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[2019] ZAECMHC 56
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Lebenya and Another v Nelani and Others (1119/09) [2019] ZAECMHC 56 (25 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: 1119/09
In
the matter between:
GREGORY
KHOMOTSOANE LEBENYA
First
Appellant
BAKOENA TRADITIONAL
COUNCIL
Second
Appellant
and
VUYISILE
NELANI
First
Respondent
PREMIER OF THE EASTERN
CAPE
Second
Respondent
M E C FOR LOCAL
GOVERNMENT
AND TRADITIONLA
AFFAIRS E.C.
Third
Respondent
THE CHAIRPERSON HOUSE
OF
TRADITIONAL LEADRES
E.C
. Fourth
Respondent
JUDGMENT
THE
COURT:
[1]
This appeal concerns the review of a decision which was taken in 1976
by the then
Chief Minister of the then Transkei Government. The court
a quo
dismissed the review application and an interim
interdict referred to hereunder, with costs. The review application
was dismissed
solely on the grounds of unreasonable delay. For a
proper understanding of the matter it is necessary to set out the
background
to the review application.
[2]
On 25 June 2008 the appellants launched, on an urgent basis, an
application seeking
an interim order returnable on 15 January 2009,
in the court
a quo
, interdicting and restraining the second
respondent from recognising the first respondent as a Chief of any
administrative area
previously forming part of the Bakoena
Traditional Council. On 11 December 2008 the court
a quo
granted the interim order pending the finalisation of that
application. The notice of motion was subsequently amended to the
effect
that the interim order was to exist pending the finalisation
of review, of, inter alia, a decision by the late Chief Matanzima to
disestablish the Bakoena Traditional Authority and and established
the new Bakoena Traditional Authority and Nguni Traditional
Authority
in terms of Government Gazette dated 4 June 1976 (the 1976 decision).
[3]
On 11 June 2009 the application for an interdict was subsequently
referred for oral
evidence and the appellants were ordered to
institute review application and the interim interdict was extended
pending the finalisation
of the review.
[4]
The appellants duly delivered the application for review of the 1976
decision. After
the closure of the pleadings in the review matter the
parties decided to narrow the issues by making a stated case for
determination
by the court.
[5]
The agreed facts and contentions are set out hereunder:
“
1.
The review proceedings forming subject matter of these
proceedings were issued on 15 June 2009 under case number
1119/2009;
2.
The review proceedings were preceded by an urgent application in
which the applicants
mainly sought an interdict against the
recognition of the 1st respondent as the Chief of any
administrative area forming part or previously forming part of the
Bakoena Tribal Authority or Bakoena
Traditional Council in the district of Mt
Fletcher (interdict application was issued under case
number 1845/2008) and the applicants requested from the
Department the documents that led to the decision to recognise
1
st
respondent and same were supplied on 3 February 2009.
3.
The trigger for the urgent interdict and subsequent review
proceedings was a telephone call received by the 1
st
applicant during September 2008, in which he was advised by a
certain Mr
Ntlangushe of Maluti Regional Office of the Department of Local
Government and Traditional Affairs,
asking whether the 1
st
respondent was a Chief since a cheque of the 1
st
respondent was at his office.
4.
Pursuant to receipt of such telephonic calls during September2008
advising about
the cheque of the 1
st
respondent as a Chief, the 1
st
applicant conducted investigations as he was not aware that
the 1
st
respondent was indeed a Chief.
5.
The investigations led to a meeting of the 1
st
applicant and Mr Mateta, who is in the office of the 3
rd
respondent.
6.
In the meeting, Mr Mateta advised that the appointment of the first
respondent
as a Chief of the Nguni Tribal Authority was approved by
the Department and as such he was a Chief of the Nguni Tribal
Authority
comprising of the following administrative areas.
6.1
Mahlake, Ngodiloe, Mahoabatsane and Emthumase.
