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.
This was an application for an order that a writ of
mandamus doth issue ordering the Treasury
Officer of Accounts to pay the applicants.
When the application came up for hearing, learned
counsel for the respondent, raised an objection.
She argued that under rule 5 (1) of S. I. 11/2007,
an application for judicial review should be made in
a period of three months from the time when the
decision was made. According to her, the
impugned decision was made many years ago, so
the application is out of time.
This case concerns a dispute about land. The applicant sought an order of the Supreme Court to quash a mandamus order granted by the High Court. The applicant argued that the order made by the High Court breached natural justice because he was not served with the application in which the order was made. The Supreme Court held that the audi alteram patem rule, which requires a person to be heard in proceedings wherein a relief is sought that will affect him, must be followed in all circumstances. The evidence, in this case, showed that the applicant was not served, constituting a breach of the audi alteram patem rule. Given this breach of natural justice, the Supreme Court upheld the appeal and quashed the lower court’s order.
In this case the applicant wanted a writ of mandamus to compel the first respondent to pay the outstanding amounts with interest as ordered from the High Court. This case emphasizes that there must be a clear right in order to use a mandamus.
The court held that in order to obtain a writ of mandamus the following must be established: (1) a clear legal right and a corresponding duty in the respondent; (2) that some specific act or thing which the law requires that particular officer to do has been omitted to be done by him; (3) lack of any alternative, and (4) whether the alternative remedy exists but is inconvenient, less beneficial or less effective or totally ineffective.
The rights of the party seeking the writ of mandamus must not be doubtable. The court was not satisfied that the issues regarding the interest to be awarded and the amount due where properly determined. The court found that the applicant’s rights were doubtable. The court dismissed the application and advised the parties to seek an appropriate intervention to give proper interpretation of the trial judge’s judgment.
In this case, the applicants sought an interdict against an administrative decision not to renew short term mining leases. The applicants held mining licenses for several years which were renewable every six months. The Minister of Natural Resources, the first respondent sent the Acting Commissioner of Mines and two other officials to inform the applicants that their licenses would expire and not be renewed at the expiration of the six month duration. However, a two months extension was granted to enable final sifting and cessation of operations. Nevertheless, the applicants argued that the notice was too short and that they were legitimately expecting the leases to be renewed again.
The High court noted that the issue at hand was not one of cancellation or revocation, but one of non-renewal. Therefore, the issue that the court examined was whether the administrative decision not to renew the licenses was legal.
The court observed although that the applicants had a legitimate expectation to be heard before the decision not to renew their licences was made, they had been given time and opportunity to air their concerns. The court found that prior to the cancellation, the respondents were informed of the non-renewal on two occasions but made no attempt to persuade the respondents that the intended suspension was inappropriate or prejudicial. The court also held that there was insufficient evidence to show that the respondents had acting in bad faith and dismissed the application.
The matter required the Supreme Court’s advisory opinion in line with art 163(6) of the constitution. The reference concerned land administration and management powers of the National Land Commission versus those of the Ministry of Land, Housing and Urban Development.
The main issue for determination was whether the Supreme Court had the jurisdiction to render an advisory opinion- on the powers and functions of the National Land Commission namely, those of the Ministry of Lands, Housing & Urban Development.
The court noted that it proceeded on a case by case basis in determining whether to exercise its advisory opinion jurisdiction. It was held that the instant reference met the admissibility requirement as set out in art 163(6) of the constitution but on condition that the court shall adopt a re-framed set of issues for consideration. However, the court found it premature to render the opinion at that moment and ordered the parties to undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.
Judge Njoki SCJ dissented and held that the majority ruling was against the spirit of art 163 of the Constitution. Mainly because the questions posed were not subject of the court’s advisory opinion since they had no direct correlation with county government.
This case concerned the obligation of public authorities to prevent and remediate damage caused by natural disasters. The applicants argued that the respondents had constitutional and statutory duties to remediate the flooded area and to reasonably prevent future harm. They further contended that the respondents fell short of these duties. This was not contested by the respondents and, in fact, largely confirmed by an internal memo.
