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[2017] ZASCA 122
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Long Beach Homeowners Association v Department of Agriculture, Forestry and Fisheries (South Africa) and Another (865/2016) [2017] ZASCA 122; 2018 (2) SA 42 (SCA) (22 September 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 865/2016
In
the matter between:
LONG
BEACH HOME OWNERS
ASSOCIATION
APPELLANT
and
DEPARTMENT
OF AGRICULTURE,
FIRST RESPONDENT
FORESTRY
AND FISHERIES
(SOUTH
AFRICA)
MINISTER
OF AGRICULTURE, FORESTRY
SECOND RESPONDENT
AND
FISHERIES (SOUTH AFRICA)
Neutral
citation
:
Long
Beach Home Owners Association v Department of Agriculture, Forestry
and Fisheries (South Africa) & another
(865/2016)
[2017] ZASCA 122
(22
September 2017)
Coram
:
Shongwe
AP, Saldulker, Swain and Mathopo JJA and Schippers AJA
Heard
:
25 August 2017
Delivered:
22
September 2017
Summary:
National
Forests Act 84 of 1998
–
ss 3(3)
(a)
3
>,
7(1)
(a)
and
7
(4) – licence to carry out prohibited activities in a
natural forest – meaning of ‘natural forests must not be
destroyed save in exceptional circumstances’ – nature of
discretion – rigid adherence to policy – improper
exercise of discretion – refusal of licence – review of
decision.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Kollapen
J sitting as court of first instance):
1
The appeal is upheld.
2
The first and second respondents are ordered to pay the appellant's
costs.
3
The order of the court a quo dismissing the appellant’s
application, with no order as to costs, is set aside and replaced
with the following order:
‘
(a)
The decision taken by the sixth respondent, the Department of
Agriculture, Forestry and Fisheries (South Africa) on 17 March
2014,
to refuse the application by the applicant in terms of s 7(4) of the
National Forests Act 84 of 1998 (the Act), for a licence
to carry out
one or more of the activities specified in s 7(1)
(a)
of the Act, is reviewed and set aside.
(b)
The application is referred back to the sixth respondent for
reconsideration and decision.
(c)
The sixth and seventh respondents are ordered to pay the applicant's
costs.’
JUDGMENT
Swain
JA (Shongwe AP, Saldulker and Mathopo JJA and Schippers AJA
concurring):
[1]
The subject
matter of the dispute between the parties to this appeal is a natural
forest, which was declared as such in terms of
ss 7(2) and (3) of the
National Forests Act 84 of 1998 (the Act) and is described as Eastern
Cape Dune Forest. The forest comprises
a sensitive dune forest
ecosystem and is a critical biodiversity area.
[2]
The source
of the dispute is that the owners of seven properties located within
the forest, represented by the appellant, the Long
Beach Home Owners
Association, wish to construct homes on their properties. Before
doing so, a licence has to be obtained in terms
of s 7(4) of the Act
from the first respondent, the Department of Agriculture, Forestry
and Fisheries, the executive head of which
is the second respondent,
the Minister of Agriculture, Forestry and Fisheries. The application
by the appellant for the requisite
licence was, however, refused by
the first respondent, by way of a letter dated 17 March 2014.
[3]
The reasons
furnished by the first respondent for the refusal of the licence were
as follows:
‘
1
. . . Section 3(3)
(a)
of the National Forests Act of 1998 (Act 84 of 1998) determines that:
"natural forests must not be destroyed save in exceptional
circumstances where, in the opinion of the Minister, a proposed new
land use is preferable in terms of its economic, social and
environmental benefits”. This principle not only applies to
trees, but to the natural forest ecosystem as a whole, including
undergrowth and wildlife, and even to disturbed forest ecosystems, as
determined by legal precedent.
2.
Residential development in natural forests is not considered an
exceptional circumstance.
This
confirms the Departmental position on the licence application
originally stated in a letter to you, dated 10 October 2012,
upon
which an extensive investigation was done of all relevant issues
raised, and also involving communication with affected parties
or
their representatives.’
