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[2011] ZASCA 53
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Acting Chairperson: Judicial Service Commission and Others v Premier of the Western Cape Province (537/10) [2011] ZASCA 53; 2011 (3) SA 538 (SCA); [2011] 3 All SA 459 (SCA) (31 March 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 537/10
In the matter between:
THE
ACTING CHAIRPERSON: JUDICIAL
SERVICE
COMMISSION
......................................................................
First
Appellant
THE
JUDICIAL SERVICE COMMISSION
.......................................
Second
Appellant
JUDGE
PRESIDENT MANDLAKAYISE JOHN HLOPHE
..................
Third
Appellant
and
THE
PREMIER OF THE WESTERN CAPE PROVINCE
.........................
Respondent
Neutral
citation:
Judicial Service Commission v Premier, Western Cape
(537/10)
[2011] ZASCA 53
(31 March 2011).
Coram:
HARMS DP, CLOETE, LEWIS, PONNAN and
MAJIEDT JJA
Heard:
18 MARCH 2011
Delivered:
31 MARCH 2011
Summary:
Constitution s 178: Composition and
functioning of the Judicial Service Commission: Premier of province
forms part of JSC in
terms of subsection (1)(k) when complaints
against high court judges of the province are considered; majority of
members in terms
of subsection (6) means majority of members entitled
to be present, not majority of members present and voting; proper
order when
decision taken by improperly constituted JSC, or by
invalid vote, is to set the decision aside.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Jones and
Ebrahim JJ sitting as court of first instance):
The appeal is dismissed with costs, including the costs
of two counsel, which are to be paid by the Judicial Service
Commission
and the Judge President jointly and severally.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (HARMS DP, LEWIS, PONNAN and MAJIEDT JJA
concurring):
Introduction
[1] The Premier as the executive
authority
1
of the Western Cape Province
instituted urgent motion proceedings in the Western Cape High Court,
Cape Town, against the Acting
Chairperson of the Judicial Service
Commission (JSC), the JSC itself, past and present Justices of the
Constitutional Court and
the Judge President of the Western Cape. No
relief was sought against the Justices, who were cited because of the
interest they
might have in the application.
[2] The Premier claimed an order
declaring certain proceedings of the JSC and decisions taken by it to
be invalid and further claimed
that the decisions of the JSC were not
taken by the requisite majority. The Justices did not participate in
the proceedings. The
court a quo (Jones and Ebrahim JJ) granted the
declaratory orders sought, and set the proceedings and the decisions
of the JSC
aside.
2
Leave to appeal to this court was
subsequently granted by the court a quo to the Acting Chairperson and
the JSC (to which I shall
refer jointly as 'the JSC'), and the Judge
President.
The facts
[3] The history of the matter can be
stated briefly. The Justices lodged a complaint of judicial
misconduct against the Judge President
with the JSC, alleging that he
had approached two Justices in an attempt to influence them in a case
pending before the Constitutional
Court which related to the current
President of the Republic of South Africa. The Judge President's
counter-complaint of judicial
misconduct on the part of the Justices
was that his constitutional rights had been violated when the
Justices published a media
release about their decision to lodge the
complaint.
3
The JSC convened to consider the
complaints on 20 to 22 July 2009 in Cape Town and on 15 August 2009
in Johannesburg. At those meetings,
various decisions were taken,
culminating in the decision:
'1. That the evidence in respect
of the complaint did not justify a finding that the Judge President
was guilty of gross misconduct
and that the matter was accordingly
finalised; and
2. that the evidence in support
of the counter-complaint did not support a finding that the
Constitutional Court justices were guilty
of gross misconduct and
that the matter was accordingly finalised; and
3. that none of the judges
against whom complaints had been lodged was guilty of gross
misconduct.'
The issues
[4] The Premier challenged the validity of the JSC
proceedings on three discrete grounds, namely that when the JSC met
and took
the relevant decisions:
(a) She was not present because the JSC had not notified
her when and where the meetings were to take place, and she was
accordingly
unable to comply with her obligation to attend as
required by s 178(1)(k) of the Constitution;
(b) Only ten members of the JSC participated when on the
JSC's own interpretation of s 178(1)(k), the JSC should have been
composed
of 13 members; and
(c) The decisions of the JSC were not supported by a
majority of the members of the JSC, as required by s 178(6) of the
Constitution.
