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.
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 applicant sought an order setting aside the judgement of the trial court due to a procedural flaw.
The court had to consider whether the trial court acted without jurisdiction when it struck out the application for a stay in proceedings.
The court held that the trial court, in not carrying out the required procedure when it struck out the application, acted without jurisdiction.
The court stated that the trial judge erred by allowing the respondent to make oral application and ought to have informed the respondent to file an application to relist the motion that was struck out. The court went on to say that it was settled practice that a formal application is required to restore motions that were previously struck out. As a result, the trial court, in deviating from settled practice acted without jurisdiction.
Consequently, the application for certiorari succeeds and the ruling of the trial court was quashed.