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[2016] ZAGPPHC 510
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Afriforum v Emadleni Municipality (A286/2015) [2016] ZAGPPHC 510 (27 May 2016)
HIGH COURT OF
SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
Reportable
Of
interest to other
Judges
Heard: 9
March 2016
Delivered:27
May 2016 CASE NO:
A286/201
5
In the matter between:
AF RIFORUM
Appellant
and
EMADLANGENI
MUNICIPALITY Respondent
Coram:
Makgoka, Ranched JJ
et
Canca AJ
Summary:
Promotion
of Access to Information (PAIA) - purpose and object of PAIA
- request for access to
records of a public body - proper approach to requests - public
bodies should give effect to the objects
of the Act.
Notice of appeal -
contents thereof - in terms of rule 49(4) it is no longer a
requirement to set out the grounds of appeal - the
only requirements
are that the notice state the part of the order being appealed, and
the respect in which the variation of the
order is sought.
Appeal - against
dismissal of application to compel a public body to furnish records
in terms of PAIA - Courts to adopt an interpretation
which gives
expression to the objects of PAIA and avoid too technical an
approach.
Costs - award thereof
in constitutional litigation - private party litigates against state-
where private party unsuccessful - where
private party successful -
general principles restated.
J U D G M E N T
MAKGOKA,
J
[1] This appeal, with
leave of the court a quo, is against the whole judgment of a single
judge of this division (Kubushi J) handed
down on 20 February 2015.
The court a quo dismissed the appellant's application to compel the
respondent to furnish certain information
in terms of the Promotion
of Access to Information Act 2 of 2000 (PAIA), read with the
Municipal Regulations on Minimum Competency
Levels (the regulations).
Legislative
frame-work
[2] To facilitate a
better understanding of the appellant's claim for access to
information and the respondent's refusal, I deem
it prudent to
outline, at the outset, the legal basis and legislative framework for
the claim. Section 32 of the Constitution of
the Republic of South
Africa, 1996 guarantees the right of access to information held by
the state. It reads:
'(1) Everyone has the
right of access to-
(a)
any information held by the state; and
(b) any information that
is held by another person and that is required for the exercise or
protection of any rights.
(2) National legislation
must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the
administrative and financial
burden on the state.
[3] In
Brammer
v Minister for Social Development and Others
[1]
the
Constitutional
Court underscored the importance of this right in the following
terms:
'The importance of this
right too, in a country which is founded on values of
accountability,
responsiveness and openness, cannot be gainsaid. To give effect to
these founding values, the public must have access
to information
held by the State. Indeed one of the basic values and
principles
governing
public
administration
is
transparency. And the Constitution demands that transparency 'must be
fostered by providing the public with timely, accessible
and accurate
information'. . . . Apart from this, access to information is
fundamental to the realisation of the rights guaranteed
in
the Bill
of Rights.
For
example, access to information is
crucial
to
the right
to
freedom of
expression
which includes freedom of
the press
and
other media
and
freedom
to receive or impart information or ideas.
[2]
(Footnotes omitted.)
[4] PAIA is the
national legislation contemplated in section 32(2) of the
Constitution.
PAIA
was
enacted
to
give
effect
to
the right
of
access
to
information.
The
Constitutional Court has
held
that
where
Parliament
enacts legislation to give
effect
to
the
rights
in the
Constitution,
a
litigant
must found
her
or
his cause
of
action
on
such
legislation,
and
not
directly
on
the
Constitution,
unless
it
is
alleged
that
the
legislation
in
question
is
deficient
in
the
remedies it
provides.
[3]
As
a
result,
PAIA
is
the
principal
legal
source
defining
the
right
of
access
to
information,
and
the
promotion
of
access
to
information
in
South
Africa is
now
almost
entirely
regulated
by the PAIA
because of the principle of subsidiarity.
