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 sought an order for a temporary injunction against the intended sale of a mortgaged property pending final disposal of a suit pending. The applicant's complaint was that his inability to service the loan was a result of the respondent's freezing of his account which made it impossible for him to perform his obligations under the credit facilities agreement.
The main issue was whether the applicant had established sufficient grounds to have the temporary injunction granted.
The court held that there were certain preconditions which a litigant had to meet before the court exercised its discretion to grant an application; for example demonstration that the applicant stood to suffer irreparable loss requiring the court’s intervention before the applicant’s legal right was established and proof of greater hardship and mischief suffered by the applicant if the injunction was not granted than the respondent will suffer if the order is granted.
The court also held that the conditions set out must all be met. Meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction.
It is settled law that courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages. The court concluded that particulars of irreparable loss had not been given for the court's exercise of its discretion in the applicant's favour and so the application was dismissed.
The court considered an application for temporary injunction restraining the respondents from selling two seized motor vehicles. Furthermore, the court considered whether the right of seizure and sale can be exercised without the intervention of the court.
This case concerned an agreement for the sale and purchase of 10 motor vehicles. The applicant alleged that the agreement was oral, whereas the respondents alleged it was written. The applicant subsequently defaulted on the payment and the first respondent seized the vehicles and threatened to sell the vehicles on public auction.
The court found that the agreement concluded between the parties was in fact a written agreement.
The court considered the provisions of S 124 – S 128 of the Law of Contract Act. The basis of these provisions found that the pawnee may retain goods pledged for payment of any debt and may bring a suit against the pawnor upon the debt and retain the goods pledged as collateral security or he may sell the thing pledged.
The court found that the applicant (pawnor) defaulted in payment and the first respondent (pawnee) had the option of bringing a suit against the pawnor and retaining the goods as security or sell the thing pledged by giving the pawnor reasonable notice. If the proceeds are less than the amount due, the pawnor is liable to pay the balance. If the proceeds are more, the pawnee shall pay the surplus to the pawnor.
A pawnee, in possession of the title and the property pledged is entitled to sell the property without intervention of the court. However, in absence of possession, he cannot take the law into his own hands without the court’s intervention.
The court found that there was no clause in the agreement empowering the first respondent to take possession and sell the vehicles, and thus he cannot exercise his right without the court’s assistance.
The applicants sought an interim interdict against the respondent bank, with which they had a bank-client relationship, to restrain it from terminating the operations of the applicants’ banking facilities.
The court considered whether courts could direct the respondent to continue its operations in the country against its will. The court held that the respondent’s decision to exit the country’s banking sector is one that the courts cannot interfere with.
The court relied on the respondent’s constitutional right to trade, which also entails the election of not utilising such right. The court remarked that the respondent’s decision to cease operations in the country rested on commercial considerations which were highlighted in para 15 of the judgement.
The respondents right to or not trade supersedes any right the applicant may have, thus the application was dismissed with costs.
Application focused on the poor conditions and lack of maintenance and repair of the roads network of the farming communities of the Eastern Cape and the socio-economic effects that follow. The applicants sought a structural interdict against the respondents which would have the effect of declaring them legally obliged to repair roads in the province, along with an order that the obligations be complied with and the submission of reports illustrating the steps to be taken to fulfil the obligations.
Upon objection by the respondents, the court considered whether a structural interdict was appropriate in such circumstances and whether a constitutional or statutory basis for seeking such an interdict existed. The court held that there was a constitutional and statutory basis for a structural interdict.
According to s 125(2)(a) of the Constitution the premier, along with the executive council, exercise executive authority through the implementation of provincial legislation, thus failure to repair roads meant that the rights to education and access to health care were indirectly affected. In addition, s 3 of the act encompasses an obligation to use power which rests only on the MEC or persons delegated thereby.
Accordingly, the application and draft order of the applicants were both substantially successful as time frames were included by the court. A comprehensive order is set out in para 48 of the judgement. The first and second respondents were ordered to pay costs of application, including all reserved costs.
The applicants sought a temporary injunction against the respondents implementing or enforcing regulations 3(1), 4(4), 20(1), and 20(2) of the National Council of Sports Regulations until the disposal of related litigation. The applicants sought to prevent the implementation of the regulations on the grounds that they were the result of illegal, irrational and unconstitutional action on the part of the Minister of Sports. Implementation of the regulations, it was contended, would irreparably affect the operations and fundamental rights of National Sports Associations.
The court set out the requirements for an injunction: unless granted, the damage occasioned would be such that an award of damages would not adequately compensate the applicant; the applicant must show that their case has a probability of success; if the court is in doubt, the application will be decided on the balance of convenience; and the applicant must prove that the aim of the injunction is to maintain the status quo until the determination of the whole dispute.
Whether there was a prima facie case with a probability of success, the court held that it must be satisfied the claim is not frivolous or vexatious, and that there is a serious question to be tried. The court found that this ground was met.
As regards the grounds of irreparable damages, the court held that the applicants succeeded on this ground. In terms of the requirement of balance of convenience, the term meant that if the risk of doing an injustice is going to cause the applicant to suffer, then the balance of convenience favours them to be granted the application. The court held that the applicant met their case and allowed the application on this ground. The applicant was granted the temporary injunction.
The plaintiff sought a permanent injunction against the defendant to prevent it from selling, offering for sale, or dealing in goods bearing the plaintiff’s registered trademark.
The court considered whether the defendant infringed the plaintiff’s registered trademark and whether the defendant was a bona fide user of the trademark. The court also considered whether the defendant had locus standi (standing) to challenge the registration of the plaintiff’s trademark.
