About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 176
|
|
Lead and Soldiers CC and Others v City of Cape Town and Another (10383/18) [2018] ZAWCHC 176 (14 November 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
“
REPORTABLE”
Case
No:
10383/18
In
the matter between:
LEAD
AND SOLDERS CC
First
Applicant
THE
JANODIEN FAMILY TRUST
Second
Applicant
ABDUL
AZIZ JANODIEN
Third
Applicant
and
THE
CITY OF CAPE TOWN
First Respondent
LUNGELO
MBANDAZAYO N.O.
Second
Respondent
JUDGMENT
DELIVERED ON 14 NOVEMBER 2018
Vos,
AJ
Introduction
[1]
In February 2017 the first applicant (“Lead
and Solder”), and the second applicant (“the Family
Trust”)
submitted quotations to the City of Cape Town (“the
City”) for the supply of solder, and lead solder tin alloy. At
the time, the third applicant (“Mr Abdul Janodien”) was
the sole member of Lead and Solder, and the Family Trust.
[2]
The City believed that the applicants colluded
about their quotations and charged Lead and Solder, and the Family
Trust with breaching
the City’s policy which is styled
“Combating Abuse of Supply Chain Management System” (the
“Abuse Policy”).
In order to deal with the allegations,
it appointed the second respondent (“Mr Mbandazayo”) as
the presiding officer
of the hearing.
[3]
On 3 April 2018 Mr
Mbandazayo
handed down rulings whereby he found that the applicants
had contravened the Abuse Policy. On 17 May 2018 sanction rulings
were
handed down, and in terms thereof, the applicants were
restricted from doing business with the City.
[4]
Aggrieved by these rulings, the applicants now
apply for the following relief:
“
[1]
That
the following conduct and/or decision(s) be reviewed and set aside:
[1.1]
The first and/or second respondents’ ruling, dated 3 April
2018, in terms of the “City’s Abuse of Supply
Chain
Management System Policy (dated 30 March 2009 and amended by Council
on 22 June 2011) (“the SCM Policy”) in relation
first
and/or the third applicant.
[1.2]
The first and/or second respondents’ ruling, dated 3 April
2018, in terms of the SCM Policy in relation second and/or
the third
applicant.
[1.3]
The first and/or second respondents’ sanction ruling, dated 17
May 2018, in terms of the SCM Policy in relation second
and/or the
third applicant.
[1.4]
The first and/or second respondents’ sanction ruling, dated 17
May 2018, in terms of the SCM Policy in relation second
and/or the
third applicant
.”
[5]
In order to arrive at a decision whether the
applicants are entitled to the relief that they seek, a convenient
starting point is
the evaluation of the applicable legislative
framework, insofar as it applies to public procurement.
The
legislative framework
[6]
The regulation of public procurement is founded
in section 217 of the Constitution, which prescribes that it must
occur in accordance
with a system that is fair, equitable,
transparent, competitive and cost effective.
[7]
Section 217 reads as follows:
“
217
Procurement
(1)
When an organ of state in the national,
provincial or local sphere of government, or any other institution
identified in national
legislation, contracts for goods or services,
it must do so in accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs
of state or institutions referred to in that subsection from
implementing a procurement
policy providing for-
(a)
categories of preference in the allocation
of contracts; and
(b)
the protection or advancement of persons,
or categories of persons, disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a
framework within which the policy referred to in subsection (2) must
be implemented.”
[8]
The Local Government: Municipal Finance
Management Act, No. 56 of 2003 (“the MFM Act”) regulates
the supply chain management
of municipalities. The objects of the MFM
Act are set out in section 2, as follows:
“
2
Object
of Act
The object of this Act
is to secure sound and sustainable management of the fiscal and
financial affairs of municipalities and municipal
entities by
establishing norms and standards and other requirements for-
(a)
ensuring transparency, accountability and
appropriate lines of responsibility in the fiscal and financial
affairs of municipalities
and municipal entities;
(b)
the management of their revenues,
expenditures, assets and liabilities and the handling of their
financial dealings;
(c)
budgetary and financial planning processes
and the co-ordination of those processes with the processes of organs
of state in other
spheres of government;
(d)
borrowing;
(e)
the handling of financial problems in
municipalities;
(f)
supply chain management; and
(g)
other financial matters.”
[9]
Section 111 of the MFM Act provides as follows:
“
111
Supply
Chain Management Policy
Each municipality and
each municipal entity must have and implement a supply chain
management policy which gives effect to the provisions
of this part”.
[10]
In
terms of section 168 of the MFM Act,
Municipal Supply Chain
Management Regulations were
promulgated on 30 May 2005 under General
Notice 868 in GG 27636. I shall refer to those regulations as “the
Municipal Supply Chain Management Regulations&rdquo
;.
[11]
The
Municipal Supply Chain Management Regulations provide
in detail for
the establishment and implementation of the Supply Chain Management
Policies, as well as for the relevant framework
of the policies.
[12]
Regulation 38
of the
Municipal
Supply Chain Management
Regulations,
reads
as follows:
“
38
Combating of abuse of supply
chain, management
(1)
A supply chain management policy must
provide measures for the combating of abuse of the supply chain
management system, and must
enable the accounting officer –
(a)
to take all reasonable steps to prevent
such abuse;
(b)
to investigate any allegations against an
official or other role player of fraud, corruption, favouritism,
unfair or irregular practices
or failure to comply with the supply
chain management policy, and when justified –
(i)
take appropriate steps against such
official or other role player; or
(ii)
report any alleged criminal conduct to the
South African Police Service;
(c)
to check the National Treasury’s
database prior to awarding any contract to ensure that no recommended
bidder, or any of its
directors, is listed as a person prohibited
from doing business with the public sector;
(d)
to reject any bid from a bidder-
(i) if any municipal
rates and taxes or municipal service charges owed by that bidder or
any of its directors to the municipality
or municipal entity, or to
any other municipality or municipal entity, are in arrears for more
than three months;
(ii) or who during the
last five years has failed to perform satisfactorily on a previous
contract with the municipality or municipal
entity or any other organ
of state after written notice was given to that bidder that
performance was unsatisfactory;
(e)
to reject a recommendation for the award
of a contract if the recommended bidder, or any of its directors, has
committed a corrupt
or fraudulent act in competing for the particular
contract;
(f)
to cancel a contract awarded to a person
if –
(i) the person
committed any corrupt or fraudulent act during the bidding process or
the execution of the contract;
(ii) or an official or
other role player committed any corrupt or fraudulent act during the
bidding process or the execution of
the contract that benefited that
person; and
(g)
to reject the bid of any bidder if that
bidder or any of its directors –
(i) has abused the
supply chain management system of the municipality or municipal
entity or has committed any. improper conduct
in relation to such
system;
(ii)
has been convicted for fraud or corruption
during the past five years;
(iii)
has wilfully neglected, reneged on or
failed to comply with any government, municipal or other public
sector contract during the
past five years;
(iv)
or has been listed in the Register for
Tender Defaulters In terms section 29 of the Prevention and Combating
of Corrupt Activities
Act (No 12 of 2004).
