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 Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.
Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.
Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.
Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.
Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion
Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.
Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.
The Minister of Mines was ordered to fix the fees and charges under the act.
The appellants – employees of NECTA, a state-affiliated corporate entity – were aggrieved after being transferred by order of the respondent, the Permanent Secretary, to various other institutions under the control of the Ministry of Education and Vocational Training. Unsuccessful in their review application at the High Court, the appellants contended on appeal that the respondent’s decision was made ultra vires. They argued further that it had violated the requirements of natural justice by failing to provide them with an opportunity to be heard prior to its making.
The appellate court found that the relevant provisions of the Public Service Act (‘the act’) empower the Chief Secretary to facilitate ‘labour mobility’ amongst certain state-affiliated employers, of which NECTA was one. The court held further that a purposive interpretation of section 8 of the act recognised the transfer of employees in the contemplated manner as an essential aspect of ‘labour mobility’. The act enlists the Permanent Secretary as the principal assistant to the Chief Secretary in relation to the administration of public service, meaning that the delegation of power unto it, and subsequent exercise thereof, was duly authorised by law.
Because the appellants’ employment benefits had not been impacted by the decision, and the proceedings had not been disciplinary in nature, the respondent was not lawfully required to give the appellants an opportunity to be heard. Therefore, no rules of natural justice had been breached.
The appeal was dismissed and the parties ordered to bear their own costs.