Comm Cases-1
Comm Cases-1
Comm Cases-1
CASES
Agreement
Law applied: requirements of action rhedhibhitoria are trite and have been
alluded well over the years. These include (a) the merx had a defect at the time of
the sale regardless of knowledge of otherwise of the time of sale, (b) the defect
has to be serious as to render the property unfit for the purpose for which it was
bought and (c) the buyer must restore the property to the seller.
Law applied: the onus was on the purchaser who invoked the action rhedhibitoria
to prove that the merx was latently defective at the time of sale. The purchaser
also has to prove that the defect was such that it rendered the merx unfit for the
purpose for which it had been sold.
Actio Quanti minoris
PASSSING OF OWNERSHIP
Requirements
Aedilition remedies
Latent Defects – These are hidden defects. It is not the seller’s duty to guarantee
against latent defects. To protect themselves sellers normally invoke voetstoots
clauses which limit the seller’s liability.
Section 5(1) (d) of the Consumer Contracts Act says that a court may find a
consumer contract to be unfair for the purposes of this act if the consumer
contract excludes or limits the obligations or liabilities of a party to an extent that
is not reasonably necessary to protect his interests.
CIF SALES
Gam Plastics (Pvt) Ltd v Speed Link Cargo (Pvt) Ltd HH-38-07
Chitakunye J
Gam plastics purchased a pneumatic punching machine from Queens Machinery
Company Limited, a Taiwanese company operating from Taipei, Taiwan on a
“cost/insurance/freight contract”. The plaintiff duly paid for the machine and
received a Bill of Lading. The carrier of the machinery was DSL Star Express. When
the machine arrived in Harare, the plaintiff demanded the plaintiff demanded the
release of the machinery. Defendant refused on the basis that it had been directed
by its principal not to release the goods until the seller of the goods has settled an
amount that was owed by it in respect of storage and handling charges incurred in
South Africa. The Plaintiff took the position that the defendant had an obligation
to release the machine as per its interpretation of the Bill of Lading. The defendant
on the other hand took the position that it had no such obligation and would only
release the machinery upon instructions from Principal.
Law applied: the contract being a CIF there are mercantile custom, certain
essential features which maybe varied in accordance with the actual agreement of
the parties. The ordinary obligations of the seller are:
d) To invoice goods to the purchaser debiting him with the agreed price and costs
of insurance and freight
Law applied: where credit is given but no specific date is given or date of payment
agreed upon, payment must be made within a reasonable time. The agreement did
not stipulate a period of payment in the event that the purchaser failed to obtain a
mortgage with Founder’s Building Society. Payment should therefore be within a
reasonable period is relative and depends upon the circumstances of each case.
HIRE PURRCHASE SALES
(1) The words of the exclusionary clause must be read as part of the contract as
a whole and they must be sufficiently clear and comprehensive to require
the court to give effect to them.
(2) Any ambiguity as to the meaning and scope of the exemption must be
resolved against the party who inserted it and the latter must prove that the
words used clearly and aptly embraced the contingency that has arisen
(3) If there is not express reference to negligence in the exemption, the court
must consider whether the words are wide enough, in their ordinary
meaning, to cover negligence on the part of the defendant or his servants
and, if they are, whether the claim for damages may be based on some
ground other than negligence.
(4) Where the existence of an exemption excluding liability for negligence is not
in dispute, the burden of establishing any other possible ground for liability,
such as gross negligence or dolus, rests upon the claimant.
(5) The exemption must be brought to the attention of the other party or must
be within the knowledge of the other party. Where an “owner’s risk” notice
is displayed so conspicuously that a normal person could hardly have failed
to see it, an inference will be drawn that it was seen by the other party.
(6) The exemption will not avail unless it was known at the time that the
contract was entered into; it is not binding if the party against whom it was
to be applied only became aware of the exemption after he had already
entered into the contract.