(2) The accounting
officer must inform the National Treasury and relevant provincial
treasury in writing of any actions taken in
terms of sub-regulation
(l)(b)(ii), (e) or (f)”.
[13]
In
accordance with the obligations imposed upon the City in terms of
section 111 and 112 of the MFM Act, as supplemented by the
Municipal
Supply Chain Management Regulations, the
City adopted a Supply Chain
Management Policy
[1]
.
[14]
Paragraph 53 of the Supply Chain Management
Policy deals with the combatting of abuse of the Supply Chain
Management Policy:
“
Combating
Abuse of the Supply Chain Management Policy
53. The City Manager
must provide measures for the combating of abuse of the supply chain
management system and is able to:
53.1
take all reasonable steps to prevent such abuse;
53.2
investigate any allegations against an official, or
other role player, of fraud, corruption, favouritism, unfair
or
irregular practices, or failure to comply with the supply
chain management system and when justified, to:
53.2.1 take
appropriate steps against such official or other role player;
or
53.2.2 report
any alleged criminal conduct to the South African Police
Service;
53.3
check the National’s Treasury’s Database of
Restricted Suppliers prior to awarding any contract to
ensure
that no recommended bidder, or any of its di rectors, members
or partners, is listed as a person prohibited
from doing
business with the public sector;
53.4
reject any bid from a bidder:
53.4.1 if any
municipal rates and taxes or
municipal service charges
owed by the
bidder, or any of its directors,
to the City
or any of the City’s
municipal entities, or any other municipality
or municipal entity, are in arrears for more than three months; or
53.4.2 who
during the last five years has failed to perform
satisfactorily on a previous contract with the City
or its municipal
entities or any other organ of state after written notice was
given to that bidder that performance
was unsatisfactory;
53.5
reject a recommendation for the award of a contract if the
recommended bidder, or any of its directors, members or partners,
has
committed a corrupt or fraudulent act in competing for the particular
contract;
53.6
cancel a contract awarded to a person if:
53.6.1 the
person committed a corrupt or fraudulent act during the bidding
process or the execution of the contract;
or
53.6.2 an official or
other role player committed any corrupt or fraudulent act
during the bidding or in the execution
of the contract that benefited
that person.
53.7
reject the bid of any bidder or any of its directors,
members or partners who:
53.7.1 abused
the supply chain management system of the City or its municipal
entities, or has committed any
improper conduct in relation to
this system;
53.7.2 has been
convicted of fraud or corruption during the past five years;
53.7.3 wilfully
neglected, reneged on or failed to comply with any government,
municipal or other public
sector contract during the past
five years; or
53.7.4 has been
listed on the National Treasury’s Register for
Tender Defaulters in terms of
the
Prevention
and Combating of Corrupt Activities Act, 12 of 2004
.”
[15]
On 30 March
2009 the City adopted the abovementioned Abuse Policy. It will be
recalled that its full name is “
Combating
Abuse of Supply Chain Management System
”
[2]
.
[16]
Section 1
of the Abuse Policy deals with
definitions. Certain of the definitions are important for purposes of
this application:
“
Abuse
of the Supply Chain Management System”
is
defined as:
“
acts and/or
omissions, or the underlying acts and/or omissions from an affected
person that forms the basis of the intended steps
to be taken by the
City Manager as contemplated in paragraph 2”,
and
include “
fronting”, “collusive
tenders”, “influencing the tender process” and
“improper conduct”.
“
Affected
person”
means:
“
a natural
person or corporate entity whose rights may be materially and / or
adversely affected if the City Manager takes any of
the steps
contemplated in this policy in order to combat abuse of the Supply
Chain Management Process.”
“
Collusive
tenders”
means
:
“
where tenderers
conclude an arrangement between themselves to obtain the highest
possible points in evaluation and / or the award
of a tender whereby
competitive bids are eliminated.”
“
Influencing
the tender process”
means:
“
directly,
indirectly, or tacitly influencing or interfering with the work of
relevant City Officials involved in the tender process
in order to
inter alia:
(a)
influence the process and / or outcome of
the tender;
(b)
incite breach of confidentiality and / or
the offering of bribes;
(c)
cause over or under invoicing;
(d)
influence the choice of procurement method
or technical standard;
(e)
influence any City Official in any way
which may secure an unfair advantage during or at any stage of the
procurement process.”
“
Improper
conduct”
is defined as meaning
:
“
conduct that
(is) tantamount to: - fraud; corruption; favouritism; unfair;
irregular and unlawful practices; misrepresentation on
information
submitted in tender documents for the purposes of procuring a
contract with the City; misrepresentation regarding the
contractor’s
expertise and capacity to perform in terms of the contract procured
via the Supply Chain Management System;
breach of a contract procured
via the Supply Chain Management System; and failure to comply with
the Supply Chain Management System.”
[17]
Paragraph 2.1 of the Abuse Policy records that:
“
the terms of
reference of this Policy ensure compliance with
regulation 38
of the
Municipal Supply Chain Management Regulations published
under GEN N
868 in GG 27636 of 30 May 2005.
”
[18]
In terms of paragraph 2.2 of the Abuse Policy,
the City Manager has the duty to “
take
all reasonable steps to prevent abuse of the Supply Chain Management
System and to investigate any allegations of improper
conduct against
the concerned official, councillor, or other role player…
”.
