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[2021] ZASCA 143
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MultiChoice Support Services (Pty) Ltd v Calvin Electronics t/a Batavia Trading and Another (296/2020; 226/2021) [2021] ZASCA 143 (8 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 296/2020 &
226/2021
In the matter
between:
MULTICHOICE
SUPPORT SERVICES (PTY) LTD
APPELLANT
and
CALVIN
ELECTRONICS T/A BATAVIA
TRADING
FIRST
RESPONDENT
MUDUMELA
CALVIN THITOVHELWI
SECOND RESPONDENT
Neutral
citation:
MultiChoice
Support Services (Pty) Ltd
v
Calvin
Electronics t/a Batavia Trading and Another
(case
no 296/2020 and 226/2021)
[2021] ZASCA
143
(
8
October
2021)
Coram:
MBHA,
SCHIPPERS JJA and POTTERILL, PHATSHOANE and MOLEFE AJJA
Heard:
19
August 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on
8 October
2021.
Summary:
Law
of contract – cancellation in terms of provisions of contract –
contracting party applying for interdict to stop
cancellation pending
judicial review of decision to cancel – interdict granted –
cancellation of contract not reviewable
– does not involve
control of public power – not administrative action –
neither reviewable under principle of
legality – interdict
legally unsustainable – contempt of court – order based
on legally unsustainable interdict
– fatally defective –
requisites for contempt in any event not met – execution of
contempt order granted in terms
of s 18 of
Superior Courts Act 10 of
2013
– also defective – execution requirements not met.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Polokwane (Phatudi J sitting as court of
first instance):
The
appeal under case no 226/2021:
1
The appeal is upheld with costs on the scale as between attorney and
client, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
application is dismissed with costs on the scale as between attorney
and client, including the costs of two counsel, where so
employed.’
On
appeal from:
Limpopo
Division of the High Court, Polokwane (Tshidada AJ sitting as court
of first instance):
The
appeal under case no 296/2020:
1
The appeal is upheld with costs on the scale as between attorney and
client, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
application is dismissed with costs on the scale as between attorney
and client, including the costs of two counsel, where so
employed.’
JUDGMENT
Schippers
JA and Potterill AJA (Mbha JA and Phatshoane and Molefe AJJA
concurring)
[1]
These
are two related appeals. The first, which is with the leave of this
Court, is against an order of Phatudi J in the Limpopo
Division of
the High Court Polokwane (the high court), declaring that the
appellant was in contempt of an order issued by that
court (per
Makgoba JP) on 26 November 2019. The second, which is before us by
way of the appellant’s automatic right of appeal
in terms of s
18(3) of the Superior Courts Act 10 of 2013 (the Act), concerns the
correctness of an order made by the high court
(Tshidada AJ) that an
order which was the subject of an appeal (the contempt order by
Phatudi J), be put into operation.
The
facts
[2]
The
appellant, MultiChoice Support Services (Pty) Ltd (MultiChoice),
provides satellite television, audio channels and related facilities
and services to subscribers. The respondents, Calvin Electronics t/a
Batavia Trading and Mr Mudumela Calvin Thithovhelwi (hereafter
referred to as Calvin) in 2015 concluded an agency agreement in terms
of which Calvin, as agent, was responsible for soliciting
subscriptions, collection of subscription fees and activating
customer accounts (the agency agreement). The parties entered into
an
accredited installers agreement in 2016 (the installers agreement).
Under that agreement Calvin was appointed as an accredited
installer
of MultiChoice’s equipment and granted access to its
information technology systems known as the Clarity and SAP
systems
(MultiChoice’s systems).
[3]
On 30
September 2019 MultiChoice gave Calvin written notice of termination
of the agency agreement. A similar notice terminating
the installers
agreement was sent on 11 October 2019. For convenience, we refer to
these notices of termination of the agreements
as ‘the
September terminations’. The effects of September terminations
were mainly that Calvin could no longer trade
as a MultiChoice agent
and installer and was denied access to its systems. The September
terminations led to a flurry of seven
applications brought before
three different high courts during the period November 2019 to
February 2020.
