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 court considered the proper remedy for a sub judice matter. Further, if the matter was a pending suit according to High Court Procedure rule 47 in the absence of an application made within six months of the last adjournment.
The court held that in terms of Civil Procedure Code s 8 when a matter is found to be sub judice the proper order is an order for stay of the matter. The court also defined the term ‘hearing’ in the ambit of rule 47 of the High Court Procedure Rules. The court held that the term is neither defined in the rules nor Civil Procedure Code. In that light, the court held that when a matter is called for orders, there is an issue of law or fact which is determined. Further, hearing and trial have different meanings. Therefore, the term hearing in rule 47 covers any judicial session before a judge or registrar.
The court was of the view that it would not deal with the matter because the court and same presiding officer had previously made the order. The court also found that the matter was called for hearing while it was still pending, and the court decided to adjourn the matter sine die. In that light, the court concluded that there was no application made within six months of the last adjournment as required by rule 47.
The court accordingly dismissed the application.
Two distinct, but related cases are of relevance in showing the genesis of this application.
The first relates to the respondent seeking to enforce a contract of works. The second relates to the applicant’s claim to enforce an agreement to arbitrate (as per the contract agreement). In this application before the High Court, the applicant sought to have the former case stayed, pending the final determination of the latter.
The applicant claimed that he sought the order to stay the suit as there was an agreement to arbitrate; proceeding with the respondent’s claim would be nugatory. The respondent resisted this application on the basis of procedural correctness.
This court determined that the issue was to verify whether this court had jurisdiction to entertain an application for stay of the respondent’s case, in view of the notice of appeal that was instituted by the applicant.
It was held that this court lacks jurisdiction over the latter case; it is the Court of Appeal which holds jurisdiction. Therefore, the matter was dismissed in its entirety.