About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 73
|
|
Nongoma Local Municipality and Others v MEC for Cooperative Governance and Traditional Affairs (KwaZulu-Natal) and Others (846/2023P) [2023] ZAKZPHC 73 (3 July 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 846/2023P
In
the matter between:
NONGOMA
LOCAL MUNICIPALITY
FIRST APPLICANT
THE
SPEAKER: CLLR BW ZULU
SECOND APPLICANT
THE
MAYOR: CLLR M A MNCWANGO
THIRD APPLICANT
THE
MUNICIPAL MANAGER: MTHANDENI ZUNGU
FOURTH APPLICANT
and
THE
MEC FOR COOPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS (KWAZULU- NATAL) FIRST
RESPONDENT
MP
PHAKADE
SECOND RESPONDENT
CLLR
MILTON SOKHELA
THIRD RESPONDENT
CLLR
LONDIWE NOMALUNGELO BUTHELEZI
FOURTH RESPONDENT
CLLR
NM MTHEMBU
FIFTH RESPONDENT
CLLR
CM NDABANDABA
SIXTH RESPONDENT
CLLR
N MSOMI
SEVENTH RESPONDENT
CLLR
N XABA
EIGHTH RESPONDENT
CLLR
JC MTHIMKHULU
NINTH RESPONDENT
CLLR
MDLULI
TENTH RESPONDENT
CLLR
N NDWANDWE
ELEVENTH RESPONDENT
CLLR
ZN SITHOLE
TWELFTH RESPONDENT
CLLR
BH SITHOLE
THIRTEENTH RESPONDENT
CLLR
KM DLADLA
FOURTEENTH RESPONDENT
CLLR
M E NDWANDWE
FIFTEENTH RESPONDENT
CLLR
NM MCHUNU
SIXTEENTH RESPONDENT
CLLR
CSP SITHOLE
SEVENTEENTH RESPONDENT
CLLR
NF ZUNGU
EIGHTEENTH RESPONDENT
CLLR
N MANQELE
NINETEENTH RESPONDENT
CLLR
SM ZULU
TWENTIETH RESPONDENT
CLLR
DJ MTSHALI
TWENTY-FIRST RESPONDENT
CLLR
BS MBATHA
TWENTY-SECOND RESPONDENT
CLLR
BA MCWANGO
TWENTY-THIRD RESPONDENT
CLLR
S V NXUMALO
TWENTY-FOURTH RESPONDENT
CLLR
GS NKOSI
TWENTY-FIFTH RESPONDENT
CLLR
NA MANQELE
TWENTY-SIXTH RESPONDENT
INTERESTED
PARTIES
(AS
LISTED IN âScheduleâ)
TWENTY-SEVEN RESPONDENT
NATIONAL
MINISTER OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS TWENTY-EIGHTH
RESPONDENT
REASONS
FOR ORDER
Mathenjwa
AJ
Introduction
[1]
On 2 February 2023, the applicants launched this application, seeking
an order declaring
the application to be urgent and that the decision
of the first respondent to designate the second respondent to call,
convene and
chair a meeting of the first applicant be reviewed,
declared unlawful and set aside. On 4 February 2023 the matter came
before Ncube
J who issued the following order:
â
1
It is declared that this application is urgent and that the
Applicantsâ non- compliance
with the rules relating to the time
periods relating to service and forms of service is hereby
condoned in terms of Rule 6
(12) of the Uniform Rules of Court.
.2
A
rule nisi
hereby issued calling upon the respondents
to show cause at 10:00 on 20 March 2023 as to why a final order
in the following
terms should not be made:
2.1
It is declared that the decision of First Respondent to appoint and
designate the Second Respondent to
call, convene and chair a meeting
of the Council of the First Applicant purportedly pursuant to
sections 29
(1) and
29
(1A) of the
Local Government: Municipal
Structures Act 117 of 1998
is hereby suspended and is to be treated
as invalid and inoperative pending part B of this application.
2.2
It is declared that the operation of any decision taken by the
Council of the First Applicant on
20 February 2023 to elect a
new Speaker and Mayor is suspended and is to be treated as invalid
and inoperative pending the
resolution of part B of the application.
2.3
It is declared that anyone purportedly
elected as Speaker and Mayor in relation to the Council
of the
First Applicant is hereby interdicted and restrained from
purporting to hold the said positions of authority pending
the
resolution of part B of this application.