[4]
On 8
November 2019 Calvin approached the Limpopo Division of the High
Court, Thohoyandou, on an urgent basis to reverse the effects
of the
September terminations. Phatudi J struck that application from the
roll for want of urgency and granted a punitive costs
order against
Calvin. That application was not re-enrolled by Calvin on the
ordinary court roll. Instead, it abandoned the application.
[5]
On 20
November 2019 Calvin filed an application in the high court,
Polokwane, to ‘review’ MultiChoice’s decision
to
terminate the agreements. In answer MultiChoice filed a notice of its
intention to raise questions of law at the hearing of
that
application.
[1]
These questions
were principally that the parties had agreed that MultiChoice was
entitled to cancel the agreements at its sole
discretion for any
reason whatsoever. Consequently, the decisions to terminate the
agreements could never constitute ‘administrative
action’
as defined in the Promotion of Administrative Justice Act 3 of 2000
(PAJA), and were thus not reviewable. The review
application has to
date not been prosecuted.
[6]
On 25
November 2019 Calvin issued a second urgent application in the high
court. On 26 November 2019 Makgoba JP granted
an order
(without reasons) directing MultiChoice to restore Calvin’s
access to the IT systems, pending the finalisation of
the review
application filed on 20 November 2019. MultiChoice was also
interdicted from preventing Calvin from performing its obligations
as
a service provider under the agency and installer agreements.
MultiChoice complied with this order and Calvin was granted access
to
its systems. MultiChoice was provided with the reasons for the order
of Makgoba JP only in February 2020.
[7]
After
MultiChoice had restored Calvin’s access to its systems, an
investigation by MultiChoice revealed that Calvin and its
employees,
in breach of both agreements, had engaged in misconduct and fraud
which caused MultiChoice to suffer financial loss
of R2 258
710.58. MultiChoice no longer wished to continue with the business
relationship between the parties and the agreements
were no longer
commercially viable to MultiChoice. Consequently, on 18 December 2019
the attorneys acting for MultiChoice sent
fresh notices of
termination of the agency and installer agreements to Calvin (the
December terminations).
[8]
On 20
December 2019 MultiChoice issued an application in the
Gauteng Division of the High Court, Johannesburg, for a
declaratory
order to confirm the validity of the December
terminations. Pursuant to these terminations, on 20 January 2020
MultiChoice deactivated
Calvin’s access to its systems.
[9]
This
deactivation, according to Calvin, constituted contempt of court; and
on 31 January 2020 it launched an application in the
high court to
hold MultiChoice in contempt of the order issued by Makgoba JP. The
contempt application came before Phatudi J who
granted an order
(without reasons) on 5 February 2020, declaring that MultiChoice
was in contempt of the order of Makgoba
JP (the contempt order). On
the same day MultiChoice delivered an application for leave to appeal
against the contempt order. The
judgment of Phatudi J containing the
reasons for the contempt order was delivered on 6 May 2020.
[10]
On
12 February 2020 the application by MultiChoice for a
declaratory order to confirm the validity of the December
terminations
was heard by Campbell AJ. The judge noted that
MultiChoice had provided credible evidence of fraud that justified
the December
terminations, but was of the view that granting the
declaratory order would be in conflict with the contempt order of
Phatudi J.
He decided not to dismiss the application ‘because
of the real possibility of a miscarriage of justice’. For these
reasons, Campbell AJ postponed the application to a date after the
determination of the appeal against the contempt order, and costs
were reserved.
[11]
On 19
February 2020 Calvin brought an urgent application in terms of
s 18(3) of the Act for the execution of the contempt order.
The
application was heard on 28 February 2020 by Tshidada AJ who made an
order on 14 April 2020 directing that the contempt order
operate and
be executed in full, pending the outcome of the application for leave
to appeal that order.
