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[2017] ZASCA 25
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Harrielall v University of KwaZulu-Natal (493/2016) [2017] ZASCA 25 (27 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 493/2016
In
the matter between:
NIEKARA
HARRIELALL
APPELLANT
and
UNIVERSITY
OF KWAZULU-NATAL
RESPONDENT
Neutral
citation:
Harrielall
v University of KwaZulu-Natal
(493/2016)
[2017] ZASCA 25
(27 March 2017)
Coram:
Cachalia
and Swain JJA, and Molemela, Gorven and Mbatha AJJA
Heard
:
16
February 2017
Delivered
:
27 March 2017
Summary:
Promotion
of Administrative Justice Act 3 of 2000
: refusal of application for
admission to course of study leading to MBChB degree :
application for review of decision : new
challenge on appeal : not
raised in founding affidavit : appeal dismissed.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Moodley J sitting as
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Swain
JA and Mbatha AJA
(Cachalia
JA and Gorven AJA concurring)
[1]
The appellant, Ms Niekara Harrielall, aspires to be a medical doctor
and in pursuit of this objective unsuccessfully applied
to the
respondent, the University of KwaZulu-Natal for admission to study
for an MBChB degree in 2015. Undaunted by this rejection
the
appellant registered and pursued a course of study for the degree of
Bachelor of Medical Science (Anatomy), with the respondent
during
2015. She did so in order to enhance her prospects for admission to
the MBChB degree in 2016, within the category described
as ‘Mature
Students’ forming part of the respondent’s admissions
policy.
[2]
Regrettably the appellant's application as a ‘mature student’
for the 2016 academic year was also unsuccessful.
Aggrieved at the
outcome the appellant launched an application before the
KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Moodley
J) seeking orders reviewing and setting aside the decision of the
respondent on the grounds that it had failed to consider,
alternatively apply, its own admissions policy in refusing the
appellant's application. In further alternative relief, the appellant
sought an order reviewing and setting aside the refusal of her
application to be admitted to the first-year of study for the MBChB
degree for the 2016 academic year.
[3]
The court a quo dismissed the application with costs, concluding that
the appellant had failed to discharge the onus of proving
that the
respondent had not considered her application properly, alternatively
had acted capriciously and arbitrarily in deviating
from its
admissions policy in refusing to admit the appellant to the 2016
academic year, for the MBChB degree.
[4]
Section 37(3)
of the
Higher Education Act 101 of 1997
provides that:
‘
The
admission policy of a public higher education institution must
provide appropriate measures for the redress of past inequalities
. .
.’
This
requirement is reflected in the admissions policy of the respondent
contained in a document described as ‘Undergraduate
Selection
Process’. The ‘mature student’ category is
described as follows:
‘
3.
MATURE STUDENTS
Mature
students will comprise 20% (40 students) of the class. Mature
students are categorized as follows:
a.
Candidates who have completed the Matriculation/Grade 12 examination
and exceeding the minimum standards for entry into the MBChB
programme as defined above; and have done a year or more of a degree
course at a recognised university in South Africa; and achieved
outstanding results (Open). Twenty five percent (10 students) will be
from this open competitive category.
b.
BSc and BMedSc access programmes (reflecting Quintile 1 and 2
students) - racial groups do not apply for the selection of Quintile
1 and 2 students (BSc/BMedSc Access). Fifty percent of the mature
students (20 students) will be from the BSc and BMedSc access
programmes (reflecting Quintile 1 and 2 students).
c.
Twenty-five percent (10 students) will be from BSc/BMedSc graduates
from Health Science related degrees, (Health Sciences Open).’
[5]
The complaint raised by the appellant in her founding affidavit was
that the respondent in awarding places within the ‘mature
student’ category, had only considered for selection students
who had completed their degrees. As a result it was alleged
that the
appellant’s application had not been considered by the
respondent. It was on this basis that the appellant alleged
that the
respondent's failure to consider her application, alternatively apply
its own admissions policy, contravened the provisions
of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[6]
In the appellant's heads of argument before this Court the challenge
to the respondent’s decision was however no longer
based upon a
failure of the respondent to consider her application at all, but
rather a failure of the respondent to properly differentiate
between
the three categories which comprise ‘mature students’.