[4]
[5] The purpose of
PAIA is two-fold: to foster a culture of transparency and
accountability in public and private bodies by giving
effect to the
right of access to information; and to promote a society in which the
citizens have effective access to enable them
to more fully exercise
and protect their rights. In the preamble to PAIA, it is recognized
that the system of government in South
Africa before 27 April 1994,
amongst others, resulted in a secretive and unresponsive culture in
public bodies, which often lead
to an abuse of power and human rights
violations.
The
parties
[6] The appellant is a
non-governmental organization, registered as a non-profit company,
with
the
aim
of
protecting
the
rights of
'minorities',
with
specific
focus
on
the rights of Afrikaners.
[5]
The
appellant's
locus
standi
is
not in issue. The respondent is a local municipality established in
terms of Municipal Structures Act 117 of
1998,
situated in Mpumalanga
Province.
The appellant's
request for access to the records
[7] The appeal has its
genesis in a request by the appellant for access to the records of
the respondent. The appellant submitted
the request on 4 October 2013
in the prescribed
manner. It requested documents indicating compliance with
the
regulations published in the Government Gazette on 15 June 2007,
[6]
in respect
of some of
the respondent's senior employees. In terms of those regulations,
the
accounting officers, the chief financial officers, the senior
managers, the financial officers, heads of supply chain management
units and the supply chain
management
managers employed by the respondent have to comply with certain
prescribed
minimum competency
levels in respect of higher education qualifications, work- related
experience, core managerial and occupational
competences and be
competent in the unit standards prescribed for competency areas, as
set out in the tables forming part of the
regulations.
[8] The appellant's
request was in two parts - (a) and (b) - requesting the following
particulars, respectively:
(a) Documents
indicating compliance with the Municipal Regulations on Minimum
Competency Levels (see Annexure 'A')
(b)The report on the
compliance with the prescribed minimum competency levels as envisaged
in Chapter 7 section 14(4) of the Municipal
Regulations on Minimum
Competency Levels.
Annexure 'A' referred to
in part (a) is a document titled 'Minimum Competency Levels for
Accounting Officers' setting out the minimum
competency requirements
with regard to higher education qualification, work experience, core
managerial and occupational competencies,
financial and supply chain
management competency areas.
The
respondent's response to the appellant's request
[9] On 20 November
2013 the respondent responded to the appellant's request by informing
the appellant that all officials employed
by the municipality meet
the minimum competency levels as required by the regulations, and
that the appointments had been certified
by the member of the
executive council (the MEC) responsible for Local Government in the
province. The respondent concluded on
those grounds that there was no
basis for the appellant's request.
Internal
appeal
[10] Dissatisfied with
the respondent's response, the appellant lodged an internal appeal
with the respondent on 21 November 2013.
In terms of s 77(3) of PAIA,
the respondent was enjoined to decide the internal appeal as was
reasonably possible, but in any event
within 30 days after the
internal appeal was received by the respondent's information officer.
The respondent did not respond to
the applicant's internal appeal. In
terms of s 77(7) of PAIA, the respondent was deemed to have dismissed
the appeal as it failed
to give notice of its decision on the
internal appeal.
The appellant's
court application and the respondent's
response
[11] As a result of
the above, on 15 April 2014 the appellant launched an application in
this division, seeking an order that the
respondent be compelled to
provide it with records it had requested. In an answering affidavit
deposed to by the respondent's municipal
manager, the respondent took
a stance that the appellant's request in part (a) does not identify
precisely the documents it required,
as, according to the respondent,
the appellant had simply put up as an annexure, schedules containing
the minimum competency standards.
According to the respondent, the
nature of the request was ·so vague that it would entail
producing and allowing the applicant
to trawl through the personnel
files of the individuals falling within the scope of the request.'
This, the respondent contended,
was an 'unacceptable invasion of the
privacy of those individuals.'
[12] As regards part
(b) of the request, the respondent said that it was equally vague in
that it called for production of a 'report'.
