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[2021] ZAGPPHC 81
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Q4 Commercial Properties (Pty) Ltd v Municipal Manager: Madibeng Local Municipality and Others (47686/19) [2021] ZAGPPHC 81 (11 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED: YES
[11
February 2021]
CASE NO: 47686/19
In
the matter between:
Q4
COMMERCIAL PROPERTIES (PTY)
LTD
Applicant
and
THE
MUNICIPAL MANAGER:
MADIBENG
LOCAL
MUNICIPALITY
First
Respondent
THE
CHAIRPERSON / REGISTRAR:
THE EXECUTIVE / APPEAL AUTHORITY
MADIBENG
LOCAL
MUNICIPALITY
Second
Respondent
THE
CHAIRPERSON OF THE PORTFOLIO COMMITTEE
(PC4)
OF
THE MADIBENG
LOCAL
MUNICIPALITY
Third
Respondent
THE
CHAIRPERSON OF THE MUNICIPAL PLANNING
TRIBUNAL
OF
THE MADIBENG LOCAL MUNICIPALITY
Fourth
Respondent
ENGEN
PETROLEUM
LIMITED
Fifth
Respondent
LIZALOR
INVESTMENTS
(PTY)
LTD
Sixth
Respondent
JOLLIFY TRADING
(PTY)
LTD
Seventh
Respondent
FUELARAMA
(PTY)
LTD
Eighth
Respondent
TOTAL SOUTH AFRICA
(PTY)
LTD
Ninth
Respondent
DE
WILDT HELPMEKAAR MAATSKAPPY (NPC)
Tenth
Respondent
MADIBENG
LOCAL
MUNICIPALITY
Eleventh
Respondent
J
U D G M E N T
MUDAU,
J:
[1]
The
applicant, Q4 Commercial Properties (Pty) Ltd, a fuel retailing
company, seeks an order declaring the internal appeal lodged
on
behalf of the fifth, seventh and eighth respondents on 28 February
2018, against the ruling of the third respondent dated 12
December
2017, to be invalid. In the alternative, the applicant asks that the
Court dismiss the aforementioned appeal in terms
of Section 8(1) (c)
(ii) of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”).
[2]
In
addition, the applicants seek an order in terms whereof this Court
approve the applications for township establishment subject
to the
conditions attached to the applicant's founding affidavit. The relief
for the review and setting aside of the failures to
take decisions is
sought in terms of Section 6(2)(g) of PAJA and the substituting
decisions as indicated, are sought in terms
of Section
8(1)(c)(ii) of PAJA. The first, second, third and fourth respondents
issued a notice to oppose, but failed to file answering
affidavits.
Accordingly, only the fifth, seventh and eighth respondents oppose
the application.
IN
LIMINE
ISSUES
[3]
The
fifth, seventh and eighth respondents (the respondents), have filed a
condonation application for the late filing of their answering
affidavit, which is not opposed by the applicant; however, the
applicant has indicated that it intends to rely on the paragraphs
of
the answering affidavit dealing with the condonation application for
the purpose of argument on the question of delay and costs.
The
fifth, seventh and eighth respondents have, in written heads of
argument, raised a point
in
limine
regarding the non-joinder of the Madibeng Local Municipality. The
Madibeng Local Municipality (“the Municipality”)
has, in
the interim, formally been joined to the proceedings as the eleventh
respondent.
[4]
It
is common cause that the applicant served a copy of the township
establishment applications on the offices of the fifth, seventh
and
eighth respondents’ attorneys on 17 March 2020. The fifth,
seventh and eighth respondents opposed any reliance or reference
by
the applicant to the copies of the township establishment
applications served upon them. In this regard, the fifth, seventh
and
eighth respondents have proceeded with a Rule 30(2) notice and
thereafter, an application in terms of Rule 30(2) (b) to be
heard
simultaneously with this application. The applicant did not file
answering papers in respect of the Rule 30 application.
