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[2021] ZAGPPHC 53
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Minister of Police v Van der Watt and Another (A265/2018) [2021] ZAGPPHC 53 (20 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
Case Number:
A265/2018
In
the matter between:
THE
MINISTER OF
POLICE
Appellant
and
PIERRE
CHRISTO VAN DER WATT
First
Respondent
THE
SHERIFF: PRETORIA
EAST
Second
Respondent
JUDGMENT
KUBUSHI
J (MOLOPA J AND JANSE VAN NIEWENHUIZEN
J,
CONCURRING)
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
INTRODUCTION
[1]
This appeal challenges the refusal of a rescission application in
respect of two settlement
court orders granted by two different
Judges at different times and under different circumstances. The
first order relates to liability
(merits) of the claim while the
second relates to
quantum
.
[2]
The issue is whether the two judgments or orders obtained by the
first respondent
against the appellant can be rescinded on the ground
that the settlement agreements that underlay the said judgments or
orders
are legally invalid because they were entered into without the
requisite mandate and/or authority of the appellant.
[3]
In argument, the appellant contends that the said settlement
agreements are invalid
in that the appellant never gave the State
Attorney instructions to negotiate and settle the issue of merits or
quantum
of the claim. The appellant’s argument is that it in fact
expressly instructed the State Attorney not to settle the issue
of
merits and provided no other instructions in respect of the
quantum
part of the claim, but that the State Attorney must defend the
matter.
According
to the appellant, the State Attorney had no authority and/or mandate
to enter into the settlement agreements to its prejudice.
The State
Attorney had only a general mandate to defend the matter and in order
to enter into such settlement agreements with the
first respondent,
required a
special mandate, which the
appellant had not granted.
[4]
The first respondent’s argument is that the settlement
agreements are not invalid
because the appellant’s legal team
had the requisite authority to negotiate and conclude the two
settlement agreements on
behalf of the appellant.
The
contention is that even though the appellant had not granted the
State Attorney the instructions to
enter
into such settlement agreements, on his part (the first respondent),
there was apparent or ostensible authority on the part
of the State
Attorney; that is, the appellant had given the first respondent the
impression that there was a mandate given to the
State Attorney to
settle the matter. In that sense, the first respondent relies, in his
case, on the ostensible authority of the
State Attorney.
[5]
The appeal, as it were, turns on the narrow point of law of whether
the State Attorney,
acting on behalf of its client, the Minister of
Police (the appellant herein), had the requisite authority and/or
mandate, in particular
the apparent or ostensible authority, to enter
into settlement agreements with the first respondent, resulting in
the two judgments
being granted against the appellant by consent.
MATRIX
[6]
The appeal emanates from a civil claim instituted by the first
respondent against
the appellant for unlawful arrest and subsequent
detention as well as assault on him (the first respondent) by the
members of the
South African Police Service (“SAPS”), who
were at the time alleged to have been acting in their capacity as
employees
of the appellant.
[7]
At all material times hereto, the appellant was represented by the
State Attorney.
The appellant’s case was in particular handled
by Ms Nangomso Qongqo (“Ms Qongqo”) an attorney from the
State
Attorney’s Office. It is said that on receipt of
instructions, Ms Qongqo had addressed a letter to the appellant, in
particular
the SAPS Legal Services, advising that there were good
prospects of success in the defence of the case. It is common cause
that
before the matter could be set down for trial, the parties
agreed to separate the issues, that is, the liability was separated
from the
quantum
part of the claim.
[8]
The matter was, thus, set down for hearing on the merits on 22
October 2015. At such
hearing the appellant was represented by Ms
Qongqo, as attorney, and Advocate Thabethe, as counsel (“the
legal team”).
It is said that, on that day, members of SAPS who
were to testify in the matter were present in court and ready to
testify in defence
of the claim.
[9]
What, however, transpired was that the parties entered into
settlement negotiations
that resulted in judgment being granted
against the appellant by agreement between the parties. As Ms Qongqo
did not have instructions
from the appellant to settle the matter,
she first telephoned the appellant for such instructions. Ms
Qongqo talked to Col Mahube, who it is said that, based on the advice
previously received from Ms Qongqo that the appellant had
a good case
to defend the matter, instructed Ms Qongqo not to settle the matter
but to proceed with the trial. Despite such instructions,
Ms Nqongqo
and Advocate Thabethe went on to settle the merits in favour of the
first respondent at 50% apportionment of the first
respondent’s
agreed or proven damages. The settlement was made an order of court.
