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[2021] ZAMPMBHC 54
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Makamu and Others v Minister of Police and Another (1359/2017; 1360/2017; 1361/2017) [2021] ZAMPMBHC 54 (7 October 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 1359/2017
CASE
NUMBER: 1360/2017
CASE
NUMBER: 1361/2017
(1)
REPORTABLE: YES/NO
(2)
OF INTREST TO OTHER JUDGES: YES/NO
(3)
REVISED/
In the matter between:
MPENDULO
MAKAMU
First Applicant
SONENI VUSI
MHLABANE
Second Applicant
ABBSEY HASWELL
NKOSI
Third Applicant
and
THE MINISTER OF
POLICE
First Respondent
THE NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS Second Respondent
JUDGMENT
GREYLING-COETZER
AJ
[1]
This
is an application wherein the applicants seek condonation for their
failure to service the statutory required notice of their
intention
to institute legal proceedings against the second respondent within
the period of 6 (six) months, or at all, from the
date on which the
debt became due.
[1]
[2]
It appears to be common cause that the
applicants were arrested on 8 November 2013 on a charge of Murder of
Constable Mabuza and
the charges were withdrawn on 28 January 2015.
[3]
It is the applicants’ contentions
that they were ordered to appear in court on 24 January 2014, during
which court appearance
the prosecutor enrolled the matter and
proceeded with the criminal prosecution of the applicants, in
circumstances where it was
clear that there were no prospects of a
successful prosecution.
It has been alleged
that applicants’ bail applications were opposed by the second
respondent, therefore resulting in their
continued detention until 3
May 2014 pursuant to bail being granted.
According
to the applicants’ their
malicious
prosecution continued, as they were made to attend several further
court hearings until 28 January 2015, on which day
the second
respondent withdrew all the charges against the applicants.
[4]
Per the applicants’ they on 4 June
2015 consulted their attorneys, who prepared the statutory notices to
both respondents.
Although the first respondent received its
statutory notice, the second respondent denies having received same,
and no proof of
dispatch thereof was placed before court.
[5]
On 12 July 2017 a summons was issued and served on the respondents.
The applicants each claim R1,2 million from the first
respondent, and
R521 040.00 from the second respondent for malicious prosecution. The
respondents pleaded to the summons in respect
of the second applicant
during September 2017 and in respect of the first and third
applicants during March 2018 . All three pleas
were amended during
November 2018.
[6]
The initial and amended pleas in respect of the first and third
applicant contained the special plea of non-compliance
with the Act.
The initial plea in respect of the second applicant did not raise
non-compliance with the Act and this was only pleaded
in the amended
plea filed during November 2018.
[7]
The cause of action arose during January 2015, which dictates that
the required statutory notices were to be given by
July 2015. From
the applicants’ versions they were aware that the statutory
notices had to be given, through the conduct
of their attorneys of
record and later having been alerted by the various pleas filed in
the applicants’ actions. The applicants
knew by respectively
March 2018 and November 2018 that they had to apply for condonation
in terms of the Act.
[8]
Section 3 of the Act provides as follows:-
“
3
Notice of intended legal proceedings to be given to
organ of state
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of the state
unless-
(a)
the creditor has given the organ of state in question
notice
in writing of his or her or its intention to institute legal
proceedings in question; or
(b)
the organ of the state in question has consented in writing to
the institution of that legal proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
(2)
A notice must-
(a)
within
six months from the date on which the debt
became due
, be served on the organ of state in accordance
with section 4(1); and
(b)
briefly set out-
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of the
creditor.
(3)
For purposes of subsection 2(a)-
(a)
a debt may not be regarded as being due until the creditor has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt
, but a creditor must be regarded as
having acquired such knowledge as soon as he or she or it could have
acquired it by exercising
reasonable care, unless the organ of state
wilfully prevented him or her or it from acquiring such knowledge;
and
(b)
a debt referred to in section 2(2)(a), must be regarded as having
become due on the fixed date.
(4) (a)
If an organ
of state relies
on a creditor’s failure to serve a notice
in terms of subsection 2(a), the creditor
may apply to a court
having jurisdiction for condonation of such failure
.
