Commercial Law Index

The court considered whether the South African Breweries (SAB), a dominant manufacturer and distributor of beer products, engaged in anti-competitive behaviour, by securing distribution agreements which constituted restrictive horizontal, alternatively, vertical practices in terms of s 4(1)(b)(ii) and s 5(1) of the Competition Act 89 of 1998 (‘the act’).

The commission challenged the distribution agreements and alleged that the SAB had contravened s 4(1)(b)(ii) of the act as a result of the exclusive territories awarded to appointed distributors (ADs) for distribution, amounting to a market division. The relationship between SAB and the AD’s were considered to determine whether they were competitors as contemplated in the act.

In applying the concept of ‘characterisation’ the pivotal question is a) whether the parties were in a horizontal relationship; and if so, b) whether the case involved the division of markets as contemplated in the act.

The court confirmed that, the ADs could not be seen to be autonomous economic actors, independent of the SAB, and were not in a competitive relationship with one another. Further, the true relationship was primarily a vertical one, encompassing a horizontal component, flowing from the vertical arrangement. The agreements did not amount to lessened intra-brand competition, preventing rival distributors from succeeding in the distribution within the market.

The court held that, there was not enough evidence to support the contention that the agreement had the effect of substantially preventing or lessening competition in the market, thus, there was no diminished consumer welfare supporting the prevention of competition in the market. The appeal was dismissed with costs.

South African Airways (SAA) received government funding on four occasions (since 2007). The applicant contended that SAA’s operation was non-commercial, anti-competitive and prejudicial to other air transport services. The decisions to issue a R5.6 billion guarantee to SAA on 26 September 2012, and to extend the guarantee’s period, were the subject of the review. Applicant argued that the decision was unlawful and ultra vires of the Public Finance Management Act; violated the separation of powers; violated sections 7(2), 9, and 22 of the Constitution; irrational; procedurally unfair; and in violation of Comair’s legitimate expectations.

The court held that pronouncing on the legality of the first decision was moot as there would be no utility in the order or in pronouncing on the issues related to it. It was separate from the extended guarantee. Furthermore, the court found that it did not have jurisdiction to decide issues based on Competition Law. The court also held that it was not in its jurisdiction to decide on matters of policy, to which the decision to issue the guarantee amounted.

Due to the dynamic nature of the market, need for flexibility, and to intervene in the dire circumstances of SAA as a strategic asset, the court held that there was no basis for forming a legitimate expectation by the applicant. The court also held that the decision was rational as it considered all relevant factors and involved multi-level input from different governmental departments.

The application was dismissed with no order as to costs.

A dispute arose between the appellant and the respondent regarding the amount payable for extra costs incurred during the delivery of goods by sea. The case was first heard by the high court, then the magistrates court where it was dismissed based on jurisdiction.

The court had to consider whether Ugandan courts had jurisdiction to hear the matter and whether the magistrate erred in law and fact when he dismissed the appellant’s counterclaim before hearing it.

It was held that Ugandan courts had jurisdiction to try the matter and that the magistrate erred in law and fact when he dismissed the appellant’s counterclaim without hearing it.

With reliance on the bill of lading, legislation and past cases, the court was of the view that the parties had voluntarily submitted themselves to the jurisdiction of Ugandan courts. In addition, the court stated that the Ugandan courts were readily available to adjudicate on the matter and it was convenient to bring the matter before Ugandan courts. Furthermore, the court issued that the magistrate ought to have considered the Constitution and civil procedure rules prior to dismissing the appellant’s counterclaim without hearing the merits.

The court ordered a new trial in the magistrate’s court. The appeal was allowed, and costs were awarded in favour of the appellant.

This case dealt with emolument attachment orders (EAO) that had been obtained through written consent by the applicants. The applicants were a group of low-income earners and vulnerable occupants that only had their salaries and wages as a means to survival. The issue was that the EAOs were from jurisdictions far from where the applicants resided. This case pinpoints the importance of issuing EAOs that are just and equitable, by focusing on the processes that the respondents had followed to secure repayment of loans. This case also illustrates the duty to protect citizens against human rights abuses by business enterprises by having effective remedies that protect victims.

The court considered whether the respondents’ conduct fell within the scope of section 65J(1)(a) of the Magistrates’ Court Act which allows an attachment on a debtor’s earnings and obliges his or her employer to pay out of such earnings specific instalments in favour of the creditor. The court held that section 45 of the Magistrates’ Court Act provides that parties may consent to the jurisdiction of a court that does not have jurisdiction

The Court held that section 65(J)(1)(a) of the Magistrates’ Court Act had failed to provide a statutory limit on the EAOs which may be granted against a judgment debtor.

The Court found that the respondents had denied the applicants their constitutional right to approach the courts by obtaining judgments and EAOs in courts that were far from the applicants’ workplaces and homes. The court held that the respondents’ actions were a result of them forum shopping for courts which entertained their applications. The court held that in this case where the applicants had admitted liability for the debts and had consented to the EAOs, section 45 of the Magistrates’ Court Act did not permit that the applicants could consent to the jurisdiction of a court outside their district. Thus, the court found that the EAOs were in fact not just and equitable considering the statuses of the applicants.

Accordingly, the court upheld the applicants’ complaint and held that the EAOs were in breach of section 65(J)(1)(a) of the Magistrates’ Court Act.

The appellant sought to overturn a taxation ruling of the Deputy Registrar, contending that the latter had erred in fact and law in coming to its decision. The order prohibited the appellant from charging its client certain fees for services rendered over and above the initial instruction costs. 

The Registrar had found that the appellant was estopped from claiming the fees due to the allegedly misleading way it had conducted itself in respect of the client regarding the anticipated bill of costs. The appellate court upheld the challenge, finding that the provisions of the Advocates Act expressly regulated the exclusion of bills of costs, thereby limiting – in terms of s 14 of the Judicature Act – the High Court’s discretion to apply principles of equitability when adjudicating disputes of this nature. 

Both legislation and case law affirmed the appellant’s right to taxation of its bill of costs against the respondent, as it had met the relevant statutory requirements.