The
foundational order
[12]
The
order of Makgoba JP granting Calvin an interdict restoring its access
to MultiChoice’s systems pending a review of the
decision to
terminate the agreements in September 2019, was the foundation of
everything that followed. If that order is unsound
in law, then
neither the contempt order nor the order of Tshidada AJ is legally
sustainable. Indeed, this was rightly conceded
by counsel for Calvin.
In this regard, the dictum of Snyders JA in
Von
Abo
[2]
is apposite:
‘
As
a matter of logic the second order arose from the first order and has
no independent existence separate from the first order.
As the second
order was given in consequence of the first order, and would not nor
could have been given if it were not for the
first order, it follows
that if the first order is wrong in law, the second order is legally
untenable.’
[13]
The
order of Makgoba JP in relevant part reads:
‘
2.
The Respondent is hereby directed to forthwith take all the necessary
steps to restore and re-instate the First Applicant onto
the
respondent’s system known as CLARITY AND SAP (“system”)
for certain service areas in Thohoyandou, pending
the finalization of
the application filed on 20 November 2019 for review of the
Respondent’s decision to terminate the agency
and Accredited
Installer agreements, on 30 September 2019, under case number
8053/2019.
3.
The respondent is hereby forthwith interdicted and restrained from
preventing the First Applicant from utilizing the equipment
and/or facilities for the service areas, pending the finalization of
the application filed on 20 November 2019, for review of the
Respondent’s decision to terminate the agency and Accredited
Installer agreements on 30 September 2019 under case number
8053/2019.
4.
The respondent is hereby interdicted and restrained from preventing
the First applicant from performing its obligations as a
service
provider to the respondent in terms of the Agency agreement dated 1
July 2014 and the Accredited installer agreements on
30 September
2019 under case number 8053/2019.’
[14]
This
order, unfortunately, is erroneous in a number of respects. First it
is trite that a decision by a contracting party to cancel
a contract
concluded between two private parties, cannot form the subject of
judicial review – the power of courts to review
the lawfulness,
reasonableness and procedural fairness of decisions or actions taken
by public bodies. The cancellation of the
agreements by MultiChoice
had nothing to do with the control of administrative power, or the
method of such control: judicial review
of administrative action.
[3]
[15]
Second,
the decision by MultiChoice to cancel the agency and installer
agreements, was not ‘administrative action’ as
defined in
PAJA. In
Grey’s
Marine
[4]
Nugent JA said:
‘
Administrative
action is . . . in general terms, the conduct of the bureaucracy
(whoever the bureaucratic functionary might be)
in carrying out the
daily functions of the State, which necessarily involves the
application of policy, usually after its translation
into law, with
direct and immediate consequences for individuals or groups of
individuals.’
Neither
was the decision to cancel the agreements conceivably the exercise of
public power other than administrative action, that
could render it
subject to review in terms of the principle of legality, sourced in
the rule of law, a founding value of the Constitution.
[5]
[16]
Third,
it was clear from the relief sought in the review application –
which formed the basis of the interdict – that
Calvin was not
seeking the review of an administrative decision. Instead, what it
sought was an order:
‘
1.
Reviewing, setting aside
the
decision to terminate an agreement (Agency agreement)
between the Applicant and Respondent
in
terms of a letter of termination dated the 30
th
day of September 2019
.
2.
Reviewing, setting aside and/or correcting
the decision to
terminate an agreement (Accredited installer Agreement)
between
the Applicant and Respondent
in terms of a letter of termination
dated the 11
th
day of October 2019
.’
(Emphasis added.)
[17]
Fourth,
a simple reading of the notices of termination and the agreements
reveals that what was in issue between the parties was
a contractual
dispute arising from the election by MultiChoice to exercise its
contractual right to terminate the agreements. Clause
3.3 of the
agency agreement provided:
‘
MultiChoice
shall be entitled in its sole discretion, at any time, and for any
reason whatsoever, to terminate this Agreement without
liability by
providing the agent 30 days prior written notice.’
