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[2017] ZAKZDHC 29
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Westwood Insurance Brokers (Pty) Ltd v Ethekwini Municipality and Others (8221/16) [2017] ZAKZDHC 29 (31 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 8221/16
In the matter between:
WESTWOOD
INSURANCE BROKERS (PTY)
LTD
APPLICANT
v
ETHEKWINI
MUNICIPALITY
FIRST
RESPONDENT
CHAIRPERSON: ETHEKWENI
MUNICIPALITY
BID EVALUATION
COMMITTEE
SECOND
RESPONDENT
CHAIRPERSON: ETHEKWENI
MUNICIPALITY
BID ADJUDICATION
COMMITTEE
THIRD
RESPONDENT
NC SOUTH WEST BROKERS
CC
FOURTH
RESPONDENT
WANDA FINANCIAL
CONSULTANTS (PTY) LTD
FIFTH
RESPONDENT
WATERSURE (PTY)
LTD
SIXTH
RESPONDENT
INDWE RISK SERVICES
(PTY) LTD
SEVENTH
RESPONDENT
MDUDUZI CHRISTOPHER
NKOMO N.O.
EIGHTH
RESPONDENT
and
KAMLESH
RAJOO
FIRST
INVITED PARTY
GREGORY STANDISH
EVANS
SECOND
INVITED PARTY
Date of Hearing : 6
July 2017
Date of Judgment : 31
July 2017
ORDER
The
following order is granted:
The
application for leave to appeal is granted to the full court of the
KwaZulu-Natal, Division with costs being costs in the appeal.
JUDGMENT
D.
Pillay J
The
Crux
[1]
Why did the Ethekwini Municipality, the
first respondent, award a tender for the provision of insurance for
water loss to a bidder
who tendered professional indemnity insurance?
This is the question I posed to counsel appearing for Ethekwini in
the opposed application
on 15 November 2016. The question resulted in
Ethekwini conceding that the award should not have been made and
tendering to pay
the costs of Westwood Insurance Brokers (Pty) Ltd,
the unsuccessful tenderer and applicant in the review. That question
remains
unanswered ever since I first raised it, despite the lapse of
more than six months, the expansion of the court record in the
application
for leave to appeal to about 300 pages and, an invitation
to all the officials involved in the process that resulted in the
decision
to make the award, to make representations to avoid a cost
order against them personally.
[2]
Not a single employee offered an
explanation as to why indemnity insurance was accepted instead of
water loss insurance. Worse still,
not a single employee acknowledged
that the award was irregular and that but for Westwood’s urgent
application, a socio-economic
catastrophe was inevitable. No one has
apologised or shown remorse. If the employees were unaware at the
time they were processing
the award, they could not have been in any
doubt after Ethekwini’s concession and the reasons for my
judgment, that the award
was unlawful. In the absence of any
explanation from the employees I concluded that there was none, at
least none that was lawful,
reasonable or justifiable.
[3]
Furthermore, the failure to acknowledge the
irregularity convinced me that those involved were also not willing
to be held accountable
for their irregular decisions. Ethekwini
fortified this conviction not only by conceding the application, by
failing to advance
any reason for either making the unlawful award or
by subsequently capitulating in the urgent application but also,
vitally, by
failing to take up the court’s invitation to make
representations regarding its proposed order for costs
de
bonis propriis
. If the failure and
persistent refusal by Ethekwini and its employees to account for
their unlawful conduct was baffling then,
now this application for
leave to appeal against the judgment dated 5 April 2017 in terms of
which the court granted a special
order indemnifying Ethekwini
against costs poses another question: Whose interests does Ethekwini
represent in applying for leave
to appeal against a judgment that is
entirely in its favour and those of the people its officials are
elected or appointed to represent?
[4]
In preparing for the hearing of this
application it became clear that there was no voice for the people of
Ethekwini. To say that
by applying for leave to appeal Ethekwini is
seeking advice from the appellate courts on the propriety of the
order avoids the
question. It is also not correct. If it is advice
that Ethekwini wants then it could simply choose to abide by the
decision of
the appeal court. Better still, it could defend the
judgment favouring its own and the public interest. Instead,
Ethekwini has
positioned itself against the judgment. Hence the
second unanswered question.
