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.
In this case, the appellant claimed that the trial magistrate erred in holding that the appellant had a contractual duty to inform the respondent of the garnishee order. This case illustrates the duty to inform with regards to garnishee orders that also applies to banks.
The court considered whether the trial magistrate erred in holding that the appellant was legally bound to inform the respondent on the existence of the garnishee order. The court held that a bank has the duty to inform a customer in good time of a garnishee order so that the customer may take legal steps if he so wishes. Thus, the court held that though a notice from the appellant had been made in good time the fact that it reached the respondent late amounted to a breach of the fiduciary duty between them.
The court also held that it is a principle of law that an issue not raised at trial will not be entertained on appeal. Thus, the appellant was not allowed to raise questions as to whether the garnishee order was satisfied nor whether it was set aside.
In considering general damages, the court held that the trial court was correct in awarding general damages. The court dismissed the appeal in its entirety.
The issue was whether the Corporate Affairs Commission (appellant) has powers to inspect affairs of banks (respondents) without a court order.
The case emanated from decision of the trial judge declining to grant an order directing the respondents to comply with the appellant inspectors.
The appellant argued that the Companies and Allied Matters Act (the act) empowers it to carry out an inspection without the need of a court order. It pointed out that the trial judge erred by holding that the appellant require a court order to investigate the respondents.
The respondents opposed the appeal by pointing out that the appellant can only carry out an inspection on the respondents through a court order and that the appellant had no power to appoint inspectors. They further argued that allowing an inspection by the appellant amount to breach of bank/client confidentiality.
The court ruled that the act allows the appellant to appoint investigators at the instances of company members or through a court order. It held that s 314(1) of the act empowers the appellant to investigate affairs of the banks without the need of a court order. The court ruled that the trial judge erred and the appeal was upheld.
The court considered whether the second respondent was an agent of the appellants and entitled to a commission.
The court held that an agency is a fiduciary relationship created when a principal gives authority to an agent to act on his behalf which is accepted by the agent. The court also held that for a real estate agent to claim commission they must show that there was an introduction of a purchaser which was an efficient cause in bringing about the sale of a property. Professional Conduct for Legal Practitioners 2007 Rule 7(2)(b) does not forbid a legal practitioner from engaging in the business of a commission agent.
The court found that there was no illegality in the agency agreement between the second respondent and appellants.
The court accordingly dismissed the appeal and awarded costs to the respondent.
Second respondent was informed of a building for sale by the appellants with a 5% commission to whoever secured a buyer. Second respondent found a buyer but received no payment. He successfully claimed payment in the lower court, which the appellants appealed.
The issue was whether the second respondent was an agent of the appellants and entitled to the commission claimed.
Agency is created when the principal authorises the agent to act on their behalf, and the agent accepts to act on their authority. The appeal court agreed that the second respondent began acting as agent immediately after being given the sale price and rate of commission. The first appellant authorised several agents, including second respondent, to look for a buyer. The ultimate buyer was introduced to the first appellant by second respondent.
At issue was whether the second respondent could act as a commission agent or receive commission. He was not a qualified estate surveyor and valuer, or a member of the Nigerian Institute of Estate Surveyors, Agents and Valuers. Furthermore, a lawyer may not practice as a legal practitioner while engaging in the business of a commission agent. Though the second respondent contravened the latter rule, the court held that this contravention did not vitiate the agency agreement. A party who has benefitted from a contract cannot evade their obligations by relying on an allegation of illegality; illegality must be on the face of it. There was no illegality in the agency agreement.
The appeal was dismissed.
The respondent’s non-disclosure of the nature of a business conducted by a tenant on its insured premises was held to be material for the purposes of s 53(1) of the Short-Term Insurance Act. The court ruled that the failure to advise appellant of highly flammable materials being used to manufacture truck and trailer bodies on the property rendered the insurance contract void. The court found that a reasonable, prudent person would have viewed the disclosure of this information as relevant to the overall risk assessment, and that appellant had been induced into extending the cover.
The respondent unsuccessfully raised the defence of estoppel based on appellant’s failure to conduct a survey of the premises, at respondent’s request, to identify potential risks which could affect the policy. The court found that no misrepresentation could be shown on appellant’s part; estoppel was therefore not established.
Wallis JA concurred with the majority ruling but focused his reasoning on the practical and logical flaws in the respondent’s justification for its non-disclosure.
Contract – limitation of liability clause – suing in delict to escape application of limitation of liability clause
Delict – wrongfulness – duty of care
The appellant had decided not to claim two previous accidents because he did not want to lose his no-claim bonus. This case highlights the effects of an “OUT bonus” clause within an insurance policy that positively discourages clients from submitting claims.
The court considered whether the appellant’s failure to disclose the two previous incidents in which the vehicle was damaged within 30 days, allowed the respondent to avoid liability in terms of the contract. The court had to decide whether the appellant’s inaction amounted to a breach of the insurance policy, which had stated in plain language that one is rewarded for not claiming.