(b) The court may
grant an application referred to in paragraph (a) if it is satisfied
that-
(i)
the debt has
not been extinguished
by
prescription;
(ii)
good cause
exists for the failure by the
creditor; and
(iii)
the organ of state was not
unreasonably prejudiced
by the failure.
(c)
If an application is granted in terms of paragraph (b), the court may
grant leave to institute
the legal proceedings in question, on such
conditions regarding notice to the organ of state as the court may
deem appropriate.”
[9]
Since the summons was served on the second respondent within 3
(three) years after the cause of action arose, the question
of
prescription does not feature in this condonation application. Only
the questions pertaining to good cause shown and prejudice
to the
respondents need to be considered.
[10]
There are however other issue which calls for consideration. The
first being that the application for condonation was
only filed on 18
March 2019, being respectively 12 months and 5 months after the first
and third applicants, and second applicant
ought reasonably have
become aware that such an application is necessary.
[11]
The second respondent raised that the founding affidavit contains
hearsay evidence and the replying affidavit is tainted
by new matter
calling for it to be struck out. The applicants in turn and during
argument raised that the second respondents answering
affidavit and
confirmatory affidavits are fatally defective and amount to a
nullity.
[12]
It was argued by Mr Shakoane SC that the answering affidavit contains
a fatal irregularity, in that the answering affidavit
had been
commissioned by a person who had an interest in the matter, founded
thereon that such person is employed within the same
office as the
deponent. For this reason it was argued that the answering- and
confirmatory affidavits ought to be disregarded.
Reliance was placed
on the regulations governing the Administering of Oath or Affirmation
GNR. 1258 of 21 July 1972, more particularly
Regulation 7.
[13]
Regulation 7(1) states as follows:-
“
A Commissioner
of Oath shall not administer an oath or affirmation relating to a
matter in which he has an interest.
”
[14]
In response it was argued on behalf of the second respondent that
Regulation 7(1) needs to be considered in its entirety,
as
sub-regulation (2) provides an exception to the general rule provided
for in sub-regulation (1). To this effect sub-regulation
(2) states
as follows:-
“
The prohibition
in sub-regulation (1) shall not apply to any affidavit or declaration
mentioned in the schedule
.”
[15]
Per the
schedule, a declaration taken by a Commissioner of Oaths who is not
an attorney and whose only interest therein arises out
of his/her
employment and in the course of his/her duty, is therefore exempted
from the general rule. This position was recently
confirmed by the
Supreme Court of Appeal in the matter of
Kouwenhoven
v Minister of Police and Others.
[2]
[16]
Ex facie
the answering- and confirmatory affidavits, the
Commissioner of Oath is one Mr Jan Daniël Schmidt, Chief of
Staff at the National
Director of Public Prosecution. There is no
evidence before me to suggest that Mr Schmidt has an interest in the
matter other than
through his employment by the office of the
National Director of Public Prosecution. The challenge to the
affidavits on this basis
must fail.
[17]
The second respondent sought a striking out of the hearsay evidence
contained in the founding affidavit, as well as the
“new”
matter contained in the applicants’ replying affidavit. In this
respect it was contended by the applicants
that in their replying
affidavit, the applicants’ attorney of record despatched the
statutory notice and that, although their
attorney of record received
an ‘acknowledgement of receipt’ from the first
respondent, the applicants had been informed
by their attorney of
record that they were unable to locate the proof of postage of the
Section 3 notice posted to the second respondent,
and that this was
probably due to an administrative error or a misfiling within the
offices of the applicants’ attorneys.
[18]
The applicants further allege that they were informed that since the
letters were written on the same day, it is standard
practice at
their firm to have sent both letters off simultaneously to be posted.
The applicants failed to attach a confirmatory
affidavit by their
attorney of record to this effect, nor did the applicants make any
attempt to bring the hearsay evidence within
the ambit of the
Law of
Evidence Amendment Act 45 of 1988
. it was argued further that
notwithstanding the fact that the applicants were made aware of the
aforesaid shortcoming, they failed
to deal therewith in their
replying affidavit.
[19]
It was
argued that the second respondent is prejudiced, in that it would be
expected to defend a case in circumstances where there
is no
admissible evidence having been placed before court. Reliance was
placed on the matter of
Mgobhozi
v Naidoo N.O. and Others
3 BLLR 242
(LAC). It is trite that the prejudice a party suffers when
hearsay evidence is allowed is procedural prejudice. Differently put
the second respondent would not have the benefit of cross
examination.
