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.
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.
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 applicants sought an interim interdict against the respondent bank, with which they had a bank-client relationship, to restrain it from terminating the operations of the applicants’ banking facilities.
The court considered whether courts could direct the respondent to continue its operations in the country against its will. The court held that the respondent’s decision to exit the country’s banking sector is one that the courts cannot interfere with.
The court relied on the respondent’s constitutional right to trade, which also entails the election of not utilising such right. The court remarked that the respondent’s decision to cease operations in the country rested on commercial considerations which were highlighted in para 15 of the judgement.
The respondents right to or not trade supersedes any right the applicant may have, thus the application was dismissed with costs.
The court considered whether a Financial Services Provider (FSP) as regulated according to the Financial Advisory and Intermediary Services Act (FAAIS) was negligent by advising the plaintiff which led to a loss of two million Rands. Further, if the second defendant was liable to indemnify the first defendant for professional negligence considering the exclusion clause in the insurance contract.
The court held that s 16 of FAAIS requires that an FSP act honestly, fairly with due skill, care and diligence. Further that the FAAIS Code of Conduct requires professionalism, in the interest of the public. In the case of an insurance contract, the court held that an exclusion clause might make proper commercial sense, be consistent with and not repugnant to the purpose of the contract.
The court concluded that the defendant did not act in accordance with expectations of an FSP, the defendant was negligent and dishonest. Further, the purpose of the insurance contract was to indemnify the insured for professional negligence; the exclusion interpreted restrictively cannot be applicable in the case.
The defendant was ordered to pay damages of two million Rands plus interest and second defendant to indemnify the first defendant.