[5]
Ethekwini’s stance and the lack of
representation of the people of the city prompted me to ask the
Chairman of the Bar Council
to assign counsel to represent notionally
the people of the city. For this the court is indebted to the Bar and
to Mr Broster SC
who rose to the occasion with a
pro
bono
brief on less than 48 hours
notice.
The
Background
[6]
On 15 November 2016 the court granted an
order in terms of which Ethekwini consented to the setting aside of
its decision and that
of the arbitrator to award South West the
tender. It also consented to paying the costs of Westwood’s
application including
the costs of employing senior counsel. The
court also granted orders, not by consent, substituting Westwood as
the party to be
awarded the tender. The court reserved making an
order for the recovery of costs by Ethekwini from its employees
involved in awarding
the irregular tender, pending responses to its
invitation to any person having an interest in such an order to make
written submissions
to it by 22 November 2016. This was the court’s
first call for accountability.
[7]
No submissions were received. Westwood had
no further interest in the proceedings and withdrew. On 8 December
2016 the court made
a second call.
[8]
Acting
mero
motu
the court gave specific instructions to Ethekwini, its manager and
municipal mayor regarding service of that judgment on all the
persons
‘who participated in support of awarding the tender to South
West.’ Such persons were invited to show cause
on affidavit why
they should not be ordered to indemnify Ethekwini for all the costs
that it had incurred in the litigation by
paying costs
de
bonis propriis
,
jointly and severally, the one paying the others to be absolved. Such
persons were also invited to indicate whether they wished
to be heard
in open court otherwise the matter would be disposed of in chambers
on the documents delivered to the court by 20 February
2017. The
court received affidavits from all but one employee who was involved
in awarding the tender.
[9]
On 5 April 2017 the court delivered its
judgment on costs against which this application for leave to appeal
lies. In terms of that
order, 15 employees of Ethekwini and the
eighth respondent arbitrator were ordered to share equally 50 per
cent of the costs Ethekwini
was ordered to pay to Westwood. The
fourth respondent, NC South West Brokers CC, was ordered to pay the
balance of the costs. The
court also ordered the acting city manager
or her replacement to serve a copy of the judgment on the mayor and
all those who were
ordered to pay the costs; she also had to report
to the court on affidavit about the steps taken to recover the costs
by 30 July
2017 and monthly thereafter.
[10]
Two employees namely Kamlesh Rajoo and
Gregory Standish Evans who were members of the Bid Evaluation
Committee (BEC) joined this
application for leave to appeal as the
first and second interested parties respectively.
The Grounds of Appeal
(a)
Accountability
[11]
The
grounds of appeal, both substantive and procedural, are for alleged
misdirection of law and facts. At the outset I indicated
to counsel
that I would be granting leave to appeal not least because of the
novelty of the remedies ordered. However, prefacing
every ground for
leave to appeal is the unanswered questions posed above.
Preliminarily a novel question for the court hearing
the appeal is
whether an organ of state and persons in the position of the
employees who participate in delivering unlawful decisions
should be
allowed the right to appeal against cost and related orders when they
refuse to account for the unlawfulness? Inevitably,
recognising the
entity’s and the individual’s right of access to a court
must be balanced with the peoples’ right
to enforce the
constitutional obligation of all persons, especially public entities
and employees to function ethically, accountably
and
transparently.
[1]
The novelty of
such a decision compels me to grant leave in this instance.
(b)
The court erred or misdirected itself in assuming jurisdiction or the
power to grant the orders mero motu and against non-parties.
[12]
Counsel
for Ethekwini helpfully tracked the evolution of precedents of cost
orders against public officials. The courts resisted
imposing cost
orders against non-parties to the litigation. Initially they evolved
slowly
[2]
but recently with
alacrity. A small breakthrough emerged first in
Mitchell
v Mossel Bay Liquor Licensing Board
[3]
and later in
Coetzeestroom
Estate
and
G.M. Co.
v
Registrar of Deeds;
public
officials might be mulcted in costs if their actions are
mala
fide
or grossly irregularly.
[4]
Otherwise public officials could not be held personally liable for
costs.
[13]
The
jurisprudence shifted in
Deneysville
Estates Ltd
v
Surveyor-General,
[5]
which held that the courts have the discretion to award costs against
public officials if the circumstances justify doing
so.
Omnia
Fertilizer Ltd
v
Competition
Commission
;
In re
Competition
Commission
v
Sasol
Chemical Industries (Pty) Ltd
&
other
s
confirmed the rule in
Coetzeestroom
but
cautioned against cost orders against public officials who carried
out their duties mistakenly but in good faith and against
the rule
becoming so rigid as to fetter judicial discretion.