The court a quo considered all three issues, and found
in favour of the Premier on each. The JSC challenges the correctness
of all
of these findings and submits that in any event the decisions
taken at the meetings should not have been set aside. The Judge
President
challenges the correctness of the first finding by the
court a quo and in addition submits that this appeal is academic and
should
not be entertained for that reason.
The composition and functions of the JSC
[5] Before dealing with the arguments advanced on
appeal, it would be convenient to consider the composition and
functions of the
JSC. Section 178 of the Constitution provides:
'(1) There is a Judicial Service
Commission consisting of ─
(a) the Chief Justice, who
presides at meetings of the Commission;
(b) the President of the Supreme
Court of Appeal;
(c) one Judge President
designated by the Judges President;
(d) the Cabinet member
responsible for the administration of justice, or an alternate
designated by that Cabinet member;
(e) two practising advocates
nominated from within the advocates' profession to represent the
profession as a whole, and appointed
by the President;
(f) two practising attorneys
nominated from within the attorneys' profession to represent the
profession as a whole, and appointed
by the President;
(g) one teacher of law
designated by teachers of law at South African universities;
(h) six persons designated by
the National Assembly from among its members, at least three of whom
must be members of opposition
parties represented in the Assembly;
(i) four permanent delegates to
the National Council of Provinces designated together by the Council
with a supporting vote of at
least six provinces;
(j) four persons designated by
the President as head of the national executive, after consulting the
leaders of all the parties
in the National Assembly; and
(k) when considering matters
relating to a specific High Court, the Judge President of the Court
and the Premier of the province
concerned, or an alternate designated
by each of them.
. . .
(4) The Judicial Service
Commission has the powers and functions assigned to it in the
Constitution and national legislation.
(5) The Judicial Service
Commission may advise the national government on any matter relating
to the judiciary or the administration
of justice, but when it
considers any matter except the appointment of a judge, it must sit
without the members designated in terms
of subsection (1)(h) and (i).
(6) The Judicial Service
Commission may determine its own procedure, but decisions of the
Commission must be supported by a majority
of its members.'
[6] It is therefore apparent that the Judicial Service
Commission always comprises 13 persons, being those mentioned in
paragraphs
(a) to (g) and (j) of subsec (1). When the JSC considers
the appointment of a judge, the ten politicians referred to in
paragraphs
(h) and (i) are included. The contentious paragraph that
requires interpretation is paragraph (k) ─ although it is
common
cause that the Premier is included in the composition of the
JSC when it considers the appointment of a judge to a high court in
that Premier's province.
[7] The powers and functions assigned to the JSC by the
Constitution are the following:
(a) To determine whether a judge suffers from an
incapacity, is grossly incompetent or is guilty of gross misconduct,
for the purpose
of the judicial impeachment provisions contained in
s 177 of the Constitution (s 177(1)(a));
(b) To furnish advice to the President on the suspension
of a judge who is the subject of a procedure in terms of s 177(1)
of the Constitution (s 177(3));
(c) To advise the national government on any matter
relating to the judiciary or the administration of justice
(s 178(5));
(d) To consult with the President as a prelude to the
President appointing the Chief Justice, the Deputy Chief Justice and
the President
and Deputy President of the Supreme Court of Appeal
(s 174(3));
(e) To prepare a list of nominees for appointment as
judges of the Constitutional Court and submit the list to the
President (s 174(4)(a));
and
(f) To advise the President, who must appoint judges of
all other courts (s 174(6)).
[8] The Judicial Service Commission
Act
4
(the JSC Act) was the national
legislation promulgated to regulate matters incidental to the
establishment of the JSC by the interim
Constitution
5
and it remains in force. It does not
supplement the JSC's powers and functions. The proceedings that are
the subject of this case
predate the amendments to the JSC Act
effected by the Judicial Service Commission Amendment Act
6
and those amendments are therefore
irrelevant for purposes of the appeal.
