below. The applicant contended that the court below lacked jurisdiction to interpret articles 127 (3) and 161 of the 1992 Constitution. The court considered the difference between interpreting a constitutional provision and applying a constitutional provision. It was found that all courts and adjudicating authorities are obliged to apply the provisions of the Constitution. Therefore, it would be a denial of justice to parties if constitutional provisions are not considered by a court of law or any adjudicating authority. Furthermore, it is only when the issue of interpretation arises that a court must stay its proceedings and refer the matter to the Supreme Court. In this matter, the court below was not called upon to interpret any provisions of the Constitution but merely to ascertain where the Registrar was a holder of a judicial office and whether the holder of a judicial officer had judicial power. The court found that Article 161 of the Constitution did not define judicial power. Therefore, not all judicial officers exercise judicial power. The court found that the court below had not committed and error that destroyed its jurisdiction, thus there was nothing warranting the Supreme Court to be called upon to quash the judgment handed down by the court below. Application dismissed.
The plaintiff sought a writ (being a written order of the court to abstain from acting) against the defendants. The plaintiff asked the court to find that the court below did not have jurisdiction to determine matters involving the interpretation and enforcement of the Constitution. The defendants in turn raised a preliminary objection to the plaintiff’s writ.
This case considered the preliminary objection raised in objection to the writ and whether the court had jurisdiction to entertain the plaintiffs action calling for a writ against the defendants, thus did the plaintiff properly invoke the jurisdiction of the court and whether the proper parties were before the court.
The court found that in determining whether its jurisdiction had been properly invoked, they were obliged to look at the preliminary objection of the writ before them.
The plaintiff argued that a single judge lacked the jurisdiction to determine matters involving the interpretation and or enforcement of the Constitution.
The court found that its jurisdiction had been properly invoked. On the second issue the court found that the Plaintiff had capacity to bring the application before this court.
The court found that the first defendant was properly cited and was a party in this application, however the second defendant was not a party to the action as the plaintiff did not show any act or omission which would justify the plaintiff citing him.
The second defendant was therefore struck out.
Preliminary objection overruled.
The matter involved a dispute concerning the nature and validity of the transaction between the defendant, a government-owned limited liability company, and Karpower. The matter revolved around the interpretation given to the phrase ‘international transaction’ in article 181 of the Constitution, a phrase whose effect is that the transaction required parliamentary approval.
The first question that faced the court concerned jurisdiction. The court relied on ample case law to arrive at the position that the Supreme Court is not a clearing house to assume jurisdiction which otherwise belongs to other lower courts. It noted that jurisdiction would only be exercised where it is manifestly clear and obvious that the cases are deserving.
Substantively, the court then had to consider the legal nature of the defendants in order to ascertain whether they were the alter ego of the government. After scrutinising the relevant transactions, the court reasoned that it was clear that the defendants, as juristic persons, had the capacity to enter into the transactions they entered into with the relevant institutions without seeking parliamentary approval as stipulated in article 181 (5) of the Constitution.
The court concluded that given the established interpretation of ‘international transaction’ and the legal nature of the defendants, the nature of transaction between the first defendants and Karpowership does not constitute an international business transaction with a government. It therefore did not require compliance with article 181 (5) of the Constitution.
The court dismissed the application.
The Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.
Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.
Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.
Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.
Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion
Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.
Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.
The Minister of Mines was ordered to fix the fees and charges under the act.
The matter involves an application brought by judicial service staff’s union (plaintiff) over a dispute about their pension scheme and benefits.
First the court had to determine whether the phrase ‘all persons serving in the Judiciary’ applies in exclusion of non-bench judicial service staff and whether the plaintiff’s members were constitutionally subjected to the CAP 30 pension scheme or the SSNIT scheme. First, it established the consistent meaning of ‘judiciary’ in the constitution as that body that exercises judicial power and administers justice. The constitutional definition of judiciary therefore did not include non-bench judicial staff. The effect thus is that the plaintiff’s members were not placed under the CAP 30 pension scheme since they did not belong to the constitutionally-delineated class constituting the Judiciary. It should be noted, however, a dissenting opinion took on a more expansive approach that included the non-bench staff. Nevertheless, the court concluded the placing of the plaintiff’s members on the SSNIT scheme was not wrongful or in constitutional violation.
On the questions of discrimination, the court reasoned that as employment matters are purely contractual, the conduct of differential treatment in employment conditions did not amount to discrimination. It did, however, in holding for the plaintiff, decry the inconsistencies with best practices in remuneration management and constitutional procedures.
The court also held for the plaintiff by finding that the President could not delegate his function under arts 149 and 158(2) as this would be unconstitutional. Further, it also found ss 213(1)(a) and 220 of Act 766 to be unconstitutional to the extend it conflicts with constitutional provisions.