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[2015] ZAGPPHC 281
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Kruse and Others v City of Tshwane Metropolitan Municipality and Others (A299/2012) [2015] ZAGPPHC 281 (12 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case number:
A299/2012
Date: 12 March 2015
Reportable
Of interest to other
judges
In the matter
between:
MARIA M
KRUSE
..................................................................................................................
First
Appellant
ALETTA M M KRUSE,
N.O.
…........................................................................................
Second
Appellant
MARIA E C
BEZUIDENHOUT, N.O.
…............................................................................
Third
Appellant
HESTER ISABELLA
LOTZ, N.O.
…...............................................................................
Fourth
Appellant
and
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
........................................
First
Respondent
T M
ROSSOUW
...............................................................................................................
Second
Respondent
C M
FROELING
................................................................................................................
Third
Respondent
Heard: 27
November 2013
Delivered: June
2014
JUDGMENT
A.A.LOUW
J
Introduction
[1] On the southern
side of Lys Street in Rietondale, Pretoria, four adjoining
residential properties are situated. These properties
as well as a
servitude of right of way in respect thereof are at the centre of
this dispute. The owners of these properties as
well as the City of
Tshwane Metropolitan Municipality (Tshwane) are the litigating
parties. A sketch, annexure “K2”
to the founding
affidavit, shows the situation of the four properties as well as the
servitude road. There are two streetfront
properties between which
runs the servitude road. On the eastern side thereof is the second
respondent’s property whilst
on the western side is situated
the third respondent’s property. This servitude of right of way
is five metres wide and is
constituted by two servitudes each 2,5m in
width. These servitudes were registered simultaneously in 1993. The
servitude area according
to K6277/1993S runs along the western
boundary of the second respondent’s property. The servitude
area according to K6278/1993S
runs along the eastern border of the
third respondent’s property.
[2] At the back of
these two properties, i.e. to the south thereof, the properties of
the appellants are situated. The first appellant
is the owner of the
western property whilst the eastern property (the trust property) is
owned by two trusts of which all four
the appellants are trustees.
These two properties at the back came into being as a result of
subdivisions of the second and third
respondents’ properties.
The registration of the servitudes of right of way was therefore an
essential precondition to the
subdivisions as this right of way is
the only access of the properties at the back to Lys Street.
[3] Lastly, as
regards the servitude, in 2008 the second and third respondents
granted each other a right of way over the 2,5m servitude
area on the
other party’s property. Two notarial deeds of servitude were
registered simultaneously on 1 September 2008. Of
this fact the
appellants could not have been aware before the institution of this
application as these were registered thereafter,
namely on 26 August
2008.
The dispute
[4] During December
2007 the second respondent submitted plans to Tshwane in respect of a
carport which she wanted to construct
on the southwestern corner of
her property. The plans show that the carport will be situated on the
rear boundary line i.e. the
boundary between the second respondent’s
and the trust’s property. On the western side they show that
the carport is
to be constructed right on the servitude boundary
line. The entrance to the carport will be from that side and
therefore the only
access to the carport will be along the servitude
road.
[5] It is common
cause that the building restriction line at the rear of the property
is 3m and a side boundary is 2,25m. It is
therefore clear that the
carport is to be constructed within the building restriction areas.
The question to be discussed hereunder
is whether in regard to the
building restriction areas the second respondent’s plans
qualify for any of the exceptions in
clause 15A of the Pretoria Town
Planning Scheme 1974 (the Scheme).
[6] Without the
appellants having been invited to make any input or representations
the plans were approved on 27 March 2008 under
reference number
RE3/3269/07. It is this decision which the appellants seek to have
reviewed and set aside.
[7] The issues
raised by the appellants can be broadly categorised in three
categories namely:
a) Whether the
second respondent is allowed to use the servitude of right of way for
the purpose of driving on it to have access
to the new carport
erected on her property or whether the appellants have an exclusive
right of use of such right of way.
b) Whether the
administrative decision by the first respondent’s official to
approve the building plans was properly taken.
