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[2021] ZAWCHC 209
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Economic Freedom Fighters v City of Cape Town and Another (17099/21) [2021] ZAWCHC 209 (19 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number: 17099/21
Before: The
Hon. Mr Acting Justice Montzinger
Hearing: 15
October 2021
Judgment: 19 October 2021
In the matter between:
ECONOMIC FREEDOM
FIGHTERS
Applicant
and
CITY OF CAPE
TOWN
First
Respondent
ELECTORAL
COMMISSION OF SOUTH AFRICA
Second
Respondent
JUDGMENT
(DELIVERED
ELECTRONICALLY BY E-MAIL ON TUESDAY 19 OCTOBER 2021
MONTZINGER
AJ:
[1]
The EFF approached this Court seeking an
interim interdict to prevent the City of Cape Town (“the City”)
from enforcing
its By-Law and removing the EFF’s banners.
The EFF, a political party, claims that these banners are used to
campaign
for the imminent local government elections. The
By-Law regulates outdoor advertising and signage and it is the City’s
view that the banners contravene the By-Law. The EFF sought
urgent interim protection while also launching an attack on the
constitutionality of the By-law.
[2]
This Court finds that the EFF is entitled
to urgent protection of its right it has established pending the
determination of its
constitutional challenge. An order giving
effect to EFF’s protection is recorded at the end of this
judgment.
The reasons for the order follows.
EFF’s need for interim
relief
[3]
While campaigning for the imminent local
government elections the EFF hung various banners on poles and
bridges around the City
of Cape Town. These banners are
ostensibly 3m
2
in
size, red in colour, contains a picture of the EFF’s leader and
contains a message: “VOTE EFF”.
[4]
On 1 October 2021 Ms Overmeyer on behalf of
the City, by e-mail, informed the EFF that the banners were hung in
violation of the
City’s poster rules. The EFF was
requested to remove the banners by Sunday 3 October 2021. The
poster rules referred
to by Ms Overmeyer was the City’s “
Rules
for Posters during voter registration, general election, and by
election processes, 2021”
(“the
2021 poster rules”). These rules are enacted and only
applies during an official election, which commences
when an election
is declared. Ordinarily and outside of an official election
period the standard ‘
Outdoor
Advertising and Signage By-law rules
and fees’
are
applicable.
[5]
It is apparent that the 2021 poster rules
only caters for posters and not banners. Ms Overmeyer’s
reliance on the 2021
poster rules is in the context that during an
election (national or local) political parties can only put up
posters. For
that purpose a special dispensation is implemented
in the form of the 2021 poster rules referred to in her e-mail.
No party
is allowed to hang banners, unless in connection with an
event that relates to the elections.
[6]
The EFF did not abide with the City’s
request and on 4 October 2021 Ms Evans, also on behalf of the City,
recorded the basis
of its complaint and objection to the EFF’s
banners as follows:
“…
The
approved election rules that are distributed each year to all
political parties specifically provide for
posters
to be erected during the election period and not banners and to date
all political parties have been abiding by these rules.
The
display of banners on City light poles for political parties to
encourage the public to “vote for” a particular
political
party
are not permitted on the City
light poles
.
Schedule 10 of the Outdoor
Advertising and Signage By-law relates to the display of banners in
the City of Cape Town but are only
permitted for
functions
or
events
and does not make provision for electioneering
purposes.
The official POSTER rules for
electioneering are the only means of advertising on City light poles
as concessions were granted for
election posters to be displayed,
i.e. no payment required, number of posters may exceed the maximum of
2000, and scenic routes
were opened up etc. “
[7]
Ms Evans repeated the City’s position
in another e-mail of 5 October 2021. Again reference was made
to only the 2021
poster rules and not the By-Law. In any event,
the EFF’s attorney addressed a letter to the City on 5 October
2021
responding to the City’s position that the banners
contravene the By-Law. The EFF also recorded and confirmed its
refusal
to remove the banners.
[8]
Section 2 of Schedule 10 of the By-Law
reads:
“
2.
