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 issue was whether an arbitrator has power to amend a contract.
The applicant was challenging an arbitral decision arguing that the composition of the arbitration tribunal and the award itself were wrong. It argued that the arbitrator dealt with an issue which was not contemplated by the parties and that he amended the subject contract in contravention of clause 10 of the contract. The applicant further alleged that the conduct of the arbitrator showed bias in favor of the respondents.
The respondent on the other hand argued that there was no evidence to show that the arbitrator was partial. They further contended that there was no contravention of clause 10 because the amendments were made in terms of clause 13 of contract.
In deciding the case, the court held that amendments to the contract cannot be made without consensus of each party. It ruled that an amendment in terms of clause 13 required an arbitrator appointed in accordance with that provision. It further held that the clause 10.2 of the contract only allowed an amendment by agreement in writing by both parties which was not the case in the matter before the court.
On allegations of partiality of the arbitrator, the court found that communication between the applicant and respondent shows likelihood of bias. The court further ruled that the composition of the tribunal was not in accordance with the contract. All these amounted to breach of the Arbitration and Conciliation Act. The arbitration award was set aside.
This was an application to compel the Competition Commission of South Africa to produce a record of investigation.
The issue emanated from an investigation by the respondent on banks on allegation of collusive conduct in regard to trade in foreign currency. The applicant was one of the banks investigated. The applicant requested without success on several times for the record of investigation from the respondent. It then made an application to compel the respondent to provide the record.
The respondent opposed the application arguing that the applicant should have proceeded by way of review under Promotion of Administrative Justice Act (PAJA) because its action amounted to an administrative act. The applicant on the other hand argued that the commission’s conduct did not constitute administrative action and the tribunal should consider the application.
In deciding the matter, the Competition Tribunal held that the respondent action did not qualify as administrative action because it does not meet the requirement of finality. However, it found that the Competition Commission cannot be compelled to provide the requested record because of the complex nature of the process. It ruled that the respondent should provide the requested record during discovery.