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[2017] ZASCA 14
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SA Metal Group (Proprietary) Limited v International Trade Administration Commission and Another (267/2016) [2017] ZASCA 14 (17 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 267/2016
In
the matter between:
SA
METAL GROUP (PROPRIETARY) LIMITED
APPELLANT
and
THE
INTERNATIONAL TRADE ADMINISTRATION
COMMISSION
FIRST RESPONDENT
THE
MINISTER OF ECONOMIC DEVELOPMENT
SECOND RESPONDENT
Neutral
citation:
SA
Metal Group (Pty) Ltd v The International Trade Administration
Commission
(267/2016)
[2017] ZASCA 14
(17 March 2017)
Bench:
Ponnan, Leach, Majiedt and Willis JJA
and Fourie AJA
Heard:
1 March 2016
Delivered:
17 March 2016
Summary:
Appeal –
s 16
(2)
(a)
(i)
Superior Courts Act 10 of 2013
–
dismissal
of appeal where judgment or order sought would have no practical
effect or result.
ORDER
On
appeal from
:
Western
Cape High Court, Cape Town (Dolamo J sitting as court of first
instance):
Save
for the costs of the application by the first respondent to adduce
further evidence on appeal, the appeal is dismissed with
costs, such
costs to include those consequent upon the employment of two counsel.
JUDGMENT
Ponnan
JA (Leach, Majiedt and Willis JJA and Fourie AJA concurring):
[1]
This may laconically be described as a scrap about scrap, in
which counsel were, at the outset of the hearing, required to address
argument on the preliminary question of whether the appeal and any
order made thereon would, within the meaning of
s 16
(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
,
have any practical
effect or result. After hearing argument on this issue, the appeal
was dismissed on 1 March 2017 in terms of
that section. It was
intimated then that reasons would follow. These are the reasons.
[2] Courts should and ought not to
decide issues of academic interest only. That much is trite.
[1]
Section
16(2)
(a)
(i)
provides:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
Of its
predecessor, s 21A of the Supreme Court Act 59 of 1959,
[2]
this court stated:
'The
purpose and effect of s 21A has been explained in the judgment of
Olivier JA in the case of
Premier,
Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad
1998
(2) SA 1136
(SCA). As is there stated the section is a reformulation
of principles previously adopted in our Courts in relation to appeals
involving what were called abstract, academic or hypothetical
questions. The principle is one of long standing.'
[3]
[3] The
primary question therefore – one to which I now turn – is
whether the judgment sought in this appeal will have
any practical
effect or result. It arises against the backdrop of the following
facts:
The scrap metal supply chain in this
country begins with the collection by informal operators, who sell
the metal to recyclers.
Recyclers, including the appellant, SA Metal
Group (Pty) Ltd (SA Metal) – one of the largest scrap metal
dealers in South
Africa – process the metal, which they then
either export or sell to the local scrap processing industry such as
steel mills,
mini mills and foundries. The scrap-processing industry
then manufactures products, which it onsells to various downstream
industries
such as the mining, automotive, construction and
agricultural sectors. Historically, the export price of scrap metal
had a direct
bearing on the price at which scrap metal was sold
within the domestic market. According to the second respondent, the
Minister
of Economic Development (the Minister), parts of the
scrap-processing industry are in a dire state and have experienced
substantial
decline over the last decade. Job losses and closures
have been the order of the day, and the dramatic decline in parts of
the
domestic scrap-processing industry has impacted negatively on
Government’s infrastructure-build programme and its imperative
of deepening downstream manufacturing.
[4]
South Africa is a founding member of the World Trade Organisation
Agreement and also a signatory to the General Agreement on
Tariffs
and Trade of 1947 (the GATT). The South African Government acceded to
the GATT and its accession was published in the
Government
Gazette
.
Parliament approved the agreement in the Geneva General Agreement on
Tariffs and Trade Act 29 of 1948. The World Trade Organisation
Agreement was the outcome of the so-called Uruguay Round of the GATT
negotiations and was concluded in Marrakesh by the signing
of some 27
agreements and instruments in April 1994 by the members including
South Africa.
