Manong & Associates (Pty) Ltd v Minister of Public Works and Another (518/2008) [2009] ZASCA 110; 2010 (2) SA 167 (SCA) ; [2010] 1 All SA 267 (SCA) (23 September 2009)

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Manong & Associates (Pty) Ltd v Minister of Public Works and Another (518/2008) [2009] ZASCA 110; 2010 (2) SA 167 (SCA) ; [2010] 1 All SA 267 (SCA) (23 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 518 / 2008
MANONG
& ASSOCIATES (PTY) LTD Appellant
and
THE
MINISTER OF PUBLIC WORKS First Respondent
THE
DIRECTOR GENERAL,
DEPARTMENT
OF PUBLIC WORKS Second Respondent
___________________________________________________________________
Neutral citation:
Manong v Minister of Public Works
(518/2008)
[2009] ZASCA 110
(23 September 2009)
CORAM:
HARMS
DP, BRAND, PONNAN, SNYDERS JJA and BOSIELO AJA
HEARD:
4 SEPTEMBER 2009
DELIVERED:
23 SEPTEMBER 2009
SUMMARY: Practice – companies – litigation ─ whether obliged
to act through a legal representative.
Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000
- application for
interim interdict to Equality Court – failure to establish a prima
facie case.
___________________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The Equality Court, High
Court, Transvaal Provincial Division (Botha J sitting as a court of
first instance).
The appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA
(
HARMS DP, BRAND, PONNAN, SNYDERS JJA and
BOSIELO AJA
concurring):
Introduction
[1] State tenders have become fertile ground for litigation. The
present is one such matter. It commenced as what can only be
described as a somewhat ambitious application in terms of the
Promotion of Equality and Prevention of Unfair Discrimination Act
No
4 of 2000 (the Equality Act) to the Equality Court (Transvaal
Provincial Division). In it, the appellant Manong and Associates
Pty
Ltd (the company), which describes itself as a national company
specialising in civil, structural and development engineering,
sought
against the Minister of Public Works and the Director-General,
Department of Public Works (the first and second respondents

respectively), in addition to condonation and the usual order for
costs, the following relief,
'2. Pending the determination of Part B of the relief
sought by the complainant, an interim interdict be granted preventing
the
first and second Respondents ("the respondents') from
implementing the Professional Services Supplier Register ("The
Register") including its key Principles.
3. Ordering the respondents to furnish the complainant
with the following information:
3.1 A record of the decision that was taken to abolish
the current roster and its replacement by the register.
3.2 A list of Civil engineering Consultants who are on
the current roster of the Department of Public Works ("the DPW")

from the year 2005 to date;
3.3. A schedule of fees showing appointments made to
Consultants and the fees received per project from the year 2005 to
date.'
In Part B of the order prayed, the company sought the following
relief:
'1. Reviewing, correcting and setting aside the decision
taken by the respondent to abolish the current roster and its
replacement
by the register;
2. Reviewing and setting aside the implementation of the
register and declaring its key principles to be inconsistent with
sections
9 and 217 of the Constitution of the Republic of South
Africa, No. 108 of 1996 read with S.7 (c) and 7 (e) of the Promotion
of
Equality and Prevention of Unfair Discrimination Act, No. 4 of
2000 ("the Equality Act");
3. Reviewing the conduct of the respondents in
appointing Consultants as it is inconsistent with S. 217 of the
Constitution;
4. Directing the respondents to undergo an audit of
their procurement policies . . ..’
[2] Botha J was called upon in the court below to adjudicate only
Part A of the relief sought. The learned judge dismissed the

application for an interim interdict with costs, but granted leave to
the appellant to appeal to this court.
Right of Appearance
[3] Before turning to consider the merits of the appeal it is
necessary to first consider whether Mr Mongezi Stanley Manong (Mr

