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[2021] ZASCA 50
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Merifon (Pty) Ltd v Greater Letaba Municipality and Another (1112/2019) [2021] ZASCA 50; [2021] 4 All SA 356 (SCA); 2023 (1) SA 408 (SCA) (22 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1112/2019
In the matter
between:
MERIFON
(PTY) LTD
APPELLANT
and
GREATER
LETABA MUNICIPALITY
FIRST RESPONDENT
HOUSING
DEVELOPMENT AGENCY
SECOND RESPONDENT
Neutral
citation:
Merifon
(Pty) Ltd v Greater Letaba Municipality and Another
(1112/2019)
[2021] ZASCA 50
(22 April 2021)
Coram:
PETSE AP, MAKGOKA and SCHIPPERS JJA
and GORVEN and POYO-DLWATI AJJA
Heard
:
23 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email,
publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45
on 22 April 2021.
Summary:
Agreement for
purchase and sale of immovable property – validity –
section 19
of the
Local Government: Municipal Finance Management Act
56 of 2003
– municipality concluding agreement without
compliance with peremptory provisions of
s 19
– claim for
specific performance by seller – seller not entitled to order
of specific performance – no court
competent to compel a party
to commit an illegality.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Polokwane (Ledwaba AJ sitting as court of
first instance):
The appeal is dismissed with costs, including the costs
attendant upon the employment of two counsel.
JUDGMENT
Petse
AP (Makgoka and Schippers JJA and Gorven and Poyo-Dlwati AJJA
concurring):
[1]
The doctrine of legality and the rule of law lie at the heart of the
Constitution.
[1]
There are numerous reported decisions of our courts that have
unequivocally affirmed the fundamental truism that the exercise of
public power derives from the law. Accordingly, no organ of state or
public official may act contrary to or beyond the scope of
their
powers as laid down in the law.
[2]
This is one of the foundational values of our constitutional
democracy.
[2]
In
Nyathi v Member of the Executive Council for the Department of
Health Gauteng and Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC) Madala J aptly put it thus:
'Certain
values in the Constitution have been designated as foundational to
our democracy. This in turn means that as pillar-stones
of this
democracy, they must be observed scrupulously. If these values are
not observed and their precepts not carried out conscientiously,
we
have a recipe for a constitutional crisis of great magnitude. In a
state predicated on a desire to maintain the rule of law,
it is
imperative that one and all should be driven by a moral obligation to
ensure the continued survival of our democracy.'
[3]
[3]
Almost ten years previously, in
Fedsure Life Assurance Ltd and
Others v Greater Johannesburg Transitional Metropolitan Council and
Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC), the
Constitutional Court was even more emphatic in underscoring the
principle of legality. The Court said the following:
'[A]
local government may only act within the powers lawfully conferred
upon it. There is nothing startling in this proposition
- it is a
fundamental principle of the rule of law, recognised widely, that the
exercise of public power is only legitimate where
lawful. The rule of
law - to the extent at least that it expresses this principle of
legality - is generally understood to be a
fundamental principle of
constitutional law.'
[4]
[4]
The central question which arises for determination in this appeal is
whether it would be appropriate,
in the context of the facts of this
case, for this Court to grant an order of specific performance in
favour of the appellant,
Merifon (Pty) Ltd (Merifon), together with
consequential relief sought by Merifon in this litigation. This
question pertinently
arises because of the provisions of s 19 of the
Local Government: Municipal Finance Management Act 56 of 2003 (the
MFMA). The section,
which is headed '
Capital projects'
, reads
as follows:
'(1)
A municipality may spend money on a capital project only if–
(a)
the money for the project, excluding the cost of
feasibility studies conducted by or on behalf of the municipality,
has been appropriated
in the capital budget referred to in section
17(2);
(b)
the project, including the total cost, has been
approved by the council;
(c)
section 33 has been complied with, to the extent
that that section may be applicable to the project; and
(d)
the sources of funding have been considered, are
available and have not been committed for other purposes.
(2)
Before approving a capital project in terms of subsection (1)
(b)
,
the council of a municipality must consider–
(a)
the projected cost covering all financial years
until the project is operational; and
(b)
the future operational costs and revenue on the
project, including municipal tax and tariff implications.
(3) A municipal council may in
terms of subsection (1)
(b)
approve capital projects
below a
prescribed value either individually or as part of a consolidated
capital programme.'
[5]
The factual background to this appeal may be summarised as follows.
For a considerable length of time,
the Greater Letaba Municipality
(the municipality) had been in dire need of land for human settlement
within its area of jurisdiction.
