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[2021] ZAWCHC 62
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Democratic Alliance v Brummer (A184/2020) [2021] ZAWCHC 62; [2021] 2 All SA 818 (WCC); 2021 (6) SA 144 (WCC) (12 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal case number: A184
/ 2020
Court
a quo
case
number: 20986 / 2014
REPORTABLE
In the matter between:
THE DEMOCRATIC
ALLIANCE
Appellant
and
JOHANN WICHARDT GREYLING BRUMMER
Respondent
Coram:
Saldanha, Gamble et Wille, JJ
Heard:
18
th
of January 2021
Delivered:
12
th
of April 2021
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII. The judgment shall be deemed to
have been handed
down at 10h00 on the 12
th
of April 2021)
JUDGMENT
WILLE, J
:
(Dissenting)
INTRODUCTION
[1]
Notwithstanding, that I have had the benefit of reading the majority
judgment of my
senior colleague Gamble J, I nevertheless remain
unpersuaded that it is desirable to lend support to a relaxation of
the doctrine
of -
issue estoppel
- so as to find in favour of
and to the benefit of the respondent. I say this because, I
hold the view that the facts of this
case, do not promote the
exercise of a judicial discretion in favour of the respondent, on the
basis of either fairness or equity.
[2]
This appeal concerns the core issue of the correct application of a
plea of
res judicata
in the form of -
issue estoppel
-
to what I view, as mostly common cause facts. The respondent is
an erstwhile member of the appellant and relied on the
appellant’s
funding and ran on the appellant’s electoral ticket as a career
politician. The respondent was elected
as one of the
appellant’s councillors. During 2012, the appellant
terminated the respondent’s membership in and
to the party.
[1]
[3]
No doubt, this prompted the respondent to launch an application for,
inter alia, an
order to re-instate his membership in and to the
appellant, asserting that the termination of his membership by the
appellant,
was unlawful. At the outset, interim relief was
agreed upon and the application was postponed for the delivery of
further
papers and for its ultimate determination. Following
argument, the application was dismissed with costs by Traverso
DJP.
[2]
[4]
The current action proceedings were launched during 2014. The
respondent undeniably
relied on the alleged unlawful termination of
his membership in and to the appellant, as the foundation for the
relief he claimed
in his application proceedings. The
respondent now seeks the remedy of damages as opposed to one of
re-instatement.
[3]
Both the action and the application proceedings were buttressed by
the core allegation that the respondent’s party
membership had
been terminated unlawfully by the appellant.
[5]
Put in another way, the -
issue
- before Traverso DJP, was
whether the respondent’s membership of the appellant had been
unlawfully terminated. It
is the appellant’s case that
the -
issue
- in the action is analogously whether the
appellant unlawfully terminated the respondent’s membership in
and to the appellant.
It is submitted by the appellant that the
court
a quo
correctly categorized that the -
same issue -
was before it, that served before Traverso, DJP. The primary
argument is that the court a quo failed to apply the doctrine
of -
issue estoppel
- correctly.
NEW
EVIDENCE
[6]
The respondent rather belatedly launched an application for the
introduction of new
evidence, this on appeal. The legal
position in this connection is now a matter of established law. An
appeal court
will only accept new evidence on appeal sparingly, and
in exceptional circumstances.
[4]
The respondent contends that in view of certain of the
positions taken by the appellant in its heads of argument on appeal,
he was impelled to obtain a transcript of the proceedings, which he
now seeks to introduce on appeal. On this score, the
respondent
takes the view that Traverso DJP, had determined only interim relief
and not final relief. I must say that I find
it difficult to
appreciate that the respondent sought re-instatement on an interim
basis in view of the exacting order that he
sought in his notice of
motion. In my view, he sought the re-instatement of his
membership in and to the appellant and nothing
in the papers suggests
that the respondent sought this on an interim basis. It is
precisely this -
issue
- of his re-instatement that was argued
on the papers that served before Traverso, DJP.
[7]
This line of reasoning
[5]
,
by the respondent had been advanced on many previous occasions and is
not by any stretch of the imagination ‘new evidence’.
Moreover, the respondent contends for the standpoint that it
was the appellant that had insisted upon the discrete adjudication
of
the special plea. I do not see the relevance of this argument
as the record clearly exhibits that both parties submitted
to the
adjudication of the special plea as a matter of convenience, by
agreement.
[8]
Finally, in a last ditch effort on this score, the respondent
suggests that a duty
bore down on the appellant to file the
transcript of the proceedings. I disagree. Firstly,
because the appellant is
only obliged to put up evidence it deems
apposite to prove its case, nothing more and nothing less.
Secondly, the parties
agreed as to what material from the application
proceedings would be included and what material, would also be
disregarded. By
way of example, the parties agreed that their
respective heads of argument from the application proceedings would
be excluded and
they were so excluded.
[9]
The appellant submits that the transcript is neither material, nor
weighty and is
such that it will not determine the outcome of the
appeal. To the converse, the respondent takes the position that
this new
evidence will demonstrate that only interim relief was
contended for in the application proceedings. As I have
mentioned
previously, I find it difficult to resign myself to the
fact that the respondent would have approached the court on
application
for an order that his membership in and to the appellant,
only be fleetingly restored. This, curiously in view of the
fact
that his seat on the council had already been taken up in the
interim, before the fate of his urgent application was determined
by
Traverso, DJP. The dismissal of the unqualified application
with no return day, must also of necessity have decided the
matter in
its entirety. The decision was clearly to dismiss the
application which, as a matter of logic, must have included
final
relief on the issue of the respondent’s re-instatement of his
membership in and to the appellant.
[10]
What is
of moment is that the evidence
now sought to be introduced, was neither before the court of first
instance, nor before the Supreme
Court of Appeal, when it overturned
the decision of the court
a quo
, to refuse leave to appeal.
No explanation is advanced as to why it was not previously
introduced and further, why it will
alter the outcome of the appeal.
Nevertheless, I hold the view that the issue of prejudice remains the
principal weighty
and material factor, worthy of consideration.
The nature of the evidence sought to be introduced, also cannot be
ignored.