[6]
[14]
In
Mlatsheni
v
Road
Accident Fund
[7]
the Eastern Cape court raised the behavioural bar for public
employees thus:
‘
Organs
of State are not free to litigate as they please. The Constitution
has subordinated them to what Cameron J, in
Van
Niekerk v Pretoria City Council
, called
‘a new regimen of openness and fair dealing with the public’.
The very purpose of their existence is to further
the public
interest, and their decisions must be aimed at doing just that. The
power they exercise has been entrusted to them and
they are
accountable for how they fulfil their trust.
It is
expected of organs of State that they behave honourably – that
they treat the members of the public with whom they deal
with
dignity, honestly, openly and fairly.’
[8]
(Footnotes
omitted)
[15]
Responding to abuse of a position of power
by an employee of the Road Accident Fund the court warned that:
‘
.
. .if this type of conduct continues, the time may have well arrived
for orders of costs
de
bonis propriis
to
be awarded against employees. . . .’
[9]
[16]
Then
it was time for the Supreme Court of Appeal to echo the warning in
Gauteng
Gambling Board & anothe
r
v
MEC
for Economic Development, Gauteng
.
[10]
Critical of the MEC in that case for being indignant, playing the
victim and attempting
‘
to
turn turpitude into rectitude’
[11]
the
court warned:
‘
It
is time for courts to seriously consider holding officials who behave
in the high-handed manner described above, personally liable
for
costs incurred. This might have a sobering effect on truant public
office bearers.’
[12]
Mogale
City
v
Fidelity
Security Services
(Pty)
Ltd &
others
[13]
reiterated the Supreme Court of Appeal’s earlier warning.
[17]
Eventually
the Constitutional Court was seized with the question in
MEC
for Health, Gauten
g
v
Lushaba
.
[14]
The Constitutional Court broke through the resistance against orders
de
bonis propriis
to affirm as a principle that cost orders against public officials
are permissible provided they have adequate notice to make
representations. It set aside the order of the High Court that
imposed a cost order against public officials personally not because
cost orders
de
bonis propriis
against
public officials were impermissible but because of the strange
procedure the trial court had adopted. I will deal with the
issue of
representations under the non-joinder ground below.
[15]
[18]
Finally
Black
Sash Trust v Minister of Social Development & others (Freedom
Under Law intervening)
[16]
(
SASSA
)
put to rest the debate about whether in principle, public officials
can be held personally liable for costs. In
Democratic
Alliance v South African Broadcasting Corporation Soc Ltd (“SABC”)
& others; Democratic Alliance v Motsoeneng
& others
the
Western Cape Court extended the principle of imposing costs
de
bonis propriis
to directors as persons performing functions in a fiduciary capacity
on behalf of the public.
[17]
[19]
Over almost a century, this evolution of
jurisprudence that now holds those exercising public power to account
through orders for
costs
de bonis
propriis
has come to
reflect
societal changes. As public officials become more brazen, the courts
are emboldened commensurately to respond naturally,
intuitively and
pragmatically to do justice. Quite simply, if society was not
afflicted so detrimentally by those exercising public
power, there
would never be a need for the courts to order costs
de
bonis propriis
against them. To
challenge the court’s powers and jurisdiction in these
circumstances is to misdiagnose the problem. A misdiagnosis
leading
inevitably to the wrong prescription will not cure the affliction. A
prescription to prevent courts from ordering costs
de
bonis propriis
against public
officials, irrespective of whether they are parties to the litigation
or not, would serve no purpose but to blind
the court to its
constitutionally entrenched oversight function. That would be
untenable.
[20]
Sight
should not be lost of the origins of the court’s power and
jurisdiction to award costs if it is just and equitable to
do so in
constitutional matters.
[18]
It
originates in s 172(1)
(b)
of the Constitution. Procurement is a constitutional matter. So is
the right to just administrative action
[19]
and the values and principles governing public administration.
[20]
My judgment of 8 December 2016 identifies the source of the court’s
power and jurisdiction and provides appellate authority
for its
orders.
[21]
[21]
The primary difference in this case
relative to the precedents above is that the court was limited to
hearing only one side once
Westwood withdrew from the proceedings.