Yet it did not have the money to
acquire land for this purpose. As a result, it lost out, over several
years, on the Limpopo Government's
provincial allocation of funds to
municipalities in the province to build low-cost houses for the less
privileged citizens residing
within its municipal area because it did
not have land.
[6]
In order to extricate itself from this predicament the Executive
Mayor at the time, on 4 April 2011,
wrote a letter to the Provincial
Member of the Executive Council (MEC) of the Department of Local
Government and Housing (the department)
in which he proposed that the
department purchase three farms – identified in the letter –
for the municipality. The
department expressed its willingness to
assist. To this end, it engaged the Housing Development Agency
[5]
(the HDA) for assistance. The intervention of the HDA yielded
positive results. Land was identified and negotiations with a
representative
of the prospective seller for the purchase of a farm
known as Portion 5, 6, and the Remaining Extent of the Farm
Mooiplaats 434
LT in the Limpopo Province (the property), commenced.
The negotiations bore fruit. In the result, on 6 March 2013, the Head
of
the department addressed a letter to the municipality in these
terms:
'We refer to the above mentioned transaction and hereby [confirm]
that the Department in
the current
financial year ending 31 March 2013 has budgeted the required R52
Million excluding VAT required to acquire the above
mentioned
property required for human settlements development. The funds will
be paid into the trust account of the transferring
Attorneys after
the Deed of Sale between the Municipality and the Seller has been
concluded. The Department will furthermore pay
the applicable
transfer and registration costs amounting to R209 892.90.'
[7]
The letter from the Head of the department was placed before the
municipal council for adoption at its
special meeting held on 22
March 2013. Amongst the various resolutions adopted at this meeting
was one under the caption:
'
COUNCIL
RESOLUTION A. 1038/ 22/03/2013 / ACQUISITION OF REMAINING EXTENT AND
PORTION 5 AND 6 OF THE FARM MOOIPLAATS 434-LT
'
And
the resolution adopted by the council in relation thereto reads:
'1.
That the commitment letter from Department of Cooperative Governance,
Human Settlements
and Traditional Affairs to purchase portion 5 and 6
of the farm Mooiplaats 434-LT is approved.'
[8]
Pursuant to the adoption of the resolution described in the preceding
paragraph, Merifon concluded a
written agreement of sale in respect
of the property. It turned out, however, that before committing
itself to pay the purchase
price for the property and transfer costs
on behalf of the municipality, the department had, on 18 October
2012, applied to the
Provincial Treasury seeking authorisation to
disburse the amounts mentioned in its letter of 6 March 2013. But, on
27 March 2013,
the Provincial Treasury declined the department's
request on the grounds that, inter alia, the purchase price was
excessive. This
had the effect of scuppering the transaction because
it meant that the department could no longer pay over the funds that
it had
committed for the purchase price. And with the financial
year-end being only four days away, this meant that all of the entire
unspent funds in the department's 2012/2013 budget would have to be
returned to the Treasury. In the interim, Merifon was determined
to
enforce the agreement it had concluded with the municipality. To that
end, its attorneys addressed a letter of demand to the
municipality
giving the latter 14 days within which to pay the purchase price and
transfer costs or, failing that, face legal proceedings
enforcing the
agreement. This notice was not heeded.
[9]
Consequently, during 2014 Merifon instituted an action in the Limpopo
Division of the High Court, Polokwane
(the high court) against the
municipality as first defendant and the HDA as second defendant.
Merifon claimed payment, as against
the municipality only, of the
purchase price of R52 million and transfer costs in the sum of
R209 892.90. The foundation for
this claim was the agreement of
sale for the purchase of property
[6]
to which reference has already been made in paragraph 8 above. No
relief was sought against the HDA. Consequently, the HDA did
not
enter the fray. It has therefore played no part in this litigation
either in the high court or in this Court.
[10]
In its particulars of claim, Merifon alleged that on 7 March 2013,
[7]
represented by a Mr Mangena, and the municipality represented by its
municipal manager, Ms Mashaba, it sold the property to the
municipality for R52 million. The municipality also bound itself to
pay the transfer costs amounting to R209 892.90. Merifon alleged
that
Ms Mashaba was properly authorised, alternatively, had ostensible
authority to represent the municipality.