BACKGROUND
[5]
On
29 June 2015, the applicant lodged two township establishment
applications in terms of section 96(1) of the Town-Planning and
Townships Ordinance 15 of 1986 ("the Ordinance") Townships
to be known as the “Township Q4 City” and “Q4
City
Extension 1” respectively. The applicant wishes to develop two
filling stations on the N4 highway, catering for traffic
on both
sides of the highway. The opposing respondents are owners of filling
stations on the N4 highway between Pretoria, Gauteng
Province and
Rustenburg, North West Province with a direct interest in the matter.
[6]
On
28 July 2015, the applicant’s town planner gave notice as
required in terms of section 69(6)(a) and Regulation 21 of the
ordinance regarding the applicant’s township establishment
applications. Subsequently on 25 August 2015, the opposing
respondents
submitted their objections. Pursuant thereto, the first
respondent (“the municipal manager”) forwarded a copy of
the
objections received to the applicant and requested additional
documentation as well as the applicant’s response to the
objections.
[7]
On
19 August 2016, the respondents’ attorney sent a letter to the
municipal manager, inquiring whether a reply to the objection
had
been received from the applicant and whether a hearing date regarding
the matter had been scheduled. A follow-up letter was
sent to the
applicant’s town planner seeking confirmation whether the
applicant had submitted a reply to the respondent’s
objection,
in which event, a copy thereof was requested. It was on 20 January
2017 that the applicant filed its response to the
municipal manager’s
request as envisaged in terms of section 69(9) of the Ordinance.
[8]
Significantly,
on 21 March 2017, the eleventh respondent, the Municipality,
promulgated its Spatial Planning and Land Use Management
By-Law 2016,
under local authority notice 25 of 2017 per Gazette No. 7745 (“the
By-law”). On 13 April 2017, the respondents’
attorneys
addressed a letter to the municipal manager confirming that no
response had been received regarding previous requests.
The letter
advised that, should a response not be received within a reasonable
time to allow the respondents time to prepare, a
postponement would
be sought should a hearing be convened.
[9]
On
2 May 2017, the municipal manager forwarded a notice advising the
parties that a hearing before the portfolio committee had been
scheduled for 18 May 2017. In response thereto, the respondents’
attorney afforded a letter to the municipal manager requesting
documentation preparations with a chronology dating back 19 August
2016 to 13 April 2017. On 8 May 2017, the municipality issued
an
email advising that the hearing was postponed.
[10]
On
16 May 2017, the respondents’ attorneys address a letter to the
applicant’s attorneys confirming postponement of
the hearing
and also proposing a meeting to discuss settlement as well as the
possible nomination of a hearing date. Subsequently,
on 27 November
2017, the municipal manager issued a notice advising the parties of
the hearing scheduled for 12 December 2017.
On 1 December 2017, the
respondents’ attorneys advised the municipal manager in writing
of their unavailability on 12 December
2017 and suggested 25 or 26
January 2018 instead. On 7 December 2017, the municipality advised
that the scheduled hearing for 12
December 2017 would not be
postponed.
[11]
On
8 December 2017, the respondents’ attorneys advised the
municipal manager and the applicant in writing that they intended
to
raise points
in
limine
.
The basis was that the township applications were allegedly
unauthorised; and that certain public participation requirements had
not been complied with, in that adjacent local authorities had not
been notified. The hearing was proceeded with on 12 December
2017. On
that occasion, an additional point
in
limine
was raised - the applicant should also have notified the Controller
of Petroleum Products (“the Controller”) of the
township
applications. However, the respondent’s points
in
limine
were dismissed.
[12]
On
18 January 2018, the respondents’ attorneys forwarded a letter
to the third respondent requesting reasons for the dismissal
of the
points
in
limine
and again on 1 February 2018. It was not until 14 February 2018, that
the reasons were received from the municipality. On 28 February
2018,
the respondents served and filed their internal appeal in terms of
section 51 of the Spatial Planning & Land Use Management
Act 16
of 2013 (SPLUMA) read with section 121 of the By-law. The merits of
the application scheduled for 1 and 2 March 2018, were
subsequently
postponed to 14 and 15 May 2018 at the request of the respondents.