The argument advanced was that the appellant should
only have
competed against applicants that fell within category 3a, which the
appellant described as ‘degree incomplete students’
and
not against ‘degree complete students’. It was alleged
that ‘the respondent on its own version ignored these
categories and pitted “degree incomplete students”
against those with degrees and ranked all mature applicants according
to completed degrees (Masters, Honours, undergraduate) and then year
of study in postgraduate degree’. It was alleged that
this was
a new criterion which referenced a ranking system in respect of
‘mature students’, which was entirely absent
from the
respondent's admissions policy and had been disclosed by the
respondent for the first time in its answering affidavit.
[7]
On appeal the challenge of the appellant was again altered.
Appellant’s counsel expressly disavowed any reliance
upon this
argument and conceded that so-called ‘degree complete students’
could compete within category 3a, with ‘degree
incomplete
students’. The argument now advanced was that the respondent
had failed to explain its preferential admissions
policy in respect
of the various degrees that could be considered in terms of category
3a. It was submitted that the respondent
should have set out in its
admissions policy the points that would be allocated for each type of
degree within the category, as
well as the points to be allocated to
each of the subjects making up the degree under consideration.
[8]
When counsel for the appellant was asked to identify the passages in
the founding affidavit where this new challenge was raised,
he
requested an opportunity to examine the founding affidavit. When
court resumed he referred to certain paragraphs in the founding
affidavit in support of the argument. However an examination of these
paragraphs does not support his contention that the argument
was
properly raised. The only reference by the appellant to the ranking
system of the respondent was in reply where the following
was stated:
‘However the respondent has made it clear that it has,
independently of its own policy, applied a ranking system
to these
applications,’ because it chose completed degree applicants
ahead of the appellant's application. In addition it
was alleged that
‘There is no such ranking provision provided for in the policy
and therefore whomever applied this criteria
was not consistent with
the policy.’ The appellant did not however persist with
this argument that the ranking system
applied by the respondent, did
not form part of its admissions policy. A complaint that the
respondent had failed to disclose in
advance how it applied this
ranking policy was never raised. Counsel conceded that if this new
challenge was not raised in the
appellant’s founding affidavit
the appeal could not succeed. This concession was correctly made. It
was incumbent upon the
appellant to make out her case in the founding
affidavit.
[1]
[9]
We turn to the costs of the appeal. In argument, the decision in
Biowatch
Trust v Registrar, Genetic Resources, & Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC), was referred to, but is not applicable
on the facts of this case. No constitutional issues were implicated.
This case is
simply a review under PAJA of an administrative decision
by the respondent, not to admit the appellant to the course of study
leading
to the MBChB degree. Of importance in a consideration of this
issue is that the appellant altered the basis for her challenge to
the respondent's decision several times during the litigation. In
addition, the final challenge advanced on appeal was not contained
in
the appellant's founding affidavit. These shortcomings could have
been avoided if the appellant had utilised the provisions
of rule 53
of the Uniform rules of court at the outset, to obtain the
respondent's reasons for rejecting her application, as well
as any
documentation forming part of the record of the admissions process.
Because of the urgency of the matter, the court hearing
the
application could have been asked to direct that the respondent
furnish its reasons and any relevant documentation sooner than
the
period of 15 days specified in rule 53(1)
(b)
.
Interim relief restraining the respondent from finalising the list of
successful applicants pending the outcome of the review
proceedings,
could have been sought. In this manner the appellant would have been
informed in advance of the respondent’s
reasons for the
decision and enabled to properly formulate her challenge to the
rejection of her application. The need for changes
to be made to the
appellant's challenge to the respondent's decision during the course
of the litigation, could have been avoided.
[10]
For these reasons the appellant should be ordered to pay the
respondent's costs. The issues raised were not complex and did
not
justify the employment of two counsel.
[11]
In the result the following order is made:
The
appeal is dismissed with
costs.
_________________________
K G B Swain
Judge of Appeal
_________________________
Y T Mbatha
Acting Judge of
Appeal
Molemela
AJA
[12]
I have had the benefit of reading the majority judgment of my
colleagues Swain JA and Mbatha, AJA. I agree that the appeal
must
fail. I also agree, on the same reasoning adopted by the majority
judgment, that the
Biowatch
principle is not applicable in this matter. I, however, disagree with
the majority judgment’s reasoning and order relating
to the
costs of the appeal. It is appropriate to preface my reasoning with
the reiteration of the applicable legal principles to
cost awards.