[11]
The municipality resisted the claim on several grounds. For present
purposes, it suffices merely to make reference
to four of its
defences. First, it was denied that its representative had the
requisite authority – whether actual, ostensible
or otherwise –
to enter into the agreement. Second, it pleaded that the agreement
was 'illegal and null and void' for want
of compliance with s 19 of
the MFMA because the subject-matter of the sale constituted a capital
project. Third, it alleged that
the municipal council 'never approved
the purchase of the property including the total costs thereof'.
Fourth, it was asserted
that the municipality was precluded from
incurring expenditure otherwise than in accordance with 'an approved
budget and within
the limits of the amounts appropriated . . . in the
approved budget'.
[12]
The municipality also filed a counter-claim in which it sought an
order declaring the agreement null and void and
unenforceable. In the
alternative – and conditional upon the first counter-claim
being unsuccessful – the municipality
alleged that the
agreement fell to be rectified because to the knowledge of the
parties the purchase price was to be paid not by
the municipality but
by the Limpopo Provincial Government: Department of Cooperative
Governance, Human Settlements and Traditional
Affairs (CoGHSTA).
[13]
The action came before Ledwaba AJ for trial who delivered his written
judgment on 18 July 2019. He dismissed the
action and granted
judgment in favour of the municipality with costs, declaring the
agreement 'null and void and unenforceable'.
After considering the
import of the relevant provisions of the MFMA, the learned Acting
Judge in essence found, inter alia, that
the municipality's
representative lacked the authority to sign the agreement because the
municipality had at no stage resolved
'to acquire the property'. And
the municipality had not appropriated funds for the acquisition of
the property either in its 2012/2013
annual approved budget or
adjusted budget. He further held that the municipal representative's
authority to conclude the agreement,
actual or ostensible, had in any
event not been established. Finally, insofar as estoppel was
concerned, upon which Merifon also
relied, he held that it did not
avail Merifon. He reasoned thus:
'Failure by a
statutory body to comply with the provisions which the legislature
has prescribed for the
validity
of a specified transaction
cannot be remedied by estoppel because that would give validity to a
transaction which is unlawful and
therefore ultra vires.'
Subsequently,
on 30 September 2019, Makgoba JP granted Merifon leave to appeal to
this Court on the basis that there was 'a compelling
reason why the
appeal . . . should be heard . . .'.
[14]
Apart from s 19 of the MFMA, there are also other provisions of the
MFMA to which reference has been made both
in the judgment of the
high court and counsel's heads of argument. As these provisions play
a significant role in the determination
of the issues that arise in
this appeal, it is necessary to give a brief overview of them before
dealing with the issues in the
context of the relevant statutory
framework.
[15]
According to its preamble, the MFMA seeks to 'secure sound and
sustainable management of the financial affairs
of municipalities and
other institutions in the local sphere of government; to establish
treasury norms and standards for the local
sphere of government . .
.'. One of the objects of the MFMA is 'to secure sound and
sustainable management of the fiscal and financial
affairs of
municipalities . . . by establishing norms and standards and other
requirements for–
(a)
ensuring
transparency, accountability and appropriate lines of responsibility
in the fiscal and financial affairs of municipalities
and municipal
entities;
(b)
the management of their revenues,
expenditures, assets and liabilities and the handling of their
financial dealings;
(c)
budgetary and financial planning
processes and the co-ordination of those processes with the processes
of organs of state in other
spheres of government;
(d)
. . .
(e)
. . .
(f)
supply chain management; and
(g)
. . .'.
[8]
[16]
Section 3(1) provides that the MFMA applies to–
(a)
all municipalities;
(b)
all municipal entities; and
(c)
national and provincial organs of
state to the extent of their financial dealings with municipalities.
Section
3(2) in turn provides that where there is any inconsistency between
any provision of the MFMA and any other legislation
which regulates
any aspect of the fiscal and financial affairs of municipalities, the
provisions of the MFMA shall prevail.
[9]
[17]
Section 15 provides for the appropriation of funds for expenditure.
It reads:
'A
municipality may, except where otherwise provided in this Act, incur
expenditure only–
(a)
in terms of an approved budget; and
(b)
within the limits of the amounts appropriated for
the different votes in an approved budget.'
The
adoption of annual budgets for municipalities is provided for in s
16.
[10]
Section 17(2) provides that an 'annual budget must generally be
divided into a capital and an operating budget in accordance with
international best practice, as may be prescribed'.
[18]
Finally, there is s 19 of the MFMA which is central to this appeal.