Approval for third party advertising on banners and balloons shall
only be granted
for a function or event conducted for religious,
educational, social welfare, animal welfare, sporting, civic or
cultural purposes
or to a function or event relating to a Municipal,
Provincial or Parliamentary election or referendum. The display
of such
banners shall comply with the Municipality’s standard
conditions relating to the display of banners as set out
hereinbelow.”
[9]
Section 2 thus caters for banners to be displayed and allowed at a
function
or
event
in relation to elections. The
rest of the sections of schedule 10 deals with where a banner may be
displayed or attached,
the size of it and the amount of banners
allowed at a premises. In this regard clauses B1 and F44 of the
By-Law, in general,
obligates an applicant to apply for the use of
banners at the recognised events. Section D(11) empowers the
City to exempt
an applicant from the terms of the By-Law in respect
of sign types or areas of control set out in schedules 10, 11 or 12,
taking
into account various factors.
[10]
What is the difference then between banners and posters? The
definitions in the By-Law
provide the answer.
A
banner
is defined as:
“…
any
material upon which a sign is displayed in such a manner as to be
fully legible in windless conditions, attached to one or more
ropes,
poles or flagstaffs projecting vertically, horizontally or at an
angle, or attached to buildings or special structures,
but excludes
banners carried as part of a procession. A flag which is not
displayed on an approved flag pole shall for the
purposes of this
By-Law, be deemed to be a banner”.
A
poster
is defined as:
“…
temporary
signs capable of being attached to the Municipal electrical light
standards and/or pasted to fixed structures to advertise
or
campaigns, including elections or referenda of limited duration and
excluding signs advertising markets, exhibitions or events
which are
held on a regular basis of more than two days per month”
[11]
The size of a poster may not exceed 0.9 x 0.6 metre in area.
While a banner may not exceed
3m
2
in area.
[12]
Another feature of differentiation, especially during an election, is
in the approval process.
No permits or payment is required from
political parties during an election period to hang posters, subject
of course to the size
and other prescribed requirements.
However, to hang a banner the By-Law requires that application for
approval is made and
the request for approval must be for advertising
for a function or event relating to a “
Municipal, Provincial
or Parliamentary election or referendum”
or one of the
other purposes mentioned in section 2 of the schedule 10 of the
By-Law.
[13]
It is within the above context that this Court was engaged to
determine firstly, whether the
matter is urgent. Next, if
urgency is not at issue, whether the EFF made out a case for interim
relief and thus complied
with the requirements for an interim
interdict laid down in
Setlogolo
v Setlogolo
[1]
supplemented by what is known as the OUTA
[2]
test. The OUTA test being applicable in circumstances where an
applicant seeks to limit the exercise of a statutory power.
[14]
The City indicated that it no longer objected to the urgency of the
matter. The matter
was thus determined on the basis that
urgency was not contentious.
The
case for EFF:
[15]
EFF’s case is premised on a very narrow and direct attack on
the City’s By-Law that
prohibits the use of banners during
elections as opposed to posters.
[16]
It contents that the City’s By-Law and policies are
irrational. The irrationality
flows from the fact that there is
no reason why the By-Law permits banners for functions and events,
but not for elections and
campaigning. Moreover, that the
distinction that the By-Law seeks to draw between a banner for a
function and an event on
the one hand and a banner for
electioneering/campaigning on the other is arbitrary and artificial.
[17]
EFF cannot wait for the final determination on the constitutionality
or not of the By-Law, as
the banners serve to campaign and canvass
votes on behalf the party for the upcoming local government elections
on 1 November 2021.
It thus seeks an interim order interdicting
the City from removing the banners until the determination of the
constitutional challenge.
[18]
The EFF contends that its complaint establishes all the requirements
for interim relief including
exceptional circumstances, where the
limitation of statutory powers is at stake, as required by the law.
The
City’s position:
[19]
As a general proposition the City contends that the EFF has failed to
establish the requirements
for an interim interdict. Especially
in light of the legal test as stated in the OUTA
[3]
judgment.
[20]
According to the City serious doubt exist about the prima facie right
alleged by the EFF.
