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[2023] ZAKZPHC 147
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Matatiele Local Municipality v Zincede Ngokwakho (Pty) Ltd and Others (361/2023P) [2023] ZAKZPHC 147 (23 November 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 361/2023P
In
the matter between:
MATATIELE
LOCAL MUNICIPALITY
APPLICANT
and
ZINCEDE
NGOKWAKHO (PTY) LTD
FIRST RESPONDENT
STONEWELL
QUARRY (PTY) LTD
SECOND RESPONDENT
T/A
DORNING CRUSHERS
MINISTER
OF THE DEPARTMENT OF
THIRD RESPONDENT
MINERAL
RESOURCES AND ENERGY
ORDER
The
following order shall issue:
1.
It is declared that there is no valid lease agreement between the
applicant and
the first respondent.
2.
The first and second respondents, and anyone else occupying the
applicant's property,
namely Erf 1, Matatiele Commonage, also known
as Postershoek Quarry, through them are hereby directed to vacate the
property within
one (1) calendar month of this order.
3.
The first respondent is hereby ordered to take steps to rehabilitate
the applicant's
property upon vacating the property at its own costs.
4.
The first and second respondents are ordered to pay the costs of this
application.
JUDGMENT
Sipunzi
AJ
Introduction
[1]
In this application the applicant seeks relief arising from the
expiry of a lease
agreement that was entered into between itself and
the first respondent. The focus, therefore, is on the consequences of
the expiry
of the lease agreement as well as the effect of a cession
of a mining right concluded between the first and second respondents
on that agreement.
[2]
As outlined in the notice of motion, the order sought by the
applicant is as follows:
'1.
It is declared that there is no valid lease agreement between the
Applicant and the First Respondent.
2.
The First and Second Respondents, and anyone else occupying the
Applicant's property,
namely Erf 1, Matatiele Commonage, also known
as Postershoek Quarry, through them are hereby directed to vacate the
property within
one (1) calendar month of this order being granted.
3.
The First Respondent is hereby ordered to take steps to rehabilitate
the Applicant's
property upon vacating the property at its own cost.
4.
The First and Second Respondent are ordered to pay the costs of this
application.
5.
Further and/or alternative relief.'
The
parties
[3]
The applicant is the Matatiele Local Municipality, a category B
municipality duly
constituted in terms of the Local Government:
Municipal Structures Act
[1]
(Municipal Structures Act), with its principal place of business
situated at 102 Main Street, Matatiele, Eastern Cape.
[4]
The first respondent is Zincede Ngokwakho Housing (Pty) Ltd
(Registration number:
2019/140609/07), a private company registered
in terms of the Companies Act
[2]
whose registered address is 2[...] M[...] Street, Matatiele, Eastern
Cape. It was previously registered as Zincede Ngokwakho Housing
CC
(Registration number 1995/49681 /23).
[5]
The second respondent is Stonewell Quarry (Pty) Ltd (Registration
number: 2017/502047/07),
trading as Dorning Crushers whose registered
address is 1[...] J[...] N[...] Street, Pietermaritzburg, Kwa-Zulu
Natal.
[6]
The third respondent is the Minister of the Department of Mineral
Resources and Energy
whose address for purposes of this application
is 3rd Floor, Durban House, 3[...] A[...] L[...] Street, Durban. No
relief is sought
against the third respondent.
Summary
of facts
[7]
The property that is the subject of this application can be described
as Erf 1, Matatiele
Commonage, also known as Postershoek Quarry (the
property).
[8]
On 10 August 2016, the applicant and the first respondent concluded a
written lease
agreement in terms of which the applicant leased the
property to the first respondent. The material terms of the agreement
included
that the lease would continue until 21 May 2022. Any option
for the extension of the lease agreement would be subject to
ratification
by the municipal council and as set out in clause 15 of
the agreement.
[9]
When the lease agreement was concluded, the first respondent was the
holder of a converted
mining right which was issued by the third
respondent. The mining right authorized the first respondent to
conduct mining activities
in respect of the gravel on the property.
The mining right was granted for a period of ten years commencing
from 22 May 2012 until
22 May 2022, unless cancelled or suspended.
[10]
On 4 February 2019, the first respondent ceded its mining right to
the second respondent. On 4 December 2020, the third respondent
gave
consent to the cession of the mining right to the second respondent.