The respondent pointed
out that in terms of regulation 14, two reports are to be prepared
each financial year by therespondent,
and the respondent was
therefore embarrassed in dealing with the request for a single
report, without any specification as to the
financial year in respect
of which the report was sought. The respondent stated that it could
not be expected of it to guess which
report the appellant sought.
[13] The respondent
contended, in the circumstances, that the appellant's request did not
comply with s 18(2)(a)(i) which provides
that the request should be
made with sufficient particularity to enable an official of the
public body concerned to identify the
record requested. The
respondent furthermore argued that the disclosure of the information
requested would violate s 34(1) of PAIA,
which provides for the
mandatory protection of third parties who are natural persons.
According to the respondent, the individuals
to whom the appellant's
request pertained, fell into the category of third parties.
[14] Reliance on s
34(1) is misplaced, and can be dismissed summarily. That section
seeks to protect third parties, and not employees
of the respondent.
On the contrary, and quite pertinently, s 34(2)(f) provides that:
'A
record may not be refused in terms of subsection (1) insofar as it
consists of information-
(f) about an
individual who is or was an official of a public body and which
relates to the position or functions of the individual,
including,
but not limited to-
(I) the fact that the
individual is or was an official of that public body;
(ii) the title, work
address, work phone number and other similar particulars of the
individual;
(iii) the
classification, salary scale, remuneration and responsibilities of
the position held or services performed by the individual.'
The judgment of
the court a quo
[15] The application was
heard by the court a quo on 20 January 2015. Judgment was handed down
on 20 February 2015. In its judgment,
the court a
quo
rejected
the respondent's argument that part (a) of the request was vague. The
court observed that the regulations provide for the
monitoring of
certain specified officials of the respondent, who were clearly
identified in annexure 'A'. The court a quo pointed
out that Annexure
'A' set out those employees very clearly. As such, the court
concluded, the documents requested would only be
in respect of the
categories of the employees referred to in annexure 'A'. The court
went on to remark that on the mere reading
of the annexure, it would
have been easy for the respondent to ascertain which employees the
applicant was referring to in the
request.
[16] For that reason,
so the court concluded, it was not required of the appellant to have
specified the employees by name. However,
with regard to the remedy,
the court was disinclined to order the appellant to be given access
to the requested documents, on the
basis that the request was
'cumbersome and cannot be easily furnished'. The court seemed to seek
reliance on s 45 for this conclusion.
I shall revert to this aspect
later in the judgment. With regard to part (b) the court
a
quo
accepted the respondent's contention that the request
was vague for failing to specify the report which was sought by the
appellant.
On the above considerations, the court a quo dismissed the
appellant's application with costs.
The notice of
appeal
[17] In its notice of
appeal, the appellant stated that the court a quo erred in concluding
that the request for information was
cumbersome and could not be
easily furnished. The appellant argued that because the respondent
was required to perform the task
of compiling consolidated reports on
a regular basis, the court should have found that it was not
cumbersome to comply with the
appellant's request. The appellant also
stated that the ground on which the application was dismissed, namely
that the request
was cumbersome, was never advanced by the respondent
when the request was initially rejected, and should have been ignored
by the
court a quo. As to the finding that part (b) of the request
lacked sufficient particularity, the appellant stated that the court
should have found that the most recent report was required, and
allowed the application.
The
respondent's attack on the notice of appeal
[18] The respondent
took issue with the appellant's notice of appeal.Initially, it was
contended that the notice did not comply
with the provisions of rule
49(3) of the Uniform Rules of Court, in that the grounds of appeal
were not fully set out. That rule
provided in peremptory terms, for
the notice of appeal to state whether the whole or only part of the
judgment was appealed against.
If only part of such judgment was
appealed against, it had to be stated which part, and also specify
the finding of fact and/or
ruling appealed against and the grounds
upon which the appeal was founded.