[10]
On receipt of information from the State Attorney that the matter has
been settled in favour
of the first respondent, the appellant
instructed the State Attorney to apply for the rescission of that
judgment on the ground
that Ms Qongqo did not have instructions
and/or authority to settle the merits in favour of the first
respondent.
[11]
Before the order granted on the merits could be rescinded, the
quantum
part of the claim was set down for trial and without
any further instructions from the appellant, Ms Qongqo, again entered
into
a settlement agreement with the first respondent. By agreement
between the parties, judgment was entered against the appellant for
an amount of R724 984, 53 based on the agreed 50% apportionment.
The order was also made an order of court.
[12]
The appellant having instructed a new legal team, approached the
court below for the rescission
of the two court orders granted
against the appellant, presumably by consent.
BEFORE
THE COURT BELOW
[13]
In the court below the appellant had instituted an application for
the rescission of the two
court judgments or orders based on the
ground that:
13.1
the agreements are legally invalid and the judgments or court orders
purportedly obtained on the basis thereof
are erroneously granted or
obtained without the requisite mandate of the appellant;
13.2
alternatively, the agreements were obtained without the requisite
mandate of the appellant and it is therefore
in the public interest
and the interest of justice that they be rescinded.
[14]
The court below, decided the rescission application on the common law
ground of
iustus
error. The issue that came for determination before that court was
whether or not there was just and probable ignorance of the
two
judgments on the part of the appellant’s erstwhile legal
representatives. In this regard, the court below found that
the
appellant dismally failed to indicate any just and probable ignorance
on the part of the appellant’s erstwhile attorney
and counsel.
The court below instead found that in fact the opposite was proved,
namely that the appellant’s legal team acted
contrary to the
direct and explicit instruction given to them by the appellant.
[15]
On that basis, the court below came to the conclusion that since the
first respondent was not
a party to any discussion between the
appellant and its erstwhile legal team when the instructions were
obtained, and were merely
advised of the instructions, they acted in
a
bona fide
manner when entering into settlement negotiations,
nothing untoward could be attributed to their conduct. This,
therefore, according
to the court below, was a matter between the
appellant and its legal representatives. The application was, as a
result, dismissed
with costs.
[16]
The appellant then brought an application for leave to appeal, which
was also dismissed with
costs by the court below. Nevertheless, on
application to it, the Supreme Court of Appeal granted the appellant
leave to appeal
to the Full Court of this Division.
ON
APPEAL
[17]
The appellant approached this court on the ground that the court
below misdirected itself as
to the law and facts in respect of its
judgment and consequently the judgment ought to be set aside.
[18]
Before us, the parties argued the appeal mainly on the basis of the
law. The main question being
whether or not the State Attorney and/or
the appellant’s legal team had the ostensible authority to bind
the appellant. A
further point of law argued was whether there was
iustus
error on the part of the appellant.
DISCUSSION
[19]
As earlier stated, the focus of the judgment of the court below fell
on the ground of
iustus
error. I beg, therefore, to start
first with this issue.
[20]
Although the court below found for the first respondent on the basis
of the principle of
iustus
error, it, however, did not apply
the principle correctly. Therefore, for the reasons that follow
hereunder, it is my view that
the principle of
iustus
error
does not find application in the circumstances of this case.
[21]
The application that served before the court below was premised on
the proposition that by virtue
of the claimed lack of authority, the
settlement agreements were void and unenforceable. Building on
that, it was argued
that the resultant court orders, stood to be
rescinded.
[22]
The court in
Moraitis,
[1]
stated the following:
“
[17]
. . . In regard to their contentions based on Mr
Moraitis’ alleged lack of authority to conclude the settlement
agreement on behalf of Moraitis Investments and the Moraitis Trust
another principle comes into play. This is that the court can
only
grant a consent judgment if the parties to the litigation consented
to the court granting it. If they did not do so, but the
court is
misled into thinking that they did, the judgment must be set aside.