7
Section 178(5)
[9] The Premier contends that the complaint against the
Judge President was a matter relating to a specific high court, viz
the
Western Cape High Court. The JSC and the Judge President contend
that there is no suggestion in the allegations of misconduct against
the Judge President that he was acting in his official capacity or
that the complaint has anything to do with the Western Cape
High
Court and accordingly, that there was no connection between the
allegations and the bench on which the Judge President serves.
[10] The question that was before the JSC on the
complaint lodged by the Justices was whether the Judge President was
a fit and
proper person to continue in office as a judge and
therefore, as the Judge President of the Western Cape High Court.
That is so
plainly a matter relating to the specific high court
concerned that no further discussion is necessary to make the point.
[11] The JSC submitted that it is difficult to see how
the test would be appropriate in respect of allegations of misconduct
relating
to judges of other courts referred to in s 166(a), (b) and
(e) of the Constitution. Those courts are, respectively, the
Constitutional
Court; the Supreme Court of Appeal; and any other
court established or recognised in terms of an Act of Parliament,
including any
court of a status similar to the high courts. The short
answer to this argument, so far as the Constitutional Court and the
Supreme
Court of Appeal are concerned, is that they are not high
courts. Furthermore the heads of those courts are ex officio members
of
the JSC and so is a member of the national executive, the cabinet
member responsible for the administration of justice. So far as
courts having the status of high courts are concerned ─ the
Competition Appeal Court, the Labour Appeal Court, the Labour
Court,
the Election Court and the Land Claims Court ─ they are
national courts. In terms of s 178(1)(k) the Judge President
of the
court concerned would be a member of the JSC when that body is
considering matters relating to his or her court, but not
a Premier
because there is no 'Premier of the province concerned' in the case
of a national court.
[12] I share the view of the court a
quo
8
that it would be inconsistent and
illogical for the Constitution to provide for a Premier to
participate in the appointment of a
high court judge ─ and, as
I have said, the JSC agrees that a Premier is included for this
purpose ─ but not in a decision
to remove such a judge. Both
affect the composition of the bench of a particular high court. But,
submitted counsel for the JSC,
a determination by the JSC that a
judge is guilty of gross misconduct does not affect the composition
of a particular high court,
because such a finding does not result in
the removal of a judge from office. More is required for this to
happen: in terms of
s 177(1) of the Constitution
9
two-thirds of the members of the
National Assembly have to resolve that the judge be removed. In my
view the submission on behalf
of the JSC does not accord sufficient
weight to the fact that the decision by the JSC is the first stage in
the removal process
and for that very reason involves the
consideration of a matter relating to a specific high court.
[13] The JSC submitted that linguistically, the noun
'matters' in s 178(1)(k) is not qualified, as it is in
subsec (5)
which provides that the JSC may advise the National
Government on 'any matter' relating to the judiciary or the
administration
of justice, thus making it clear that a wide meaning
is intended in the latter section; whereas the unqualified noun
'matters'
in the former section may mean that all or only some of the
matters relating to a specific high court are to be included. In my
view, absent any indication to the contrary ─ and I find none ─
the lack of qualification means that all matters, without
qualification, are included ie 'matters' in s 178(1)(k) means
the same as 'any matter' in subsec (5).
[14] In similar vein, it was
submitted on behalf of the Judge President that the phrase 'relating
to' in s 178(1)(k) is capable
of a wide or a narrow meaning, and
reference was made to
United
Dominions Corporation (SA) Ltd v Tyrer
10
where Roper J said:
'But the phrase "relating
to" may connote either a remote or a close relationship. It may
be used in a wide sense as embracing
almost anything which has any
reference to another matter or in a more restrictive sense . . . .'
The submission continued that the meaning of the phrase
must be determined with reference to its context; and fundamental in
the
present context, said counsel, are the principles relating to the
separation of powers and the independence of the judiciary. The
essence of the submission was that the interpretation for which the
Premier contends would violate these principles in that it
would
result in the Premiers of the various provinces, each of whom is the
executive authority of his or her province and all of
whom are
elected by means of a political process, sitting on the JSC in
proceedings for the impeachment of a judge. This, said
counsel in his
heads of argument, is surely not what was contemplated or intended by
the words 'when considering matters relating
to a specific high
court' in s 178(1)(k). In oral argument the submission was
watered down to a suggestion that where possible
the Constitution
should be interpreted as excluding the executive from participation
in the affairs of the judiciary, because of
the doctrine of the
separation of powers. But it seems to me that there is no room for a
partial invocation of a principle of interpretation
and accordingly,
either the argument in its original form is good, or it is not.