[4]
Aggrieved
by the decision of the first respondent, the appellant launched an
application before the Gauteng Division of the High
Court, Pretoria
(Kollapen J). An order was sought reviewing and setting aside the
first respondent's decision and substituting
for that decision the
grant of the requisite licence to the appellant. In the alternative,
an order was sought referring the matter
back to the first respondent
for reconsideration. The court a quo, however, dismissed the
application, made no order as to costs
and then granted leave to
appeal to this court.
[5]
Central to
a resolution of the appeal is the interpretation of the provisions of
s 3(3)
(a)
,
read together with s 7(1)
(a)
of the Act:
The
heading to s 3 reads as follows:
‘
Principles
to guide decisions affecting forests’
Section
3(1)
(a)
provides that:
‘
(1)
The principles set out in subsection (3) must be considered and
applied in a balanced way –
(a)
in
the exercise of any power or the performance of any duty in terms of
this Act.’
Section
3(3)
(a)
provides that:
‘
(3)
The principles are that –
(a)
natural
forests must not be destroyed save in exceptional circumstances
where, in the opinion of the Minister, a proposed new land
use is
preferable in terms of its economic, social or environmental
benefits.’
Section
7 provides that:
‘
7
Prohibition
on destruction of trees in natural forests
(1)
No person may –
(a)
cut,
disturb, damage or destroy any indigenous tree in a natural forest; .
. .
except
in terms of –
(i)
a licence issued under subsection (4) . . .
(4)
The Minister may licence one or more of the activities referred to in
paragraph
(a)
or
(b)
of subsection (1).’
[6]
The
following definitions contained in s 2 of the Act are relevant in
interpreting these sections:
‘“
ecosystem”
means a system made up of a group of living organisms, the
relationship between them and their physical environment;
“
forest”
includes
–
(a)
a
natural forest, a woodland and a plantation;
(b)
the
forest produce in it; and
(c)
the
ecosystems which it makes up;
“
natural
forest”
means
a group of indigenous trees –
(a)
whose
crowns are largely contiguous; or
(b)
which
have been declared by the Minister to be a natural forest under
section 7(2);
“
tree”
includes
any tree seedling, sapling, transplant or coppice shoot of any age
and any root, branch or other part of it.’
[7]
The grounds
advanced by the appellant before the court a quo for the review of
the decision of the first respondent, were as follows:
7.1
Section 3(3)
(a)
of
the Act was not applicable to the appellant's application for a
licence, as this only applied where the applicant for a licence
seeks
to ‘destroy’ the natural forest. The appellant averred
that it did not intend ‘destroying’ the natural
forest.
At the worst it may have to ‘disturb’ some indigenous
trees.
7.2
As a result, the first
respondent did not have to consider the issue of ‘exceptional
circumstances’, in terms of s 3(3)
(a)
of the Act, which
only applied where the applicant for a licence intended to destroy a
natural forest. The first respondent in
deciding that ‘residential
development in natural forests is not considered an exceptional
circumstance’ had therefore
taken into account an ‘irrelevant
consideration’ in refusing the application. In addition, the
first respondent had
failed to take into account the expert evidence
tendered by the appellant that the development would not cause
‘significant
disturbance’ and that there would not be
‘destruction’ of the natural forest as a whole. The
decision accordingly
fell to be reviewed and set aside in terms of s
6(2)
(e)
(iii) of the Promotion of Administrative Justice Act 3
of 2000 (the PAJA). This section provides that a court has the power
to judicially
review an administrative action if ‘the action
was taken, because irrelevant considerations were taken into account
or relevant
considerations were not considered’.
7.3
In terms of s 6(2)
(d)
of the PAJA a court has the power to judicially review an
administrative action if ‘the action was materially influenced
by an error of law’. The appellant submitted that the decision
of the first respondent was ‘materially influenced by
an error
of law’ in the interpretation it had placed upon the provisions
of s 3(3)
(a)
of the Act. From the answering affidavit of the
first and second respondents, it is clear that the first respondent
interpreted
the sentence ‘. . . natural forests must not be
destroyed . . .’ to mean ‘
any
part of a forest
however small, and not a forest in its entirety’. In addition,
according to the first respondent, if smaller
trees had to be cut
and/or removed, such cutting ‘amounts to the destruction of
trees in a natural forest, and that would
lead to the destruction of
forest’.
