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 appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.
Substantively, the court held that in a summary judgement application the plaintiff must bring a prima facie case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.
Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.
The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.
In this appeal, court determined whether the representations made by the respondents in their letter of 3rd October 2013 constituted promissory estoppels with regard to the auction that took place on 30th September 2013. The court noted that the principle of promissory estoppel relates to representations of future conduct and not past conduct and held that the principle was not applicable to the facts of the case. The court also determined whether the application was made out of time. The court applied the rule in Order 45 rule 10(1) of the High Court (Civil Procedure) Rules, 2004: that such an application should be made 21 days from the date of the sale. The appellant made the application on 8th November 2013 while the auction took place on the 30th September 2013. The court held that the application was incompetent since it was made out of time. Accordingly, the appeal was dismissed and the judgment of the court of appeal was affirmed.
The court was confronted with a question of liability for undelivered goods by the driver of a haulage company contracted by the plaintiff. The meat of the enquiry focused on the issue of the effect of a failure to sign the delivery note on bailment. Having assessed the understanding and intentions of the parties the court reasoned delivery occurred at the moment of loading by the supplier, upon which liability passed to the carrier. The issue of the signing of the note or lack of by the driver thus bore no significance on the question of liability. Only sufficient reasons for failure to adduce the signature and evidence of collusive fraud by defendant would commute the carrier’s responsibility. Consequently, a claim of contributory negligence could not stand once loading had been made by the supplier as they did not have an express duty of care to ensure signing of the notes. Moreover, the mere loading was in itself delivery thus the plaintiff failed to demonstrate negligence.
Finally, the court dealt with the question of whether a contract actually existed between the parties as this had an effect on surcharges deducted by the defendant. The court found that given the nature of the contracts involved, the defendant had no contractual relationship with the plaintiff and therefore could not sue on the surcharge agreement as they were not party to the contract made for their benefit.
The court thus dismissed the appeal.
This was a dispute about interpretation of an employment contract. An employee of a church was entitled by virtue of that contract to long service leave, calculated with reference to his ‘basic salary’. The issue was to determine the meaning and scope of the words ‘basic salary’.
The Supreme Court of Justice held that while the lower courts correctly identified this issue, they had incorrectly found that ‘basic salary’ meant the total annual salary that the plaintiff was drawing at the time. The lower courts did not give consideration to the meaning and effect of the term ‘basic salary’ in the ‘conditions of service’ document, which defined ‘basic salary’ as a lower baseline salary amount.
The court held that in dealing with the interpretation of contracts the literal and plain meaning rule must always be applied within the context of the deed being construed and not standing by itself alone. Additionally, the court has a duty to give effect to the intentions of the parties. This being an employment contract, the proper approach of interpretation is to construe the words within the context of the whole document having in mind the scope and object of the document. Interpretations which would ‘render the meaning absurd, incongruous, unreasonable or unintelligible, or that will create hardship or inconvenience’ should be rejected.
The court held that in the context of the document as a whole, and it would be ‘unreasonable and absurd’ to conclude that the intention was to bind the defendant to a meaning of ‘basic salary’ that encompassed the plaintiff’s actual annual salary.
The appeal succeeded in part; the judgments of the High Court and Court of Appeal were set aside.
This case is centered around a dispute regarding land and the interpretation of various ambiguous documents, most importantly the will of a former owner of the disputed land.
The Supreme Court was asked to review the judgement made by the Court of Appeal and to ascertain the identity (location) of the land in dispute and to clarify its ownership. The confusion arose out of the illegibility of the part of the relevant will which describes the land. The court reviewed the evidence, not limited to the will, carefully and found that the location was clearly ‘Achim’, as the trial court had found, and not ‘Axim’. Consequently, the Supreme Court concluded that the Court of Appeal was mistaken in considering that a mistake was made by the trial court in arriving at its conclusion. The decision of the Court of Appeal was, therefore, set aside.
The appeal arose from the appellant’s contention that the judgment by the Court of Appeal was against the weight of evidence.
The court relied on the rule that the plaintiff in the contest bears the burden of production of evidence and persuasion to ground its assessment of the status of the International Rom (appellant). It reasoned that given the evidence, the true position was that the email which was received from the Chief Compliance Officer of Mauritius was intended to be an official record complying with the Act 772 and was thus relevant and admissible. However, considering the conflicting evidence, the court concluded against placing any probative value to the email and thus dismissed the contention that the company had ceased to exist.