[13]
It is well established that a court has a discretion in relation to
the award of costs. In
Ferreira
v Levin NO & others,
[2]
Ackerman J said:
‘
The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted is in
the discretion of the presiding judicial officer,
and the second that
the successful party should, as a general rule , have his or her
costs. Even this second principle is subject
to the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or
her costs.
Without
attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of their costs can depend
on
circumstances such as for example, the conduct of parties, the
conduct of their legal representatives, whether a party achieves
technical success only, the nature of the litigants and the nature of
the proceedings . . .
If
the need arises the rules may have to be substantially adapted; this
should however be done on a case by case basis
.’
(My
emphasis.)
Indeed,
even a court of Appeal has a wide discretion on the question whether
a successful appellant should be awarded costs.
[3]
[14]
As I will demonstrate hereunder, this case is a perfect illustration
of how the facts of a particular case, cumulatively considered,
may
justify a deviation from the general rule that costs must follow the
result.
[15]
It is necessary to give a brief background about the respondent’s
admission policy. It is common cause that ‘Annexure
D’
constitutes the respondent’s published policy. It is evident
from Annexure D that clause 3 thereof outlines
three categories
of ‘mature students’ who qualify for admission under
categories 3a, 3b and 3c. It is common cause
that the category
applicable to the appellant is Clause 3a of Annexure D. This clause
describes mature students as follows:
‘
Candidates
who have completed the Matriculation/Grade 12 examination and
exceeding the minimum standards for entry into the MBChB
programme as
defined above; and have done a year or more of a degree course at a
recognised university in South Africa; and achieved
outstanding
results (Open). Twenty five percent (10 students)
will
be
from this open competitive category’.
(My
emphasis.)
[16]
In its answering affidavit, the respondent averred that the selection
policy and criteria it applied to the appellant’s
application
were, as specified in clause 3 of Annexure SC3. That clause reads as
follows:
‘
Mature
students are candidates who have completed the Matriculation/Grade 12
examination and exceeding the minimum standards for
entry into the
MBChB
programme
as defined above; and have done a year or more of a degree course, at
a recognised university in South Africa; and achieved
outstanding
results; Mature students will comprise 20% (40 students) of the
class; 50% of the mature students (20 students) will
be from the BSc
and BMedSc access programmes (reflecting Quintile 1 and 2
students) and selected in the different racial
groups. Twenty five
per cent (10 students) will be from BSc/BMedSc graduates and 25 per
cent (10 students) will be from Health
Science related degrees, open
competitive category.’
[17]
The respondent contended that there is no discrepancy between
Annexures D and SC3. The High Court found that the discrepancies
between the policy in Annexure D and the one in Annexure SC3
pertained only to the ‘layout’ of the policy. It also
found that despite any variations in the wording of Annexure D and
Annexure SC3, the qualification for the open category is the
same.
For the reasons discussed below, I disagree.
[18]
A very brief discussion of the trite principles applicable to
interpretation of documents is apposite. It is well-established
that
when interpreting a document, it is necessary to consider the
language of the provision in the light of the ordinary rules
of
grammar and syntax. The words used must be read in the context of the
document as a whole and in light of all relevant circumstances.
Where
the words in the documents are capable of more than one meaning, a
sensible meaning should be preferred over one that undermines
the
apparent purpose of the document.
[4]
[19]
Having read the respondent’s policy, it is rather self-evident
that category 3a includes graduates and under-graduates
of any
degree, which means that students who are pursuing non-health-related
degrees are also entitled to be considered. Importantly,
category 3a
stipulates that 25 per cent (10 students) of the students ‘will
be’ selected from this ‘open competitive
category’
and thus guarantees consideration of students from this category.
Clauses 3b and 3c specifically mention the degrees
from which
prospective students will be selected, namely BSc and BMedSc access
programmes (clause 3b); and BSc/BMedSc graduates
from Health Science
degrees (clause 3c). A purposive interpretation of clause 3 of
Annexure D, which sets out three distinct categories,
leads me to
conclude that the provisions of that policy are intended to grant
access to prospective medical students from a diverse
educational
background.