Likewise,
clause 5.4 of the installer agreement read:
‘
MultiChoice
shall be entitled in its sole discretion, at any time, and for any
reason whatsoever, to terminate this Agreement without
liability.
Where MultiChoice elects to terminate this Agreement pursuant to this
clause 5.4, MultiChoice will give the Accredited
Installer 30
(thirty) days prior written notice to this effect.’
Clause
17.5 provided:
‘
Notwithstanding
the above, MultiChoice shall have the right to cancel this Agreement
with the Accredited Installer upon 30 days’
notice for any
reason whatsoever including but not limited to fraudulent activity by
the Installer.’
[18]
Lastly,
the orders directing MultiChoice forthwith to grant Calvin access to
its systems, and interdicting and restraining MultiChoice
from
preventing Calvin from utilising its equipment or facilities or
performing its obligations as a service provider, was directly
at
odds with what the parties had agreed upon, expressed in plain
language. The effect of these orders was to nullify MultiChoice’s
contractual remedies, amend the agreements, and to improve Calvin’s
position.
[19]
In the
result the appeals must succeed. On a proper appreciation of the
nature of dispute between the parties, and the defences
raised by
MultiChoice, Calvin was not entitled to any relief. Although this
conclusion effectively disposes of the two appeals,
counsel for
MultiChoice has criticised the high court’s interpretation and
application of the principles in relation to contempt
and the
execution of an order under s 18 of the Act. We must proceed to
address these criticisms and determine whether they are
valid, since
otherwise the high court’s interpretation would remain
authoritative generally, and in the Limpopo Division
of the High
Court in particular.
Did
MultiChoice commit contempt of court?
[20]
The
requisites for an order of civil contempt are well-settled. The
applicant must prove the existence of the order; service or
notice;
and wilfulness and mala fides beyond reasonable doubt. Once the
applicant has proved the order, notice and non-compliance,
the
respondent’s conduct is presumed to be both wilful and mala
fide and it bears an evidential burden to rebut that presumption.
[6]
For an act to constitute civil contempt, there must have been an
intention to defeat the course of justice.
[7]
[21]
Phatudi
J, in his reasons for holding MultiChoice in contempt, stated that
its unilateral termination of the agreement was not only
objectively
unreasonable, ‘but wilful and thus devoid of any
bona
fides
’.
The judge found that MultiChoice’s termination of the
agreements at its sole discretion and for any reason, could
‘only
be invoked if there were good grounds justifying the [abrupt]
termination thereof’. The imputations of fraud
by MultiChoice
were ‘clearly premature’. Its submissions to justify
non-compliance with the order of Makgoba JP were
‘simply
untenable’. Even if MultiChoice was entitled commercially to
terminate the contracts, that alone did not entitle
it to act
unilaterally, which ‘in itself amounted to wilful and
mala
fide
disregard of a court order’. And even if MultiChoice had relied
on the alleged fraud, it was incumbent on MultiChoice to
comply with
the order of Makgoba JP on the principle laid down in
Oudekraal
:
[8]
an administrative decision remained valid until set aside. Phatudi J
went on to say that, on the assumption that MultiChoice had
uncovered
fraud, that possibly would have entitled it to apply for an interdict
against Calvin and its employees, ‘instead
of invoking
self-help and despoiled as they did the applicants in their business
operations’.
[22]
These
findings are unsustainable on the evidence and the law. On the papers
before the court and in law, it could not be suggested
that
MultiChoice had ‘despoiled’ Calvin or resorted to
self-help. On the contrary, Calvin’s case was not that
it had
been wrongfully deprived of possession of MultiChoice’s
systems. Further, the high court’s finding is contradicted
by
the fact that MultiChoice sought a court’s imprimatur for the
December terminations. As stated, MultiChoice had exercised
its
contractual right to unilaterally terminate the contracts in terms of
a procedure to which the parties had specifically agreed.