[4]
The Preamble
to the GATT reads:
‘
The
Governments of . . . :
Recognizing
that their relations in the field of trade and economic endeavour
should be conducted with a view to raising standards
of living,
ensuring full employment and a large and steadily growing volume of
real income and effective demand, developing the
full use of the
resources of the world and expanding the production and exchange of
goods,
Being
desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to
the
substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international
commerce.’
[5]
Domestically, that is echoed in the International Trade
Administration Act 71 of 2002 (the Act), which seeks to ‘foster
economic growth and development in order to raise incomes and promote
investment and employment in the Republic . . . .’.
[5]
Section 7 of
the Act established the first respondent, the International Trade
Administration Commission (ITAC). ITAC is obliged
to carry out the
functions assigned to it in terms of the Act or by the Minister or
that arise out of an obligation of the Republic
in terms of a trade
agreement.
[6]
Section 5 of
the Act empowers the Minister to issue trade policy statements or
directives. According to s 6(1) of the Act:
‘
The
Minister may, by notice in the Gazette, prescribe that no goods of a
specified class or kind, or no goods other than goods of
a specified
class or kind, may be–
.
. .
(c)
exported from the Republic; or
(d)
exported from the Republic, except under the authority of and in
accordance with the
conditions stated in a permit issued by the
Commission.’
In
terms of s 7(2), ITAC is subject to any trade policy statement or
directive issued by the Minister in terms of s 5 and any notice
issued by the Minister in terms of s 6.
[6]
On 10 May 2013 the Minister published ‘a policy directive on
the export of ferrous and non-ferrous waste and scrap metal’
(the directive) in terms of s 5 of the Act.
[7]
The
directive provided:
‘
2.
(a) Ferrous and non-ferrous
waste and scrap
metal should not be exported unless it has first been
offered to domestic users of scrap, for a period determined by ITAC,
and
at a price discount or other formula determined by ITAC intended
to facilitate local rather than export sale.
(b)
To ensure the type and quality of scrap metal that is intended for
export are accurately
reflected on applications for export permits,
all permit applications should be accompanied by confirmation by a
metallurgical
engineer or a suitably qualified person, confirming the
type, quality and quantity of scrap at hand for export, and
information
as to when and where such scrap metal may be inspected by
prospective buyers.’
The
concluding paragraph of the directive reads:
‘
Should
this directive be found to be in conflict with any provision of a
trade agreement which is binding on South Africa, ITAC
should apply
it in a manner which ensures compliance with such agreement.’
[7]
What motivated the directive is explained by the Minister thus:
‘
In
the last decade, many steel mills, secondary smelters and foundries
have been forced to close shop as a result of being unable
to make
ends meet. This was caused, amongst other things, by their inability
to afford scrap metal at the prices at which scrap
metal was
available for sale locally – which was effectively the same
price at which the scrap was being offered to international
purchasers of scrap metal. The closure of these businesses caused job
losses and a reduction in the supply of steel products manufactured
from recycled scrap metal for sale to end users such as mining houses
. . . .
This
state of affairs also affected the quality of the scrap metal which
was available for local use because most of the high quality
scrap
was exported. These combined difficulties facing the domestic
industries caused an economic crisis in respect of which government
had to intervene . . . .
It
was in the light of the economic crisis described above that I issued
the Directive, which led to the publication by ITAC of
the original
Guidelines and the amended Guidelines. I shall refer to the Directive
and the Guidelines collectively . . . as “the
price-preference
system”.
.
. .
The
Directive and Guidelines constitute interventions to address the
crisis in the scrap-processing industry. They form part of
a much
broader economic strategy on the part of government.’
[8]
In accordance with the directive, on 2 August 2013 ITAC published
‘export control guidelines on the exportation of ferrous
and
non-ferrous waste and scrap’
[8]
(the
guidelines) which, to the extent here relevant, provided:
‘
.
. . scrap metal will be allowed to be exported only if the scrap
metal concerned was offered to domestic consumers at a price
that is
20% below international spot prices for the published types and
grades of scrap metal.
.
. .
ITAC
will exempt affected exports from these requirements to the extent
that application of these requirements would be in conflict
with
South Africa’s obligations under an existing trade agreement.
