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[2016] ZAGPPHC 1222
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Afriforum v Emadlangeni Municipality (A286/2015) [2016] ZAGPPHC 1222 (27 May 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
Reportable
Of
interest to other Judges
CASE
NO:
A286/2015
In
the matter between:
AFRIFORUM
Appellant
and
EMADLANGENI
MUNICIPALITY
Respondent
Heard:
9 March 2016
Delivered:
27 May 2016
Coram:
Makgoka, Ranchod 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.
JUDGMENT
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
Brümmer 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 the respondent,
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.
(2) 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 issue during 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.
Costs
[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.
Order
[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.
_________________________
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 Basson
Instructed
by:
Hurter Spies
Inc., Pretoria
For
the Respondent: Adv. P. Ramano
Instructed
by:
Xaba Attorneys,
Johannesburg
Adams
& Adams, Pretoria
[1]
Brümmer 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
Pillay
[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 law 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.