Its provisions have already been quoted in
paragraph 4 above. In
support of its invocation of s 19, the municipality pleaded that: (a)
the proposed acquisition of the property
constituted a capital
project as contemplated; (b) it could spend money on such a project
only if– (i) the money for the
project has been appropriated in
terms of s 17(2); (ii) the project has been approved by the council;
(iii) the sources of funding
have been considered, are available and
have not been committed for other purposes. In addition, the council
is required to consider,
before approving a capital project, that the
projected cost covering all financial years until the project is
operational and future
operational costs and revenue on the project
have been catered for.
[19]
The municipality then asserted that: (a) the purchase price for the
property was never budgeted for; (b) its council
never approved the
project, including the total cost thereof. Thus, the sources of
funding were never considered. Nor were projected
costs covering all
financial years until the project is operational; and future
operational costs and revenue considered. Consequently,
it was
contended that the agreement that Merifon sought to enforce was
plainly unenforceable for want of compliance with the peremptory
provisions of s 19.
[20]
It will be convenient first to deal with the most important issue in
this appeal for if it is determined in favour
of the municipality
that result would render it unnecessary to delve into the other
issues. This issue concerns the question whether
s 19 finds
application in this litigation at all, to which I now turn.
[21]
The language of s 19 could not be clearer. It is by now well
established that in interpreting a statutory provision
the language
employed, its nature and scope, the mischief sought to be prevented,
consequences for non-compliance and its purpose
are all relevant
factors.
[11]
Equally important is the context in which the provision under
consideration is located.
[12]
There can be no doubt that one of the manifest underlying purposes of
s 19 is to prevent municipalities from spending money on
capital
projects that have not been budgeted so as to ensure that
transparency, accountability as well as fiscal and financial
discipline are fostered. Thus, it is beyond question that s 19 and
the other provisions adverted to above are intended to promote
good
governance within the local sphere of government.
[22]
Does s 19 apply to the transaction under consideration here? There
can be no denying that the procurement of land
entails an acquisition
of a capital asset and thus a capital project as contemplated in s
19. There was no dispute between counsel
as to this categorisation.
Nevertheless, counsel for Merifon initially sought to argue that this
section was not implicated in
the litigation. But when his attention
was drawn to the provisions of s 3 (which explicitly states that the
MFMA applies to all
municipalities) counsel was constrained to accept
that s 19 finds application in this case. This notwithstanding,
counsel argued
that the MFMA does not apply to third parties such as
private entities like Merifon. Counsel's acceptance that s 19 binds
the municipality
raises the question whether this section was in fact
complied with by the municipality when it concluded the agreement
upon which
Merifon relied for the relief it seeks.
[23]
Counsel for Merifon argued that the municipality had to all intents
and purposes complied with the prescripts of
s 19. In developing his
argument, counsel submitted that the department had by letter, dated
6 March 2013, confirmed the availability
of the requisite funds. And,
pursuant thereto, the municipality had, on 22 March 2013, adopted a
resolution to acquire the property.
In support of the latter
contention counsel relied on the council resolution adopted on 22
March 2013. Because of its centrality
in counsel's contention, it is
necessary to quote this resolution again. It reads:
'1.
That the commitment letter from Department of Cooperative Governance,
Human Settlements
and Traditional Affairs to purchase portion 5 and 6
of the farm Mooiplaats 434-LT is approved.'
[24]
But as I see it, this resolution does not bear out counsel's
proposition. Even on a charitable interpretation of
its terms, it
cannot be read to mean that the council in actual fact resolved to
acquire the property. On its own terms, it is
no more than a mere
recordal that '[t]he commitment letter from the Department of
Cooperative Governance, Human Settlements and
Traditional Affairs to
purchase portion 5 and 6 of the farm Mooiplaats 434-LT is approved'
whatever this phraseology was intended
to mean. This is neither a
case of being pedantic or indulging in pure semantics. Far from it.
Rather, it is because a prominent
feature of the resolution heavily
relied upon does not support the case advanced by Merifon. As already
indicated, all that the
municipality did was merely to 'approve' the
commitment letter from CoGHSTA. In contrast to the council resolution
A901/29/04/2011
adopted on 29 April 2011 in relation to the purchase
of portion 3 of the selfsame farm Mooiplaats 434-LT which explicitly
stated
that '[c]ouncil approves that full settlement of R4 million
for the purchase of Portion 4 of the farm 434-LT Mooiplaats in the
current financial year 2010/2011', the 2013 resolution says nothing
of the sort. On the contrary, the 2011 resolution, unlike the
one
adopted in 2013, is couched in explicit terms leaving no room for any
doubt as to its purport.