[19] Obviously, the
contention in respect of rule 49(3) was made in ignorance of the
amendment to the rules, which came into effect
on 16 August 2013, in
terms of which rule 49(3) was replaced by rule 49(4). The latter does
not contain the requirements of the
repealed rule 49(3). Its only two
requirements are that the notice of appeal must state:
(a)
what part of the judgment or order is appealed against; and
(b the particular
aspect in which the variation of the judgment or order is sought.
[20] In his
supplementary written argument, and during oral argument,
Mr
Ramano,
counsel
for the respondent, graciously accepted that the new rule 49(4)
did not
require of the appellant to set out in detail, the grounds of appeal
as was required in terms of rule 49(3). On that basis,
counsel
expressly accepted that the
appellant's
notice of appeal complied with the provisions of rule 49(4)(a). In my
view,
this
concession was correctly made. In
Body
Corporate of the Bel Aire Scheme v Sure Guard
[7]
this Court observed that rule 49(4) is worded similar to rule 7(3) of
the Supreme Court of Appeal rules, the essence of which was
stated in
Leeuw v
First
National Bank
[8]
as
follows:
'In this court it is not
required that grounds of appeal be stated in the notice of appeal.
The nature of the proceedings is such
that this court is entitled to
make findings in relation to 'any matter flowing fairly from the
record'. The parties in their written
and oral arguments have dealt
with all the issues relevant to the appeal and the appellant has not
pointed to anything that has
been overlooked ...'
[21] In my view, these
remarks are apposite. In
Body Corporate of Bel Aire,
above,
the full court held at para 23 that, like in the Supreme Court of
Appeal, it was no longer necessary for an appellant in
a full court
appeal to state the grounds of appeal in the notice.
The respondent's
argument with regard to rule 49(4)(b)
[22] Mr
Ramano,
having accepted that the notice of appeal complied with sub-rule
49(4)(a), contended, however, that the notice fell short of the
requirements of rule 49(4)(b). It would be recalled that this
sub-rule requires the appellant to state in the notice of appeal
'the
particular aspect in which the variation of the judgment or order is
sought.' Counsel argued that the notice did not state
this. It
appears to me that counsel conflates the requirements of sub-rules
(a) and (b). The former requires the appellant to identify
a part of
the order appealed against, while the latter is concerned with the
relief or order that the appellant seeks to be substituted
for that
appealed against. In this respect, the appellant has stated in
several instances in its notice of appeal that what it
seeks is that
the order of the court a quo be substituted with an order compelling
the respondent to furnish it with the requested
records. This,
indubitably, complies with rule 49(4)(b).
[23] Counsel also
placed reliance on the explanatory notes in
Erasmus
Superior Court Practice
Vol 2 in which the learned
authors seem to suggest that the notice of appeal under rule 49(4)
must comply with the requirements
of the repealed rule 49(3). I do
not read the notes to have that effect. However, if that is what the
learned authors seek to convey,
their views are incompatible with the
clear provisions of rule 49(4).
The issues in
the appeal
[24] Having disposed
of the preliminary argument, I turn now to the substantive issues in
the appeal, which, I propose, are crisply,
the following:
(a)
Whether the respondent was entitled to rely on new grounds for
refusing the appellant' s request for access to its records;
(b)
Whether the basis on which the court a quo dismissed the
application is correct, in the context of PAIA;
(c)
whether costs should be ordered in the matter, and if so, the
principles involved.
[25] I consider the
above issues, in turn.
New grounds of
refusal raised in the answering affidavit
[26] To my mind, the
position of the respondent is analogous to that of administrative
bodies, where such bodies are generally,
not permitted to furnish new
or additional reasons to those they furnished when they took impugned
decisions. In
Jicama,
Cleaver J cited with approval the
following
dictum
in
R v Westminster City
Council:
[9]
' ... The cases emphasise
that the purpose of reasons is to inform the parties why they have
won or lost and enable them to assess
whether they have any ground
for challenging an adverse decision. To permit wholesale amendment or
reversal of the stated reasons
is inimical to this purpose. Moreover,
not only does it encourage a sloppy approach by the decision-maker,
but it gives rise to
potential practical difficulties. In the present
case it was not, but in many cases it might be, suggested that the
alleged true
reasons were in fact second thoughts designed to remedy
an otherwise fatal error exposed by the judicial review proceedings.
