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 case considers the adducing of fresh evidence on appeal. The respondent had claimed title to a certain land. Dissatisfied by the High Court judgment; the appellants appealed to the Court of Appeal. On appeal they sought an order granting them leave to adduce new evidence. The reasons being:
1. that this evidence showed that the disputed land had been acquired by the government and that the respondent lacked the required locus standi to institute this case;
2. in an action to protect acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted leave to do so by the Attorney-General; and
3. that the trial court lacked jurisdiction to have heard the case.
The respondent contended that the documents now sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the court and that it was the appellants' choice then not to tender these documents.
This court agreed with the counsel for the appellants. In the judgment, the court found the documents entailing strong points which would likely affect the jurisdiction of the trial court.
Additionally, the issue of jurisdiction was found to be fundamental and could be raised at any stage of the proceedings (even for the first time in this court).
Thus, in the interest of justice. these documents could be tendered on appeal as fresh evidence.
The case considered the following issues, being (1) whether the lower court was right when it struck out the appellants notice of appeal on the ground of non-payment of filing fees; (2) whether the lower court was rights when it held that the witness statement constituted evidence sufficient to grant default judgment; (3) whether the lower court awarded a double compensation in respect of the same alleged loss; and (4) whether the lower court’s findings with respect to the award for special damages is competent.
The court held that an appeal is not filed unless the appropriate filing fees are paid. However, the fact that the registry failed to collect the filing fees should not be to the detriment of a litigant. Therefore, the lower court erred in striking out the notice of appeal on the ground of non-payment of the filing fees, as the appellant was not ordered to satisfy the filing fees. On the issue of the witness statement, the court found that the evidence to support a default judgment can be oral or documentary. Thus, judgment could be entered into in default based on the statement of claim, or a witness statement. On the issue of damages, the court held that the principle of assessment of damages is to restore the plaintiff to the position in which he would have been if the breach did not occur. The court found that a party cannot be awarded both special and general damages for the same set of fact. The court confirmed that the damages awarded amounted to a double compensation.
Appeal succeeds in part.
This appeal is in relation to whether an order of non-suit was the appropriate order. The appeal originated from an institution of an action against the respondents. The action was centred around an order for damages, due to an unlawful dismissal from employment. The respondent disputed these claims as they contended that the contract was lawfully terminated.
The courts below granted judgment in favour of the appellant. However, in the Court of Appeal a piece of evidence belonging to the appellant was expunged on the ground that those pleadings did not constitute evidence. An order of non-suit was made by the Court of Appeal. It is that order of non-suit that gave rise to this appeal at the Supreme Court.
The appellant submitted that there was a breach of the fundamental right to fair hearing as the non-suit was instituted before hearing. Furthermore, he claimed to have satisfactorily proved his case for damages on the now expunged evidence and that this was therefore not a case in which an order of non-suit ought to have been made.
This court resolved this issue in the appellant's favour and the judgment of the Court of Appeal was set aside. Accordingly, this appeal was remitted to the Court of Appeal to be heard by a different panel.
The subject matter in this case is a market stall at Igbudu Market, Warri. The second respondent permitted the appellant the use of a stall, ordinarily used by the appellant, during a temporary absence. However upon the second respondent’s return, the appellant refused repeated requests to vacate the stall.
In essence, this claim was for the possession of thr stall. The court was called upon to decide in whom the right to the stall resides.
It was the appellants claim that she was afforded lawful entry to the property. Additionally, that as a sub-tenant she was entitled to six months notice of eviction as per legislation. Such notice was not granted by the second respondent. The second respondent claimed damages for trespass to the stall. The judgment in the court below was in favour of the respondents.
On appeal, the appellant argued that the High Court did not properly evaluate certain evidence adduced. In any event, had it been properly evaluated, the judgment would have been favourable to the appellant. Thus, there was a miscarriage of justice.
This court held that the evidence that the appellant held on to possession of the stall could not on its own confer possession of the disputed stall. It found no merit whatsoever in this appeal and dismissed the appeal.
The subject matter of this appeal was an allegedly defamatory letter published by the appellant bank, relating to the respondent. This letter was compiled by the second appellant who was the bank’s employee, directed to the respondent’s employer. The contents related the respondent's alleged indebtedness to the bank and sought their cooperation in recovering the debt. It later transpired that this letter ought to not have been sent, as there was in fact no debt as alleged.
