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[2018] ZANCHC 94
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Domingo v Farmer and Others (1193/2017) [2018] ZANCHC 94 (15 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
1193/2017
DATE
HEARD:
8 JUNE 2018
DATE
DELIVERED:
15 JUNE 2018
Reportable:
/ NO
Circulate
to Judges: YES
Circulate
to Magistrates: / NO
Circulate
to Regional Magistrates: NO
In
the matter between:
DOMINGO,
MARIA
MAGDALENA
Applicant
and
FARMER
NO, JASPER
JACOBUS
1
st
Respondent
MOYO
NO,
NEO
2
nd
Respondent
KOCK
NO, LAMBERT
HENDRIK
3
rd
Respondent
ASSMANG
LTD
4
th
Respondent
THE
MASTER OF THE ABOVE HONOURABLE COURT
5
th
Respondent
Coram:
Olivier J
JUDGMENT
Olivier
J:
INTRODUCTION
[1.]
The applicant, Mrs M M Domingo, married the
late Mr E Domingo in 1984. Mr Domingo was an employee of Associated
Manganese Mines
of SA Limited, a name by which the 4
th
respondent was earlier known. The 4
th
respondent has in this application been cited as Assmang Limited, but
according to the deponent for the respondents its correct
name is
actually Assmang (Pty) Ltd.
[2.]
Although there is to an extent a dispute
about this, it will be assumed for purposes hereof that Mr Domingo
was one of a relatively
large number of employees of the 4
th
respondent who were dismissed in 1987.
[3.]
Subsequent legal attempts by the National
Union of Mine Workers (“
the NUM
”)
to hold the 4
th
respondent liable for compensation on the basis that the employees
had been unfairly dismissed and had lost property when evicted
from
the mine’s property, were unsuccessful. The so-called Dismissed
Workers’ Committee (“
the
DWC
”) was nevertheless formed to
represent the dismissed employees. According to the applicant this
happened in September 1994,
while according to the respondents the
committee had already existed by December 1989.
[4.]
It is not disputed that the DWC, despite
the earlier failed legal attempts to hold the 4
th
respondent liable, over the years thereafter pressurised the 4
th
respondent to make payments to the dismissed workers. The actions of
the DWC and its members included sit ins at the entrance and
exit
points to the 4
th
respondent’s head office premises in Sandton and persistent and
harassing telephone calls to employees of the 4
th
respondent at all times of day and night, and compelled the 4
th
respondent to resort to the Courts for interdictory relief more than
once. They,
inter alia
,
threatened to stage a sit in at the 4
th
respondent’s said premises for three months.
[5.]
In 2008, and as a result of negotiations
between the DWC and the 4
th
respondent, the Kuruman Former Employees of 1987 Trust (“
the
Trust
”) was created for purposes
of settling claims that the 4
th
respondent was constantly being confronted with by the DWC and its
members.
[6.]
It is important to keep in mind that those
negotiations took place under the circumstances referred to above,
and as extensively
described in the answering affidavit. This is not
disputed by the applicant.
[7.]
The founder of the Trust was the 4
th
respondent. Mr J J Farmer (1
st
respondent), Mr N Moyo (2
nd
respondent) and Mr L H Kock (3
rd
respondent) are the trustees. It was recorded in the trust deed that
the beneficiaries of the Trust, as represented by the NUM
through the
2
nd
respondent, “
accept
(ed)
the benefits conferred on them subject
to the terms and conditions set out in
(the)
(Trust)
Deed
”.
[8.]
The concept of “
beneficiaries/eligible
beneficiaries
” of the Trust is
defined in clause 2.1.3 of the Trust Deed. These provisions
originally read as follows:
“
the
beneficiaries / eligible beneficiaries – means the 518 former
employees of the founder
whose
services were terminated for participating in industrial
action/unlawful strike action
in
1987 and who will be identified to the trustees by way of valid
identity documents plus a pay slip bearing the name of the
beneficiary and which was issued by the founder, Assmang Limited, at
any time prior to their dismissal for taking part in the strike
action in 1987, and identified in terms of a list of such
beneficiaries verified and agreed to by the founder,
and
who have met all the conditions imposed in terms of this deed
”
(My emphasis)
[9.]