[5]
[20]
In my view, category 3a of ‘mature students’ embraces
this diversity by accommodating students whose matric results
exceeded the minimum standards for entry into the MBChB programme but
are not registered for the degrees mentioned in clause 3b
or 3c of
Annexure D, for example, students who are registered for
non-health-related degrees such as Engineering, Veterinary Science,
Actuarial Science, and Commerce.
[21]
Ironically, a sensible interpretation of clause 3 of Annexure D is
eloquently articulated in the Respondent’s heads of
argument. I
can do no better than to quote this interpretation
verbatim
:
‘
20.
The category 3a includes all candidates that “have done a year
or more of a degree course”.
That “includes” degree
complete students not falling under categories 3b and 3c’. [The
footnote to this paragraph
reads: this is most easily understood when
one considers a hypothetical commerce or engineering graduate who
would undoubtedly
not qualify under section 3c.]
21.
The interpretation for which the appellant contends would necessarily
exclude from access
to the medical school under any circumstances,
degree complete students not falling in categories 3(b) and 3(c).
22.
That is not a sensible interpretation and should be rejected.’
[22]
Although the respondent did not persist with nor disavow this
argument during the hearing of the appeal, I am of the view that
the
interpretation postulated above is indeed the most sensible one in
respect of clause 3 of Annexure D as it embraces students
from a
diverse educational background. Regrettably, this laudable
inclusiveness is conspicuously absent from clause 3 of Annexure
SC3
because the latter does not cater for undergraduates or graduates
from non- health- related degrees. Furthermore, it also does
not
extend the same guarantees granted by Annexure D. In my view, clause
3 of Annexure SC3 is more exclusionary and cannot be a
sensible
interpretation of the respondent’s published policy.
[6]
[23]
I am of the view that the interpretation attached by the respondent
to its policy, as reflected in clause 3 of Annexure SC3,
‘undermines
the purpose’
[7]
of the
inclusionary stipulations of clause 3a of Annexure D. The
discrepancies between these two policies bear testimony to the
ambiguity in the respondent’s undergraduate selection criteria.
Given these circumstances, the appellant’s contention
that the
‘subtle alteration of the words’ in clause 3 of Annexure
SC3 has resulted in the policy leading to different
consequences than
clause 3a of Annexure D, is not misplaced. Similarly, her contention
that an ambiguity in the policy may be prejudicial
to other students
is not unfounded.
[24]
Another important consideration in this matter is that in the
exchange of correspondence that preceded
the
commencement of litigation, the respondent advised the appellant that
the selection criteria it had applied to the appellant
were in
accordance with clause 3 of Annexure D. As correctly pointed out in
the majority judgment,
s
37(2)
of the
Higher Education Act enjoins
the council of a university
to publish its admission policy and to make it available on request.
T
he
appellant’s founding affidavit was prepared on the acceptance
that clause 3 of Annexure D was the applicable policy. It
was only in
its answering affidavit that the respondent unveiled Annexure SC3 to
the appellant. It is therefore not difficult to
understand why the
appellant took issue with clause 3 of Annexure SC3 for the first time
in her replying affidavit. It is for this
reason that I hold the view
that the majority judgment’s criticism of the appellant for
making new allegations concerning
clause 3 of Annexure SC3 in the
replying affidavit is, with respect, unjustified.
[8]
[25]
I have already alluded to the material discrepancies between Annexure
D and Annexure SC3. Under such circumstances, it is not
inconceivable
that the appellant could have pleaded her case differently if
Annexure SC3 had been disclosed to her before the commencement
of the
litigation. I am also of the view that the finding of the majority
judgment that the appellant could have invoked the procedures
laid
down in Rule 53 of the Uniform Rules to obtain certain documents is,
with respect, overly technical. For example, it would
have been
pointless for the appellant to invoke Rule 53 merely to obtain a
policy that the respondent had already furnished to
her by way of
correspondence.
[26]
Furthermore, the nature of the right the appellant was seeking to
protect is another important consideration. Her litigation
was not in
pursuit of a commercial interest; rather it was in a bona fide
pursuit of admission to her preferred field of study.