According to the applicant the cession of the mining
right had the
effect of terminating the lease agreement that was concluded between
itself and the first respondent.
[11]
On 15 November 2021, the second respondent notified the applicant of
its intention to exercise the option contained in clause
15 of the
lease agreement, being an intention to extend the 'leased area'
equivalent to any period of extension of its mining right
on the same
terms and conditions as set out in the original agreement.
[12[
On 17 February 2022, the applicant informed the second respondent of
the council's resolution not to extend the period of the
lease
agreement. The applicant also commenced with procedures for the
agreed alienation of the property. On 17 March 2022, the
third
respondent informed the second respondent that the application for
the renewal of the mining right was still under consideration.
The
second respondent was granted permission to utilize the mining right
that was soon to expire, pending the outcome of the application.
Issues
[13]
The issues that require determination include:
(a)
whether a valid lease agreement existed between the applicant and the
first respondent beyond 22 May 2022;
(b)
whether the second respondent was entitled to remain in occupation or
use of the property after the expiry of the lease agreement;
(c)
whether the written lease agreement between the applicant and the
first
respondent made provision for cession to another party;
(d)
whether the second respondent is entitled to remain in occupation of
the
property after the expiry of the lease agreement between the
applicant and the first respondent; and
(e)
as the second respondent is a holder of a mining right over the
property,
whether the applicant has any rights over the property.
Applicable
legal principles
[14]
The legal framework that promotes equitable access to the nation's
mineral and petroleum resources
and which provides for the security
of tenure in respect of mining, amongst others is the Mineral and
Petroleum Resources Development
Act
[3]
(MPRDA). Section 5A of the MPRDA finds particular application and
provides that:
'No
person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for and
produce any mineral or petroleum or commence with any work incidental
thereto on any area without-
(a)
an environmental authorisation;
(b)
a reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical
co-operation
permit, reconnaissance permit, exploration right or
production right, as the case may be; and
(c)
giving the landowner or lawful occupier of the land in question
at least 21 days written notice.'
[15]
The property in issue is owned by an entity that is a category B
municipality duly constituted
in terms of the Municipal Structures
Act. Therefore, reg 34(1) of the Municipal Asset Transfer Regulations
(the Regulations)
[4]
finds
application on how the applicant managed or used and exercised
control over the property. Regulation 34 provides that:
'34
Granting of rights to use, control or manage municipal capital assets
(1)
A municipality may grant a right to use, control or manage a capital
asset
after:
(a)
the accounting officer has in terms of regulation 35 conducted a
public participation process regarding the proposed granting of
the
right; and
(b)
the municipal council has approved in principle that the right
may be granted.
(2)
Sub regulation 1(a) must be complied with only if –
(a)
the capital asset in respect of which the proposed right is to be
granted has a value in excess of R10 million; and
(b)
a long term right is proposed to be granted in respect of the
capital asset.
(3)
Only the municipal council may authorise the public participation
process
referred to in sub regulation (1)
(a).
'
Evaluation
and findings
[16]
It is common cause that the applicant is the owner of the property.
During the subsistence of
the lease between the applicant and the
first respondent, the second respondent became the holder of the
mining right on the property
through the cession of the mining right
that was held by the first respondent.
[17]
The parties agreed that the lease agreement expired on 22 May 2022
and that the applicant resolved
not to renew same. The applicant also
revealed its plan about the future of the property, and that plan did
not involve any of
the respondents.
[18]
At the time of the issue of this application and during argument it
was common cause that the
application of the second respondent for
renewal of the mining right was pending. Therefore, the second
respondent remained the
holder of the mining right pending the
decision of the third respondent.
[19]
The salient questions that arose from these facts is whether the
second respondent could lawfully
remain on the property after the
expiry of the lease agreement or whether it mattered that the
applicant had different plans for
the property.
[20]
It seems that there are competing interests over the use or control
of the property. The applicant
believed that, as the owner, it had
right to determine how the property was utilized. On the other hand,
second respondent contended
that the mining right ceded to it by the
first respondent entitled it to continue with its mining activities
on the property, even
after the expiry of the lease agreement.
