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 applicant approached the court to set aside the legal opinion and report of the first and second respondents’ respectively and in turn, the respondents challenged the validity of the application before the court.
The court considered whether the applicant was properly incorporated and whether it had locus standi to bring a petition before the court.
It was held that the applicant indeed did not have locus standi to petition the court to challenge the findings of the respondents due to not being properly incorporated.
The court found that the merger between the entities that formed the applicant was in contravention of both the Constitution and legislation regulating companies. The court held that the Constitution was violated on two occasions. Firstly, when an agreement was entered into with an entity controlled by the government without the approval of the Attorney-General. Secondly, when the entity controlled by the government decided to hold a minority shareholding in the company that assisted in incorporating the applicant, which had the effect of parliament not having control of the funds as required. Legislation regulating companies was not complied with since the requirement for incorporating a private company was not observed.
As a result, the preliminary objection raised by the respondents succeeded. The applicant did not exist in law thus it could not sue or be sued. No costs ordered as the applicant does not exist.
The applicant and respondent contested in a parliamentary election, the
respondent was aggrieved by the outcome of the election petitioned court
which dismissed the petition hence the appeal from which the application
arises. The applicant sought the notice of appeal struck out of court for being
filed out of time without leave of court.
The applicant brought a complaint against the defendants for contravening the market allocation prohibition of the Competition Act (the act) by entering into an ongoing agreement allocating market territory for the sale of locking products in both the Free State and Northern Cape. They sought to have the defendant’s conduct declared in contravention and consequently interdicted and charged with a 10% turnover administrative charge in respect of the contravention.
The first issue was whether the commission could allege market allocation for all products. Looking at the legislative powers of the commission, the Competition Tribunal reasoned that since the agreement’s subject matter covered all products the commission had authority therein.
The tribunal then considered whether the agreement was still ongoing after the coming into effect of the act and s 4(1)(b)(ii). It assessed the evidence and established that the defendants had not competed with each other since the entry into agreement until the time in issue and thus the agreement remained ongoing.
The final issue was whether the agreement’s rationale was in contravention of the section above. By looking at the ratio in American Soda Ash Corporation and Another vs. Competition Commission and Others  1 CPLR 1 (SCA) and The Competition-Commission and Pioneer Foods (Pty) Ltd, Case No: 15/CR/Feb07, the tribunal highlighted that s 4(1)(b)(ii)’s market allocation prohibition is a per se prohibition and thus there can be no justification for the conduct.
The agreement was held to be ongoing and in contravention of s 4(1)(b)(ii).
This was an appeal on a decision of the High Court determining the title of a land.
The court determined whether the judgment by the trial court was a nullity on grounds of being delivered after three months in contravention of s 294(1) of the 1999 Constitution as amended. The court applied the rule that a judgment in such a case may only be nullified if the appellant can prove that the delay in the delivery caused a miscarriage of justice. The court observed that the trial court did not properly evaluate evidence of the witness and made a declaratory order where the identity of the land was unknown. Secondly, the court determined whether the trial court erred in relying on pleadings that were amended and the court found that the trial court caused a miscarriage of justice for doing so. Finally, the court determined whether the trial court erred by declaring the title of the disputed land in favour of the respondents and resolved the issue in favour of the appellant.
Accordingly, the appeal succeeded, the judgment of the High Court was set aside and an order as to costs was made against the respondents.
The appellant brought his initial suit against a decision of the main committee of the first respondent suspending him from the Lagos Polo Club. The initial suit was dismissed in its entirety.
The appeal concerned three issues. Issues one and two were decided together, and concerned whether the lower court was correct in holding that the respondents complied with the provisions of the Lagos Polo Club Constitution in suspending the appellant; and whether the main committee of the Club could delegate any part of its disciplinary functions to its Disciplinary Sub-Committee.
Generally, courts will rarely interfere with the decisions of voluntary associations except where rules of natural justice were ignored. At issue was whether the appellant was given a fair hearing, which the court held that he was. The main committee was empowered to discipline its members for misconduct. Furthermore, the main committee was empowered to co-opt other persons to act under its authority. The power to constitute a sub-committee was incidental to the power to co-opt persons. Issues one and two were resolved against the appellant.
Issue three concerned whether the lower court considered all the processes filed by the appellant when arriving at its decision. In determining issues, a court is not bound to list all the material considered. Failure to expressly mention all the different processes does not mean the trial court failed to consider them. The court found against the appellant on this issue.
The appeal was dismissed.
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 Supreme Court was called upon to interpret the Constitution to deduce if the Attorney General can represent the Registrar of the High Court in litigation. The court held that because the Attorney General acts on behalf of the state, the Attorney General has the power to represent public officers who are appointed by the President and approved by Parliament. Whereas public officials can choose to be represented by counsel of their own choice, they may refer their cases to the Attorney-General.
However, where representation by the Attorney General compromises the independence of the judiciary or there is a conflict of interest situation, the Attorney-General cannot represent a judicial officer.
In this case there was no evidence the independence of the judiciary was not at risk and the Attorney General could represent him.
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.
This case concerns a dispute about land. The applicant sought an order of the Supreme Court to quash a mandamus order granted by the High Court. The applicant argued that the order made by the High Court breached natural justice because he was not served with the application in which the order was made. The Supreme Court held that the audi alteram patem rule, which requires a person to be heard in proceedings wherein a relief is sought that will affect him, must be followed in all circumstances. The evidence, in this case, showed that the applicant was not served, constituting a breach of the audi alteram patem rule. Given this breach of natural justice, the Supreme Court upheld the appeal and quashed the lower court’s order.
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.
This was an appeal based on an action to set aside a consent judgment obtained before a court of competent jurisdiction on grounds of fraud.
The court determined whether such a consent judgment could be set aside despite its finality. The court observed that an appeal would not ordinarily lie against a consent judgment and that bringing a fresh action to challenge the validity of a consent judgment was a standard and accepted procedure. Thus, the court held that the court of appeal erred in treating the case as res judicata. The court also determined whether the Court of Appeal erred in striking the matter summarily when fraud was in issue. It was held that Court of Appeal erroneously denied the plaintiff a hearing leading to a violation of fundamental rule of natural justice.
Accordingly, the appeal was allowed, the judgments the High Court and the Court of Appeal were set aside and the court ordered a trial on the merits based on the pleadings as they stood at the High Court.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.