[15] The fallacy in the argument is this. The doctrine
of the separation of powers cannot be prayed in aid to interpret
s 178(1)(k)
where that section itself does not recognise such a
separation but, on the contrary, provides in the same breath for both
the Premier
and the Judge President to be present in the
circumstances it contemplates. A consideration of s 178(1) as a
whole leads to
the same conclusion. It provides (in subsec (1)(d))
that the cabinet member responsible for the administration of justice
shall
sit on the JSC at all times when that body functions. Section
178 reflects an intention that it is primarily lawyers that should
decide whether a judge is guilty of gross misconduct ─ hence
the exclusion of the politicians designated in subsections (h)
and
(i); but the inclusion of a member of the cabinet shows that it was
not the intention that the executive be excluded. If, then,
a member
of the national executive is expressly included, there can be no
objection in principle that a Premier, the executive
authority of a
province, should also be included when the JSC is considering matters
relating to a specific high court ie that
in the Premier's province.
To hold the contrary would entail the conclusion that a Judge
President is also excluded where allegations
of misconduct against a
member or his or her bench is considered, when his or her presence is
plainly not only warranted, but desirable.
[16] For the same reason, the
reliance by counsel representing the Judge President on
Van
Rooyen & others v S & others
11
is misplaced. In that matter the
court was interpreting a regulation which provides that if a charge
is brought against a magistrate
and there is a need for a formal
hearing, the Magistrates Commission shall appoint 'a magistrate or a
person' to preside at the
inquiry and a 'magistrate or person' to
lead the evidence. Chaskalson CJ, writing for a unanimous court,
held:
'Whilst a person leading the
evidence need not necessarily be a magistrate, the person charged
with the responsibility of making
a finding as to whether or not the
magistrate concerned has been guilty of misconduct, should be a
judicial officer. It is not
consistent with judicial independence
that a person other than a judicial officer should be charged with
this responsibility.'
It cannot legitimately be argued that only lawyers, and
much less only judges, should judge the judges for otherwise judicial
independence
would be eroded, where not only the minister is
included, but also the four persons nominated by the President as
head of the executive
─ none of whom has to be a lawyer, much
less a judge.
[17] It would have been possible for
the drafters of the Constitution to have adopted a model where only
judges could remove judges.
In Israel, for example, the Basic Law on
the Judiciary provides that judges may be removed upon the decision
of the Court of Discipline
12
which comprises only judges and
judges retired on pension appointed by the President of the Supreme
Court.
13
Or a model could have been adopted
where only the elected representatives of the people could do so. In
the United States of America,
a country very much aware of the proper
separation of powers, the House of Representatives has the 'sole
power'
14
to impeach federal judges and the
Senate has the 'sole power'
15
to try all impeachments.
16
The model ultimately chosen for our
country was one somewhere between the two. The first stage is a
decision taken predominantly
by judges and lawyers. The second is a
decision by the National Assembly by a two-thirds majority.
[18] In conclusion on this point, I
would endorse the views expressed by Jones J in the court a quo:
17
'But I can also see merit in a
dispensation which, for reasons of both constitutional policy and
social accountability (as to which,
see s 1(d) of the
Constitution), particularly in the light of the history of the
administration of justice in this country,
widens the adjudicative
process to include in the investigation tribunal persons who are not
judges or lawyers . . . It is not
in my view possible to conclude
that the Constitution did not have the doctrine of separation of
powers and the independence of
the judiciary very much in mind when
it constructed the JSC. I can find no justification for concluding
that the Constitution does
not mean what it says when it includes
members of the executive branch of National Government (the Minister
and the President through
his nominees) and Provincial Government
(the Premiers) as members of the JSC in matters involving the High
Court of the province
in question.'