The guidelines will be applied and implemented in such
a manner that
they are consistent with any binding trade agreement.’
On
12 September 2014 ITAC published amended guidelines (the amended
guidelines). Paragraph 8.7 thereof read:
‘
ITAC
will exempt affected exports from these requirements to the extent
that application of these requirements would be in conflict
with
South Africa’s obligations under an existing trade agreement.
Where such an allegation is raised with ITAC, it must
be raised at
the time an application form is submitted to ITAC and must be in
sufficient details for ITAC to understand the nature
and basis of the
allegation. ITAC will consider the merits of an allegation and make a
decision that will be determinative thereof
for purposes of the
export permit application.’
[9]
On 20 October 2014, SA Metal applied for ten permits for the export
of scrap metal. It sought an exemption in each instance
from the
price preference system primarily on the basis that the application
of those requirements would be in conflict with South
Africa’s
obligations under the GATT. On 30 October 2014 ITAC, asserting that
‘subjecting the application to the guidelines
would not violate
South Africa’s obligations under the GATT’,
refused SA Metal’s request. Aggrieved by
that refusal, SA Metal applied to the High Court, Western Cape
Division, Cape Town
seeking:
‘
1.
An order in terms of
Sections 6
and
8
of the
Promotion of
Administrative Justice Act 3 of 2000
reviewing and
setting aside the decision taken on 30 October 2014 by the first
respondent refusing to exempt the applicant’s
ten applications
for export permits made on 20 October 2014 annexed to the founding
affidavit as “GB4” and “GB5”
(“the
permit applications”) from the price preference system
administered by it, and on that basis refusing to grant
the export
permits;
2.
An order substituting for the decision of the first respondent
described in paragraph
1
above the following decisions:
2.1
SA Metal’s applications dated 20 October 2014 for export
permits are exempted from
the price preference system;
2.2
SA Metal’s applications dated 20 October 2014 for the following
permits are granted:
2.2.1
Two permits to export 500 metric tons of grade 201 steel scrap each;
2.2.2
Two permits to export 20 metric tons of copper scrap each of the
grade known internationally
as “Millberry”;
2.2.3
Two permits to export 20 metric tons of copper scrap each of the
grade known internationally
as “Berry”;
2.2.4
One permit to export 50 metric tons, and one permit to export 40
metric tons, of copper
scrap of the grade known
internationally as “Birch/Cliff”;
2.2.5
Two permits to export 50 metric tons of brass scrap each of the grade
known
internationally as “Honey”;
3.
An order directing the first respondent forthwith to issue export
permits in
accordance with the aforesaid decisions;
4.
Alternatively to paragraphs 2 and 3 above, an order remitting the
permit applications
and the application for exemption from the price
preference system for reconsideration by the first respondent and
directing the
first respondent to take a decision within five (5)
days of the date of this order in accordance with such
directions as
the Court may make.’
The
High Court (per Dolamo J) dismissed the application but granted leave
to SA Metal to appeal to this court.
[10]
Inasmuch as: (a) ITAC’s refusal had occurred during October
2014; and (b) the proposed dates in SA Metal’s applications
for
the export of the scrap metal was November 2014 to January 2015, we
were required to consider, at the hearing of the
matter, whether the appeal should be entertained at all
.
To
that end, counsel were requested to file supplementary heads of
argument and present argument as to whether it was not appropriate
to
deal with the matter in terms of
s
16(2)
(a)
(i)
of the Act.
[11] In
this regard, every case has to be decided on its own facts.
And
efforts to compare or equate the facts of one case to those of
another are unlikely to be of assistance.
[9]
SA Metal’s notice of motion sought to review and set aside
ITAC’s refusal to exempt its ten applications for export
permits. Each application by SA Metal related to specified items of
scrap metal that were to be exported from November 2014 to
January
2015 and said to be available for inspection at named locations. The
permits did not relate to scrap metal in generic terms.
Rather, the
relief sought was directed at permitting SA Metal to export the
specified scrap metal referred to in the applications.
It must be
accepted that it would be impermissible for SA Metal to use the
export permits for any other scrap metal but those the
subject of the
applications.
