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[2021] ZASCA 85
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Hirt & Carter (Pty) Ltd v IT Arntsen N O and Others (277/2020) [2021] ZASCA 85 (18 June 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
277/2020
In
the matter between:
HIRT
& CARTER (PTY) LTD
APPELLANT
and
T
ARNTSEN NO
FIRST
RESPONDENT
BIG
CONCERTS INTERNATIONAL (PTY)
LTD
SECOND
RESPONDENT
ALLIANCE
SAFETY CC T/A ALLIANCE SAFETY MANAGEMENT
THIRD
RESPONDENT
GLAXOSMITHKLINE
(PTY) LTD
FOURTH
RESPONDENT
MAXWILL
137 CC T/A BOTHMA SIGNS
FIFTH
RESPONDENT
VERTEX
SCAFFOLNDING CC
SIXTH
RESPONDENT
THE
CITY OF CAPE TOWN
SEVENTH
RESPONDENT
BLK
OPS (PTY) LTD
EIGHTH
RESPONDENT
THE
MINISTER OF SAFTEY AND SECURITY
NINTH
RESPONDENT
LESLIE
JAMES HEAVEN
TENTH
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
ELEVENTH
RESPONDENT
Neutral
citation:
Hirt
& Carter (Pty) Ltd v IT Arntsen N O and Others
(Case
no 277/2020)
[2021] ZASCA 85
(18 June 2021)
Coram:
NAVSA, MOCUMIE, DLODLO JJA and POTTERILL and POYO
-
DLWATI
AJJA
Heard
:
14
May 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 10h00 on 18 June 2021.
Summary:
Inquest — review of inquest finding —
no material mistake of law impacting outcome — prima facie
evidence of act
or omission involving or amounting to an offence.
ORDER
On appeal from:
Western Cape Division of the High Court, Cape
Town (Allie, Saldanha, and Nuku JJ sitting as court of review of an
inquest finding):
The appeal is
dismissed.
JUDGMENT
Potterill
AJA (Navsa, Mocumie, Dlodlo JJA and Poyo-Dlwati AJA concurring)
Introduction
[1]
At a Linkin Park concert held at the Cape Town Stadium on 7 November
2012 Mrs Florentia
Loredana Popa tragically lost her life when
scaffolding structures, to which advertising material was attached,
collapsed causing
open blunt force trauma to her head resulting in
her untimely demise. Several other concertgoers were also injured as
a result
of the scaffolding collapse. Pursuant to this tragedy an
inquest was held in terms of s 5(2) of the Inquests Act 58 of 1959
(the
Act) and the Magistrate found, in terms of s 16(2)(
d
)
thereof, that the death of Mrs Popa was brought about by an act or
omission on the part of the appellant (Hirt & Carter (Pty)
Ltd),
Vertex Scaffolding CC (Vertex) and Maxwill 137 CC t/a Bothma Signs
(Bothma Signs), that prima facie involves or amounts to
an offence.
[2]
Hirt & Carter took the finding of the Magistrate on review in the
Western Cape
Division of the High court, Cape Town, before three
judges. None of the respondents opposed the review application.
Bothma Signs
filed an affidavit setting out that it was not in a
financial position to pursue review proceedings. A full court
dismissed the
review application. It is against that finding, with
leave of this Court, that Hirt & Carter is appealing. There was
no opposition
to the appeal.
[3]
The review was brought in terms of Uniform Rule 53 under the common
law and/or read
with the Promotion of Administrative Justice Act 3 of
2000 (PAJA).
In heads of argument in this
Court, it was accepted that Hirt & Carter’s application for
review may be treated as one
in terms of the common law. It was
submitted before us that the Magistrate had committed a material
error of law of the kind that
justified the setting aside of the
finding referred to at the end of para 1. I intend to deal with that
question after having regard
to the background, which appears
hereafter, including the Magistrate’s findings based on the
evidence adduced before her
and the findings of the full court. It
should be borne in mind throughout that we are dealing with a review
and not an appeal.
Much of the background set out hereafter is common
cause.
[4]
Big Concerts International (Pty) Ltd (Big Concerts) organised the
Linkin Park concert
at two venues, Johannesburg and Cape Town.
