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[2016] ZAKZPHC 101
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SANTS Private Education Institution (Pty) Ltd v MEC for the Department of Education of the province of Kwazulu-Natal and Others (8539/15) [2016] ZAKZPHC 101 (13 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 8539/15
In
the matter between:
SANTS
PRIVATE EDUCATION INSTITUTION (PTY)
LTD
Applicant
and
THE MEC FOR THE
DEPARTMENT OF EDUCATION OF
THE PROVINCE OF
KWAZUU-NATAL
First
Respondent
THE HEAD OF THE
DEPARTMENT OF EDUCATION OF
THE PROVINCE OF
KWAZULU-NATAL
Second
Respondent
THE STUDENTS OF THE
APPLICANT
3
rd
to 1 289
th
Respondent
JUDGMENT
KOEN
J:
[1]
This is a review of a taxation in which the Applicant seeks to review
the decision of the Taxing Master regarding various items
claimed in
a bill of costs.
[2]
The First and Second Respondents filed a notice to abide by the
decision of this court, but nevertheless in that notice referred
to
various principles and authorities on the basis that the Court’s
attention should be ‘drawn to … those submissions’.
[3]
The disputed items can conveniently be divided into three categories
identified in the Taxing Master’s stated case, depending
on
whether they relate to:
(a) Counsels fees, being
items 99, 198, 236 and 338 of the Bill of Costs; and
(b) Fees disallowed for
perusal, being items 43 to 97 of the main Bill of costs and items 5
to 62 of the correspondent Bill; and
(c) Fees disallowed in
respect of service affidavits, being items 164 to 179 of the main
Bill and items 176 to 191 of the correspondent
Bill.
[4]
The main Bill of Costs relates to fees and disbursements due to
Messrs Gildenhuis Malatji Incorporated and the correspondent
Bill of
Costs to fees and disbursements due to Robyn Wills the local
correspondent. These arise in respect of an order which I
granted on
the 26 November 2013. That order was granted in respect of an
application which was brought by the Applicant against
the First
Respondent, the MEC for the Department of Education for the Province
of KwaZulu-Natal and the Second Respondent, the
Head of the
Department of Education of the Province of KwaZulu-Natal as well as
the 3
rd
to 1289
th
Respondents, being students
of the Applicant. The Applicant’s claim was for monies owed by
the First and Second Respondents
to the Applicant. The matter
was defended but eventually an order was granted, the bulk of which
in respect of the merits
was granted with the consent of the parties.
The costs order was not by consent and was granted by me in the
exercise of my discretion
on costs. The costs order was to the effect
that the Applicant was entitled to its costs on a party and party
scale.
[5]
The fact that there was such a large number of Respondents, other
than the First and Second Respondents, inevitably contributed
to the
volume of the papers. None of those Respondents however took an
active interest in the application and the disputes ventilated
were
therefore essentially between the Applicant on the one hand and the
First and Second Respondents on the other hand.
[6]
Although the application was initially opposed, the opposition was
misplaced (as was soon recognised after proper legal advice
had been
obtained). The First and Second Respondents had made bursary funds
available to enable students of the Applicant to pursue
tertiary
studies with the Applicant. When the Applicant was not paid it sought
to recover these fees directly from the First and
Second Respondents
on the basis of a
stipulatio alteri
contained in the
agreements concluded between the First and Second Respondents on the
one hand and the various individual students
of the Applicant on the
other.
[7]
The matter was not particularly complex, being founded on contract,
and although there were passing references to constitutional
rights
such as the right to education in terms of section 29 of the
Constitution, the constitutional issues arose really only
peripherally.
[8]
In this review the case of the Applicant in the main is that the
Taxing Master erred in the exercise of her discretion in disallowing
those portions of the disputed items which were taxed off. The
grounds for those contentions will be considered in more detail
when
considering the individual items.
[9]
It is however important to keep in mind that as a starting point the
exercise of the discretion of the Taxing Master will in
general not
lightly be disturbed unless it is found that he or she:
‘…
did not
exercise his or her discretion properly, did not apply his or her
mind to the matter, disregarded factors or principles
which were
proper for him or her to consider, or considered others which it was
improper to consider, has acted on wrongly interpreted
rules of law
or has given, or has given a ruling which no reasonable person would
have given, or is clearly wrong.’