In this regard the
appellants rely on various grounds in section 6 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA)
as follows:
(i) section 6(2)(b)
of PAJA namely that a mandatory and material procedure or condition
prescribed by an empowering provision was
not complied with;
(ii) the action was
procedurally unfair as contemplated in section 6(2)(c) of PAJA;
(iii) the action was
materially influenced by an error of law as per section 6(2)(d) of
PAJA;
(iv) the action was
taken arbitrarily or capriciously as stated in section 6(2)(e)(vi) of
PAJA;
(v) the grounds in
section 6(2)(f) of PAJA namely that the action itself contravenes a
law or is not authorised by the empowering
provision. Furthermore
that the action is not rationally connected to the purpose for which
it was taken, the purpose of the empowering
provision, the
information before the administrator and the reasons given for it by
the administrator.
c) whether Tshwane’s
official who approved the building plans was properly authorised to
make such a decision. This ground
is provided for in section
6(2)(a)(i) of PAJA.
[8] The court a quo
refused the application with costs. This appeal is with the leave of
the court a quo.
Legislative
provisions
[9] Administrative
action like the present is governed primarily by the National
Building Regulations and Building Standards Act
103 of 1977 (the
Building Standards Act) as well as the Scheme.
[10]
The Legislative scheme of the Building Standards Act was extensively
considered by the Constitutional Court in
Walele
1
.
I
quote para 47 of the judgment:
“
[47]
The Building Standards Act, as the long title proclaims, promotes
uniformity in the law relating to the construction of buildings
within municipal areas, by prescribing general requirements and
building standards which must be adhered to. Section 4 of the
Building Standards Act requires approval by a local authority of
building plans before any construction can commence. Section 5
obliges every local authority to appoint a Building Control Officer
whose powers and functions are specified in the Building Standards
Act. This officer is given extensive powers and plays a critical role
towards achieving the objectives of this Act. Once an application
for
the approval of plans is lodged with a local authority, the Building
Standards Act authorises the Building Control Officer
to enter the
land to which the plans in question apply, prior to the approval of
the plans by the decision-maker. He or she is
entitled to inspect the
site in preparation for consideration of the application for the
approval of the plans by the relevant
decision-maker.”
[11] Section 6 of
the Act provides:
“
(1)
A building control officer shall -
(a) make
recommendations to the local authority in question, regarding any
plans, specifications, documents and information submitted
to such
local authority in accordance with s 4(3);”
[12] The process of
approving building plans is governed by section 7 of the Building
Standards Act which provides:
“
(1)
If a local authority, having considered a recommendation referred to
in section 6(1) (a) -
(a) is satisfied
that the application in question complies with the requirements of
this Act and any other applicable law, it shall
grant its approval in
respect thereof;
(b) (i) is not so
satisfied; or
(ii) is satisfied
that the building to which the application in question relates -
(aa) is to be
erected in such manner or will be of such nature or appearance that -
(aaa) the area in
which it is to be erected will probably or in fact be disfigured
thereby;
(bbb) it will
probably or in fact be unsightly or objectionable;
(ccc) it will
probably or in fact derogate from the value of adjoining or
neighbouring properties;
(bb) will
probably or in fact be dangerous to life or property, such local
authority shall refuse to grant its approval in respect
thereof and
give written reasons for such refusal”
[13] In regard to
the building restriction lines clause 15A of the Scheme provides as
follows:
“
BUILDING
RESTRICTION AREAS
15A.(1) Subject
to any other provisions of this Scheme, no person shall -
(a) erect a
building of a class as specified in column 1 of Table B1 hereto or
make any alteration, extension or addition to an
existing building
belonging to such class, in such a manner that such building or any
part thereof projects over or encroaches
on a building restriction
area;
(b) erect any
other building or structure on any building restriction area.
(2)
Notwithstanding the provisions of Sub-clause (1) or any by-law -
...