6.2
The decision to subsequently appoint the 1
st
respondent as a Chief of the Nguni Tribal Authority, has its genesis
from annexure
“GKL2”
(review application) and “JSM12” (“the
interdict application”), being a Government
Gazette
notice number 52 dated 4
th
June 1976, in
terms whereof:
6.2.1 It
is also recorded that Annexures “GKL1” and “GKL2”
were received from 1
st
respondent’s
former attorneys Mr Nokwe & Partners by the Department of
Traditional Affairs.
6.3
The former Chief Minister K D Matanzima, took a decision to
disestablish Bakoana
Tribal Authority as it existed then and in its
place new Bakoena Tribal Authority and establish the new Nguni
Tribal Authority
was taken on 4
th
June 1976
in terms of section 3(1) of the Transkei Authorities Act No.4 of
1965.
6.4
In terms of the decision communicated in the above Government Gazette
Notice, from that
moment, the Bakoena Tribal Authority was no longer
constituted in accordance with Government Notice No.5 dated April
1967 as same
was withdrawn;
6.5
On a proper reading or construction of the Government Gazette, since
1976 an administrative
decision for the existence of two separate
Tribal Authorities, namely Bakoena and Nguni, existed;
6.6
It is common cause that in the district of Mt Fletcher there are
different tribes who are
referred to as the Sothos and the Ngunis;
6.7
At a certain stage, the Amagcina Tribe set in motion a process for
the recognition of Mr
Nelani (the 1
st
respondent”) as their Chief;
6.8
Pursuant to the Government Gazette, the Maluti Regional Authority on
7
th
October 1981 resolved that a new
chieftainship be created and Mr Nelani be designated as Chief of the
Amagcina Tribe in terms of
Section 66(1) of the Transkeian
Authorities (Act
1976 Act No.15
of 1976) as amended;
6.9
The Amagcina Royal family identified Mr Nelani as their Chief and
submitted the resolution
dated 23 February 2008 to the department for
processing and first respondent was recommended and subsequently
recognised;
6.10
The applicants in these proceedings is (sic) impugning the decision
of the Chief Minister, K D Matanzima,
which was taken in 1976 for the
disestablishment of the Bakoena Tribal Authority and the creation of
two separate Tribal authorities,
namely-
6.10.1 The Bakoena
Tribal Authority; and
6.10.2 The Nguni
Tribal Authority.
7.
The 1
st
applicant contends that whilst he
accepts that there is a delay in launching the review proceedings,
he ought to be condoned
because he only became aware of the
impugned decision in September 2008.
8.
The respondents on the other hand, maintain that the applicants
ought to be non-suited because the delay of 32 years is inordinate
and the applicants exercising due and reasonable care
ought to have
been aware of the decision or those before him knew the
decision to disestablish the ABakoena Tribal Authority
and the
establishment of the Nguni Tribal Authority.
9.
The respondents contend that in the event of the review being
entertained the
respondents shall be severely prejudiced because of
the following:-
9.1
Key witnesses have since passed away, namely
9.1.1
Chief Minister K D Matanzima;
9.1.2 Two
witnesses in annexure “GKL1”;
9.1.3
Other witnesses who were present during consultations referred to in
annexure GKL2” who would have testified,
are not available and
some have since passed away; and
9.1.4 The
records of the decision in annexure “GKL1” are not found
in the Government archives and as such
the reasons for the impugned
decision are not before court.
10.
It is in dispute whether Mr Magadla signed or did not sign
document “GKL1” and the court is not required to
determine this dispute.
11.
It is accepted that 1
st
applicant became
aware subjectively about the Government
Gazette during September 2008.
12.
The parties agree that the matter should be disposed of on the
basis of the undue
delay and should the court find in favour of the
applicants, the matter be argued on the merits, deciding
the question
whether the 1
st
respondent was
properly appointed by the 2
nd
and 3
rd
respondents.
13.
The onus is upon the applicants and shall be discharged on a balance
of probabilities.
14.
The issues for adjudication:-
14.1
is whether the applicants have unduly delayed the launch of the
instant review proceedings and whether such
delay should be condoned.