Arguments
[21]
On behalf of the respondents, it was argued that because the second
respondent was the holder
of mining right in respect of the property,
irrespective of whether or not the lease agreement was still in
force, it could not
be evicted. During oral arguments it was
submitted that, the continued presence of the first respondent on the
property was not
occasioned by the operation of a lease agreement or
any rights that the first respondent may have held through the mining
right,
but that it was at the instance the second respondent.
[22]
It was also emphasised that it mattered not that the applicant
intended to sell or alienate the
property. The second respondent was
the holder of the mining right and was entitled to continue to occupy
the property for purposes
of mining activities.
[23]
The contention of the respondents was that the applicant's reliance
on reg 34(1) was misplaced.
This was on the basis·that:
[5]
'22.
.... no such consent was required, even if it was required, it
cannot have any effect on the mining right.
23.
The mining right is created in terms of the Act, is ·granted
in terms of the Act and grants the right of access to the
land in
question for mining purposes. In terms of the Act, a mining right is
a mandatory prerequisite for carrying out mining.'
[24]
According to the applicant, it was bound to comply with reg 34(1), in
relation to the property.
In its stead, the municipal council had
followed the prescribed process in its dealing with the property.
[25]
The applicant's argument was that it had entered into the lease
agreement with the first respondent,
which did not exercise the
option in clause 15 of their written agreement. According to the
applicant, the second respondent was
not a party to the said
agreement and the ceded mining right did not extend to the ceding of
the lease agreement that was in operation
between itself and the
first respondent.
[26]
The applicant argued that the lease agreement operated separately
from the mining right. Further,
there was no transfer of the rights
that flowed from the lease agreement with the first respondent to the
second respondent. The
applicant further argued that the lease
agreement created specific terms upon which the agreement could be
amended or altered.
Evaluation
and application
Reliance
on reg 34
[27]
As a category B entity established in terms of s 2 of the Municipal
Structures Act, the conduct
or affairs of the applicant are subject
to the Local Government:
Municipal
Finance Management Act
[6]
(MFMA), as provided for in s 3(1)
(a).
By
extension, it is also subject to the regulations published by the
Minister of Finance in terms of s 168 of the MFMA.
[28]
Regulation 2(1), inter alia, makes provisions for the applicability
of the Regulations to the
granting of rights to use, control or
manage municipal capital assets particularly under Chapter 4, reg 34.
Therefore, the applicant
which was an entity that was concerned with
the granting of rights of use, control or management of a capital
asset, and not a
mining right, is not exempt from complying with the
requirements set out in reg 34(1). Contrary to the respondents'
arguments that
reliance on the said regulation was misplaced, in my
view, reg 34(1) does find application.
The
lease agreement
[29]
When the mining right.was ceded between the first arid second
respondents, it does not appear
that there was any mention on whether
such cession had any bearing or effect on the lease agreement that
was in operation between
the applicant and the first respondent.
[30]
It is worth noting that the parties did anticipate that the first
respondent might wish to pursue
an extension of the lease period.
This is clear from clauses 2 and 15 which sets out the process that
would be followed should
the first respondent wish to extend the
lease period. These clauses provided as follows:
'2.
THE LEASE
The
Lease
(sic)
shall hire the leased area from the Lessor from
the date of signature of this Agreement by the last party signing the
document,
which date will be deemed to be the date of commencement of
the Lease, for the currency of the aforesaid converted Mining Right,
plus any extension hereof by the exercising of the option set out
below.'
'15.
OPTION
'15.1
The Lessee shall have the option to lease the leased area for a
further period, equivalent to any periods of extension of
its mining
rights, on the same terms and conditions as set out in this agreement
and subject to such reasonable market related
rental as may be agreed
between the parties.
15.2.
This option is subject to the condition that the Lessee shall in
writing notify the Lessor of its intention to
exercise the option not
less than six months prior to the expiration of the initial period
(22nd day of May 2022).
15.3.
Should the parties not be able to reach agreement concerning the
reasonable market related rental for the optional
period by the
commencement of the optional period the matter shall be referred to
an Arbitrator in terms of the Arbitration Laws
of South Africa.
15.4.