Held, the defendant did not have locus standi to challenge the plaintiff’s trademark registration. Held, although the defendant was a trader, it could not claim innocence by virtue of advertising the plaintiff’s trademarks. The court stated that points of law had to be argued and evidence adduced by the plaintiff in so far as infringement is concerned in order for final judgement to be granted.
The court extensively examined existing trademark legislation and decided cases and concluded that the defendant did not have locus standi to challenge the plaintiff’s registration as the plaintiff enjoyed statutory protection due to registering its mark in Uganda first.
Interim injunction granted in favour of the plaintiff until the trial.
The court considered an application under 0.37 rr.1 and 9 of the Civil Procedure rules (S.1,65-3) for a temporary injunction restraining the defendant from carrying out any work on the suit premises.
The applicant was the registered proprietor of the premises, although the leases had expired on the land, the title had not been cancelled.
The court found that granting a temporary injunction is an exercise of judicial discretion and the purpose of the granting is preserving matters in status quo until the question to be investigated can be finally disposed of.
The conditions for a grant of injunction are that there must be a prima facie (meaning on the face of it) case with a probability of success, if irreparable harm will be suffered which cannot be compensated adequately by an award for damages and if in doubt, it will be declined on a balance of convenience.
Irreparable injury does not mean there must not be physical possibility of repairing the injury, but that the injury is substantial or material.
The court found that if a prima facie case with a probability of success was proved, the plaintiff would be likely to suffer irreparable damages and the balance of convenience was in favour of the plaintiff as he was likely to suffer more damages than that of the defendant.
The court considered the conditions to grant a temporary injunction.
The application was brought by the applicants as a means to prevent the respondent from alienating and disposing of the land mortgaged by the applicants.
The court found that the conditions for the grant of a temporary injunction are: 1) show a prima facie (meaning on the face of it) case with a probability of success, 2) irreparable harm will be suffered without the possibility of adequate compensation for damages, and 3) a balance of convenience.
The court held that the grant of a temporary injunction is an exercise of the courts discretion as a means to maintaining the status quo until the question to be investigated is tried on the merits, and disposed of in finality.
The court found that the applicants hadn’t set out a prima facie case and the application lacked merits. However, as a result of procedural errors, the court found that a conditional injunction could be granted.
Trademark – Infringing mark resembles with the plaintiff’s mark – Infringement proved
This case concerned an application for an injunction restraining the respondents from selling or enforcing a mortgage in respect of the applicant’s mortgaged properties, pending the determination of a civil suit.
A preliminary objection was raised that the second, third, fourth and fifth applicants’ application was not supported by affidavit evidence. The court held that the first applicant’s supporting affidavit and supplementary affidavit would remain intact, and the applicant’s case would survive. Striking out the second to fifth applicants would not do away with the substance of the application.
The grounds for granting an injunction are that the applicant must prove a prima facie case with a likelihood of success; the applicant is likely to suffer irreparable injury that would not be adequately compensated for by damages; and if the court is in doubt it will decide the matter on a balance of convenience. As regards the first ground the court held that there was no prima facie case or serious question to be tried that had the potential of avoiding realization of the outstanding loan amount. This ground was based on whether the contract between the applicant and first respondent was frustrated, in that the applicant was still awaiting payment for the petroleum products sold; the purchase of which was funded by a loan from the respondent. As a result, the applicant contended it could not repay the loan. Evidence showed that there was a delay in payment, and not frustration of contract.
The application for an injunction was dismissed.
The plaintiff was a registered owner of "Feathers" sanitary pads and claimed that the defendant imported "Featlhers" sanitary pads to be sold in Uganda. The court considered whether the plaintiff had exclusive use of a trademark which was infringed by importation and sale of a product.
The court held that s 36 of the Trade Marks Act grants exclusive use of a mark, which is infringed if a person who is not the owner of that mark uses it and causes confusion to average consumers. Civil proceedings may be instituted in terms of s 79(1). According to ss 79(3) and (4), the grant of an injunction does not affect a claim of damages, direct loss of sales and consequent loss of profits as well as the depreciation of the goodwill. Section 81(1) provides that one available form of relief is an account of profits to the plaintiff.
The court found that the plaintiff had exclusive use of the trademark. Despite the minor differences the goods were the same visually, conceptually, phonetically and belonged to the same class of goods. Therefore, concluded that the goods would likely confuse reasonable consumers. The defendants were guilty of infringement of the trademark by selling and importation of the sanitary pads. The plaintiff did not deal with the actual loss of sales, and no evidence was adduced to show that the counterfeit goods were circulating in Uganda.
The plaintiff's complaints were upheld. The court granted costs, ordered the destruction of the impounded goods, permanent injunction and general damages.
The court considered whether the applicant had sufficient grounds for an interlocutory injunction to prevent the first respondent from entering into another contract.
The court held that there are three conditions that an applicant must show for a temporary interlocutory injunction. Firstly, must show that there is a prima facie case with a probability of success. Secondly, must show that he will suffer irreparable harm which will not be adequately compensated by an award for damages. Thirdly, the application is decided on a balance of convenience if the court is in doubt.
The court found that to establish a prima facie case the applicant must show that it is not a frivolous case, in that regard, the applicant did not show that there was a triable issue. Also found that irreparable harm must be substantial or material, in that light the applicant did not the likelihood of irreparable damages and any contemplated damages. The court also found that the balance of convenience was in favour of the respondent because if the injunction because the granting of the injunction would lead to indefinite termination.
Accordingly, the court dismissed the application with costs.