[11]
It is conceded that there is no prejudice to the appellant should the
new evidence be introduced
and in my view, the new evidence will be
of some assistance to the appeal court in its ultimate determination
of this appeal. Although,
the material sought to be introduced
is evidence
[6]
,
empirically and realistically, it is merely a recording of the
proceedings that played out before Traverso, DJP. Further,
the
respondent contends for the existence of a dispute in connection with
the labelling of the relief contended for before Traverso,
DJP.
For these reasons, I hold the view that the new evidence falls to be
admitted into the record for the purposes of the
determination of
this appeal.
THE
APPLICATION
[12]
During August 2012, the respondent lost his membership in and to the
appellant after he failed
to pay his compulsory dues. The
appellant’s constitution
[7]
,
provides,
inter alia
, that:-
‘A member ceases to
be a member of the party when he or she … is in default with
the payment of any compulsory public
representative contribution for
a period of 2 (two) months after having been notified in writing that
he or she is in arrears and
fails to make satisfactory arrangements
or fails to comply with such arrangements for payment of the arrears’
[13] This, in turn triggered the
respondent’s urgent application for relief in the following
terms, namely: an order restraining the appellant and others
from taking steps to fill the seats on those councils lost by
respondent: an order directing the appellant to -
re-instate
my membership
- and to restore the respondent to his -
salaried
positions
- on those councils: an order restraining the
Independent Electoral Commission
[8]
,
from filling the vacated seats and an order directing any of the
respondents to show cause on a return date to be determined by
the
court, why the above interim order should not be made final.
[14]
The primary relief sought was incontestably his re-instatement to the
appellant and this relief
could only have been ordered in the event
that the court was satisfied that the termination of the respondent’s
membership
was unlawful. The respondent advanced a plethora of
reasons as to why he alleged the termination of his membership was
unlawful.
Significantly, the validity of the guillotine clause
in the constitution was not challenged.
[9]
Thereafter, and by agreement, during September 2012, an order was
handed down regulating the further conduct of the matter
and the IEC
was temporarily prohibited from filling the vacancy created by the
respondent’s loss of his membership, pending
a determination of
the respondent’s application.
[15]
Comprehensive papers were thereafter filed and the application was
argued before the Deputy Judge
President on the 12
th
of
September 2012. The application was dismissed with costs on the
12
th
of September 2012. Traverso DJP, was not
persuaded that that the respondent had established that his
membership in and to
the appellant had been terminated unlawfully.
This, on any of the grounds asserted by him.
[16]
It is the appellant’s case, that both the remedy of
re-instatement that the respondent
had sought in his application,
together with the damages he now seeks in his action proceedings,
could only be successful, if the
court was satisfied that the
termination of his party membership had been unlawful. The only
other argument that the respondent
was left with to advance in his
application, was the argument that sought to revile the validity of
the guillotine clause in the
appellant’s constitution. This, on
the grounds that it was against public policy and accordingly
invalid.
[17]
On this score, Traverso DJP, refused the respondent’s
application to amend his notice of
motion to include a prayer for a
declaration that assailed this clause of the appellant’s
constitution on the basis of its
alleged invalidity. In my
view, herein lies the rub! Despite this ruling by the DJP, the
respondent persisted with
his application, regardless of the legal
consequences and refused to accept that he was no longer a member of
the appellant.
By doing this, he fell on his own sword.
[18]
The core issue in this appeal, in my view, remains an enquiry into
the nature of the remedy sought
by the respondent, namely his
re-instatement. The remedy of re-instatement could only have
been ordered in the application
proceedings, in the event that the
court having being satisfied that the termination of the respondent’s
party membership
had not been lawful. This was after all, and
still is, the issue. The court
a quo
also decorously
identified this as the issue.
THE ACTION
[19]
The respondent thereafter instituted action proceedings seeking
damages against the appellant.
This claim is buttressed by the
allegation that the appellant had unlawfully terminated his
membership during 2012. The
respondent formulated his claims in
contract, in delict and on constitutional grounds. The kernel
of his claims focused primarily
on the allegations relating to the
unlawful termination of his membership in and to the appellant.
[20]
The appellant raised the shield of -
issue estoppel
- by way
of a special plea. The basis of this shield is the argument,
that the respondent cannot litigate -
the issue
- of whether
or not his membership was unlawfully terminated, because -
this
issue
- had already been finally determined against him in the
application proceedings. The parties agreed, that the court
a
quo
determine this defence of -
issue estoppel
- as a
separated out issue, because if successful, it would be dispositive
of the entire dispute between the parties.
DISCUSSION
[21]
The appellant’s case is that the respondent, by operation of
the doctrine of -
issue estoppel
- was prevented from
revisiting the validity of the termination of his party membership,
albeit now clothed in contract, delict,
constitutionally or
otherwise, and irrespective of the relief now sought.
[22] Undoubtedly, the court
a quo
fittingly identified the test for issue estoppel and also correctly
concluded that the -
same issue
- as to the lawfulness of the
termination of respondent’s membership was indeed determined by
Traverso, DJP. The court
also correctly determined that the
requirements for issue estoppel were namely:- ‘
the same
issue and the same parties’.
[23]
It is advanced that paramount to the judgment in the court
a quo
,
was the finding that the application concerned itself only with the
manner in which the appellant had exercised its power to terminate
the respondent’s party membership and not whether the appellant
had that power at all. For this reason, inter alia,
the
respondent takes the position that the court
a quo,
was not
estopped from considering the latter aspect as a basis for
determining -
the issue
- as to whether or not the
respondent’s membership had been terminated unlawfully. I
disagree.
[24]
Significantly on this aspect, the findings in the application
proceedings were not the subject
of any appeal by the respondent.
More importantly, the respondent persevered with -
the issue
-
in the application proceedings and did not abandon his relief in this
connection. His seat had already been taken up when
the
application was argued before Traverso, DJP.
[25]
Despite this, the respondent sought an order in connection with the
status of his membership
in and to the appellant. The dismissal
of his application was not the result he had hoped for and now he is
left with no
option but to argue that -
the issue
- was not a
live issue before Traverso, DJP. In my view he cannot have it
both ways. I will deal with this more fully
when it comes to
the issue of the court’s discretion to relax the doctrine of
issue estoppel. This discretion must
obviously be exercised
judicially, within the precincts of the legal principals and is case
specific.
[26] Issue estoppel applies where an -
issue
- of fact or law was an essential element of a prior
final judgment. The -
issue
- cannot be revisited in
subsequent proceedings before another court, even if a different
cause of action is relied upon or different
relief is claimed.