It was
entitled to do so on any ground of cancellation specified in the
agreements, including Calvin’s fraud. The conclusion
that this
in itself constituted contempt or that the imputations of fraud were
premature, is incorrect. As stated earlier, the
decision to terminate
the agreements was not administrative action and therefore the
Oudekraal
principle was inapplicable.
[23]
On the
evidence, Calvin simply did not prove non-compliance with the Makgoba
JP order. That order was based on the September terminations.
By
contrast, the December terminations were issued on the basis of new
facts uncovered after MultiChoice had restored Calvin’s
access
to its systems in terms of the Makgoba JP order – an elaborate
scheme of fraud by Calvin and its employees that resulted
in
MultiChoice suffering a loss of some R2.25 million. Those facts were
not, and could not have been, before Makgoba JP. Moreover,
the order
of Makgoba JP could not prevent MultiChoice from exercising its
contractual rights in accordance with the terms of the
agreements in
the future. Neither could that order give Calvin carte blanche in
relation to its obligations under the agreements
in the future.
[24]
Given
that Calvin did not discharge the onus of showing non-compliance with
the Makgoba JP order, the presumption of wilfulness
and mala fides
did not arise. But even if Calvin had proved non-compliance, the
presumption of wilfulness and mala fides would
have been easily
rebutted. A deliberate disregard of a court order is not enough,
since the alleged contemnor may genuinely, albeit
mistakenly, believe
itself to act in the way claimed to constitute the contempt.
[9]
The facts show that the MultiChoice had issued the December
terminations bona fide in the light of new facts – the fraud
perpetrated by Calvin and its employees on MultiChoice, detailed in
the answering affidavit in the contempt application, and to
which
Calvin chose not to reply.
[25]
For
the above reasons, Calvin did not even begin to make out a case that
MultiChoice was guilty of contempt of court. For this reason
also,
the appeal must succeed.
The
execution of the contempt order
[26]
Section
18(1) of the Act provides that the execution of a decision which is
the subject of an application for leave to appeal, is
suspended
pending the decision of that application or the appeal, unless the
court under exceptional circumstances orders otherwise.
In terms of s
18(3), the party who applies for execution of the decision must in
addition prove that it will suffer irreparable
harm if the court does
not make an execution order, and that the other party will not suffer
irreparable harm if it does. An applicant
must therefore prove both
exceptional circumstances and the requisites of irreparable harm.
[10]
[27]
It is
impossible to lay down precise rules as to what constitutes
exceptional circumstances.
[11]
Each case must be decided on its own facts.
[12]
The prospect of success in the pending appeal is a relevant
consideration and if it is doubtful, a court deciding an application
under s 18(3) would be less inclined to grant it.
[13]
[28]
Calvin
alleged that the following constituted exceptional circumstances.
MultiChoice had ‘without cause resorted to self-help’
and
denied Calvin access to its systems. It had to close shop, nine of
its employees were without a job and Calvin was liable for
rental of
its premises. It had already suffered irreparable harm despite the
fact that it had achieved success in the high court
(the order of
Makgoba JP and the contempt order).
[29]
The
high court (Tshidada AJ) accepted that these allegations constituted
exceptional circumstances. In our view they do not. As
this court
stated in
UFS
v Afriforum
,
[14]
in evaluating the circumstances upon which an applicant relies, ‘what
is sought is an extraordinary deviation from the norm,
which, in
turn, requires the existence of truly exceptional circumstances to
justify the deviation’. Calvin failed to establish
the
requirements of s 18(1) of the Act. The high court held that Calvin
had been ‘successful in the two previous applications
pending
the review application . . . therefore should not be deprived [of]
the benefit of the said orders’. Those orders
however, were
fatally defective for the reasons advanced above. Calvin did not
demonstrate any prospect of success on appeal.
