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 was against a garnishee order attaching a sum of approximately N97 million belonging to the appellant granted by the lower court. The appeal was based on the claim that the garnishee order was made without hearing the appellants’ earlier motion for a of stay execution. This, the appellants argued, was a violation of their right to a fair trial.
The respondent raised a preliminary objection that the appellant had no standing because it was judgement debtor, not the garnishee. It further argued that the appellants had not obtained leave to appeal.
The appellants responded by pointing out that they were respondents to the garnishee application, and that the funds that were to be attached belonged to them. Thus, they had locus standi (the standing and right to file this appeal).
The court held that it is only the garnishee that can appeal an order made by the court. It ruled that garnishee proceedings are strictly between the creditor and the garnishee. It found that the appellant lacked locus standi to file the appeal and the appeal was dismissed.
The applicant sought orders from the court against an order made by the same court where one judge presided and the cross-examination of the applicant was ordered.
The court had to consider two issues; whether there was a violation of the applicant’s right to privacy and whether o 46 r 2 was applied appropriately.
The court held that there was no violation of the applicant’s right to privacy and that the aforementioned rule was applied appropriately.
Regarding the alleged violation of the right to privacy, the court stated that the applicant did not make reference to any legislation that prohibits the oral examination of a judgement debtor in an open court. Regarding the rules, the court drew a distinction between Order 42 r 1 and r 2; the former dealt with garnishee proceedings and the latter dealt with proceedings other than those relating to garnishee proceedings. The court went on to say that the rational for the rule was consistent with its application.
The court dismissed the application in its entirety and ordered that the oral examination of the applicant would continue.
The applicant was directed to use other means to recover a judgment debt. The application was instituted to hold the second to sixth respondents liable for the first respondent’s debt as the controlling company of the first respondent.
The applicant argued that unless the corporate veil was lifted, and the second to sixth respondents were ordered to pay the debt, the applicant would not be able to recover the judgment debt.
The issues before the court were whether corporate veil could be lifted.
The court held that the first respondent company and second respondent company were one and the same. From the evidence, the third to sixth respondents were acting on behalf of the first and second respondents.
Grounds for lifting the veil were provided in section 20 of the Companies Act, and included where a company or its directors are involved in acts of fraud. The court held that the instruments of the first respondent were honestly executed. Failure to execute the court order was not reason for lifting the corporate veil as it was not evidence of fraud. However, a further ground for lifting the corporate veil was to prevent the deliberate evasion of contractual obligations. The court held that the third to sixth respondents’ resolve to sell the properties were attempts to prevent the realization of the judgment debt, and using the first respondent as a mask for fraud.
The application was granted.