[10]
Our courts have recognised that a strict application of issue
estoppel could result in unfairness in some unusual circumstances,
but this is typically applied in cases where the -
nature of the
issue
- is in dispute or at least open to some doubt. The
nature of the issue was never in any doubt in this case. The
court
a quo
itself had no difficulty in circumscribing the
issue and correctly defined the issue.
[27]
Issue estoppel applies when different relief based on different
causes of action is sought in
the subsequent case, if it involves the
determination of the same -
issue -
of fact or law.
[11]
I take the following from
Ekurhuleni,
where it was held
as follows;
‘…
the
submission that res judicata does not apply because of the lack of
sameness in the cause of action is misconceived. Sameness
is
determined by the identity of the question previously set in
motion’
[12]
[28]
Issue estoppel developed precisely because, requiring sameness
between the two causes of action
allows parties to re-litigate the
same issue by garbing these up in different causes of action. The
authorities not to apply
issue estoppel for reasons of justice and
equity, need to be evaluated with reference to the
Henderson
[13]
principle. This principle provides, inter alia,
that
when a given matter becomes a subject of litigation;
‘ the
court requires the parties to that litigation to bring forward their
whole case, and will not (except under
special circumstances) permit
the same parties to open the same subject of litigation in respect of
matter which might have been
brought forward as part of the subject
in contest, but which was not brought forward, only because they
have, from negligence,
inadvertence, or even accident, omitted part
of their case’
[29]
This doctrine has been fully assimilated into our law. The
doctrine applies equally to
pure claims of res judicata and to claims
based on issue estoppel. When the respondent went to court to
challenge the termination
of his membership, it must be so that he
was required to put forward his entire case. Further, and most
importantly, the
respondent elected to persist with the issue of the
termination of his membership, despite the fact that there was
seemingly no
urgent need for this relief, at that stage.
[30]
By doing this, the respondent euthanized his case in connection with
the issue of the challenge
to the unlawful termination of his
membership. Additional or alternative causes of action for the
determination of -
the
issue
- as to whether the
termination of the respondent’s membership was unlawful or
lawful, cannot be raised in subsequent proceedings
on the same -
issue
- this, in circumstances where the respondent’s
first attempt failed on the same issue.
[31]
In my view, for issue estoppel to apply, it is not necessary that the
previous court -
expressly
- determines the issue before the
latter court. I say this because, it would undermine the
purpose of res judicata and issue
estoppel to hold otherwise. It
would allow litigants to freely exodus from any order granted without
not only a reasoned
judgment, but one that expressly addresses the
issue of fact or law that was nonetheless structural to the decision.
As a
matter of logic, it must be so, that the fashion in which
Traverso, DJP expressed herself and decided the -
issue
- of
the lawfulness or unlawfulness, of respondent’s loss of his
party membership, is irrelevant.
[32]
What endures is that Traverso DJP, could not have legitimately
dismissed the respondent’s
application without concluding that
the respondent’s membership of the appellant had not been
unlawfully terminated. I
take the view, that notwithstanding
the innovative grounds upon which the respondent now seeks to rely,
the foundations raised
in respect of -
the issue
- as to
whether or not his membership was terminated unlawfully, remain.
Accordingly, the doctrine of issue estoppel applies
as set out in the
appellant’s special plea of res judicata. The doctrine of
issue estoppel then inevitably precludes
-
the issue
- being
raised again in fresh proceedings as the footing for any new causes
of action, whether in contract, delict or constitutional.
[33]
The respondent places much reliance on the proposition that because
of the legal conclusions
drawn by Traverso DJP, -
the issue
-
was decided on the papers and arguments placed before her, rather
than on the unique arguments now advanced, alternatively, on
arguments that could have been, but were not then advanced. In
my view, this approach is incongruous because issue estoppel
exists
to prevent litigants approaching a later court, on new papers and
armed with fresh arguments, to revisit the same -
issue
- that
they had previously lost. This is the very purpose of issue
estoppel.
[34]
The court
a quo
found that the issue of the legality of the
appellant’s constitution was not expressly decided by Traverso
DJP. This
was so because the belated amendment by the
respondent in this connection, was refused by Traverso DJP, and
correctly so.
This notwithstanding, the respondent persisted
with his application on the -
issue
- of his alleged unlawful
termination of his membership in and to the appellant. It is
precisely because he adopted this
stance that he, in my view, falls
to be estopped from now raising the legality issue in clean
proceedings.
[35]
The -
issue -
for the purposes of issue estoppel is totally
discrete from a
cause of action
or a
remedy
. It
is precisely for this reason, that a litigant is not permitted to
pioneer in later proceedings in respect of an -
issue
- a
ground that he failed to raise in the original proceedings. To allow
this would undermine the finality of judicial decision
making and
cast doubt over the trustworthiness of judicial decisions. The
whole purpose of issue estoppel is to depart from
the strict
requirements of
res judicata
that the cause of action and the
relief must be identical.
[36]
I take the view that the only basis upon which the respondent may
attempt to exodus the shield
of issue estoppel put up by the
appellant, is for this court to exercise its discretion, not to
invoke the doctrine of issue estoppel
against the respondent. This
exercise involves both a factual and a legal enquiry. I am
unable to unearth any basis
for a finding in fact that there would be
unfair consequences if issue estoppel were to apply against the
respondent, in these
circumstances. I say this because, to an
extent, the respondent is the author of his own misfortune.
Less important
for me, is the form in which the respondent sought to
launch his application proceedings and the procedural manner in which
his
application unfolded. More important for me, is the -
issue
- that he presented for determination before Traverso, DJP.
[37]
Put in another way, it would be grossly unfair were the doctrine not
to apply as the respondent
would then be allowed to escape the
consequences of the Traverso judgment and have the lawfulness of his
party membership decided
afresh.
This in
my view, would undermine the rule of law and would open the
door to recurring legal challenges to the same conduct, which is
contrary
to conventional legal principle.
[38]
Litigation is not for pot-plants in a greenhouse. The
respondent was in control of his
own destiny. He did not pay
his legal dues to the appellant and he alone decided to persist with
the relief about his membership
in and to the appellant, without any
urgent need to do so at all. Many different possibilities were
open to him in this connection
and yet he persisted with his
application before Traverso, DJP. This course of action had
consequences which he now seeks
to exodus on the basis of fairness
and equity.