[12]
Counsel for the appellant was constrained to concede that the setting
aside of the High Court order now and the granting of
prayers 1 to 3
of SA Metal’s notice of motion would plainly have no practical
effect. He accordingly sought to rest his case
on prayer 4. But,
prayer 4 is not a self-standing prayer. What is sought in prayer 4,
in the alternative to the main relief, is
an order ‘
remitting
the permit applications and the application for exemption from the
price preference system for reconsideration by [ITAC]’.
In
context, the permit applications contemplated in prayer 4 can only be
those envisaged in prayer 2. And, as prayer 4 inexorably
follows upon
prayers 1 to 3, the fate of the former is inextricably linked to the
latter. There obviously can be little point in
now remitting the 20
October 2014 permit applications for reconsideration by ITAC. Given
the passage of time there can be nothing
for ITAC to reconsider.
To
remit the matter to ITAC in circumstances such as this, where the
issue has become hypothetical, abstract or academic, would
be
meaningless and amount to an act in futility.
[10]
Moreover,
even were we to incline to the view that the high court was wrong in
declining to grant a declaratory order,
there
would be no point in referring the matter back to that court.
[11]
[13]
Faced with that difficulty, there was some attempt by Counsel to
suggest that the review also encompassed within its ambit
a much
broader challenge to the price preference system, which, so the
argument went, remained a live issue. But, that was specifically
eschewed by SA Metal in the court below.
SA Metal had there
pointed out that when regard is had to the answering affidavits of
ITAC and the Minister, it was obvious that
both of them had
misconceived its (SA Metal’s) case. It accordingly sought to
set matters to right when it stated in its
replying affidavit:
‘
ITAC
appears to be under the erroneous impression that SA Metal seeks a
mandatory interdict, and seeks to challenge the price preference
system generally. The Minister, too, appears to be under the
impression that SA Metal seeks to impugn the price preference system
generally for being in violation of the GATT . . . .’
‘
SA
Metal’s application is not a challenge to the price preference
system generally . . . The application is for an order reviewing
and
setting aside the decision made by ITAC on 30 October 2014 in respect
of the export permit application . . . .’
SA Metal
thus made it plain that the relief sought was limited to the ten
permit applications annexed to its founding affidavit.
[14]
It
was nonetheless urged upon us that this is an appropriate matter for
the exercise of this court`s discretion to allow the appeal
to
proceed. In that regard we were referred to
Natal
Rugby Union v Gould
.
[12]
The
fallacy
in the approach of SA Metal, however, is to assume, erroneously so,
that what confronts us in this matter - as in
Gould’s
case - is a discrete
legal
issue
. As I shall show,
it is not.
As
was explained in
Centre
of Child Law v The Governing Body of Hoërskool Fochville
:
[13]
‘
This
court has a discretion in that regard and there are a number of cases
where, notwithstanding the mootness of the issue as between
the
parties to the litigation, it has dealt with the merits of an appeal
(see, inter alia,
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999
(1) SA 432
(SCA) ([1998]
4 All SA 258)
;
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) ([2005]
4 All SA 509)
;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA)
and
Executive
Officer
,
Financial
Services Board v Dynamic Wealth Ltd
2012
(1) SA 453
(SCA)). With those cases must be contrasted a number where
the court has refused to enter into the merits of the appeal.
[14]
The broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose.
[15]
In my view,
this case
plainly falls into the latter of the two categories alluded to
above
.
[15]
As best as I
could discern the argument, the discrete legal issue alluded to
harked back to the price preference system, which,
as I have already
pointed out, had been specifically disavowed on the papers. What is
more, as the orders sought had become moot
and the relief prayed for
was no longer competent, the attack, in truth, became one that was
directed at the reasoning of the court
below. However, an appeal does
not lie against the reasons for judgment, but rather against the
substantive order made by a court.
[16]
[16]
A further string to SA Metal’s bow is that the issue in this
appeal will arise ‘regularly’ in respect of
export permit
applications. There is, however, no reason to believe that a ‘large
number of similar cases’, as SA Metal
put it, can be
anticipated. ITAC is required to consider
mero
motu
whether exports should be exempted
from the price preference system. The amended guidelines make it
plain that a prospective exporter
is required to raise the exemption
issue when it applies for an export permit, and must do so ‘in
sufficient detail for ITAC
to understand the nature and basis of the
allegation’.