According to the respondents these
provisions have been amended and now read as follows:
“
The
beneficiaries / eligible beneficiaries means the approximately 518
former employees of the founder
whose
services were terminated for participating in industrial
action/unlawful strike action
in
1987 and who will be identified to the trustees by acceptable form of
proof of employment with the founder at the time of the
industrial
action/unlawful strike action in 1987 and acceptable proof of
identity
and to have further met
all the conditions imposed in terms of this Deed
”
(My emphasis)
[10.]
As will be seen the two versions are, for
purposes of what follows, essentially similar. The reference in the
definition to conditions
“
imposed
in terms of this deed
”
constitutes a clear qualification of the description of “
former
employees
” preceding it.
[11.]
One of the conditions to be met in order to
qualify as an eligible beneficiary, and to claim payment, is
contained in clause 8.2.1
of the trust deed, in terms of which,
inter
alia
:
“
the
beneficiary must be alive at the date that the claim for such share
of the trust assets is made. If the beneficiary has died
at any time
prior to the deadline date for making such claim, no share of the
trust asset shall be payable to the estate of the
deceased
beneficiary
”
[12.]
Mr Domingo passed away in March 2001. This
means that Mr Domingo, because he passed away before the Trust was
created (let alone
filing a claim), could not be a beneficiary of the
Trust in terms of the provisions of the trust deed as they read at
the moment.
RELIEF
SOUGHT IN NOTICE OF MOTION
[13.]
The applicant’s case is, however,
that the provisions of clause 8.2.1 are unconstitutional, in that:
13.1 they “
unfairly
discriminate … against the spouses, dependents and/or legal
successors of
(the)
deceased mine workers
”; and
13.2 they are
“
against public opinion read with the Constitution of the
Republic of South Africa
”
and
the applicant seeks declaratory orders to this effect, as well as
orders that:
“
(a)
clause 8.2.1, and ‘all the discriminating parts of the Trust
Deed’ be struck out;
(b)
the amount of R3000.00, stipulated
in the trust deed as the amount of the ex gratia donation that would
be paid to beneficiaries,
be increased to R40 000.00;
(c)
the cut-off date in the Trust Deed
for the filing of claims be extended to 30 September 2019; and
(d)
the legal successors of the deceased
minors be allowed to lodge claims against the Trust.”
LOCUS
STANDI
[14.]
Although the manner in which the relief is
set out in the notice of motion suggests that the applicant is
seeking the relief on
behalf of the spouses, dependents and legal
successors of all deceased mine workers, she has not in her founding
affidavit claimed
to have been authorised to do so.
[15.]
When challenged on the issue of her legal
standing in respect of a claim that would be part of her late
husband’s estate,
the applicant replied that she had been
appointed as executrix in the deceased estate and that the Master’s
letter of appointment
had mistakenly not been included in the
annexures to the founding affidavit.
[16.]
Mr
Snider, counsel for the respondents, pointed out that, according to
the letter (a copy of which has now been annexed to the replying
affidavit), the applicant has in fact not been appointed as an
executrix, with the normal powers that such a person would have.
The
letter is indeed clearly not a letter of “
appointment
”.
It is titled “
Letter
of Authority
”.
The letter reads that the applicant is in terms of section 18(3) of
the
Administration
of Estates Act
[1]
authorised “
to
take control of the assets … reflected in the inventory …,
to pay the debts, and to transfer the residue of the
estate to the
heir/heirs …
”.
Only one asset is mentioned in the inventory that forms part of the
letter, and that is an amount of R35 000.00 in
the Compensation
Fund.
[17.]
Section 18(3) of the
Administration
of Estates Act
reads as follows:
“
If
the value of any estate does not exceed the amount determined by the
Minister by notice in the Gazette, the Master may
dispense
with the appointment of an executor
and give directions as to the manner in which any estate shall be
liquidated and distributed
” (My
emphasis)
[18.]
The letter clearly does not authorise the
applicant to institute legal proceedings on behalf of the deceased
estate. In reply Mr
Strydom, counsel for the applicant, countered by
submitting that the applicant would in any event have been entitled
to bring this
application as spouse, and as mother of children of the
late Mr Domingo. This can clearly not be correct. According to the
marriage
certificate the applicant and Mr Domingo were married out of
community of property. The applicant has not made out a case that she
is an heir in the estate, and she has not alleged that there are
minor children who were born from the marriage and whom she is
representing.
[19.]
I will nevertheless proceed to consider the
merits of the application, because the applicant’s standing has
not been raised
on an
in limine
basis.