[30]
What
is more, the court overlooked the fact that the December terminations
and the consequent denial of Calvin’s access to
MultiChoice’s
systems came about as a result of its own conduct – fraud by
Calvin and its employees, causing MultiChoice
to suffer substantial
financial loss. In its answering affidavit MultiChoice demonstrated
that the fraud which had commenced before
the September terminations,
was resumed upon the grant of the Makgoba JP order. The evidence that
MultiChoice had suffered a loss
of approximately R2.25 million and
continued to suffer loss, went unchallenged and was met with a bald
denial. In these circumstances
it could never be suggested, let alone
concluded, that the so-called harm to Calvin outweighed the
irreparable harm to MultiChoice.
Calvin simply failed to meet the
requisites of s 18(3) of the Act.
[31]
For
these reasons, the high court’s findings that it was
‘startling’ that MultiChoice had not reported the matter
to the police; that ‘[n]o persuasive reason was advanced . . .
for such a glaring omission’; and that the apparent
aim of
MultiChoice was ‘simply to terminate the agreement without the
parties engaging each other and attempting to find
an amicable
solution to the problem’, which was ‘unsustainable’,
are unfortunate. The court failed to appreciate
that MultiChoice was
exercising a right to terminate the contracts on grounds which the
parties had expressly agreed upon, and
its order must accordingly be
set aside.
Costs
[32]
Counsel
for MultiChoice submitted that in the circumstances, a punitive costs
order was justified, for two reasons. The first was
that Calvin’s
conduct amounted to an abuse of court process. The second was that
both agreements provided for costs on the
scale of attorney and own
client: the agency agreement in the event of a breach of any of its
provisions; and the installer’s
agreement when a party enforced
its rights under it.
[33]
In
Public
Protector v SARB
,
[15]
the Constitutional Court affirmed the principle pertaining to
punitive costs:
‘
More
than 100 years ago, Innes CJ stated the principle that costs on an
attorney and client scale are awarded when a court wishes
to mark its
disapproval of the conduct of a litigant. Since then this principle
has been endorsed and applied in a long line of
cases and remains
applicable. Over the years, courts have awarded costs on an attorney
and client scale to mark their disapproval
of fraudulent, dishonest
or
mala
fides
(bad faith) conduct; vexatious conduct; and conduct that amounts to
an abuse of the process of court’.
[34]
In our
view, Calvin throughout has abused the process of court – it
has used the procedures permitted by the rules of court
for a purpose
other than the pursuit of the truth
[16]
– to ensure access to MultiChoice’s systems without any
legal basis therefor. After its application had been struck
from the
roll by the Limpopo High Court, Thohoyandou on 8 November 2019, about
two weeks later Calvin launched a second application
in Polokwane for
substantially the same relief. On 25 November 2019 Calvin brought an
urgent application for an interdict, pending
a ‘review’
of the decision to cancel the agreements. It did this on a patently
untenable legal basis – the cancellation
decision was not
administrative action – well-knowing that MultiChoice was
entitled to cancel the agreements in accordance
with their terms.
That Calvin’s aim was merely to gain access to the MultiChoice
systems, is buttressed by the fact that
to date it has not prosecuted
the pending review application.
[35]
In the
application by MultiChoice before Campbell AJ to confirm the December
terminations, Calvin raised technical objections and
skirted around
the real issue: whether MultiChoice was entitled to cancel the
agreements on account of fraud – a term that
Calvin knew it had
agreed to. Next, Calvin thwarted the December terminations by
launching an unmeritorious application for contempt
of the Makgoba JP
order. It was clear that on any reasonable construction of that
order, it did not extinguish or limit the contractual
right of
MultiChoice to cancel the agreements on new grounds.