[1]
[10]
In
Köhne
and another v Union and National British Insurance Co. Limited
[2]
it was held that:
‘
The discretion
vested in the Taxing Master as to allow costs, charges, and expenses
as appears to him to have been necessary or
proper, not those which
may objectively attain such qualities, and that such a thing must
relate to all costs reasonably incurred
by the litigant which also
imports a valued judgment as to what is reasonable.’
[11]
Further, an award of party and party costs is not aimed at seeking to
achieve a full indemnity to the successful party, and
is not to be
confused with attorney and client costs.
[3]
[12]
A review of a taxation does not involve simply a substitution of what
a Judge may consider to be a reasonable fee, for the
considered
opinion of the Taxing Master, unless the latter did not exercise her
discretion correctly. Not surprisingly then
the Supreme Court
of Appeal in
Price
Waterhouse Meyernel v Thoroughbred Breeders Association
[4]
in
declining to allow a fee calculated on a time basis and to substitute
its own assessment of what would be a reasonable
fee said:
“…
Determination
of a reasonable fee will, in the light of the arguments raised on
behalf of the Defendant before us, involve having
regard to fees
charged in major cases in this court over the last few years.
Unquestionably the Taxing Master is in a better
position than we are,
on the material before us, to undertake the necessary survey and
evaluation.”
[13]
In
casu
, my position is no different.
[14]
It is then in the light of the aforesaid briefly stated general
principles that I turn to consider the individual items in
the Bills
against which the review lies.
COUNSEL’S
FEES
:
[15]
(a) On 9 September 2013
counsel charged an amount of
R10 800,00 in respect of
‘On perusal of documents received from instructing attorney
(08h00 -10h00); on preparing for consultation,
on consultations and
on drafting founding papers (14h00-18h00) (6 hours)’ –
item 99.
(b) On 11 September 2013
counsel charged an amount of R10 800,00 in respect of ‘On
amendments and additions to the draft
answering affidavit (08h00
-14h00) (6 hours)’ – item 198.
(c) On 12 September 2013
counsel charged an amount of R5 400,00 in respect of ‘On
additions and amendments to the founding
papers (12h00-13h00;
14h00-15h00; 18h00-19h00) (3 hours)’ – item 236.
(d) On 13 September 2013
counsel charged an amount of R7 200,00 in respect of ‘On
settling correspondence to the First
Respondent and on amendments and
additions to the founding papers (09h00-11h00; 12h30-14h30) (4
hours)’.
(e) On 19 September 2013
counsel charged an amount of R9 000,00 in respect of ‘On
amendments and additions to the founding
affidavit and on settling
same (08h00-9h00; 12h00-16h00) (5 hours)’ – item 338.
[16]
It will be apparent from the above that the fees charged were
calculated on a time basis at R1 800,00 per hour.
[17]
The Taxing Master allowed an amount of R11 234,70 and taxed off
R38 013,30 of those four items on the basis that
the perusal of
documents on the 9 September 2013 should be allowed at 1 hour for the
perusal of documents at R1 200,00, that
the affidavits could be
drafted by the attorney and simply be settled by counsel for which 1
hour was allowed, and that the various
attendances on amendments and
additions be disallowed as being attorney and client items.
[18]
The Applicant is critical of this approach contending that the Taxing
Master had erred in believing that the matter was ‘not
complex’
and would therefore reasonably demand a fee of only R1 200,00
per hour and a daily fee, or fee on brief of
ten times that amount,
in the sum of R12 000,00. The Applicant submits that although on
the face of it the matter might appear
simple, it was a complex
matter and that counsel should have been awarded a higher fee on
brief and a per hour charge.
[19]
The Taxing Master’s response is that she did not only take into
account the complexity/lack of complexity of the issues
arising in
the application, but that all factors material to the case were taken
into consideration, and that she allowed a fee
which in her view was
reasonable.
[5]
She also felt
that the drafting of affidavits is the function of an attorney.
[6]
On that reasoning, a fee at an attorney’s rate was allowed for
drafting.
[20]
I am not persuaded that the Taxing Master had exercised her
discretion incorrectly or that her discretion in having concluded
that a fee of R1 200,00 per hour was reasonable, is on any other
legal basis impeachable. A first day or daily fee of R12 000,00
would then be appropriate.