INDUSTRIAL
ACTION/UNLAWFUL STRIKE ACTION
[20.]
To begin with, the applicant’s case
is obviously dependent on her late husband having been one of the 518
employees “
whose services were
terminated for participating in industrial action/unlawful strike
action in 1987
”, as envisaged in
the definition of beneficiaries (or eligible beneficiaries) in the
trust deed. This must be so, because
her case is clearly that it is
only the unconstitutional requirement that claimants must still be
alive when claims are submitted,
that disqualifies the late Mr
Domingo and his successors from the definition of beneficiaries in
the trust deed. This was conceded
by Mr Strydom.
[21.]
In this regard the allegations in the
founding affidavit are the following:
22.1 On 13 August
1987 a total of 158 employees were unfairly dismissed.
22.2 This caused a
dispute which led to the dismissal on 21 September 1987 of a further
2 500 employees, of which the
late Mr Domingo was one.
[22.]
In the founding affidavit the applicant
made no allegation that Mr Domingo’s employment was terminated
because of his participation
in industrial action or in an unlawful
strike action. This was also conceded by Mr Strydom.
[23.]
Mr Strydom argued, however, that such an
inference can be drawn from the “
CLAIM
DOCUMENT
” that the applicant had
in February 2014 unsuccessfully submitted in an attempt to obtain
payment from the Trust. In the
document the claimant was required to
indicate “
The mine where the
Claimant was employed during the averred unfair dismissal
”,
to which the applicant respondent “
Blackrock
Assmang”
(presumably one of the
mines of the 4
th
respondent).
[24.]
The
applicant did, in the first place, not in her founding affidavit
refer to this specific part of the claim document, and she
is
therefore not entitled to rely thereon for these purposes at this
stage
[2]
.
[25.]
Secondly, the part relied upon by Mr
Strydom is not even susceptible to an inference that Mr Domingo’s
dismissal had been
unfair, because the reference to an “
unfair
dismissal
” is clearly qualified
by the word “
averred
”.
[26.]
Lastly, even if the inference could be
drawn from the document that the late Mr Domingo’s dismissal
had been unfair, it would
not follow that the unfair dismissal had
been the result of Mr Domingo’s “
participating
in industrial action/unlawful strike action
”,
as envisaged in the definition.
[27.]
It is trite that an applicant has to make
out its case in founding. The applicant has, in any event, not event
attempted to rectify
this in her replying affidavit. This after the
deponent for the respondents stated that a total of 518 workers had
been dismissed
– in other words not 158 and then later another
2 500 as alleged by the applicant. The deponent for the
respondents
furthermore stated that this happened in October 1987,
and in other words not on the date or dates alleged by the applicant.
[28.]
In dealing with this clear challenge the
applicant went no further in reply than to “
re-iterate
that
(her)
husband
was in fact an employee of the 4
th
respondent during 1987 and prior to that
”
and that he was dismissed “
all of
a sudden after one night shift when there was trouble at the mine
”.
Even then she therefore did not allege that the late Mr Domingo had
participated in industrial action or in an unlawful
strike and had
been dismissed because of that. She also did not challenge the
respondents’ version of the number of employees
that were
dismissed or the date of the dismissals, and in the circumstances it
can also not even be said that the applicant has
made out a case that
the late Mr Domingo was indeed one of the “
518
former employees
” referred to in
the definition.
[29.]
It follows that the applicant has not made
out a case that the late Mr Domingo would have been an eligible
beneficiary, as defined
in the trust deed, had he not passed on
before the Trust was created. The application should on this basis
alone be dismissed.
IMPLIED
VARIATION OF THE TRUST DEED?
[30.]
The trust deed initially provided for a
payment of R3 000.00 to eligible employees/beneficiaries who
filed claims timeously
and properly. This amount was then not
acceptable to the dismissed workers. This is a bit strange, seeing
that Mr Moyo had purportedly,
as a representative of the NUM,
represented all of them in signing the trust deed.
[31.]
Be that as it may, the 4
th
respondent then offered to increase the amount to R40 000.00,
which was eventually accepted and paid out to dismissed employees
who
subsequently lodged claims.
[32.]
That offer was contained in a letter dated
27 August 2008, in which it was stated that the offer would be
kept open for payment
to any person “
identified
as part of the 1987 former Kuruman employees
”.
