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 concerned the extent of the National Media Commission’s (‘the Commission’) legal mandate under the National Media Commission Regulations (‘the Regulations’). It was argued that certain provisions amounted to censorship, and control and direction of mass media communication as it required an operator to seek authorization of content prior to publication on a media platform, and were thus unconstitutional.
The issues for determination were: whether the original jurisdiction of the court was properly invoked; whether the cumulative effect of the impugned provisions amounted to censorship; whether the cumulative effect amounted to control and direction over professional functions and operations; and whether the Standard Guidelines issued under the regulations were vague and unconstitutional.
The jurisdictional issue concerned whether the plaintiff sought a striking down of provisions without scrutiny to assist the court in its determination. This issue was to be determined on an examination of the relief sought and the pleadings. What was important was that both raised a case cognizable under the Constitution, which the plaintiff’s documents did.
On the second issue, the court held that some form of censorship was permissible under the Constitution; however where censorship laws are introduced they must be justifiable by being reasonably required in the national security interest, for public order, public morality, or the protection of the rights of another. What the second defendant wanted was akin to prior restraint. With reference to case law, the court held that prior restraint was not legally justifiable. Law must be precise and guide future conduct, which it was not in this case. The regulations were contrary to the Constitution.
On whether the Commission was empowered to impose criminal sanctions, it was held that Parliament could not delegate this function to the Commission.
As regards the third issue, the court had to define ‘direction or control’ in the context of the Constitution. Control or direction as used in the provision had the same meaning and effect as telling operators what they should or should not do in their publications. This function belongs to the media, not the Commission.
The plaintiff’s claim was upheld.
This case involved an allegation that the defendant had not paid fully for services stipulated within an advertising agreement with the plaintiff. This case illustrates the importance interpreting the terms within a contract in line with what the parties to that contract had agreed.
The court held that the court’s duty is to interpret clause 4 of the contract in order to determine what the parties had agreed to. The court had regard to statements of English authority on the interpretation of commercial contracts. In particular,
that ‘[t]here must be ascribed to the words a meaning that would make good commercial sense … and not some meaning imposed … that no businessman in his right senses would be willing to incur.’
The court was satisfied that the according to the terms of the contract, the plaintiff as the ‘landlord’ had provided the defendant as the ‘advertiser’ space for advertising, and undertaken the contested printing activities for its benefit. The court held that the only sensible interpretation of the contract was that the cost of this printing was to be borne by the defendant because the alternative view would lead to a conclusion that ‘flouts common business sense’.
The court ruled that the defendant was supposed to pay the 3.5 million Ugandan shillings for the printing.
The applicants sought an order declaring that the respondent’s premature removal of an advertisement from a billboard under the latter’s control was unlawful and unconstitutional. The advertisement concerned Israel’s occupation of Palestine depicted by contrasting maps.
The applicants contested the removal on several grounds, including freedom of expression, which is entrenched by section 16 of the Constitution of the Republic of South Africa. Because respondent was not a state entity, this raised questions of when s 16 may be horizontally applied.
The respondent substantiated its conduct in terms of its agreement with the second applicant, arguing it was permissible due to the advertisement’s alleged contravention of the City’s advertising by-laws, the Practice Code of the Advertising Standards Authority, as well as its own internal policies.
The court found no legitimate basis in the parties’ agreement, on these facts, for the respondent’s removal of the advertisement prior to the stipulated flighting period. As a private body, the respondent was not positively burdened with respecting, promoting and upholding the applicants’ right to freedom of expression. However, it still faced a negative duty not to interfere with it.
The court granted the application and directed the respondent to reinstate the advertisement, subject to practical qualifications. A portion of 9(h) of the Outdoor Advertising By-Laws of the City of Johannesburg was held to be invalid for exceeding the constitutional limitations of free speech.