About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 89
|
|
Mangangeni Emmaus Westmead Returners Community Trust and Others v Minister of Rural Development and Land Reform and Others (361/2011) [2012] ZASCA 89 (31 May 2012)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no. 361/2011
Not Reportable
In the matter between
MANGANGENI EMMAUS
WESTMEAD RETURNERS
COMMUNITY TRUST
…..........................................................................
First
Appellant
MUNTOZWAYO SOLOMON
PHEWA
…............................................
Second
Appellant
BOBO ANTHANASIUS
MGOBHOZI
…..................................................
Third
Appellant
THEMBI ANNACLETTAH
MBILI
….....................................................
Fourth
Appellant
HENRY SANDILE HLENGWA
….............................................................
Fifth
Appellant
SIZAKELE PAULINA
MOLEFE
…..........................................................
Sixth
Appellant
and
MINISTER OF RURAL
DEVELOPMENT
AND LAND REFORM
…......................................................................
First
Respondent
KWAZULU NATAL REGIONAL
LAND
CLAIMS
COMMISSIONER
….........................................................
Second
Respondent
ITHALA LIMITED
…............................................................................
Third
Respondent
Neutral citation:
Mangangeni Emmaus Westmead Returners Community Trust v The
Minister of Rural Development and Land Reform
(361/2011)
[2012]
ZASCA 89
(31 May 2012)
Coram: FARLAM, NAVSA
et MAJIEDT JJA, SOUTHWOOD et PETSE AJJA
Heard: 14 May 2012
Delivered: 31 May 2012
Summary:
Settlement
of land claim in terms of
Restitution of Land Rights Act 22 of 1994
–
agreements to regulate holding and control of funds paid pursuant to
settlement – claimants’ trust’s
entitlement to
payment of funds not unqualified.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
Kwazulu Natal High Court (Durban) (Cele J sitting as court of first
instance):
The application to amend
the notice of motion is refused;
The appeal is upheld
only insofar as it relates to the decision to uphold the point in
limine on jurisdiction;
The orders of the court
a quo are set aside and replaced with the following orders:
‘
a. The two points
in limine are dismissed:
b. The application is
dismissed with costs, such costs to be paid by the second, third,
fourth, fifth and sixth applicants in their
official capacities.’
The second, third,
fourth, fifth and sixth appellants in their official capacities are
ordered to pay the costs of this appeal.
____________________________________________________________________
JUDGMENT
____________________________________________________________________
SOUTHWOOD AJA (FARLAM,
NAVSA, MAJIEDT JJA and PETSE AJA concurring)
[1] This appeal is
concerned with the right to control two amounts (R5 445 468 for
the restitution capital award and R732 865.75
for the
restitution discretionary award) paid by the first respondent to the
third respondent pursuant to a
s 42D
settlement agreement (the
s 42D
agreement) entered into in terms of the
Restitution of Land Rights
Act
22 of 1994
(the Act)
and three transfer of
funds agreements. The first issue to be decided is whether the court
a quo had jurisdiction in respect of
the appellants’ claims
for:
(a) a declarator that two
transfer of funds agreements were invalid or had lapsed;
(b) a declarator that it
is in the interests of the first appellant and its members that the
first appellant takes control and management
of the funds held by the
third respondent;
(c) an order that the
third respondent pay to the first appellant the sums of R5 925 624.91
(the balance of the restitution
capital award) and R397 428.39
(the balance of the restitution discretionary award); and
(d) an order that on the
date of making payment, the third respondent provide a full account
of all funds received by it and interest
earned on investments.
The second issue to be
decided is whether, if the court a quo had jurisdiction, it should
have granted the appellants the relief
which they sought. The parties
agree that if the court a quo had jurisdiction this court should
decide the merits. The appellants’
application for leave to
amplify the record by placing a second, signed s 42D agreement before
this court was not opposed.
[2]
Only the first and second respondents (the respondents) opposed the
application in the court a quo. Apart from opposing the
grant of the
relief sought the respondents raised two points in limine: the first
was that the second appellant did not have authority
to bring the
application and the second was that the court a quo did not have
jurisdiction to decide the claims. The court a quo
dismissed the
first point but upheld the second and (wrongly)
1
dismissed
the application (it should have removed the matter from the roll).
2
The
appellants appeal with the leave of this court. They seek to overturn
the court a quo’s finding on jurisdiction and the
grant of the
relief sought in the notice of motion.