[39]
A constant refrain by the respondent is that Traverso DJP was only
considering an application
for an interim interdict. I
disagree.
The respondent’s application initially
sought interim relief, pending a return date and then a final
determination. This
included a prayer that his membership in
and to the appellant be immediately restored.
[40]
The application was launched on the 5
th
of September 2012
and set down for hearing on an urgent basis for the 6
th
of
September 2012. Interim relief was granted in a modified form
so as to preserve the respondent’s seat from being
filled,
pending the outcome of the final relief, which was set down for
hearing on the 12
th
of September 2012. There is not
an iota of evidence, alternatively, any material to suggest that the
decision by Traverso
DJP, was in any manner limited to refusing only
interim relief.
[41]
Traverso DJP, pedantically recorded the relief sought in unqualified
terms and dismissed the
entire application and that relief in its
entirety. This was in the form of final relief, after some
interim relief had already
been sought and obtained. This must
be so because, if Traverso DJP, had only intended to refuse interim
relief, she would
have said so. The respondent himself accepted
that the ruling was dispositive of his application. He could
have appealed
the order if he was unhappy with the result. He
did not do so. Nothing in law, prevented him from doing so.
[42]
The respondent also takes the position that the effect of Traverso
DJP’s order was the
same as absolution from the instance, and
not a dismissal. The order reads as follows – ‘
the
application is dismissed with costs’ -
nothing more and
nothing less
.
In my view, it can never be argued that
the
effect of this order is to absolve from the
instance. It was an out and out dismissal. It follows,
that Traverso DJP,
could only have granted that order if she had
concluded that the termination of respondent’s membership of
the appellant
was not unlawful.
[43]
In addition
, the respondent alleges that
Traverso DJP’s judgment was influenced by the fact that his
seat had been filled in the interim.
There is simply no basis
for this argument. To the contrary, what this does emphasize is
the fact that the re-instatement
of the respondent’s membership
in and to the appellant, was the only relief which lingered before
Traverso DJP to decide
upon. The fact that the respondent’s
seat had been filled in the interim, did not bring about a -
chameleonic change
- of the nature of the -
issue
-
before Traverso, DJP.
[44]
As far as the policy document
[14]
argument advanced by the respondent, the following falls to be
recorded at the outset. I attempted to enquire from the
respondent’s
counsel as to why his client had not dealt with
the policy document of the appellant (amongst others), during the
course of the
hearing before Traverso, DJP. I was acutely aware
of the fact that his client’s stated position was that he was
unaware
of the existence of this material at that time. The
reason for my attempted enquiry was twofold, namely: firstly, I
had noticed that the relevant policy document was adopted by the
appellant approximately (1) year before the respondent’s
application was launched and, secondly, I had noticed that the
respondent had signed an undertaking during 2010. This
undertaking contained a wide ranging deeming provision in it,
regarding the respondent’s imputed knowledge of the affairs
of
the appellant.
[45]
In addition, I held the view that the test to be applied, in
connection with the respondent’s
knowledge of the existence of
the policy document, was rather an objective test and not a
subjective test. Regrettably, rather
than gratiously exploring
my enquiry, the respondent’s counsel uttered unfortunately
chosen words to the effect that I had
not read the record of the
proceedings.
The respondent seeks to somehow
rely on the policy document to attempt to justify not applying the
doctrine of issue estoppel.
[46]
This proposition by the respondent requires some scrutiny. The
respondent’s argument
on this score is that the policy
indicates that candidate fees are not -
compulsory
public representative contributions
-
the non-payment of which leads to the automatic loss of membership.
Only the non-payment of the so-called -
tithes
- so the respondent contends, has this
guillotine effect and accordingly, so it seems, the principals of
issue estoppel should not
be invoked against the respondent on the
basis of fairness and equity.
[47]
In amplification, the respondent takes the position that the
appellant’s failure to disclose
the details of its own policy
will render it unfair to apply issue estoppel against him and
accordingly, the court should exercise
its discretion and relax the
application of the doctrine of issue estoppel. The respondent
is ostensibly making an argument
that the appellant is obliged to
assist the respondent in making out a case against itself. Even
if I were to accept this
unorthodox approach by the respondent, no
such conduct on the part of the appellant was established by the
respondent.
[48]
More importantly, in my view, the policy does not have the effect
that the respondent says it
does. The appellant tendered
evidence which revealed that there were
two primary sources of
income that the
appellant
collected from
its public representatives: -
firstly
- a tithe that is paid
on a monthly basis; and
- secondly
- a candidate fee that is a
once-off fee paid by every person elected on the appellant’s
electoral ticket. Both of
these are fees, both are paid only by
public representatives and both are compulsory.
[49]
Further, it was demonstrated by the appellant that the policy does
not create obligations to
pay tithes or candidate fees as these arise
from decisions of the appellant’s federal council. The
policy does not
determine any consequences for non-payment. These
consequences are set out in the constitution of the appellant.
[50]
In addition, this is precisely why, I attempted to draw to the
attention of the respondent’s
counsel, the specific terms and
conditions of the document deposed to under oath by the respondent,
during 2010. In this
document
[15]
,
the respondent, inter alia, declares and undertakes as follows:-
‘
I
am familiar with the provisions of the federal and, if applicable,
provincial constitution of the party, and will abide by their
provisions’
[51]
The policy document merely administratively regulates the procedures
and processes for the management
and collection of the various income
streams for the
appellant
. The
document has less to do with any sanction to be imposed on the
respondent. In any event, the policy document boosts
the plain
meaning of the
appellant
’s
constitution that the -
compulsory public representative
contributions
- as a matter of logic, must include a
candidate fee. This must be so,
inter alia
, because the
same disciplinary process is followed for the non-payment of both
tithes and candidate fees.
[52]
For these reasons, the -
policy argument
- by the respondent
is of no moment and is, in my view, simply a red herring. The
fact that the policy was not before Traverso,
DJP is completely
immaterial for determining whether issue estoppel applies or not.
[53]
In another throw of the dice to attempt to persuade the court that
the respondent should escape the doctrine of issue estoppel,
the respondent advances some arguments about the merits of his
claim.
