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 application was lodged as a response by the applicants (General Legal Council) to a decision of the Court of Appeal setting aside orders granted to them allowing for the suspension of the respondent from legal practice. The applicants sought leave to appeal against this decision.
In response, the court began its adjudication from the position that a special leave application is not concerned with substantive issues but rather with whether it satisfies the case law principles that there must either be (a) a prima facie error on the face of the record, or (b) a general legal principle arising for the first time, and or (c) that the Supreme Court decision on the appeal would be advantageous to the public.
The court assessed the grounds propounded by the applicants which in essence included allegations of fundamental errors that go to jurisdiction and which a determination by the Supreme Court would be advantageous to the public. The court reasoned that these issues were so important that a decision on them would have a public good. It therefore decided to allow the application.
The appellant appealed to the Supreme Court because the lower court did not inquire into the scope of the arbitration agreement embodied in the main agreement executed by the parties, contrary to the provisions of section 6(2) of Act 798.The court held that the separation agreement provided categorically that any dispute that related to the validity of the agreement itself or the arbitration embodied therein had to be determined by arbitration. The decision to refer certain disputes to arbitration as indicated in the separation agreement arose from the consent of the parties the moment they appended their signatures to the agreement. Therefore, it had complied with the separation agreement.
Secondly, the applicant filed for appeal after three months instead of twenty-one days and did not advance any reason to explain why it failed to comply with the rules of the court. The court noted that it had the discretion to entertain such applications but had to question whether upon the facts, the discretion could be exercised in applicant’s favour. The court outlined the prerequisites for the grant of special leave to appeal as follows: an applicant who applies to the Supreme Court for special leave under article 131(2) must satisfy (i) why he did not avail himself/herself of the usual rights of appeal provided, and (ii) why he should be granted such special indulgence. The court concluded that the applicant did not advance any reason why it failed to resort to the normal appeal procedure and dismissed the appeal.
The matter dealt with a special leave to appeal application against the Court of Appeal’s decision that an appeal from the General Legal Council without lodging a Notice of Appeal to the Council was invalid.
In responding to the above question, the court relied on Article 131(2) of the Constitution and the Dolphyne case (Dolphyne (No.2) V Speedline Steveddoring Co. Ltd [1996-97] SCGLR) to find that special leave applications are discretionary and are not fettered by rules of practice nor legislation. The exercise of this discretion depended on whether, given the particular case and validity of the reasons given, leave should be granted in favor of applicant to further the interests of justice and or the public good. The court, in exercising its discretion, established that the General Council was not a lower court. Thus the court concluded that the requirement for lodging a notice was not applicable. Moreover, it reasoned that it would be in the public interest if a Supreme Court was given an opportunity to pronounce on appeals from the General Council. It thus concluded that the court below had erred in its decision resulting in the overriding of the applicant’s substantive right of appeal. The court thus granted the special leave application.
The court considered an application where the applicant argued that the Court of Appeal, in an earlier judgment in the same case, erroneously misconstrued s 272 of the Succession Act. The court held that an appeal could be re-heard if the matter is of great public importance. The court confirmed that great public importance and general importance depends on the facts and circumstances and may vary from case-to-case.
The guidelines for what would constitute public or general importance in certain cases are statements of law which affect
(1) a considerable number of people in their commercial practice;
(2) enjoyment of fundamental rights;
(3) the proper functioning of public institutions;
(4) the court’s scope to dispense redress; or (4) the discharge of duties of public officers.
If an appeal meets one of the criteria constituting public or general importance, the court will be permitted to re-hear an appeal on its merits. The court in this case held that this case raised a question of law of general importance and could be reheard.