(d)
a single storey garage;
car-port
or shelter; laundry; private
swimming bath; change room for a private swimming-bath; tennis court;
squash court; or storeroom
may
be
erected on
any portion of a building
restriction
area
other than
where such structures are adjacent to a street boundary:
Provided that:
(i) the position
thereof is not detrimental to the amenities of the adjoining property
or properties;
(ii) the height
thereof shall not exceed 3,00 metres;
(iii) the
external face of the boundary wall shall be of face brick, unless an
alternative durable finish is agreed to in writing
by the owner or
owners of the adjoining property or properties;
(iv) the distance
between the main building and such other building is a minimum of
2,25 metres;
(v) Deleted;
(vi) any
car-port, shelter, which is attached to the main building and which
is built on any boundary other than a street boundary,
shall be
completely open on two sides, and the length thereof shall not exceed
7,50 metres;
(vii)
it be erected on or directly against the erf boundary or at least 1
metre from the boundary.”
(friy
emphasis)
[14] I proceed to
deai with the arguments advanced by the appellants and which appear
from the founding affidavit and the supplementary
affidavit in terms
of rule 53(4).
The approval of
the building plans is in violation of the rights enjoyed by the
appellants and consequently in violation of section
7(1 )(a) of the
Building Standards Act
[15] It is argued
that Tshwane could not have been satisfied that the application
complied with “any other applicable law”.
The argument
continues to state that the applicable law which is violated is that
of the Scheme.
[16] The Scheme
expressly provides for an exception in respect of carports in clause
15A(1)(d) thereof. It is then provided in clause
15A(1)(d)(vii) that
if such approval is granted a structure like a carport has to be
erected either on the border of the property
or at least 1 m from the
it. Appellants’ contention is that the exception cannot be
applied as the first proviso namely that
the position thereof should
not have a negative aesthetical impact on the adjoining properties is
not satisfied. In this regard
the answering affidavit made by the
building control officer (BCO) denies that there would be any
negative aesthetical impact on
the appellants’ properties. He
states that this was not a ground upon which the plans could be
rejected.
[17] The appellants
invited the court to have a look at annexure “N” to the
supplementary affidavit. There are five
photographs showing the
carport as it has been erected. I can see nothing that will impact
negatively on the aesthetics of the
area. In fact everything seems
very neat and fits in with the pre-existing building of the second
respondent.
[18] The appellants
also make mention of the proviso in section 15A(1)(d)(iii) namely
that the outside of the border wall has to
be of facebrick unless the
owners of the adjoining properties have consented in writing to
another quality finishing. There is
nothing in the building plans
that state that the boundary walls do not have to be of facebrick.
The focus in this application
is obviously the approval of the
building plans and not what has happened subsequent thereto.
[19] It is also
argued that the application falls foul of section 7(1)(b)(2)(ccc) of
the Building Standards Act as the building
erected consequent to such
approved plans will probably or in fact derogate from the value of
adjoining or neighbouring properties.
[20]
There is not a shred of evidence supporting this and this is in any
event denied by Tshwane. The affidavits by Mr van Aswegen,
a sworn
valuator, simply makes the following bold statement:
“
Ek
bevestig spesifiek dat ek vertroud is met die ligging van die eerste,
tweede en derde applikante en van die tweede en derde respondente
se
eiendomme. Ek bevestig verder spesifiek dat die oprigting van ‘n
dubbel motorhuis en die toelaat van ‘n tweede toegang
op die
tweede respondent se eiendom soos beplan deur die tweede respondent
die waarde van die genoemde applikante se eiendomme
wesenlik sal
verlaag. ”
[21] This affidavit
is useless as it is totally unmotivated. The valuator does not state
how or why the value of the properties
will be affected. There is
furthermore no valuation of the relevant properties before and after
the construction.
Infringement of
the appellants’ servitudal rights
[22] The deed in
respect of the servitude over the second respondent property contains
the following provisions:
“
2.