In the broader
scheme of things, her litigation was about access to education.
Moreover, it was not based on spurious grounds,
as the respondent had
previously admitted under-graduates on the strength of the provisions
of clause 3a of Annexure D.
[27]
Despite the fact that the outcome sought by the appellant in her
application would have been for her sole benefit, her application
served to highlight the flaws attendant on the interpretation of
Annexure SC3, which have already been canvassed earlier in this
judgment. The appellant’s litigation exposed the potential
prejudice that some prospective medical students who fall within
the
category of ‘mature students’ may suffer as a result of
the ambiguity of the respondent’s admission policy.
This
litigation therefore raised an important matter of broad concern.
[28]
Furthermore, the appellant decided to litigate as a last resort,
having personally engaged the respondent’s officials
before
seeking the intervention of the Students Representative Council
(SRC). Several consultations were held between the SRC delegation
and
the respondent’s officials: correspondence was exchanged. Sight
must not be lost of the fact that the appellant is a
19 year old
fulltime student. She stated that her litigation was funded by her
parents. She also disclosed that the reason she
prefers to study at a
medical school in Durban is because her parents are not wealthy and
would thus not afford to pay for her
accommodation if she were to
study elsewhere. The fact that the appellant is evidently a person of
modest financial means is not
an irrelevant consideration, given all
the circumstances of this case.
[9]
[29]
Having considered all the facts of this case, I am of the view that
mulcting the appellant with costs may discourage those
who may
legitimately wish to challenge the respondent’s policy on other
grounds. This may have an unintended chilling effect
on access to
justice. Such an order would militate against the ‘just and
equitable’ remedy envisaged in Section 8(1)
(f)
of the Promotion of Administration Justice Act 3 of 2000, which
dictates that costs be determined in a manner that is fair to both
parties. For all the reasons alluded to above, I am of the view that
there are special circumstances that justify a departure from
the
general rule that costs must follow the event. I would therefore make
no order as to the costs of the appeal.
_________________________
M B Molemela
Acting Judge of
Appeal
Swain
JA
[30]
I have had the benefit of reading the dissenting judgement of
Molemela AJA on the issue of the award of costs in the appeal
to the
respondent. Central to the reasoning in the dissent is that because
of the alleged ambiguity between annexures D and annexure
SC3, in
which the admissions policy of the respondent was set out, the
appellant's application ‘served to highlight the flaws
attendant on the interpretation of annexure SC3 . . .’ and
‘exposed the potential prejudice that some prospective medical
students who fall within the category of "mature students"
may suffer as a result of the ambiguity of the respondent's
admission
policy.’
[31]
As I understand the argument, it is that the alleged ambiguity in the
respondent's admission policy was partially to blame
for the
institution by the appellant of these proceedings, was the cause of
the appellant only taking issue with the provisions
of annexure SC3
in her replying affidavit and if annexure SC3 had been disclosed to
the appellant before the commencement of the
litigation ‘it is
not inconceivable that the appellant could have pleaded her case
differently’. For these and other
reasons, it is concluded that
the appellant should not be ordered to pay the costs of the appeal.
[32]
On appeal both parties accepted that there was no material difference
between annexure D and annexure EC3. This was made clear
well in
advance of the hearing. The appellant in her heads of argument
submitted that, ‘As aforesaid, we contend that annexure
D
applied and that, in any event, there is no material difference
between annexure D and annexure SC3.’ The same view was
advanced in the respondent's heads of argument where the following
submission was made, ‘In the circumstances of this matter,
"SC3" appears to be a minor redrafting of annexure "D"
with no material discrepancy between the two and only
a slight
reordering of language.’ In argument before this court, any
alleged ambiguity between these annexures was not referred
to, nor
relied upon, by either counsel. It is therefore plain that the
alleged ambiguity was not relied upon by the appellant as
a ground of
appeal and did not serve as a reason for challenging the decision on
appeal. Although the alleged ambiguity may have
served as an argument
for altering the costs order made by the court a quo, it can have no
bearing upon the costs of the appeal,
which the dissent has as its
objective.