(7) A party cannot exempt himself from liability for the wilful misconduct or
criminal or dishonest activity of himself, his servants or his agents or
perhaps even from the loss of or damage to the subject matter of the
contract resulting from gross negligence on his part or the part of his
servants or agents.
Option
Where an agent has disclosed that he acts for the principal and has acted within
the scope of the express or implied authority conferred, a transaction effected by
the agent with a third party is binding between the principal and the 3 rd person.
Even if the agent has not acted in the interest of the principal or has actually
defrauded the principal, the latter is bound by the transaction, if the 3rd party was
not party to the irregularity, and if the agent acted in fact within the express or
implied scope of his authority.
Clearly where the agent acts within the scope of his mandate from the principal as
in the case, the principal is bound by the same transaction and if the agent has
defrauded the principle, by not remitting the requisite funds, it is for the principal
to deal with the agent and not to refuse to perform his part of the deal.
Gwafa v. Small Enterprises Development Corporation & Anor 1999 (2) ZLR 261
(SC)
Undisclosed Principal
The law allows an undisclosed principal to come forward and seek specific
performance from the third party.
An agent must prosecute mandate with diligence and always act in good faith. As
with every delict, the degree of skill and care that the agent must show will
depend on the circumstances of each matter. Look at reasonableness – diligent
paterfamilias. It has been held that a legal practitioner holds himself to clients as
possessing adequate skills, knowledge and learning for the purpose of carrying out
all lawyering business.
COMPETITION LAW
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
(CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30
September 2005)
“manufacturers may reduce and increase their prices in response to competitive
imperatives, as long as the price at no time exceeds the SEP that has been
established for that year and that these price increases do not occur more than
once a quarter.”
The merger comes at a critical time in the market for managed network services.
Specifically the strong trend towards IP-VPN solutions, a service with fewer service
providers, which exhibits strong scale and network effects to the benefit of initial
market leaders, suggests that the longer-term impact of the merger will be more
detrimental to competition than any initial increase in concentration
President of the Republic of South Africa and Others v M & G Media Ltd (CCT
03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29
November 2011)
Ratlhagane and Others v S (CAF 09/2011) [2012] ZANWHC 50 (3 May 2012)
There is nothing in our Act that suggests that an abuse of dominance cannot be
perpetrated in one market and the effect thereof be experienced in another
related market. Any contrary interpretation would mean that a dominant firm
could leverage its market power from one market to another with impunity
Airports Company South Africa Limited v Airport Bookshops (Pty) Ltd t/a
Exclusive Books (31580/2014) [2015] ZAGPJHC 154; 2016 (1) SA 473 (GJ); [2015]
3 All SA 561 (GJ) (3 July 2015)
It is clear that a firm with lawful monopoly power has no general duty to help its
competitors, whether by holding a price umbrella over their heads or by otherwise
pulling its competitive punchesâ¦Advertising a competitors product free of charge
is not a form of cooperation commonly found in competitive markets; it is the
antithesis of competitionâ.
Fighting cartels is one of the most important areas of activity of any competition
authority .....Of all restrictions of competition, cartels contradict most radically the
principle of a market economy based on competition.”
Horizontal price-fixing , market sharing and output-limitation agreements,
which are usually secret, are, by their very nature, among the most harmful
restrictions of competition. As a matter of policy, they will be heavily fined.
Therefore, the proportion of the value of sales taken into account for such
infringements will generally be set at the higher end of the scale.”
Harmony Gold Mining Company Ltd & Another and Mittal Steel South
Africa Ltd and Another (13/CR/FEB04) [2007] ZACT 21 (27 March 2007 )
Generally and particularly for the analysis of merger cases, the price to take into
account will be the prevailing market price. This might not be the case where the
prevailing prices have been determined in the absence of sufficient competition. In
particular for investigation of abuses of dominant positions, the fact that the
prevailing price might already have been substantially increased will be taken into
account.