[33.]
The applicant has placed much store on the
fact that this letter, and also a letter from the 4
th
respondent years later (on 25 September 2012) did not, in
referring to the former Kuruman employees, distinguish between those
still alive and those not.
[34.]
In my view this is of no significance at
all. It is very clear, particularly in the first letter and its
reference to the “
1987 former
Kuruman employees
”, that
reference was being made to the eligible employees, as defined in the
trust deed.
[35.]
The provisions of the trust deed could in
any event never have been amended in this way and, even if it was
theoretically possible,
the contents of neither letter could by any
stretch of the imagination be interpreted as having been intended as
a variation of
the provisions of the trust deed pertaining to which
employees would be eligible to claim through the mechanism of the
Trust.
[36.]
In any event, what the applicant has not
mentioned in her founding affidavit, but was pointed out in the
answering affidavit, is
that the 4
th
respondent’s attorneys, in a letter dated 30 September
2013, made it clear to the applicant’s attorney that the
offer
of R40 000.00, and of an extended period within which to lodge
claims, would only apply to employees that “
qualify
as eligible claimants under the provisions of the trust deed
”.
On 7 October 2013 attorneys Cliffe Dekker Hofmeyr, purporting to
act on behalf of “c
omity
(sic)
members
”
(presumably referring to members of the DWC), accepted the offer of
R40 000.00 on these terms.
[37.]
The applicant says that the attorneys were
not, in doing so, mandated to act on behalf of spouses, dependants
and legal successors
of deceased workers, but the deponent for the
respondents has pointed out that the attorney had in fact lodged more
than one claim
in respect of employees who were no longer alive, and
which claims were rejected. The lodging of those claims is indeed
difficult
to reconcile with an allegation that the attorney had not
been representing people who wanted to obtain payment in the names of
already deceased employees.
CONSTITUTIONALITY
[38.]
The applicant’s case is clearly based
on the allegation that her late husband had, when he was dismissed,
acquired a right
to be compensated by the 4
th
respondent, and that upon his death the right vested in the deceased
estate.
[39.]
The question is, however, whether this
right could be said to have been affected by the provisions of the
trust deed. In this regard
it is important, in the first place, that
the applicant says that Mr Moyo, in accepting the terms of the trust
deed on behalf of
the dismissed workers, was not authorised to
represent her late husband’s successors. She says that as far
as she knows Mr
Moyo was also not authorised to do so on behalf of
the successors of deceased minors generally.
[40.]
In this the applicant appears to be
correct. It is borne out by the fact that the provisions of the trust
deed apply only to workers
who were alive when the settlement was
reached and when the Trust was created. It is only those employees
whose claims were compromised
in the settlement, and that are the
subject of the provisions of the trust deed. The definition of
“
beneficiaries/eligible
beneficiaries
”, read with the
qualification already referred to in clause 8.2.1, makes this very
clear.
[41.]
Mr Strydom placed much store on clause 3.3
of the trust deed, in terms of which each beneficiary would receive
R3 000.00 “
as a donation and
in full and final settlement of all or any claims or grievance
against the founder
”, and in
particular on the word “
all
”.
The parties to the negotiations and to the trust deed quite clearly
did not intend to settle or compromise claims by successors
of
already deceased workers. They were, on the evidence, not even aware
of the existence or potential existence of such claims
at the time
and they were in fact at pains to make sure that such successors
would not be beneficiaries for purposes of the Trust.
The word “
all
”
quite clearly was not intended to refer to such claims. Lastly, on
the applicant’s own version such successors were
not
represented in those negotiations and, whatever the parties to the
negotiations and to the conclusion of the trust deed may
therefore
have intended, could therefore not have prejudiced the rights of such
successors.
[42.]
Therefore, even if there exists a claim for
compensation in the deceased estate, an issue upon which I do not
need to make a finding,
that claim is in no way compromised or
affected by the provisions of the trust deed in its present form.
Nothing would prevent
the applicant, theoretically, from pursuing
such a claim against the 4
th
respondent outside the provisions of the trust deed.
[43.]
On the papers there does not exist any
dispute about this in particular. Mr Strydom’s only answer to
this was that litigation
against the 4
th
respondent would be expensive and that the applicant would not be
able to afford it. Apart from the fact that it is strange then
that
the applicant can apparently afford the present litigation, this
would of course not detract anything from the legal existence
of such
a remedy.