Manong), the managing director of the company, who signed the heads
of argument on behalf of the company and purported to represent
it
before us, has what can be described as a right of audience on behalf
of the company before this court.
[4] The rule that a company cannot conduct a case in this court
except by the appearance of counsel on its behalf was laid down
in
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue.
1
The rule may well have originated in early seventeenth century
metaphysical reasoning that a corporation has ‘no soul, is
invisible
and cannot do homage’.
2
It, according to Viscount Simon LC, secures that a court like this
will be served by persons who observe the rules of their profession,

are subject to a disciplinary code and are familiar with the methods
and scope of advocacy to be employed in presenting argument.
3
[5] There is nothing to suggest that Mr Manong's decision to secure
the benefits of incorporation was not a genuine one. He did
after all
have the option of establishing and conducting the business as an
unincorporated sole proprietorship. There is thus a
persuasive
argument that having chosen the benefits of incorporation, he must
bear the corresponding burdens and not be allowed
to escape them
lightly.
4
[6] It has been thought,
5
somewhat cynically I dare say, that the rule is based on some
misguided attempt to preserve an unjustified monopoly for legal
practitioners. This is not the case. Litigation is based on the
adversary system. In determining a dispute, a court is dependent
on
the way in which the case is presented. Factual admissions or denials
are made from time to time and a course of conduct has
to be chosen
by the litigants. When a corporation instructs an attorney who in
turn instructs an advocate the law recognises their
authority to bind
the corporation for the purpose of litigation. In those circumstances
a court need not concern itself about authority.
Litigation will
become very difficult indeed if a court had to be concerned at every
step of proceedings as to the authority of
the person conducting the
litigation to make binding decisions. The litigant in person can of
course make those decisions without
any question of authority, but a
corporation cannot act except through its agent and an agent cannot
have more authority than the
corporation legally gives to it.
6
Yet a further consideration is that corporate officers could cause
impecunious companies to litigate hopeless causes without any
fear of
personal risk. Thus, apart from the fact that there are usually rules
of court that preclude a company from being represented
by anyone
other than a qualified practitioner, a review of the cases in
England, Ireland, Australia, New Zealand and Canada shows
that the
courts, for pragmatic and policy reasons, have set their face against
unqualified persons presenting and conducting cases
unless they are
doing so on their own behalf.
7
So too in Zimbabwe
8
and South Africa.
[7] That a person in the position of Mr Manong has no right, such as
counsel and in certain circumstances attorneys have, to address
this
court on behalf of the appellant is thus well settled. But to observe
that he does not have a right of audience is not as
Scott J put it
9
' ... to answer the question whether the court does not
have, and whether the court should not on the facts of the case
exercise,
a power to permit him to address the court on behalf of the
corporate litigant.'
[8]
Yates
did not consider the question of a judicial
discretion to allow non-professional representation in a particular
case. For, as Gardiner
JP put it:
'The rules of procedure of this Court are devised for
the purpose of administering justice and not of hampering it, and
where the
rules are deficient I shall go as far as I can in granting
orders which would help to further the administration of justice
....’
10
Likewise, Denning MR stated
'It is well settled that every court of justice has the
power of regulating its own proceedings; and, in doing so, to say
whom it
will hear as an advocate or representative of a party before
it. As Parke J said in
Collier v Hicks
((1831) 2 B & Ad 663 at 672,
109 ER 1290
at 1293): "No
person has a right to act as an advocate without the leave of the
Court, which must of necessity have the power
of regulating its own
proceedings in all cases when they are not already regulated by
ancient usage".'
11
[9] The main reasons for relaxing the rule are, I suppose, obvious
enough: a person in the position of the controlling mind of
a small
corporate entity can be expected to have as much knowledge of the
company's business and financial affairs as an individual
would have
of his own. It thus seems somewhat unrealistic and illogical to allow
a private person a right of audience in a superior
court as a party
to proceedings, but deny it to him when he is the governing mind of a
small company which is in reality no more
than his business
alter
ego
. In those circumstances the principle that a company is a
separate entity would suffer no erosion if he were to be granted that

right. There may also be the cost of litigation which the director of
a small company, as well acquainted with the facts as would
be the
case if a party to the dispute personally, might wish to avoid. Such
companies are far removed from the images of gigantic
industrial
corporations which references to company law may conjure up.
12
[10] It follows that cases will arise where the administration of
justice may require some relaxation of the general rule. Their