Die pad op die
serwituutgebied moet deur die ‘Heersende Eienaars’ op
hulle eie koste gebou word en te alle tye in stand
gehou word. Die
voormelde werke word uitgevoer op sodanige wyse en met gebruikmaking
van sodanige material as wat die
Heersende Eienaar
of sy gevolmagtigde nodig, dienstig of gerieflik mag vind.
3.
Die
Dienende Eienaar sal nie geregtig
wees
om enige geboue of
ander strukture binne of op die serwituutgebied op te rig of enige
grootwortelbome te plant of toe te laat dat
dit geplant word nie of
enige grond of rommel daarop aflaai of toelaat dat dit afgelaai word
nie of enigiets doen of toelaat dat
dit
in
of op die
serwituutgebied
of in die onmiddellike nabyheid
daarvan gedoen
word
en wat sal inmeng met die reate verleen aan die
‘
Heersende
Eienaars’
ingevolge
hierdie Akte.”
(my
emphasis)
[23] Firstly the
plans do not provide for construction in or on the servitude area but
instead right on the border thereof. The
second disqualification
namely that such construction has to interfere with the rights of the
dominant tenement has also not been
proved.
[24] The appellants
also argue that they are entitled to the exclusive use of the
servitude road. This contention is made without
any basis in fact or
in law. This argument is legally unsustainable. The correct position
is that an owner has full dominium in
respect of his or her property.
This dominium is only affected to the limited extent that other
parties have a right of way over
the servient properties. There is
nothing that prohibits the owner of the servient property from
travelling over his own property.
[25] Coupled with
this is the appellants’ contention in the founding affidavit
that the second respondent is not permitted
to use the 2,5m servitude
over the third respondent’s property. For the reasons stated in
para 3 above, this argument is
also devoid of merit. In any event the
appellants do not have any standing to take this point as such use
was always with the consent
of the third respondent.
The approval of
the carport as depicted on the plans is in violation of the Scheme
and the appellants were not afforded an opportunity
to note
objections
[26]
This is in essence a complaint that
audi
alteram partem
was
not applied. In
Walele
this
principle and the applicability thereof to the approval of building
plans was described as follows:
“
The
most important component of procedural fairness is the one expressed
by the
audi
alteram partem
principle
(the audi principle) which requires that parties to be affected by an
administrative decision be given a hearing before
the decision is
taken. What gives rise to the right to be heard is the negative
impact of the decision on the rights or legitimate
expectations of
the person claiming to have been entitled to a hearing before the
decision
was
taken.
’
2
[27]
The judgment of the majority in
Walele
is
clear namely that in a case like the present, that is where no
relaxation of the town planning scheme is requested and no
devaluation
of the neighbouring property is proved the objector has
no right to be heard prior to the decision being taken. Counsel for
the
appellants argues that
Walele
was
not a matter where exemption provisions were before the court but
that this case is.
[28]
He proceeds to rely on
JDJ
Properties CC & Another v Umngeni Local Municipality &
Another
3
and
argues that that case is in all respects comparable with the relevant
facts in this matter. This submission is not correct.
In
JDJ
Properties
two
exemptions from provisions of the town planning scheme were applied
for and granted namely a relaxation of the parking space
requirement
as well as the relaxation of the side space requirement, allowing for
the building to abut the neighbouring erf.
4
[29] In the present
case no relaxation of any requirement of the Scheme was granted.
Clause 15A(2)(d) of the Scheme was simply applied.
[30] I therefore
find that the appellants did not have a right to be heard before the
decision was taken.
The
recommendation by the BCO to Tshwane was not motivated
[31] From the record
of proceedings it appears from the cover of the building control file
that the plans were circulated to three
departments. These are the
water and sanitation, fire prevention and roads and stormwater
departments. At the bottom of the file
cover appears the signature of
Mr Magagula dated 25 January 2008 recommending the approval of the
plans.