Alliance Safety CC t/a Alliance Safety Management (Alliance Safety)
was responsible
for the safety at the concert. Glaxosmithkline (Pty)
Ltd (GSK) provided sponsorship. Hirt & Carter, a media company
specialising
in designing media and advertising campaigns, was
approached by GSK who owned the Lucozade energy drinks brand, to
assist with
a campaign to advertise Lucozade at the two concerts of
Linkin Park to be held in Cape Town and Johannesburg. It is necessary
to
record that there was an established one year- relationship
in place between GSK and Hirt & Carter at the time that the
latter was contracted to do the Lucozade branding. By the time of the
inquest that relationship was four-years old. Hirt &
Carter
proposed for the concerts large Lucozade branding on appropriate
material wrapped around two towers to be constructed. Hirt & Carter
had no experience pertaining to structures to which the branding
could be attached and informed GSK that they would approach a
third
party to erect the structures on which the branding would be placed
accompanied by banners between the two towers. GSK expected
from Hirt
& Carter an end-to-end service.
[5]
Hirt & Carter approached Bothma Signs to make their concept a
reality. Hirt & Carter
knew that Bothma Signs was not a
scaffolding expert and that this element would be outsourced to a
third party. Bothma Signs in
turn approached Vertex, a supplier of
bespoke scaffolding solutions and contracted Vertex to erect two
scaffolding towers for the
Cape Town stadium to which Bothma Signs
would attach the wrapping printed by Hirt & Carter with a banner
hung akin to a washing
line between the two scaffolding structures.
On the day of the concert, the notorious Cape winds began to
blow and by 19h00
its strength increased to such an extent that it
blew over the scaffolding structures to which the Lucozade banner was
attached.
[6]
The evidence pertinent to the conduct of Hirt & Carter is best
captured in relation
to the evidence of Mrs Pretorius of Sound Media
and Mr Olwage of Hirt & Carter. Mrs Pretorius testified
that Sound
Media was contracted by GSK to do promotional activities
at the concert which practically meant they were tasked to hand out
as
many Lucozade bottles as they could, as well as presenting other
exciting promotions to draw attention to Lucozade. Sound Media
offered to do the branding, but Hirt & Carter had already secured
this contract. Sound Media was responsible for co-ordinating
the
efforts of various role-players involved in promoting and conducting
the concert. Mrs Pretorius was the point of contact between
Big
Concerts, GSK and Alliance Safety. She described herself as the
communicator between Hirt & Carter and Big Concerts.
[7]
Mrs Pretorius’s evidence was that Big Concerts had made it
clear that safety
was everything. She was aware that an engineer’s
sign-off and a safety file was required for the scaffolding. Big
Concerts
sent her an indemnity form, a contractor’s agreement
and a checklist explaining that the checklist supplied the
information
necessary for the safety file. Mrs Pretorius was familiar
with the need for a safety file from previous projects. At a meeting,
a day before the event, Mrs Pretorius handed indemnity forms she had
received from Big Concerts to Mr Olwage.
[8]
The day before the concert the following emails were exchanged
between Mrs Pretorius
and Big Concerts with Big Concerts
communicating as follows:
‘
Are
These Safety Forms?
Hi,
Penny. I just wanted to follow up on this. Have the forms been
completed?’
Mrs
Pretorius answered as follows:
‘
Yip.
They have and we have a heavy back-up document. The scaffolding the
[sic] team have this with them on site.’
Mrs
Pretorius could not recall how this was discussed with Mr Olwage but
she was adamant that she had received this information
from him.
[9]
On the day of the concert she received an SMS from Mr Olwage stating
the following:
'Spoke
to Cameron. Got the guys dropping safety docs off We cannot have
someone there 24/7 for scaffolding. This was not discussed
with us
therefor not costed or arranged with [indistinct].’
In
a further SMS, Mr Olwage replied as follows:
‘
Hi,
Penny. I disagree. You made it very clear about the safety docs not
someone being on site 24/7 re: scaffolding.’
In
a subsequent SMS, Mr Olwage then informed Mrs Pretorius that one of
the scaffolding guys was on their way and would look for
Lee, an
employee of GSK, once there.
[10]
Mrs Pretorius testified that she had stressed to Mr Olwage that a
safety file was required including
a sign-off by a structural
engineer. She knew Mr Lord was a safety officer and later learnt he
represented Safety Alliance. Mr
Olwage had told her that the safety
file was with the scaffolding team.
[11]
Mr Olwage was a key accounts manager at Hirt & Carter. He
testified that Hirt & Carter
is primarily a printing facility,
including printing large banner designs they conceptualised for
advertising and media campaigns.
