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. 
 

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 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. 
 

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.

In this case, the appellant protested the total absence of any service of the processes and claimed ignorance of the proceedings at the lower court. This case illustrates the essentiality of service of court process.

The court considered whether the appellant had been duly served with the notice of appeal, other processes filed by the respondent at the lower court and also the hearing notices. 

The court followed the principle provided in Ihedioha v Okorocha Appeal No. SC. 660/2015 (unreported, delivered on 29 October 2015) where it was held that service is an important aspect of judicial process. It was held that failure to serve a named party with court process offends section 36(1) of the Constitution. 

The court also took into account the provision of order 2 rule 6 of the Court of Appeal Rules, which stipulates that it is mandatory for the service of the notice of appeal on a respondent to be personal.

The court held that the validity of the originating processes in a proceeding before a court was fundamental because the competence of the proceeding is a condition sine qua non (an essential condition) to the legitimacy of any suit. The court held that there was a lack of certainty that the appellant was served with any process in accordance with practice and procedure of the rules of court.

The court upheld the appeal with no costs.
 

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 court determined that this was an application for special leave to appeal against the refusal of the Court of Appeal to discharge the order of the single judge of the Court of Appeal refusing to stay the execution of the preservation order made by the High Court.

The court determined whether the refusal to suspend the decision of the Court of Appeal could render the subsequent judgment nugatory. The court noted the difference between a stay and a suspension order. Further, the court stated that applications for the suspension of orders or decisions of lower courts where the conventional means of applying for stay of execution is not possible. The court held that the fact that the court granted the applicant leave to appeal against the ruling of the Court of Appeal was not an essential condition for the suspension of the ruling sought to be impeached. The court observed that the applicant raised the point that the failure of the application would render the subsequent judgment nugatory but failed to prove exceptional circumstances to merit the suspension of the order. Accordingly, the application was dismissed.

This was an application praying for special leave to appeal against the interlocutory decision of the Court of Appeal refusing a repeat application for stay of execution pending appeal.

The court considered whether the Court of Appeal misconstrued its jurisdiction under art. 138(b) of the Constitution or s. 12 (b) of the Courts Act. The court was of the opinion that the applicant failed to prove the constitutional requirement for special leave to appeal in s. 4(2) of the Supreme Court Act by failing to prove that the interlocutory appeal was likely to succeed. The court held that the applicant failed to prove that the single judge misused or abused his discretionary power. Accordingly, the application was dismissed.

This was an appeal of a decision of the Court of Appeal that allowed a defective notice to commence suit for compensation against the respondent who was adversely affected by the execution of an approved development plan.

The court mainly dealt with the procedural grounds of appeal. The court determined whether the Court of Appeal erred in holding that the holding that the respondents had complied with the provisions of s 127 of the Local Government Act, 1993 in service of notice to commence suit and form of the notice on record. The court found that the notice was seriously defective and set aside the respondent’s action against the appellant. The court applied the rule that courts have no authority to grant immunity from consequences of breaching a statute unless the statute is incurably bad. The court also determined whether the Court of Appeal misdirected itself in holding that the application of provision under section 56 of the Local Government Act, 1993 is discretionary.  The court interpreted the word “may” in this section to have a mandatory effect even though not stated in mandatory terms. Accordingly, the appeal succeeded and the judgment of the High Court was restored.

The court exercised its original jurisdiction to interpret constitutional provisions relating to the right of the General Legal Council to introduce examinations and interview as requirements for admission into the practical component of the law course.

The defendants raised a preliminary objection disputing the jurisdiction of the court claiming there was no issue of interpretation and also claimed that the plaintiff lacked locus standi (standing to bring the matter before the court). The court held that the matter was of public interest thus the plaintiff did not have to demonstrate personal interest. The court determined whether the imposition of the new admission requirements was unconstitutional. It was held that the council had the authority to do so but it was unconstitutional since the new requirements were implemented without legal backing (regulations). Secondly, the court determined whether the council’s failure to specify alternative places and modes of instruction for students who qualified to join the school of law was unconstitutional and held that the plaintiff was unable to prove the same. Accordingly, the matter succeeded in part and the court declared that the new admission requirements that led to exclusion of qualified persons were unconstitutional and that the Council’s policy on reviewing examination scripts and quota violated the constitution.

The appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.

Substantively, the court held that in a summary judgement application the plaintiff must bring a prima facie case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.

Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.

The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.