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 case concerned an appeal against the ruling of the High Court relating to land ownership.
Based on the evidence adduced in the High Court, the court had to consider whether the appellant and the respondent proved their respective cases and whether the land in question was clearly described during the trial.
The court held that only the appellant was able to prove his case and that the land in question was clearly identified by the appellant.
The court went on to state that the appellant was able to prove title to the land in question through his grandfather and that the respondents did not dispute the claim. Furthermore, the respondents asserted in their pleadings that the land in question was acquired by the state but failed to discharge the burden that rested on them in proving so. The court ruled in favour of the appellant in so far as him being able to clearly identify and describe the land in question.
The appeal succeeded, and the judgment of the High Court was set aside. The court confirmed that the title of the land vested in the appellant and granted a perpetual injunction restraining the respondents from trespassing on the land.
The court determined the principles of granting a stay of execution and injunction pending appeal in a case that involves a state government.
The first respondent raised a preliminary objection on the jurisdiction of the court, since there was a stay of execution pending in the court below on the same issue and the first appellant had not appealed on the attachment of the appellant’s monies in banks (garnishee order). In determining its jurisdiction, the court applied Order 4 Rule 6 of the Court of Appeal Rules 2011 (Rules of the Court) and held that it had discretionary powers to make injunctions pending appeal even when no application lied in the court below depending on the facts and circumstances of the case. Additionally, the court held that there was an appeal predicated on the garnishee order thus the issues were properly before it.
The court set out the principles of granting a stay of execution and injunction pending appeal: to preserve the subject matter of the appeal from irreparable damage pending appeal. It also held that the principles are applied when a party has an arguable appeal and to enhance public interest.
The court observed that the appellant had admitted its indebtedness to part of the judgment debt and held it just and fair to refuse the application with respect to that amount. The court held that the trial court erred in granting garnishee orders on balance of the judgment debt. Accordingly, the application succeeded in part.
The court considered an application by way of notice on motion for an interlocutory injunction restraining the respondents from enforcing the National Media Regulations pending the court’s determination of the substantive suit. The substantive suit related to declarations that the requirement for prior authorization of consent as well as the criminal sanctions were contrary to the Constitution.
The court confirmed that whereas in public law, a court ought to be slow in granting interlocutory injunction, it still has the power to grant one. This is especially so in exceptional cases where there is a need to restrain enforcement of legislation that is being challenged on substantial grounds. The courts will grant an injunction to avoid irreparable injury being caused by the enforcement of a potentially unconstitutional piece of legislation that is being challenged. On this basis, the application was granted.