2.4
The second and third Applicants are to the extent necessary hereby
reinstated to the positions of
Speaker of Council and Mayor
respectively pending the final resolution of part B of the
application, and
2.5
The First Respondent must pay the Costs of this application, which
costs to include the costs of
two counsels;
alternatively
costs should be reserved.
3
Prayers in paragraphs 2.1 to 2.4 to operate as an interim interdict
with
immediate effect until the final determination of this
matter.â
In
part B of the application, the first respondent was required in terms
of Uniform
rule 53(1)
(b)
to dispatch a record of the decision
which was sought to be reviewed and set side and any other
information which was before the
first respondent when the decision
was taken.
[2]
On 20 March 2023, the matter came
before Seegobin J. The learned judge issued an order extending
the
rule nisi, and directed the applicants to deliver supplementary
affidavits, if any, in respect of part B of the application by
29
March 2023; the respondents were to deliver their answering
affidavit, if any, on or before 11 April 2023; and the applicants
were to deliver their replying affidavits, if any, on or before 14
April 2023.The applicants filed their supplementary affidavit
together with an amended notice of motion , in terms of which they
now also sought an order joining the Minister of Co-Operative
Governance and Traditional Affairs as the 28
th
respondent,
and sought to have
section 29(1)
and
29
(1A) of the
Local Government:
Municipal Structures Act 117 of 1998
declared unconstitutional and
invalid. The first respondent filed their answering affidavit wherein
they disputed that
section 29(1)
and
29
(1A) was unconstitutional, and
contended that the applicants, under the guise of supplementing their
review papers upon receipt of
the record, introduced an entirely new
cause of action. After representations were made to the Judge
President, a hearing date of
15 June 2023 was allocated. On 24 May
2023, the registrar issued a notice of set down advising and
directing the applicants to file
their heads of argument by 2June
2023 and the first and second respondents to file their heads of
argument by 9 June 2023. The respondents
filed their heads as
required. The applicants, however, failed to file their heads of
argument.
Application
for postponement
[3]
On 15 June 2023, when the matter came
before me, Ms Lushaba appeared for the applicants and advised
the
court that she was briefed to seek a postponement of the matter. The
reasons provided were that the applicantsâ senior counsel
was
abroad, their junior counsel stays in Cape Town, and they have not
filed their heads of argument. Her brief was only to seek
a
postponement and she could not take the matter further. Mr Mntambo
appeared for the Minister of Co-Operative Governance and Traditional
Affairs (the 28
th
respondent). He advised the court that
the Minister was only opposing part B of the application, that they
would deliver their answering
affidavit in respect of part B in due
course, and that they were not opposing the postponement. Mr Pellimer
SC, who appeared for
the first and second respondents, opposed the
postponement. He argued that the applicants brought the application
on very little
notice on the basis that it was urgent, and for that
reason, representations were made to the Deputy Judge President for
the return
date of the rule nisi to be set down urgently.
Subsequently, the matter was set down for 20 March 2023. On 20 March
2023, the first
and second respondentsâ counsel requested to have
the rule nisi discharged alternatively to remove the paragraph in the
rule nisi
that made it operative until part B of the application was
resolved, but the applicantsâ counsel opposed such relief. Seegobin
J, however, adjourned the matter and extended the rule nisi. Mr
Pellimer pointed out that the applicants thereafter amended their
notice of motion to introduce new relief based on a constitutional
challenge of
section 29(1)
and
29
(1A) of the Municipal Structures Act
and joined the Minister of Co-Operative Governance and Traditional
Affairs as the 28
th
respondent.
[4]
After hearing arguments,
I refused the postponement on the basis that it was not in the
interest of justice. In this application, the court issued interim
relief and ordered the speaker and the mayor of the first applicant,
who were ousted by a majority of councillors at a council meeting,
to
remain in their positions until the decision of the first respondent
was reviewed and the rule nisi dealt with. When the matter
came
before me, a period of more than two months has elapsed since the
rule nisi was issued. It is not clear from the record why
part B of
the application was not dealt with on 20 March 2023. The
explanation given by the applicantsâ counsel is not satisfactory.