The option set out herein is subject to the ratification by any
subsequent Municipal Council, if required, and
the provisions of the
Municipal Finance Management Act, if applicable.'
[31]
Although there was an alignment of the operation of the lease
agreement to that of the mining
right, clauses 15 and 2 are silent on
the prospects of the cession of the mining right. The lease equally
did not seem to anticipate
the cession of the mining right to a third
party, hence no provisions are made for in that regard. However, it
does appear that
the parties did anticipate that there might be an
intention or need to amend, alter or vary the terms of the lease
agreement. Hence
in clause 14, provision is made for the process to
be followed and the consequences of any failure to follow that
process, namely,
that they will have no binding effect. In terms of
clause 14:
'14.
WHOLE AGREEMENT AND NO VARIATIONS
14.1
This Agreement constitutes the entire Agreement between the parties
and no amendments, alterations or variations of this Agreement
shall
be binding on the parties unless reduced to writing and signed by
both parties or their duly authorised representatives;
[32]
This is the background upon which the applicant opposed the
respondents' argument that, when
the mining right was ceded to the
second respondent, by implication, so too was the lease agreement.
[33]
In the circumstances, and in regard to the interpretation of the
specified clauses of the lease
agreement, it would be prudent to
apply the principles set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
[7]
where the court gave a clear technique on interpretation.
[34]
Notably, the lease agreement expressly prohibited any amendments,
alteration or variations of
the agreement unless reduced to writing
and signed by both parties or their duly authorised representatives.
Upon an application
of
Endumeni
to clauses 2,14 and 15 of the
leas agreement and with regard to the background in which the
agreement was concluded, it was peremptory
for the first respondent
to seek the written consent of the applicant in order to replace
itself with the second respondent as
the first and second respondents
are distinct entities. The applicant was not a party to the cession
of the mining right and the
respondents have laid no basis upon which
it could be found that the terms of that cession would have a binding
effect on the applicant,
or by extension vary the lease agreement
that was in operation between the applicant and the first respondent.
[35]
Although there was no lease agreement concluded between the applicant
and the second respondent,
it communicated its intention to exercise
the option in clause 15 of the lease agreement between the applicant
and the first respondent.
The applicant declined to renew the lease
agreement and informed the second respondent of its future plans for
the property. The
expiry of the lease agreement between the applicant
and the first respondent and absence of a lease agreement between the
applicant
and the second respondent renders the respondents without
any rights or legal title over the property.
The
ceded mining rights
[36]
According to the respondents the mining right entitled them to remain
in occupation of the property
even against the applicant's will. The
respondents relied on
Minister
of Minerals and Energy v Agri South Africa
[8]
for its contention that as the holder of the mining right, it is
therefore entitled to remain in occupation of the property for
purposes of its mining activities. The relevant portion of the
judgment relied upon reads as follows:
[9]
'It
is plain from these provisions that anyone who wishes to prospect for
or mine minerals in South Africa may only do so in terms
of rights
acquired and held under the MPRDA. The rights of holders of mineral
rights reflected in s 5(1) of the 1991 Act have,
as such,
disappeared. Whilst those who held such rights under the 1991 Act,
and persons authorised by them, were formerly the only
persons who
could, subject to the 1991 Act, prospect and mine, and accordingly
enjoyed exclusivity, that is no longer the case.
They are free to
compete with others for rights under the MPRDA, but their status as
holders of mineral rights, recognised in the
past, is of no relevance
to whether they will be afforded such rights in the current
dispensation. In addition, the owners of land,
from which the mineral
rights have not been separated, can no longer prevent others from
coming onto their land for the purpose
of mining. All they have is a
right under s 5(4)(c) of the MPRDA to be notified and consulted
before others, acting in terms of
rights afforded to them by the
Minister under the MPRDA, come onto their land to prospect or mine.
There are no longer any rights
that can be put up for sale, used as
security or bequeathed to one's heirs. That broadly constitutes the
deprivation of which Agri
SA complains.' (Footnote omitted.)
[37]
The essence of the respondents' contention was that as the holder of
the mining right, it mattered
not that the owner of the property did
not consent to the second respondent's continued occupation and
mining activities on the
property. The respondents claim that the
cession of the mining right from the first respondent transferred all
the rights previously
acquired by the first respondent.