[33]
In addition the only argument advanced by the appellant as to why she
should not be ordered to pay the costs of the appeal,
was that the
Biowatch principle was applicable. Molemela AJA agrees with the view
of the majority that this is not so. None of
the other grounds relied
upon by Molemela AJA, to justify no order being granted as to the
costs of appeal were relied upon by
the appellant. The respondent was
accordingly never afforded an opportunity to deal with any of these
grounds.
[34]
I disagree with the contention of Molemela AJA that ‘it would
have been pointless for the appellant to invoke rule 53
merely to
obtain a policy that the respondent had already furnished to her by
way of correspondence.’ As pointed out in the
judgement, rule
53 could have been used to obtain the respondent's reasons for
rejecting her application, as well as any documentation
forming part
of the record of the admissions process. The object of such a
procedure would never have been the pointless exercise
of using rule
53 to obtain a copy of the policy, which the appellant already had.
In this manner the appellant would have been
enabled to properly
formulate her challenge to the rejection of her application.
[35]
I also take issue with the conclusion of Molemela AJA that, ‘It
is for this reason that I hold the view that the majority
judgement’s
criticism of the appellant for making new allegations concerning
clause 3 of annexure SC3 in the replying affidavit
is, with respect,
unjustified.’ The only reference to the replying affidavit of
the appellant in the judgment was in the
context of an allegation by
the appellant, that the application of a ranking system by the
respondent did not form part of the
respondent's admissions policy.
This was referred to in the judgement in order to highlight the
distinction between this argument
(which was abandoned) and the
argument advanced on appeal by the appellant, namely that the
respondent had failed to disclose in
advance how it applied this
ranking policy. As pointed out in the judgement, the latter argument
was never raised in the application
papers. No criticism was directed
at the appellant in this context, for raising this argument in reply.
[36]
The fact that the litigation was not in pursuit of a commercial
interest but rather a bona fide pursuit of admission by the
appellant
to her preferred field of study, and was therefore about access to
education, cannot on all of the evidence be regarded
as a determining
factor. Although it is true that the appellant is 19 years old and
dependent upon her parents, (who she describes
as ‘not
wealthy’) to fund the litigation, what must also be considered
is that the respondent is reliant upon and administers
public funds
to attain its objectives.
[37]
I disagree with the conclusion that ‘mulcting the appellant
with costs may discourage those who may legitimately wish
to
challenge the respondent's policy on other grounds. This may have an
unintended chilling effect on access to justice’.
No other
grounds were raised by the appellant as a basis for challenging the
respondent's policy. The concern raised is not based
on any evidence
and amounts to unjustified speculation.
[38]
For these reasons I disagree with the conclusion of Molemela AJA that
no order should be made as to the costs of the appeal.
_________________________
K G B Swain
Judge of Appeal
Appearances
For
the Appellant:
G Marcus SC with A J Boulle
Instructed
by:
Pather
& Pather, Durban
Claude
Reid Inc., Bloemfontein
For
the Respondent:
A J Dickson SC with P J Wallis
Instructed
by:
Shepstone
and Wylie, Durban
Webbers,
Bloemfontein
[1]
Swissborough
Diamond Mines (Pty) Ltd & others v Government of the Republic of
South Africa & others
1999
(2) SA 279
(T) at 323 F-J and 324A.
[2]
Ferreira v
Levin NO & others; Vryenhoek & others v Powell NO &
others
[1996] ZACC 27
;
1996
(2) SA 621
(CC) para 3.
[3]
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
2003
(1) SA 204
(T) at 215-216.
[4]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para (18).
[5]
Section 37(3) of
the Higher Education Act 55 of 1999 states: ‘The admission
policy of a public higher education institution
must provide
appropriate measures for the redress of past inequalities and may
not unfairly discriminate in any way.’
[6]
See s
37(3) of the Higher Education Act above.
[7]
See
Natal
Joint Municipal Pension Fund
above
para
(18).
[8]
Lagoon Beach
Hotel (Pty) Ltd v Lehane NO & others
2016
(3) SA 143
(SCA) para 15-16;
Pretoria
Portland Cements Co Ltd v Competition Commission & others
2003 (2) SA 385
(SCA) para 63.
[9]
Tlale &
Others v The University of the Witwatersrand & Another
(JHC)
unreported
case no 38337/2016 of 3 November 2016 para 53.