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 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.
The Competition Appeal Court considered whether the appellant’s pricing on polypropylene (PP) constituted excessive pricing and hence contravened section 8(a) of Competition Act 89 of 1998 (the act).
In establishing the proper interpretation of excessive pricing, the court looked at s 8(a) read with s1(1)(ix), placing more emphasis on the phrase ‘economic value.’ It considered domestic and foreign decisions and arrived at the determination that the pricing standard to be assessed should be the actual sale price and not a hypothetical price.
Regarding the economic value costing assessment, the court underscored the need to take into consideration costs that include depreciated insurance values related to capital costs; the tax effects, capital reward charges and common costs.
The court also looked at the reasonableness of the sale price when taken in relation to the economic value. It held that for s 8(a) to apply the price should be higher than economic value and should bear no reasonable relation thereto.
Acknowledging that the evaluation is a value judgement, the court rejected the Competition Tribunal’s assessment arguing that prices above economic value are not per se unreasonable. Instead, it held that conscious of the low nature of the price mark-up, there was no justification for judicial interference as this did not constitute a substantial increase.
The court thus concluded that the price did not constitute excessive pricing as required by the act. The appeal was therefore upheld.
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.
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 had decided not to claim two previous accidents because he did not want to lose his no-claim bonus. This case highlights the effects of an “OUT bonus” clause within an insurance policy that positively discourages clients from submitting claims.
The court considered whether the appellant’s failure to disclose the two previous incidents in which the vehicle was damaged within 30 days, allowed the respondent to avoid liability in terms of the contract. The court had to decide whether the appellant’s inaction amounted to a breach of the insurance policy, which had stated in plain language that one is rewarded for not claiming.
The court held that the insurer’s policy created a self-absorption of any damage caused by the insured, whereby, the insured was to be paid 10% of their premiums after the first three years of the policy. The court held that this formed the basis of the appellant’s decision to not disclose his claims.
The court was not satisfied that the appellant’s failure to disclose the two previous incidents within 30 days amounted to a rejection of the claim. The court held that the obligation to report “incidents” created uncertainty, especially in situations whereby the insured had no intention of lodging a claim. In this case, it was evident that the appellant’s decision not to claim was a result of the attraction of the OUT bonus.
Thus, the court upheld the appellant’s claim and held that the defendant was liable to compensate the appellant.
The applicant in this application sought for an order staying the execution of the
judgment of the court of appeal until the determination of the appeal to this court, and
that costs of the application be provided for.
In this case the plaintiff had lost valuable equipment through acts of incendiarism and sought indemnity since this had happened over 100 days into the life of the insurance policy. This case illustrates how parties are bound to their own undertakings in a contract for insurance premiums.
The court considered whether the plaintiff was entitled to indemnity under the Contractor Plant and Machinery Policy. The court considered the parole evidence rule and held that the defendant had to meet its obligations under the insurance policy. The policy insurance was clear on what it covered and thus the defendant could not invoke the parole evidence to show what the insurance policy intentions were or not. The court held that it could only enforce the insurance policy as it was.
The court also considered whether the plaintiff’s claim was fraudulent. It held that the plaintiff’s claim under the insurance policy was legitimate, as it had been proven that it possessed a valid insurance policy issued by the defendant. Thus in the absence of proof of fraud by the defendant, obligations under the insurance policy had to be met.
The court concluded that there was no fraud and thus the plaintiff was to be indemnified. The court upheld the claim and awarded damages in favour of the plaintiff.
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.
Trademark – Fraudulent registration of foreign trademark in Uganda
The plaintiff sought a permanent injunction against the defendant to prevent it from selling, offering for sale, or dealing in goods bearing the plaintiff’s registered trademark.
The court considered whether the defendant infringed the plaintiff’s registered trademark and whether the defendant was a bona fide user of the trademark. The court also considered whether the defendant had locus standi (standing) to challenge the registration of the plaintiff’s trademark.
Held, the defendant did not have locus standi to challenge the plaintiff’s trademark registration. Held, although the defendant was a trader, it could not claim innocence by virtue of advertising the plaintiff’s trademarks. The court stated that points of law had to be argued and evidence adduced by the plaintiff in so far as infringement is concerned in order for final judgement to be granted.
The court extensively examined existing trademark legislation and decided cases and concluded that the defendant did not have locus standi to challenge the plaintiff’s registration as the plaintiff enjoyed statutory protection due to registering its mark in Uganda first.
Interim injunction granted in favour of the plaintiff until the trial.
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.
This was an appeal from decision of the Court of Appeal on grounds that;
The Justices of Appeal erred in law and fact when they granted orders for
cancellation of the fifth appellant’s title to the suit property which was neither
sought nor pleaded by the respondents, thereby occasioning miscarriage of
The plaintiff/appellant unsuccessfully sued the defendant/respondent for breach of contract following the latter’s refusal to accept delivery of the relevant goods. Curtailing the appellant’s sizeable claim for special damages, the High Court awarded only nominal damages – an order later confirmed by the Court of Appeal.
At the Supreme Court, the scope of section 48 of the Sale of Goods Act (the act) was elucidated: the computation of damages thereunder may be either general or special depending on the circumstances of each case. General damages refer to those which are foreseeable without proving that special circumstances were brought to the breaching party’s attention. Special damages are those which are foreseeable by the parties at the time of contracting because certain circumstances have been highlighted which render the damages within the realm of the signatories’ reasonable contemplation. These must be pleaded and proved at trial.
The plaintiff’s claim for special damages for the losses suffered by the breach was not proven before the High Court and were subsequently abandoned. The Supreme Court thus took the plaintiff to be entitled only to general damages under section 48 of the act. To this end, the plaintiff did not lead any evidence on the multipliers which would entitle the court to award enhanced damages. Section 48 caters to the contract price/market price differential and not to a computation of lost profits. The plaintiffs failed to adduce sufficient evidence to merit the proposed determination of damages and so the nominal award made by High Court in terms of s 48 was adequate.
The appeal was dismissed.