14.2
In view of the fact that the impugned decision was passed in1976 it
is accepted that the provisions of PAJA
are not applicable, but the
common law delay rule applies in light of the following decisions:-
14.2.1 Wolgroeiers
Afslaers (Edms) Bpk v Muni van Kaapstad
1978 (1) SA
13
(A) at 38H-42D;
14.2.2 Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie
1986
(2) SA 57
(A) at 86A-G;
14.2.3 Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA
302
(SCA) at paras [46]-[48];
14.2.4 Gqwetha v
Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA)para [22]-[24].
The
issue was therefore limited to the determination of the delay in
instituting the review proceedings as set out in paragraph
14.
Unreasonable
delay
[6]
In
Associated Institutions Pension Fund and Others v Van Zyl and
Others
2005 (2) SA 302
(SCA) ([2004]
4 All SA 133)
at 321B (SA)
Brand JA captured the rule against unreasonable delay as follows:
'[46] . .
. It is a
longstanding rule that courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings,
to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The
effect is that,
in a sense, delay would ''validate'' the invalid administrative
action (see eg Oudekraal Estates (Pty) Ltd v City
of Cape Town and
Others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1)
at para [27]).
The raison d'être of the rule is said to be twofold. First, the
failure to bring a review within a reasonable
time may cause
prejudice to the respondent. Secondly, there is a public interest
element in the finality of administrative decisions
and the exercise
of administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at
41).”
[7]
The formulation of the issues to be determined as formulated by the
parties accords
with a long line of cases. The first enquiry is
directed at whether or not there has been unreasonable delay in
instituting
the review proceedings. This enquiry is a factual enquiry
and the court does not exercise any discretion. The second enquiry
depends
on whether the court finds that there has been an
unreasonable delay. If the court finds that there has been an
unreasonable delay
the enquiry is whether it can be condoned.
[1]
This enquiry involves the exercise of discretion taking into account
all the relevant circumstances. It is now trite that the rationale
against unreasonable delay is twofold. First, the public interest
element of finality in administrative decisions. Second, the
inherent
prejudice both to the decision maker and those who rely on such
administrative decision.
[2]
[8]
The appellants admit that there has been a delay in the institution
of the review
proceedings but contend that such delay is not
unreasonable in that they only became aware of the decision in
September 2008. On
the other hand the respondents contend that there
has been an unreasonable delay of 32 years and that the appellants or
those who
were in power before the first appellant exercising due and
reasonable care ought to have been aware of the decision to
disestablish
the ABakoena and establish Nguni Traditional Council.
Consequently, so the argument ran, appellants ought to be non-suited.
[9]
Prior to the first appellant taking over as a Chief of the Bakoena
tribe his mother
was an Acting Chieftainess. It is common cause that
there were consultations that were held prior to the taking of the
1976 decision.
The Acting Chief at the time must have been involved
in the consultation processes relating to the disestablishment of
Bakoena
Traditional Authority and establishment of the Nguni
Traditional Authority. There is no explanation as to what she did
about the
decision. The second appellant also did nothing about it.
There is no allegation that it was not aware of the decision.
[10]
Both in the narrowed issues and in the papers there is no explanation
covering the period of
delay. The appellants made no attempt
whatsoever to explain the inordinate delay. They simply relied on the
subjective knowledge
of the first appellant that he only became aware
of the decision during September 2008. The previous Chief, members of
the Bakoena
Traditional Authority and the second appellant, were
there and they must have attended consultative processes convened by
a magistrate,
Mr Mbuli, and a district commissioner, Mr Gabela. They
made no attempts to explain as to whether there was any attempt at
any stage
to impugn the 1976 decision. The first appellant does not
even inform the court as to the period when he took over as a Chief
of
the Bakoena Traditional Council.
[11]
Once the 1976 decision was published in the Government Gazette the
presumption is that those
affected by it acquired knowledge thereof.
The rule in our law is that ignorance of the law is no excuse
(
ignorantia
jurisnon excusat
).
[3]
The person claiming ignorance thereof must show that the
administrative act only applies to a specialised field in which he
cannot
be expected to know the rules thereof.
[12]
Lack of explanation for the delay during the entire period of more
than 30 years leads us to
conclude that the delay was unreasonable.
