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 case was an application seeking to revive a consent judgment set aside by the registrar of the court.
The dispute emanated from an application by the respondent seeking an order to nullify registration of property in the name of the defendants (who are now applicants). The order was granted under an ex parte application because the respondents failed to respond to the suit. The respondents tried without success to appeal the judgment.
The respondents then filed a notice of appeal to the Appeal Court seeking to appeal against the order of the High Court dismissing the application. They also requested an interim order for stay of execution. The applicant (who is now the respondent) objected to the appeal arguing that it was late which was confirmed by the registrar. The respondents referred the matter to a single judge and pending the determination by the judge, the parties entered into a consent judgment which was endorsed by the registrar. The registrar later set aside the consent judgment which the applicants are now seeking to revive.
In deciding the case, the court held that there was no appeal before the single judge because the applicants filed the appeal late. The court ruled that the registrar has no jurisdiction to hear and dispose an appeal. It found that the registrar erred when he entered a consent judgment on a matter which was on appeal before a court. It further ruled that the consent judgment was null and void thus it cannot be revived.
The matter dealt with an application for foreclosure and sale of mortgaged property as a result of failure to make loan repayments by defendant.
The main issue was whether the plaintiff could exercise its right to foreclose the property. The court cited s 8(1) of the Mortgage Act that allows one to redeem the property at any time of breach and or to get a court order effecting the redemption. Reference to How v Vigures was also made regarding the triggers for foreclosure proceedings as being when due payment has not been made on date for redemption (default) or when there is a breach of any terms of the mortgage.
The court established that as the defendant had not complied with the terms of the credit facility agreement by not paying the agreed monthly instalments for a period of two years despite repeated demands, the exercise of the right to foreclosure was held to be fit and proper.
The court therefore concluded that the plaintiff could exercise the right to foreclose and accordingly allowed the application.