Furthermore, the EFF has failed to prove
that there has been an infringement of the section in the
Constitution on which it relies.
The relief is also not
sustainable as the EFF has failed to identify the subsection in
section 19 of the Constitution on which
it relies.
[21]
In respect of the harm, the EFF has failed to put up any facts
establishing the infringement
of any constitutional right
particularly in consideration of the fact that the By-Law has been in
operation since 2001 with the
same limitations. Regarding the
balance of convenience the City contents that the rule of law and
simple principles of equity
cannot bend to the political expediency
of the EFF. In this case the balance of convenience rather
favours the City.
[22]
Lastly, the City asserts that since interdictory relief is always
discretionary the circumstances
of this matter dictates that due to
the iniquitous results that would arise by favouring the applicant
over the other political
parties, the relief should be refused.
The
Law: Interdicting a statutory power:
[23]
The Constitutional Court
[4]
has confirmed that this Court does have jurisdiction to grant an
interim interdict pending a constitutional challenge, without
having
to grant an order of unconstitutionality of the impugned provision,
provided that it does so only in exceptional circumstances.
[24]
To obtain interim interdictory relief a litigant must overcome a few
well established legal hurdles.
The judgment of
Setlogelo
[5]
applies to those situations absent a statutory power. However,
where a litigant seeks to restrain the exercise of statutory
power
the legal position in
Gool
[6]
applies in addition to
Setlogelo.
Both of these judgments have been endorsed by the Constitutional
Court in OUTA.
[25]
Counsel on behalf of both parties agrees that the Court in OUTA has
endorsed the more rigorous
analysis where an applicant seeks to
restrain the exercise of statutory power.
[26]
At para 45 of OUTA the Constitutional Court endorsed another approach
that entails that when
a court wrestles with whether to grant an
interdict or not the four pillars of
Setlogelo
must all be
considered with the objective of giving expression to the objects,
spirit and purport of the Constitution.
[27]
With regards to the prima facie right requirement the Constitutional
Court has said that this
right can be open to some doubt.
Regarding the harm analysis. If the right asserted in a claim
for an interim interdict
is sourced from the Constitution it would be
redundant to enquire whether that right exists
[7]
.
[28]
Lastly, with regards to the balance of convenience enquiry in the
context of an interdict to
restrain statutory power the
Constitutional Court expressed this balancing exercise best when it
determined the boundaries of the
enquiry. It said:
“
The
enquiry must, alongside other relevant harm, have proper regard to
what may be called separation of powers harm. A court
must keep
in mind that a temporary restraint against the exercise of statutory
power well ahead of the final adjudication of a
claimant’s case
may be granted only in the clearest of cases and after a careful
consideration of separation of powers harm.
[29]
Having regard to these well-established Constitutionally infused
principles, the applicant has
to first establish the four
requirements as laid down in
Setlogelo
. Then OUTA,
confirming
Gool,
demands that a litigant’s case, to
restrain the exercise of statutory power, in support of the interim
interdict requirements
must be strong and furthermore exceptional
circumstances must be present when a balancing of the convenience
exercise is done.
The
requirements for an interdict in this matter:
[30]
This Court will attempt to stay clear from determining the cogency of
the review grounds advanced
by the EFF. For similar
considerations expressed by the Constitutional Court in OUTA
[8]
it would not be appropriate to usurp the pending functions of the
review court and thereby anticipate its decision. If this
Court
is required to do so it will only do so for a restricted purpose.
Prima
facie right
[31]
In its founding affidavit EFF relies on section 19 and 34 of the
Constitution to establish its
prima facie right. It also relies
on a right to vindicate the supremacy of the Constitution and the
rule of the law to the
extent that the By-Law or the City’s
policies are at odds with the rule of law. During argument the
EFF seems to only
rely on section 19(1)(c) of the Constitution to
establish the right that requires protection.
[32]
Section 19 (1)(c) of the Constitution affords citizens and by
extension political parties the
following:
“
(1)
Every citizen is free to make political choices, which includes the
right –
(a)
…
..