[3]
[20]
The applicants, in their notice of motion, seek:-
“
1.
That applicants’ non-compliance with Section 3(1)(a)(b), and
2(a) of the Institution of Legal
Proceedings Against Certain Organs
of State Act 40 of 2002 (‘the Act’) be condoned.
2.
That the applicants are granted leave to proceed with the proceedings
in the main action
which have already been instituted in this matter.
3.
That the applicants are granted leave to proceed with the proceedings
herein as though the
applicants have always been compliant with
Section 3(1)(a)(b), and 2(a) of the Act mentioned in paragraph 1
supra
.”
[21]
From the relief sought it is clear that the applicants accept that
they did not comply. The reason for not complying
is then set out in
paragraphs 10.5, 13.1 and 13.2 of the founding affidavit. In other
words the applicants say that they believed
that these notices were
sent. However it is common cause alternatively not seriously disputed
that that the second respondent did
not receive same. The content of
the affidavit therefor says nothing more than it was done
alternatively we thought it was done,
but we can’t prove it.
[22]
Consequently, paragraph 10.5 does not constitute hearsay evidence,
but paragraphs 13.1 and 13.2 does and are struck out
as
inadmissible. In my view and as alluded to above this does not
detract from the case of the applicants as the relief sought
is in
any event wide enough to cover the circumstances that the statutory
notice were not sent at all.
[23]
It was
further argued on behalf of the second respondent that the applicants
have attempted to make out a case in their replying
affidavit by
including averments which ought to have been included in their
founding affidavit. In this respect it was argued that
the
circumstances in respect of the prospect of success, and the reasons
for the delay in lodging of this application, constitute
new
matter. In respect of these contentions the second respondent relied
on the matter of
Juta
& Co Ltd and Others v De Kooker and Others
[4]
where the court accepted and quoted with approval what was said in
the headnote of
Shakot
Investments (Pty) Ltd v Town Council of Borough of Stanger
[5]
:-
“
In
consideration of the question whether to permit or to strike out
additional facts or grounds for relief raised in the replying
affidavit, a distinction must, necessarily, be drawn between a case
in which the new material is first brought to light by the
applicant
who knew of it at the time when his founding affidavit was prepared
and a case in which facts alleged in the respondent's
answering
affidavit reveal the existence or possible existence of a further
ground for relief sought by the applicant. In the latter
type of case
the Court would obviously more readily allow an applicant in his
replying affidavit to utilise and enlarge upon what
has been revealed
by the respondent and to set up such additional ground for relief as
might arise therefrom
.
[24]
The heads of argument filed on behalf of the second respondent did
not contend that the second respondent was prejudiced
by the
introduction of this new matter. The complaint seems to be that the
new matter introduced by the applicants relates to evidence
which
seeks to support the applicants’ cause of action, and therefore
it ought to have been within the applicants’
knowledge at the
time of drafting the founding affidavit.
[25]
The
position in our law is that an applicant must stand or fall by the
facts alleged in its founding affidavit. In the matter of
Pountas
Trustee v Lahanas
[6]
it was held that the facts contained in the founding affidavit form
the main foundation of the application. These are the facts
which a
respondent is called upon either to affirm or deny. Since this is so,
it is not permissible to make out new grounds for
the application in
a replying affidavit. These principles have been repeated in numerous
judgments over the years.
[26]
When
the applicants in the present matter realised their omission in this
respect (when it was raised by the second respondent),
the applicants
proceeded to file a replying affidavit containing a belated attempt
to explain their delay. However, a common sense
approached based on
want of prejudice precludes the exclusion
from
consideration.
[7]
Accordingly
the application to strike out is dismissed.
[27]
The principle relating to condonation has been become well
established in our law. The degree of non-compliance, the
explanation
there for, the importance of the particular case and the avoidance of
unnecessary delay in the administration of justice
are amongst the
factors which usually weigh with the court in considering an
application for condonation.
[28]
It was held
in
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292 (SCA)
[8]
as
follows:-
“…
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.”