GSK appointed Hirt & Carter
as its media advisor with the specific task to create an advertising
campaign for Lucozade at the
Cape Town Stadium. GSK was an existing
client of Hirt & Carter. It was agreed that large wrapping and
banners would be designed
to be erected at the stadium. The two
parties concluded Hirt & Carter’s standard trade
agreement. Hirt &
Carter had to deliver the banner on a
structure. Significantly, when cross-examined by counsel on behalf of
GSK, Mr Olwage
stated that GSK could rely on Hirt & Carter
not only for the branding but in relation to safety as well. That was
an obligation
that Hirt & Carter had assumed.
[12]
Mr Olwage had 19 years’ experience of designing media and
advertising campaigns and pertinent
to this matter, designing and
printing large banners. He had no expertise in attaching a designed
banner or wrapping to a structure
or of constructing scaffolding to
which the banner could be attached. He had no knowledge of what
legislative requirements needed
to be in place at a concert or what
was required for safe and secure activations at a concert. He had
never had to provide a safety
file and did not know what it entailed.
Designing and printing did not require him to have this knowledge.
Hirt & Carter had
no contractual relationship with Vertex, the
company that constructed the scaffolding.
[13]
Mr Olwage was however, repeatedly made aware that a safety file was
necessary. In October 2012,
there was a pre-production meeting where
safety was discussed. He was in two further meetings where safety was
again pertinently
on the agenda. He had received an email from Mrs
Pretorius asking about dimensions of the scaffolding and stating that
the use
of scaffolding was acceptable on condition it was signed off
by a structural engineer. Mr Olwage could not recall whether at a
meeting, a representative of Big Concerts handed Mrs Pretorius
indemnity forms. Although he initially denied that Mrs Pretorius
informed him that somebody should remain on site 24/7, he later
conceded it had slipped his mind and he did in fact recall being
told
that. He contacted Bothma Signs who contacted Vertex, who in turn
deployed Mr Freedom Mdah to stay on site during
the
concert.
[14]
Mr Olwage, in an email from Mrs Pretorius, was made aware that the
structures may be affected
by the wind. On the morning of the event,
7 November 2012, Mr Olwage had a discussion with Mrs Pretorius
about the wind that
threatened the stability of promotional gazebos
that had been erected. He testified that he left to purchase rods to
secure the
gazebos. His understanding was that a group of people
would, on the day of the concert, walk around the stadium, sign off
the site,
and take the file where it needed to go. After he left the
site the morning of the concert, he received a call from Mrs
Pretorius
asking for the safety file. Mr Olwage then contacted Mr
Swan of Bothma Signs who assured him that the documents were on site.
In
an SMS sent at 15h50, Mr Olwage told Mrs Pretorius that he had
spoken to Mr Swan of Bothma Signs and that ‘the guys’
had
dropped the file. He had not read the email that asked for the safety
file earlier that day as he was with clients and did
not check his
emails. Whenever Mrs Pretorius asked about the file, he took it upon
himself to phone around to find out where the
file was; he never said
that she should look elsewhere for the file. He himself never saw the
file prior to the incident. He knew
that a structural engineer
sign-off was required.
[15]
Mr Olwage acknowledged that all safety issues were to be taken
seriously, but said that he relied
on the sub-contractor, Bothma
Signs, to supply the correct documentation and expertise. He did not
know if Mr Grant from Bothma
Signs knew what a safety file was but
hazarded a guess that he did not know. He knew that Bothma Signs were
not experts in scaffolding
but accepted that the third party that
Bothma Signs contracted with, Vertex, were experts in the field of
scaffolding.
[16]
It is necessary to reiterate that Mr Olwage had repeatedly been
informed that safety was important.
He was in three separate meetings
where safety was discussed. He was, on two occasions asked where the
safety file was. Mr Olwage
knew there was a requirement that the
scaffolding had to be signed off by a structural engineer.
Furthermore, Mr Olwage was well
aware that the wind was blowing on
the day of the event to the extent that he had even
purchased
rods to secure the gazebos from being blown over. Mr Olwage received
queries about the safety file from Mrs Pretorius
and forwarded these
to his sub-contractor. He relayed the answers he received from his
sub-contractor to Mrs Pretorius and these
answers constantly came in
the form of an assurance from Bothma Signs, with whom he had a
long-standing relationship, that the
file was on the site and the
file was a ‘heavy back-up document’. Mr Olwage was to
provide an end-to-end service to
GSK. GSK required a structural
engineer’s certificate. He knew safety was key and knew that a
safety file, with the structural
engineers sign off, was required. He
did not take the time to look at it, more particularly, to look for a
structural engineer
sign-off, the importance of which had been
stressed. Importantly, he admitted when cross-examined that Hirt &
Carter undertook
to GSK to see to the safety aspect.