[21]
It is significant to note that although counsel’s daily rates
are invariably taken as ten times their hourly rates Owen
Rodgers
(now Rodgers J) in “High Fees and Questionable Practices”
published in the
Advocate
of April 2012 page 40 at page 41 to
42 argues persuasively for a shift to a system where day rates are no
more than 8 times counsel’s
usual hourly rate. In the
same article he also deprecated the use of time as a basis for
determining fees for chamber work,
stating that it is not always
appropriate, but is at most a rational starting point. Wallis JA in
the
Advocate
of August 2011 in his paper “Reform of the
Costs Regime – a South African Perspective” at page 33 at
page 35
asked ‘…if something can be done to break the
near universal reliance on charging by time, particularly by
attorneys
but increasingly by counsel, …’ stating that
‘that would be a good thing’.
[22]
The Applicant further submits that it would have been reasonable to
have allowed counsel 2 hours for the perusal of the documents
provided to him as it was voluminous. Nothing has been placed
before me as to how voluminous this correspondence would have
been.
Presumably the correspondence was available and could have been
placed before the Taxing Master at the time of taxation,
and if not,
should have been placed before the Taxing Master by the Applicant.
On what is placed before me, I am unable to
point to any justifiable
basis for interfering with the Taxing Master’s determination in
this regard.
[23]
Regarding the drafting of the affidavit, the Applicant submits that
it was necessary to consult with counsel
inter alia
due to the
complexity of the matter. The consultation with counsel was necessary
to the extent that the papers had to be settled.
I reiterate that
although no doubt important to the parties, the matter was not, in my
view, unduly complex.
[24]
As regards the fee of 12 September 2013 and the sum of R5 400,00
the Applicant submits that ‘the rewording of the
founding
affidavit would have been attended to in order to properly organise
and set out the merits of the case’ and that
3 hours was
reasonable in the circumstances having regard to the volume of
annexures which needed to be incorporated. Reference
is further made
to the guiding principle that fees allowed should constitute
‘reasonable remuneration for necessary work
properly done’,
[7]
that the Taxing Master should take into account the complexity of the
matter, the volume of the case, and that the attendance was
not an
attorney and client one. It seems to me however that the necessary
drafting should have been done correctly from the outset.
That
is when the matter should have been ‘properly organised’
to ‘set out the merits of the case’. Amendments
required
thereafter, there being nothing before me to suggest the contrary,
probably arose from inadequate instructions at the
outset and would
therefore be an attorney and client item. The position might in fact
be different but on what has been placed
before me I am unable to
conclude that the Taxing Master’s decision, that it is an
attorney and client item to be taxed off
the party and party bill, is
impeachable in any way.
[25]
In regard to the fee of R7 200,00 charged for ‘settling
the correspondence to the First Respondent and on amendments
and
additions to the founding papers’ on 13 September 2013, the
Applicant submits that a detailed three page letter of demand
needed
to be delivered to the First Respondent, hence Applicant instructed
counsel to draft the letter ‘due the contractual
and
constitutional issues to be dealt with within same’. There
seems to be no reason why the attorney could not have drafted
this
letter, particularly in the light of the framework of the cause of
action having been formulated in the founding papers already
drafted
on the 9 September 2013. If the luxury of either such letter
being drafted or settled by counsel was resorted to,
then this should
properly be an attorney and client expense.
[26]
The fee charged on amendments and additions to the founding affidavit
on 19 September falls in the same category as that of
the 12
th
September 2013. The Applicant asks that taking into account
‘the complexity of the matter’ and the ‘volume
of
the case’ that the Taxing Master ‘should have ruled more
leniently with regard to counsel’s time actually
spent on
preparing and finalising the founding papers.’ It is
furthermore submitted on behalf of the Applicant that
counsel
charging a fee based on time actually expended is both acceptable and
in the interest of transparency. The plea requesting
to be dealt with
‘more leniently’ presents as one
ad
miseraccordiam,
without
perhaps regard to the relevant legal principles. Charging a fee based
on time actually expended probably does promote transparency,
but in
the words of Wallis JA in
Advocate
of August 2011 at page 35 is also something that ‘our courts
have been moaned… as a basis for charging fees, describing
it
as putting a premium on slowness and inefficiency’.
[8]
I agree with that sentiment. Ultimately fees charged on a time basis
might be a starting point but the amount to be allowed finally
should
be one constituting ‘reasonable remuneration for necessary work
properly done.’ On what has been advanced in
the Applicant’s
submissions, no basis exists to interfere with the Taxing Master’s
exercise of her discretion.
