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 underlying dispute between the parties related to an entitlement of the appellants to a proper statement of account by the respondents. The question at issue was whether the order of the high court was appealable and if so, whether the appellants had made out a case for a two-state judicially controlled procedure, dealing first with the adequacy and second with the accuracy of the accounts.
In making a decision the court was guided by the principle that a judgment or order has three attributes, first, the decision made must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definite of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. The principles however are neither exhaustive nor cast in stone. An order may not possess all three attributes, but will nonetheless be appealable if it has final jurisdictional effect.
The court held that the order of the court a quo had effectively precluded the appellants from contesting the adequacy of the accounts, an issue that had been a bone of contention between the parties thus making the decision of the court a quo appealable. In the result, the appeal succeeded.
The respondent’s non-disclosure of the nature of a business conducted by a tenant on its insured premises was held to be material for the purposes of s 53(1) of the Short-Term Insurance Act. The court ruled that the failure to advise appellant of highly flammable materials being used to manufacture truck and trailer bodies on the property rendered the insurance contract void. The court found that a reasonable, prudent person would have viewed the disclosure of this information as relevant to the overall risk assessment, and that appellant had been induced into extending the cover.
The respondent unsuccessfully raised the defence of estoppel based on appellant’s failure to conduct a survey of the premises, at respondent’s request, to identify potential risks which could affect the policy. The court found that no misrepresentation could be shown on appellant’s part; estoppel was therefore not established.
Wallis JA concurred with the majority ruling but focused his reasoning on the practical and logical flaws in the respondent’s justification for its non-disclosure.
A claim by the appellant was repudiated by the respondent on the grounds that the deceased had misrepresented and failed to disclose to the respondent certain details of her pre-existing medical condition which materially affected the assessment of the risk under the policy by the respondent. The issue before the court was whether the deceased made a misrepresentation during the telephone conversation as well as materiality of any alleged misrepresentation or non-disclosure, does not arise in the absence of proof of the deceased’s pre-existing medical condition.
The court held that the respondent bore the onus to prove that the deceased had misrepresented herself to the respondent. The respondent also had to prove that the deceased had failed to disclose that she had received medical advice or treatment previously. There was however there was no clear understanding between the parties as to the evidential status of the contents of the hospital records. The court ruled that the respondent failed to discharge that onus to prove that the deceased did misrepresent herself as there was inadequacy and lack of clarity in the hospital records.
The court expressed that that the court a quo erred in concluding that it was not in dispute that the illnesses were noted correctly in the hospital records. The court also noted that the court a quo paid scant regard to the admissibility of the evidence as a result the parties had to file supplementary heads of argument.
Accordingly the court upheld the appeal.
Contract – limitation of liability clause – suing in delict to escape application of limitation of liability clause
Delict – wrongfulness – duty of care
The applicants sought to interdict the respondents from applying the provisions of the Medicines and Related Substances Act (Medicines Act) and prevent them from seizing and detaining Playboy e-cigarettes and hookahs pending the outcome of part B of the application. A consignment of e-cigarettes belonging to the first applicant was seized by the first respondent. Part B of the application was a review of the decision by the respondents to amend Schedules 1, 2, and 3 of the Medicines Act.
The two issues in dispute were that the Medicines Act was being selectively enforced against the applicant as there had been no measures or steps taken in the past against other importers, distributors or retailers of e-cigarettes. Secondly, that the seizure of the consignment was not in accordance with the Medicines Act.
The respondents contended that selective enforcement took place due to capacity constraints. Whether or not the selective enforcement was constitutional depended upon whether there was a rational basis therefor. The court held that the selection was irrational and targeted the applicant for no objective reason. The means by which the respondent went about enforcing the Medicines Act against the applicant and no other retailer, distributor or importer was not connected to the governmental purpose of regulating e-cigarettes containing nicotine. The seizure of the consignment was set aside in terms of the Promotion of Administrative Justice Act. The court held that there was no need to make a determination on the interpretation of the Medicines Act.