Acting
mero motu
in the circumstances was entirely unavoidable. Not to act meant that
the public would be saddled unjustifiably with the costs.
None of the
applicants in this application addressed the court on why the public
or anyone else should have to foot the bill for
illegalities
perpetrated by them as would be the case if they did not indemnify
Ethekwini.
[22]
The
authorities cited in support of the submission
that
it is not for a court to raise issues not traversed in the pleadings,
even when a constitutional complaint arises, are distinguishable
on
the facts and the law in this case and therefore irrelevant.
[22]
Moreover,
the law reports evidence many instances in which appellate courts
decide cases on points not pleaded or even when counsel
expressly
disavows a submission that becomes the headstone of a judgment.
[23]
Perfect congruence between the reasons for decisions as an
adjudicator’s response to the ‘proofs and arguments’
adduced
through the participation of the litigants,
[24]
is an ideal we strive for but one that proves to be increasingly
illusive as the complexity of issues and the diversity of morality
escalate,
[25]
and
participation and dialogue in the search for common aims and
reciprocity de-escalate.
[23]
Ethekwini
and all the affected employees had two opportunities to make
representations before the court granted the cost orders.
Challenges
to the court’s jurisdiction or its power to grant the orders
mero
motu
should have been raised then. That is the kind of engagement that is
expected of a municipality and other participants in a constitutional
democracy.
[26]
The court
should not be misunderstood as saying that Ethekwini has no right of
access to a court by applying for leave to appeal;
on the contrary,
such access as it seeks should be encouraged if it is exercised
consistently with the values and practices of
a participatory
democracy. Dialogue about the court’s powers and jurisdiction
should have commenced earlier when the court
invited representations
rather than later in the grounds of appeal. It could have changed the
course of events.
[24]
In the circumstances the court had the
jurisdiction and the power, supported by precedent, to impose orders
for
costs
de
bonis propriis
and related orders
regarding the recovery of costs against public officials and
employees. No appeal lies against that part of
my judgment. What is
novel and therefore appealable, is whether the court could do so
mero
motu
and against non-parties to the
litigation.
(c)
The court impermissibly and improperly trenched upon the separation
of powers between it and Ethekwini.
[25]
As stated above, s 172(1)
(b)
of the Constitution bestows upon the courts the power and
jurisdiction to make any order that is just and equitable.
Furthermore,
determining costs is a matter entirely within the
discretion of the court. Saddling the public with the costs would
have been unjust
and inequitable. If Ethekwini or any interested
person had represented that the public would not be footing the bill
that would
have been the end of the court’s hold on the matter.
None did. Thus, if those who processed the award were not held liable
for the costs then it would have fallen on the public purse to foot
the bill.
[26]
Additionally, if Ethekwini had made
representations to assure the court that it would act in terms of
s
176
of the
Local Government: Municipal Finance Management Act 56 of
2003
and the Code of Conduct for Municipal Staff Members read with
Schedule 2 of the
Local Government: Municipal Systems Act 32 of 2000
to hold the responsible employees accountable for the irregularity,
the court would have exercised its discretion differently.
If there
was any reliable information in the public domain to show that
historically Ethekwini had acted against those who flouted
procurement rules, the court would also have exercised its discretion
differently. Instead, the 2015-16 report of the Auditor General
reveals the following:
‘
eThekwini
Metro regressed from a clean audit to an unqualified audit opinion
with findings on compliance. The metro’s routine
monitoring
controls over procurement processes were not sufficient to prevent
repeat instances of irregular expenditure.’
[27]
And
‘
Five
municipalities (uThukela District, uMkhanyakude District, uMzinyathi
District, eThekwini Metro and Msunduzi) contributed R1,24
billion
(51%) to the total irregular expenditure. The main cause of this
irregular expenditure was deviations that were either
not approved or
not justifiable.’
[28]
And
‘
Hence,
the central theme of this report is accountability.
The
key drivers of internal control, being leadership, financial and
performance management as well as governance, had shown minimal
improvement since the previous year. This slow response by the
leadership to our consistent messages over the years to improve
internal controls and address risks, was the main root cause of poor
audit outcomes. Continued vacancies and instability in key
positions
as well as inadequate consequences for poor performance and
transgressions further contributed to these outcomes.’