[10]
[38]
On the other hand, on 15 November 2021, the second respondent
notified the applicant of its intention
to exercise the option in
clause 15 of the lease agreement that was in operation between the
applicant and the first respondent.
As it seems, this was an
acknowledgement that the respondents required the consent and
co-operation of the applicant, as the owner
of the property, in order
to extend the operation of the lease agreement.
[39]
With respect, this acknowledgement of the applicant's title to the
property defeated the respondents'
contention that the mining right
entitled the respondents to remain on the property even without the
consent or co-operation or
plans of the applicant. If the mining
right gave them such a title, as they claim, then it would not have
been necessary for the
second respondent to seek the applicant's
co-operation and consent for the renewal of the lease.
[40]
It is against this background that one finds the respondents'
assertion that the mining right
entitled them to occupy the property
against the applicant's will to be inconsistent with their conduct
towards the applicant.
On this alone, it should not be open to the
respondent to rely on
Agri SA
only after it had failed to
bargain with the applicant or convince it to extend the lease
agreement. The implication of this conduct
was that the applicant as
the owner of the property had the final say on the lease agreement
and an indication that the respondents
believed that continued
occupation of the property was subject to the consent and
co-operation of the applicant. On this aspect,
reliance on
Agri SA
does not advance their cause, more so that it still placed the
responsibility on the holder of the mining right
to still notify
and consult before the enforcement of the mining right.
[41]
Reference was also made to the case of
Maledu
and Others v ltereleng Bakgatla Mineral Resources (Pty) Ltd and
Another
,
[11]
which stated:
'[56]
it is apposite at this juncture to observe that a mining right
confers on the holder of such right certain limited real rights
in
respect of the mineral and the land to which it relates. In
particular, it entitles the mining right holder to "enter the
land to which such right relates together with his or her employees,
and bring onto that land any plant, machinery or equipment,
and
build, construct or lay down any surface, or underground ...
infrastructure which may be required for the purpose of', amongst
others, mining, removal and disposal of any mineral to which such
rights relates as may be found during the mining.
These rights are
however, subject to the other provisions of MPRDA.
[57]
It bears emphasising that the provisions of s 5(3) of the MPRDA echo
two fundamental principles
of the common law. First, that the owner
of the land to which a mining right relates is obliged to allow the
holder access to his
or her land to do whatever is reasonably
necessary for the effective exercise of the mining holder's rights.
[58]
Second, the mining right holder is in turn obliged to exercise his
rights civiliter modo (in
a reasonable manner) so as to cause the
least possible inconvenience to the rights of the owner. Accordingly,
the common law requires
of both the landowner and the mining right
holder to exercise their respective rights alongside each other to
the extent that it
is reasonably possible to do so. It therefore
fosters a situation where the rights of the landowner and the mining
right holder
co-exist...
[59]
These common-law principles were articulated by Malan J in
Hudson
thus:
"...
whether or not the holder of the mineral rights acts bona fide and
reasonably in the course of exercising his rights.
He must exercise
his rights in a manner least onerous or injurious to the owner of the
surface rights, but he is not obliged to
forego ordinary and
reasonable enjoyment merely because his operations or activities are
detrimental to the interests of the surface
owner... "'
(Footnotes omitted.) (Emphasis added.)
[42]
Maccsand
(Pty) Ltd v City of Cape Town and Others,
[12]
to the extent that it dealt with the relationship between the holder
of a mining right and the owner of the land on which the holder
sought to exploit the resources, finds application to the case at
hand.
Maccsand
,
placed responsibility on the holder of the mining right to still
subject itself to legislative requirements of the owner of the
property. It is instructive in that:
[13]
'The
court in the
Maccsand CC
decision made it clear that mining
rights or mining permits granted by the Minister in terms of MPRDA do
not obviate the obligation
to require authorisations in terms of
other legislation that deals with functional domains other than
minerals, mining and prospecting.'
[43]
From the extracts quoted above, and on their application to the
issues between the parties, the
respondents were always conscious of
their responsibilities towards the applicant, as the owner of the
property. Such responsibilities
were also outlined in both
Maledu
and
Maccsand
with the end result being contrary to the
respondents' attitude that the mining right trumped everything.