[3] The Act provides that
a person entitled to claim restitution of a right in land may lodge a
claim (s 10 (1)) and that if the
regional land claims commissioner is
satisfied that the claim has been lodged in the prescribed manner,
that it is not precluded
by s 2 and that it is not frivolous or
vexatious,
he or she shall give notice of the
claim in the Government Gazette (s 11 (1)). Thereafter the Commission
may investigate the claim
(s 12) and the claim may be referred to
mediation and negotiation (s 13 (1)) or to court (s 14(1)). During
the investigation by
the Commission the interested parties may enter
into a written agreement as to how the claim should be finalized and
the regional
land claims commissioner may certify in writing that he
or she is satisfied with the agreement and that it ought not to be
referred
to the court (s 14 (3)). The Minister may also enter into an
agreement with the parties (s 42D).
The relevant provisions
of s 42D provide as follows:
‘
(1) If the Minister is
satisfied that a claimant is entitled to restitution of a right in
land in terms of section 2, and that the
claim for such restitution
was lodged not later than 31 December 1998 he or she may enter into
an agreement with the parties who
are interested in the claim
providing for one of more of the following:
The award to the claimant of land, a
portion of land or any other right in land: Provided that the
claimant shall not be awarded
land, a portion of land or a right in
land dispossessed from another claimant or the latter’s
ascendant, unless –
such other claimant is or has been
granted restitution of a right in land or has waived his or her
right to restoration of the
right in land in question; or
the Minister is satisfied that
satisfactory arrangements have been or will be made to grant such
other claimant restitution of
a right in land;
the payment of compensation to such
claimant;
both an award and payment of
compensation to such claimant;
…
(deleted);
the manner in which the rights
awarded are to be held or the compensation is to be paid or held; or
such other terms and conditions as
the Minster considers appropriate.
(2) If the claimant contemplated in
subsection (1) is a community, the agreement must provide for all the
members of the dispossessed
community to have access to the land or
the compensation in question, on a basis which is fair and
non-discriminatory towards any
person, including a tenant, and which
ensures the accountability of the person who holds the land or
compensation on behalf of
such community to the members of the
community.
(3) The Minister may delegate any
power conferred upon him or her by subsection (1) … to the
Director-General of Land Affairs
or any other officer of the State or
to a regional land claims commissioner.’
[4] The court referred to
is the Land Claims Court established by s 22, the relevant provisions
of which read as follows:
‘
(1) There shall be a court of
law to be known as the Land Claims Court which shall have the power,
to the exclusion of any court
contemplated in s 166
(c),
(d) or (e)
of the
Constitution–
(
c
C) to determine any matter
involving the interpretation or application of this Act …
(d) to determine all other matters
which require to be determined in terms of this Act.’
It is
clear from the provisions of s 22 read with s 23, which provides for
the qualifications of judges of the court, that the court
is a
specialized court,
3
and
that it has exclusive jurisdiction in respect of the matters referred
to: i.e. the jurisdiction of the high court in respect
of all the
matters referred to is clearly excluded
4
.
[5]
The first question which arises in this appeal is whether the
determination of the disputes between the parties involves the
interpretation or application of the Act (s 22(1) (
c
C))
or is a matter which requires to be determined in terms of the Act (s
22(1)
(d)
)
.
These
issues necessitate an analysis of the facts which must be taken into
account in accordance with the Plascon-Evans principles.
5
There
is no suggestion that the respondents’ version or any part of
it should be rejected on the papers
6
but it is clear that in
at least one important respect the respondents did not properly
engage with the facts alleged by the appellants
and did not create a
bona
fide
dispute
of fact. Where this happens the court is entitled to accept the
correctness of the facts averred by the appellants.
7
[6] The relevant facts
are as follows: the appellants are the Mangangeni Emmaus Westmead
Returners Community Trust (the Trust),
which was established to act
on behalf of the claimants under the Act, and the Trust’s five
trustees. The first respondent
is the Minister of Rural Development
and Land Reform who is charged with the administration of the Act.
The second respondent is
the Kwazulu Natal Regional Lands Claims
Commissioner and the third respondent is a Durban-based investment
bank.
[7] On 14 August 1995
about seven hundred people calling themselves the Mangangeni Emmaus
Westmead Returners Committee lodged a
claim under the Act in respect
of portions of the farm Zeekoegat No 973 owned by the Marianhill
Mission Institute and the farms
Salt River, Stockville and Richmond.