One of these arguments by the respondent’s counsel
is that the respondent did not have a clear and sufficient breakdown
of
the amount that he allegedly owed to the appellant in the form of
his outstanding dues. Litigation is not a game and the
respondent is somewhat hoisted by his own petard in this connection.
An analysis and evaluation of the record clearly exhibits
that a
letter of demand (together with a full recapitulation statement of
the amount outstanding to the appellant), was hand delivered
to the
respondent. The respondent’s own version on this, is that
he became so irritated by this, that he did not even
read the letter,
nor the attachment thereto and discarded these documents into the
rubbish bin. It hardly now lies in his
arsenal to allege that
he did not know what was due owing and paying to the appellant by way
of his outstanding dues.
[54]
Finally, on the merits, the respondent belatedly advances a
constitutional argument in which
he attempts to embrace the
provisions of section 34 of the Constitution
[16]
.
This argument falls to be dealt with swiftly. It does not
matter at all whether Traverso, DJP was right or wrong in
her
decision. The merits of that decision and the current action do
not matter for the purposes of determining the special
plea res
judicata in the form of issue estoppel. As mentioned
previously, the respondent could have appealed the order if
he was
unhappy with the result. He did not do so. Nothing in
law, prevented him from doing so.
[55]
In this connection, I take the following from
African
Farms
[17]
,
namely that: -
‘
Because
of the authority with which, in the public interest, judicial
decisions are invested, effect must be given to a final judgment,
even if it is erroneous. In regard to res judicata the enquiry is not
whether the judgment is right or wrong, but simply whether
there is a
judgment’
[56]
In summary, my reasoning is that I am unable to think of any grounds
upon which a court seized
with the Traverso application would be
entitled to have come to any decision without in terms, dealing with
the issue of the unlawfulness
or otherwise of the respondent’s
membership in and to the appellant. Further, I am not persuaded
that there are any
legal or factual grounds, based on either fairness
or equity
, which would legally permit or justify a
relaxation of the principals of issue estoppel, in favour of the
respondent.
[57]
For all these reasons, I would have upheld the appeal and would
have issued out an order
in the following terms:
1.
That the application for the introduction of new evidence
on appeal
is granted.
2.
That the appeal is upheld.
3.
That the defendant’s special plea of issue estoppel
is upheld
with costs, including the costs of two counsel (where so employed).
4.
That the plaintiff’s action is dismissed with costs, including
the costs of two counsel (where so employed).
5.
That the respondent is liable for the costs of an incidental
to the
appeal, including costs of two counsel (where so employed).
6.
That each party shall be responsible for their own respective
legal
costs in connection with the application for the introduction of the
new evidence on appeal.
______________
E D WILLE
(
Judge
of the High Court)
GAMBLE,
J
:
(Saldanha,
J concurring)
INTRODUCTION
[58] The facts material to the
determination of this appeal appear, generally, from the minority
judgment of my colleague, Wille, J, handed down herewith. Briefly,
they may be summarized as follows.
[59] The respondent “(Brummer”)
joined the appellant political party (“the DA”)
in 2000.
He subsequently served as a councillor on the Bitou Local
Municipality in Plettenberg Bay and on the Eden District
Municipality,
which has its offices in George, for more than a
decade. On 13 August 2012, the DA confirmed termination of Brummer’s
membership
of the party, alleging that he had failed to pay his dues
to the party.
[60] As the basis for the termination
of membership, the DA relied on cl 3.5.1.9 of its Federal
Constitution, which reads as follows.
“
A
member ceases to be a member of the Party when he or she…is in
default with the payment of any compulsory public representative
contribution for a period of 2 (two) months after having been
notified in writing that he or she is in arrears and fails to comply
with such arrangements for payment of the arrears
.”
[61] The contribution referred to in cl
3.5.1.9 was termed a “tithe” which the DA required
its
public representatives (who earned a salary) to pay every month to
the party. In later years in this litigation, the DA would
rely on a
certain internal policy document, which it said, fixed the payment of
such contribution. The factual background to Brummer’s
termination of membership is not relevant to this appeal: suffice ot
to say that there was a measure of dispute in relation thereto
during
June and July 2012, particularly in relation to the extent of
Brummer’s indebtedness to the DA and the notice given
to him to
settle it.
[62[ As a consequence of the
termination of his membership, Brummer’s position on the Bitou
Municipality became vacant with effect from 31 July 2012 and the
Independent Electoral Commission (“the IEC”) was
statutorily required to advertise that vacancy. This it did on 23
August 2012. Brummer, who was a career politician without any
other
source of income, then launched an urgent application on 5 September
2012 to interdict the IEC from filling the post and
to procure the
reinstatement of his membership in order that he could continue to
earn an income as before. That application served
before Louw J on 6
September 2012.
[63] On that day, the matter was
postponed by agreement between the parties until 12 September 2012
with the DA agreeing to an interim order that the vacancy would not
be filled pending the return day. When the matter served before
Traverso DJP on 12 September 2012 in the Fast Lane of the Motion
Court, it became apparent that the vacancy had already been filled
by
the IEC on 3 September 2012 – even before the papers in the
urgent applicant before Louw J had been issued. Just what
the DA’s
involvement in this state of affairs was is not clear from the
record, but it seems as if it had already taken steps
to inform the
IEC of its new candidate prior to the first hearing of the matter.
[64] Before Traverso DJP, the DA was
represented by Adv.D.Borgstrom from the Cape Town Bar and Brummer
by
Adv.A.Knoetze from the Johannesburg Bar. At that stage, Mr. Knoetze
informed the Court that the DA had already nominated a substitute
to
fill the vacancy and that “(t)he DA’s position is that it
has become, for all intents and purposes,
functus officio…”
In light of the fact that the interim relief sought before Louw J had
effectively been rendered moot, Mr Knoetze informed Traverso
DJP that
his client wished to raise a challenge to the constitutionality of
the aforesaid clause 3.5.1.9. The main argument Mr
Knoetze sought to
advance was that the clause in question was contrary to public
policy.
PROCEEDINGS BEFORE TRAVERSO DJP
[65] Traverso DJP refused to entertain
such a challenge in light of the fact that no constitutional
relief
had been sought in the notice of motion, although the issue had been
touched upon in the founding affidavit. A gallant,
last-ditch attempt
by Mr Knoetze to move a handwritten amendment to the notice of motion
from the Bar fell on deaf ears and Brummer’s
attempt to procure
the reinstatement of his membership, and effectively the retention of
his job, ultimately failed.