Consequently we conclude therefore that there has been an
unreasonable delay.
Condonation
[13]
Having concluded that the delay was unreasonable the next enquiry
whether or not the delay should
be condoned. In a case where the
delay is lengthy, as in this case, the explanation given must not
only be satisfactory but must
also cover the entire period of the
delay.
[4]
In addition the
explanation must be reasonable. Relevant factors for consideration
for condonation include, but are not limited
to the nature of the
relief sought, the extent and cause of the delay, the effect of the
delay on the administration of justice
and other litigants, the
reasonableness of the explanation for the delay, the importance of
the issue to be raised in the intended
appeal and the prospects of
success.
[5]
[14]
Regard being had to the fact in this case there is lack of (i) a full
explanation for the delay
covering the entire period of delay and
(ii) there in no reasonable explanation given at all, condonation
cannot be granted. Furthermore,
we are not persuaded that it is in
the interests of justice to grant condonation especially regard being
had to the prejudice that
other litigants may suffer.
[15]
In the context of statutory limits more than two decades ago Didcott
J said the following:
“
Rules that
limit the time during which litigation may be launched are common in
our legal system as well as many others. Inordinate
delays in
litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
in the end is it always possible to adjudicate satisfactorily
on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose testimony can
still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent procrastination
and
those harmful consequences of it. They thus serve a purpose to which
no exception in principle can cogently be taken.”
[6]
We
therefore conclude that there is no basis upon which the unreasonable
delay can be condoned.
[16]
Although the above is dispositive of the matter for adjudication lest
it be said that there were
prospects of success on review we deem it
expedient to comment on the merits thereof. We hold a deem view
regarding prospects of
success of the review.
[17]
From the papers it is common cause that there were consultative
meetings regarding the division
of Bakoena Traditional Authority by
the establishment of the Nguni Traditional Authority. However it is
not stated in the papers
as to when those consultative meetings were
held. What is clear is that they culminated in the promulgation of
the 1976 decision.
[18]
There was an argument that the Chief Minister took a decision in
terms of the wrong section.
It has been argued that section 3(1) of
the Transkei Authorities Act No. 4 of 1965 (the Act) did not
authorise the Chief Minister
to disestablish the Bakoena Tribal
Authority. On the contrary, so the argument ran, section 2(1) of the
Act authorises him to disestablish
Tribal Authorities. This argument
was pursued and accepted in the Court
a quo
. With respect we
do not agree.
Section
2(1) of the Act reads:
“
Subject to the
provisions of sub-section (2) of section forty five and the proviso
to sub-section (1) of section fifty-nine of the
Constitution Act, the
Minister may, after consultation with the tribe concerned-
(a)
by notice in the Official Gazette
declare any land
in a region
to be
an administrative area
for the
purposes of this Act or define the boundaries of any administrative
area or the area of any tribe, and from
time to time, in
like manner, alter or withdraw the same;
(b)
divide any existing tribe into two or more parts, or amalgamate
tribes or parts of tribes
into one tribe, or constitute a new tribe,
as necessary or good government may require”.
The
head note of this section reads
: “
constitution of
administrative area and of tribes.”
Section
3(1) reads:
“
There shall in
every administrative area or within such administrative areas jointly
as the Minister,
after consultation with the tribes
concerned
,
may from time to time
make known by
notice in the Official Gazette
be a tribal authority
consisting of a head and a number of councillors being:..” The
head note of this section reads: “
Tribal Authority”.
Government
Gazette No. 22 of 1976 is not clear but the following can be gleaned
therefrom:
“
...
established
at present, and to establish two new tribal authorities called
Bakoena and Nguni in respect of different administrative
areas;
AND whereas the tribes
concerned and the Maluti Regional Authority have been consulted and
the Regional Authority has agreed to
the proposed amended
establishment;
Now, therefore, I,
Kaizer Daliwonga Matanzima,
hereby make known interms of
section 3(1) of the Transkei Authorities Act, 1965 (Act
No. 4 of 1965) that there shall be two tribal authorities called
Bakoena and Nguni in respect of the administrative areas in the
Mount
Fletcher district indicated under their names in the schedule hereto.