occurrence, in my view, is likely to be rare and their circumstances
exceptional or at least unusual. I thus consider that our
superior
courts have a residual discretion in a matter such as this arising
from their inherent power to regulate their own proceedings.
After
all it seems to me that the power of a court to give leave to a
corporation to carry on a proceeding otherwise than by a
legal
representative is of necessity an integral part of the rule itself.
[11] That our courts were endowed with such power even in our
pre-constitutional era is evident from the following dictum of
Corbett
JA:
'There is no doubt the Supreme Court possesses an
inherent reservoir of power to regulate its procedures in the
interests of the
proper administration of justice ....'
13
Courts now derive their power from the Constitution itself,
14
which in section 173 of provides:
'The Constitutional Court, Supreme Court of Appeal and
High Courts have the inherent power to protect and regulate their own
process,
and to develop the common law, taking into account the
interests of justice.'
As it was put by the Constitutional Court in
SABC Ltd v National
Director of Public Prosecutions and others
:
15
'This is an important provision which recognises both
the power of Courts to protect and regulate their own process as well
as their
power to develop the common law. . . . The power recognised
in s 173 is a key tool for Courts to ensure their own independence

and impartiality. It recognises that Courts have the inherent power
to regulate and protect their own process. A primary purpose
for the
exercise of that power must be to ensure that proceedings before
Courts are fair. It is therefore fitting that the only
qualification
on the exercise of that power contained in section 173 is that Courts
in exercising this power
must take into
account
the interests of justice.'
[12] According to the Constitutional Court:
16
‘
The task of an appeal Court in determining its own
proceedings is an important one. Its primary constitutional
responsibility is
to ensure that the proceedings before it are fair
and it must give content to that obligation. This obligation has
always been
part of our law and is now constitutionally enshrined as
a fundamental right in s 35(3) of the Constitution. The task of
ensuring
that the proceedings are fair will often require
consideration of a range of principled and practical factors, some of
which may
pull in different directions
.’
But it did remind us that ‘it is a power which has to be exercised
with caution’
17
and sparingly having taken into account the interests of justice in a
manner consistent with the Constitution.
18
[13] It is important to emphasize that the power vested in the court
in this regard is a purely discretionary power. In general,
and
without attempting to lay down any hard and fast rules, discretionary
audience should be regarded as a reserve or occasional
expedient.
For, whilst we must be free to review the
Yates
rule in the
light of currently prevailing conditions and requirements, we perhaps
need to remind ourselves that given the increasing
complexity of
litigation, the rule may well be required as strongly today as it
ever was. In those circumstances an unqualified
and inexperienced
person may do more harm than good to the corporate litigant that he
purports to assist.
[14] I have expressly refrained from formulating a test for the
exercise of the court's inherent power as I believe that such cases

can confidently be left to the good sense of the judges concerned.
Lest this be misconstrued as a tacit or general licence to
unqualified agents, it needs be emphasised that in each such instance
leave must be sought by way of a properly motivated, timeously
lodged
formal application showing good cause why, in that particular case,
the rule prohibiting non-professional representation
should be
relaxed. Individual cases can thus be met by the exercise of the
discretion in the circumstances of that case. It would
thus be
impermissible for a non-professional representative to take any step
in the proceedings, including the signing of pleadings,
notices or
heads of argument (as occurred here), without the requisite leave of
the court concerned first having been sought and
obtained.
[15]
This approach, in my view, is consistent
with the right enshrined in s 34 of the Constitution, which provides
that everyone has
the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a
court, or,
where appropriate, another independent and impartial
tribunal or forum. Emphasising that the courts have a duty to protect
bona fide
litigants and the importance of untrammelled access to the courts,
the right enshrined in s 34 has variously been described by
the
Constitutional Court as ‘fundamental to a democratic society that
cherishes the rule of law’, ‘of cardinal importance
that requires
active protection’, foundational for ‘the stability of an orderly
society’, and a right that ‘ensures the
peaceful, regulated and
institutionalised mechanisms to resolve disputes, without resorting
to self help’ and serves as ‘a
bulwark against vigilantism, and
the chaos and anarchy which it causes’.
19
[16] Reverting to Mr Manong’s entitlement to represent the company
before us. The company, which was founded in 1995, has three