[19]
Paragraph 5.1 of the Abuse Policy provides that,
once the City has obtained
prima facie
evidence which it deems to be sufficient to initiate proceedings to
take steps against the affected persons contemplated in paragraph
2.2
and 2.3, the City must give the affected person adequate written
notice of the manner in which it is alleged that the affected
person
abused the Supply Chain Management System.
[20]
The written notice must outline the grounds on
which it is alleged that the affected person abused the Supply Chain
Management System,
it must refer to the applicable provisions of the
Abuse Policy, and it must stipulate that the affected person must
make “
written representations
”
in response to the allegations.
[21]
In terms of paragraph 7.1 of the Abuse Policy:
“
The City
Manager shall appoint an independent and impartial person, who may be
an official of the City of Cape Town, to preside
and adjudicate on
allegations of abuse of the Supply Chain Management System against an
affected person.”
[22]
In terms of Paragraph 11 of the Abuse Policy, the
onus of proof is on the City to prove any allegations of abuse of the
Supply Chain
Management System “on a balance of probabilities”.
[23]
Paragraph 7.2 of the Abuse Policy provides as
follows:
“
The Presiding
Officer will adjudicate on the matter based on the written notice and
written response and will inform all relevant
parties accordingly
should the matter, or part thereof be referred for an Oral Hearing”
[24]
Paragraph 9 of the Abuse Policy makes provision
for oral hearings:
“
9.1 An affected
person does not have an automatic right to an oral hearing but may
submit an application to the Presiding Officer
to have the matter set
down for an oral hearing in instances where the Presiding Officer
decided to entertain the matter without
oral evidence being heard, or
not to refer the matter for an oral hearing.”
[25]
Paragraph 10 of the Abuse Policy deals with the
procedure to be followed at oral hearings. In particular, it is
regulated that witnesses
shall testify under oath and affected
persons have the right to cross-examine any witness who testified at
such hearing.
The
relevant facts
[26]
Both Lead and Solder and the Family Trust are in
the business of recycling and manufacturing of non-ferrous metals.
Lead and solder
are key components of their business.
[27]
Mr Abdul Janodien deposed to the founding
affidavit on behalf of the applicants. He explains that he is in the
business of recycling
and manufacturing of non-ferrous metal
products. In 1984, and at the age of 20, he started working in the
industry as a labourer,
and in 1992 he formed Lead and Solder. Lead
and Solder and the Family Trust employ a total number of 63
employees, most of whom
are sole breadwinners of their respective
families.
[28]
He further explains that although the Family
Trust was established in 2001, it was generally non-trading and was
dormant. It only
recently decided to start trading. Mr Abdul Janodien
further explains that the annual turnover of Lead and Solder is
approximately
R 32 000 000.00 and the annual turnover of
the Family Trust is in the region of R 9 500 000.00. The
majority
of the business of Mr Abdul Janodien “
is
done with the State and State owned enterprises, from which the first
and second applicants tender for work
”.
[29]
Mr Abdul Janodien is a trustee of the Family
Trust and he is also the only member of Lead and Solder. Two
employees feature prominently
in this matter. The one is Ms Ruth
Njonga (“Ms Njonga”) who works for Lead and Solder in a
managerial capacity. The
other is Mr Lenon Guzha (“Mr
Guzha”) who also works in a managerial position for the Family
Trust.
[30]
The Government has a Central Supplier Database
where the information of registered suppliers, is contained.
According to that, the
Family Trust is registered as a supplier with
reference MAAAO174999. The name is given as “
The
Janodien Family Trust
”, and it appears
that the date of the creation of the information is 26 May 2016. The
address of the Family Trust is given
as Unit 8, Saxon Park, Glucose
Road, Bellville South. The information was “
created
by ‘Lenon@janodienfmtrust.co.za’.
The
income tax reference number of the Family Trust is furnished as
0574267241 and it appears that the information on the Central
Supplier Database was edited on 5 September 2016.
[31]
On 29 November 2016 Mr Guzha signed a document of
the City styled “
Supplier Registration
Detail
”, on behalf of the Family Trust.
In that document the sales person and the accounting clerk is
reflected as “
Lenon
”.
At the foot of the document, it was signed by Mr Guzha. It therefore
follows that at 29 November 2016, Mr Guzha represented
to the City
that insofar as the Family Trust was concerned, Mr Guzha was the duly
authorised sales person and accounting clerk
of the Family Trust.
[32]
In 2016 the City issued a “
Request
for Quotation (Goods)
” under reference
number RO21700308 for the supply of “
electrical
accessories.
” The closing time of the
tender was 13:00 on 9 February 2017.
[33]
On 7 February 2017 Mr Guzha signed a “
Form
of Offer
” on behalf of the Family
Trust, whereby it offered to supply the required solder material to
the City.
[34]
On the same day, 7 February 2017 Ms Njonga also
signed a “
Form of Offer
”
on behalf of Lead and Solder, whereby Lead and Solder offered to
supply the same soldering material to the City.
[35]
The City did not accept the quotation of Lead and
Solder or the Family Trust.
[36]
On 16 May 2017 a meeting was held at the request
of the City. It was attended by Mr Abdul Janodien, Ms Njonga and Mr
Guzha.
[37]
At the meeting Mr Abdul Janodien
inter
alia
advised the City officials that he did
not personally oversee the quotation submitted by Lead and Solder,
and the Family Trust,
and there was no agreement to collude. The
quotations were submitted independently.
Written
notice: The City’s allegation of improper conduct
[38]
The City was not satisfied with the explanation
given, and on 6 November 2017 it addressed written notices in terms
of paragraph
5 of the Abuse Policy to Lead and Solder, the Family
Trust and Mr Abdul Janodien.
[39]
In respect of the Family Trust, it was alleged in
the written notice that:
“
5.1 According
to the Schedule 1: Details of Supplier Declaration a certain Mr Abdul
Aziz Janodien is the Family Trust’s authorised
representative
(see a copy of the said Schedule 1 declaration in respect of the
Family Trust’s quotation for RFQ 308 attached
hereto marked
annexure “A”.
5.2 According to the
Schedule 1: Details of Supplier declaration, the Family Trust’s
physical address is […].