[27]
Item 198 of the Bill relates to a disbursement in respect of
counsel’s fees claimed in the amount of R10 260,00
of
which R4 446,00 was taxed off and only the balance of R5 814,00
was allowed. The amounts claimed were in respect of:
(a) On 21 October 2013 an
amount of R4 500,00 was charged ‘On draft affidavits of
service and on drafting heads of argument
(08h30-11h00) (2½
hours)’; and
(b) On 29 October 2013 an
amount of R1 400 was charged ‘On drafting heads of
argument and preparing for opposed application
(15h00-17h30) (2½
hours)’.
The
Taxing Master allowed for the heads of argument at R300,00 per page
for 17 pages totalling R5 100,00 plus vat, giving a
total of
R5 814,00.
[28]
The Applicant, in respect of the charge on 21 October 2013 for
drafting affidavits of service submits that this was a necessary
attendance by counsel ‘due to the large number of Respondents
that the papers needed to be served on’. Reference
is
made to paragraph 11.3 of the Founding Affidavit where the manner in
which the papers were to be served in order to minimize
the number of
Respondents to be served was dealt with. With that guidance already
contained in the papers, it is difficult to see
why the service
affidavits were required to be drafted by counsel and the terms of
what was set out in the affidavit could not
simply be followed by the
attorney. It is probably so that because of the importance of the
matter that the Applicant did not want
any hiccup with the hearing of
the application, but it nevertheless remains an attorney and client
expense. Certainly, to put it
more correctly, no basis has been
advanced to interfere with the Taxing Master’s discretion to
disallow the fees for drafting
the service affidavits.
[29]
The fee allowed for the drafting of the heads on the basis of ‘a
reasonable remuneration for necessary work properly
done’ in
fact exceeds the amount claimed for the 29 October 2013 based
strictly on a time basis. The only issue taken
in that regard
by the Applicant is the allowance of only R300,00 per page, the
Applicant submitting that due to the complexity
of the matter, the
time spent on the drafting of same and the volume of the case, a
higher fee per page should have been considered
by the Taxing
Master. The Taxing Master deals with matters of this nature on
a daily basis, is best equipped to make a determination
in the light
of the case as to a reasonable remuneration per page, and no basis
has been advanced to interfere with the exercise
of her decision in
that regard.
[30]
Item 236 relates to a disbursement of R26 676,00 which was
claimed, of which R12 996,00 was taxed off leaving an
amount of
R13 680,00. Counsel had claimed the following:
(a) On 1 November 2013 an
amount of R5 400,00 was claimed for ‘On preparing for
opposed application (15h00-18h00) (3
hours)’.
(b) On 4 November 2013 an
amount of R18 000,00 was claimed for ‘On an opposed
application (1 day)’.
[31]
The Applicant raises the same considerations of complexity and
constitutional issues being raised in this context and contends
that
the time charged for by counsel was reasonable and should not have
been taxed off.
[32]
The disbursement in respect of 1 November 2013 was disallowed in its
entirety. An amount of R12 000,00 was allowed in
respect of the
opposed application fee.
[33]
The Taxing Master was clearly not of the view that preparing for the
opposed application on the 1
st
November 2013 was
justified. Preparation had previously been done, counsel had
drafted the papers and the heads of argument
and had prepared for the
opposed application. Such preparation as might have been
necessary could be adequately compensated
by the fee for the opposed
application.
[33]
As regards the opposed application’s day fee of 4 November
2013, reference has already been made to the contention of
Mr Owen
Rodgers earlier in this judgment. The application did not take
the full day, but that is immaterial. The fee allowed
was on the
basis of 10 times what the Taxing Master considered to be a
reasonable hourly rate for counsel in a matter such as the
present,
taking into account all the relevant factors. No basis has been
advanced that would justify interfering with the Taxing
Master’s
determination.
[34]
Item 338 relates to a disbursement claim of R86 184,00 in
respect of counsel’s fees of which R61 269,30 was
taxed
off and R24 914,70 (including vat) was allowed. This
disbursement relates to various amounts claimed for the period
from 6
November 2013 to 26 November 2013. Submissions were only advanced in
respect of the fees claimed for 6 November 2013, 7
November 2013, 12
November 2013 and 13 November 2013. In view of no submissions
having been advanced in respect of the other
components taxed off or
portions that were taxed off, those will not be dealt with in this
judgment.