directors with offices in four of our major cities. It is described
in the founding affidavit as having ‘evolved over the years
from a
firm that initially specialised in development projects, … to one
‘which now specialises in more complex engineering
projects such as
the design of runways and taxiways’. The company’s size (some 20
professionals), sophisticated hierarchy and
management structure, the
scale of its operations and what it describes as the many prestigious
projects it has been involved in,
are all testament to the fact that,
by no stretch of the imagination, can it be regarded as the alter ego
of Mr Stanley Manong.
In those circumstances, one may well have
hesitated to permit him a right of audience on behalf of the company.
What weighs against
that conclusion however is that only last term he
appeared, without demur, before this court on behalf of the company.
20
Moreover, by the time that his entitlement to represent the company
was queried by this court, he had already prepared and signed
the
heads of argument on behalf of the company. In those circumstances
were he to have been debarred from representing the company,
the
matter would of necessity have had to be postponed – occasioning
delay and the incurring of additional costs to both parties
(all of
which may not have been recoverable from the losing litigant). We
therefore allowed Mr Manong to represent the company
before us.
The Merits
[17] Section 217 of the Constitution reads:
'(1) When an organ of state in the national, provincial
or local sphere of government, or any other institution identified in
national
legislation, contracts for goods or services, it must do so
in accordance with a system which is fair, equitable, transparent,
competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state
or institutions referred to in that subsection from implementing a
procurement
policy providing for –
(a) categories of preference in the allocation of
contracts; and
(b) the protection or advancement of persons, or
categories of persons, disadvantaged by unfair discrimination.
(3) National legislation must prescribe a framework
within which the policy referred to in subsection (2) must be
implemented.'
[18] To achieve that objective, the National Department of Public
Works (DPW), which has been described as the largest employer
of
consultants in the built environment, operated a roster system for
the procurement of professional service providers for its
projects.
The aim of that policy, which was introduced in May 2001, was to
ensure a fairer distribution of work by targeting historically

disadvantaged firms and individuals and affording them preferential
treatment through accelerated appointments to departmental
tenders.
Thus firms and individuals with such preferred status, through the
operation of a prescribed formula, enjoyed a favourable
weighting on
the roster. The net effect was that such firms and individuals came
up for allocation of fresh assignments quicker
than those who did not
enjoy such status. They thus qualified for accelerated access to work
opportunities by the DPW.
[19] The preamble to that policy recorded that the DPW
' ... will at intervals of approximately one year and in
consultation with relevant professional bodies ... assess the
operation
of the roster in order to determine whether it is achieving
its objectives in a satisfactory manner.'
And, if not
'... consideration will be given to modifying the
system to remedy [its] shortcomings'
.
[20] To that end and in contemplation of the introduction of a new
policy to replace the roster system, on 2 March 2008, the DPW
through
advertisements in national newspapers invited consultants in the
built environment to apply to be listed as service providers
on the
DPW's proposed new professional services supplier register.
[21] Disgruntled at the DPW’s decision to discard the roster system
in favour of the new register, Mr Manong dispatched a letter
on 7
April 2008 in which he called upon the Minister not to implement the
new policy until in his words:
‘
1. adequate legal reasons are given why the current
roster policy should be discarded;
2. adequate legal reasons are given why the proposed
new policy is more suitable to the present needs of the DPW than the
current
one;
3. adequate reasons both factual and legal that Black
Consultants especially Affirmable Priority Population Service
Providers (APSP)
will benefit more under the proposed new policy as
compared to the existing one;
4. the widespread advertisement in national newspapers
calling on all stakeholders to be given sufficient time in order to
make
significant and meaningful input into the new draft policy.'
Mr Manong sought an assurance that the proposed new policy would not
be implemented, failing which an urgent application to the
Equality
Court would be lodged. No assurance was forthcoming and a fortnight
later the threatened proceedings in the guise of the
present
application was launched on 7 April 2008.
[22] The requirements for the grant of an interim interdict are well
settled.
21
I will limit myself solely to a consideration of the first - a prima
facie right - as in my view the application had to fail at
that
preliminary hurdle. It is thus unnecessary to range beyond that to a
consideration of the other requirements.
[23] In the founding affidavit deposed to by Mr Manong in support of
the application, he sets out the background to the application
as
follows:
‘
After examining the proposed key principles of the
register found under paragraph 1.3 of the said document ("STAN
34"),
I came to the conclusion that the DPW was abrogating its
constitutional obligation of promoting the achievement of equality as
enshrined under section 9 of the constitution.
…
The register will be used on a rotational basis for the
invitation of quotations from at least the top most three service
providers.
The register does not state the different categories of
the service providers that are enlisted on the register as mandated
by
section 9 read with section 217 of the constitution. This is not
just an oversight from the register, but a deliberate attempt at