5.3 The Schedule 2:
Form of Offer declaration was signed by a Mr Lenon T Guzha,
purportedly as the duly authorised representative
of the Family
Trust, however the authorised representative stated in that Schedule
is Mr Abdul Aziz Janodien in his capacity as
Trustee of the Family
Trust (see a copy of the said Schedule 2 declaration in respect of
the Family Trust’s quotation for
RFQ 308 attached hereto marked
annexure “B”).
5.4 The Schedule 3:
Price Schedule indicates that the Family Trust only submitted prices
for the first two items on the schedule
[see a copy of the said
Schedule 3 in respect of the Family Trust’s quotation for RFQ
308 attached hereto marked annexure
“C”).
5.5 The Schedule 4:
Preference Schedule. Schedule 6: Conflict of Interest Declaration and
Schedule 7: Declaration of Supplier’s
Past Supply Chain
Management Practices declaration were also signed by Mr Lenon T Guzha
purportedly as the representative of the
Family Trust. However he is
not the authorised representative stated in the Schedule 1: Details
of Supplier and Schedule 2: Form
of Offer (see copies of the said
Schedule 4 declaration, Schedule 6 declaration and Schedule 7
declaration in respect of the Family
Trust’s quotation for RFQ
308 attached hereto marked annexure “D” “E”
and “F” respectively.)
5.6 the Schedule 8:
Certificate of Independent Quotation Determination declaration (“the
Schedule 8 declaration”) was
signed by Mr Lenon T Guzha (see a
copy of the Schedule 8 declaration annexed hereto marked annexure
“G”.)”
[40]
In paragraph 10 of the written notice, the
following was stated:
“
10. As a result
of the above, it is alleged that Mr Lenon T Guzha and the Family
Trust have contravened the Schedule 8 declaration
in that:
10.1
Mr Lenon T Guzha was not the authorised representative of the Family
Trust and therefore did not have the authority to sign
the Family
Trust’s quotation in respect of RFQ 308 thus contravening
clause 3 and 4 of the Schedule 8 declaration.
10.2
The suppliers render the same services and are therefore considered
to be competitors in terms of clause 5 contravening sub-clause
5(b)
and (c) of the Schedule 8 declaration;
10.3
As Mr Abdul Aziz Janodien is the only active member of Lead and
Solder and is a trustee and authorised representative of the
Family
Trust, he forms part of the directing minds of each of the suppliers.
The suppliers could therefore not have arrived at
their quotations
independently without Mr Guzha and Ms Njonga communicating with
Mr Abdul Aziz Janodien thus contravening
clauses 6 and 9 of the
Schedule 8 declaration; and
10.4
The suppliers both submitted prices for only the first two items in
the Schedule 3: Price Schedules for their respective bids
regarding
RFQ 308 and the prices offered by the suppliers are nearly identical,
which indicates that the suppliers contravened
clauses 6 and 9 of the
Schedule 8 declaration. The physical addresses for the suppliers are
also identical in their bids in respect
of RFQ 308, which indicates
that they contravened clauses 6 and 9 of the Schedule 8
declaration.”
[3]
[41]
And in paragraph 12 the City alleged that:
“
12. It is
therefore alleged that the Family Trust committed improper conduct
and / or abuse of the Supply Chain Management System
as contemplated
in
Regulation 38
”.
[42]
In respect of Lead and Solder and Mr Abdul
Janodien, the City made similar allegations in a written notice. All
the relevant documents
upon which the City relied in support of its
allegations, were attached to the written notices.
Response
to the charges
[43]
On 16 November 2017 Mr M.S. Nacerodien, an
attorney, addressed a letter to the City in which he dealt with the
charges.
[44]
The relevant part of the letter reads as follows:
“
There was
improper conduct on the part of Mr L.J Guzha as regards the Family
Trust, as he submitted a tender on behalf of the Family
Trust in
respect of Quotation No: R021700308 for the supply of electrical
accessories to the City of Cape Town without prior authorisation.
His
improper conduct cannot and should not be attributed to any improper
conduct or abuse by the Family Trust of the City’s
said system
for the following reasons and due to the following circumstances:
1.
Mr Aziz Janodien has for over 25 years
conducted business under the name and style of Lead and Solder Sales
CC (“the CC”)
of which he was the managing member and
lately the sole member.
2.
The CC has a scrap tender with the City
valued at approximately R5 million per annum, which it has won for
the past 20 years. This
has enabled the CC to provide employment for
40 employees. The current tender runs until 2020.
3.
Because of the loyalty, honesty and
commitment of many of the CC’s staff, Mr Janodien recently
embarked on a program of training
and promoting its employees,
especially those who have been employed for 20 years or more, with
the stated intention of making
them stakeholders in the CC once they
fully understand and can run various aspects of the business
competently.
4.
To this end, when the Family Trust was
formed, certain of the CC’s employees were assigned as
employees of the Family Trust.
5.
It was decided by Mr Janodien to separate
the scope of business of the two entities, so that the CC would
confine its business to
manufacturing only and the Family Trust to
attend to procurement and marketing of the CC’s and other
related products.
6.
In order to ensure the smooth separation
of the scope of each entity, Mr L T Guzha who was the sales
representative and accounting
clerk of the Family Trust was advised
by Mr Janodien that he would be acting as the duly authorised
representative of the Family
Trust in future in respect of procuring
and marketing the CC’s products.
7.
Mr L T Guzha was in fact instructed by Mr
Janodien that before doing any procurement, he should liaise with Mr
Janodien who would
guide and assist him until such time as he could
do so on his own but otherwise as regards sales, he would not be
micro managed
by Mr Janodien.
8.
Ms Njonga got the tender off the Council’s
daily tender bulleting and tendered for this said tender which is
only worth R
12 000.00 with a gross profit of R 1 500.00.
9.
Unbeknown to Mr Janodien and Ms Njonga, Mr
Guzha, on behalf of the Family Trust, independently went ahead to
tender for the same
contract. This was his first attempt at
tendering.
10.
The Family Trust was accepted by the City
as a supplier and although all the necessary amendments regarding
authorisation to act
on behalf of the Family Trust had not been done,
Mr Guzha submitted a tender without the knowledge or authorisation of
Mr Janodien.