On 25 April 1997, acting in terms of s 11(1) of the Act, the second
respondent published a
notice of the claim in the Government Gazette.
[8] After the claim was
published in the Government Gazette, representatives of the claimants
and the second respondent met on a
number of occasions with a view to
reaching agreement on the restitution award and the purchase of the
property from the Marianhill
Mission Institute. Eventually the second
respondent prepared a draft agreement which provided that –
the first respondent
would pay a restitution award of R6 770 500 to the
claimants;
(d) a portion of the
award would be used to pay the Marianhill Mission Institute for the
land to be purchased by the claimants;
(c) the claimants would
establish a trust (i.e. the first appellant) to represent two hundred
and fifty claimants;
(d) the first respondent
would pay the balance of the restitution award to the Trust after the
purchase price of the property had
been paid.
The claimants agreed with
these proposals and it was agreed that they would be incorporated in
a s 42D agreement.
[9] Thereafter there were
numerous meetings between the claimants’ representatives and
the second respondent’s representatives
during which the
parties attempted to reach agreement as to how the funds should be
managed to ensure that all the claimants would
benefit equally. This
seemed to be an insurmountable problem.
[10] Eventually, in July
2003, the first appellant and the respondents entered into a s 42D
agreement in terms of which:
(a) it was agreed that
the total value of the 250 claims was R6 770 500;
(b) the State agreed to
restore to the claimants, portions of the remainder of portion 79 of
the farm Zeekoegat 937 and portion
8 of erf 6388 Pinetown
registration division FT, Province of Kwazulu Natal (‘the
land’);
(c) it was agreed that
the sum of R1 333 885 would be deducted from the total
value of the claims and would be utilised
by the State to purchase
the land from the registered owners;
(d) the remainder of the
total value of the claims after purchase of the land (R5 436 618)
would be held by the first
appellant in an interest-bearing account;
(e) the land would be
transferred from the registered owners to the first appellant for the
purpose of developing the land on behalf
of the 250 claimants so that
each claimant would receive a residential sub-division in the
township and a share in the development
of the remaining land in
accordance with the Emmaus Development Concept dated 29 October 2001;
(f) the first appellant
and the Department would enter into an agreement containing the terms
and conditions pertaining to the transfer
of funds to the first
appellant in terms of the concept plan. This agreement would outline
the first appellant’s and the
State’s continuing
obligations to set up proper controls and risk management systems to
ensure that the benefits of the agreement
reached the individual
claimants;
(g) the first appellant
was obliged to allocate to each claimant a single residential site
within the development of the land;
(h) the claimants would
apply to the State for development assistance or subsidies and the
State would assist the claimants in the
application by paying a
restitution discretionary grant of R3000 per claimant;
(i) prior to or
simultaneously with the transfer of the land to the first appellant
the State would pay to the first appellant the
balance of the total
claim together with the restitution discretionary grant of R3000 per
claimant and the first appellant would
hold these amounts in an
interest-bearing account for the benefit of the claimants and such
amount would together with the interest
thereon be utilized by the
first appellant in accordance with the provisions of the agreement.
(The respondents’
denial that they signed the agreement and the implication that the
agreement was not entered into is, to
say the least, disingenuous.
One of the second respondent’s letters refers to the signed
agreement and does not dispute that
the agreement was entered into.
Two later agreements refer to the fact that the land claim was
settled in terms of an agreement
which is annexed to these agreements
as an annexure and the respondents paid over to the third respondent,
for the benefit of the
first appellant and the claimants, the
restitution capital award and the restitution discretionary award.
The respondents have
not produced any other document which would
support such payments.)
