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.
This was an appeal based on the decision of the trial court to try the question of res judicata as preliminary point of law. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court held that the trial court erred in its interpretation of order 33 rule 5 of the High Court (Civil Procedure) Rules, 2004 by purporting to put an end to the full scale trial. The court held that in such circumstances, a plea of res judicata should only be sustained if it would result in a substantial disposal of the matter or render the determination of the other issues in the matter unnecessary. The court considered the uncertainty over the subject matter and the fact that a merit consideration of the action had already begun (at the trial court).
Accordingly, the appeal was upheld and an order made for the case to be remitted to the trial court for a re-trial.
This appeal considered whether the respondent was barred from re-litigating a matter concerning a dispute on the ownership of property based on the concept of res judicata. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court applied the rule that an appellate court must evaluate the evidence on record as if the case is being heard afresh. The court noted that the plea of res judicata was not explicitly set out by the appellant in the High Court though it was raised as a ground of appeal to the court of appeal. The court observed that the previous courts failed to consider the plea. Base on the evidence on record, the court was satisfied that the properties described by the respondent n her writ of summons had once been litigated and held that the respondent was estopped from re-litigating the issue.
Accordingly, the court set aside the decisions of the High Court and Court of Appeal and deemed it worthy to consider the other grounds of appeal.
The case concerned the parameters for determination when faced with a second appeal, as well as the elements to establish a plea of res judicata.
It was found that there are 4 instances when concurrent findings can be interfered with namely: 1) where the findings of the trial court are unsupported by evidence on record or where reasons in support of the finding are unsatisfactory, 2) where a principle of evidence has been improperly applied, 3) where the findings are based on a wrong proposition of law, and 4) where the finding is inconsistent with crucial documentary evidence on record.
In the second appeal it was argued that the matter was res judicata. Thus, that the matter has already been determined between the same parties before a competent court. The essential elements to establish for a plea of res judicata are: 1) there has been an earlier decision on the issue, 2) there has been a final judgment on the merits and 3) the same parties in both suits. The court found that the matter was not res judicata as although premised on similar facts with the same parties, the merits of the action differ. Furthermore, the court found that the decision of the lower court was perverse and unsupported by the evidence.
The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.
The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.
The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.
The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.