This
is something different from avoiding a contract on the grounds of
fraud, duress, misrepresentation or the like. In those cases,
the
injured party has an election to abide by the agreement. When one is
concerned with an absence of authority to conclude the
agreement in
the first place, that is not a matter of avoiding the agreement, but
of advancing a contention that no agreement came
into existence.”
[23]
From the above passage it is clear that the principle of
iustus
error applies where there is an agreement in place that the party
concerned wants to get out of or avoid. Where, however, lack
of
authority is an issue, the expected outcome of which is that there is
no agreement in place, the principle of
iustus
error does not
apply.
[24]
It is common cause that in this matter, the appellant relies on the
State Attorney’s lack
of authority. It is the appellant’s
case that the agreements contended for by the first respondent are
invalid for want of
authorisation. As stated in
Moraitis
,
when one is concerned with an absence of authority to conclude the
agreement in the first place, that is not a matter of avoiding
the
agreement, but of advancing a contention that no agreement came into
existence.
To
that extent, the appellant’s submission based on the State
Attorney’s alleged lack of authority to conclude the settlement
agreements on behalf of the appellant, means that the appellant was
contending that there were no agreements in place. On that
basis
alone, the appellant cannot and could not rely on
iustus
error as a ground for the rescission of the court orders.
[25]
The question of whether or not an order or judgment can be rescinded
on the ground of
iustus
error was dealt with in the Supreme
Court of Appeal in
Moraitis
, wherein the court opined as
follows:
“
[12]
. . . A judgment can be rescinded at the instance of an innocent
party if it was induced by fraud on the
part of the successful
litigant, or fraud to which the successful litigant was party. As
the cases show, it is only where
the fraud – usually in the
form of perjured evidence or concealed documents – can be
brought home to the successful
party that
restitutio
in integrum
is granted and the
judgment is set aside. . .
[13]
Apart from fraud the only other basis recognised in our case law as
empowering a court to set aside
its own order is
justus
error. . .”
[26]
From the above quoted passages, it is clear that a judgment can be
rescinded at the instance
of an innocent party if it was induced by
fraud on the part of the successful party, or fraud to which a
successful litigant was
a party, which is not the case in this
matter. According to
Moraitis
, apart from the fraud, the only
other basis recognised as empowering a court to rescind its own order
is
iustus
error, namely, fraudulent misrepresentation,
mistake, etc.
[27]
If the appellant seeks to rely on
iustus
error, it must show
that it was avoiding a contract on the grounds of either fraud,
duress, misrepresentation or the like. Firstly,
the appellant’s
counsel has conceded in argument before us that the appellant is not
relying on fraud. Secondly, the facts
of this case do not allow the
appellant to rely on any of the
iustus
error grounds.
[28]
The appellant wants to argue that by having not granted the State
Attorney the mandate to settle
the claim as the State Attorney did,
the State Attorney misrepresented to the court that she had the
necessary mandate to settle
the matter when in fact she did not have
such authority; or that the court was misled to believe that the
State Attorney had the
necessary authority to consent to the
judgments.
[29]
This, however, is not the law. As already alluded to in
Moraitis
,
in order to rely on misrepresentation, as the appellant seeks to do,
the misrepresentation must be based on the conduct of the
first
respondent. It should be the first respondent that misled the court
to believe that the State Attorney had the necessary
authority to
bind the appellant.
[30]
It is not in dispute that the misrepresentation on which the
appellant seeks to rely is not based
on the conduct of the first
respondent as the successful party, but on the conduct of the
appellant’s own legal team. The
principle of
iustus
error could not apply under the circumstances.
[31]
It follows, therefore, that the appellant’s argument that the
court having been misled
by its legal team, the orders must be
rescinded, is without merit.
[32]
It is on that basis that I hold that the grounds of rescission based
on the principle of
iustus
error do not avail the appellant in
this matter and that the principle was wrongly applied by the court
below.
Ostensible
or Apparent Authority
[33]
The appellant sought the rescission of the two court orders on the
ground that the appellant’s
erstwhile attorney and counsel
entered into settlement agreements without a mandate to do so from
the appellant. Accordingly, absent
such mandate, the agreements are
legally invalid and the judgments or court orders therefore,
erroneously sought or granted and
ought to be rescinded.