She does not explain why another senior counsel was not briefed if
their usual senior counsel was unavailable. Counsel also does
not
explain why their junior counsel, who stays in Cape Town, could not
appear in court. Furthermore, counsel failed to explain why
they have
not filed their heads of argument. The applicants were informed on 24
May 2023 that the matter was set down for hearing
on 15 June 2023,
but they did not make arrangements to ensure that the matter would be
heard and that the interim order would finally
be dealt with on the
allocated date. It is trite law that unavailability of counsel
is not an excuse.
[1]
For
these reasons, it is not in the interest of justice to postpone the
application. This now brings me to the merits of the
application.
Merits
[5]
Mr Pellimer addressed the court on merits. Both
Ms Lushaba and Mr Mntambo remained in attendance but did not address
the court on
the merits.
The
issue for determination in this application is whether jurisdictional
facts existed for the first respondent to invoke section
29(1A), and
to designate the second respondent to call and chair the meeting of
the council. In their papers, the applicants contended
that the
jurisdictional facts did not exist for the following reasons: the
second applicant did not refuse to call a meeting of the
council; the
first respondent failed to adhere to the
audi alteram partem
rule before designating the second respondent to call the meeting of
the council; and the first respondentâs conduct lacks rationality
and was motivated by political considerations. The first and second
respondents, in their answering affidavits, contended that the
jurisdictional facts existed, and that the
audi alteram partem
rule was not applicable because the first respondent was
exercising an executive power.
Jurisdictional
facts in terms of section 29(1A)
[6]
Section 29(1A) of the Municipal Structures Act requires the MEC for
Local Government
to designate a person to call, convene and chair a
meeting of a municipal council if the speaker has refused to do so
and the municipal
manager was not available. The record filed by the
first respondent contains reports and documents that were considered
by the first
respondent when taking the decision to designate the
second respondent to call, convene and chair the meeting of the
council of the
first applicant. The council is constituted of 45
councillors, comprising of eight councillors from the National
African Congress
(ANC), 20 councillors from the Inkatha Freedom Party
(IFP), 14 councillors from the National Freedom Party (NFP), two
councillors
from the Economic Freedom Fighters (EFF), and one
councillor from the National Peopleâs Party (NAPF). On 31 January
2023, Councillor
Sokhela (the third respondent) submitted a notice of
vote of no confidence to the second applicant, against the second
applicant,
as the speaker of the first applicant. The notice was
supported by 25 councillors who constituted a majority of councillors
in the
council of the first applicant. On 2 February 2023, Councillor
Buthelezi (the fourth respondent) submitted a notice of vote of no
confidence against the third applicant, as the mayor of the first
applicant, to the municipal manager (the fourth applicant). The
notice was supported by 25 councillors who constituted a majority of
councillors. In these notices, the relevant respondents requested
the
second applicant to call a meeting of the council for purposes of
dealing with the votes of no confidence against the second
and third
applicants. On 2 February 2023, the second applicant addressed a
letter to the third respondent and advised that he has
an obligation
to ensure that the rule of law is applied objectively in all council
meetings, and that their request for a council
meeting and/or notice
of motion did not comply with the provisions of the Municipal
Structures Act and the Standing Rules of Orders
of Council and was
accordingly rejected. The letter stated that the rejection did not
constitute a refusal as contemplated by section
29(1A) of the
Municipal Structures Act. The letter further stated that the
municipal manager was not authorized to convene a meeting
of the
council.
[7]
On 8 February 2023, the third respondent addressed a further letter
to the fourth applicant requesting
him to call a special meeting of
the first applicant to deal with the vote of no confidence against
the second and third applicants.
The letter stated that they had
requested the second applicant to call a meeting but that he was
âplaying political tricksâ and
that he had failed to call the
meeting. On 8 February 2023, the third respondent also addressed a
letter to the second applicant
and requested reasons for his failure
to convene a meeting to deal with the vote of no confidence against
him and the third applicant,
as per the request of the majority of
councillors. On 8 February 2023, the third responded addressed a
letter to the first respondent
requesting the first respondent to
convene a meeting of the council of the first applicant on the basis
that both the second and
fourth applicants had refused to call the
meeting on request by the majority of councillors to do so. On 10
February 2023, the fourth
applicant, in his capacity as the municipal
manager, addressed a letter to the third respondent advising him
that, in his view, the
second applicant is entitled to decline to
place matters before the council for consideration which are not
legally compliant. He
further stated that he had been advised that
the second applicant had rejected their requests for a meeting on the
basis that such
requests were non-compliant with the legal
prescripts, including the Standing Orders. The fourth applicant
advised that he was not
legally authorized to convene a meeting of
the council. Again, on 10 February 2023, the third respondent
addressed a letter requesting
the first respondent to assist by
coordinating and convening a meeting of the council. In this letter,
the third respondent further
stated that the fourth applicant had
advised them that he was not legally authorized to call the meeting.