[13]
On
10 May 2018, the third respondent advised that the hearing scheduled
for 14 and 15 May 2018, could not be proceeded with until
the
internal appeal had been finalised. Subsequently, on 4 December 2018,
the applicant instituted an application to compel the
municipal
manager and the executive authority of the municipality to
administratively process the respondent’s internal appeal.
On
18 April 2019, this Court (per Van der Westhuizen J) granted an
order on an unopposed basis in accordance with the relief
sought by
the applicant. On 14 June 2019, the Municipality was compelled
by way of a court order to consider and finalise
the appeal hearing.
Subsequently, on 26 April 2019, the Municipality issued a hearing
notice in respect of the pending appeal,
which was to be held on 16
May 2019.
[14]
On
14 May 2019, the respondents dispatched a letter to the Municipality
by which they advised that they intended to request a postponement
of
the appeal hearing scheduled for 16 May 2019, which they formally did
on 15 May 2019 and as a result, the Municipality acceded
to their
request. Because of these developments, the applicant instituted a
contempt of court application under case number 40904/2019
enrolled
for 10 February 2020 on the unopposed motion court roll. Faced with a
contempt of court application, on 5 July 2019, the
Municipality
issued a notice of an appeal hearing scheduled for 25 July 2019, on
the same date that the applicant instituted the
application under
consideration as per case no. 476864/2019. The applicant and the
respondents attended the scheduled appeal hearing
before the
Municipality’s Appeal Tribunal on 25 July 2019, which hearing
by agreement did not proceed because of
inter
alia
,
this pending application.
[15]
The
applicant contends that, there has been an inordinate delay in the
taking of the aforesaid decisions causing unjustifiable prejudice
to
the applicant; the dismissal of the appeal and the approval of the
township applications are foregone conclusions and a remittal
of such
decisions would constitute a waste of time and a mere formality;
those respondents responsible for the taking of the decisions
are
incompetent; it would be unfair for the applicant to submit to the
same jurisdiction again; and that this Court is in as good
a position
to take the relevant substituting decisions, having been favoured
with all the relevant information.
[16]
The
applicant alleges that the lawful appointment and jurisdiction of the
Appeal Tribunal was suspect, in that the Municipality
refused or
neglected to submit proof of statutory compliance and delegation to
the applicant or to respond to the alleged procedural
and statutory
flaws in the appointment of the Appeal Tribunal.
[17]
The
declaratory relief sought regarding the internal appeal process is on
the following basis. At the time when the appeals were
lodged, the
procedure was regulated by section 51 of SPLUMA and Section 121 of
the By-law, both of which required such appeals
to be lodged within
21 days after the decision of the third respondent was made known to
the parties involved. Regarding the internal
appeal, the allegation
was that the public participation process followed by the applicant
was flawed as the Controller, the office
in the relevant department
which regulates only the issue of site and retail licenses in terms
of the Petroleum Products Act
[1]
(“the Act”) and has no interest in any land use change
application, was not notified of the applications. The respondents
submitted that the Controller and the Minister constitute interested
parties and organs of State for the purposes of adjudication
of an
application that envisages the establishment of a filling station.
[18]
It
is common cause between the parties that annexure “DP 50”
is a letter in which the Controller confirmed in writing
that:
“
[A]n
applicant is therefore only qualified to lawfully apply for site and
retail licenses at this Department (Energy) and the Controller
after
it has already successfully obtained the land use zoning certificate
from a competent authority or a person authorising retailing
from the
site. Consequently…The Controller have no concern with any
lodged or pending land-use applications in terms of
Town Planning
legislation by virtue of which a land owner applies for filling
station land-use rights”.
[19]
Section
121 of the By-law provides, "[a]n appellant must commence an
appeal by delivering a Notice of Appeal approved by the
Municipality
to the registrar of the relevant appeal authority within 21 days as
contemplated in section 51 of the Act". Section
51 of SPLUMA
provides that a person whose rights are affected “…
may
appeal against that decision by giving written notice of the appeal
and reasons to the municipal manager within 21 days of the
date of
notification of the decision
.”