[29]
In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[9]
it was found that in terms of Section 3(4)(b) a court may grant
condonation if it “
is
satisfied”
that
the three requirements have been met. In practical terms this means
the overall impression made on a court by the facts set
by the
parties. The learned judge continued to state that in general terms
the interest of justice does play an important role
in condonation
applications.
[30]
It is against the backdrop of the aforesaid principles that the
present application has to be adjudicated. The applicants’
case
can essentially be summarised as follows:
30.1
On 4 June 2015, when the applicants consulted
their attorney of
record, they gave instruction to sue, and their attorney of record
wrote the statutory notices to the first-
and second respondents.;
30.2
The applicants are unaware of any unreasonable
prejudice which can be
suffered by the second respondent as a result of not receiving the
statutory notice, as the summons was
duly served (during 2017) on the
second respondent, and the claim was defended by the second
respondent, filing various pleas on
the merits;
30.3
The applicants’ case is amplified
in their replying affidavit
wherein the applicants state that this application was only launched
pursuant to the matter being postponed
during November 2018. The
applicants were informed that they needed to attend the offices of
their attorney of record in order
to sign the affidavits in respect
of the condonation application. It is further stated that:-
“
The following
week we were urgently called to Middelburg for temporary work and
could not make it to the attorney’s firm.
When we were called
we agreed that we shall come during the December holidays for such
purpose but we were delayed and by the time
we returned, we could not
get hold of our attorney of record as the firm was closed and had
already gone on recess. In January
due to the work we lost contact
with each other and could not go to meet our attorneys
.”
30.4
It was further stated that the applicants
were unaware of the extreme
urgency until February 2019 when they were called by their attorneys.
However, the first applicant
did not get a chance to make
arrangements with the second- and third applicants, as he lost their
contact details, and therefore
only managed during mid-March 2019 to
get a hold of the second- and third applicants, where after they
proceeded to their attorney
of record to sign the affidavits.
[31]
In respect of prospects of success, it is submitted on behalf of the
applicants that the cause of action is not in dispute
as it is common
cause that the applicants were arrested, charged and the prosecution
against them was withdrawn.
[32]
The period of delay, alternatively the complete failure to deliver
the statutory notice to the second respondent, are
not the only
aspects which have to be considered, as the delay in filing the
condonation application is equally important. If,
for instance, it is
found that there is no reasonable and acceptable explanation for the
delayed filing of the condonation application,
then it would follow
that the application for condonation as a whole cannot succeed.
[33]
The aforesaid position is clear from the
Rance
matter (
supra
),
wherein the Supreme Court of Appeal held that “
condonation
must be applied for as soon as the party concerned realises that it
is required
.”
[34]
In
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus
Curiae
)
[10]
the Constitutional Court held that an applicant must give a full
explanation for the delay and the explanation must cover the entire
period of delay.
[35]
In the present application the applicants were required to serve the
statutory notices by July 2015. From the facts it
appears that
although the statutory notices were drafted, to date hereof the
statutory notice had not been served on the second
respondent.
[36]
The
prescribed time periods in litigation seek to obviate inordinate
delays which compromise the interest of justice insofar as
time is
the worst enemy of human memory. The statutory notice prescribed by
the Act allows the Organ of State time to investigate
the complaint
and to possibly agree to payment or settlement without incurring the
cost of litigation.
[11]
[37]
In respect of the post notification delay, for as far as the
applicants were under the impression that the statutory
notices were
indeed sent, said impression was dispelled by March 2018 in respect
of the first- and third applicants, and by November
2018 in respect
of the second applicant. There is no explanation before court for the
period March 2018 to November 2018 in respect
of the first- and third
applicants.
[38]
The explanation relied on only deals with the circumstances
applicable to all the applicants from November 2018 to March
2019 and
is unsatisfaction and devoid of specificity. The applicants (or at
the very least the first applicant who confirms having
been in court
on the date of hearing) knew a condonation was needed, they were told
to attend to their attorneys for this purpose.
When they were called,
the date of which is unknown, they agreed to do it in December 2018.
This was already a month after the
trial was postponed for purpose of
the condonation. No detail have been provided on when they return
from Middelburg or when their
attorneys closed for recess. It not
explained why the applicants needed to go together or how they lost
contact with one another
resulted in an inability to attend to their
attorneys for signature.