[11] In about June 2003
the National Department of Land Affairs, the Commission on the
Restitution of Land Rights Kwazulu Natal,
the Ithala Development
Finance Corporation Limited (third respondent) and the first
appellant entered into a written agreement
for the transfer of the
restitution capital award and the restitution discretionary award to
the third respondent for the benefit
of the Mangangeni Emmaus
Westmead Land claimants. After referring in the extensive preamble to
(a) the s 42D agreement (attached
as an annexure); (b) the parties’
wish to transfer, receive and ensure the proper management of the
funds to enable the claimants’
trust (i.e. first appellant) to
implement the various projects; (c) the amounts to be transferred to
the first appellant (restitution
capital award of R5 511 879
and restitution discretionary award of R750 000); (d) that
payment would be effected
to the first appellant’s trust
account with the third respondent; (e) that the funds would remain in
the third respondent’s
account until full expenditure and
reconciliation; (f) that the third respondent would be responsible
for the management and disbursement
of the funds and (g) that the
first appellant and the Commission would set up and adhere to a fair,
transparent and equitable system
for the disbursement of the funds by
the first appellant, the parties agreed on the terms and conditions
applicable to the funds
to be paid over to the first appellant. These
terms and conditions provide that the funds would be received,
managed and disbursed
by the third respondent in accordance with the
agreement, which required the approval and consent of the second
respondent and
compliance with the procedures prescribed by the
agreement.
[12] On 2 September 2003
the first appellant and the Marianhill Mission Institute entered into
a written agreement in terms of which
the first appellant purchased
from the Institute for a purchase price of R1 315 032
portion 326 of the farm Zeekoegat
and portion 8 of erf 6388 Pinetown.
Transfer of the land to the first appellant was delayed because of
the second respondent’s
concerns about the way the Trust was
being managed and neither the restitution capital award nor the
restitution discretionary
award was paid to the first appellant.
[13] On 8 February 2006
the Director-General of the Department accepted the recommendations
of the regional land claims commissioner,
inter alia, that the
Director-General approve the transfer of the restitution
discretionary award (R750 000) and the restitution
capital award
(R5 455 468) to the third respondent and that the
Director-General sign the transfer of funds agreement
between the
Department and third respondent. On the same day the Director-General
signed agreements for the transfer from the Department
to the third
respondent of the restitution capital award and the restitution
discretionary award which had already been signed
by the Regional
Land Claims Commissioner and the third respondent. The agreements,
which are in identical terms, record that the
parties wish to ensure
the proper management of the funds to enable the first appellant to
implement the relevant programme and
that the funds would be paid
over to the first appellant but would be managed by the third
respondent which would invest, manage
and make payments strictly for
the purposes and in terms of the conditions set out in the agreement.
The agreements also stipulate
that the Department would remain
responsible for the utilization of the funds and that the Department
appointed the third respondent
to act on its behalf in receiving,
managing and administering the funds.
[14] On 28 February 2006
the Department paid the sum of R5 455 468 (the capital
award of R6 770 500 less the
sum of R1 315 032
for the purchase of the land) into the third respondent’s bank
account No 7911670 and on 6 March
2006 the Department paid the sum of
R732 865.75 (the discretionary grant of R750 000 less rates
of R17 134 for 2003/4
and 2004/5) into the third respondent’s
bank account No 79212157.
[15] On 5 December 2007
the Marianhill Mission Institute transferred the land into the name
of the first appellant which since then
has paid property rates
totalling R524 800. The respondents state that these rates will
be refunded as the municipality has
exempted land reform
beneficiaries from paying rates.
[16] Since receiving the
funds the third respondent has continued to hold them in the two
accounts and has disbursed funds from
time to time to or on behalf of
the first appellant, but only with the approval of the respondents.
The respondents have raised
concerns about the appellants’
management of the Trust and there have been allegations, all hearsay
and unsubstantiated,
that the second to sixth appellants have been
removed as Trustees. The affidavits show that none of the Trustees
has been removed
and that no steps have been taken to remove any of
them.
Locus Standi
[17] Although the
respondents contended in their heads of argument that the court a quo
should have upheld the first point in limine,
in oral argument before
this court the respondents disavowed any reliance on the point
raised. Accordingly it requires no further
consideration.
Jurisdiction
[18] The court a quo
upheld the respondents’ point in limine that the high court has
no jurisdiction to decide the matters
raised in the affidavits on the
simple basis that the respondents had not signed the s 42D agreement
and by implication had not
entered into such an agreement. This
finding was contrary to the respondents’ concession in their
heads of argument (i.e.
that it was common cause that the first
appellant and the respondents had entered into the s 42D agreement
annexed to the founding
affidavit as MSP12) and the other undisputed
facts. Briefly, these were that a claim had been lodged under the
Act; that the claim
had been settled and a discretionary award
tendered; that the two amounts were paid by the respondents to the
third respondent
pursuant to the settlement and tender and no basis
for the payment other than the s 42D agreement was canvassed in
the affidavits.