7.4
The adoption by the first
respondent of the policy entitled ‘Policy Principles
and
Guidelines for Control of Development Affecting Natural Forests’
(the Policy) which provided that ‘[r]esidential
development is not considered to be exceptional circumstances’
resulted in the first respondent applying this principle invariably,
as a hard and fast rule in every case. The use of this principle as a
decisive factor and not simply as a guide, when considering
the
appellant's application, resulted in a failure by the first
respondent to properly exercise its discretion.
[8]
In summary,
the appellant's argument was that if the respondent had properly
exercised its discretion in terms of s 7(4) of the
Act, it would have
concluded that the natural forest was not going to be destroyed,
which meant that s 3(3)
(a)
was not applicable, and even if it was, exceptional circumstances
were present justifying the grant of the licence to the appellant.
[9]
The court a
quo did not decide the application on the basis that the first
respondent had failed to properly exercise its discretion,
but on the
basis that there was insufficient evidence to determine whether the
natural forest would be ‘destroyed’
by the development,
for the purposes of s 3(3)
(a)
of the Act. It held that in the absence of such a factual finding the
provisions of the section were not activated, ‘applicable’
or ‘triggered’.
9.1
In this approach the
reasoning of the court a quo was fundamentally flawed. Before
it
could be determined on the evidence whether natural forest would be
‘destroyed’, the section had to be interpreted
to
ascertain the proper meaning of this term. In the absence of this
exercise, no yardstick existed in terms of the section, against
which
the evidence could be measured. The crucial enquiry therefore was
whether the first respondent’s interpretation of
the section
was correct, namely that natural forest is destroyed for the purposes
of the Act, if ‘
any
part of a forest however small, and
not a forest in its entirety’ is destroyed.
[10]
The
erroneous approach of the court a quo is illustrated in the following
extracts from the judgment. It defined the issue for decision
in the
following terms:
‘
There
is a dispute between the parties as to whether [s 3(3)
(a)
]
has application, the stance of the applicant being that the proposed
development will not lead to the destruction of the forest
and
therefore [s 3(3)
(a)
]
is not applicable.’
The
court a quo then pointed out that the view of the first and second
respondents was that the development would of necessity require
the
removal of indigenous trees, a conservative approach was necessary
and that the word ‘destroy’ should enjoy a wide
meaning.
[11]
The
erroneous view of the court a quo that an interpretation of the
provisions of s 3(3)
(a)
of the Act and more particularly, the sentence ‘natural forests
must not be destroyed save in exceptional circumstances.
. .’
was not necessary for the determination of the dispute between the
parties, is illustrated by the following extract
from the judgment:
‘
The
word "destroy" is not defined in the Forests Act and while
generally it denotes a state of destruction or the bringing
to an end
of the existence of something (see South African Concise Oxford
Dictionary), there may be merit in the suggestion that
in the context
of a natural forest, it may require a different meaning relative to
the context.
However, whatever the position may ultimately be, it does appear that
in order to determine whether or not [s 3(3)
(a)
]
is applicable, a factual enquiry with clear information with regard
to both the proposed development and its impact on the natural
forest
which should include the number of trees that will be uprooted (and
replanted if needs be), and the number of trees that
will require
pruning and cutting, will be necessary
.
In the absence of this information, it becomes speculative to make an
assessment as to whether a proposed development will result
in the
destruction of a natural forest and whether this would then activate
the principle as set out in [s 3(3)
(a)
]
of the Forests Act.’
(Emphasis
added.)
[12]
The court a
quo then referred to the fact that the original application by the
appellant was sought in respect of all of the residential
properties,
including the boardwalks and garages that would form part of the
development. The appellant had, however, in its supplementary
replying affidavit restricted the application to one of the
properties, namely Erf 1126, in which plans were available for the
proposed home and some information had been furnished as to the
effect of the construction upon the natural forest.
[13]
The ratio
for the decision of the court a quo appears in the following passages
from the judgment:
‘
All
of the above only relates to Erf 1126 where there are building plans
that have been developed. The situation insofar as it relates
to the
other erven in respect of which the Section 7(1) licence is applied
for is unclear as there are no plans for such erven
and accordingly
it would be impossible to quantify the effect of any proposed
development on the vegetation and indigenous trees.