[29]
[27]
This
information and Ethekwini’s stance in this application fortify
my view that the order was justified. Notwithstanding
my order, if
Ethekwini was minded to investigate how the irregularity arose, who
was responsible for it, and to distinguish between
degrees of
culpability amongst those who participated in the processes, it could
have applied to vary the order. Such an application
for variation
would have been entirely consistent with the approach to dialogical
constitutionalism, a pragmatic way in which the
courts, litigants and
organs of State engage meaningfully in the on-going search to improve
the quality of justice for all.
[30]
(d)
The court erred or misdirected itself by failing to join the
employees before ordering them to pay costs
.
[28]
The
right to a fair hearing is well entrenched in our jurisprudence.
[31]
In
Black
Sash Trust v Minister of Social Development & others (Freedom
Under Law intervening)
(
SASSA
)
the
court found that further scrutiny was necessary:
‘
.
. .but that can only be done after the potentially affected parties
are joined to the proceedings in their personal capacities
and given
an opportunity to explain their conduct in relation to each of these
issues.
’
[32]
[29]
However, the
following extract from
Lushaba
guided my
decision to request representations:
‘
Another
principle breached is that, without notice and opportunity to make
representations,
the High Court punished the three officials. It is a fundamental
principle of our law that no one should be condemned without
a
hearing. This is part of the rule of law which is foundational
to our constitutional order.’
[33]
(my
emphasis)
[30]
Subsequent to
Lushaba
and the judgment at issue, the Constitutional
Court found
in
SASSA
that there were
reasonable grounds for investigating whether its remedial order was
disregarded and, if so, whether this was wilful.
That the Minister
and SASSA were liable in their official capacity for the costs was
clear; what was not was the possibility that
individuals may have
played a material role. To provide for a further opportunity for
explanation the court ordered the Minister
to show cause on affidavit
why she should not be joined in her personal capacity and pay costs
of the application from her own
pocket.
[31]
The effect of the order in this case
is no different from that in
SASSA
granted in similar circumstances. The Constitutional Court did not
stipulate joinder as the exclusive means of providing an opportunity
to be heard. To insist that this court should have formally granted a
rule
nisi
joining the interested parties would be to prefer form to substance.
In no way did this court’s call for representations
deny the
interested parties all the rights available to persons formally
joined.
[32]
In this case as in
SASSA
,
the prospect of recovering costs
de
bonis propriis
emerged only after
Ethekwini conceded defeat without accounting for the unlawfulness.
The call for representations was an open
one with the court having no
evidence whatsoever of the reasons for Ethekwini making an irregular
award and subsequently conceding
that it was unlawful. The
representations could have ranged from anything between identifying a
person who intimidated officials
into making an irregular award to
employees being genuinely mistaken or unaware of the difference
between professional indemnity
insurance and water loss insurance.
Consequently the call for representations was intended to seek
guidance on how the court should
take the matter further.
[33]
The submission that the court should have
formally joined interested parties to the proceedings would have been
a good one if there
were factual disputes about the unlawfulness. As
in
SASSA
,
the substantive merits had already been determined. That Ethekwini
accepted an offer of indemnity insurance instead of insurance
for
water loss was a fact never in dispute.
That
the irregularity was substantive and self-evident was also not in
dispute. Neither was the fact there has been no explanation
because
there can be none, at least not one that is rational. Therefore the
award of the tender in this instance was distinguishable
from others
in which disputes of fact and the possibility of rational
explanations arose. Disputes of fact require processes in
which they
can be resolved by allowing every interested person an opportunity to
produce evidence and to be heard. An adversarial
approach would have
been adopted if disputes of fact had emerged from the
representations, e.g. about who caused the illegality.
That approach
was not required in this instance either on the substantive merits or
on the proposed order for costs
de bonis
propriis
.
[34]
Hence
guided by
Lushaba
,
the process the court adopted was appropriately attenuated to
receiving representations from interested parties before imposing
the
cost orders against them.
[34]
[35]
The invitation to make submissions in
writing, and if so desired, in open court, was wide enough for any
interested person to seek
legal counsel, to ask for a postponement,
to ask to be joined formally or ask for any other procedural
(re)arrangements. No one
asked for any of these options, not even to
be heard in open court. However, another court might find that more
should have been
done to ensure that interested persons had a better
opportunity to be heard.
(e)
The court erred or misdirected itself by failing to establish bad
faith or dishonesty on the part of the employees before ordering
them
to pay costs.