11.
Mr Janodien only heard of the Family Trust
tender when concerns were raised by the City of Cape Town.
12.
Client discussed this matter with Mr Guzha
when client heard about it, and he can only ascribe Mr Guzha’s
conduct as being
over eager and an attempt to impress him that he
(Guzha) is capable of completing a tender unassisted.
13.
Client also interrogated Ms Njonga and she
confirmed that she was unaware that he Trust had also submitted a
tender for the same
service as had been done by the CC.
14.
The CC is the sole producer and supplier
in the Western Cape in respect of the solder required for this
tender.
15.
The CC has an average gross annual
turnover of almost R3 0mil and Mr Janodien certainly would not want
to jeopardise the good reputation
he has built up with the City over
more than 20 years by colluding with the Family Trust for a gross
profit gain of only R 1 500.00,
particularly as the CC in any
event would be supplying the solder required for the contract.
16.
It is Mr Janodien’s intention to
train up his existing staff and to assign responsibilities to them by
mentoring them and
so promote those who are competent and capable of
heading managerial responsibilities to become members of the CC and
eventually
take over the business.
17.
The intention as regards the Family Trust
was to promote persons who were labourers, sweepers and general
workers and who worked
for the CC for a long time, to become trainee
sales personnel, and to build a management team from this pool, so
that the sales
and procurement business of the Family Trust could be
run independently by these employees as soon as reasonably possible.
18.
Mr Guzha was identified by Mr Janodien as
having the potential to develop into a procurement and sales manager
and an authorised
representative of the Family Trust.
19.
Unfortunately, his over eagerness in
regard to this tender has placed the whole program of our client to
empower and upskill his
workers, in danger.
20.
In fact, if Mr Janodien is registered as
an affected person in the City’s register, then, not only will
this have a catastrophic
effect on our client’s empowerment
program but it will have devastating consequences on his employees,
of whom he would have
to lay off at least 50%.
21.
Our client’s good intentions of
promoting and empowering his employees and building the businesses
for their benefit so that
they could expand the business, thereby
creating employment and benefitting the local economy in these trying
times, will come
to naught if the City construes the mistake made by
Mr Guzha as an act of improper conduct by the CC or the Family Trust.
22.
As far as the writer is concerned, he is
an independent trustee of the Family Trust and not involved in any
way in the managerial
decisions taken on a day to day basis by those
running the business. He was not aware nor had any hand in the tender
submitted
by Mr Guzha on behalf of the Family Trust to the City. His
duties as a trustee of the Family Trust do not include any
involvement
in the running of any business owned by the Family Trust.
23.
It is submitted that no improper conduct
can be attributed to the writer as he is in no way financially
involved with the Family
Trust, and receives no benefit from the
Family Trust or its business except in regard to services rendered in
his professional
capacity as an attorney.
24.
It is submitted that it is clear from the
very nature of the tender that collusion or tender rigging by the
Family Trust was never
intended but occurred as a result of an honest
mistake of the scope of the exercise of his duties by an
inexperienced trainee in
his first attempt at submitting a tender.
25.
Mr Guzha now clearly understands the
limits of the scope of his duties which will endure until such times
as Mr Janodien is satisfied
regarding his capabilities, when he will
be notified that the oversight duties of Mr Janodien wil cease.”
[45]
On 22 January 2018 Mr M.S Nacerodien, addressed
another letter to the City in which further written representations
were made. In
that letter it was again pertinently stated:
“
3
.
Our clients deny any collusion or knowledge of any alleged collusion
between the Trust and Lead and Solder CC”.
The
Rulings
[46]
On 3 April 2018, and without an oral hearing
being held, Mr Mbandazayo ruled against the Family Trust and Mr Abdul
Janodien. He
inter alia found as follows:
“
22. After
taking into account the circumstantial evidence submitted, I
therefore find on a balance of probabilities that the Trust
committed
improper conduct in that they breached clauses 6 and 9 of the
Schedule 8 Declaration by disclosing the terms and conditions
of
their offer to Lead and Solder and consulting, communicating and
entering into agreements and arrangements in respect thereof.”
[47]
In respect of Lead and Solder, a similar finding
was made:
“
18. After
taking into account the circumstantial evidence submitted, I
therefore find on a balance of probabilities that Lead and
Solder
committed improper conduct in that they breached clauses 6 and 9 of
the Schedule 8 Declaration by disclosing the terms and
conditions of
their offer to the Trust and consulting, communicating and entering
into agreements and arrangements in respect thereof.”
The
grounds of review
[48]
The applicants rely on the following grounds of
review:
[48.1] The City Manager
did not investigate the matter;
[48.2] The City Manager
failed to appreciate that he had a discretion to implement the Abuse
Policy;
[48.3] Mr Mbandazayo did
not have all relevant facts before him;
[48.4] The respondents
did not discharge their onus, and the rulings were so unreasonable
that no reasonable person could have exercised
the power.
[49]
I turn to consider the various grounds of review.
The
failure of the City Manager to investigate
[50]
Although the applicants contend that there was no
investigation, Mr Basil Chinasamy deposed to an affidavit in which he
stated that
Mr Dias, the legal advisor for the City, conducted
certain preliminary fact-finding investigations.
[51]
Given the nature and contents of the written
notices that were furnished to the applicants, I am satisfied that
there must have
been an investigation that preceded the formulation
of the charges. It is inconceivable that the written notices could
have been
produced, in the absence of any investigation.
[52]
After considering all the relevant evidence
produced, I am satisfied that there was an investigation, and that
this ground of review
must fail.
A
failure to appreciate the discretion to implement the Abuse Policy
[53]
Given the present scourge of corruption
complaints in this country insofar as doing business with the State
and municipalities is
concerned, the City does not only have a
discretion to implement the Abuse Policy, but also a duty when there
is
prima facie
evidence of wrongdoing.
[54]
In this matter, and on the basis of the evidence
produced, it is clear that the City understood that it had a
discretion, and acted
in terms thereof. There is no merit in
this ground of review.
