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 parties concluded a loan agreement to facilitate the appellant’s purchase of immoveable property. The appellant provided 30% of the fee while the rest was covered by the loan amount. Upon purchase, the property was assigned to the respondent. When the appellant defaulted on payment, the respondent purported to sell the property in execution of the debt.
The appellant contested the legality of this recourse, arguing that the relationship between the parties was such that the respondent held the property in a trust, for her benefit as part-owner, and would do so until which time she had paid back the amount owing. The appellate court concurred with the trial judge that the parties’ transaction clearly amounted to an equitable mortgage – rather than an implied trust – and that the respondent could dispose of the property in execution of the debt without the appellant’s consent.
The trial court’s decision to non-suit the plaintiff/respondent was also upheld by the appellate bench, who considered the well-established criteria for such an award. As the plaintiff had not failed in toto to prove its case, the defendant was not in any event entitled to the court’s judgment and no injustice would be caused thereto by the order, the relevant factors were deemed satisfied.
The appeal was dismissed.
The appellants appealed a judgment granting the respondent payment of a sum of money in terms of an indemnity agreement between the parties.
There were four issues for determination in the main appeal: whether the lower court had jurisdiction to hear the matter; whether the personal indemnity form did not constitute a contract between second appellant and first respondent to make second appellant personally liable to indemnify first respondent; whether the deposit of the second appellant’s title deeds with the first respondent was in furtherance of the personal indemnity form; and whether the judgment was against the weight of evidence.
As regards the first ground of appeal, the court found that the lower court was vested with the jurisdiction to hear the matter, as stated in the Insurance Act, 2003. The second ground was resolved in favour of the first respondent as the indemnity form was held to be a contract with the main aim of making the second appellant personally liable to indemnify the first respondent. Issue 3 was found in favour of the first respondent as the words of the document were found to have created an equitable mortgage over the second appellant’s property, using it as collateral to secure the counter indemnity granted by the first respondent on behalf of the second appellant. The fourth issue was resolved in favour of the first respondent, and the appeal was held to be lacking in substance and merit. The appeal was dismissed.