[35]
On 6 November 2013 Counsel claimed an amount of R15 300,00 for ‘On
drafting replying affidavit (13h00-21h30) (8½
hours)’.
The Taxing Master allowed a fee for drafting the replying affidavit
on a page basis mainly for 30 pages in the sum
of R11 040,00.
The Applicant submits that ‘given the detailed issues of the
matter and contentions which had to be responded
to counsel should
have been awarded his fees at the rate of at least R300,00 per page
and not at an attorney’s rate.’
[36]
The Taxing Master’s attitude to the nature and complexity of
the matter and the need for counsel to draft the affidavits,
has been
dealt with earlier and will not be repeated. It has not been shown
that the Taxing Master exercised her discretion incorrectly
in that
regard as to warrant her decision being interfered with.
[37]
On 7 November 2013 counsel charged R9 000,00 in respect of ‘On
email to instructing attorney, on perusal of clients
comments on
replying affidavit and on settling replying affidavit
(13h00-17h00; 20h00-21h00) (5 hours)’. The
Taxing Master
allowed an amount of R1 200,00, being 1 hour for finalizing the
replying affidavit including the perusal of
the Applicant’s
comments.
[38]
Applicant submits that ‘given the length of and important
issues which needed to be dealt with in the replying affidavit,
that
the Taxing Master did not apply her mind to all factors of the matter
and taxed off an unreasonable portion of his fees’,
and that
counsel should have been awarded ‘at least 3 hours to consider
the Applicant’s detailed responses to complex
issues as well as
finalising the affidavit.’
[39]
The details of the email and the nature thereof could and should have
been placed before the Taxing Master if of particular
significance.
There is nothing that has been placed before me to suggest that her
assessment of the position and the fee allowed
flowed from an
incorrect exercise of her discretion. Accordingly, there is no basis
to interfere with the fee she determined.
[40]
On 12 November 2013 counsel charged R9 900,00 in respect of ‘On
heads of argument (16h00-18h00; 21h00-24h30) (5½
hours)’.
This is after he also on 8 November 2013 charged for heads of
argument in the sum of R3 600,00.
An amount of R7 500,00
was taxed off.
[41]
The Applicant submits that here counsel was only awarded ‘1
hour for continuing to work and prepare his heads of argument
on this
date’ and that being in respect of ‘multifaceted and
potentially far reaching issues which were raised in the
matter.’
The Applicant contends that counsel should have been awarded at least
3 hours to condense and summarize his argument
into concise heads of
argument and that the Taxing Master should more especially have taken
into account that counsel is
to be ‘fairly compensated
for his preparation and presentation of argument’.
[42]
It does not appear that counsel was only awarded 1 hour, but that in
fact that he was awarded for 2 hours at R1 200,00.
Having regard
to the extent of the heads of argument, the learned Taxing Master
found the fee of R2 400,00 to be more appropriate.
Nothing has
been advanced to suggest that she exercised her discretion in that
regard improperly other than the suggestion that
the fee that she
allowed did not adequately compensate counsel. I reiterate what is
said earlier in this judgment, namely that
the Taxing Master is best
placed to determine a fee on what is reasonable having regard to the
extent and magnitude of the heads
of argument concerned. That does
not mean that her decision can never be challenged, but a review of
taxation does not entail a
fresh determination of what is a
reasonable fee. It is a review, but only if the Taxing Master’s
determination can be shown
to have been made from an incorrect
exercise of her discretion.
[43]
On 13 November 2013 counsel charged an amount of R4 500,00 in
respect of ‘On amendments and additions to the heads
of
argument (11h00-13h30) (2½ hours)’.
[44]
The Applicant submits that ‘due to the complexity of the
matter, further consideration should have been given to the
time and
effort spent by counsel to prepare and complete the succinct argument
in his heads.’ No basis was advanced
to conclude that the
Taxing Master exercised her discretion incorrectly or improperly in
this regard. The considerations, to which
reference is made, have
already been dealt with earlier. The time spent on the heads of
argument overall was obviously a starting
point, but ultimately based
on her experience in matters of this nature, a fee was allowed by the
Taxing Master on a page basis
for drafting the further heads of
argument. There is nothing before me to show that she exercised her
discretion improperly in
doing so.
[45]
The review in so far as it relates to the disallowance of certain of
counsel’s fees therefore must fail.