maintaining and perpetuating the policies of the past within the
civil engineering industry through the denial of procurement
opportunities to previously disadvantaged individuals.
…
He goes on to assert:
'Furthermore the quotation system suggested in the
register is aimed at cementing this racially exclusive practice by
the denial
of access to opportunities, including access to services
or contractual opportunities for rendering services to DPW by
previously
disadvantaged individuals. Should the register principles
be implemented, quotations from African firms will be perpetually
rejected
on the basis that they are too high. The implementation of
the register principles will sound a death-knell to all African firms

– few as they are at the present moment.'
Mr Manong then suggests:
'It is the complainant's reasonable perception that the
roster system was being manipulated to benefit firms other than
priority
population firms. This perception is borne out by the fact
the DPW has flatly refused to make available the information
requested
under annexure "STAN 23".
This perception is further reinforced by the
inexplicable conduct of the DPW of hurriedly and unprocedurally
discarding the current
roster system and replacing it with a more
corrupt-prone quotation register. It is the perception of the
complainant that the abolishment
of the current roster was aimed at
appeasing the SAACE and other groups who are fiercely opposed to
Black Economic Empowerment.
The current roster is not abolished because of policy
consideration it is abolished to enable other groups and mainly white
established
firms to continue with their dominance of the civil
engineering industry. The roster policy was devised and implemented
to assist
historically disadvantaged firms and to ensure a fair and
equitable distribution of work to private sector consultants.'
[24] That, in sum, constitutes the gist of the appellant's complaint
about the implementation of the DPW's register. Against that
backdrop
Mr Manong alleges:
'I believe that the Complainant has
made out a case for the prima facie right for the reviewing of the
decision taken by the respondents
in abolishing the current roster
and its replacement by the register.
I also believe that the Complainant has made out an irrefutable prima
facie case that the Key principles of the Register are inconsistent

with sections 9 and 217 of the constitution read with s.7(c) and 7(e)
of the Equality Act.'
22
[25] Explaining what motivated the change in policy, Thapelo Samuel
Motsoeng, a chief director in the DPW, states:
The reason why the Roster had to be discarded was that
the Roster did not comply with the Public Finance Management Act 1 of
1999
(PFMA) and the Preferential Procurement Policy Framework Act 5
of 2000 (PPPFA). In fact the Roster Policy was formulated before
the
PPPFA Act was enacted and its regulations promulgated. The Roster
therefore was not conforming to the PPPFA in more than one
sense, for
example, the Roster did not encompass provision for disabled persons,
being one of the defined groups within the PPPFA's
definition of a
Historically Disadvantaged Individual (HDI).
National Treasury together with the World Bank, launched
the Country Procurement Assessment review in 2001. The findings of
this
review resulted in the decision by Cabinet in November 2003 to
align South Africa's procurement with best international standards,

which includes the appointment of consultants, by means of a
systematic competitive selection procedure. Thus, the Department of