Mr Mbandazayo did
not have all relevant facts before him
[55]
This submission on behalf of the applicants,
loses sight of the fact that the applicants had the right to place
any written representations
and evidence before Mr Mbandazayo. They
employed the services of an attorney to assist them, and it was their
duty to place all
the relevant facts, which they thought are
relevant, before Mr Mbandazayo.
[56]
This ground of review must fail.
The
respondents did not discharge their onus, and the rulings were so
unreasonable that no reasonable person could have exercised
the power
[57]
The City bore the onus to prove all the issues
that were placed in dispute, and it had to prove it on a balance of
probabilities.
One of the key issues that falls for determination,
is: what fact(s) did the City have to prove?
[58]
As a point of departure, regard should first be
had to the nature of the City’s “
written
notice
” and the “
written
representations
” filed by the
applicants. Those documents would inform the Presiding Officer of the
issues in dispute.
[59]
In my view the “
written
notice
” of the City, and the “
written
representations
” by the applicants,
resemble pleadings. Although they are not affidavits, a fair amount
of evidence was included in the “
written
notice
” and the response thereto. So,
to a certain extent, the information that was placed before the
presiding officer, also had
features of an affidavit.
[60]
In
Transnet
v Rubenstein
[4]
the Court stated that in motion proceedings, the affidavits
constitute not only the evidence, but also the pleadings.
[61]
The proceedings before Mr Mbandazayo, are
obviously not legal proceedings in the same sense as in a court of
law. But they can be
described as quasi-judicial proceedings.
[62]
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[5]
the Constitutional Court held:
“
A cornerstone
of any fair and just legal system is the impartial adjudication of
disputes which come before the courts and other
tribunals. This
applies, of course, to both criminal and civil cases as well as to
quasi-judicial and administrative proceedings.”
[63]
In legal proceedings, pleadings are of critical
importance for a number of reasons, some of which are as follows:
(a) it determines where
the onus lies;
(b) it determines which
facts a plaintiff or defendant have to prove.
[64]
In
Mobil
Oil Southern Africa (Pty) Ltd v Mechin
[6]
the Court held:
“
Generally
speaking the onus of proof is fixed by the pleadings and it is
necessary therefore to analyse the allegations in the pleadings
as
amplified by the further particulars, the latter forming part of the
pleadings.”
[65]
And
further
[7]
:
“
The general
principle governing the determination of the incidence of the onus is
the one stated in the Corpus Iuris:
“
semper
necessitas probandi incumbit illi qui agit (D. 22.3.21.). In other
words he who seeks a remedy must prove the grounds therefor
.”
[66]
In
Kriegler
v Minitzer and Another
[8]
it was held that a party who makes positive allegations must prove
same.
[67]
In
Imprefed
(Pty) Ltd v National Transport Commission
[9]
the following passage, as it appeared in
Durbach
v Fairway Hotel Limited
[10]
was approved:
“
The whole
purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which
reliance is to be
placed
.”
[68]
In the light of the above general principles
applicable to pleadings, I turn to consider the facts that the City
had to prove, as
it appeared from “
the
pleadings
” before Mr Mbandazayo.
[69]
In the
applicants’ written representations of 16 November 2017, it was
specifically “
pleaded
”
that the Family Trust, independently of Lead and Solder, submitted
it’s tender to the City.
[11]
It was also specifically pleaded that Mr Abdul Janodien had no
knowledge that the Family Trust submitted its tender to the City.
He
only heard that the Family Trust had submitted a tender after
“
concerns
were raised by the City of Cape Town
”
[12]
.
The applicants further specifically pleaded that Ms Njonga “
was
unaware that the Trust had also submitted a tender for the same
service that had been done by the CC
”.
[13]
In the representations of 22 January 2018 any collusion between the
Family Trust and Lead and Solder was specifically denied
[14]
.
[70]
In summary, therefore, the applicants averred
that there was no communication between the Family Trust and Lead and
Solder, prior
to submitting their respective quotations to the City.
[71]
In the light of the aforegoing contentions by the
applicants, it follows in my view that the City had to prove on a
balance of probabilities
that there was prior communication between
Lead and Solder on the one hand, and the Family Trust on the other
hand, about the two
tenders, prior to the submission thereof to the
City.
[72]
It is common cause that no oral hearing was held,
despite the fact that paragraphs 7.2 and 9 of the Abuse Policy
specifically make
provision for an “
oral
hearing
”. At such oral hearing,
witnesses have to produce their evidence under oath and affected
persons have a right to cross-examine
any witness who testifies at
that hearing.
[73]
In this matter, it is clear that Mr Mbandazayo
made a factual finding that Lead and Solder and the Family Trust did
communicate
with one another at the time of, or prior to submitting
their tenders to the City. He could only have made that finding, on
an
evaluation of the documentary evidence before him. Could he
reasonably have done that? I turn to deal with the relevant legal
principles.
[74]
Section 6
(2) (h) of the
Promotion of
Administrative Justice Act, No. 3 of 2000
provides as follows:
“
6 (2) A court
or tribunal has the power to judicially review an administrative
action if-
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or
performed
the function;”
[75]
In
Bato
Star Fishing v Minister of Environmental Affairs and Tourism and
Others
[15]
the Court held as follows
[16]
:
“
[44] There was
some debate in the supplementary heads filed by the parties as to the
precise meaning of
s 6(2)(h)
of PAJA, which provides that, if a
decision 'is so unreasonable that no reasonable person could have so
exercised the power', it
will be reviewable. This test draws directly
on the language of the well-known decision of the English Court of
Appeal in Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation. The repetitiousness of the test there established has
been found to be
unfortunate and confusing. As Lord Cooke commented
in R v Chief Constable of Sussex, ex parte International Trader's
Ferry Ltd:
'It seems to me
unfortunate that Wednesbury and some Wednesbury phrases have become
established incantations in the Courts of the
United Kingdom and
beyond. Associated Provincial Picture Houses Ltd v Wednesbury Corp
[1947] EWCA Civ 1
;
[1947] 2 All ER 680
,
[1948] 1 KB 223
, an apparently
briefly-considered case, might well not be decided the same way
today; and the judgment of Lord Greene MR ([1947]
2 All ER 680
at 683
and 685,
[1948] 1 KB 223
at 230 and 234) twice uses the tautologous
formula ''so unreasonable that no reasonable authority could ever
have come to it''.