That
would lead to applications to cross-examine and possibly for
further discovery, both of which are, while permissible in judicial
review proceedings, generally regarded as inappropriate. Hearings
would be made longer and more expensive.'
[27] In
National
Lotteries Board v South African Education and Environment Project
[10]
Cachalia JA said:
'In England the courts
have said that such a decision would ordinarily be void and cannot be
validated by different reasons given
afterwards -
even if
they show
that the original decision may have been justified. For in truth the
later reasons are not the true reasons for the decision,
but rather
an
ex
post
facto
rationalization of a bad
decision.
Whether or not our law also demands the same approach
as the
English
courts do
is not a
matter
I
need strictly decide.'
[11]
[28] Given the above
authorities, I am of the view that the court a quo should have found
that it was impermissible, and not open
to the respondent, for it to
raise and place reliance on new grounds of refusal in the answering
affidavit, to bolster its decision
to refuse the applicant's request
for access to the records. The matter should therefore have been
determined on the ground relied
on by the respondent in its letter
dated 20 November 2013.
The basis on
which the court a quo dismissed the
application
[29] To consider the
basis on which the application was dismissed, two sections of PAIA
are relevant, namely ss 11 and 45. Section
11 gives effect to the
right of access to information held by public bodies, while s 45
provides the grounds on which a request
for access to a record of a
public body may be refused. I find it prudent to set out in full,
those sections.
[30] Section 11 reads:
'(1)
A requester must be given access to a record of a public body if-
(a) that requester
complies with all the procedural requirements in this Act relating to
a request for access to that record; and
(b) access to that record
is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.
A request contemplated
in subsection (1) includes a request for access to a record
containing personal information about the requester.
(3) A requester's right
of access contemplated in subsection (1) is, subject to this Act,
not affected by-
(a)
any reasons the requester gives for requesting access; or
(b) the information
officer's belief as to what the requester's reasons are for
requesting access.'
[31] Section 45
provides:
'The information
officer of a public body may refuse a request for access to a record
of the body if:
(a)
the request is manifestly frivolous or vexatious;
(b the work involved
in processing the request would substantially and unreasonably divert
the resources of the public body.
(32] Section 11(1)(a)
provides, in peremptory and emphatic terms, the right to the
requester to be furnished with the requested
record if all procedural
requirements have been met. The public body has no residual
discretion to refuse such request, unless
on one of the grounds of
refusal set out in chapter 4 (ss 33-46).
Part (a) of the
request
(33] In this regard, s
45 is relevant, as the court a quo seemingly relied on it to dismiss
part (a) of the request. To recap on
that aspect, the court a quo
dismissed part (a) of the appellant's request on the basis that it
was 'too wide and cumbersome'.
Unfortunately, the court did not
furnish any reasons why that was the case. However, just before
reaching that conclusion, the
court a quo had mentioned the
provisions of s 45(b), which provides a basis of refusal if the 'work
involved in processing the
request would substantially and
unreasonably divert the resources of the public body.' It is
therefore not clear if the court a
quo, by concluding that the
request was wide and cumbersome', meant the substantial and
unreasonable diversion of resources as
envisaged in s 45(b).
(34] Three aspects
arise from the above. First, the basis on which the court a quo
dismissed the application, was never relied on
by the respondent in
its refusal contained in the letter dated 20 November 2013. It must
be recalled that in that letter, the basis
for the refusal of the
request was that all its employees complied with the regulations.
That ground itself, is not one of the
grounds set out in chapter 4
(ss 33-46) on which a request for access to a record may be refused.