[36]
Despite
this, Calvin brought an application under s 18 of the Act to execute
the contempt order, after MultiChoice had filed an
application for
leave to appeal that order. The s 18 application was hopelessly
deficient, and merely underscored Calvin’s
purpose in using
court process for an ulterior purpose: to gain access to
MultiChoice’s systems.
[37]
Apart
from all of this, Calvin’s conduct was vexatious in that
MultiChoice was put through unnecessary trouble and expense
in
opposing each application brought by Calvin. This too, justifies an
order for costs on an attorney and client scale.
[17]
And MultiChoice is entitled to costs on this scale in terms of the
agreements.
[38]
In the
result, the following orders are issued:
The
appeal under case no 226/2021:
1
The appeal is upheld with costs on the scale as between attorney and
client, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
application is dismissed with costs on the scale as between attorney
and client, including the costs of two counsel, where so
employed.’
The
appeal under case no 296/2020:
1
The appeal is upheld with costs on the scale as between attorney and
client, including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following order:
‘
The
application is dismissed with costs on the scale as between attorney
and client, including the costs of two counsel, where so
employed.’
A SCHIPPERS
JUDGE OF APPEAL
S POTTERILL
ACTING JUDGE OF
APPEAL
Appearances:
For
appellant:
M
Sello SC (with her J J Meiring)
Instructed
by: Cliffe Dekker Hofmeyer,
Sandton
Webbers Attorneys,
Bloemfontein
For
respondents:
M
Ramoshaba (with him Z Ndlokovane)
Instructed
by:
Mvundlela
& Associates, Johannesburg
Maduba Attorneys
Inc, Bloemfotein
[1]
The notice was filed in terms of
rule 6(5)
(d)
(iii)
of the Uniform Rules of Court.
[2]
Government of the Republic of
South Africa and Others v Von Abo
[2011]
ZASCA 65
;
[2011] 3 All SA 261
(SCA);
2011 (5) SA 262
(SCA) para 18.
[3]
C Hoexter
Administrative
Law in South Africa
2
ed (2012) at 108.
[4]
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005]
ZASCA 43
;
2005 (6) SA 313
(SCA) para 24.
[5]
Hoexter
op
cit
fn 3 at 121ff.
[6]
Fakie NO v CCII Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 7-8 and 42; affirmed in
Pheko
and Others v Ekurhuleni Metropolitan Municipality (Socio-Economic
Rights Institute of South Africa (No 2)
[2015] ZACC 10
;
2015 (5) SA 600
(CC) para 36.
[7]
Gauteng Gambling Board and
Another v MEC for Economic Development, Gauteng
[2013] ZASCA 67
;
2013 (5) SA 24
(SCA) para 51.
[8]
Oudekraal Estates (Pty) Ltd v
City of Cape Town and Others
2004
(6) SA 222 (SCA).
[9]
Fakie
fn 6 para 9; affirmed most recently by the Constitutional Court in
Secretary of the
Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including
Organs of State
v Zuma and Others
[2021] ZACC 18
;
2021 (5) SA 327
(CC) paras 41-43.
[10]
University of the Free State
v Afriforum and Another
[2016]
ZASCA 165
;
[2017] 1 All SA 79
(SCA);
2018 (3) SA 428
(SCA) para 11.
[11]
Ntlemeza v Helen Suzman
Foundation and Another
[2017] ZASCA 93
(9 June 2017) para 37.
[12]
UFS v Afriforum
fn
10 para 13.
[13]
UFS v Afriforum
fn
10 paras 14-15.
[14]
UFS v Afriforum
fn 10 para 13.
[15]
Public
Protector v South African Reserve Bank
[2019]
ZACC 29
;
2019 (9) BCLR 1113
(CC);
2019 (6) SA 253
(CC) para 223.
[16]
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734E-734G
[1997] ZASCA 32
; ;
[1997] 2 All SA 241
(A) at 251.
[17]
Zuma v The Office of the
Public Protector and Others
[2020] ZASCA 138
para 20.