Yet Judges are entirely accustomed to respecting
the proper scope of administrative discretions. In my respectful
opinion they
do not need to be warned off the course by admonitory
circumlocutions. When, in Secretary of State for Education and
Science v
Tameside Metropolitan Borough
[1976] UKHL 6
;
[1976] 3 All ER 665
,
[1977]
AC 1014
the precise meaning of ''unreasonably'' in an administrative
context was crucial to the decision, the five speeches in the House
of Lords, the three judgments in the Court of Appeal and the two
judgments in the Divisional Court, all succeeded in avoiding needless
complexity. The simple test used throughout was whether the decision
in question was one which a reasonable authority could reach.
The
converse was described by Lord Diplock ([1976]
3 All ER 665
at 697,
[1977] AC 1014
at 1064) as ''conduct which no sensible authority
acting with due appreciation of its responsibilities would have
decided to adopt''.
These unexaggerated criteria give the
administrator ample and rightful rein, consistently with the
constitutional separation of
powers… Whatever the rubric under
which the case is placed, the question here reduces, as I see it, to
whether the chief
constable has struck a balance fairly and
reasonably open to him.'
n determining the
proper meaning of
s 6(2)(h)
of PAJA in the light of the overall
constitutional obligation upon administrative decision-makers to act
'reasonably', the approach
of Lord Cooke provides sound guidance.
Even if it may be thought that the language of
s 6(2)(h)
, if taken
literally, might set a standard such that a decision would rarely if
ever be found unreasonable, that is not the proper
constitutional
meaning which should be attached to the subsection. The subsection
must be construed consistently with the Constitution
and in
particular s 33 which requires administrative action to be
'reasonable'. Section 6(2)(h) should then be understood to require
a
simple test, namely that an administrative decision will be
reviewable if, in Lord Cooke's words, it is one that a reasonable
decision-maker could not reach.
[45] What will
constitute a reasonable decision will depend on the circumstances of
each case, much as what will constitute a fair
procedure will depend
on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not
will include the nature of
the decision, the identity and expertise of the decision-maker, the
range of factors relevant to the
decision, the reasons given for the
decision, the nature of the competing interests involved and the
impact of the decision on
the lives and well-being of those
affected.”
[76]
In
Dumani
v Nair and Another
[17]
the Court considered an appeal by a Magistrate who was convicted at a
disciplinary hearing on 3 counts of sexual misconduct. Oral
evidence
was presented at the hearing, and the witnesses were cross examined.
The magistrate took the matter on review, and the
Supreme Court of
Appeal stated
[18]
:
“
The enquiry
before this court is not whether the presiding officer was correct in
his conclusion that Dumani was guilty on three
of the charges. The
main enquiry before this court is whether the presiding officer's
decision is so unreasonable that no reasonable
person could have
reached it.”
[77]
In
Bato
Star
[19]
the Constitutional Court warned as follows:
“
Although the
review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The Court should take care not to usurp
the functions of administrative agencies. Its
task is to ensure that
the decisions by administrative agencies fall within the bounds of
reasonableness as required by the Constitution
”
.
[78]
To the
extent that Mr
Mbandazayo
may have made an
incorrect factual finding, I am bound by the following dictum in
Dumani
[20]
:
“
In our law,
where the power to make findings of fact is conferred on a particular
functionary - an ‘administrator’ as
defined in PAJA - the
material - error – of - fact ground of review does not entitle
a review Court to reconsider the matter
afresh
”.
[79]
In the
light of the aforegoing principle laid down in
Dumani,
I am mindful that it is not my function to reconsider the matter
afresh. However, if a fact is established in the sense that it
is
“
uncontentious
and objectively verifiable
”,
a Court may intervene
[21]
.
[80]
In
Chairman,
State Tender Board v Digital Voice Processing Pty Ltd; Chairman,
State Tender Board v Sneller Digital Pty Limited and
Others
[22]
the State Tender Board decided to restrict Sneller Digital (Pty) Ltd
and its directors from doing business within certain spheres
of
Government for a period of 10 years. It did so on the basis that it
decided that the directors had been appointed after a tender
had been
submitted by the company, and that the company had accordingly made a
fraudulent misrepresentation and had been guilty
of “
fronting
”.
On the objective facts, the directors had been appointed before the
tender was submitted and the Supreme Court of Appeal
concluded that,
had the State Tender Board taken its decision based on the proper
facts, it could not have concluded that the company
and directors had
made a fraudulent misrepresentation. The Supreme Court of Appeal
further held that there was a material factual
error, and that error,
was the direct cause of a decision to blacklist the company and its
directors.
[81]
In this matter, and applying the principles
enunciated in the above authorities, this Court may intervene if
there was a material
error or fact finding by Mr
Mbandazayo.
I turn to deal with that inquiry.
[82]
On the papers before Mr
Mbandazayo, there were two mutually destructive versions. The City
averred that there was prior communication.
The applicants denied it.
[83]
No oral evidence was produced
to lay a foundation upon which Mr Mbandazayo could find that Lead and
Solder, and the Family Trust
communicated with one another prior to
submitting their tenders.
[84]
Both Lead and Solder and the
Family Trust positively asserted in their written representation that
there was no such communication.
Was Mr Mbandazayo entitled to merely
reject the applicants’ version as it appeared in the
“pleadings”?
[85]
If the
applicants’ written response can be equated to affidavits, the
reasonable presiding officer had to apply the
Plascon
Evans
principle:
[23]
“
It is correct
that, where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order, whether
it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the Court
to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the denial
by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact (see
in this regard Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at
1163 - 5; Da Mata v Otto NO
1972 (3) SA 858.
(A) at 882D - H). If in
such a case the respondent has not availed himself of his right to
apply for the deponents concerned to
be called for cross-examination
under Rule 6 (5) (g) of the Uniform Rules of Court (cf Petersen v
Cuthbert & Co Ltd
1945 AD 420
at 428; Room Hire case supra at
1164) and the Court is satisfied as to the inherent credibility of
the applicant's factual averment,
it may proceed on the basis of the
correctness thereof and include this fact among those upon which it
determines whether the applicant
is entitled to the final relief
which he seeks (see eg Rikhoto v East Rand Administration Board and
Another
1983 (4) SA 278
(W) at 283E - H). Moreover, there may be
exceptions to this general rule, as, for example, where the
allegations or denials of
the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers”
[86]
The aforegoing therefore means that, as a general
proposition, he had to accept the version of Lead and Solder, and the
Trust, because
they were in the position of “
respondents
”.
