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 whether the court below properly evaluated the evidence, and were they correct in expunging the evidence. Furthermore, it looked at whether the doctrine of waiver had been correctly applied.
This case looked at whether the revocation of the property as well as the sale of the property was null and void.
The court considered s 83(1)(b), 2(a) and (5) of the Evidence Act and found that a wrongly admitted piece of evidence is not a sacrosanct, it is still subject to scrutiny by the appellate court.
The court found that inadmissible evidence ought not to be admitted, even by mistake, and if it is, the appeal court ought to consider the case on the legally admissible evidence and preclude that which is inadmissible.
It is trite that the evaluation of evidence is essentially the function of the trial judge, where the trial judge has unquestionably evaluated the evidence before him and ascribed probative value to it, it is not the business of the appeal court to disturb such findings of fact, unless the findings are perverse.
In considering the doctrine of waiver, it was found that waiver means that the person in whose favour a benefit or right exists, is aware of those rights or benefits, but chooses to freely not take advantage of those rights or benefits. Thus, the doctrine of waiver could not be applied.
The appeal emanated from the advance of a loan by the first respondent to the appellant. The appellant deposited with appellant bank a certificate of occupation and a share certificate as security. The appellant then failed to repay the loan resulting in the sale of the appellant’s shares deposited as security. The appellant instituted legal proceedings against the respondent claiming that it was not indebted to the first respondent for any amount because the arrangement between the parties was a joint venture agreement and that the sale of the second appellants shares was done mala fide and without their consent.
The challenge was dismissed. The appellant appealed against the dismissal arguing that the trial court erred. It pointed out that the deed of mortgage was not properly executed and that the contract between the parties was invalid.
The respondent argued that the appellant was raising new issues not canvassed in the court below. It argued that there was a valid contract between the parties.
The court held that there was a loan agreement between the parties and the appellants did not complain of anomalies in the contract hence it waived any right it may have had. The court ruled that a party cannot raise new issues in an appeal and dismissed the appeal.
The plaintiff was a tenant in the defendant’s premises when the tenancy agreement was terminated by the defendant.
The main issue was whether the termination of the lease agreement between the parties was illegal because the plaintiff was not served with notice of termination of the lease agreement.
The court found that the plaintiff breached the terms and conditions of the lease agreement by failing to renew the lease agreement and defaulting on payment of the rent on time.
The court considered a clause of the parties' lease agreement, finding that the parties had agreed in their lease agreement that notices relating to their lease agreement would be served to each of them in various modes. One of those modes was service by hand to the last official address of the party. Since the clause did not state that the notice must be served to the party in person or physically but to be served through his last official address the court found that service to the last official place of business of the plaintiff could not be said to have failed to meet the agreement of the parties.
Therefore, since the plaintiff was a tenant in the premises where the notice was served as he was doing his business there it cannot be said he was not served with notice to terminate the lease agreement because the notice was served to him through his last official place of business.
The court decided in favour of the respondent.