Although the price
preference system has been in place since 2013, no other exporter
appears to have raised the exemption issue.
It thus seems that the
only exporter likely to raise that issue ‘regularly’ is
SA Metal itself.
[17]
SA Metal’s submission therefore amounts to this: even if the
determination of the present appeal would have no practical
effect
for present purposes, this court should nonetheless decide the appeal
because SA Metal intends to raise the exemption issue
when it applies
for export permits in the future.
However, the fact that
SA
Metal may have an intention to rely on the exemption issue in future
applications does not mean that there is a ‘discrete
legal
issue of public importance’ before the court. The directive,
which was published in May 2013, is effective for five
years. At the
end of that period ‘it will be reviewed to determine whether it
should be terminated or extended for a limited
period, with or
without amendment’. The directive thus only has approximately
one year to run. It follows that any decision
of this court would
therefore have limited application.
[18]
In circumstances where SA Metal has itself chosen to limit its relief
to the ten permit applications, there can be no reason
of public
interest why the court should decide an appeal that would have no
practical effect. The appellant is bound to the relief
that it sought
and if that relief has now become academic, it cannot resort to a
general justification for pursuing the appeal.
The general
justification being that a similar legal issue may arise in relation
to other export applications. If the appellant
had wanted to have
such an issue decided, it ought to have sought such relief and
properly motivated for its grant in the public
interest.
[19] In
effect what SA Metal really seeks is to have this court express a
view on a legal conundrum that may arise in the future
without in any
way affecting the position between the parties to the present
dispute. The essential flaw in SA Metal’s case
is one of timing
or ripeness.
[17]
As it was
put in
Clear
Enterprises (Pty) Ltd v SARS
,
[18]
whatever issues may arise in those matters are not yet ‘ripe’
for adjudication. In
Coin
Security Group (Pty) Ltd v SA National Union
for Security Officers
,
[19]
Plewman JA quoted with approval from the speech of Lord Bridge of
Harwich in the case of
Ainsbury
v Millington
[1987] 1 All
ER 929
(HL), which concluded:
[20]
‘
It
has always been a fundamental feature of our judicial system that the
Courts decide disputes between the parties before them;
they do not
pronounce on abstract questions of law when there is no dispute to be
resolved’.
[20]
After all, courts of appeal often have to deal with congested rolls.
And, as Innes CJ observed in
Geldenhuys
& Neethling v Beuthin
,
[21]
they ‘exist for the settlement of concrete controversies and
actual infringements of rights, not to pronounce upon abstract
questions, or to advise upon differing contentions, however
important’. That was echoed by the Constitutional Court in
National Coalition for Gay
and Lesbian Equality & others v Minister of Home Affairs
[22]
when it said:
‘
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
court is to
avoid giving advisory opinions on abstract propositions of law.’
[21]
SA Metal’s appeal was accordingly dismissed at the hearing of
the matter in terms of
s 16(2)
(a)
(i)
of the
Superior Courts Act. That
leaves costs: In this court ITAC
sought leave to adduce further evidence on appeal. The evidence was
to the effect that an inspection
by it revealed that SA Metal no
longer had custody of the scrap metal, the subject of the ten permit
applications. That application
was opposed by SA Metal. The
opposition gave rise to a dispute of fact that was incapable of
resolution on the papers. In argument,
ITAC accepted that the
evidence sought to be introduced was not strictly necessary for the
determination of the appeal and accordingly
did not persist with the
application. It follows that the application must be dismissed.
[22]
The Minister did not seek any costs in respect of the aborted
application. SA Metal, however, did. SA Metal persisted in an
obviously unmeritorious appeal despite a note from the registrar of
this court more than two months prior to the hearing of the
matter
raising mootness and enquiring whether the appeal was being persisted
in. In addition, the costs of the application for
leave to adduce
evidence constitute a miniscule portion of the overall costs of the
appeal. I accordingly take the view that there
should be no order as
to costs insofar as that application is concerned. Save for those
costs, the costs of the appeal must otherwise
follow the result.
