Commercial Law Index

In this case, the court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed. 
  
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.

The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.

In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.

The court dismissed the appeal. 
 

The appellant sought an order of the court nullifying the nomination of the first respondent as candidate of the second Respondent in the 2015 Governorship election in Yobe State. This case considered whether the lower court was right to have held that the appellant was not an aspirant in the second respondent for the purpose of invoking the provisions of s 87(9) of the Electoral Act (the act), and whether the lower court was right that the appellant had not established an allegation of forged documents.

The court held that two conditions must be present to confer the necessary locus standi to invoke the provisions of S 87(9) of the act, (1) there must be a complaint that the party’s guidelines or the provisions of the act were not observed in the nomination process and (2) the complainant must have participated in the primary election.  The court found that the appellant did not participate in the primary election and was thus unable to invoke the provisions of s 87(9) of the act. 

In determining whether a document has been forged, a party must prove; (1) the existence of a document in writing; (2) the document or writing is forged; (3) that the forgery was by the person being accused; (4) that the party who made it knew that the document was false; and (5) the party alleged intended the forged document to be acted upon as genuine. The court held that the court below was correct in holding that the appellant had failed to prove beyond a reasonable doubt that the document was forged. 

Appeal dismissed. 
 

The appellant sought to raise a fresh issue not canvassed in the court below. This case illustrates the court’s willingness to grant leave to raise and argue a fresh issue to ensure that justice prevails.

The court considered whether the applicants should be granted leave to raise and argue fresh issues on law in their appeal. In analyzing the principles for granting leave to raise fresh issues on appeal, the court held that one major consideration is if further evidence is required. The court held that it was satisfied that the fresh issue would be erected on the existing evidence in the printed record. 

The court also held that the fresh issues must constitute a substantial point of law which will materially determine the fortunes of the appeal. The court found that the application for leave to raise and argue a fresh issue of law had satisfied all the established principles or templates for the grant of leave. 

The court gave the appellant 30 days to file their brief of argument in this appeal. The court upheld the appeal. 
 

In this case, monies held by the appellant belonging to the Nigeria Customs Service were traced. An order nisi was served on the appellant as the fifth garnishee. This case illustrates how the garnishee proceedings do not avail the garnishee to attack a judgment that the judgment creditor and debtor have accepted.

The court considered whether the appellant should be granted leave to raise fresh issues in additional grounds of appeal. The court explained that garnishee proceedings were not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. The court held that a decision of a court of law not appealed against is to be accepted by the parties and it remains binding on them other parties, including garnishees.

The court held that the appellant had prayed for leave to raise issues that this court did not have the benefit of the views of the court below. The court considered order 2 rule 12 of the Rules of the Court which provide that the court may exercise its discretion to accept fresh evidence. The court held that there was a mischievous purpose attached to the appellant’s application and no power in law inheres in the garnishee to fight the cause of a judgment debtor.

The court concluded that the cause of action available to the garnishee was quite limited and therefore the application in this case was an abuse of the court process. 

The court dismissed the application with costs. 
 

A company was in an earlier judgment ordered to pay specific damages for loss of business resulting from unlawful impounding of vehicles. Adjunct to that case, this case was an application for a decree by arrest and sending to prison of the Managing Director of the company. This is permitted in law as a way of executing and enforcing a judgment debt.

The applicants contended that they had appealed that judgment and hence he could not be arrested. The High Court held that the only application before the Court of Appeal was one to extend the time to file Notice of Appeal. Further a judgment debtor needs to show good cause as to why an application to execute a judgment should not be granted. The filing of an application to extend the time within which to file a Notice of Appeal is not good cause because there is already a judgment in their favour and they should be able to execute.

The court granted the application to send the Managing Director to prison unless the company paid the damages as ordered. However, the court did hold that the carrying out of the application should await the result of the appeal as carrying out the order may prejudice the appeal.

In this case, the respondent had filed an application for the enforcement of a judgment by means of garnishee proceedings. The court then granted an order of garnishee nisi, which the appellants then filed an affidavit to show cause. The matter was heard and the court made the garnishee order absolute. This case illustrates effect of a null judgment.