[8]
On 15 February 2023, the first respondent addressed a letter to the
second applicant informing
him that they had received a petition
signed by 25 councillors requesting the first respondent to designate
a person to convene and
chair a meeting of the council in terms of
section 29(1A). Furthermore, the first respondent advised that they
have considered all
the documents submitted and the rules of order of
the first applicant. They noted the content of the responses by the
second and
fourth applicants, and that they have not provided valid
reasons and the specific provisions of the law allegedly infringed by
the
movers of the notices of vote of no confidence. The first
respondent further advised that they were satisfied that the second
and
fourth applicants have refused to convene the meeting. They had
therefore elected to designate the second respondent to convene and
chair the meeting of the council to consider matters tabled in the
motion submitted by the majority of councillors. The first respondent
further advised that the meeting would be convened on Monday 20
February 2023. On 16 February 2023, the second respondent issued
a
notice calling for the sitting of the council of the first applicant
on 20 February 2023. Furthermore, on the same date, the second
respondent addressed a letter to all councillors of the first
applicant advising that the meeting scheduled for 20 February 2023
will not transact any business other than that for which the first
respondent was requested to designate a person to preside over
the
meeting.
[9]
In determining whether the jurisdictional facts existed enabling the
first respondent to invoke
section 29(1A), I have had regard to the
record considered by the first respondent. It is common cause that
the third and fourth
respondents had written three letters to the
second and fourth applicants requesting them to convene a council
meeting for purposes
of dealing with a vote of no confidence against
the second and third applicants. The second applicant had advised
them that their
requests did not comply with the prescripts of the
Municipal Structures Act and the provisions of the rules and order of
the first
applicant. The second applicant, however, did not advise
them what provisions were not complied with. Furthermore, the second
applicant
advised that the fourth applicant had no authority to
convene the council meeting. The fourth applicant further advised
that he had
no authority to convene the meeting.
[10]
The functions of the speaker with regard to a municipal council is
set out in the Municipal Structures Act.
Section 36(1) of the
Municipal Structures Act provides that the speaker is the chairperson
of a municipal council. Section 37 provides
amongst others that the
speaker must ensure that council meetings are conducted in accordance
with the rules and orders of the council
and must ensure compliance
by councillors with the councilâs code of conduct. This function
entails that the speaker has a responsibility
to advise councillors
to comply with rules of council. Should documents submitted by
councillors to the office of the speaker not
squarely comply with the
rules and orders of council, the speaker has a duty to point out the
nature of the failure to enable councillors
to comply with the rules
and orders. In the present matter, the second applicant had a duty to
advise the third and fourth respondents
on what basis their submitted
notices of vote of no confidence did not comply with the rules and
orders of the council. Despite the
fact that the relevant respondents
had written three letters requesting the second applicant to convene
a council meeting, they were
not informed on what basis their notices
did not comply with the rules and orders. By simply shooting down the
notices for alleged
non-compliance with the rules and orders, the
second applicant did not ensure that the third and fourth respondents
complied with
the rules and orders. The third and fourth respondents
were ultimately frustrated and hindered from submitting the notices
of vote
of no confidence.
[11]
The first respondent had sufficient information before them to draw a
conclusion that the second applicant
had refused to call a council
meeting. In my view, even if the first respondent had requested and
received reports from the second
applicant, it would not have changed
the conclusion reached, based on the available information that the
second applicant had refused
to call the council meeting. For these
reasons, the second applicant had unreasonably refused to call the
meeting. This brings me
to the question of whether the first
respondentâs decision is vitiated by irrationality and ulterior
purpose.