[34]
In his defence, the first respondent argues that the appellant is
bound by its counsel’s
apparent authority to compromise, which
apparent authority cannot be limited by the alleged instructions
given to the appellant’s
attorney and/or counsel of which the
first respondent and his legal team as well as the court were not
aware of.
[35]
As already stated. the appellant having submitted that there was no
authority granted to the
State Attorney to settle the matter, it
means that the appellant was arguing for settlement agreements that
are non-existent. The
issue, therefore, turns on the question of
whether there was an agreement concluded between the appellant and
the first respondent.
The answer to this question lies upon the type
of authority that was conferred on the State Attorney by the
appellant. Therefore,
the central issue to be decided on this point,
is whether the State Attorney had actual or apparent authority to
conclude the agreement
of settlement that underlay the two court
orders.
[36]
In order for the settlement agreements to be in place, the appellant
must have authorised the
State Attorney to conclude the agreements.
That is, the State Attorney must have the authority to bind the
appellant. It is common
cause that the State Attorney, in this
matter, was not authorised to conclude the settlement agreements,
hence the first respondent’s
reliance on ostensible authority
of the State Attorney, for his defence.
[37]
Counsel for the appellant rightly submitted that the State Attorney
does not have the authority
to settle or compromise a claim where she
is acting against the express instructions of the client. It is the
appellant’s
case that the State Attorney was expressly informed
that the matter should not be settled and that it should proceed to
trial.
As regards the merits, the evidence is that Col Mahube from
the appellant Legal Services telephonically informed Ms Qongqo that
the merits should not be settled. After receiving information that
the merits had been settled to the prejudice of the appellant,
the
State Attorney was instructed to apply for the rescission of that
judgment which was not done. In respect of the
quantum
part of
the claim, no contrary instructions (special authority) were provided
to the State Attorney by the appellant to settle
the matter. In fact,
in this regard, Ms Qongqo did not seek instructions from the
appellant to settle the
quantum
. The only instructions that
were furnished to the State Attorney was for the State Attorney to
defend the claim as advised by Ms
Qongqo.
[38]
This argument by the appellant’s counsel, seeks to conflate
actual and ostensible authority.
As a general rule, attorneys, like
the State Attorney, do not have authority to settle or compromise a
claim without the consent
of the client.
[2]
Particularly, as in this case, where instructions not to settle were
expressly provided.
[39]
Where counsel misses the point is that such instructions, given to
the State Attorney by the
appellant, constitutes actual authority and
not apparent authority. Counsel’s reliance on
Kruizenga
[3]
that where there is great prejudice a special mandate ought to be
granted is an indication of the conflation of the two authorities.
The special authority that he is contending for, if granted, would
constitute actual authority.
[40]
Actual authority is constituted by the conduct of the principal when
he or she confers the necessary
authority, either expressly or
impliedly, on the agent to perform a juristic act on behalf of the
principal. The agent requires
such authority for the act to bind the
principal. The agent is then taken to have actual authority. Such
authority does not authorise
the agent to settle or compromise a
claim. This the agent can only do with the consent of the principal.
Actual authority operates
where a client sues an attorney for
exceeding his authority.
[41]
Ostensible or apparent authority, on the other hand, is the authority
of an agent as it appears
to others. This would occur where the
principal denies that she conferred authority on the agent. The third
party who concluded
the juristic act with the agent may then plead
that the principal had conducted herself in a manner that misled the
third party
into believing that the agent has authority. Put
differently, the misrepresentation leads to an appearance that the
agent has the
power to act on behalf of the principal. While this
kind of authority may not have been conferred by the principal, it is
taken
to be the authority of the agent as it appears to others.
[4]
[42]
The difference is also that even if the State Attorney had the actual
authority not to compromise
the claim, and she, as in this matter,
nonetheless exceeds her actual authority or acts contrary to the
express instructions of
the appellant, the latter may nevertheless be
contractually bound to the settlement on the basis of the State
Attorney’s
apparent or ostensible authority.
[5]
Ostensible authority is said to the power to act as an agent
indicated by the circumstances, even if the agent may not truly have
been given the power.
[6]
[43]
The argument by the appellant’s counsel insisting that there
were express instructions
to the State Attorney not to settle the
matter, is in that regard, unsustainable.