[23]
In the result:
Save
for the costs of the application by the first respondent to adduce
further evidence on appeal, 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:
LS
Kuschke SC (with him E F van Huyssteen)
Instructed
by:
Bernadt
Vukic Potash & Getz, Cape Town
Lovius
Block, Bloemfontein
For
First Respondent:
S
Du Toit SC (with him F Ismail)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
Second Respondent:
A Cockrell SC (with him A Friedman)
Instructed
by:
Webber
Wentzel, Cape Town
Honey
Attorneys, Bloemfontein
[1]
See
Legal-Aid
South
Africa v Magidiwana & others
[2014] 4
All SA 570
(SCA) and the cases there cited.
[2]
Section 21A(1) of the Supreme Court Act 59 of 1959 provided:
'When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.'
[3]
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 137
;
2001
(2) SA 872
(SCA) para 7.
[4]
See
Progress
Office Machines v SARS
2008
(2) SA 13
(SCA) para 5;
Bridon
International GMBH v International Trade Administration Commission
2013 (3) SA 197
(SCA) para
12
; International Trade
Administration Commission & another v South African Tyre
Manufacturers Conference (Pty) Ltd & others
(738/2010)
[2011] ZASCA 137
; 2011 JDR 1161 (SCA) para 1.
[5]
Section 2
of the Act.
[6]
Section 15
of the Act.
[7]
Policy Directive on the Exportation of Ferrous and non-Ferrous Waste
and Scrap Metal, GN
470,
GG 36451,
10
May 2013
.
[8]
ITAC Export Control Guidelines on the Export of Ferrous and
non-Ferrous Waste and Scrap, GN
R543
GG 36708,
2
August 2013.
[9]
The
Kenmont School & another v D M & others
(454/12)
[2013] ZASCA 79
; 2013 JDR 1365 (SCA) para 12.
[10]
‘
A
hypothetical interest is one that is expressly claimed, but is
neither real nor true. And an academic interest is one that is
not
related to a real or practical situation and is, therefore,
irrelevant.’ (
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others
2013
(3) BCLR 251
(CC) para 51).
[11]
West
Coast Rock Lobster Association & others v The Minister of
Environmental Affairs and Tourism & others
[2011]
1 ALL SA 487
(SCA) para 45.
[12]
Natal
Rugby Union v Gould
1999 (1) SA
432 (SCA).
[13]
Centre of Child Law v The
Governing Body of Hoërskool Fochville
2016 (2) SA 121
(SCA) para 11.
[14]
See
for example:
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa
&
another
2005
(1) SA 47
(SCA)
;
Rand
Water Board v Rotek Industries
(Pty)
Ltd
2003
(4) SA 58
(SCA)
;
Minister
of Trade and Industry v Klein NO
[2009] 4 All SA 328
(SCA);
Clear
Enterprises (Pty) Ltd v Commissioner, South African Revenue Service
and Others
[2011] ZASCA 164
(29 September 2011);
Kenmont
School and Another v D M and Others
[2013] ZASCA 79
(30 May 2013) and
Ethekwini
Municipality v South African Municipal Workers Union and others
[2013] ZASCA 135
(27 September 2013) and
Legal
Aid South Africa v Magidwana
[2014] ZASCA 141.
[15]
See
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
2013
(3) SA 315
(SCA) para 5.
[16]
Western
Johannesburg Rent Board & another v Ursula Mansions (Pty) Ltd
1948
(3) SA 353
(A) at 355;
Absa
Bank v Mkhize and Two Similar Cases
2014 (5) SA 16
(SCA) para 64.
[17]
Ferreira v Levin NO &
others
;
Vryenhoek v Powell NO &
others
1996 (1) SA 984
(CC) para 199.
[18]
Clear Enterprises (Pty) Ltd
v SARS
(757/10) [2011]
ZASCA 164.
[19]
In
Coin
Security Group (Pty) Ltd v SA National Union
for
Security Officers & others
[2000] ZASCA 137
;
2001
(2) SA 872
(SCA) para 9.
[20]
At 930g.
[21]
Geldenhuys & Neethling
v Beuthin
1918 AD 426
at
441.
[22]
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs &
others
2000
(2) SA 1
(CC)
para 21
footnote 18.