[66] In delivering a short
ex
tempore
judgment, Traverso DJP (who was of the view that the
matter was then genuinely urgent) held that the constitutional
challenge had
not been properly ventilated on the papers and that
Brummer’s late “application for an amendment of the
notice of motion
[was] yet a further step…to avoid the
inevitable consequences of his actions.” In dismissing the
application with
costs, Traverso DJP held that -
“
the application for the
amendment of the notice of motion at this late stage is dismissed and
from that it follows, that, in view
of the concessions made by Mr
Knoetze that (sic) the balance of the application can also not
succeed
.”
[67] It would appear from the
interchanges between the Bench and Mr. Knoetze during the hearing
that Her Ladyship was of the view that the provisions of the Federal
Constitution were unambiguous – if a member failed to
pay what
the DA determined was due to it after timeous notice had been to such
member, the termination of membership was automatic.
One is reminded
in this regard of the claim by an employer in respect of an employee
who was on strike and failed to return to
work after due demand by
the employer, that the employee had “dismissed him- or
herself”. Be that as it may, nothing
further transpired after
the dismissal of the urgent application and, in particular, there was
no application to appeal Traverso
DJP’s ruling.
THE ACTION PROCEEDINGS
[68] Towards the end of 2014, Brummer
commenced action proceedings in this Division against the DA
for
damages founded in contract, alternatively delict and in the further
alternative, for constitutional damages. The basis of
Brummer’s
claims in the action was that the DA had unlawfully terminated his
membership of the party in 2012. The DA filed
its plea on the merits
in the ordinary course and on 9 November 2018 the parties held a
pre-trail meeting at which it was recorded
that in the up-coming
trial set down to commence on 12 February 2019 –
“
[t]he parties are ad idem
that the matter will still be decided on the issues as defined in the
pleadings. The only issue that is
presently being reserved for
separate adjudication is the issue relating to the quantification of
the Plaintiff’s damages.”
[69] Just a week before the trial was
due to commence, the DA sought to introduce for the first time
a
special plea of issue estoppel and then insisted upon that issue
being determined separately and
in limine
at the trial. The DA
effected its special plea on the day of the trial and the matter
stood down for two days to enable Brummer
to respond thereto. In the
result the trial commenced on 14 February 2019 on the separated
issue. During that hearing, the court
heard oral evidence from an
official of the DA and Brummer and on 15 May 2019 the Court
a quo
dismissed the special plea with costs.
[70] The appeal before us against that
order was with the leave of the Supreme Court of Appeal (“the
SCA”). The DA was represented in the appeal (which was heard
virtually) by Advs. A. Kantor SC and M.Bishop of the Cape Bar
while
Brummer was represented by Adv. M.G. Swanepoel of the Port Elizabeth
Bar, all of whom had appeared in the Court
a quo.
Another
member of the Port Elizabeth Bar, Adv. J. Nepgen, presented argument
to us in relation to the introduction of further evidence
on appeal,
the heads of argument in that application having been drafted by Adv.
M. Adhikari of the Cape Bar.
[71] The argument presented by Mr.
Nepgen was intended to place before this court the transcript
of the
proceedings before Traverso D.J.P. Unsurprisingly (given the level of
animosity between the parties), yet quite unnecessarily,
the DA
opposed that application which generated another 168 pages of paper.
In my view, the proceedings before Traverso DJP were
clearly material
and helpful to this Court and could hardly have occasioned any
embarrassment or prejudice to the DA. Indeed, they
should have been
placed before us by the DA as appellant and in my respectful view,
the application to adduce further evidence
should therefore be
granted with costs.
ISSUE ESTOPPEL
[72] As the judgments of the SCA in
Prinsloo
[18]
and
Hyprop
[19]
establish, the defence of issue estoppel has taken root in our law as
a subsidiary of the principle of
res judicata.
The following
passage in the judgment of Lewis JA in
Hyprop
provides a
useful summary of the position.
“
[13]… This court
has most recently confirmed the application of issue estoppel in
Prinsloo
…
[14] Brand JA pointed out [in
Prinsloo]
that the plea of res judicata - that the matter has already been
decided - was available where the dispute was between the same
parties, for the same relief or on the same cause (In Voet’s
words,
idem actor,
idem res et eadem causa petendi
).
The requirements have been relaxed over the years and where there is
not an absolute identity of the relief and the cause of
action, the
attenuated defence has become known as issue estoppel - borrowing the
term from English law. The relaxation and the
application of issue
estoppel effectively started in the
Boshoff
matter
[20]
where Greenberg J referred to Spencer- Bower’s work on
Res
Judicata.
In
Smith
v Porrit
[21]
Scott JA explained the evolution of the defence as follows:
“
Following the decision in
Boshoff
…
the ambit of the
exceptio
rei judicata
has over
the years been extended by the relaxation in appropriate cases of the
common-law requirements that the relief claimed
and the cause of
action be the same (
eadem
res
and
eadem
petendi causa
) in
both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
) and that the
same issue (
eadem
quaestio
) must arise.
Broadly stated, the latter involves an inquiry whether an issue of
fact or law was an essential element of the judgment
on which
reliance is placed. Where the plea of
res
judicata
is raised in
the absence of a commonality of cause of action and relief claimed it
has become commonplace to adopt the terminology
of English law and to
speak of issue estoppel. But, as was stressed by Botha JA in
Kommissaris van
Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 669D, 670J – 671B, this is not to be
construed as implying an abandonment of the principles of the
common-law in favour
of those of English law; the defence remains one
of
res judicata.
The recognition of the defence in such cases will however require
careful scrutiny. Each case will depend on its own facts and
any
extension of the defence will be on a case-by-case basis…
Relevant considerations will include questions of equity and
fairness
not only to the parties themselves but also to others…”
[73] The aforementioned passage in
Smith
to which Lewis JA referred in
Hyprop
concludes
with the following reference to old authority by Scott JA :
“
As pointed out by De
Villiers CJ as long ago as 1893 in
Bertram
v Wood
(1893) 10 SC
177
at 180, ‘unless carefully circumscribed, [the defence of
res judicata
]
is capable of producing great hardship and even positive injustice to
individuals’ ”.