[39]
There is further no explanation why the notice of motion is dated
January 2019 , the founding and confirmatory affidavits
deposed to in
February2019 but the application was only launched a month later on
18 March 2019. Nor has the applicants attorneys
of record confirmed
or explained the time line in respect of which the application was
drafted and steps taken by them leading
up to the signature. The
delay is therefore not explained fully and in such a manner that the
explanation covers the entire period
of the delay, in order for a
Court to appearance how the delay came about.
[40]
Mindful of
the fact that not only the explanation for the delay, but also the
prospect of success in the main action, are both important
in
determining whether condonation should be granted. Strong merits or a
prospect of success will mitigate the fault of an applicant
in
setting out a poor explanation for the delay.
[12]
A court may then exercise its discretion in favour of the applicant,
despite the poor explanation for the delay.
[41]
In the present case the applicants aver that they were arrested and
charged in circumstances where it was clear that
there were no
prospects of success in their prosecution. Further, the second
respondent opposed the applicants’ bail application
and
continued to require that the applicants attend several further court
appearances until the prosecution against the applicants
were
withdrawn.
[42]
The main contention is however the absence of prospect of a
successful prosecution. The applicants do not address why
they
consider the prospects to be absent save to base same on the fact
that the charges were withdrawn.
[43]
It was
argued on behalf of the applicants that it is trite that once arrest
and detention are admitted, the
onus
of proving the lawfulness thereof rests on the State.
[13]
As such, any failure to adequately deny aforementioned, including an
unlawful prosecution, must result in a finding (for the purposes
of
this application) that the applicants showed a
prima
facie
case against the respondents.
[44]
It was further argued that the current application is aimed at
condonation and not at a final determination of the cause
of action.
To this extent the eventual
onus
which would rest on the
applicants in the main action is to prove the required elements of
malicious prosecution, being (a) that
the respondents set the law in
motion; (b) that the respondents acted without reasonable and
probable cause and (c) that the respondents
acted with malice, and
indeed that the prosecution of the applicants has failed.
[45]
The prospect of success is only dealt with in the applicants’
replying affidavit, and nothing more is said other
than that the
applicants were arrested and the prosecution was withdrawn.
Peculiarly it is stated that the cause of action, which
is the basis
of the applicants’ claim, is not in dispute. It is unclear as
to what is meant by the aforesaid, but having
regard to the
applicants’ particulars of claim, only the following has been
alleged:-
“
7.1
The plaintiff was ordered to appear on court on 24 January 2014 while
he was in custody and the plaintiff
appeared in the Magistrate’s
Court B, Tonga under case number B650/13. The second defendant
through one of its prosecutors
enrolled the matter and proceeded with
the criminal prosecution of the plaintiff whereas it was clear that
there were no prospects
of successful prosecution.
7.2
The matter was later withdrawn as it was clear that there were no
prospect of successful prosecution.
The plaintiff has engaged the
services of legal representative who had appeared several times at
the court before this matter was
withdrawn.
7.3
In the light of aforegoing the plaintiff claims from the second
defendant in the amount of R521
040.00 …
”
[46]
The applicants did not alleged that aforesaid
allegations as set out in the particulars if found to be true, would
entitle them
to judgment. Nor were any facts set out to suggest that
those allegations could be substantiated by the applicants in some or
other
way.
[47]
What is clear from aforesaid is that on the pleadings as they stand,
the applicants inter alia did not allege that the
second respondent
acted maliciously and that it acted with the intention to injure the
applicants. It was held as follows in the
matter of
Rance
(
supra
):
“
The court must
be placed in the position to make an assessment on the merits in
order to balance that factor with the cause of the
delay as explained
by the applicant. A porosity of detail on the merits will exacerbate
matters for the creditor who has failed
to fully explain the cause of
the delay. An applicant thus acts at his own peril when the court is
left in the dark on the merits
of the intended action, i.e. where an
expert report central to the applicant’s envisaged claim is
omitted from the condonation
papers.
”
[48]
The third requirement for condonation is for an applicant to prove
that a respondent did not suffer unreasonable prejudice
due to the
delay. It was explained in the matter of
Madinda
(
supra
)
as follows at par [12]:-
“
There are two
main elements at play in s 4(b), viz the subject's right to have the
merits
of his case tried by a court of law and the
right of an organ of state not to be unduly prejudiced by delay
beyond the statutorily
prescribed limit for the giving of notice.