[25]
It therefore follows that the high court was correct in concluding
that the agreement which is the foundation of
Merifon's claim was
legally unenforceable on account of the municipality's non-compliance
with the prescripts of s 19. As the performance
undertaken by the
municipality under the impugned agreement would have been unlawful it
cannot be sanctioned through the remedy
of specific performance. This
conclusion is indeed determinative of the outcome of this appeal.
[26]
But Merifon had another string to its bow. Relying on
City
of Tshwane Metropolitan Municipality v RPM Bricks
(Pty) Ltd
[2007] ZASCA 28
;
2008 (3) SA 1
(SCA) (
RPM
Bricks
),
[13]
Merifon invoked estoppel. However, its counsel was cognisant of the
fact that as a general rule estoppel cannot be invoked in
circumstances where to uphold it would be tantamount to a court
giving its imprimatur to an illegality.
[14]
Accordingly, counsel argued that on the facts of this case it was not
incumbent upon Merifon to enquire whether the municipality
had
observed the relevant internal arrangements or formalities, but was
entitled to assume that these were in actual fact complied
with.
[15]
[27]
Counsel's proposition is only correct so far as it goes. But in the
context of the facts of this case it is plainly
unsustainable. This
is because the municipality's non-compliance with s 19 falls not in
the category for which counsel contended
but in a different one where
the conclusion of the agreement in issue amounts to an act beyond or
in excess of the statutory powers
of the municipality as a public
authority. Thus, the principle of legality is manifestly implicated
for what the municipality had
done was at odds with the dictates of s
19. If the peremptory provisions of the MFMA were not complied with,
as I have found, the
agreement to purchase the property cannot be
'validated' through the doctrinal device of estoppel. To do so would
render the relevant
provisions of the MFMA nugatory. And the public
interest of promoting transparency, accountability and good
governance within the
local sphere of government, which is the
underlying purpose of the MFMA, would be undermined. And, as this
Court made plain in
RPM Bricks
(para 13):
'failure
by a statutory body to comply with provisions which the legislature
has prescribed for the
validity
of a specified transaction cannot be remedied by estoppel because
that would give validity to a transaction which is unlawful and
therefore ultra vires.'
(Citations
omitted.)
That
is precisely the situation in this case in more than one respect.
[28]
It remains to deal with the last of Merifon's principal submissions.
It relates to the authority of the municipality's
municipal manager
to conclude the impugned agreement on its behalf. It is not necessary
to delve into this aspect in the light
of the earlier conclusion that
the agreement is hit by s 19. Suffice it to say that whether the
municipality's representative had
the requisite authority, actual or
ostensible, to conclude the agreement on its behalf matters not,
because the agreement itself
is unenforceable for want of compliance
with the peremptory prescripts of the MFMA, and in particular s 19
for the reasons stated
above.
[29]
To sum up: it was plainly impermissible for the municipality to enter
into an agreement involving a capital project
contrary to the
prescripts of s 19. This being the case, it must ineluctably follow
that this Court cannot grant the order for
specific performance
sought by Merifon in this litigation. To do so in the face of the
clear provisions of s 19 would, as Innes
CJ said in
Schierhout
v Minister of Justice
1926 AD 99
at 109,
[16]
be tantamount to granting the court's imprimatur to something
proscribed by the law.
[17]
The reason for this principle is self-evident: no court can compel a
party to flout the law and, more fundamentally, the principle
of
legality which is the cornerstone of our constitutional democracy.
And sight should never be lost of the fact that in exercising
their
judicial functions, courts are themselves constrained by the
principle of legality.
[18]
With all of Merifon's principal arguments having been determined
against it, this result renders it unnecessary to consider the
other
related issues argued on its behalf.
[30]
For all the aforegoing reasons, Merifon's appeal against the
dismissal of its action by the high court is ill-founded.
It
therefore falls to be dismissed. In the result the following order is
made:
The
appeal is dismissed with costs, including the costs attendant upon
the employment of two counsel.
X
M PETSE
ACTING
PRESIDENT
SUPREME
COURT OF APPEAL
Appearances
For
appellant:
C A da
Silva SC (with him D Prinsloo)
Instructed by:
Becker Attorneys Polokwane, Bellville
Symington & De Kok, Bloemfontein
For first respondent:
A B Rossouw SC (with him J A L Pretorius)
Instructed by:
Mohale Attorneys, Polokwane
Honey Attorneys, Bloemfontein
For second
respondent: None
[1]
Section 1
(c)
of the Constitution of the Republic of South
Africa Act 108 of 1996.