(b)
…
..
(c)
To campaign for a political party or
cause.”
[33]
The City has two difficulties with the prima facie right on which the
EFF relies.
[34]
The first objection was that the EFF has failed to identify the exact
Constitutional right it
relies on and only relied in general on
section 19. However, this is not a bar to the relief as the
court has said in
Bato
Star
[9]
a litigant is not required to specify the statutory provision on
which it relies but it must be clear from the facts alleged that
the
section is relevant and operative. While it is correct that in
its founding papers the EFF simply refers to section 19
it is
apparent that only s 19(1)(c) applies to political parties.
[35]
The City’s second criticism is built on the proposition that
the right is non-existent
since no facts are alleged in support of
the purported infringement or how it was infringed. The City
relies on the Constitutional
Court judgment of
Prince
[10]
that requires of a party to place information before the court
relevant to the determination of the constitutionally impugned
provision. Fortunately, the Supreme Court of Appeal has given
direction in
De
Beer
[11]
of what a party must at least allege to comply with the directive
established in
Prince.
At paragraph 99 the SCA set out the minimum standard as follows:
“
At
the very least it was for the respondents to allege: (a) each
specific regulation sought to be impugned; (b) which constitutional
right was alleged to be violated by the impugned regulation; and, (c)
how the regulation allegedly infringed the specific right.”
[36]
EFF has complied with the standard the SCA has set in
De Beers.
Firstly, EFF’s founding affidavit takes issue with section
2 of schedule 10 of the By-Law. Secondly, it further alleges
that s 19 and in particular s 19(1)(c) of the Constitution is
violated.
[37]
Finally, in its founding affidavit the EFF also alleges that the
By-Law is irrational and it
advances it reasons for reaching that
conclusion. The conclusion or allegation of irrationality is
therefore not empty.
EFF further alleges that the removal of
its banners, on the basis that it is in violation of the impugned
section 2 of schedule
10 of the By-Law will limit its ability to
canvass and campaign for votes. The impact of the removal of
the banners is again
expressed at various paragraphs in the founding
affidavit. These allegations certainly qualifies as information
relevant
to the determination of the constitutionality of the
impugned provision as required in
Prince
and
De Beer.
Whether there is credibility in painting the By-Law as
arbitrary and irrational is not for this Court to decide but is left
to the review court.
[38]
The City contends that the allegations in the EFF’s founding
affidavit amounts to nothing
else but the EFF’s own conclusions
and accordingly do not constitute evidential material capable of
supporting a cause of
action. It relies on a warning expressed
by a Provincial Division in
Die
Dros (Pty) Ltd and Another v Telefon Beverages CC and Others
2003
(4) SA 207
[12]
that affidavits in motion proceedings must contain factual averments
that are sufficient to support the cause of action.
[39]
The
Dros
judgment does not cause a bar to the relief the EFF
seeks. Firstly, the cause of action in this case is the
infringement
of a constitutional right that requires interim
protection. The EFF has made allegations in compliance with the
directions
issued in the
Prince
and the
De Beer
judgments. However, for the other legs of the interim relief
factual averments are also advanced. The
Dros
judgment
is also distinguishable due to the fact that at this stage of the
enquiry the EFF only has to establish a prima facie
right though open
to some doubt. It may very well be the impediment presented by
the
Dros
judgment is more pronounced when the review
application is heard. However, for this part of the enquiry
this Court is satisfied
that the EFF has advanced sufficient factual
averments to identify the right it seek to establish in support of
the relief it seeks.
[40]
EFF locates its right in s 19(1)(c) of the Constitution. The
role of the political party
flowing from s 19(1)(c) is aptly
described by
Cheadle
et al
[13]
as follows:
“
The
political party is the key institution in a pluralist democracy –
the form of democracy entrenched in the Constitution
– and is
integral to the constitutional workings of the national and
provincial legislatures. It is a necessary component
of modern
democratic system, and provides links between citizens and the
government. The political party is the vehicle for
the
selection of candidates for public office. It forms and
mobilises public opinion, provides the organisational focus round
which the legislature and the executive are structured, and ensures
accountability, particularly if there is a strong opposition.”