It
is this lack of detail, both in respect of Erf 1126 (in particular
the garage site and the access route from the garage site
to the
residential erf) that prevents a proper quantification from taking
place with regard to any possible forest destruction
and
the related question as to whether Section 3(a) is triggered
.’
(Emphasis added.)
[14]
In the
result, the court a quo concluded that:
‘
Under
these circumstances where the nature of the relief sought has
appeared to change and even in respect of the "amended"
relief there appears to continue to be areas of uncertainty in
respect of the damage to the natural forest, to conclude that the
sixth and seventh respondents’ decision to refuse the licence
applications in respect of all of the erven, would not be justified
simply by reference to the effects to which reference has been made.
. . .
In
addition, and for the reasons given, the continuing uncertainty with
regard to the number of trees that will be affected by the
development in its entirety must all stand in the way of a proper
assessment as to whether [s 3(3)(a)]
is
applicable as well as the scope of the licence sought in terms of
Section 7(1).
’
(Emphasis
added.)
The
fundamental flaw in the highlighted portion of the judgment is
readily apparent. At the risk of repetition ‘whether section
3
(a)
is applicable’ can only be decided once the correct
meaning of the sentence ‘natural forests must not be destroyed’
in the section is determined.
[15]
I turn to
the interpretation of s 3(3)
(a)
,
read together with s 7(1)
(a)
,
to determine the meaning of this sentence as well as the nature of
the discretion possessed by the first respondent in terms of
s 7(4),
when considering whether to licence one or more of the activities set
out in s 7(1)
(a)
of the Act.
15.1
The starting point must be a consideration
of s 3(3)
(a)
in the context of the other relevant provisions
in the Act. What is immediately apparent is that the provisions of
this section
are not peremptory, but directory. The heading to s 3
‘Principles to guide decisions affecting forests’ as well
as the introductory clause, namely ‘The principles set out in s
(3) must be considered and applied in a balanced way –’
clearly indicates that the principles are simply intended to serve as
a guide to the decision-maker.
15.2
The correct approach in interpreting s
3(3)
(a)
, is as follows:
‘
.
. . [T]he apparent purpose of the provision and the context in which
it occurs will be important guides to the correct interpretation.
An
interpretation will not be given that leads to impractical,
unbusinesslike or oppressive consequences or that will stultify
the
broader operation of the legislation . . . .’
[1]
The
purpose of the section is to give guidance to a decision-maker when
exercising powers in terms of s 7 of chapter 3 of the Act
and lays
down the guiding principle that natural forests must not be destroyed
save in exceptional circumstances. These exceptional
circumstances
are described as ‘. . . where, in the opinion of the Minister,
a proposed new land use is preferable in terms
of its economic,
social or environmental benefits’. In other words, the guiding
principle envisages the destruction of a
natural forest and not
individual indigenous trees making up a natural forest. This is
because the ‘exceptional circumstances’
which may permit
such destruction is a ‘proposed new land use’ which is
‘preferable’ to the existing use
of the land as a forest
because ‘of its economic, social or environmental benefits’.
Self-evidently, land will only
become available for a new use if the
natural forest, or at the very least a portion of it, is destroyed.
15.3
The provisions of s 7(1)
(a)
of the
Act must be interpreted in this context. The prohibited activities
are described as ‘cut, disturb, damage or destroy
any
indigenous tree in a natural forest’. It is quite clear that to
cut, disturb or damage an indigenous tree, does not qualify
as
destruction of the tree in terms of this section. This is because the
prohibition that no person may ‘destroy’ an
indigenous
tree is included as a separate and distinct activity, in addition to
the prohibition on cutting, disturbing or damaging
an indigenous
tree. This interpretation accords with the dictionary meaning of the
word ‘destroy’, which the Concise
Oxford English
Dictionary (12th ed) defines as, ‘put an end to the existence
of (something) by damaging or attacking it’.