LAW OF CARRIAGE
Independence Mining v Fawcett Security Ops 1994 (2) ZLR p222 Chidyausiku J
For a party to be a public carrier, it is not necessary for that party to have as its
main business the carriage of goods. When a party carries on the trade or
profession of carriage of goods as part of its business that is sufficient enough to
make that carrier a public carrier. There is nothing in the authorities that suggests
that a party has to have as its sole business the carriage of goods before it can be
regarded as a public carrier.
At the pre trial stage, it was agreed that the following question was to be placed
before the court as stated in the case. ; is the contract between the parties
governed by the Carriage by Air Act [Chapter 13:04]. In terms of the Carriage by
Air Act, the court has discretion in adjudicating cases in claims brought to enforce
liability limited by Article 22 of the Geneva Convention. The limitation imposed by
Article 22 of the Convention is a guide but not a……….limitation and as such as a
limitation, is qualified by the use of the words “just and equitable” in subsection 2
so he argued.
In line with the Cargo Carriers Concessions, members of the staff, be allowed
cargo up to a certain weight exceeding the general limit of each person or
passenger, but withut any details it is not possible to establish breeds
Rix Upholstery pvt ltd v Buddylphs pvt ltd (HC 7204/07) 2008
Dealing with the issue of the “owner’s risk” clause in the contract of carriage
between the parties, Dumbutshena CJ (as he then was)had this to say at page 315;
“Generally, carriers by land may contract themselves out of strict liability imposed
by the common law or limit their liability. The issue here is whether in spite of the
strict liability imposed by common law, the Respondent is exempted from liability
for damage occasioned by its servants’ negligence.”
Zoweta Manufacturers pvt ltd v Zimbabwe United Freight Company 1990 (1) ZLR
337
It his case, Chidyausiku J (as he then was) had to deal with the case of the
consignment of jewellery in a small parcel that was stolen together with a tricycle
belonging to an employee of the defendant as he was making deliveries the
consignment was in a padlocked cargo bi but the tricycle was itself left
unattended and unlocked. In absolving the defendant fom liability, the Chief
Justice, who was dealing with the exemption clause that specifically referred to
negligence had this to say;
“I am satisfied that for the Plaintiff to succeed he has to establish that the conduct
of the defendant’s employees constitute gross negligence. It will not be sufficient
for him to prove ordinary negligence”
Gam Plastics pvt ltd v Speed Civic Cargo pvt ltd (HC 1600/66) 2006
This case shows that whilst in a CIF contract, there are certain customs and
practices, such may be varied in certain instances. See page 15 B-E where Cloete J
said “the contract being a CIF sale, there are by …………custom, certain essential
features which may be varied in accordance with the actual agreement of the
parties.
(1) to ship to the agreed port of shipment the goods ……………..
(2) to procure a contract of affreightment for delivery of the goods at the
agreed destination (which includes the Bill of Lading evidencing the
contract)
(3) to arrange insurance current in the trade
(4) invoive goods to the purchaser debiting him with the agreed price of costs
of insurance and freight
(5) to tender to the purchaser documents in a valid and effective condition.
Modzone Enterprises (pvt) Ltd and Anor v Transtech Freight Zim (pvt) Ltd t/a UTI
(HC 476/11/02)2007
THE Company was not a common or public carrier. Itd carriage of goods is merely
incidental to the clearing and forwarding operations and it may refuse to accept
for carriage any goods or class of goods.
AMI Zim (pvt) Ltd v Casalee Holdings (Successors) 1997 (2) ZLR 77 (S) at 85
Standard Charteerd Bank v Dangarandove Land and Cattle Co pvt Ltd and Anor
HH 198-03
LEASE
Law Applied: the lease agreement should specifically describe the exact property
being let out. A brief description of the property is adequate. At law, the Lessor
should merely have the rights of occupation that he can pass onto the lessee. It
should also specify the period of the lease.