The respondent then claimed that the letter was defamatory and instituted a claim for damages. The appellants counterclaimed and raised the defence of qualified privilege. The courts below entered judgments in favour of the respondent and awarded damages in his favour.
The question on appeal is whether the court below was right to have held that the defence of qualified privilege did not avail the appellants.
The appellants went to great lengths to show that the second appellant and the respondent had never met before the defamatory letter was written and argued that this fact rebutted the inference of actual malice. The respondent claimed that the second appellant was motivated by malice in writing the letter.
This court found that the finding of the court below that the appellants were actuated by malice was erroneous. On the basis that the pleading lacks malice as a requirement, the appeal was upheld.
The appellant is a commercial bank and the respondent a holder of several accounts in the bank. The Imo State Task Force for the Recovery of Public Property and Funds (the task force) alleged that the respondent used contracts to defraud the Imo State government and paid the proceeds into the said accounts with the appellant.
The respondent admitted that the moneys in the two accounts operated with appellant were payments he received from the contracts which he failed to perform. The task force ordered the transfer and freezing of funds in these accounts pursuant to the Recovery of Public Funds and Property (Special Provisions) Edict, 1985, section 18(1). After hesitation and unfruitful communication with the respondent, the appellant consequently complied with the order of transfer and freezing of the funds in the account.
The courts below held that the action as constituted was a banker/customer relationship. Therefore, the court had jurisdiction to hear the matter.
However, this court held that the matter went beyond an ordinary banker/customer relationship. The freezing of the account of the respondent and subsequent transfer of the funds therein to government's’ bank account were acts done under Edict No. 7 of 1985. Thus, the cause of action was consequently not subject to litigation.
A preliminary objection by the respondent set out to expose the lack of due diligence on the part of the appellant. The respondent’s claim was that the appellant’s records were fundamentally defective and incompetent. This was because the records of the appellant were issued signed by "N. Nwanodi & Co," (which is not a legal practitioner recognized by law in Nigeria) instead of counsel’s actual name.
The counsel for appellant stated that the habit of legal practitioners' merely signing court processes in their firm's name without indicating their actual name has been allowed by this court in many cases. Thus, it was an over-adherence to technicality to annul the process improperly filed.
The respondent sought this court to employ purposive interpretation of sections 2(1) and 24 of the Legal Practitioners Act (the act) that would lead to the conclusion that the record filed was indeed fundamentally defective.
This court upheld the preliminary objection of the respondent. It held that the appellant's' notice of appeal was fundamentally defective. It concluded that the purpose of sections 2(1) and 24 of the act was to ensure accountability on the part of a legal practitioner who signs court processes.
The question for the court was whether a respondent who never pleaded his entitlement to a defence can be lawfully refused the reliefs he seeks against an appellant.
The respondent claimed title to the land in dispute, alleged trespass against the appellant and sought an injunction. On appeal, the appellant claimed laches and acquiescence against the respondent. This was on the basis that the respondent stood by waiting for the appellant to complete his residential building and moved in before he took legal steps.
The contention of the respondent was that the equitable defence of laches and acquiescence did not arise in the court below and therefore the respondent could not be said to be guilty of any.
This court held that the respondent, from his pleadings and evidence, continued to have the right to exclusive possession of the land in dispute. The appellant violated this right. The appeal was dismissed for lack of merit.
It was further held that the respondent failed to adhere to the rules of pleading in the conduct of their cases, therefore the respondent may not make any case outside the matters he pleaded.
This case concerned the appellant's entitlement to notice of meeting prior to removal as company director. The appellant claimed relief for a declaration that his purported dismissal was a repudiatory breach of his contract of employment and that he was denied the right to a notice meeting pursuant to sections 236, 262 and 266 of Companies and Allied Matters Act (CAMA).
The counsel for the respondent contended that against the background of the appellant's contention the trial court had no jurisdiction to entertain the complaint. Given the above claim of the appellant, he should have approached the Federal High Court for the resolution of his complaint of the breaches and not the trial court.
This court held that the dismissal of the appellant was not lawful because of lack of due process. However, the trial court below lacked jurisdiction and since the trial court lacked the jurisdiction to enter the matter, the lower court, equally, lacked the jurisdiction to deal with the appeal before it. Thus, the appeal was found to be unmeritorious and was struck out for want of jurisdiction.
The respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him. The respondent instituted a claim on this basis. The trial court judgment was in the respondent’s favour.
After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application.
The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.
This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed.
The respondent sued the appellant for default of payment in respect of loans granted to the appellant by the respondent in the course of the appellant’s employment.
The appellant claimed that liability in respect of the car loan should not have been determined solely by reference to the formal contract. Instead, the court should have had regard to extrinsic evidence.
The appellant further claimed that the summary judgment granted against him by the court below was erroneously made as there was a plausible dispute between the parties for which leave should have been granted to the appellant to defend the action. The respondent contended that the factual situation representing the appellant's defence did not constitute a good defence on the merit to the claim of the respondent. This court agreed with the respondent.
The appellant submitted that his continued retention in the employment of the respondent was a condition precedent to his repayment of the loans and his employment having been terminated, the enforcement of the personal loans had been frustrated. This court held that this stance was not sustainable because the contracts of employment and personal loans between the parties were two distinct contracts and their duration not co-existent. Thus, the appeal was dismissed.
The case concerned the jurisdictional issue that was raised and whether the lower court had the jurisdiction to adjudicate upon the matter. Furthermore, the court considered whether a party was entitled to raise a new issue on appeal which hadn’t been previously canvassed. It was found that where a party seeks to raise a fresh issue on appeal, he must seek leave of the court. It was stated that it can never be too late to raise the issue of jurisdiction due to its fundamental and intrinsic nature and effect in judicial administration. The issue of jurisdiction is the court’s authority to hear the suit. If a court lacks the jurisdiction to hear the suit and proceeds to entertain it, the proceedings and judgment amount to a nullity. It was found that none of the below courts had jurisdiction to hear the suit and as a result the appeal court could not exercise its jurisdiction. Appeal dismissed.
This was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee.
The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.
Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.
In this case, the court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed.
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.
The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.
In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.
The court dismissed the appeal.
The underlying dispute between the parties related to an entitlement of the appellants to a proper statement of account by the respondents. The question at issue was whether the order of the high court was appealable and if so, whether the appellants had made out a case for a two-state judicially controlled procedure, dealing first with the adequacy and second with the accuracy of the accounts.
In making a decision the court was guided by the principle that a judgment or order has three attributes, first, the decision made must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definite of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. The principles however are neither exhaustive nor cast in stone. An order may not possess all three attributes, but will nonetheless be appealable if it has final jurisdictional effect.
The court held that the order of the court a quo had effectively precluded the appellants from contesting the adequacy of the accounts, an issue that had been a bone of contention between the parties thus making the decision of the court a quo appealable. In the result, the appeal succeeded.
The respondent’s non-disclosure of the nature of a business conducted by a tenant on its insured premises was held to be material for the purposes of s 53(1) of the Short-Term Insurance Act. The court ruled that the failure to advise appellant of highly flammable materials being used to manufacture truck and trailer bodies on the property rendered the insurance contract void. The court found that a reasonable, prudent person would have viewed the disclosure of this information as relevant to the overall risk assessment, and that appellant had been induced into extending the cover.
The respondent unsuccessfully raised the defence of estoppel based on appellant’s failure to conduct a survey of the premises, at respondent’s request, to identify potential risks which could affect the policy. The court found that no misrepresentation could be shown on appellant’s part; estoppel was therefore not established.
Wallis JA concurred with the majority ruling but focused his reasoning on the practical and logical flaws in the respondent’s justification for its non-disclosure.
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 case dealt with a claim for wages of a ship’s crew members for having been kept hostage by Somali pirates. This case illustrated the similarities between Indian and South African maritime law.
The crisp issue before this court was whether at the time of the second appellant’s arrest at the respondent’s instance, there existed a maritime lien for crew’s wages entitling the respondent to arrest the second appellant by way of an in rem arrest in terms of s 3(4)(a) of the Admiralty Jurisdiction Regulation Act. The court held that a maritime lien is a maritime claim that constitutes one of the bases upon which a claimant may found an action in rem. It also confers a certain preference in ranking of claims.
The court considered the two-pronged enquiry into the existence of a maritime lien, Firstly, on a prima facie basis, whether the respondent had established the existence and nature of the claims sought to be enforced in rem against the second appellant. Secondly, the court had to determine whether the respondent prima facie established claims which, by reason of their nature and character, were protected by maritime lien in South African law.