The court held that the insurer’s policy created a self-absorption of any damage caused by the insured, whereby, the insured was to be paid 10% of their premiums after the first three years of the policy. The court held that this formed the basis of the appellant’s decision to not disclose his claims.
The court was not satisfied that the appellant’s failure to disclose the two previous incidents within 30 days amounted to a rejection of the claim. The court held that the obligation to report “incidents” created uncertainty, especially in situations whereby the insured had no intention of lodging a claim. In this case, it was evident that the appellant’s decision not to claim was a result of the attraction of the OUT bonus.
Thus, the court upheld the appellant’s claim and held that the defendant was liable to compensate the appellant.
This is a second appeal by the appellant, both
his original suit in the High Court and his
subsequent appeal to the Court of Appeal
having been dismissed. The background is
that the appellant thought to borrow money
from the respondent and gave security as his
land, the issued cheque bounced and the
respondent used the security to secure a
mortgage from the first respondent which he
failed to pay and the first respondent sold the
land. The appellant was evicted and the
business closed and the appellant alleged
fraud but was unsuccessful both at high court
and court of appeal hence this appeal on the
grounds of the sale of land using the power of
attorney, the validity of the mortgage on the
appellants land, holding on fraud, improper
consideration of the evidence on record and
complete disregard of the facts.
A dispute between the company and the bank arose in respect of a specimen signature card allegedly issued for Susan Margaret Howard Bristow (Susan) as a director of the company. The dispute arose because the signature of Dr. Alex Babitunga authenticating Susan's specimen signature card was apparently forged. Additional words written on the card, altering the previous arrangements with the bank requiring two signatures for authorisation of withdrawals, appeared without any initials, signatures, authentication or stamping by the person or persons who cancelled them. The bank permitted certain withdrawals from the company bank account in accordance with the instructions on the card; as opposed to the earlier instructions.
The respondent alleged that the appellant had acted in breach of its duty to the respondent as its customer and had been negligent in permitting the respondent’s accounts to be cleared of all the money in them without the respondent’s authority.
The issues were whether the lower court erred in law and in fact in not holding that the respondent was estopped from saying that Susan Bristow was not an authorized signatory to the respondent's account.
The court explained that the principles of estoppel provides that when one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or she nor his or her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing. One of the conditions for the doctrine to apply is, therefore that the act or omission by the person against whom estoppel is to be set up, as a defense, must have been intentionally caused, in the instant case the fraud which the two courts below found had caused the appellant to act to its detriment believing it to be true was unknown to the respondent until the police report. The court held that the defense of estoppel was not available to the bank against the company because the respondent was unaware of Susan's fraudulent signatures on the cheques until the police investigation and report.
The court held that all documents concerning the respondent's accounts were in the possession and custody of appellant bank. Only the appellant knew and was responsible for entries on the bank accounts, it bore responsibility as the banker to what entries were made on those accounts without respondent's authority. The appeal was therefore dismissed with costs.
This was an action claiming monies allegedly siphoned from the plaintiff’s bank account with the participation and/or collusion of the defendant; and damages for the defendant’s breach of the fiduciary duty as branch manager. The defendant filed a counterclaim that his continued suspension and dismissal was unlawful.
The issues for consideration were whether the defendant caused financial loss to the plaintiff; whether the suspension and/or dismissal was lawful; and the available remedies.
Regarding the first issue, the court held that the suit rested on the allegation that the defendant kept 26 cheques. The court held that it was not proved that the defendant kept the cheques beyond the three days alleged by the plaintiff; however the court found that the defendant knew the cheques were kept beyond the three days. As a result, the defendant was jointly liable with a Mr Patrick Kigongo.
On the second issue, the court held that the plaintiff was entitled to suspend the defendant as he was charged with a criminal offence. Management may dismiss an employee who was facing criminal prosecution if their continued employment would prejudice the interests of the bank. However, the defendant was suspended without pay contrary to regulation 30 of the terms and conditions of service; and the termination was without notice of disciplinary action, without a right of defence, and was thus unlawful.
The plaintiff was awarded general damages. The defendant was awarded his full salary from the date of suspension until the date of termination.
The applicant was a client of the first and second respondents, who represented the plaintiff (third respondent, a company) in a case against the applicant. The applicant claimed that during the legal representation, the first and second respondents became aware of facts prejudicial to him which were a violation of advocate and client relationship, thus applied for an injunction.
The court considered whether the first and second respondents also handled matters which would arise in the suit against the applicant while representing the third respondent.
The court held that where there was a fiduciary relationship, the irrebuttable presumption is that there is a possibility of disclosure. Further, although some authorities state that the applicant should plead the confidential information that could be reviewed, recent authorities have held that such pleading would be contrary to the intended confidentiality.
The court found that there was a fiduciary relationship between the first and second respondents. Moreso, the parties had a relationship of legal and litigation interaction. Therefore, information prejudicial to the applicant would likely emerge.
The court accordingly granted the application and ordered the disqualification of the first and second respondents from the pending suit.