Rationality and
ulterior purpose
[12]
It is appropriate to point out that there is nothing in the wording
of section 29(1A) that suggests that
the MEC for Co-Operative
Governance and Traditional Affairs is required to comply with the
audi alteram partem
rule before designating a person to call,
convene and chair a council meeting. The
Municipal
Structures
Act requires the MEC to designate a person to
convene and chair a council meeting once the speaker has refused to
do so and the municipal
manager is not able to call the meeting. The
MEC designates a person for purposes of assisting the municipal
council to meet if the
speaker and the municipal manager are unable
to coordinate, call and chair the meeting of council. The exercise of
such power by
the MEC is provided for in a number of situations in
the Municipal Structures Act. Section 36(3) enables a person
designated by the
MEC to chair a meeting for the election of a
speaker, and section 29(2) enables a person designated by the MEC to
call and chair
a first meeting of the council of a municipality. In
all instances, the MECâs designee does nothing other than chairing
a meeting
for purposes of enabling the council to deal with its
business of the day.
[13]
It is generally accepted that any conduct by the MEC in dealing with
a municipal council must adhere
to section 41(1)
(h)
of the
Constitution which directs all spheres of government to
â
(h)
co-operate with one another in mutual trust and good faith byâ
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(iii)
informing one another of, and consulting one another on, matters of
common
interest;
(iv)
co-ordinating their actions and legislation with one another;
(v)
adhering to agreed procedures; and
(vi)
avoiding legal proceedings against one another.â
In my view, the approach
adopted by each sphere of government in dealing with each other is
determined by the prevailing circumstances,
provided such approach
adheres to the constitutional directive to co-operate in mutual trust
and good faith. Depending on the circumstances,
in co-operating with
one another, a sphere may assist and support another, and may inform
or consult another sphere on matters of
common interest. However,
there are no fixed criteria on how the spheres must co-operate with
one another.
[14]
It is trite that in a judicial review, a court is not concerned with
the merits of the decision under review,
but the question is whether
the decision taken by the public body under review was one which it
was legally permitted to take in
the way that it did. Legality, which
is the incidence of the rule of law, requires the exercise of public
power to be in compliance
with the law and within the boundaries set
by the law, and the rule of law requires rationality and the
non-arbitrary exercise of
power.
[2]
In this regard, the principle of the rule of law prevents the
arbitrary exercise of power for an ulterior purpose. Rationality
requires
a relationship or connection between a legitimate government
purpose and the means adopted to achieve such purpose.
[3]
The standard for determining whether the decision was rationally
related to the purpose for which it was given is an objective
test.
[4]
[15]
In the present matter, the majority of councillors had submitted a
vote of no confidence against the speaker.
The record of proceedings
before the first respondent which contained correspondence between
the movers of the motion of no confidence
and the speaker clearly
shows that the second applicant had refused to call the meeting.
There is no fixed approach to determine
what would constitutes
procedural fairness when the MEC designates a person to call and
chair a meeting of the council. What is procedurally
fair is
determined in the context of a specific case. In my view, the
approach adopted by the first respondent was rationally connected
to
the intended purpose.
[16]
In the present matter, there are accusations by
the councillors who are the movers of the motion of no confidence
that the second
applicantâs refusal to call a meeting is motivated
by political considerations. There are counter-accusations by the
applicants
that the first respondentâs exercise of the power to
designate the second respondent to call, convene and chair the
council meeting
was motivated by political considerations. In my
view, politicisation of litigation, perceived or otherwise, should
not detract from
the legal issue for consideration before the court,
which is whether the power was exercised within the boundaries of the
law, for
a legitimate purpose and was not exercised arbitrarily. In
the context of this matter, the first respondent informed the first
applicant
of the decision taken, the reason for the decision taken
and of the date and time when the council meeting would be convened.
Considering the situation that prevailed at the municipal council,
time did not permit protracted consultations that could have
prolonged
the crisis in the first applicantâs council. For that
reason, the rule nisi should be discharged and the application for
review
should be dismissed.
Constitutional
relief
[17]
The relief sought for an order declaring section
29(1) and 29(1A) unconstitutional is not properly before
this court.
This relief was introduced with an amendment of the notice of motion
after the original relief sought had been argued
and a rule nisi
issued on an urgent basis. The constitutional relief introduced a new
cause of action which was not considered by
the court which issued
the rule nisi. The notice of motion and the applicantsâ founding
affidavit that led to the issuing of the
rule nisi did not raise any
issue regarding the constitutional validity of section 29(1) and
29(1A) of the Municipal Structures Act.