[17]
It was common cause that there had been no structural engineer
sign-off and that the towers had
not been properly secured, causing
them to dislodge and fall on concertgoers. The inadequacy of the
safety measures will become
clearer from the findings of the
Magistrate set out below.
[18]
The Magistrate in reaching her conclusion referred to the criterion
in s 16 (2)(
c
)
of the Act, namely, whether the death of the deceased was brought
about by an act or omission which prima facie involved or amounted
to
an offence. The Magistrate had regard to
Padi
and Another v Botha N O and Others
1996 (3) SA 732
(W) where it was held that the Act did not require
proof beyond a reasonable doubt and that a judicial officer was not
required
to make findings as to credibility and acceptability of
evidence as in a criminal trial.
[1]
The Magistrate, somewhat inelegantly, stated that findings are to be
made on a prima facie basis. In giving reasons for her findings
she
stated that the ‘common law offence of culpable homicide,
namely the negligent killing of a human being, is also in issue’.
[19]
The Magistrate recounted the evidence in relation to Vertex. She took
into account their disregard
for essential measures, such as securing
the towers to a concrete platform and not employing, as an
alternative, the use of weights
and steel wires to keep them secure
and stable because those items were not in stock. She held that
Vertex was clearly negligent.
Hirt & Carter did not take issue
with that conclusion.
[20]
In respect of Bothma Signs, the Magistrate considered that they were
well aware of the threat
posed by the wind in Cape Town and that a
safety file was required. Bothma Signs knew that there had to be a
sign-off by a competent
person. The Magistrate held it against Bothma
Signs that they did not even check the security file to confirm that
fact. The sign-off
was by workmen from Vertex who did not hold a
professional qualification. They had only received training by the
owner of Vertex.
They were the persons who constructed the towers
without safety features. She concluded that they had been negligent.
This conclusion
too, I did not understand Hirt & Carter to
contest.
[21]
In so far as Mr Olwage was concerned, the Magistrate took into
account what is set out about
him above, and held that Hirt &
Carter was not, in light thereof, entitled to rely on assurances from
Bothma Signs.
[22]
The Magistrate exonerated the South African Police Services, the City
of Cape Town, Sound
Media, Big Concerts, and Alliance Safety,
who admittedly saw their role as assisting with the planning and
oversight of safety
and security measures. On a conspectus of all the
evidence, the Magistrate came to the finding that the death of the
deceased was
brought about by an act or omission that prima facie
involves or amounts to an offence on the part of Vertex, Bothma Signs
and
Hirt & Carter.
The
Full Court decision
[23]
Before the full court, counsel on behalf of Hirt & Carter
contended that the Magistrate was
guilty of a material error of law
that vitiated her conclusion in relation to Hirt & Carter. It was
submitted initially before
the full court that the decision by the
Magistrate was reviewable in terms of the provisions of the PAJA.
Counsel on behalf of
Hirt & Carter conceded before the full court
that there was no authority for that proposition. The proposition was
rejected
by the full court.
[24]
The full court recorded that Hirt & Carter had contended that the
error of law on the part
of the Magistrate, which vitiated the
finding against it, was the finding that it had omitted to supervise
and manage the erection
of the towers, in particular the safety
aspect which was the sub-contractor’s responsibility and which
essentially was performed
by independent contractors.
[25]
The full court had regard to the material parts of Mr Olwage’s
evidence, outlined above.
It also had regard to the fact that it had
been agreed earlier that the towers would be erected on a solid
foundation, rather than
on gravel, which is where it was mounted and
that Mr Olwage saw that this was the case. The full court took into
account that Hirt
& Carter had charged GSK a project management
fee for the delivery of a safe product, yet all it did was to place
reliance
on Bothma Signs and Vertex. The full court held it against
Hirt & Carter that it did not even consider whether the proper
certification
was in place and did not insist on being given a
physical inspection of the structure. The full court found that Hirt
& Carter,
having accepted liability for a safety compliance
certificate ‘was duty bound to ensure that the certificate in
fact complied
in form and substance with the requisite safety
standards’.
[26]
In the light of its conclusion referred to in the preceding
paragraph, the full court held that
Hirt & Carter’s
reliance on the sub-contractors was misplaced in that one was not
dealing with contractual liability.