[36]
All
interested parties had two opportunities to state why they processed
the award in the way they did. None disclosed whether he
or she acted
in good or bad faith, dishonestly, negligently, mistakenly or out of
genuine ignorance. Hence the court had no option
but to found its
decision to award costs
de
bonis propriis
on
the refusal to account for an irrational decision. A refusal to
account is unconstitutional. The onus rests on those refusing
to
account to show why they should not be mulcted with costs or
penalised in some other way. Another court may come to a different
conclusion about the duty to account.
(f)
The court failed to consider that its order would terrorise and
paralyse employees into not doing their jobs out of fear that
every
little error would be met with extreme sanction.
[37]
No one took the court into its confidence
to disclose what the ‘little error’ was in this case. It
is this refusal to
disclose that attracts the punitive cost orders.
That punishment must fit the offence is an essential tenet of our
common law now
well entrenched in our constitutional and labour law
jurisprudence. If an error is indeed little, the sanction will be
commensurately
slight. However, when the error is a failure to
account in the face of a constitutional obligation to do so and when
the consequences
for the people of the city are so dire, the error is
not little, the sanction of one-fifteenth of 50 per cent of the costs
hardly
extreme.
[38]
The
committee system of procurement leaves little scope for errors. A
decision is not that of an individual even though an individual
eventually signs off the award. It is three layers of committees that
contribute in various ways to the decision. Therefore
the
system is designed precisely to entrench and inculcate a
bureaucratic,
and
for the most part, a tick box approach to procurement. Honest
employees attentive to their responsibilities need suffer no
paralysis. In the unusual instance of a genuine error occurring
employees could escape liability and punishment but only if they
account fully for how the error occurred. Without accountability,
transparency and remorse no reprieve is permissible is a basic
tenet
of our natural law.
[39]
At the primary level bids that meet the
threshold requirements are accepted and those that do not are
rejected. The bid in this
case should not have been allowed to pass
that threshold. At the secondary BEC level higher degrees of skill
and expertise operate.
It was at this level that the two interested
parties in this application functioned. Ms Rajoo is an attorney. She
was engaged for
her expertise as such in the BEC. Nowhere in her
lengthy representations does she ever say that she alerted her
colleagues on the
BEC to the obvious non-compliance of the bid with
the tender requirements, i.e. that it should not have passed the
threshold test
because the insurance tendered was not for water loss.
Irrespective of which meetings she did or did not attend, whenever
the tender
served before her for her input she failed to draw this to
the attention of her colleagues. If the significance of water and
indemnity
insurance escaped her when she was serving on the BEC –
which she does not say and which would be surprising for an attorney
involved in an R80 million tender to say – then she could not
have been in any doubt about the difference after receiving
both
judgments. Still she did not acknowledge the difference and disclose
what she did about it. These omissions from her representation
compelled the award of costs against her. As an attorney she could
not reasonably have misunderstood the purpose of inviting her
representations.
[40]
Likewise, Mr Evans is an engineer. As a
professional he had to know the difference between indemnity
insurance and water loss insurance.
He too does not say whether he
was alive to this difference at the time. He cannot hide behind his
mandate, which was to look to
the engineering aspects of tenders.
Even if engineering criteria were not at issue in the water and
sanitation project, his participation
was as a collective in the BEC.
A decision of the BEC is a decision of each of its members, unless a
member dissents. Mr Evans
does not say that he dissented.
Furthermore, as an engineer and a professional he had to know the
difference between professional
indemnity and water loss insurance if
he was attentive to the task. There is nothing technical or legal in
the distinction that
even a layperson functionally literate in
English cannot fathom. Another court may find differently on the
liability of the employees.
Order
[41]
The application for leave to appeal is
granted to the full court of the KwaZulu-Natal, Division with costs
being costs in the appeal.
_________________
D. Pillay J
APPEARANCES
Counsel
for the First Respondent : V. I Gajoo SC
(in
leave to appeal)
Instructed
by : S.D Moloi & Associates
Tel:
(031) 563 3112
Ref:
SDM/XSN/0420-16
Counsel
for Kamlesh Rajoo : M. Du Plessis
(First
invited party)
Instructed
by : Cox Yeats
Tel:
(031) 536 8500
Ref:
DVlcek@coxyeats.co.za
Counsel
for Gregory Standish Evans : J. P Broster
(Second
invited party)
Instructed
by : Larson Falconer Hassen Parsee Inc
Tel:
(031) 534 1600
Ref:
21/W260/001
Acting
as
amicus
curiae
:
L.B Broster SC
Date of Hearing : 6 July
2017
Date of Judgment : 31
July 2017
[1]
Section
195(1)(a), (f) and (g) of the Constitution of the Republic of South
Africa, 1996.