Public works could no longer continue with the Roster in the form it
was structured as the principle on which it functioned allows
for
non-competitive awards to be made up to the value of R2 million. It
also did not afford preference to disabled persons. Therefore
the
Roster system had to be discarded in order to have a system in line
with the PPPFA and more so one which approaches the procurement
of
professional services on the basis of competitive bidding.'
[26] Mr Manong's further allegations elicited the following response
from Motsoeng:
'The Applicant fails to set out the basis for his
conclusion that the DPW was abrogating its constitutional obligation
of promoting
the achievement of equality under section 9 of the
Constitution. In fact such a conclusion as reached by the Applicant
is denied.
…
The Applicant's perception that the Register is
construed to be perpetuating unfair discriminatory policies of the
past is unfounded.
The acquisition of Professional Services in the built
environment to perform services on behalf of the National Director of
Public
Works had to be in line with the Preferential Procurement
Policy Framework Act 5 of 2000 ("PPPFA"), the Public
Finance
Management Act 1 of 1999 (PFMA), the Supply Chain Management
Regulations and the
Construction Industry Development Board Act 38 of
2000
.
The Professional Services Supplier Register is compliant
with the above statues as opposed to the Roster which was not.
The Register does not state the different categories of
the service providers since in terms of the PPPFA all service
providers
are allowed to tender but preference will be given to
certain categories. These categories are listed in
section 2(1)(d)(i)
of the PPPFA.
. . .
The Register also had to be compliant with the Treasury
Regulations published under GN R225 in GG 27388 of 15 March 2005 in
promoting
competitive bidding. Reference should be had to Section
16A3.2 of the Treasury Regulations which provide that:
16A3.2 A supply chain management system referred to
in paragraph 16A.3.1 must –
(a) be fair, equitable, transparent, competitive and
cost effective;
(b) be consistent with the Preferential Procurement
Policy Framework Act, 2000 (Act 5 of 2000);
(c) be consistent with the Broad Based Black
Empowerment Act 2003 (Act 53 of 2003);
(d) . . .
.’
[27] To succeed the company had to establish prima facie that the
mere implementation of the new policy by the DPW would in and
of
itself, of necessity, have resulted in a discriminatory practice to
the company and other similarly placed historically disadvantaged

firms and individuals. But that proposition in my view is wholly
untenable. Plainly, at this stage of the enquiry, the respondents’

explanation that the roster system had to be discarded in favour of
the new register to ensure compliance with the relevant statutory

framework was not and could not have been gainsaid by the appellant.
[28] Expatiating on his assertion that the company’s
allegations ‘are contradictory and confusing’, Motsoeng
states:
‘
The Applicant makes out a case that the Roster system
is a better system but at the same time states that the Roster system
was
being manipulated to benefit firms other than priority population
firms. He then continues by stating that the Roster system was