The full court proceeded to
consider the purpose of an inquest and referred to authority in terms
of which a presiding officer
need go no further than to ask whether a
prima facie case has been established against any person. The full
court considered common
law grounds of review and took into account
that an error of law is not per se enough to vitiate a finding. It
has to be material
and impact on the outcome. The full court held
that the Magistrate had not misinterpreted any relevant provision of
the Act and
had not misconstrued her functions and that she had not,
even if regard is had to
s 22(1)
of the
Superior Courts Act 10 of
2013
, providing for proceedings of any Magistrates’ Court to be
reviewed on the basis of a gross irregularity in the proceedings,
committed any irregularity at all.
[2]
[27]
The full court in view of the conclusions it reached, dismissed the
application for the review
and setting aside of the Magistrate’s
findings against Hirt & Carter. The appeal is directed against
that order. I now
turn to consider whether it was justified.
[28]
As presaged above, it is necessary to bear in mind that we are
dealing with a review and not
an appeal against the Magistrate’s
findings. This Court has stressed that the fundamental distinction
between appeal and
review must not be blurred or be eliminated and
that the time-honoured, and socially necessary separate and distinct
forms of relief
must be honoured.
[3]
There is, it is clear, no right of appeal against an inquest
finding.
[29]
A mistake or error of law does not per se constitute an irregularity
in the proceedings, or vitiates
a decision at common law otherwise a
review would lie in every case in which there was an error on a legal
issue.
See
Hira
and Another v Booysen
1992 (4) SA 69
(A) at 85C-F with reference to
Doyle
v Shenker and Co Ltd
1915 AD 233
, which dealt with a review based on a provision similar
to
s 22(1)
(c)
of the
Superior Courts Act.
[4
]
[30]
An
error of law can, in appropriate circumstances, found a review in
terms of the common law. This is so when the error is material
and
affects the outcome of the proceedings. If, for example, a statutory
criterion was wrongly interpreted by a tribunal and on
application of
the correct approach the facts do not support the impugned decision,
a review ought to succeed. So too, where it
can be said that the
tribunal asked itself the wrong question or based its decision on
some matter not prescribed for its decision
or failed to apply its
mind to the relevant issues in accordance with the behests of a
statute.
[5]
[31]
Before us it was vigorously contended that the material error of law
by the Magistrate was her
finding that Hirt & Carter had an
obligation to supervise the erection of the scaffolding and manage
the safety aspect of the
project, which was what led her to make the
finding in terms of
s 16(2)(
d)
of the Act. The Magistrate was
criticised for making a determinative finding in relation to
culpability and not adhering to the
less stringent prima facie test.
It was submitted that to hold Hirt & Carter liable in these
circumstances would impact negatively
on the commercial world
especially in relation to sub-contracting.
[32]
In dealing with these contentions, the purpose of an inquest should
be borne in mind. In
Marais N O v Tiley
[1990] ZASCA 40
;
1990 (2) SA 899
(A) at
901F-901G the following was said:
‘
The
underlying purpose of an inquest is to promote public confidence and
satisfaction; to reassure the public that all deaths from
unnatural
causes will receive proper attention and investigation so that, where
necessary, appropriate measures can be taken to
prevent similar
occurrences, and so that persons responsible for such deaths may, as
far as possible, be brought to justice.’
[33]
In
Re Goniwe and Others (Inquest)
1994 (3) SA 877
(SE) at
879I, the test to be applied in arriving at a conclusion in terms of
s 16(2)(
d
) is dealt with:
‘
The
presiding officer at an inquest need go no further than to ask
himself whether a
prima facie
case has been established. . .
.’
And
at 880B-D:
‘
Bearing
in mind the object of an inquest it is my opinion that the test to be
applied is not the “beyond a reasonable doubt”
test but
something less stringent. In my opinion the test envisaged by the
Inquest Act is whether the judicial officer holding
the inquest is of
the opinion that there is evidence available which may at a
subsequent criminal trial be held to be credible
and acceptable and
which, if accepted, could prove that the death of the deceased was
brought about by an act or omission which
involves or amounts to the
commission of a criminal offence on the part of some person or
persons.’
[34]
Having regard to the provisions of the Act and the nature of an
inquest, the findings are never
finally determinative. There are
processes that follow in relation to which there will be further
interrogation. In terms of s
17 of the Act the record of proceedings
is forwarded by the judicial officer to the Prosecuting Authority.