[44]
In
Hlobo,
the
court, dealing with the question of
whether
a client may be estopped from denying the authority of his attorney
to settle or compromise a claim, stated in
obiter
that
‘the apparent authority of an attorney to compromise is not
limited by instructions unknown to the other party’.
[7]
[45]
The court in
Kruizenga
,
[8]
also dealing with the question of estoppel, was persuaded by the
principle even though it was made
obiter
in
Hlobo
,
and endorsed it. Thus it became part of our law.
The
principle was applied with approval in the Constitutional Court in
Makate
and in
Mathebula
.
[46]
It has been held that, it is well-established that to hold a
principal liable on the basis of
the agent’s apparent authority
the representation must be rooted in the words or conduct of the
principal, and not merely
that of his agent. The presence of
ostensible or apparent authority, is established if it is shown that
a principal by words or
conduct has created an appearance that the
agent has the power to act on its behalf. Nothing more is
required. The
means by which that appearance is represented
need not be directed at any person. In other words, the
principal need not
make any representation to the person claiming
that the agent had apparent authority.
[9]
[47]
Similarly, like in
Kruizenga
, the first respondent contends
that the representation from the appellant in this case relates only
to the appointment of the State
Attorney to defend the claim and to
instruct counsel in this regard. The first respondent’s true
case is that by appointing
the State Attorney to defend the claim,
the appellant represented to him, and he reasonably believed, that
the State Attorney had
the usual and customary powers associated with
its appointment.
[48]
The appellant’s contrary argument is that the appellant’s
conduct to establish the
authority to the State Attorney pertains to
Col Mahube’s express contrary instruction not to settle the
matter on the merits;
the written advice from Ms Qongqo that there is
a good case to defend; the appellant instruction to rescind the
judgment and order
granted against it
on the merits; and the fact
that no contrary instructions (special authority) in regard to the
quantum
was given to the State Attorney. The proposition by the appellant’s
counsel, in this regard, is that the first respondent
relies on the
general authority to execute a special mandate.
[49]
However, that the State Attorney acted without instructions or was
expressly informed not to
settle the matter or exceeded her
instructions, is not the test. The test is the conduct represented to
the third party by the
principal, in this instance, the conduct
represented to the first respondent by the appellant. It is the first
respondent’s
case that the appellant represented to him that
the State Attorney alternatively the appellant’s legal team had
the authority
to settle the matter. The conduct that made the first
respondent believe that the appellant’s legal team were
authorised
to settle the matter was the mere appointment of the State
Attorney by the appellant to defend the claim. The alternative
instructions
given to the State Attorney plays no role at all.
[50]
Based on the afore going, I have to conclude that by merely
appointing the State Attorney to
represent the appellant in resisting
the first respondent’s claim, the appellant represented to the
first respondent and
to the world at large, that the State Attorney
had the necessary authority to settle the claim. There was no
information
conveyed to the first respondent’s legal
representatives that the settlement reached was against the express
instructions
of the appellant and for that reason they must
reasonably have believed that the State Attorney and counsel had the
requisite authority
to settle the claim. The appellant is
accordingly bound to the settlement agreement on the basis of the
State Attorney’s
apparent authority.
[10]
[51]
It is only when the agent (the State Attorney) has acted by actual
authority that the question
of whether or not she exceeded her
instructions or acted to the prejudice of the appellant, comes into
play. Where ostensible authority
is at play, what transpired between
the principal and its agent is not considered. At this stage, what,
is of cardinal importance
is the conduct of the principal (the
appellant) as presented to the third party (the first respondent).
[52]
All the judgments referred to by the parties, in this instance, are
distinguishable to the current
matter in that all of them were
dealing with the defence of estoppel.
Makate
is further
distinguished by the fact that no attorney was involved and the case
played out in the private space. However, on principle
the cases are
not distinguishable.
[53]
The principle, as already stated, was initiated, though
obiter
,
in
Hlobo
. The court in
Kruizinger
endorsed that
principle which was further applied with approval in
Makate
and
Mathebula
.
[54]
The upshot of this principle is that, where the State Attorney is
appointed on behalf of the
State to defend a case and nothing is
conveyed to the other side about the limitation of the State
Attorney’s authority,
the State Attorney can conclude an
agreement with the other party which is binding on the State.