[20]
The
applicant contends that the appeal should therefore have been filed
within 21 days after 12 December 2017, i.e. on or before
2 January
2018. It was filed on 28 February 2018. Also, the applicant relies on
Section 124(4) of the By law, which provides
that if a notice of
appeal is received by the appeal authority after the required time
limit has expired, the party seeking the
appeal is deemed to have
abandoned the appeal. The applicant contends accordingly that the
purported appeal is invalid and a nullity.
In our law, every person's
rights that have been adversely affected by an administrative action
has the right to written reasons.
Section 33(2) of the Constitution
read in conjunction with Section 5(1) of PAJA provides that a person
adversely affected by an
administrative decision may request
reasons.
[2]
The respondents’ request for written reasons can therefore not
be faulted.
[21]
The
second ground upon which the applicant relies for the declaratory
relief is that the third respondent's decision on the points
in
limine
is, in any event, not appealable. In their notice of appeal dated 20
February 2018, the respondents rely on the provisions of section
22
of SPLUMA and section 127 of the By-law to appeal the dismissal of
their point
in
limine
on the basis that it was not procedurally fair as contemplated in
PAJA. Section 51(1) of SPLUMA grants the right of appeal to a
person
"…whose
rights are affected by a decision
...”.
This requirement is qualified in section 51(5) to persons whose
pecuniary or proprietary interests are adversely affected
by the
decision or who are able to demonstrate that she or he will be
adversely affected by the decision. The applicant contends
that the
decision concerned is therefore not a "decision" which is
appealable as contemplated by SPLUMA and the By-law.
The applicant,
inter
alia
,
contends that the decision was not final in nature but a preliminary
or interlocutory step with no determinative effect on the
respondents’ rights.
[3]
[22]
I
respectfully agree with the submissions by counsel on behalf of the
applicant that the following factors militate against the
ruling
being appealable. The ruling would not have had the effect of
disposing of at least a substantial portion of the approval
sought by
the applicant in the township applications, if upheld.
[4]
To qualify as an administrative act in terms of PAJA, the decision
has to adversely affect the rights of any person.
[5]
[23]
In
terms of section 127 of the By-law the appeal authority is empowered
to consider an appeal on the following grounds:
“
(i)
the administrative action was not procedurally fair as contemplated
in the Promotion of Administrative Justice Act, 2000 (Act
No 3 of
2000); and
(ii) the merits of the land
development or the land use application."
Both
of these activities are yet to be undertaken by the Municipality
since they are the subject of the townships application. Accordingly,
to allow the decision to be subject to appeal would lead to the
piecemeal appellate disposal of issues in litigation.
[6]
In any event, the pending appeal has been rendered academic in view
of the contents of the letter from the Controller alluded to
above.
[24]
With
regard to the pending township applications, it is contended on
behalf of the applicant that, given the length of the delay
read with
the events relating to the appeal, the inaction should be reviewed in
terms of section 6 (2) (g) and that a substituting
order should be
made in terms of section 8 (1) (c) (ii) (aa) of PAJA, approving the
township applications. The decision to grant
or refuse a township
establishment application lies within the purview of the Municipality
and its administrative authority.
[25]
Section
8 relied upon, which deals with “remedies in proceedings for
judicial review” provides as follows:
“
(1)
The court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable,
including orders —
…
(c) setting
aside the administrative action and —
…
(ii) in
exceptional cases —
(aa)
substituting or varying the administrative action…”
[26]
The
applicant also submitted that the first to the fourth Respondents are
simply not competent to deal with the township applications.
I am
asked to consider that the decision-making relating to a township
application is guided by section 42 of SPLUMA. Section 42(1)(a)
provides that a Municipal Planning Tribunal's decision must be guided
by the development principles set out in Chapter 2 which
the
applicant contends in this instance, has been dealt with by the
expert town planner.