The court considered whether the High Court erred in granting the garnishee orders absolute. The court considered the direct effect of the judgment that had been made by the same court. The court had found that the judgment of the court below was incompetent and therefore a nullity.

The court held that the law was settled that, ‘out of nullity nothing worth anything or something can emerge or be predicated’.  The court held that a null judgment though it existed as a fact, was devoid of any legal consequences. It was as if the judgment did not exist.

Therefore, the court concluded that the garnishee orders absolute made by the court below had automatically become nullity as well and were liable to be set aside ex debito justitiae (as of right).

The court upheld the appeal and wholly set aside the garnishee orders absolute.
 

This application was in relation to a court order that the Competition Appeal Court (the CAC) granted in June 2016. This order held that the agreement between the first and second respondents did not give rise to a merger within the meaning of s 12(1) of the Competition Act 89 of 1998 (the act).

In the current application, the core issue to be resolved was the proper interpretation of the order granted by the CAC. Furthermore, evidence was sought to be led with regards to the parliamentary hearing that was conducted on 7 December 2016.

The CAC held that this order was clear and unambiguous. Accordingly it was not open to the CAC to give it a fresh interpretation or to supplement its meaning. 

With regards to the parliamentary hearing, the CAC held that an order which would empower the commission to conduct interviews with both Mr Naidoo and Ms Makhobo fell outside the scope of the order it granted in June 2016. However, since the transcript of the parliamentary hearings was a public document, it found it not to be an obstacle to have the commission examine this transcript. The CAC held that whatever information contained in this transcript may be employed by the commission in order to make a recommendation as to whether the agreement falls within the definition of merger in terms of the act.

This issue was whether the Minister of Finance (applicant) has powers to intervene where the respondent's (Oak Bay Investments) bank accounts were being closed. In deciding the case, the court employed the Superior Court Act 10 of 2013 (the act) which empowers the court to enquire into and determine any rights and obligation a person can claim. 

The court held that the enquiry envisaged by s21(c) of the act encompasses a two-legged enquiry. The court must be satisfied that the applicant is a person interested in an existing, future or contingent right and whether the case is a proper one in which to exercise its jurisdiction.

The court ruled that there is no statute that empowers a minister to intervene in a private bank client dispute. Banks can terminate a relationship with a client at their own discretion. It observed that there was no uncertainty in regard to the relief sought by the applicant as there was a court precedent relating to relief being sought.  The court held that the Minister of Finance through his counsel knew very well that he has no power to intervene. The court ruled that it is not obliged to grant the order sought by the minister because there was no uncertainty in regard to the legal question. It ruled further that to allow the relief sought would breach the principal of separation of powers as it will amount to judiciary to stray into domain of the executive.

The issue was whether it would be just and equitable to wind up the respondents in terms of  s 81(1)(c)(ii) and s 81(d)(iii) read with s 157(1)(d) of the act on the grounds that executive directors of the first respondent unconsciously abused the corporate personality of the second respondent by acting unlawfully. The other issue was whether the minister had locus standi (the right or capacity to bring an action) to bring the application.

The court held that it was just and equitable to wind up a company if the company is conducting unlawful activities and where there is a deadlock between the parties. Further, that s 157 extends locus standi to a broad range of people.

The court found that there were just and equitable grounds to wind up the first respondent because there was a deadlock between the parties, unlawful misappropriation of public funds and non-disclosure. In that light, also wind up the second respondent because its existence depended on that of the first respondent. The court, also, found that the minister, as a member of the executive, had established the necessary locus standi to bring the application in the public interest in terms of s 157(1)(d).

Accordingly, the court granted the final liquidation and ordered that the costs of winding up include costs of the application.

The matter involves a merger approval application for an already implemented merger between Media24 and Novus following concerns raised by Caxton and a consequent divestiture.

The Competition Tribunal first considered whether the merger had raised any competition concerns. It dealt with two concerns; information exchange and input foreclosure. In assessing the information exchange concern, the tribunal accepted the parties’ assertion that appointing non-operational persons to the Novus board would minimise the risk of information sharing.

