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 respondent sued the appellant for general damages and restoration of the value of certain of its properties, arising from their sale at a public auction, prompted by a warrant of distress issued under the Income Tax Act. The High Court found that the respondent bore no tax liability to the appellant at the time the warrant was issued, and consequently that the vehicles were unlawfully distrained and sold, before making an award of damages, interest and costs of suit in the respondent’s favour.
On appeal, the tax authority successfully challenged the High Court decision on the grounds of jurisdiction. It contended that the relevant tax legislation (primarily the Income Tax Act, 1973) had established fora to preside over tax disputes at the first instance. As the respondent had failed to exhaust these internal statutory remedies before launching court proceedings, the High Court lacked jurisdiction to hear and determine the matter. The court had ousted the jurisdiction of the specialised fora designed for that very purpose.
Reiterating that jurisdiction may be raised by the parties or suo moto (by the court itself) at any stage of proceedings – even on appeal – the appellate court quashed and set aside the High Court’s decision and upheld the appeal.
The respondent’s employment with the appellant was terminated following an e-mail he had sent to his immediate supervisor expressing indignation at the way the latter had reprimanded him in the workplace. A disciplinary committee found him guilty of misconduct and dishonesty which formed the basis of the dismissal.
The respondent challenged the decision at the Commission for Mediation and Arbitration (CMA) where he sought reinstatement because he alleged that he was unfairly terminated and that the disciplinary proceedings were improperly conducted. The CMA found against him on both counts.
Successfully applying for revision before the High Court, the presiding judge ordered his reinstatement after finding that, although the disciplinary proceedings had been conducted in accordance the Employment and Labour Relations Code of Good Practice, the arbitrator had erred in arriving at a finding of insubordination. This was because the words used in the e-mail, given the circumstances of the case, were justifiable and thus not offensive. Moreover, the learned judge expressed a view about the authenticity of the e-mail.
These findings of the trial judge formed the basis of this appeal, which was upheld. The appellate court noted that the court below had raised two issues of its own volition, in coming to its decision, without affording the parties an opportunity to be heard thereon. Although judges are generally compelled to decide matters based on the issues on record, questions raised suo motu are permissible where they are placed on record so as to give the parties a chance to address them. The High Court’s failure to do so resulted in a procedural irregularity which consequently vitiated its ruling.
The appellate court therefore quashed and set aside the judgment of the court a quo before remitting the record thereto for determination by another judge.