The applicants were aware of
the existence of the section and the implications thereof at the time
of deposing to their founding
affidavits. The issue
regarding constitutional validity of the section did not arise from
the record of proceedings
filed by the first respondent.
It is for that reason that the new relief based on the constitutional
invalidity of section
29(1) and 29(1A) is not properly before court.
[18]
In the event that I am wrong in finding that it is not properly
before court, I will however proceed
to deal with the merits of the
constitutional challenge. In their supplementary affidavit, the
second applicant contends that section
29(1) and 29(1A) is in
conflict with the following sections of the Constitution:
(a)
section 160(6) which empowers a municipal council to make by-laws;
(b)
section 151(4) which prohibits provincial and national governments
from compromising or impeding âa municipalityâs ability or right
to exercise its powers or perform its functionsâ;
(c)
section 40(2) which directs spheres of government to adhere to the
principles of co-operative governance; and
(d)
section 41 which directs the spheres of government to co-operate with
one another.
[19]
It is not in dispute that a provincial governmentâs monitoring of
local government is sourced directly
from the Constitution.
[5]
In
Certification
of the Constitution of the Republic of South Africa 1996
,
[6]
the provincial government monitoring power over local government was
described as â. . . the antecedent or underlying power from
which
the provincial power to support, promote and supervise [local
government] emerges. . .â. Therefore, the notion
of
intergovernmental supervision is necessary for the purposes of
enabling the spheres of government not only to intrude into one
anotherâs autonomy but to support and assist one another.
Intergovernmental supervision ought to sustain coherence in
government
and to prevent a collapse of government in one sphere.
Section 29(1) and 29(1A) enables the MEC to assist and facilitate a
meeting
of a municipal council whenever it fails to meet and carry on
its business.
[20]
The contention that section 29(1) offends the Constitution by not
enabling the speaker to convene a council
meeting on request of a
minority of councillors is not sustainable. Section 160(3)
(c)
of the Constitution provides that â[a]ll other questions before a
municipal council are decided by a majority of the votes castâ.
Thus, the Constitution requires that the âmajority ruleâ should
play a role in the decision-making of a municipal council.
Furthermore,
section 29(1) does not prevent the speaker from
convening a meeting of the council on request by the minority members
of council,
all it does is to compel the speaker to convene the
meeting if requested to do so by the majority of councillors.
Municipal councils
are not prevented from making provisions in their
by-laws to enable minority councillors to request the speaker to
convene a meeting
of the municipal council on their request. For
these reasons, the challenge to the constitutional validity of
section 29(1) and 29(1A)
should fail.
Costs
[21]
With regard to the award of costs, I consider that the litigation is
between spheres of government, and that
the costs for such litigation
is sourced from the same state revenue. For that reason, I do not
make any order for costs.
Order
[22]
It was for the above reasons that I granted the following order on 15
June 2023:
1.
The adjournment is refused.
2.
The aforesaid rule nisi be and is hereby discharged.
3.
The application for review by the applicants be and is
hereby
dismissed.
4.
No order as to costs.
MATHENJWA AJ
Date of hearing: 15 June
2023
Date of granting of
the order: 15 June 2023
Date of hand down of
reasons for judgment and order: 3 July 2023
Appearances:
For
the applicants:
Adv
Lushaba
Instructed
by:
Buthelezi
Mtshali Mzulwini Inc Attorneys
Durban
For
the first and second respondents:
Adv
Pellimer SC
Assisted
by:
Adv
M Mabonane
Instructed
by:
Xaba
Attorneys Inc
Pietermaritzburg
For
the twenty-eighth respondent:
Adv
MS Mntambo
Instructed
by:
The
State Attorney
Durban
[1]
Imperial
Logistics Advance ( Pty) Ltd v Remant Wealth Holdings ( Pty) Ltd
[ 2022] ZASC 143 para 10.
[2]
Masetlha
v President of the Republic of South Africa and another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) para 173.
[3]
New
National Party of South Africa v Government of the Republic of South
Africa and others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) para 19.
[4]
United
Democratic Movement v President of the Republic of South Africa
and
others (African Christian Democratic Party and others intervening;
Institute for Democracy in South Africa and another as amici
curiae)
(No 2)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
( CC)
paras 55-75.
[5]
Section
155(6)
(a)
of the Constitution.
[6]
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification
of the Constitution of the Republic of South Africa, 1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC) para 372.