Only if their version was far-fetched or clearly untenable, could it
have been rejected on the papers. There was no finding
that their
version was far-fetched or clearly untenable.
[87]
The finding was based on a conclusion that there
was circumstantial evidence that pointed towards prior communication.
Now, in my
view, a reasonable presiding officer should not have made
a factual finding based on circumstantial evidence by only
considering
the “
pleadings
”.
[88]
My reasons are:
(a)
Firstly, there was a material dispute of fact
which is evident from the “pleadings” (or “affidavits”).
(b)
Secondly, where a material fact is disputed in
the pleadings, it is undesirable that a judicial officer, or
quasi-judicial officer,
should make a factual finding which is based
on the pleadings and documents only.
(c)
Thirdly, the presiding officer should have
referred the matter to an oral hearing to determine the central issue
in dispute.
[89]
Mr Mbandazayo found that there
must have been prior communication, because Lead and Solder, and the
Family Trust have the same address.
I disagree. The fact that Lead
and Solder and the Family Trust operate from the same premises, does
not in itself prove that Ms
Njonga and Mr Guzha communicated with one
another prior to submitting the tenders. There is a suspicion that
they did communicate,
but a suspicion should not be elevated to the
status of a proven fact.
[90]
He also found against the
applicants, because they tendered to supply the same material. The
fact that both Lead and Solder and
the Family Trust tendered to
supply the same material, does not in itself prove that Ms Njonga and
Mr Guzha communicated with one
another prior to submitting the
tenders. It is normal that competing bidders tender to supply the
same goods, material or services.
It is irrational to find that,
because competing tenderers offered to supply the same goods, there
must have been prior communication.
[91]
He also found that there must have been prior
communication between Lead and Solder, and the Family Trust because
the respective
prices contained in their quotations, were close to
one another. I disagree. The fact that two tenderers offer to supply
material
at prices which are close to one another, does not in itself
prove that the two tenderers communicated with one another prior to
submitting their tenders. In fact, it is not uncommon that competing
tenders have prices which are very competitive and close to
one
another.
[92]
Mr Mbandazayo found as a fact,
that there was prior communication between Lead and Solder and the
Family Trust, about their tenders,
but there was no evidence placed
before him to justify such a finding.
[93]
In my view Mr Mbandazayo based
his decision on “
facts
”
that are absent. It is objectively verifiable that those “
facts
”
are absent.
[94]
The reasonable Presiding
Officer, upon evaluating the “
written
notices
” and
the “
written
response
”
thereto, should have realised that there was a material dispute of
fact which was incapable of resolution on the papers.
In those
circumstances, he should have referred the matter to an oral hearing
in terms of paragraph 7.1 and paragraph 9 of the
Abuse Policy. The
reasonable Presiding Officer could not find for the City, based only
on the pleadings, and support such finding
by way of inferential
reasoning.
[95]
In the circumstances, and in
the absence of an oral hearing, the City failed to discharge the onus
of proof. The rulings of Mr Mbandazayo
were so unreasonable, that no
reasonable person could have reached it.
[96]
The rulings can therefore not
stand, and have to be set aside.
Closing
remarks
[97]
The allegations of abuse of
the City’s Supply Chain Management System, are serious and
should be adjudicated upon in a proper
manner. Since the rulings were
made by Mr Mbandazayo, he has now become the City Manager.
[98]
It would therefore be
inappropriate if his rulings are set aside, to refer the matter back
to him. It would be in the interests
of justice that a different
Presiding Officer be appointed to deal with the allegations.
Order
[99]
In the result, the following order is made;
(a)
The rulings in terms of the City of Cape Town’s
policy on “
Combatting Abuse of Supply
Chain Management System
” made against
the applicants by the second respondent, dated 3 April 2018 and 17
May 2018, are reviewed and set aside.
(b)
The allegations of abuse of the City’s
Supply Chain Management System against the applicants, are remitted
to the first respondent
to deal with it in terms of the policy on
“
Combatting Abuse of Supply Chain
Management System
”, and to appoint an
independent and impartial person as envisaged in paragraph 7 of the
aforesaid policy.
(c)
The first respondent is directed to pay the
applicants’ costs of suit including the costs relating to the
applicants’
application dated 8 August 2018, and the costs
incurred on 18 June 2018, 15 August 2018 and 18 September 2018.
______________________
W.
VOS, AJ
ACTING
JUDGE OF THE HIGH COURT
[1]
The policy number is 12446. It was approved by the Council on 27
March 2008 and amended on 31 July 2013.
[2]
Amendments were approved on 22 June 2011
[3]
Clause 6 of the Schedule 8 declaration reads as follows: “The
supplier has arrived at this quotation independently from
and
without consultation, communication, agreement or arrangement with
any competitor”.
Clause
9 of the Schedule 8 declaration reads as follows: “9. The
terms of this quotation have not been, and will not be,
disclosed by
the supplier, directly or indirectly, to any competitor, prior to
the date and time of the official quotation opening
or of the
awarding of the contract”.
[4]
2006 (1) 591 (SCA) at paragraph 28
[5]
1999 (4) SA 147
(CC)
[6]
1965 (2) SA 706
(A) at 410
[7]
At p711
[8]
1949 (4) SA 821
(AD) at p828
[9]
1993 (3) SA 94
(A) at 107
[10]
1949 (3) SA 1081
(SA) at 1082
[11]
Record 200 paragraph 9
[12]
Record 200 paragraph 11
[13]
Record 200 paragraph 13
[14]
Record 179 paragraph 3
[15]
2004 (4) SA 490 (CC)
[16]
At paragraph [44]
[17]
2013 (2) SA 274 (SCA)
[18]
At Para [22]
[19]
At Para [45]
[20]
At Para [32]
[21]
Dumani at Para [29]
[22]
2012 (2) SA 16 (SCA)
[23]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 - 635