[27]
In
contrast, section 8 (2) of PAJA provides as follows:
“
(2)
The court or tribunal, in proceedings for judicial review in terms of
section 6(3), may grant any order that is just and equitable,
including orders—
(a)
directing
the taking of the decision;”
[28]
The
applicant however, readily concedes that, flowing from the doctrine
of separation of powers in terms of the common law, a Court
will be
reluctant to assume decision-making power for itself where the
discretion has been entrusted to another functionary.
[7]
[29]
The
power to substitute the court's decision for that of the
administrator is, correctly, provided for in Section 8(1) (c) (ii)
(aa) of PAJA. However, this power must be exercised judiciously and
in accordance with the requisite degree of deference dictated
by the
facts of a given case. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism( (Pty) Ltd
,
[8]
O’ Regan J endorsed the SCA approach where Schultz JA
[9]
cited with approval Professor Hoexter's account as follows:
“
(A)
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit
the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a refusal to
tolerate corruption and maladministration. It ought to be shaped not
by an unwillingness to scrutinise administrative action, but
by a
careful weighing up of the need for - and the consequences of -
judicial intervention. Above all, it ought to be shaped by
a
conscious determination not to usurp the functions of administrative
agencies; not to cross over from review to appeal.”
[30]
In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
,
[10]
it is stated at paragraph 42 that:
"The administrative review
context of s 8(1) of the PAJA and the wording under ss (1)(c)(ii)(aa)
make it perspicuous that substitution
remains an extraordinary
remedy. Remittal is still almost always the prudent and proper
course."
The court went on further to state that:
“
[46] A
case implicating an order of substitution accordingly requires courts
to be mindful of the need for judicial deference and
their
obligations under the Constitution. As already stated, earlier case
law seemed to suggest that each factor in the exceptional
circumstances enquiry may be sufficient on its own to justify
substitution. However, it is unclear from more recent
case law whether these considerations are cumulative or discrete.
[47] To my mind, given the
doctrine of separation of powers, in conducting this enquiry there
are certain factors that should inevitably
hold greater weight. The
first is whether a court is in as good a position as the
administrator to make the decision. The second
is whether the
decision of an administrator is a foregone conclusion. These two
factors must be considered cumulatively. Thereafter,
a court should
still consider other relevant factors. These may include delay, bias
or the incompetence of an administrator. The
ultimate consideration
is whether a substitution order is just and equitable. This will
involve a consideration of fairness to
all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each matter
on a case-by-case basis that
accounts for all relevant facts and circumstances.
[48] A court will not be in as
good a position as the administrator where the application of the
administrator's expertise is still
required and a court does not have
all the pertinent information before it. This would depend on the
facts of each case. Generally,
a court ought to evaluate the stage at
which the administrator's process was situated when the impugned
administrative action was
taken. For example, the further along in
the process, the greater the likelihood of the administrator having
already exercised
its specialised knowledge. In these circumstances a
court may very well be in the same position as the administrator to
make a
decision. In other instances some matters may concern
decisions that are judicial in nature. In those instances — if
the
court has all the relevant information before it — it may
very well be in as good a position as the administrator to make
the
decision.”
[31]
In
this matter, this Court can never be in an as good a position in
circumstances where the merits have not been considered by the
municipality's functionaries, and more particularly, where the
township establishment applications have not even been placed before
the Court either as an attachment to the founding affidavit or as
part of the formal record of proceedings, but some expert opinions.
The question of need and desirability as it relates to economic
feasibility is an aspect, which is highly contested in this
application.
In my view, it cannot be easily resolved on papers. As
Khampepe J held in
Trencon
at para 49:
"Indubitably,
where the administrator has not adequately applied its unique
expertise and experience to the matter, it may
be difficult for a
court to find that an administrator would have reached a particular
decision and that the decision is a foregone
conclusion
."
The proper planning and management of land use is complex, and
primarily the domain of local authorities to consider.
