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 respondent sued the appellant for default of payment in respect of loans granted to the appellant by the respondent in the course of the appellant’s employment.
The appellant claimed that liability in respect of the car loan should not have been determined solely by reference to the formal contract. Instead, the court should have had regard to extrinsic evidence.
The appellant further claimed that the summary judgment granted against him by the court below was erroneously made as there was a plausible dispute between the parties for which leave should have been granted to the appellant to defend the action. The respondent contended that the factual situation representing the appellant's defence did not constitute a good defence on the merit to the claim of the respondent. This court agreed with the respondent.
The appellant submitted that his continued retention in the employment of the respondent was a condition precedent to his repayment of the loans and his employment having been terminated, the enforcement of the personal loans had been frustrated. This court held that this stance was not sustainable because the contracts of employment and personal loans between the parties were two distinct contracts and their duration not co-existent. Thus, the appeal was dismissed.
The crux of the matter is whether or not the trial court erred in holding the appellant/defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the court. The appellant contended that the lower court’s refusal to re-open the case amounted to a violation of its right to fair hearing. The court held that the appellant had ample time to defend its case but failed.
The second issue was whether the exhibits admitted by the lower court were deserving of ascription of any probative value. The court held that documentary evidence can be admitted in the absence of the maker; what matters is admissibility. This means that a document can be admitted without the court attaching probative value to it.
The court reiterated that where the lower court fails to examine documents tendered before it, an appellate court is in good position to evaluate such exhibits. The court thus held that the lower court erred when it held that the respondents were entitled to judgment.
In the result, the appeal succeeded even though the first issue was held in favor of the respondent.
This appeal raises the question of admissibility of a document that was alleged to be a privileged document. The petitioner sought to have this document admitted as evidence, while the respondent argued that it should be excluded as the security of the state would be impaired.
The petitioner argued that that if this document was excluded, his constitutional right to fair trial would be violated. He further claimed that if the security of the state would be impaired by such conduct. Section 23(2) of the Constitution allows the court to hear the matters that touch on the security of the state, away from the public.
The respondent relied on s 121 of the Evidence Act. He claimed that this document relates to affairs of state and was therefore inadmissible without the consent of the head of department.
This court stated that when an act of Congress conflicts with constitutionally enshrined provisions; the Constitution prevails because it holds the paramount commands. Furthermore, it was held that the court that has the power to determine whether a matter falls within the exceptions or not. In order to do this, the state must produce evidence upon which the court can act. The state never did so.
The court examined the document in dispute and found it to relate to state security. However, the court overruled the respondent’s objection. The document was admitted as evidence in closed court.