The special plea on jurisdiction should therefore not
have been decided on the basis that no s 42D agreement had been
entered into.
[19] It was clear that
agreement had been reached that the restitution capital award and the
restitution discretionary award would
be paid and the court had to
decide whether the two transfer of funds agreements entered into on 8
February 2006 (MSP27 and KR3)
were invalid or, if valid, had lapsed,
and whether in the light of the s 42D agreement and the three
transfer of funds agreements
the first appellant was entitled to
payment of the balances owing in the two accounts managed and
controlled by the third respondent.
The answer to these questions
depends upon the law of contract and the interpretation of the
agreements concerned. They clearly
do not involve the application or
interpretation of the Act (s 22(1) (cC)) and are not matters which
require to be determined in
terms of the Act (s 22(1) (d). The point
in limine regarding jurisdiction should therefore have been
dismissed.
The relief sought
[20] In their founding
papers the appellants sought a declarator that the transfer of funds
agreement in respect of the restitution
discretionary award (MSP27)
was invalid or had lapsed but clearly the appellants had to seek the
same relief in respect of the
transfer of funds agreement pertaining
to the restitution capital award (KR3). The appellants did not seek
any relief in respect
of the agreement for the transfer of the
restitution capital award and the restitution discretionary award
entered into in June
2003 to which the first appellant was a party
(KR4). The appellants alleged in their founding affidavit that the
transfer of funds
agreement (MSP27) was ‘in violation of the
settlement agreement’ and that it is unconstitutional, invalid
and of no
force and effect. The appellants further alleged that even
if the agreement was valid it had lapsed and the respondents were no
longer entitled to control and manage the funds pursuant to the
agreement. In their heads of argument the appellants conceded
(correctly) that the transfer of funds agreements give the
respondents, particularly the third respondent, the power to manage
and control the first appellant’s funds. The appellants argued
simply that because the transfer of funds agreements were concluded
without the consent of the appellants they were invalid and of no
force and effect. No other grounds of invalidity were referred
to.
The appellants made no submissions regarding the agreement for the
transfer of the restitution capital award and the restitution
discretionary award entered into in June 2003 (KR4). Without making
submissions regarding the relief sought the appellants asked
for the
relief claimed in the notice of motion. In oral argument the
appellants’ counsel (who did not prepare the heads of
argument)
contended that the transfer of funds agreements (MSP27 and KR4) were
no longer in force because they were only intended
to operate for a
period of 24 months from 8 February 2006. This was alleged in the
founding affidavit and was denied by the respondents,
who did not
pertinently allege that the Department or the parties had agreed that
the agreements should continue to operate after
that time.
[21] It has not been
shown that the two transfer of funds agreements (MSP27 and KR3) are
invalid. The mere fact that the agreements
were entered into without
the appellants’ consent would not render them invalid. Neither
would the mere fact that the agreements
appear to be in conflict with
another agreement between different parties render them invalid. But,
in any event, the transfer
of funds agreements are consistent with
the provisions of clause 1.2.5 of the s 42D agreement which require
that the funds be safeguarded
once they are transferred to the first
appellant.
[22] It has also not been
shown that the two transfer of funds agreements have lapsed with the
effluxion of time. The respondents
pertinently deny this and when
read in context this denial clearly indicates that (as provided in
the agreements) the Department
had decided or the Department and the
third respondent had agreed that the third respondent would continue
to manage and control
the funds in accordance with the agreements.
There is no other explanation for the third respondent’s
continued management
and control of the funds.
[23] The appellants have
not even attempted to explain the status of the transfer of funds
agreement entered into in June 2003 (KR4).
There is no allegation
that it was invalid or that it was terminated and the appellants
correctly say this agreement left the first
appellant with no powers
whatsoever regarding the use and disbursement of the funds. The
agreement clearly provides for the third
respondent to invest, manage
and disburse the funds in accordance with the agreement and
instructions from the regional lands claims
commissioner.
[24] The appellants have
therefore not shown that they are entitled to any of the declarators
claimed in the notice of motion.