[74] The Constitutional Court has
adopted a similar approach to issue estoppel. In that court’s
second judgment in
Molaudzi
[22]
,
Theron AJ conducted a detailed examination of the principle of
res
judicata
across several common law jurisdictions. She commenced
by explaining the foundation underpinning
res judicata
as
follows -
“
[16] The underlying
rationale of the doctrine of res judicata is to give effect to the
finality of judgments. Where a cause of action
has been litigated to
finality between the same parties on a previous occasion, a
subsequent attempt by one party to proceed against
the other party on
the same cause of action should not be permitted. It is an attempt to
limit needless litigation and ensure certainty
on matters that have
been decided by the courts
.”
[75] After reviewing the aforesaid
international common law authorities, the learned Acting Justice
concluded that -
“
[30] The general thrust
is that res judicata is usually recognised in one way or another as
necessary for legal certainty and the
proper administration of
justice. However, many jurisdictions recognise that this cannot be
absolute. This is because “[t]o
perpetuate an error is no
virtue but to correct it is a compulsion of judicial conscience
”
[23]
[76] The decision in
Molaudzi (2)
was ultimately grounded in s 173 of the Constitution. I thus quote
extensively from the judgment to place the constitutional approach
in
its proper context. In so doing, and to avoid prolixity, I omit the
extensive footnotes contained in the original text of the
judgment.
“
This Court’s
power to revisit final orders
[31] Section 173 of the
Constitution provides:
“
The Constitutional Court,
the Supreme Court of Appeal and the High Court of South Africa each
has the inherent power to protect
and regulate their own process, and
to develop the common law, taking into account the interests of
justice.”
In terms of section 173, each
superior court is the master of its own process. Jafta J stated in
Mukaddam [v Pioneer Foods (Pty)
Ltd and others
2013 (5) SA 89
(CC) at
[32]]
“
It is apparent from the
text of the section that it does not only recognise the courts’
power to protect and regulate their
own processes but also their
power to develop the common law where necessary to meet the interests
of justice. The guiding principle
in exercising the powers in the
section is the interests of justice.”
[32] Since res judicata is a
common law principle, it follows that this Court may develop or relax
the doctrine if the interests
of justice so demand. Whether it is in
the interests of justice to develop the common law or the procedural
rules of a court must
be determined on a case-by-case basis. Section
173 does not limit this power. It does, however, stipulate that the
power must be
exercised with due regard to the interests of justice.
Courts should not impose inflexible requirements for the application
of
this section. Rigidity has no place in the operation of court
procedures.
[33] This inherent power to
regulate process, does not apply to substantive rights but rather to
adjectival or procedural rights.
A court may exercise inherent
jurisdiction to regulate its own process only when faced with
inadequate procedures and rules in
the sense that they do not provide
a mechanism to deal with a particular scenario. A court will, in
appropriate cases, be entitled
to fashion a remedy to enable it to do
justice between the parties. This Court held in South African
Broadcasting Corp Ltd [v National
Director of Public Prosecutions and
others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) at
[90]
]:
“
The power in section 173
vests in the judiciary the authority to uphold, to protect and to
fulfil the judicial function of administering
justice in a regular,
orderly and effective manner. Said otherwise it is the authority to
prevent any possible abuse of process
and to allow a court to act
effectively within its jurisdiction.”
[34] The power in section 173
must be used sparingly otherwise there would be legal uncertainty and
potential chaos. In addition,
a court cannot use this power to assume
jurisdiction that it does not otherwise have
…
[37] The incremental and
conservative ways that exceptions have been developed to the res
judicata doctrine speak to the dangers
of eroding it. The rule of law
and legal certainty will be compromised if the finality of a court
order is in doubt and can be
revisited in a substantive way. The
administration of justice will also be adversely affected if parties
are free to continuously
approach courts on multiple occasions in the
same matter. However, legitimacy and confidence in a legal system
demands that an
effective remedy be provided in situations where the
interests of justice cry out for one. There can be no legitimacy in a
legal
system where final judgments, which would result in substantial
hardship or injustice, are allowed to stand merely for the sake
of
rigidly adhering to the principle of res judicata.”
[77] It is trite that the party seeking
to rely on the defence of
res judicata
must allege and prove
all the elements underlying the defence.
[24]
WHAT WAS DETERMINED BY TRAVERSO DJP?
[78] In seeking to rely on the judgment
of Traverso DJP as constituting
res judicata
in respect of the
claims for damages subsequently launched by Brummer, the DA argues
that what was squarely before Her Ladyship
for determination on 12
September 2012 was the issue as to whether the DA had lawfully
terminated Brummer’s membership of
the party. As appears from
the passage in Her Ladyship’s judgment referred to above, her
decision to dismiss the application
was premised on certain
“concessions” allegedly made by Mr. Knoetze during the
course of his argument.
[79] I have carefully considered the
transcript of those proceedings and must confess to some doubt
as to
whether Mr. Knoetze indeed conceded unequivocally that the
termination of Brummer’s membership of the party was
unassailable
in law. The transcript reflects that Her Ladyship was
clearly in a hurry to dispose of the matter: that is the nature of
hearings
in the Fast Track where the court often has a heavy roll of
opposed matters. Having initially expressed the view to Mr Knoetze
that the urgency in the matter may have been self-induced, Her
Ladyship delivered judgment off the cuff and immediately after
Brummer’s
counsel had completed his reply.
[80] The transcript reflects, too, that
when he attempted to address the Court on issues of general
legal
principle, and in particular, whether cl 3.5.1.9 was contrary to
public policy, Mr. Knoetze was cut short by the Bench and
urged to
complete his address. The points which counsel attempted to make
included –
23.1 An argument that the fact that the DA
was
entitled to fix a member’s indebtedness without more, offended
the “conclusive proof” cases similar to those
in which
banks had been permitted to put up certificates of balance. The court
was referred to Appellate Division authority on
point;
23.2 The fact that Brummer had attempted to
dispute
his indebtedness to the DA (albeit in a relatively small amount) but
was precluded from doing so by virtue of the DA’s
unflinching
attitude in relation to the enforcement of clause 3.5.1.9 –
effectively saying “pay up or face termination”;
23.3 Reliance on the
dictum
of the SCA in
Bafana Finance
[25]
in which Cachalia AJA dealt extensively with various contracts which
might be considered to be
contra bonos mores
in light of the
manner in which they were in conflict with the values inherent in the
Constitution, 1996; and ultimately
23.4 The constitutionality of cl 3.5.1.9 itself,
particularly in the context of s19 of the Constitution which protects
the right to political association.