[41]
The importance of the right has also been expressed in
August
and Another v Electoral Commission and Others
1999
(3) SA 1 (CC)
[14]
where the Constitutional Court warned that ‘
Rights
may not be limited without justification and legislation dealing with
the franchise must be interpreted in favour of enfranchisement
rather
than disenfranchisement’
[15]
.
[42]
EFF has therefore not only established a prima facie right, but a
clear right. This Court
is thus constrained and bound to follow
OUTA that there is no further need to enquire whether the right
exists. The EFF has
advanced factual allegations that supports
how the City’s By-Law will infringe its section 19(1)(c) right
and why it needs
protection. By threatening to remove the
banners of the EFF on the basis of a statute that is under
Constitutional attack
threatens the EFF’s right to campaign and
will lead to disenfranchisement rather than the opposite.
Such a scenario is in
direct conflict with the warning heeded in
August
v Electoral Commission.
[43]
The EFF is thus entitled to protection of its right. It is
therefore not necessary to weight
up conflicting versions or to
follow the approach in
Webster v Mitchell
1948 (1) SA 1186 (W)
to determine the existence of a right.
Irreparable
harm
[44]
Before an interim interdict may be granted, one of the most crucial
requirements to meet is that
the applicant must have a reasonable
apprehension of irreparable and imminent harm eventuating should the
order not be granted.
The harm must be anticipated or
ongoing, and must not have taken place already
[16]
.
In
cases where money is not at stake, the harm consists, when interim
relief is considered, in the applicant’s temporary disablement
from enjoying the right
[17]
.
[45]
The test to determine whether harm is present is objective and the
question is whether a reasonable
man, confronted by the facts, would
apprehend the probability of harm
[18]
.
Actual harm need not be established. However, if an applicant
can establish a clear right an apprehension of irreparable
harm need
not be established
[19]
.
[46]
In
City
of Tshwane v Afriforum
[20]
the Constitutional clarified the meaning of harm in the context of a
restraining order. At para 56 it stated the position
as
follows:
“
Within
the context of a restraining order, harm connotes a common-sensical,
discernible or intelligible disadvantage or peril that
is capable of
legal protection. It is the tangible or intangible effect of
deprivation or adverse action taken against someone.
And that
disadvantage is capable of being objectively and universally
appreciated as a loss worthy of some legal protection,
however much
others might doubt its existence, relevance or significance.”
[47]
This Court has already found that EFF has a clear right that requires
protection. The harm
it will suffer is anticipated since
without protection the City will simply remove the banners. If
that is the case even
if the EFF should succeed with their review it
will never be able to turn back the clock and re-campaign or recoup
the benefit
it would have obtained while campaigning with its banners
displayed across the City. It is this Court’s view, even
though a harm analysis is not necessary, that objectively the harm
the EFF will suffer from a removal of their banners will be
irreparable.
Balance
of convenience
[48]
The consideration of this requirement of an interim interdict is
often the decisive factor in
an application
[21]
.
It usually resolves itself into a consideration of the prospects of
success and the balance of convenience; the stronger
the
prospects of success, the less need for such balance to favour the
applicant; the weaker the prospects of success, the greater
the need
for it to favour him
[22]
.
[49]
This Court has already found that the EFF will suffer harm if the
interim interdict is not granted.
Harm is also an element of
the balance of convenience enquiry
[23]
.
However, to prevent the necessity to evaluate the strength or
weaknesses of either parties’ case this Court will accept
that
the parties’ changes on success in the review are equally
balanced. This will prevent the need to provide a view
on the
merits, even if its prima facie, that may possibly impact on the
approach of the review court. In any event this Court’s
understanding of the legal position is that only if the balance of
convenience fails to assist the applicant then an enquiry into
the
strength or weaknesses of the applicant’s case is appropriate
to determine whether interim interdictory relief is warranted.
[50]
Therefore, even a neutral approach on the merits does not excuse the
court from doing a balance
of convenience enquiry. In the
context of this particular case it is necessary for another reason.