The composition and majority vote of the JSC
[19] As indicated, another issue
before the court below was whether the impugned 'decision' of the JSC
was taken by 'a majority
of its members' as required by s 178(6)
of the Constitution. For purposes of deciding the point, it can be
assumed, as alleged
by the JSC and notwithstanding the conclusion to
the contrary for the reasons already given, that the JSC comprised 13
members
for purposes of considering the complaints against the Judge
President. The Premier in her founding affidavit alleged that, based
on press reports, ten members took part in the proceedings of whom
six voted in favour and four against the decision to terminate
the
investigation. The JSC, in its answering affidavit sworn to by a
member who is a senior advocate, refused to divulge the relevant
facts by stating that it was the policy of the JSC 'not to publish
how members voted with regard to any particular decision' and
that
'the JSC has never published the particulars of the vote with regard
to the size of the majority and the way each member decided'.
An
evasive answer like this by senior counsel on behalf of a body like
the JSC cannot be countenanced. It is the number of members
who voted
either way, not their identities, that is relevant. The JSC knew that
this information was crucial for the determination
of an issue
legitimately raised and upon which the court would be required to
adjudicate. Nor is this attitude of the JSC reconcilable
with our
constitutional democracy which values openness and transparency, and
this is particularly so when regard is had to the
constitutional
functions and obligations of the JSC. In the
First
Certification
judgment
18
the Constitutional Court emphasised
that the JSC is a constitutionally independent body
19
and that it 'has a pivotal role in
the appointment and removal of Judges'.
20
[20] The unavoidable conclusion on
the failure to disclose the facts is that the deponent to the JSC's
answering affidavit considered
that the point made by the Premier was
unanswerable. And indeed it is. The Constitution is clear on the
issue: decisions must be
supported by a majority of the members of
the JSC. I accordingly agree with the reasons of the court a quo
21
for rejecting the argument that s
178(6) of the Constitution requires no more than a majority of
members present and voting.
[21] The court a quo also found that the JSC, again on
its own version, was not properly constituted, in that one of the
practising
advocates to be appointed in terms of s 178(1)(e) had not
been appointed by the President. The point adds little to the
previous
one and I prefer to leave it open especially in view of the
fact that it is not known why the advocate had not been appointed.
The reason for the omission is not something that necessarily falls
within the knowledge of the JSC.
The relief granted
[22] The JSC and the Judge President submitted that the
relief granted by the court a quo ─ an order declaring the
proceedings
before the JSC on the dates in question and the decision
to dismiss the complaint and counter-complaint, which were the
subject
matter of those proceedings, to be unconstitutional and
invalid together with a further order setting them aside ─ was
inappropriate.
[23] The submission on behalf of the
JSC was that the order setting aside the decision of the JSC was not
just and equitable either
in terms of s 8 of the Promotion of
Administration of Justice Act
22
(PAJA) or s 172(1)(b)
23
of the Constitution having regard to
a number of factors. I should point out immediately that PAJA has
nothing to do with this case,
which concerns the composition of the
JSC, something governed by the Constitution. It does not relate to
its procedure, which may
amount to administrative action regulated by
PAJA. The factors relied upon by the JSC were the following:
(a) The Premier emphasised that she did not impugn the
merits of the decisions by the JSC;
(b) the matter has had a long history and the Premier
never asserted her right to attend the proceedings of the JSC or her
duty
to participate in them until after the decisions had been made;
(c) the effect of the order is that the JSC would have
to reconsider the complaints, and it is not a foregone conclusion
that she
would be entitled to participate in view of the allegations
of bias made by the Judge President; and
(d) the Justices and the Judge President who testified
during the proceedings of the JSC have expressed the desire to move
on and
accordingly considerations of pragmatism and practicality do
not justify the setting aside of the proceedings and decisions.
[24] The submission on behalf of the Judge President was
that the Premier has disqualified herself from acting as a member of
the
JSC in respect of the complaints made by the Justices against
him, inasmuch as (on the evidence of the Judge President, which was
not dealt with by the Premier) she has 'publicly adopted an attitude
extremely critical of, and negative towards, the Judge President
on
the matters in question' and that 'she has been at the forefront of a
political campaign attacking the Judge President'.