Decisions are made thereafter
and a prosecution might follow or not.
If a criminal trial ensues a different evidentiary burden rests on
the state. Further evidence
will be produced and evaluated.
[35]
The Magistrate reminded herself, right at the outset, of the prima
facie standard of proof that
had to be applied in reaching the
conclusion envisaged in the Act. The Magistrate was careful to
consider in detail Mr Olwage’s
involvement in dealing with
safety issues and what factors he, and thus Hirt & Carter, were
aware of. The Magistrate had regard
to email correspondence in which
the importance of the structural engineer’s sign-off was
emphasised. The Magistrate took
into account against Hirt &
Carter that Mr Olwage did not, against all that was within his
knowledge, take the time to look
at the safety file. He failed to do
so, despite having assured others that the safety requirements had
been met and despite accepting
that Hirt & Carter had undertaken
to GSK that it would see to the safety aspects. It did not require
any special expertise
to look for a sign-off by an engineer.
Confirmation of its absence might very well have averted the disaster
that ensued. The Magistrate
was correctly unpersuaded that the
sub-contracting of Bothma Signs and Vertex, against the facts of the
case, could be relied on
to exonerate Hirt & Carter.
[36]
In my view, the Magistrate cannot be faulted for concluding that the
death of the deceased was
brought about by an act or omission that
prima facie amounts to or involves an offence on the part of Hirt &
Carter. It was
premised on a finding of negligence on the part of
Hirt & Carter. There is, in my view, no discernible material
error of law
by the Magistrate of the kind on which a review might be
founded. Indeed, I can find no error at all. The flood of potential
claims
against commercial entities contended for on behalf of Hirt &
Carter is illusory. Each case is decided on its own facts and
we are
here not dealing with civil liability. The Magistrate and the full
court was correct, against the background set out above,
not to have
its focus deflected by Hirt & Carter’s reliance on the
sub-contractors.
[37]
There might well be an oddity in the Magistrate’s finding that
the assurances of Mrs Pretorius
to Mr Lord of Alliance Safety
rendered Alliance Safety not negligent as ‘there was no reason
for [Mr Lord] to doubt Wilson’s
[Mrs Pretorius] ability or
experience in the field or events, or her assurances that all the
necessary documentation had been obtained’.
However, that was
not the issue before us. We were concerned with whether the
Magistrate’s finding against Hirt & Carter
was lacking and
whether the full court order was justified. That question has been
answered.
[38]
In the circumstances, the following order is made:
1.
The appeal is dismissed.
S
POTTERILL
ACTING
JUDGE OF APPEAL
Appearances:
For
the
appellant:
A M Smallburger SC
Instructed
by:
Werkmans, Sandton.
Webbers,
Bloemfontein.
The 1
st
,
2
nd
, 4
th
– 7
th
and 9
th
Respondents: Filed Notice to abide.
The 3
rd
and 8
th
Respondents:
Listed as not participating.
[1]
Padi and Another v
Botha N O and Others
1996 (3) SA 732
(W);
[1995] 3 All SA 457
(W)
at
740F-G.
[2]
In
Padi and Another v
Botha N O and Others
1996 (3) SA 732
(W);
[1995] 3 All SA 457
(W)
at
743A-J it was held that the predecessor of s 22 was not applicable
in relation to inquests and that a review of an inquest
finding was
one at common law. For present purposes, we need not dwell on that
aspect.
[3]
Pepcor Retirement Fund
and Another v Financial Services Board and Another
2003 (6) SA 38
(SCA);
[2003] 3 All SA 21
(SCA);
Telcordia
Technologies Inc v Telkom SA Ltd
2007 (3) SA 266 (SCA); [2007] 2 All SA 243 (SCA); 2007 (5) BCLR 503
(SCA).
[4]
See
also
Hira and
Another v Booysen
1992 (4) SA 69
(A);
[1992] 2 All SA 344
(A)
at
83 and 93A-94A for a summary of the law in relation to common law
review. In
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903 TS 111
at 115-116 it was observed that common law grounds of
review were wider than those upon which review of judicial
proceedings
may be claimed in terms of the legislation such as
s 22
of the
Superior Courts Act 10 of 2013
. See also
Hira
at 85J-86A.
[5]
See
Hira
at
93G-I
and
Genesis
Medical Aid Scheme v Registrar, Medical Schemes and Another
[2017]
ZACC 16
;
2017 (9) BCLR 1164
(CC);
2017 (6) SA 1
(CC) paras 98-101.