[32]
The
high watermark in the applicant’s case is that incompetence is
the reason for its review regarding the processes embarked
upon by
the municipality adjudicating the internal appeal and the delay in
the township establishment applications, and not the
adjudication of
the merits. As for the question of delay, the applicant also
contributed to the delay complained about from the
onset, and
accordingly, does not approach this court with clean hands. In
contravention of section 69(9) of the Ordinance, the
applicant,
through its representatives, Van Zyl & Benade Town and Regional
Planners, only tiled their response to the respondents’
objections on 20 January 2017, which is approximately 15 months,
after being requested to do so by the municipality without any
explanation for its tardiness.
[33]
Significantly,
section 7(2) of PAJA provides:
“
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject
to paragraph (c), a court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a)
has been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in a court or
tribunal for
judicial review in terms of this Act.
(c)
A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[34]
It
would also seem to me that the applicant's reliance on the provisions
of section 8(1)(c)(ii)(aa) of PAJA is misplaced. The applicant's
case
for a review and substituting order is, in my view, misplaced and
based on an incorrect appreciation of the provisions of
PAJA. The
relief sought by the applicant is provided for in section 8(2), which
is however, not the applicant’s case. It
is clear that the
legislature purposefully distinguished between the remedies provided
in section 8(1) and section 8(2) of PAJA.
In addition, the order
sought in this regard has far-reaching implications for the local
municipality. There is merit in the Municipality
first considering
the townships establishment.
[35]
It
would appear that the remedies in section 8(1), as counsel for the
respondents contended, deal with a situation where there has
been
some action by an administrator. In contrast, the remedies in section
8(2) are directed at circumstances where an administrator
has failed
to take a decision and are therefore aimed at facilitating the taking
of said decision. In all the circumstances, the
application to review
the Municipality must fail. It follows accordingly that the
relief sought for a substituting order lacks
merit. The applicants
and the respondents were each partially successful regarding this
matter and for that reason, it is fair
and just that each party be
responsible for their own costs.
[36]
Order:
The
late filing of the respondents’ answering affidavit is
condoned;
The
Rule 30 (1) application is upheld;
It
is declared that the Internal Appeal lodged on behalf of the fifth,
seventh and eighth respondents on 28 February 2018, against
the
ruling of the third respondent dated 12 December 2017, is invalid;
The
application for the substitute order in terms of section 6(2)(g) and
section 8(1)(c)( ii) of PAJA is dismissed; and
There
is no order as to costs.
T P MUDAU
Judge of the High Court
Date of Hearing:
16
November 2020
Date of Judgment:
11
February 2021
APPEARANCES
For the Applicant:
Adv. J L Venter
Instructed by:
ADRIAAN VENTER ATTORNEYS & ASSOCIATES
For the 5
th
, 7
th
and
8
th
Respondent:
Adv. E Van AS
Instructed by:
IVAN PAUW AND PARTNERS ATTORNEYS
[1]
Act
120 of1977.
[2]
Kyobe
v Minister of Home Affairs
2010 (4) SA 327
(CC) at para 61.
[3]
Eastern
Metropolitan Substructure v Peter Klein Investments
2001 (4) SA 661
(W) at 674D-E.
[4]
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) at 536B-D;
Maize
Board v Tiger Oats LTD and Others
2002 (5) SA 365
(A) at paras [4]–[8].
[5]
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) at para
[23]
.
[6]
Guardian
National Insurance Co LTD v Searle N.O
.
1999 (3) SA 296
(SCA) at 301B-C,
SABC
SOC LTD and Others v DA
and
Others
2016 (2) SA 522
(SCA) at paras [66]-[67] and
Cloete
v S
2019 (4) SA 268
(CC) at para [57].
[7]
Premier,
Mpumalanga & Another v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC) at para [51];
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618(CC)
at para [95];
Doctors
For Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para
[37]
.
[8]
[2004] ZACC 15
;
2004
(4) SA 490
CC at para [46].
[9]
The
SCA judgment is reported as
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407 (SCA).
[10]
2015
(5) SA 245
CC.