Government Notice No.
5 dated 28 April 1967 is hereby withdrawn in respect of the Bakoena
Tribal Authority.
K D Matanzima
Chief Minister
”
(our
underlining)
[19]
It is plain from the above quoted sections that section 2(1) of the
Act deals with the establishment
of administrative areas and tribes.
It does not deal with tribal Authorities whereas section 3(1) deals
with the publication (“
make known”
)
relating to establishment and disestablishment of Tribal Authorities.
All what is required is that the decision must be preceded
by
consultation of the tribes concerned and an approval by the Regional
Authority. It is common cause that consultations
were done.
[20]
A proper procedure was followed namely, consultations.
There
is no general principle to be extracted from the case law as to
what kind or amount of consultation is required before delegated
legislation, of which consultation is a precondition, can validly be
made. The fact that there may have been a majority of people
who were
against the idea is explained by the number of administrative areas
which were occupied by Sotho speaking people and is
no bar to the
decision maker. It has not been explained as to where that majority
came from or whether the four affected administrative
areas were
against the idea.
In
Maqoma v Sebe NO
1987 (1) SA 483
(Ck) at 490D-E
it was
stated:
“
The word
'consultation' in itself does not presuppose or suggest a particular
forum, procedure or duration for such discussion or
debate. Nor does
it imply that any particular formalities should be complied with. Nor
does it draw any distinction between communications
conveyed orally
or in writing. What it does suggest is a communication of ideas on a
reciprocal basis.”
Consequently,
it would seem to us that the decision was lawfully taken as there is
no attack on the process followed.
[21]
Mr Moerane referred us to annexure GKL8 which records the election of
60% of members of the Maluti
Regional Authority elected by the Chief
and 40% of members elected by the people. In his argument Mr Moerane
submitted that the
list of administrative areas contained in this
annexure includes those areas which are being claimed to be falling
under Nguni
Traditional Council under the first respondent. He
therefore contended that notwithstanding the decision of the 1976
these areas
were never severed from the Bakoena Traditional Council.
[22]
The difficulty we have with the annexure referred to above is that
first, it is not explained
in the affidavit as to when was the list
compiled. The only date appearing thereon is a date on which it
was faxed which
is 26 September 2009. Second, according to the
deponent the annexure is intended to show that the department was
aware and recognised
the first appellant as the only Chief of the 14
administrative areas of ABakoena. Third, it is not explained where it
emanated
from. Fourth, it is written in Xhosa and still refers to
“Traditional Authority” and not “Traditional
Council”.
Fifth, it is not explained as to who compiled it and
in what capacity. In short it is not an authenticated document. In
our view
the document does not assist the appellants.
[23]
Mr Moerane argued further that whatever was done by the Chief
Minister in terms of the 1976 decision
such has been overtaken by the
implementation of the processes in terms of the Eastern Cape
Traditional Leadership and Governance
Act No. 4 of 2005 and National
Traditional Leadership and Governance Framework Act No. 41 of 2003
.
He contended that in terms of these statutes the respondents have
recognised the first appellant as their senior Traditional Leader.
Furthermore, so the argument goes, the fourteen administrative areas
which, prior to the 1976 decision, formed part of the Bakoena
Traditional Authority were still recognised as forming part of the
Bakoena Traditional Council in terms of these statutes. He therefore
contended that it would be otiose to review and set aside of the 1976
decision.
[24]
The above argument flies in the face of the principle that
administrative decision cannot be
ignored because it exists in fact
and has legal consequences until set aside.
[7
[25]
Furthermore the above argument was not raised in the court
a quo
.
In advancing this argument Mr Moerane relied on the decision of
CUSA
v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
para.67.
In
Cusa’s
decision the following was said:
“
[67] Subject to
what is stated in the following paragraph, the role of the reviewing
court is limited to deciding issues that are
raised in the review
proceedings. It may not, on its own, raise issues which were not
raised by the party who seeks to review an
arbitral award. There is
much to be said for the submission by the workers that it is not for
the reviewing court to tell a litigant
what it should complain about.