The court was satisfied that there was no obligation on the second appellant to pay crew’s wages as these payments. The court reasoned that there had been a supervening event that caused the fulfillment of the crew’s employment contracts impossible. Therefore, there was no claim for unpaid wages giving rise to a maritime lien enforceable by an action in rem. Accordingly, the court upheld the appeal and ordered that the deemed arrest be set aside.
The court considered whether the South African Breweries (SAB), a dominant manufacturer and distributor of beer products, engaged in anti-competitive behaviour, by securing distribution agreements which constituted restrictive horizontal, alternatively, vertical practices in terms of s 4(1)(b)(ii) and s 5(1) of the Competition Act 89 of 1998 (‘the act’).
The commission challenged the distribution agreements and alleged that the SAB had contravened s 4(1)(b)(ii) of the act as a result of the exclusive territories awarded to appointed distributors (ADs) for distribution, amounting to a market division. The relationship between SAB and the AD’s were considered to determine whether they were competitors as contemplated in the act.
In applying the concept of ‘characterisation’ the pivotal question is a) whether the parties were in a horizontal relationship; and if so, b) whether the case involved the division of markets as contemplated in the act.
The court confirmed that, the ADs could not be seen to be autonomous economic actors, independent of the SAB, and were not in a competitive relationship with one another. Further, the true relationship was primarily a vertical one, encompassing a horizontal component, flowing from the vertical arrangement. The agreements did not amount to lessened intra-brand competition, preventing rival distributors from succeeding in the distribution within the market.
The court held that, there was not enough evidence to support the contention that the agreement had the effect of substantially preventing or lessening competition in the market, thus, there was no diminished consumer welfare supporting the prevention of competition in the market. The appeal was dismissed with costs.
The Competition Appeal Court considered whether the appellant’s pricing on polypropylene (PP) constituted excessive pricing and hence contravened section 8(a) of Competition Act 89 of 1998 (the act).
In establishing the proper interpretation of excessive pricing, the court looked at s 8(a) read with s1(1)(ix), placing more emphasis on the phrase ‘economic value.’ It considered domestic and foreign decisions and arrived at the determination that the pricing standard to be assessed should be the actual sale price and not a hypothetical price.
Regarding the economic value costing assessment, the court underscored the need to take into consideration costs that include depreciated insurance values related to capital costs; the tax effects, capital reward charges and common costs.
The court also looked at the reasonableness of the sale price when taken in relation to the economic value. It held that for s 8(a) to apply the price should be higher than economic value and should bear no reasonable relation thereto.
Acknowledging that the evaluation is a value judgement, the court rejected the Competition Tribunal’s assessment arguing that prices above economic value are not per se unreasonable. Instead, it held that conscious of the low nature of the price mark-up, there was no justification for judicial interference as this did not constitute a substantial increase.
The court thus concluded that the price did not constitute excessive pricing as required by the act. The appeal was therefore upheld.
The court considered whether a licensing agreement concluded between the parties, granting certain rights for a period of 5 years, amounted to a merger in terms of s 12(1) of the Competition Act 89 of 1998 (the act).
The focus was on whether the transaction would lead to structural changes in the market, thus, whether there is a reasonable chance that the transaction could impact on a competitive market outcome. It was argued that the transaction amounted to a transfer of the second respondent’s business, thus an acquisition of control. The court considered what is the appropriate test for acquiring or establishing direct or indirect control over the whole or part of the business for another was. Thus, in line with USA academic Professor Herbet Hovenkamp’s ‘Hovenkamp test’, the component of the business which was transferred must have constituted part of the business of the transferor, which has now been placed under direct or indirect control of the transferee.
The court held that, there had been no transfer of productive capacity which would amount to the transfer of market share, indicating that the transfer of the business could not have taken place within the realm of the license agreement. The court ordered that the commission was to give a report ascertaining whether there had been a change of control, and if it had, then the matter was referred back to the tribunal for determination.
The court held that, there was nothing in the agreement which amounted to a merger as defined in terms of the act. Appeal upheld.
The appellants are the only producers of andalusite in South Africa. The appellants notified the competition commission (the commission) of an intermediate merger in terms of s13A Competition Act 89 of 1998 (the act), which the commission prohibited. The competition tribunal (the tribunal) confirmed that prohibition. The appellants appealed to the competition appeal court (‘CAC’) contending that the merger should have been permitted subject to tendered conditions.