[2]
Affordable Medicines Trust and Others v
Minister of Health and
Another
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) para 49 and
paras 75 to 77;
Albutt v Centre for the
Study of Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (2) SACR 101
(CC);
2010
(5) BCLR 391
(CC) paras 49-50;
Electronic
Media Network Limited and Others v e.tv (Pty) Limited and Others
[2017] ZACC 17
;
2017 (9) BCLR 1108
(CC) paras 25, 110-112;
Minister
of Constitutional Development and Another v South African
Restructuring and Insolvency Practitioners Association and
Others
[2018] ZACC 20
;
2018 (5) SA 349
(CC);
2018 (9) BCLR 1099
(CC) paras
27-29.
[3]
Paragraph 80.
[4]
Paragraph 56 (Citations omitted).
[5]
The
Housing Development Agency is an organ of state with juristic
personality established in terms of
s 3
of the
Housing Development
Agency Act, 23 of 2008
whose establishment is principally for the
purposes of, inter alia, facilitating the acquisition of land and
landed property
in order to compliment the capacity of Government
across all spheres and providing housing development services for
the purpose
of creating sustainable human settlements.
[6]
The agreement expressly provided that 17 industrial stands situated
within the property were to be excluded from the sale.
[7]
There was a dispute at the trial in regard to the date of sale. The
municipality's witness testified that she signed the agreement
after
22 March 2013. But nothing turns on this.
[8]
See
s 2.
[9]
It reads:
'In the
event of any inconsistency between a provision of this Act and any
other legislation in force when this Act takes effect
and which
regulates any aspect of the fiscal and financial affairs of
municipalities or municipal entities, the provision of
this Act
prevails.'
[10]
Section 16 is headed '
Annual budgets'
and it reads:
'(1)
The council of a municipality must for each financial year approve
an annual budget for the municipality before the start of that
financial year.
(2)
In order for a municipality to comply with subsection (1), the mayor
of the municipality must table the annual budget at a council
meeting at least 90 days before the start of the budget year.
(3)
Subsection (1) does not preclude the appropriation of money for
capital expenditure for a period not exceeding three financial
years, provided a separate appropriation is made for each of those
financial years.'
[11]
See, for example,
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012
(4) SA 593
(SCA) para 18;
Department of Land Affairs and Others v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (10)
BCLR 1027
(CC) ;
2007 (6) SA 199
(CC) para 53;
Independent
Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and
Others
[2019] ZACC 47
;
2020 (2) SA 325
(CC);
2020 (4) BCLR 495
(CC) para 41;
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para 90;
Cool Ideas 1186 CC v
Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014
(8) BCLR 869
(CC) para 28.
[12]
See:
Jaga v Dönges N O and Another; Bhana v Dönges, N O
and Another
1950 (4) SA 653
(A) at 662G-H in
which Schreiner JA said:
'Certainly
no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may
be useful to stress two
points in relation to the application of this principle. The first
is that "the context", as
here used, is not limited to the
language of the rest of the statute regarded as throwing light of a
dictionary kind on the part
to be interpreted. Often of more
importance is the matter of the statute, its apparent scope and
purpose, and, within limits,
its background.'
[13]
Paragraphs 11-13.
[14]
See in this regard:
Trust Bank van Afrika Bpk v Eksteen
1964
(3) SA 402
(A) at 411H-412B.
[15]
See also,
National and Overseas Distributors Corporation (Pty)
Ltd v Potato Board
1958 (2) SA 473
(A);
Potchefstroom se
Stadsraad v Kotze
1960 (3) SA 616 (A).
[16]
Innes CJ put it thus:
'It is a fundamental
principle of our law that a thing done contrary to the direct
prohibition of the law is void and of no effect
. . . So that what
is done contrary to the prohibition of the law is not only of no
effect, but must be regarded as never having
been done - and that
whether the law giver has expressly so decreed or not; the mere
prohibition operates to nullify the act
.' (Emphasis added.)
[17]
Lester v Ndlambe Municipality and Another
[2013] ZASCA 95
;
[2014] 1 All SA 402
(SCA);
2015 (6) SA 283
(SCA)
paras 23-24 and the authorities therein cited;
Home
Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan
Municipality
[2017] ZASCA 77
;
[2017] 3
All SA 382
(SCA);
2018 (1) SA 391
(SCA) paras 71-72;
Cool
Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) para
99.
[18]
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA);
2009 (4) BCLR 393
(SCA);
[2009] 2
All SA 243
(SCA) paras 15-16.