[25] For the same reasons
it cannot be found that the appellants are entitled to an order that
the third respondent pay to the first
appellant the two amounts in
the accounts controlled by the third respondent. Section 42D empowers
the Minister (and his delegates)
to agree on the manner in which the
rights awarded are to be held or the compensation is to be paid or
held or any other terms
and conditions which he considers
appropriate. The s 42D agreement provides in clause 1.2.5 for
agreement to be reached on the
transfer and management of the funds
awarded. The first transfer of funds agreement, to which the first
appellant was a party (KR4)
clearly gives effect to this clause. The
transfer of funds agreements entered into in 2006 (MSP27 and KR3)
have the same object.
The three transfer of funds agreements plainly
provide for the third respondent to act on behalf of the respondents
in managing
and controlling the funds and the appellants have not
demonstrated any right to payment free from such control.
[26] During oral argument
the appellants’ counsel applied, informally, for the notice of
motion to be amended to include a
prayer for ‘an order
authorising the first appellant to have free and unfettered control
of and access to the funds held
on its behalf by the third
respondent’. The respondents objected to this amendment because
it would change the whole complexion
of the application. I agree and
the application for an amendment will be refused.
[27] The appellants have
therefore not shown that they are entitled to any of the other relief
sought in the notice of motion.
[28] It remains to
mention the failure of both sides’ counsel to provide the court
with a chronology as required by rule 10(3)
(d). One purpose of a
chronology is to facilitate the reading and understanding of the
record which in this case does not follow
a clear and logical
sequence. The absence of the chronology has substantially increased
the burden of preparing for this appeal.
Practitioners should note
that such failures to comply with the rules can result in an order
disallowing their fees.
8
[29] The following order
is made:
The application to amend
the notice of motion is refused;
2. The appeal is upheld
only insofar as it relates to the finding on jurisdiction;
3. The orders of the
court a quo are set aside and replaced with the following orders:
‘
a. The two points
in limine are dismissed;
b. The application is
dismissed with costs, such costs to be paid by the second, third,
fourth, fifth and sixth applicants in their
official capacities.’
The second, third,
fourth, fifth and sixth appellants in the official capacities are
ordered to pay the costs of this appeal.
_________________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANTS: V I Gajoo
SC
Instructed by: M.E.
Mbhele & Co, Pinetown;
Phalatsi & Partners,
Bloemfontein.
FOR RESPONDENT: T V
Norman SC (with her C M Nqala)
Instructed by: State
Attorney, Durban;
State Attorney,
Bloemfontein.
1
In
this context jurisdiction means ‘the power of the court by law
to adjudicate upon, determine and dispose of a matter’
(
Ewing
McDonald & Co Limited v M & M Products Co
[1990] ZASCA 115
;
1991 (1) SA
252
(A) at 256G) and the crucial time for determining whether a
court has jurisdiction is the time when proceedings are commenced:
once established jurisdiction continues to exist until the end of
the proceedings even though the ground upon which it was established
ceased to exist (
Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit
Bakeries (Pty) Ltd
1969 (2) SA 295
(A) at 310D). Consequently
once the court had found that it did not have jurisdiction it had no
power to dismiss the application
and should have merely recorded
that it upheld the special plea on jurisdiction (
Communication
Workers Union v Telkom SA Ltd
1999 (2) SA 586
(T) at 599B-C.)
2
The
judgment/order of a court on the merits of a matter when the court
does not have jurisdiction is a nullity (
Lewis & Marks v
Middel
1904 TS 291
at 303;
Suid-AfrikaanseSentrale
Ko-operatiewe Graanmaatskappy Bpk v Shifren and others and the
Taxing Master
1964 (1) SA 162
(O) at 164 g-h;
Communications
Workers Union v Telkom SA Ltd
1999 (2) SA 586
(T) at 593 G-H).
3
Concerned
Land Claimants’ Organisation of Port Elizabeth v Port
Elizabeth Land and Community Restoration Association and
others
2007(2) SA 531 (CC) para 19
4
De
Bruin v Director of Education
1934 AD 252
at 256 and 258; Lenz
Township Co (Pty) Ltd v Lorentz NO en andere
1961 (2) SA 450
(A) at
455B – C.
5
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634D – 635C and National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26
6
National
Director of Public Prosections v Zuma supra para 26
7
Wightman
v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 12 and 13
8
See
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and
Another
1988 (3) SA 938
(SCA) ([1998]
3 All SA 175)
para 36; Premier
Free State and Others v Firechem Free State (Pty) Ltd
2000 (4) SA
413
(SCA) paras 45 and 48; Van Aardt v Galway
2012 (2) SA 312
(SCA)
para 34