The CAC held that the tribunal ought to have relied on the s12A test where:
(i) it determined at first whether merger is likely to substantially prevent or lessen competition ;
(ii) whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in s12A(3) of the act; and
(iii) if the determination in (i) is ‘no’, the tribunal must determine whether the merger can or cannot be justified on substantial public interest grounds.
The CAC concluded that the merger was anti-competitive as it would give rise to a monopoly market. Additionally, the merging parties failed to portray any pro-competitive gains or public interest considerations which justified the merger. The appeal was therefore dismissed.
This application was in relation to a court order that the Competition Appeal Court (the CAC) granted in June 2016. This order held that the agreement between the first and second respondents did not give rise to a merger within the meaning of s 12(1) of the Competition Act 89 of 1998 (the act).
In the current application, the core issue to be resolved was the proper interpretation of the order granted by the CAC. Furthermore, evidence was sought to be led with regards to the parliamentary hearing that was conducted on 7 December 2016.
The CAC held that this order was clear and unambiguous. Accordingly it was not open to the CAC to give it a fresh interpretation or to supplement its meaning.
With regards to the parliamentary hearing, the CAC held that an order which would empower the commission to conduct interviews with both Mr Naidoo and Ms Makhobo fell outside the scope of the order it granted in June 2016. However, since the transcript of the parliamentary hearings was a public document, it found it not to be an obstacle to have the commission examine this transcript. The CAC held that whatever information contained in this transcript may be employed by the commission in order to make a recommendation as to whether the agreement falls within the definition of merger in terms of the act.
Competition – Unlawful Competition – Collusive Tendering – appropriate penalty
The case is an appeal by Media 24 Property Ltd which owns Forum and Vista community newspapers distributed in Welkom town against a decision of the Competition Commission Tribunal (the tribunal) which found that the selling of Forum newspaper in Welkom was predatory in contravention of s 8(c) of the Competition Act (the act). The tribunal ruled that the Forum newspaper was priced below the average cost to the detriment of other newspapers. In order to reach its decision, the tribunal employed the Average Total Cost concept (ATC).
On appeal, the appellant was challenging the use of the ATC concept as an appropriate benchmark for determining predatory pricing under the act. The court held that there are two tests for determining predatory pricing under s 8(d)(iv) being the benchmark of marginal cost and the Average Value Cost (AVC). It ruled that in order for the respondent (the commission) to show that the conduct of the appellant was predatory in nature, it needed to establish that the appellant is the dominant firm involved in selling goods below the marginal or (AVC). The court found that the ATC standard cannot be used to measure predatory pricing. It ruled that the Average Avoidable Cost (AAC) was the appropriate cost benchmark to determine predatory pricing. In light of evidence provided by the parties, the court found that the respondent failed to prove that Forum’s AAC exceeded its revenue hence the appeal was upheld.
Competition – Shareholders agreement – Non-compete clause – Whether a violation of horizontal restraints under the Competition Act
Contract – limitation of liability clause – suing in delict to escape application of limitation of liability clause
Delict – wrongfulness – duty of care
The applicants sought to interdict the respondents from applying the provisions of the Medicines and Related Substances Act (Medicines Act) and prevent them from seizing and detaining Playboy e-cigarettes and hookahs pending the outcome of part B of the application. A consignment of e-cigarettes belonging to the first applicant was seized by the first respondent. Part B of the application was a review of the decision by the respondents to amend Schedules 1, 2, and 3 of the Medicines Act.
The two issues in dispute were that the Medicines Act was being selectively enforced against the applicant as there had been no measures or steps taken in the past against other importers, distributors or retailers of e-cigarettes. Secondly, that the seizure of the consignment was not in accordance with the Medicines Act.
The respondents contended that selective enforcement took place due to capacity constraints. Whether or not the selective enforcement was constitutional depended upon whether there was a rational basis therefor. The court held that the selection was irrational and targeted the applicant for no objective reason. The means by which the respondent went about enforcing the Medicines Act against the applicant and no other retailer, distributor or importer was not connected to the governmental purpose of regulating e-cigarettes containing nicotine. The seizure of the consignment was set aside in terms of the Promotion of Administrative Justice Act. The court held that there was no need to make a determination on the interpretation of the Medicines Act.
The application was granted with costs.