[44.]
Mr Strydom argued that provisions that
allow for only claims of live employees, discriminate unfairly
against the successors of
the late Mr Domingo. In my view they do
not.
[45.]
The trust property, which initially
consisted of R2 000 000.00 donated by the 4
th
respondent, has not been shown to be the only source from which
compensation could be paid. If it has not been shown that the
applicant would have had no other way of pursuing the claim against
the 4
th
respondent, on what basis can she be said to have been unfairly
discriminated against? To put it another way, could it be said
that
the applicant has shown that, despite the existence of another
remedy, it had nevertheless been unfair not to include a claim
like
hers as eligible for compensation by means of the mechanism created
in the trust deed? Again, I am of the view that the answer
to this
should be in the negative.
[46.]
In
this regard it must be kept in mind that the applicant’s case
is not premised upon any of the grounds set out in section
9(3) of
the Constitution. It was therefore for the applicant to show that any
perceived discrimination is unfair
[3]
.
A crucial factor in the determination of whether discrimination has
been shown to be unfair as envisaged in the Bill of Rights,
is the
impact of the discrimination on the complainant
[4]
.
[47.]
What the 4
th
respondent was confronted with at the time of the negotiations was
the claims of living workers. Potential claims in the estates
of
dismissed workers who may already have passed on were not the issue
and not in the contemplation of the negotiating parties.
Due to a
lack of records after such a long time there was in fact not even
certainty about the identity of living workers who had
been dismissed
as a result of participating in the industrial action/unlawful strike
action. It would not, in the circumstances,
have been unfair of the
4
th
respondent to settle only the claims that it was being confronted
with.
[48.]
Mr
Strydom has not directed my attention to any authority for the
proposition that parties that want to settle a claim should
anticipate
the possibility of more claims and should in their
settlement make provision for that, and that such a requirement would
be in
the public interest. The case of
Barkhuizen
v Napier
[5]
,
on which Mr Strydom relied, is clearly distinguishable and does not
assist him.
[49.]
According to the applicant Mr Domingo had a
valid claim for compensation when he passed away in 2001. Nothing
would have prevented
her then from pursuing that claim, assuming of
course that she would have had the legal standing to do so herself.
When the 4
th
respondent decided to agree to settle the claims of living workers in
2008, more than two decades after the dismissals, it could
in fact
probably have resisted those claims on the basis of them having
become prescribed. The relief that the applicant is now
seeking, a
further 10 years down the line, would effectively deprive the 4
th
respondent from this defence, and provisions that would allow this
would in fact discriminate unfairly against the 4
th
respondent.
[50.]
The applicant says that she finds it
strange that, while the trust deed does not provide for claims in
respect of employees no longer
alive when the claim is lodged, it
does provide for the payment of claims that were lodged while
employees were still alive, but
subsequently died. There is nothing
strange or anomalous about this, having regard to the uncertainty
that existed as regards the
identity of the particular group of
employees.
[51.]
Mr Strydom also argued that the Trust was
in fact the product of unequal bargaining power. I must say that I
find this argument
difficult to understand. On the applicant’s
own version neither Mr Domingo nor she was a party to the
negotiations that culminated
in the trust deed, nor were they
represented by the NUM or the DWC in the creation of the Trust or in
the acceptance of the benefits
in terms thereof. It is difficult to
fathom then how either Mr Domingo or the applicant could in the
circumstances have been the
victim of unequal bargaining.
[52.]
The DWC may have had inferior bargaining
power from a legal point of view, in the sense that legal steps
against the 4
th
respondent long before that had failed and that any claims that may
have remained in existence had probably in the meantime become
prescribed, but the undue pressure that had nevertheless since then
been exerted upon the 4
th
respondent had effectively put the DWC in a strong bargaining
position insofar as the 4
th
respondent was by then desperate to end the harassment.
[53.]
Mr
Strydom also relied on the
audi
alteram partem
principle and argued that the successors of deceased workers were
never given the opportunity to take part in the negotiations
that led
to the acceptance of the trust benefits. In the first place, and as I
have already pointed out, it was not at that stage
known to the 4
th
respondent, or apparently to any of the parties involved in the
negotiations, that one or more of the dismissed workers had already
passed away. It is in any event difficult to conceive how the
principle could find application in a contractual setting, and
particularly
on the facts of this case
[6]
.