[26]
In this regard there was reliance on
Ramakatsa
[27]
in which the Constitutional Court stressed that the right to
political association afforded every member of a political party the
right to demand exact compliance by the party with the terms of its
own constitution and, further, that where there was a breach
thereof
by the party, its members were entitled to approach the court for
appropriate relief.
APPLYING ISSUE ESTOPPEL
[81] The factual issue, which arose in
this matter, was the termination of Brummer’s membership
through the application by the DA of clause 3.5.1.9. That termination
afforded Brummer various causes of action. Firstly, he could
dispute
the amount of his indebtedness to the DA. Secondly, he could show
that he had not received the DA’s letter of demand
at all, or,
at the least timeously. Thirdly, he could seek urgent interim relief
that his seat on the municipal council not be
advertised pending the
resolution of his dispute with the DA. Then, Brummer could have
demanded that he be reinstated pending the
final determination of the
matter.
[82] Fifthly, he could accept the fact
that his seat had been filled by another member of the DA
and sue for
damages, given that his relationship with the DA was governed,
primarily, by the law of contract.
[28]
Sixthly, he might have approached the court for non-patrimonial
damages founded in delict based on an allegation that the DA breached
a duty of care that it owed to him. Lastly, with reliance on, inter
alia,
Ramakatsa
, Brummer was entitled to allege a breach of
his rights protected under s19 of the Constitution and seek
appropriate relief, including
constitutional damages.
[29]
[83] But, in light of the attitude
adopted by Traverso DJP, Brummer was unable to advance any
of
the causes of action entitling him to seek compensation of whatsoever
nature flowing from the loss of his membership because
he was denied
the opportunity to place that case before the court. The only cause
of action which was effectively before that court
was his
reinstatement as a councillor representing the DA.
[84] Moreover, the evidence adduced
before the Court
a quo
in support of the DA’s policy in
relation to the obligatory contributions by members revealed that the
policy itself had
only come to the attention of Brummer and his legal
representatives in the run-up to the 2019 hearing. To the extent that
the policy
was the basis for the reliance by the DA on clause
3.5.1.9, and insofar as Brummer sought to attack the enforceability
and constitutionality
of that clause, he was manifestly unable to do
so before Traverso DJP.
[85] In the result, I am persuaded that
Brummer was not afforded the opportunity before Traverso
DJP to
litigate his cause of action in relation to damages to finality and
that it would thus be unjust and inequitable to uphold
the special
plea of issue estoppel.
CONCLUSION
[86] In the result, I respectfully
consider that the Court
a quo
correctly dismissed the
appellant’s special plea. In the circumstances, I would make
the following order.
A. The respondent’s application to admit the
transcript of the proceedings before this Court on 12 September
2012
in the matter of
Brummer v Democratic Alliance and 3 others
(case no. 17305/2012) is granted with costs.
B. The
appeal is dismissed with costs.
GAMBLE, J
SALDANHA, J:
I agree and it is so ordered
pp SALDANHA, J
APPEARANCES:
For the appellant: Adv. A.Kantor
SC
Adv. M. Bishop
Instructed by Minde,
Schapiro and Smith Inc
Bellville
c/o Van der Spuy and
Partners
Cape Town
For the respondent in the appeal: Adv.
M.G.Swanepoel.
For the respondent in the application to
adduce further evidence: Adv. J.Nepgen
Instructed by Nolte Smit Attorneys, Cradock
c/o Fairbridges Wertheim Becker
Cape Town
[1]
The appellant took the position that the
respondent had not settled his ‘dues’ to the party,
despite a valid demand
for payment thereof being hand delivered to
the respondent
[2]
This, d
uring 2012
[3]
‘Re-instatement’ was pursued in the application
proceedings before Traverso DJP.
[4]
De Aguiar v Real People Housing (Pty) Ltd
2011 (1) SA
16
(SCA) at para 10
[5]
The nature of the relief claimed in the
application proceedings
[6]
In a strict ‘technical’ sense
[7]
In terms of clause 3.5.1.9
[8]
The IEC
[9]
This issue was belatedly raised in the form
of an amendment which was refused Traverso, DJP
[10]
Smith v Porritt and Others
2008 (6) SA 303
(SCA) at
para 10
[11]
Aon SA (Pty) Ltd v Van Den Heever
2018 (6) SA 38
(SCA)
at para 40
[12]
Ekurhuleni Metropolitan Municipality v Germiston Municipal
Retirement Fund
2017 (6) BCLR 750
(CC) at para 31
[13]
Henderson v Henderson
[1843] EngR 917
;
(1843) 3 Hare 100
at 114-115,
[1843-1860] All ER Rep 378
at 381-2.
[14]
The ‘policy’
[15]
Styled
the ‘Candidate Statement’
[16]
The Constitution of the Republic
of South Africa, 1996
[17]
African Farms v Cape Town Municipality
1963 (2) SA 555
(A) at 564C - F
[18]
Prinsloo NO and others v Goldex 15 (Pty) Ltd and another
2014
(5) SA 297 (SCA)
[19]
Hyprop Investments Ltd v NSC Carriers and Forwarding CC and
others
2014 (5) SA 406
(SCA)
[20]
Boshoff v Union Government
1932 TPD 345
[21]
2008 (6) SA 303
(SCA) at [10]
[22]
Molaudzi v S
2015 (8) BCLR 904 (CC)
[23]
The quoted passage is from the decision of the Indian Supreme Court
in
MS Ahlawat v State of Haryana and another
1999 Supp (4)
SCR 160.
[24]
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v
International Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) at 239F-I.
[25]
Bafana Finance Mabopane v Makwakwa and another
2006 (4) SA
581 (SCA)
[26]
Section 19 (1)(b) declares that “(e)very citizen is free to
make political choices, which includes the right…to
participate in the activities of…a political party…”
[27]
Ramakatsa and others v Magashule and others
[2013] 2 BCLR 202
(CC) at [16];[43]; [119]
[28]
Ramakatsa
at [79] – [81]
[29]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)