The application was granted with costs.
The applicants sought an order declaring that the respondent’s premature removal of an advertisement from a billboard under the latter’s control was unlawful and unconstitutional. The advertisement concerned Israel’s occupation of Palestine depicted by contrasting maps.
The applicants contested the removal on several grounds, including freedom of expression, which is entrenched by section 16 of the Constitution of the Republic of South Africa. Because respondent was not a state entity, this raised questions of when s 16 may be horizontally applied.
The respondent substantiated its conduct in terms of its agreement with the second applicant, arguing it was permissible due to the advertisement’s alleged contravention of the City’s advertising by-laws, the Practice Code of the Advertising Standards Authority, as well as its own internal policies.
The court found no legitimate basis in the parties’ agreement, on these facts, for the respondent’s removal of the advertisement prior to the stipulated flighting period. As a private body, the respondent was not positively burdened with respecting, promoting and upholding the applicants’ right to freedom of expression. However, it still faced a negative duty not to interfere with it.
The court granted the application and directed the respondent to reinstate the advertisement, subject to practical qualifications. A portion of 9(h) of the Outdoor Advertising By-Laws of the City of Johannesburg was held to be invalid for exceeding the constitutional limitations of free speech.
The applicant brought a complaint against the defendants for contravening the market allocation prohibition of the Competition Act (the act) by entering into an ongoing agreement allocating market territory for the sale of locking products in both the Free State and Northern Cape. They sought to have the defendant’s conduct declared in contravention and consequently interdicted and charged with a 10% turnover administrative charge in respect of the contravention.
The first issue was whether the commission could allege market allocation for all products. Looking at the legislative powers of the commission, the Competition Tribunal reasoned that since the agreement’s subject matter covered all products the commission had authority therein.
The tribunal then considered whether the agreement was still ongoing after the coming into effect of the act and s 4(1)(b)(ii). It assessed the evidence and established that the defendants had not competed with each other since the entry into agreement until the time in issue and thus the agreement remained ongoing.
The final issue was whether the agreement’s rationale was in contravention of the section above. By looking at the ratio in American Soda Ash Corporation and Another vs. Competition Commission and Others  1 CPLR 1 (SCA) and The Competition-Commission and Pioneer Foods (Pty) Ltd, Case No: 15/CR/Feb07, the tribunal highlighted that s 4(1)(b)(ii)’s market allocation prohibition is a per se prohibition and thus there can be no justification for the conduct.
The agreement was held to be ongoing and in contravention of s 4(1)(b)(ii).
Copyright – Infringement of intellectual property rights
The applicants sought a temporary injunction against the respondents implementing or enforcing regulations 3(1), 4(4), 20(1), and 20(2) of the National Council of Sports Regulations until the disposal of related litigation. The applicants sought to prevent the implementation of the regulations on the grounds that they were the result of illegal, irrational and unconstitutional action on the part of the Minister of Sports. Implementation of the regulations, it was contended, would irreparably affect the operations and fundamental rights of National Sports Associations.
The court set out the requirements for an injunction: unless granted, the damage occasioned would be such that an award of damages would not adequately compensate the applicant; the applicant must show that their case has a probability of success; if the court is in doubt, the application will be decided on the balance of convenience; and the applicant must prove that the aim of the injunction is to maintain the status quo until the determination of the whole dispute.
Whether there was a prima facie case with a probability of success, the court held that it must be satisfied the claim is not frivolous or vexatious, and that there is a serious question to be tried. The court found that this ground was met.
As regards the grounds of irreparable damages, the court held that the applicants succeeded on this ground. In terms of the requirement of balance of convenience, the term meant that if the risk of doing an injustice is going to cause the applicant to suffer, then the balance of convenience favours them to be granted the application. The court held that the applicant met their case and allowed the application on this ground. The applicant was granted the temporary injunction.