Mr Strydom has not argued, neither has such a case been made out,
that the successors’ right to be heard had somehow come
into
existence tacitly
[7]
.
[54.]
It is also relevant, for purposes of the
exercise of the discretion whether or not to grant declaratory
relief, that the applicant’s
attorney has on her own version
been in possession of the trust deed from 24 June 2014, after
she had even earlier, when she
had lodged the claim already referred
to, been made aware that only claims by employees alive at the time
that the claim is lodged
would, in terms of the trust deed, be
eligible for payment. The applicant and her attorney were therefore
since then aware of the
issue of the eligibility of the late Mr
Domingo and his successors to claim, and the amendments effected to
the trust deed in December
2016 made no difference to this. The only
explanation that Mr Strydom could give for why this application was
only brought in January
2018 was that the claims of live dismissed
workers were first attended to and that legal opinion was then
obtained about the position
of successors of deceased workers.
SECTION
13 OF THE TRUST PROPERTY CONTROL ACT
[8]
[55.]
The applicant has, apart from what has
already been said, also not made out any case for the variations of
the trust deed that are
now sought.
[56.]
It can in no way be said that the founder
of the Trust, namely the 4
th
respondent, did not foresee the consequence that successors of
workers that had already passed on would not be entitled to payments
from the trust estate. This is what is required by section 13 of the
Act. It is very clear that this was in fact precisely the
consequence
intended by the founder.
[57.]
The provisions of clause 8.2.1 of the trust
deed to not hamper “
the
achievement of the objectives of the Founder
”,
as envisaged in section 13(a) of the Act. On the contrary, they
indeed achieve the objective of certainty as far as claims
to shares
of the trust property and the identity of claimants are concerned.
[58.]
They also do not prejudice the interests of
the beneficiaries of the Trust, as envisaged in subsection (b).
[59.]
Lastly they are also, as I have in effect
already found, not “
in conflict
with public interest
” as
envisaged in subsection (c), and as contended on behalf of the
applicant.
CONCLUSION
[60.]
I am therefore of the view that, even if it
could be said that the applicant has shown that her husband would
have been an eligible
beneficiary had it not been for his demise
before the creation of the Trust, and even if the applicant could
furthermore be said
to have legal standing, she has in any event not
made out a case that the relevant provisions are unconstitutional.
[61.]
The need for the consequential relief that
has been claimed would then fall away.
[62.]
It follows that I am of the view that there
is no merit in the application and that it should be dismissed.
[63.]
There is no reason why the costs should not
follow the result. Although the applicant has, as already mentioned,
couched the relief
sought in the notice of motion in terms suggesting
that she is litigating on behalf of all successors of mine workers
already deceased
when the Trust was created, she has clearly not been
authorised to do so. In fact, she has not even herself shown that any
of the
other dismissed workers had, like the late Mr Domingo, passed
on by the time that the Trust was created. The applicant cannot in
my
view be seen as a litigant who has pursued a constitutional issue in
the public interest.
[64.]
It furthermore has to be kept in mind that
the application in any event also falls to be dismissed on
non-constitutional grounds.
[65.]
In the premises the following order is
made:
THE APPLICATION IS
DISMISSED WITH COSTS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant:
ADV W A F STRYDOM
(Instructed by
Hugo
Mathewson & Oosthuizen
)
For
the 1
st
, 2
nd
, 3
rd
and
ADV A N SNIDER
4
th
respondents:
(Instructed by
Duncan & Rothman Inc.
)
[1]
66
of 1965
[2]
Compare
Minister
of Land Affairs and Agriculture and Others v D&F Wevell Trust
and Others
2008 (2) SA 184
(SCA) para [43]
[3]
Compare
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC)
(1997 (11) BCLR 1489
(CC)) para [48]
[4]
See
South
African Constitutional Law The Bill of Rights, Cheadle, Davis and
Haysom, p4 - 51
[5]
2007
(5) SA 323 (CC)
[6]
Compare
Gründling
v Beyers & Others
1967 (2) SA 131
(W) at 141D – E;
Lamprecht
and Another v McNeillie
[1994] ZASCA 45
;
1994 (3) SA 665
(A) at 668B - H
[7]
Compare
Transman
(Pty) Ltd v Dick and Another
2009 (4) SA 22
(SCA) para [28]
[8]
57
of 1988