The High Court considered whether the application for a mandamus interdict ought to be enforced against the respondents following their alleged failure to remediate significant damage to the applicants as a result of flooding, which led to blocked culverts, exposed them to increased risk of future inundations, as well as increased levels of water pollution.
The court held that the applicants had a constitutional right to a safe environment and that the respondents had legal duties to remediate the flooded area and reasonably prevent future harm. Given that no post-disaster rehabilitative work had been conducted and no explanation for this failure had been provided, the court found that the respondents fell short of their duties. It further held that the constitutional rights of the applicant outweighed any inconvenience for the respondents to fulfill their duties.
Consequently, the court directed the first respondent to immediately remediate the flooded area and to clean the culverts to prevent future damage. The first responded was further ordered to provide the applicants with regular feedback concerning its implementation of the orders.
The court considered an appeal against the decision of the court below, dismissing an application for judicial review. The issue for consideration was whether the doctrine of res judicata applied to judicial review.
Res judicata refers to a matter which has been heard by a competent court and cannot be pursued further by the same parties.
The 16th respondent alleged that the Minister had used the information from them to grant permits to the parties named as interested parties, in respect of the concerned areas and that such licenses should be revoked. Further that the interested parties cease operations in the areas immediately.
The court below dismissed this, prompting a review by the 16th respondent, who sought an order “compelling the respondents to vacate and stay out of the disputed areas. This was based on the interested parties trespassing on the disputed land.
The interested parties argued that the court could not entertain the matter because of the principle of res judicata. However, the court below held that res judicata did not apply to reviews.
The court in this instance held that the basis upon which the 16th respondent instituted the previous judicial review application was essentially the same basis upon which the subsequent judicial review application was based and was thus res judicata. Further, that the subsequent judicial review application was not only barred by the doctrine of res judicata, but was also an abuse of court processes
The court considered an application for mandamus to compel the government, the first respondent, to disclose agreements relating to the purchase of power, among others. The first respondent and Ethiopia entered into negotiations to develop a power plant. The petitioners argued that by agreeing to purchase electricity from Ethiopia, the respondents were acting in a manner that would deprive members of the affected communities of their livelihood, lifestyle and cultural heritage.
The court considered the following: whether it had jurisdiction to intervene and address the issues; whether the rights of the petitioners had been infringed; and what the respondents’ obligations were. The court held that the subject matter of the petition was an agreement between two sovereign states and the violations of rights were transboundary, thus giving the court jurisdiction to hear the matter.
It stated that the right to life, dignity, economic and social rights were indivisible and would have an adverse impact on the petitioners’ livelihood should the power plant be developed. However, without concrete evidence, the court could not find that their rights were violated. In terms of the access to environmental information, the court held that the State was obliged to encourage public participation, which was only possible if the public had all the information. The court found that the respondents ought to have conducted an environmental impact assessment to ensure that the project would not harm the public. Thus, their right to information was infringed. Accordingly, the court granted the order of a mandamus.
This matter arose from an application for judicial review of a decision of the defendant to issue a notice for the cancellation of the plaintiff’s license. The plaintiff prayed for orders of certiorari, prohibition and mandamus.
The court certified the application as urgent and directed the applicant to serve the respondent. The respondent failed to make an appearance during the hearing, and the court granted leave to stay the notice of cancellation of the licence.
The respondent later filed an application under s 3A of Civil Procedure Act to set aside the stay order. The court found that the replying affidavits filed by the interested parties raised environmental issues and deficiency in the procedure leading to the grant of licence to the applicant.
The court noted its obligation to protect and uphold the authority of all the concerned parties to preserve and manage the environment. The court thus ordered the applicant and the Water Resource Management Authority (interested party) to file joint reports after surveying the riparian reserve area to indicate whether the project had interfered with the reserve. In case of failure to get a joint report, the court ordered the parties to file separate reports from their respective experts within 15 days and prohibited the applicant from developing the area of suit land along the riparian reserve.