On this basis alone, the court
a quo should have found that the
respondent's response to the appellant's request was inadequate, and
based on irrelevant considerations.
[35] Second, the irony
of the reason furnished for the refusal (that the respondent's
employees complied with the regulations) is
that for that very
reason, access to the records should be given. That is because if
such an assertion is made in good faith, it
would be that the maker
of the statement had checked and verified the very records the
appellant sought. There should, in the result,
be no difficulty in
furnishing the records, unless, of course, the statement was made
egregiously. I am fortified in this view
by the fact in terms of
regulation 14, the respondent is required to monitor compliance with
the prescribed minimum competency
levels for financial officials and
supply chain managers, and report the consolidated information.
[36] Third, the basis
on which part (a) of the applicant's request was premised (being too
'wide and cumbersome') is not a ground
on which a request for access
to a record may be refused in terms of PAIA. There is simply no such
ground anywhere in the text
of the Act. Even if one assumes that the
court a quo meant to rely on s 45(b) - that compliance would
substantially and unreasonably
divert resources of the respondent -
there was no evidence before the court to justify that conclusion.
Ordinarily, such an assertion,
backed by the relevant evidence, would
be advanced by the public body to which the request is made. In the
present case, no such
assertion was made, and the court a quo
misdirected itself by relying on a basis not advanced to it by the
respondent.
Part (b) of the
request
[37] I turn now to
part (b) of the applicant's request. In this regard, the court a quo
concluded that the request was vague, and
lacked sufficient
particularity to enable the respondent to determine which report
should be made available to the appellant. The
court pointed out that
in terms of regulation 14 the respondent was obliged to prepare two
reports in a financial year. As the
appellant had not stated which of
the two reports, or for which financial year, it required, the
request was vague and that the
respondent was entitled to refuse it.
Once more, this ground was not advanced by the respondent in its
response to the applicant's
request, and should have been ignored.
The appellant asserts that the respondent should have raised the
issue of vagueness when
the request was made and not remain quiet,
only to raise the issueduring litigation. I agree. A simple letter to
the appellant
seeking clarity as to which report it sought, would
have clarified whatever lurking vagueness there was.
[38] In my view, the
court a quo overlooked the objects and purpose of PAIA, which among
others, is to provide a simple and inexpensive
mechanism of obtaining
information held by public bodies. Also what seems to have eluded the
court a quo, is the injunction in
s 2(1), which provides that when
interpreting a provision of PAIA, every Court must prefer any
reasonable interpretation of the
provision that is consistent with
the objects of this Act over any alternative interpretation that is
inconsistent with those objects.
In my view, the court a quo adopted
too technical an approach to the application. That approach led it
astray, and in the process,
scrutinized the applicant's request for
access to the records with an eye reserved for court pleadings. That
is inconsistent with
the objects of PAIA.
The remedy
[39] The upshot of the
above findings is that the appeal should be allowed. The respondent
should be ordered to furnish the records
requested by the appellant
in parts (a) and (b) of its request. To avoid any further technical
points of ambiguity with regard
to part (b), I propose to make an
order to facilitate the furnishing of further particulars by the
appellant to the respondent
as to the specific report it seeks. In
that way, I will be adopting an approach which is consonant with the
objects of PAIA, and
giving effect to the right of access information
held by public bodies.
[40] Finally, the
issue of costs. This is a matter within the discretion of the
court,
which discretion must be exercised judiciously having regard to all
the circumstances. The court a quo dismissed the application
with
costs. Unfortunately, in doing so, the court did not give
consideration to the fact that it was concerned
with
constitutional litigation. The general principle with regard to costs
in
constitutional
litigation was laid down by the Constitutional Court in
Affordable
Medicines Trust
and
Others v Minister of Health and Others
[12]
and
Biowatch
Trust v Registrar,
Genetic
Resources
and
Others.