Subparagraph (iii) calls for the court to be satisfied as to the
latter. Logically,
subparagraph (ii) is directed, at least in part,
to whether the subject should be denied a trial on the merits. If it
were not
so, consideration of prospects of success could be entirely
excluded from the equation on the ground that failure to satisfy the
court of the
existence of good cause precluded the
court from exercising its discretion to condone.
That
would require an unbalanced approach to the two elements and could
hardly favour the interests of justice. Moreover, what can
be
achieved by putting the court to the task of exercising a discretion
to condone if there is no prospect of success? In addition,
that the
merits are shown to be strong or weak may colour an applicant's
explanation for conduct which bears on the delay: an applicant
with
an overwhelming case is hardly likely to be careless in pursuing his
or her interest, while one with little hope of success
can easily be
understood to drag his or her heels. As I interpret the requirement
of good cause for the delay, the prospects of
success are a relevant
consideration. The learned judge a quo misdirected himself in
ignoring them.”
[49]
The applicants boldly contend that they are unaware of any prejudice
to be suffered by the second respondent. “Good
cause”
primarily concerns an applicant’s conduct and its motive,
whereas the absence of unreasonable prejudice shifts
the focus onto
the State Organ and the protection of its interest by receiving
timeous notice.
[50]
The second respondent alleges prejudice if condonation is granted, as
the memories of those who are available are no
longer reliable, as it
would have been in 2015 when the applicants’ claim for damages
allegedly arose. A period in excess
of 6 (six) years has passed since
the event which gave rise to the applicants’ claim.
[51]
It is further alleged by the second respondent that the file was
transferred from the office of the Director of Public
Prosecutions
(Pretoria) to Nelspruit, and that both the docket and the file are
incomplete in setting out the handling thereof.
There is nothing to
suggest that had the statutory notice been timeously served on the
second respondent, the docket would not
be in its current state and I
can therefore not agree with the second respondent’s
contentions, that it would suffer undue
prejudice.
[52]
The applicants have failed to set out good cause in that they failed
to properly explain the delay and failed to adequately
deal with the
prospects of success. I am therefore not persuaded, on an overall
impression, that the applicants have satisfied
the requirements set
out in Section 3(4) of the Act. Having concluded as above and as held
in
Madinda
(
supra
), the court does not have a
discretion to condone the non-compliance in circumstances where some
of the requirements are not met.
[53]
The following order is made:-
1. The application
is dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING:
31 August 2021
DATE
OF JUDGMENT:
07 October 2021
FOR
THE APPLICANTS:
Adv Shakoane SC with Adv Hugo
Instructed by Mpho
Mashiloane Attorneys
E-mail:
nst@mashiloaneatt.co.za
Ref:
Lit1409/Lit1424/Lit1426
FOR
THE FIRST RESPONDENT:
No appearance
FOR
THE SECOND RESPONDENT Adv
Mokhatla
Instructed by Du Toit,
Smuts & Partners
E-mail:
tboshoff@dtsnp.co.za
Ref:
STA196/0126/S5/18
STA196/0127/S6/18
STA196/0128/S7/18
[1]
Section
3(2)(a) of the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002 (“the Act”)
[2]
(888/2020)
[2021] ZASCA 119
(22 September 2021)
[3]
Giesecke
& Devrient Southern Africa (Pty) Ltd v Minister of Safety and
Security
2012
(2) SA 137
(SCA)
[4]
1994
(3) SA 499
(T) at 510F to H
[5]
1976
(2) SA 701 (D)
[6]
1924
WLD 62
[7]
Hidro-Tech
Systems (Pty) Ltd v City of Cape Town and Others
2010 (1) SA 483
(C) at para 81;
Smith
v Kwanonqubela Town Council
1999 (4) SA 947
(SCA) at par [15]
[8]
At
297H to J
[9]
2010 (4) SA
109
(SCA)
[10]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at par
[20]
[11]
Mohlomi
v Minister of Defence
1997 (1) SA 124 (CC)
[12]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 317
[13]
Mhaga
v Minister of Safety and Security
2001 All SA 534
(TK)