PERUSALS
:
[46]
Items 43 to 97 of the main Bill relate to individual charges for
perusing annexures FA 1 to FA 55 to the Founding Affidavit.
The
Taxing Master determined that these documents had to be perused as
bulk and taxed off an amount of R4 949,40.
[47]
The Applicant contends that it was necessary for these annexures to
be perused by the Applicant’s attorneys in order
to familiarise
themselves with the manner in which they had been incorporated into
the founding affidavit to have a full and extensive
understanding of
the matter, as opposed to them being allowed on a time basis. Again,
referring to alleged ‘the volume of
the papers and complexity
of the matter’, the Applicants submits that the perusal should
have been allowed on a per page
basis.
[48]
The importance of annexures are not underestimated. The drafter of
the founding affidavit should however have incorporated
the material
parts of the annexures in the text of the signed affidavit. It
is a trite principle of our law that a case must
be presented in the
founding affidavit and that a court cannot be expected to trawl
through a mass of annexures to determine on
what part of those
annexures reliance might be placed. The annexures annexed to the
affidavits are therefore only of secondary
or supportive value, and
although some, such as specimen agreements would be more significant,
they should be easily identifiable
by comparison with the allegations
in the affidavit. Whereas a perusal of the founding affidavit would
be clearly warranted, the
Taxing Master’s decision that the
annexures should be perused in bulk, cannot be said to have been
improperly exercised.
The review must accordingly also fail in
respect of these items.
ITEMS
164 TO 169 OF THE MAIN BILL AND ITEMS 176 TO 191 OF THE
CORRESPONDENCE BILL
:
[49]
Items 164 to 169 relate to the perusal of various emails and
affidavits relating to service, drafted by counsel. These
could
and should have been drafted by the attorney, specifically in the
light of the contents of the founding affidavit, which
would have
rendered any separate perusal of affidavits drafted by counsel
unnecessary.
[50]
In respect of the perusal fees charged by the instructing attorney of
the various affidavits to be filed and served, the Applicant
contends
that ‘the correspondent attorney was entitled to ensure that
the papers were in order and positively served’
and hence that
the ‘attendances relating to service affidavits’ should
not have been taxed off entirely.
[51]
Perusals were allowed by the Taxing Master on a time basis of 40
pages per hour in respect of items 43 to 97.
[9]
Items 164 to 179 of the main bill and items 176 to 191 of the
correspondent bill were disallowed as ‘being unnecessary
incurred
and not reasonable as it did not take the matter any
further’.
[52]
No basis has been advanced for interfering with this determination.
The review in respect of these items must accordingly also
fail.
[53]
The Applicant has not sought any costs. The First and Second
Respondents did not oppose the review nor ask for costs. Indeed
the
First and Second Respondents elected to abide by the decision of this
court. In the circumstances I do not propose to
make any order
in respect of costs.
[54]
The review of the taxation of the items referred to in the Notice of
Review of Taxation is accordingly dismissed.
_______________________________
KOEN
J
Date
of Judgment: 13 September 2016
[1]
Lander v
O’Meera and another
2011
(1) SA 204
(KZD) at para 14.
[2]
1968 (2) SA 499
(N) at 504B.
[3]
President of
the Republic of South Africa and others v Gauteng Lions Rugby Union
and another
2002
(2) SA 64
(CC) at para 47 and
City
of Cape Town v Arun Property Development (Pty) Ltd and another
2009
(5) SA 227 (C).
[4]
2003 (3) SA 54
(SCA) at 63E – G.
[5]
Campsbay
Residents and Ratepayers
Association
and others v Augoustides and others
2009
(6) SA 190 (WCC).
[6]
City Deep
Limited v Johannesburg City Council
1973 (2) SA 109
(W) and
Aloes
Executive Cars v Motorland and Another
1990 (4) SA 587 (T).
[7]
President of
the Republic of South Africa and others v Gauteng Lions Rugby Union
and Another
(
supra
)
n3 at para 45.
[8]
See also
J
D Van Niekerk en Genote Ing v Administrateur Transvaal
1994 (1) SA 595
(A) at 601-2, which was endorsed by the
Constitutional Court in
President
of the Republic of South Africa and others v Gauteng Lions Rugby
Union and another
(
supra
)
n3.
[9]
See
Oshry
and Lazar v Taxing Master and another
1947 (1) SA 657
(T).