[2]
Texas
Co (SA) Ltd
v
Cape
Town Municipality
1926 (AD) 467 at 488.
[3]
Mitchell
v Mossel Bay Liquor Licensing Board
1954 (1) SA 398
(C) at 414-418.
[4]
Coetzeestroom
Estate
and
G.M. Co
v
Registrar
of Deeds
1902 TS 216
at 223-224.
[5]
Deneysville
Estate Ltd
v
Surveyor-General
1951 (2) SA 68 (C).
[6]
Omnia
Fertilizer Ltd
v
Competition
Commission
;
In
re
Competition
Commission
v
Sasol
Chemical Industries (Pty) Ltd & other
s
[2008] JOL 22197
(CT) paras 11-13.
[7]
Mlatsheni
v Road Accident Fund
2009 (2) SA 401 (E).
[8]
Mlatsheni
paras
16-17.
[9]
Mlatsheni
para
18.
[10]
Gauteng
Gambling Board & anothe
r
v
MEC
for Economic Development, Gauteng
2013 (5) SA 24 (SCA).
[11]
Gauteng
Gambling Board
para 54.
[12]
Gauteng
Gambling Board
para 54.
[13]
Mogale
City v Fidelity Security Services (Pty) Ltd & others
2015 (5) SA 590 (SCA)
[14]
MEC
for Health, Gauten
g
v
Lushaba
2017 (1) SA 106 (CC).
[15]
Lushaba
paras
6, 11, 19-22.
[16]
Black
Sash Trust v Minister of Social Development & others (Freedom
Under Law intervening)
2017
(3) SA 335 (CC).
[17]
Democratic
Alliance v South African Broadcasting Corporation Soc Ltd (“SABC”)
& others; Democratic Alliance v
Motsoeneng & others
[2017] 1 All SA 530
(WCC) para 222.
[18]
Section
172 of the Constitution.
[19]
Section
33 of the Constitution.
[20]
Section
195 of the Constitution.
[21]
Paras
61-69 of judgment dated 8 December 2016.
[22]
Fischer
& another v Ramahlele & others
2014
(4) SA 614
(SCA) para 14;
Phillips
& others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) para 39.
[23]
See
KwaZulu-Natal
Joint Liaison Committee v MEC for Education, KwaZulu-Natal &
others
2013
(4) SA 262
(CC) ('
KZN
Joint Liaison Committee
').
[24]
L
L Fuller & K I Winston ‘The Forms and Limits of
Adjudication’ (1978) 82
Harv.
L. Rev
353 at 388.
[25]
M
C
Dorf
‘Legal indeterminacy and institutional design’ (2003) 78
N.Y.U.
L. Rev
875 at 877.
[26]
C
Bateup ‘The Dialogic Promise: Assessing the Normative
Potential of Theories of Constitutional Dialogue’ (2006) 71
Brook.
L. Rev
..
Available at: http://brooklynworks.brooklaw.edu/blr/vol71/iss3/1
(accessed
10/12/15).
[27]
General report on the local government audit outcomes for 2015-16 at
154.
[28]
General report on the local government audit outcomes for 2015-16 at
155.
[29]
General report on the local government audit outcomes for 2015-16 at
10.
[30]
JC
Froneman
‘Legal Reasoning and Legal Culture: Our “Vision”'
Of Law’ (2005) 1
Stell
LR
at 19.
[31]
De
Beer NO
v
North-Central
Local Council and South-Central Local Council & others
(
Umhlatuzana
Civic Association intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC) para 11;
Stopforth
Swanepoel & Brewis Inc
v
Roya
l
Anthem
(Pty) Ltd & others
2015 (2) SA 539
(CC) paras 24-26. Both judgments are cited in
SASSA.
[32]
SASSA
para 75. .
[33]
Lushaba
para 18.
[34]
Administrator,
Transvaal, & others v Zenzile & others
1991
(1) 21 (A);
Administrator,
Natal,
& another
v
Sibiya
& another
[1992] ZASCA 115
;
1992
(4) SA 532
(A).