[25] I pause to remark that it would indeed be a sorry
day for our constitutional democracy were serious allegations of
judicial
misconduct to be swept under the carpet for reasons of
pragmatism and practicality, as suggested by the JSC. The public
interest
demands that the allegations be properly investigated,
irrespective of the wishes of those involved. The question raised on
behalf
of the Judge President whether the Premier would be entitled
to participate in the deliberations of a properly constituted JSC,
or
for that matter to appoint an alternate, is irrelevant. The arguments
advanced on behalf of the appellants lose sight of the
fundamental
significance of the findings made by the court a quo that will be
confirmed by this court. The declaratory order had
to be made. There
was no discretion. Section 172(1)(a) of the Constitution is in
imperative terms:
'(1) when deciding a
constitutional matter within its power a court ─
(a) must declare that any . . .
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency
. . . .'
So far as the further order setting
the proceedings and decisions aside is concerned, against which the
arguments were directed,
it is the constitutional mandate of the JSC
in terms of s 177 of the Constitution
24
to investigate allegations of
judicial misconduct and to make a finding on whether or not a judge
is guilty of gross misconduct.
25
The JSC (properly constituted and by
majority vote) has done neither. The order made by the court a quo
setting the decision of
the JSC aside was accordingly imperative to
enable the JSC to perform the function it is still obliged to
perform.
Order
[26] The appeal is dismissed with costs, including the
costs of two counsel, which are to be paid by the Judicial Service
Commission
and the Judge President jointly and severally.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
FIRST AND SECOND APPELLANTS:
V Maleka SC (with him B Valley SC)
Instructed by The State Attorney, Cape Town
The State Attorney, Bloemfontein
THIRD APPELLANT:
J A Newdigate SC (with him T Masuku)
Instructed by Xulu Liversage Inc, Cape Town
Lovius Block, Bloemfontein
RESPONDENTS: S Rosenberg SC (with him A Katz SC and N
Mayosi)
Instructed by Fairbridges Attorneys, Cape Town
McIntyre & Van der Post, Bloemfontein
1
Section
125(1) of the Constitution provides:
'The
executive authority of a province is vested in the Premier of that
province.'
2
The
judgment of the court a quo is reported as
Premier,
Western Cape v Acting Chairperson, Judicial Service Commission
2010 (5) SA 634
;
2010 (8) BCLR 823
(WCC).
3
More
detail about the complaint and counter-complaint appears in
Langa
CJ & others v Hlophe
2009 (4) SA
382
(SCA).
4
9
of 1994.
5
Act
200 of 1993.
6
20
of 2008.
7
In
summary, the JSC Amendment Act provides for the establishment of a
judicial conduct committee, a code of conduct, a register
of judges'
registrable interests, procedures for dealing with complaints about
judges, and the establishment of judicial conduct
tribunals to
enquire into and report on allegations of incapacity, gross
incompetence or gross misconduct against judges.
8
Para
11.
9
'
A
judge may be removed from office only if ─
(a) the Judicial Service Commission finds that the
judge suffers from an incapacity, is grossly incompetent or is
guilty of gross
misconduct; and
(b)
the National Assembly calls for that judge to be removed, by a
resolution adopted with a supporting vote of at least two-thirds
of
its members.'
10
United
Dominions Corporation (SA) Ltd v Tyrer
1960
(3) SA 321
(T) at 323A.
11
Van
Rooyen & others v S & others
2002 (5)
SA 246
(CC) para 195.
12
Sections
7(5) and 13.
13
Although
a judge may also be removed by a decision of the Judges' Election
Committee, which comprises 9 members, some of whom
are politicians,
by a majority of 7 votes (ss 4(b) and 7(4)).
14
Constitution
of the United States I.2.
15
Ibid.
I.3.
16
There
is a view that removal of federal judges can be achieved by other
means although the view to the contrary seems to be more
generally
held and is supported by authority: Melissa H Maxman 'In Defense of
the Constitution's Judicial Impeachment Standard'
86
Mitch
L Rev
42 - especially at pp 435-6 and
footnotes 81 to 86.
17
Para
16.
18
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744 (CC).
19
Para
128.
20
Para
120.
21
Para
19.
22
3
of 2000: '8(1) The court or tribunal, in any proceedings for
judicial review in terms of s 6(1), may grant any order that
is
just and equitable . . . .'
23
'When
deciding a constitutional matter within its power, a court . . . may
make any order that is just and equitable . . . .'
24
Quoted
in n 9 above.
25
Langa
CJ and others v Hlophe
above n 3, para
22.