15.4
Although a ‘natural forest’ is
defined as ‘a group of indigenous trees whose crowns
are
largely contiguous’, it is quite clear from the definitions of
a ‘forest’, ‘tree’ and an ‘ecosystem’
that it is not only comprised of indigenous trees, but includes tree
seedlings, saplings, transplanted or coppice shoots of any
age, and
any root, branch or other part of a tree, as well as the ecosystem
which makes up a forest. This however does not mean
that the
destruction of ‘
any
part of a forest however small, and
not a forest in its entirety’ results in the destruction of
natural forest for the purposes
of s 3(3)
(a)
, as interpreted
by the first respondent. It would be absurd if a licence to destroy a
single seedling or sapling, or root, branch
or other part of an
indigenous tree in a natural forest, could only be granted if the
land thereby made available as a result of
its destruction, could be
put to a proposed new use which is preferable ‘in terms of its
economic, social or environmental
benefits’, in order to
establish the presence of exceptional circumstances. Such an
interpretation would lead to ‘impractical’
or
‘oppressive’ consequences and ‘stultify the broader
operation’ of the Act, as is clearly illustrated
by the facts
of this case.
15.5
The criterion is one of degree, to be
determined on the individual facts of each case. If the evidence
reveals that indigenous trees located in a natural forest will be
destroyed, and not simply cut, disturbed or damaged, the number,
nature, location, extent and distribution of the indigenous trees
that will be destroyed, will have to be determined. Regard being
had
to the nature and extent of the natural forest in question, the first
and second respondents will have to determine whether
the prohibited
activities for which a licence is sought, constitute the destruction
of natural forest.
15.6
The guiding principle, which has to be considered and applied in a
balanced way by the first and second respondents,
is whether the
nature and extent of the destruction will result in new land becoming
available, with the potential of being put
to a new use. If for
example one indigenous tree in a natural forest of ten acres will be
destroyed, to create new land for the
erection of a beacon, this will
obviously not constitute the destruction of natural forest, for the
purposes of s 3(3)
(a)
. In such a case, it will not be
necessary for the first and second respondents to be satisfied, that
the proposed new land-use
is ‘preferable in terms of its
economic, social or environmental benefits’. On the other hand,
if one acre of indigenous
trees in the same natural forest will be
destroyed to create new land for the construction of a road, this
will self-evidently
constitute the destruction of natural forest for
the purposes of the section. In the latter event, the guiding
principle that natural
forests must not be destroyed, save in
exceptional circumstances, will have to be observed. Consequently, a
licence for the prohibited
activity may only be granted by the first
and second respondents if satisfied that the proposed new use for the
land is ‘preferable
in terms of its economic, social or
environmental benefits’.
15.7
Obviously, where the prohibited activity
does not involve the destruction of a natural forest in terms
of s
3(3)
(a)
, the first and second respondents will nevertheless
have to consider and apply in a balanced way, the remaining guiding
principles
set out in ss 3(3)
(b)
and
(c)
of the Act.
[16]
It is
therefore clear that the first respondent misconstrued the discretion
it possessed in terms of s 7(4) of the Act and the decision
of the
first respondent was ‘materially influenced by an error of law’
in the interpretation it placed upon the provisions
of s 3(3)
(a)
of the Act. In the result, the decision falls to be reviewed and set
aside in terms of s 6(2)
(d)
of the PAJA.
[17]
Although
not strictly necessary for the determination of this appeal, I should
say something concerning the Policy, referred
to above, which
has been adopted by the first and second respondents. As stated in
Computer
Investors Group Inc & another v Minister of Finance
1979 (1) SA 879
(T) at 898C-E: (affirmed in MEC for
Agriculture, Conservation, Environment and Land Affairs v Sasol Oil
(Pty) Ltd and Another
2006 (5) SA 483
(SCA)):
‘
Where
a discretion has been conferred upon a public body by a statutory
provision, such a body may lay down a general principle
for its
general guidance, but it may not treat this principle as a hard and
fast rule to be applied invariably in every case. At
most it can be
only a guiding principle, in no way decisive. Every case that is
presented to the public body for its decision must
be considered on
its merits. In considering the matter the public body may have regard
to a general principle, but only as a guide,
not as a decisive
factor. If the principle is regarded as a decisive factor, then the
public body will not have considered the
matter, but will have
prejudged the case, without having regard to its merits. The public
body will not have applied the provisions
of the statutory
enactment.’