To assess whether
exceptional circumstances are present that warrants
the interference with a statutory power. The following factors
tip the
scale in favour of the applicant:
(a)
The EFF is firstly seeking to protect and
express a clear Constitutional right to campaign during a local
government election.
The relief it seeks is of a limited nature
and only for a short period.
(b)
Since, this Court is not tasked with having
to make a declaration of unconstitutionality now, the By-Law will
continue to be in
effect after the conclusion of the election on 1
November 2021.
(c)
EFF is simply asking: don’t remove
our banners, in circumstances where we contend that the By-Law is
unconstitutional.
For as long as no declaration of
unconstitutionality is made in respect of the By-Law the City is
still free to enforce the By-Law.
(d)
The City contends that by allowing this
interdict will have an outcome of inequality since other political
parties are not afforded
the same privileges. Considering that
the right at stake is of a constitutional nature and since our
Constitutional Court
has said that when it comes to expressing a
section 19(1)(c) right the aim should rather be to allow more freedom
instead of limitation,
the scenario would actually heed the direction
issued by the court in
ACDP v Electoral
Commission.
A Court should
rather promote enfranchisement and participation where provisions in
electoral statutes are at play.
Section 19(1)(c) deal with the
electoral issues and the same approach should thus apply when doing
the balance of convenience analysis.
[51]
As to whether exceptional circumstances are present.
[52]
Firstly, objectively the relief is strictly necessary and clearly in
the interest of justice.
It is imperative that political
parties be allowed to campaign freely within the bounds of the law.
Parties like EFF
will be more adversely affected by the City’s
By-Law during an election. The By-Law prima facie seems to
limit a political
party’s ability to use all possible means to
campaign for a local election. Secondly, the operation of the
By-Law is
subsidiary in nature and its operation is only interfered
with for a short period of time. This must be contrasted with
the
fact that the City itself allows for a special dispensation
during elections in respect of its poster rules. Why the same
approach cannot apply in respect of banners during an election was
not explained. This indicates that the interdict sought
by EFF
will hardly impact the operation of the City over the next three
weeks.
[53]
Other facts that indicates exceptional circumstances are that the
election itself is an exceptional
event, that only happens once every
five years. The short period prior to the day citizens actually
vote is the only opportunity
for a party to canvass and campaign for
votes. The banners are not permanent and must be taken down
seven days after the
election. Considering the impact of the
Covid-19 pandemic and the severe restrictions on political parties to
campaign in
public and in large crowds it makes sense that more
flexibility should be at play and
no-contact
methods of
campaigning should be promoted. Allowing a political party to
put up banners clearly falls within that no-contact
method.
[54]
This Court thus finds that all the factors mentioned in the preceding
paragraphs indicates that
the balance of convenience clearly favours
the EFF and the granting of an interim interdict. To be allowed
to hang banners
will allow the EFF to campaign openly and effectively
and give an effective expression of the indispensable right to vote
and will
further promote the objects, spirit and purport of the
Constitution
[24]
.
No
alternative remedy
[55]
The City contended that the EFF does have an alternative remedy as it
can apply to the City for
exemption to comply with the Election rules
and possibly receive approval to keep hanging its posters. This
submission contradicts
what the City communicated to the EFF on 5
October 2021. Firstly, the EFF was never invited to apply for
exemption.
Secondly, the City’s communication implies
that the banners will never be allowed. So applying for an
exemption would
not have served any purpose.
[56]
It is thus apparent that the EFF had no other option or alternative
but to approach this Court.
Except for the alleged exemption
the City did not point out any other remedy available for the EFF to
pursue to protect its right.
Costs:
[57]
In exercising this Court’s discretion with regards to costs, in
the circumstances of this
matter the prudent costs order would be to
let that aspect stand over for determination by the review court.
Conclusion
and order:
[58]
The EFF has made out a case for the interim protection of its right
pending the review of the
constitutionality or not of the By-Law.