In particular, the LRA specifies the grounds upon which arbitral
awards may be reviewed. A party
who seeks to review an arbitral award
is bound by the grounds contained in the review application. A
litigant may not, on appeal,
raise a new ground of review. To permit
a party to do so may very well undermine the objective of the LRA to
have labour disputes
resolved as speedily as possible.
[68]
These principles are, however, subject to one qualification. Where a
point of law is apparent on the papers, but the common
approach of
the parties proceeds on a wrong perception of what the law is, a
court is not only entitled, but is in fact also obliged,
mero motu,
to raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised
on an incorrect
application of the law. That would infringe the principle of
legality.”
[26]
As we understand this decision and others a point raised for the
first time on appeal must be
fully canvassed in the papers. We did
not understand Mr Moerane as arguing that the point is fully
canvassed in the papers. In
any event even if Mr Moerane was correct
in view of our conclusion regarding unreasonable delay it is not
necessary to express
any view thereon.
Costs
[27]
The general rule is that costs must follow the result unless there
special circumstances justifying
a departure from the rule. In the
court
a quo
the interim interdict was dismissed. The argument
advanced by Mr Moerane was that the interdict application was not
before court
and therefore the appeal in that respect should succeed
and the order be set aside. In our view it is not necessary to
comment
on the merits of that argument. The judgment itself
does not deal with interim relief and this is not in the stated case
by the parties. Accordingly, the order is not justified.
However, the order as such has no practical effect. The
rule nisi
was extended until the finalisation of the review. Consequently, once
the review is finalised the interim order automatically lapses.
There
was therefore no need to dismiss it. It would appear therefore that
any success that can be claimed in that regard is a far
cry.
[28]
There was an argument that if the appeal fails there should be no
order as to costs regard being
to the fact that the matter can be
regarded as constitutional in its nature and therefore the principles
in
Biowatch Trust v Registrar, Genetic Resources, and Others 2009
(6) SA232 (CC)
apply. Mr Mpofu for the first respondent argued
that the principle does not apply to his client as he is not an organ
of State.
Mr Hinana for the State organ respondents was constrained
to concede that the principle applies to his clients. The question of
costs of two Counsel was never made an issue and we regard the matter
as important enough to warrant employment of Senior Counsel.
[29]
In the result the following order will issue:
1.
The appeal is dismissed;
2.
The appellants are ordered to pay costs of the first respondent
including costs
of the application for leave to appeal and any
reserved costs jointly and severally the one paying the other to be
absolved. Such costs are to include costs of two Counsel.
___________________
T
MALUSI
JUDGE
OF THE HIGH COURT
______________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT
______________________
A
M DA SILVA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the appellants:
M T K Moerane SC
Instructed
by D D M Plaakie & Co
For
the first respondent:
D C Mpofu SC
S Maliwa
K
Siqongana
Instructed
by Mvuzo Notyesi Inc;
For
the second and third respondents: Mr Hinana
Instructed
by Caps Pangwa attorneys.
Date
of Hearing : 12
August 2019;
Judgment
delivered : 25
September 2019.
[1]
WolgroeiersAfslaers
(Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)at
39C-D: ;SetsokosaneBusdiens (Edms) Bpk v Voorsitter,
NasionaleVervoerkommissie, en 'n Ander
1986 (2) SA 57
(A) at
86C-D:
[2]
Gqwetha
v Transkei Dev Corp Ltd
2006 (2) SA 603
(SCA) para.23.
[3]
C/F S v De Blom
1977 (3) SA 513
(A) at 529 - 30.; R v Coote
[1873] EngR 4
;
(1873) 17 ER 587
(PC) ((1873)
[1873] EngR 4
;
LR 4 PC 599)
at 592).
[4]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC)
(2008 (4) BCLR 442
; para.22;
eThekwini Muni v Ingonyama Trust
2014 (3) SA 240
(CC) Para.28;
[5]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA
837
(CC) para [3] Van Wyksipra para.20
[6]
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) Para.11
[7]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA
222
(SCA) para 26.
68