[55]
To establish apparent authority on the appellant’s part, the
first respondent avers that
the conduct of the appellant in
appointing the State Attorney to represent it was enough, nothing
more was required.
By
appointing the State Attorney as its legal representative, the
appellant represented that the attorney and hence counsel appointed
by the State Attorney, had authority to settle the claim.
The first respondent reasonably believed, that the State Attorney had
the usual and customary powers associated with that appointment
which
would include instructing counsel to defend the claim, and to make
the necessary concessions. In other words, the appellant
represented
to the first respondent and to the outside world that the State
Attorney had the authority not only to conduct the
trial but also to
make concessions to conclude the settlement agreement from which the
appellant now wishes to resile.
Equity
and Justice
[56]
The appellant’s claim in the alternative is that since the
orders were obtained without
the requisite mandate of the appellant,
it is therefore in the public interest and the interest of justice
that they be rescinded.
[57]
It is my view that equity and justice militates in favour of the
first respondent in the circumstances
of this case.
[58]
The concept of apparent authority was introduced into law for
purposes of achieving justice in
circumstances where a principal had
created an impression that its agent had authority to act on its
behalf. If this appears
to be the position to others and an
agreement that accords with that appearance is concluded with the
agent, then justice demands
that the principal must be held liable in
terms of the agreement.
[11]
To
allow the appellant to resile from such agreements, it would mean
practically that attorneys can no longer assume that their
colleagues
are authorised to make important decisions in the course of
litigation without the principal’s independent confirmation.
This cannot be countenanced.
[59]
Factors like the intention of the appellant to defend the claim, the
private instructions given
to the State Attorney not to settle the
claim, and any other factor that the appellant seeks to bring forward
to enable it to resile
from the agreements does not bear scrutiny
when a defence of ostensible authority has been raised. The only
factor that can assist
the appellant is if the first respondent was
informed that the claim was being settled without the instructions of
the appellant.
There is no evidence on record that indicates that the
appellant had knowledge of the private instructions between the
appellant
and the State Attorney.
ORDER
[60]
Consequently, I propose that the appeal be dismissed with costs
including the costs of two counsel.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT
L.M
MOLOPA-SETHOSA
JUDGE OF THE HIGH
COURT
N. JANSE
VAN NIEWENHUIZEN
JUDGE OF THE HIGH
COURT
Appearance:
Appellant’s
Counsel
: Adv. D.T Skosana SC
Adv.
Mbhalati
Appellant’s
Attorneys
:
S NGOMANE INC. ATTORNEYS.
First
Respondent’s Counsel
: Adv. A B Rossouw SC
Adv. J C Van
Eeden
Appellant’s
Attorneys
:
GILDENHUYS MALATJI INC.
Date
of hearing
: 21 October 2020
Date
of judgment
: 20 January 2021
[1]
Moraitis
Investments (Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others
2017 (5) SA 508
(SCA) (“Moraitis”).
[2]
Member
of the Executive Council for Health and Social Development of the
Gauteng Provincial Government v Mathebula and Others
(2012/22469)
[2016] ZAGPJHC 187 (4 July 2016) (“Mathebula”) para 21.
[3]
MEC for Economic Affairs, Environment & Tourism v Kruizenga
(169/2009)
[2010] ZASCA 58
(1 April 2010) (“Kruizenga”).
[4]
Makate v Vodacom (Pty) Ltd
2016 (4) SA 121
(CC) (“Makate”)
para 46.
[5]
Mathebula
[6]
Makate para 75.
[7]
Hlobo v Multilateral Motor Vehicle Accidents Fund (3/99)
[2000]
ZASCA 69
;
2001 (2) SA 59
(SCA) (28 November 2000) (“Hlobo”)
para 10.
[8]
MEC for Economic Affairs, Environment & Tourism v Kruizenga
(169/2009)
[2010] ZASCA 58
(1 April 2010) (“Kruizenga”).
[9]
Makate Para 47.
[10]
Member of the Executive Council for Health and Social Development of
the Gauteng Provincial Government v Mathebula
and Others
(2012/22469) [2016] ZAGPJHC 187 (4 July 2016) para 30.
[11]
Makate at para 65 read with Mathebula at para 28.