replaced by a more corrupt-prone quotation register.
. . .
It is submitted that the Applicant fails to make out any
case that his constitutional right to equality under section 9 of the
Constitution
is being infringed in any way. He has further not shown
that the Register is inconsistent with section 9 and section 217 of
the
Constitution read with section 7(c) and 7(e) of the Equality Act.
His application is without any merit.'
With that, one can hardly disagree.
[29] Before us and although only raised somewhat obliquely on the
papers, an additional ground of review was sought to be advanced
by
Mr Manong, namely that there had not been a proper consultative
process prior to the introduction of the new policy. That too,
as
emerges from the following excerpt from Motsoeng’s affidavit, is
devoid of any merit.
Furthermore, the DPW did have consultations with all
relevant stakeholders. Such consultations took place on 25 January
2006, 28
June 2006, 13 September 2006, 08 November 2006, 25 April
2007, 06 February 2008. I attach hereto a copy of the minutes of such
consultations attached hereto as Annexure "DPW 5 – DPW 10".
Furthermore, a conference was held in November 2007, to
discuss the
intended procurement route of the Department as well as the fact that
the Roster will be discarded in lieu of a new
Register. The following
organizations were represented at the conference – South African
Council for the Architectural Profession,
the South African council
for the Quantity Surveying Profession, the engineering Council of
South Africa, the council for the Built
Environment, SAIA, ASAQS,
SAACE and SABTACO. Present at all these consultations was Chief
Director of Professional Services, Mr
Gerhard Damstra whose
confirmatory affidavit is attached hereto as Annexure "DPW13".
[30] I have quoted
in extenso
from the affidavits, because
they illustrate, I do believe, that if this were a horse race, the
appellant has not yet made its
way out of the starting stalls. At
best for the appellant, the hypothesis advanced by it is a rather
tentative and speculative
one. The relief sought is not grounded in
any factual foundation but rather on conjecture, perception and
supposition. It followed
that the application had to fail and that
the court below cannot be faulted in holding that the appellant had
failed to make out
a prima facie case because the respondents’
answer cast serious doubt upon it (
Webster v Mitchell
1948 (1)
SA 1186
(W) at 1189;
Reckitt & Colman SA (Pty) Ltd v S C
Johnson & Son (Pty) Ltd
1995 (1) SA 725
(T) at 730B-D).
[31] In the result the appeal is dismissed with costs, such costs to
include those consequent upon the employment of two counsel.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M S Manong (Appearing in person)
Instructed
by:
Manong
& Associates
c/o
MacRobert Inc
Pretoria
E
G Cooper & Majiedt Inc
Bloemfontein
For
Respondent: R Tolmay SC
T
Khatri
Instructed
by:
The
State Attorney
Pretoria
The
State Attorney
Bloemfontein
1
1956 (1) SA 364
(A).
2
Re G J Mannix
Ltd
[1984] 1 NZLR 309
at 311;
Northern
Homes Ltd v Steel-Space Industries Ltd
(1976)
57 DLR (3d)
309 at 313.
3
Tritonia Ltd and others v Equity and Law Life
Assurance Society
[1943] 2 All ER 401
(HL).
4
R v Rockwood
(2008) 164 CRR (2d) 345 at para 10-11.
5
LCB Gower, JB Cronin, AJ Easson and Lord Wedderburn of Charlton
Gower's Principles of Modern Company Law
(4ed (1979) p 212.
6
Harrison v Guardian Assurance Company
Ltd
[1989] 1
NZLR 59
at 60.
7
The cases are usefully collected in
California
Spice and Marinade (Pty) Ltd and others in re: Bankorp v California
Spice and Marinade (Pty) Ltd and others; Fair O’
Rama Property
Investments CC and others; Tsaperas; andTtsaperas
[1997]
4 All SA 317
(W).
8
Lees Import and Export (PVT) Ltd v Zimbabwe
Banking Corporation Ltd
1999 (4) SA
1119
(ZSC).
9
Arbuthnot Leasing International Ltd v Havelet Leasing Ltd and
others
[1991] 1 All ER 591
(Ch) at 595.
10
Ncoweni v Bezuidenhout
1927 CPD 130.
11
Engineers' and Managers' Association v Advisory, Conciliation and
Arbitration Service and another
(No 1)
[1979] 3 All ER 223
(CA)
at 225.
12
Re G J Mannix
Ltd
at 315.
13
Universal City Studios Inc and others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at 754G.
14
Phillips and others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) para 47.
15
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para 35 and 36.
16
SABC Ltd
para
21.
17
S v Pennington and another
1997 (4) SA
1076
(CC).
18
Parbhoo and others v Getz NO and another
1997 (4) SA 1095
(CC).
19
Beinash and another v Ernst & Young and
others
1999 (2) SA 116
(CC) para 17;
Moise v Greater Germiston Transitional
Local Council: Minister of Justice and Constitutional Development
Intervening
(
Women's
Legal Centre as
Amicus
Curiae
)
[2001] ZACC 21
;
2001 (4) SA 491
(CC) para 23;
Chief Lesapo v North West Agricultural
Bank and another
[1999] ZACC 16
;
2000 (1) SA 409
(CC)
para 22;
First National Bank of South
Arica Ltd v Land and Agricultural Bank of South Africa and others;
Sheard v Land and Agricultural
Bank of South Africa and another
[2000] ZACC 9
;
2000 (3) SA 626
(CC) para 6.
20
Manong v Department of Roads & Transport,
Eastern Cape Province
[2009] ZASCA 59.
21
Setlogelo v Setlogelo
1914
AD 221
at 227.
22
Those subsections read:
Subject to section 6, no
person may unfairly discriminate against any person on the ground of
race, including-
(c)
the exclusion of
persons of a particular race group under any rule or practice that
appears to be legitimate but which is actually
aimed at maintaining
exclusive control by a particular race group;
(e)
the denial of
access to opportunities, including access to services or contractual
opportunities for rendering services for consideration,
or failing
to take steps to reasonably accommodate the needs of such persons.