The
following order is granted:
(a)
The applicant’s non-compliance with
the forms and periods provided in the Uniform Rules of Court is
condoned and the matter
is dispensed with as one of urgency.
(b)
Pending the outcome of the constitutional
challenge in Part B of the notice of motion, the City of Cape Town is
interdicted and
restrained from removing the election banners of the
Economic Freedom Fighters within the City metropole.
(c)
The costs of this application to be costs
in the review.
A
MONTZINGER
Acting
Judge of the High Court
Appearances:
Applicant’s
counsel:
Adv T Ramogale
Applicant’s
attorney:
Ian Levitt Attorneys
Respondent’s
counsel:
Adv A Oosthuizen SC
Adv
A Nacerodien
Respondent’s
Attorney:
Timothy & Timothy Inc.
[1]
Setlogelo
v Setlogelo
1914
(AD 221
[2]
National
Treasury and Others v OUTA
2012
(6) SA 223 (CC)
[3]
National
Treasury and Others v OUTA
2012
(6) SA 223 (CC)
[4]
President of the
Republic of South Africa and Others v United Democratic Movement
(African Christian Democratic Party and Others
Intervening;
Institute For Democracy in South Africa and Another As Amici
Curiae)
[4]
.
[2002] ZACC 34
;
2003
(1) SA 472
(CC) at para 32 (applied in
McBride
v Minister of Police and Another
(J1396/15) [2015] ZALCJHB 216 (24 July 2015)
[5]
Setlogelo
v Setlogelo
1914
AD 221
later confirmed in
Webster
v Mitchell
1948 (1) SA 1186 (W)
[6]
Gool
v Minister of Justice and Another
1955
(2) SA 682 (C)
[7]
Par 46
of OUTA
[8]
At
para 31
[9]
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
(CCT 27/03)
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 27.
[10]
Prince
v President of the Law Society of the Cape of Good Hope
[2002]
2001 (2) SA 388 (CC)
[11]
Minister
of Cooperative Governance and Traditional Affairs v De Beer and
Another
[2021]
3 All SA 723 (SCA)
[12]
at
para 28
[13]
Cheadle
H; David D; Haysom N
South
African Constitutional Law The Bill of Rights
2
nd
edition , May 2019 Lexis Nexis [14-3]
[14]
Also
reported at
1999
(4) BCLR 363 (CC)
[15]
Similar
sentiments were expressed in African Christian Democratic Party v
Electoral Commission and Others
[2006] ZACC 1
;
2006
(3) SA 305
(CC);
2006 (5) BCLR 579
(CC) at para 23
[16]
National
Treasury and Others v Opposition to Urban Tolling Alliance
and
Others
[2012]
ZACC 18
;
2012
(6) SA 223
(CC);
2012
(11) BCLR 1148
(CC) (
OUTA
)
at para 25
.
[17]
Corium
(Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd
1993
(1) SA 853
(C) at 857J-858J;
Bamford
v Minister of Community Development
1981
(3) SA 1054
(C); and
Braham
v Wood
1956
(1) SA 651
(D&CLD) at 655A-C and H.
[18]
V
& A Waterfront Properties (Pty) Ltd v Helicopter and Marine
Service (Pty) Ltd
[2004]
2 All SA 664
(C)
par 18
[19]
LF Boshoff Investments
(Pty) Ltd v Cape Town Municipality, Cape Town Municipality v LF
Boshoff Investments (Pty) Ltd
1969 (2) SA 256 (C)
267
[20]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
(157/15) [2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279
(CC)
[21]
Coalcor
(Cape) (Pty) Ltd & others v Boiler Efficiency Services CC &
others
1990
(4) SA 349
(C) at 361 D-E
[22]
Erikson
Motors Ltd v Protea Motors, Warrenton & Another
1973
(3) SA 685
(A) at 691 C-E
[23]
Harnischfeger
Corporation & another v Appleton & another
1993
(4) SA 479
(W) at 491 B-E
[24]
New National Party of
South Africa v Government the Republic of South Africa and Others
[1999] ZACC 5
;
1999 (5) BCLR 489
(CC)