The court also applied the rule in Turquand’s Case, formulated in the case of Royal British Bank v Turquand (1856) 6 EI & BI 327 which has been codified and amended in ss 139-143 of the Companies Act, Act 179 (1963) and common law principles to assess the party the defendants contracted with. It reasoned that since International Rom Mauritius and International Rom Ghana had been regarded as one entity by the first defendants, mistake could not be argued to escape the contract.
Finally, the court assessed the provisioned evidence particularly the cross examination to concluded that the claim of failure to allow for challenge of the evidence lacked merit. In addition, the court also held there was an undertaking to make the payment by the first defendant, a commitment which the first defendant did not honor. It was therefore urged by the court that the defendants pay the outstanding amounts plus interest to the appellant.
This case considered whether employees who were claiming compensation for loss of employment were ‘permanent employees’ in terms of an employment contract. The case additionally concerns whether the Court of Appeal had misdirected itself with regards to the weight of evidence.
The plaintiffs contended that they were employed by the respondent as permanent employees in terms of an employment contract. The respondent subsequently went into liquidation and the plaintiffs claimed for loss of compensation.
The court held that for a plaintiff to be entitled to benefits as an ex-employee, they should spell out clearly the terms of their employment as contained in their contract of employment and then prove their entitlements under those terms. The plaintiffs assume the burden of persuasion and producing evidence, however, it was clear that they were unable to produce a written agreement which spells out their terms of employment. The court found that any contract of employment for more than six months which was not in writing was unenforceable.
The plaintiffs had been employed for 10 and 12 years respectively, but failed to obtain letters of appointment. It became apparent that they were only employed for the duration that they were engaged on a particular voyage.
The court found that to be a permanent employee one would need to prove employment through the use of a contract of employment, which was in writing and could be used as evidence to illustrate the terms thereof. In this case, the plaintiffs were only employees when the respondents required their services. Furthermore, the court held that the Court of Appeal had not misdirected itself with regards to the weight of evidence as the plaintiff failed to properly prove their claim.
The parties entered into a business transaction for the supply and installation of a saw-mill. However, the transaction was not covered by a properly drawn up contract. Furthermore, it became apparent that the plaintiff provided the defendant with a plant which was defective and not fit for the purpose it was intended.
This case considered whether the Court of Appeal had misdirected itself to the defects contained in the machinery, whether there was a breach of a fundamental obligation and whether the goods sold were fit for the purpose which they were intended to be used.
The court considered the Sale of Goods Act, 137 of 1962 (the act) and found that the breach of a promise under the act depends on the category of promise; either a fundamental obligation, condition or a warranty. Breach of a fundamental obligation or a condition entitles the party not in default to repudiate the contract of sale and if it is the seller who is in breach, the buyer can reject the goods. The breach of a warranty cannot lead to a repudiation or rejection of the goods but will entitle the party not in breach to damages. However, a party entitled to repudiation and rejection may waive their right and opt for damages.
The court considered whether the goods were fit for the purpose that they were provided for. The plaintiff sold the machinery in the course of its business on condition that it will be fit for the purpose of saw milling. A machine is fit for purpose if it is able to perform the task for which it was acquired, safely and for a reasonable period, before defects appear. The court found that a saw mill should not break down after 11 days of operation and therefore did not meet the standard of the purpose for which it was intended. The court found that as a result of the defect, the defendant was entitled to general damages as a result of the failure of the saw mill being fit for purpose.
The plaintiff/appellant unsuccessfully sued the defendant/respondent for breach of contract following the latter’s refusal to accept delivery of the relevant goods. Curtailing the appellant’s sizeable claim for special damages, the High Court awarded only nominal damages – an order later confirmed by the Court of Appeal.
At the Supreme Court, the scope of section 48 of the Sale of Goods Act (the act) was elucidated: the computation of damages thereunder may be either general or special depending on the circumstances of each case. General damages refer to those which are foreseeable without proving that special circumstances were brought to the breaching party’s attention. Special damages are those which are foreseeable by the parties at the time of contracting because certain circumstances have been highlighted which render the damages within the realm of the signatories’ reasonable contemplation. These must be pleaded and proved at trial.
The plaintiff’s claim for special damages for the losses suffered by the breach was not proven before the High Court and were subsequently abandoned. The Supreme Court thus took the plaintiff to be entitled only to general damages under section 48 of the act. To this end, the plaintiff did not lead any evidence on the multipliers which would entitle the court to award enhanced damages. Section 48 caters to the contract price/market price differential and not to a computation of lost profits. The plaintiffs failed to adduce sufficient evidence to merit the proposed determination of damages and so the nominal award made by High Court in terms of s 48 was adequate.
The appeal was dismissed.