[13]
In
Affordable
Medicines,
the
Court held that one of
the
considerations is the general rule in constitutional litigation that
an
unsuccessful
litigant ought not to be ordered to pay costs. But there are
exceptions, such as where the litigation is 'frivolous
or vexatious'.
[14]
[41] In
Biowatch
it
was established that the general rule in constitutional litigation
between a private party and the state is that if the private
party is
successful, it
should
have its costs paid by the state, while if unsuccessful each party
should pay its own costs.
[15]
The present matter raises a constitutional issue of importance
aimed at
vindicating a constitutional right of access to information. Even if
unsuccessful, as the court a quo found, the appellant
should not have
been mulcted in costs. Its application could not be described as
frivolous or in any way inappropriate. Far from
it, as it raised an
important constitutional issue. The applicant was left with no
choice but
to approach the Court, as the respondent had refused to provide it
with access
to the
requested records.
[42] The appellant has
been successful in the appeal proceedings. In
Biowatch,
para
25, it was stated that 'particularly powerful reasons must exist for
a court not to award costs against the state in favour
of a private
litigant who achieves substantial success in proceedings brought
against it.' In the present case, I find none of
such reasons to
deprive the appellant its costs. As a result, costs should follow the
result in accordance with the principles
discussed above.
[43] In the result the
following order is made:
1. The appeal is
upheld;
2. The order of the
court a quo made on 20 February 2015 is set aside and in its stead
the following is substituted for it:
(a) The respondent is
ordered to furnish the applicant with the records requested in the
applicant's request dated 4 October 2013;
(b)To the extent there
is ambiguity in part (b) of the request referred to above, the
respondent is entitled to request the applicant
to furnish it with
the information of the specific report it seeks;
(c)The
respondent is ordered to pay the costs of the application.
3. The respondent is
ordered to pay the costs of this appeal.
I agree T.M.
MAKGOKA
Judge of the High
Court
I
agree
N. RANCHOD
Judge of the High
Court
I
agree
M. Canca
Acting Judge of the
High
Court
Date of hearing: 9
March 2016
Judgment delivered: 27
May 2016
Appearances
For the Appellant:
Adv. J.L Sasson
Instructed by: Hurter
Spies Inc., Pretoria
For the Respondent:
Adv. P. Ramano
Instructed by: Xaba
Attorneys, Johannesburg Adams & Adams, Pretoria
[1]
Brummer
v Minister for Social Development and Others
2009
(6) SA 323
(CC).
[2]
Paras
62-63.
[3]
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd
(Treatment Action Campaign and Another
as
Amicus
Curiae)
2006 (2) SA 311
(CC) paras 96 and 434-437. See also
South
African National
Defence
Union
v Minister
of
Defence
and
Others
2007
(5)
SA
400
(CC)
para
51;
MEC for
Education: Kwazulu-Natal and others v Pi/lay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) para 40.
4
De Vos P and Freedman W (eds) (Oxford University Press 2014)
South
African constitutional Jaw in context
622.
[5]
http:/www.afriforum.co.za
[6]
The regulations referred to above were published by the Minister of
Finance, with the concurrence
of the
Minister for
Provincial
and Local Government,
in terms
of s
168 of the
Local
Government:
Municipal
Finance Management Act 58 of 2003
.
[7]
Body
Corporate
of the Bel Aire
Scheme
N.O.
SS 1821/2006
v Sure Guard CC
2015
JDR
1021
(GP).
[8]
Leeuw v
First National Bank Ltd
2010
(3) SA 410
(SCA)
[9]
R v
Westminster City Council, Ex Parte Ermakov
[1996]
2 All ER 302
(CA) at 316c-d.
[10]
National
Lotteries Board v South African Education and Environment Project
2012
(4) SA 504 (SCA).
[11]
Para 27.
[12]
Affordable
Medicines Trust and Others v Minister of Health and Others
2006
(3) SA 247
(CC).
[13]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC)
[14]
Para
138.
[15]
Paras 23 and
24.