Concerning the possibility of competitor foreclosure, the tribunal accepted that the lack of Novus’ competitors to absorb the foreclosed capacity gives more incentive for foreclosure. However, it reasoned that this incentive is countered by the divestiture which reduces media24’s control, both de jure and de facto, over Novus. Further, it noted that the other publications handled by Novus are not in competition with Media24 thus it would not need to foreclose.

The tribunal also considered if the merger raised public interest concerns, mainly whether the merger would negatively affect smaller businesses. It was stated that noting that there is reduced possibility of market foreclosure - conduct which would negatively impact these businesses, these concerns fell away. Moreover, it was noted that the merger would in fact positively impact B-BBEE shareholders of Media24 hence it positively served public interests.

The Tribunal therefore concluded that considering the divestiture and the absence of negative competition and public interests impacts, the merger transaction has to be approved.

This was an application to compel the Competition Commission of South Africa to produce a record of investigation.

The issue emanated from an investigation by the respondent on banks on allegation of collusive conduct in regard to trade in foreign currency.  The applicant was one of the banks investigated. The applicant requested without success on several times for the record of investigation from the respondent. It then made an application to compel the respondent to provide the record.

The respondent opposed the application arguing that the applicant should have proceeded by way of review under Promotion of Administrative Justice Act (PAJA) because its action amounted to an administrative act. The applicant on the other hand argued that the commission’s conduct did not constitute administrative action and the tribunal should consider the application.

In deciding the matter, the Competition Tribunal held that the respondent action did not qualify as administrative action because it does not meet the requirement of finality. However, it found that the Competition Commission cannot be compelled to provide the requested record because of the complex nature of the process. It ruled that the respondent should provide the requested record during discovery.

The applicant instituted a civil suit against the respondent in 2013 in a lower court. This suit was in relation to a consulting and ICT support services fees provided by the applicant for the respondent. With the applicant having not taken any step to prosecute the matter since 2013, the respondent applied to have the suit dismissed for want of prosecution. The court accordingly dismissed the suit. 

In this court, the applicant sought an order to reinstate this civil suit and set aside the dismissal. The respondent contended that the applicant’s failure to take steps to prosecute the suit against the respondent for over three years, was justification for dismissal of want of prosecution. Furthermore, the applicant had not shown any justification for failure to take these requisite steps.

The respondent thus claimed that this application would prejudice him as he had been burdened by the suit since 2013. 

This court held that the reinstatement of this civil suit would indeed prejudice the respondent. The application was dismissed on the grounds that it defeats the defence of limitation (as the claim or suit proceeded out of time) available to the respondent.
 

The plaintiff supplier sued the defendant – its Local Technical Representative (LTR) in accordance with the National Drug Authority Act for the distribution of pharmaceutical products – for breach of contract. The defendant failed to pay the plaintiff for the assorted products it supplied. The plaintiff consequently claimed for loss of income, damages, interest and costs of suit. The defendant lodged a counter-claim alleging that the plaintiff/first counter-defendant had breached the memorandum of understanding concluded between the parties and had, through various means, attempted to cripple the defendant’s/counter-claimant’s enterprise. It alleged further, as the basis of its challenge to the legality of the arrangement between the first and second counter-defendants, that the just-mentioned parties had colluded in this endeavour so as allow the latter to become the new LTR. 

The defendants/counter-claimants successfully raised the procedural bar of res judicata – which prohibits judicially-decided matters from being heard afresh a second time – concerning the plaintiff’s claim, given that the matter of their indebtedness thereto had been resolved in the settlement of antecedent winding-up proceedings. To what extent ought the defendant’s/counter-claimant’s challenge have been raised as part of the previous lawsuit? Suggesting that res judicata was applicable to both parties’ claims, the court nevertheless considered the counter-claimant’s’ case in respect of the first and second counter-defendants and found no measure of illegality or bad faith on the evidence. The counter-claimant was additionally time-barred from seeking review of the National Drug Authority’s decision over the LTR change. 

The plaintiff’s suit and defendants’ counter-claims were accordingly dismissed with costs.