[18]
The Policy
provides as follows:
‘
Land
uses which transform natural habitat and which are not of national or
provincial strategic importance (including residential
development
and agriculture), do not constitute exceptional circumstances.’
In
the answering affidavit of the first and second respondents this
policy is dealt with as follows:
‘
Residential
development is not considered to be exceptional circumstances.’
Later,
the following is added:
‘
The
term "exceptional circumstances" indicates situations that
are unusual or rare. These exceptional circumstances are
confined to
strategic public projects such as national roads, dams and bulk
service infrastructure
,
but exclude ordinary urban or residential development
.’
(Emphasis added.)
[19]
That the
first respondent applies this Policy rigorously, is clear from the
following passage in the affidavit:
‘
.
. . the principle is very clear and unambiguous, and that DAFF [first
respondent] policy determines that
only
the development of strategic significance such as dams and power
lines, qualify as exceptional circumstances
and that
a
high income residential development, as proposed at Long Beach,
cannot be construed to constitute exceptional circumstances
.’
(Emphasis
added.)
[20]
In this
regard, the court a quo however stated that:
‘
.
. . for the reasons already given, I am not satisfied that it could
be said that sixth and seventh respondents erred in relying
exclusively on the policy position that a residential development
could never constitute exceptional circumstances. The engagement
between the parties and the dispute that developed around the scope
and nature of the impact of the development suggests compellingly
that regard was indeed given to the merits of the application.’
I
disagree with this conclusion. It is clear from the passages in the
answering affidavit of the first and second respondents, that
they do
not regard the Policy simply as a guide, but as a decisive factor in
deciding an application where the proposed new land
use is
residential development. The result is that in slavishly following
this Policy the first and second respondents did not
properly
consider the merits of the appellant's application. In doing so, the
first respondent failed to properly apply the provisions
of s 7(4),
read with s 7(1)
(a)
and s 3(3)
(a)
of the Act.
[21]
In the
result, the appellant’s application for a licence under s 7 (4)
of the Act must be referred back to the first respondent
for
reconsideration, in the light of the principles laid down in this
judgment. It is unnecessary to comment on the correctness
of the
conclusion reached by the court a quo, that the number of trees that
will be affected by the development in its entirety
and not simply
those trees that will be affected by the development on Erf 1126,
will have to be ascertained before a decision
can be made as to
whether the natural forest will be ‘destroyed’ for the
purposes of the Act. In my view, this issue
must be determined by the
application of environmental considerations, when the s 7(4)
application of the applicant is reconsidered.
[22]
The court a
quo in refusing the application made no adverse costs order against
the appellant, on the basis that ‘the applicant
was ultimately
seeking to protect a right enshrined in the Constitution and that its
stance in advancing the application was well-intentioned’.
However, when regard is had to the unreasonably narrow meaning that
the first and second respondents placed upon their discretion
they
possessed in terms of the Act, as well as their slavish adherence to
a rigid policy when considering the appellant's application,
there
can be no reason why they should not be ordered to pay the
appellant's costs incurred before the court a quo, as well as
those
incurred in this appeal.
[23]
In the
result the following order is granted:
1
The appeal is upheld.
2
The first and second respondents are ordered to pay the appellant's
costs.
3
The order of the court a quo dismissing the appellant’s
application, with no order as to costs, is set aside and replaced
with the following order:
‘
(a)
The decision taken by the sixth respondent, the Department of
Agriculture, Forestry and Fisheries (South Africa) on 17 March
2014,
to refuse the application by the applicant in terms of s 7(4) of the
National Forests Act 84 of 1998 (the Act), for a licence
to carry out
one or more of the activities specified in s 7(1)
(a)
of the Act, is reviewed and set aside.
(b)
The application is referred back to the sixth respondent for
reconsideration and decision.
(c)
The sixth and seventh respondents are ordered to pay the applicant's
costs.’
K G B Swain
Judge of Appeal
Appearances:
For
the Appellant:
K Hopkins
Instructed by:
BKM Attorneys,
Johannesburg
Claude Reid Attorneys,
Bloemfontein
For the Respondent:
G Bofilatos SC (with R Oosthuizen)
Instructed by:
The State Attorney,
Pretoria
The State Attorney,
Bloemfontein
[1]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 26.