Rehabilitation
of the property
[44]
In terms of clause 7(3) of the lease agreement the parties agreed
that on termination of the
converted mining right, the first
respondent would be responsible to rehabilitate the property at its
own cost. The first respondent
has not expressed any opposition to
this clause, and it should be carried out as agreed.
Conclusion
[45]
It is undeniable that the applicant and the second respondent have no
contractual obligations
towards each other. There has been no sound
legal basis shown for the belief that the cession of the mining right
had any bearing
on the contractual relationship that existed between
the applicant and the first respondent.
[46]
The lease agreement that expired between the applicant and the first
respondent was the only
basis upon which the first respondent could
remain in occupation of the applicant's property. Beyond the said
lease agreement,
the applicant did not bind itself in any further
contractual relationship of the said property. As demonstrated above,
the mining
right could not be extended to bind the applicant to give
the respondents right of occupation or control and use of the
property.
Therefore, there is no legal basis upon which the
respondents could remain in occupation of the property.
[47]
As pointed out in
Maledu
,
[14]
the respondents claim of its mining right should be done in a "manner
least onerous or injurious to the owner". Undoubtedly,
the
respondents' continued occupation of the property cannot be justified
on the basis of
Maledu
.
[48]
Therefore, the applicant and respondents are not exempt from the
procedures provided for in the
Regulations on the granting of rights
of use, control or manage municipal capital assets particularly under
Chapter 4, reg 34 as
passed by the Minister of Finance in terms of s
168 of the MFMA.
Costs
[49]
In these proceedings including the pre-trial conduct of this matter,
there were no factors to warrant a departure from
the general rule
that costs should follow the result.
Order
[50]
The following order is therefore made:
1.
It is declared that there is no valid lease agreement between the
applicant and
the first respondent.
2.
The first and second respondents, and anyone else occupying the
applicant's property,
namely Erf 1, Matatiele Commonage, also known
as Postershoek Quarry, through them are hereby directed to vacate the
property within
one (1) calendar month of this order.
3.
The first respondent is hereby ordered to take steps to rehabilitate
the applicant's
property upon vacating the property at its own costs.
4.
The first and second respondents are ordered to pay the costs of this
application.
SIPUNZI
AJ
CASE
INFORMATION
Date
of Hearing
:
16 October 2023
Date
of Judgment
:
23
November 2023
APPEARANCES
Counsel for the
Applicant:
Adv A J Dickson SC
Attorney for the
Applicant:
Matthew Francis Inc
Suite 4, 1st Floor,
Block A
21 Cascades
Crescent
Montrose
Pietermaritzburg
Email:
lawrence@mfilaw.co.za
Ref: L
Mashoko/05M059022
Tel: 033 940 8326
Fax: 086 459 1488
Counsel for the 1st
and 2nd Respondents :
Adv A Rall SC
Attorney for the
1st and 2nd Respondents:
Grant &
Swanepoel Attorneys Inc
Suite 1, The Mews
Redlands Estate
George MacFarlane
Lane
Pietermaritzburg
Email:
anthony@gsalaw.co.za
Ref: A
GranUSue/01D000223
Tel: 033 342 0375
[
1]
Local Government: Municipal Structures Act 117 of 1998
.
[2]
Companies Act 71 of 2008
.
[3]
Mineral and Petroleum Resources Development Act 28 of 2002
.
[4]
Municipal Asset Transfer Regulations, GN R878, GG 31346, 22 August
2008.
[5]
First and second respondents' comprehensive heads of argument.
[6]
Local Government: Municipal Finance Management Act 56 of 2003
.
[7]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[8]
Minister
of Minerals and Energy v Agri South Africa
2012 (5) SA 1 (SCA).
[9]
Ibid para 10.
[10]
First and second respondents' answering affidavit paras 9-10.
[11]
Maledu
and Others v ltereleng Bakgatla Mineral Resources (Pty) Ltd and
Another
2019 (2) SA 1 (CC).
[12]
Maccsand
(Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181 (CC).
[13]
NJJ Olivier, C Williams and PJ Badenhorst
'Maccsand
(Pty) v City of Cape Town
2012 (4) SA 181
(CC)' 2012 (15) 5 PER at 559,
[14]
Maledu
above
fn 11.