[32] According to
the answering affidavit the decision-maker Mr Marandela acted on the
recommendation and approved the plans on
27 March 2008.
[33] The rest of the
building control file does not shed further light on the reasons for
the approval. The documents in the file
are formal in nature.
[34]
In
Walele
it
was decided (by a six/five majority that the procedure to merely
circulate the file to the different departments and obtain the
approval signatures thereon is insufficient for the decision-maker to
be satisfied of the requirements in section 7(1 )(b)(ii)
of the
Building Standards Act. In
Walele
the
documents that served before the decision-maker were the same as in
this case. In para 59 the following is stated:
‘‘
As
mentioned earlier, when asked to furnish the list of documents placed
before the decision-maker, the City mentioned the application
for the
approval of plans, the form endorsed by various departments and a
document titled 'Land Information System - Ratepayers
Data'. It was
asked to confirm if these were the only documents placed before the
decisionmaker and the City confirmed this to
have been the position.
”
[35] The crux of
this decision is in para 60 of the judgment:
"There
can be no doubt that these documents could not reasonably have
satisfied the decision-maker that none of the disqualifying
factors
would be triggered. None of these documents refers to those factors.
If indeed the decision-maker
was
so
satisfied on
the basis of these three documents, his satisfaction
was
not based on
reasonable grounds. The documents fall far short as a basis for
forming a rational opinion. Nor does the mere statement
by the City
to the effect that the decision-maker was satisfied suffice. In the
past, when reasonableness was not taken as a self-standing
ground for
review, the City's
ipse
dixit
could have
been adequate. But that is no longer the position in our law. More is
now required if the decision-maker's opinion is
challenged on the
basis that the subjective precondition did not exist. The
decision-maker must now show that the subjective opinion
it relied on
for exercising power
was
based on
reasonable grounds. In this case, it cannot be said that the
information, which the City admitted had been placed before
the
decision-maker, constituted reasonable grounds for the latter to be
satisfied.
”
[36] The judgment
then continues to analyse the meaning of “recommendation”
in the context of sections 6 and 7 of the
Building Standards Act. It
states that a proper interpretation of “recommendation”
is to be based on the purpose of
the recommendation which is to
furnish the decision-maker of a basis for his or her opinion, one way
or the other. I quote from
para 69:
“
The
decision-maker must, however, assess and be satisfied of these issues
himself or herself. He or she is not expected to accept
without more
the proposal of the Building Control Officer. Nor is he or she
expected to infer from the word 'recommend' that none
of the
disqualifying factors will be triggered. Section 7(1) requires the
decision-maker to be 'satisfied' before making a decision
on whether
to grant or refuse the application. ”
[37] The majority
judgment found that the endorsement and signature of the BCO in
itself did not constitute a recommendation as
envisaged in sections 6
and 7 of the Building Standards Act. It upheld the review.
[38]
The minority judgment of O’Regan ADCJ in which Langa CJ, Kroon
AJ, Van der Westhuizen J and Yacoob J concurred in effect
found that
the process of approval of plans hitherto was sufficient.
5
[39]
The
Walele
judgment
will significantly increase the administrative burden of local
authorities. The BCO states that Tshwane receives approximately
3000
new building applications per month. Whatever my view may be on the
correctness of the
Walele
decision
or otherwise, is irrelevant.
6
[40]
Therefore, because a proper “recommendation”, so it is
argued, did not serve before the decision-maker the impugned
decision
constitutes unlawful administrative action. The insurmountable
problem that the appellants have in this regard is that
this ground
was not raised in either the founding affidavit or the supplementary
affidavit in terms of rule 53(4).
7
Although the court a quo dealt with this point to a limited extent,
it was not raised in the papers and it cannot be the subject
matter
of an appeal.
The
decision-maker who approved the plans was not authorised to do so.
[41] The appellants
wrongly state in para 5.4 of the supplementary affidavit in terms of
rule 53(4) that the plans were approved
by the chief plan examiner.
As appears from the answering affidavit the chief plan examiner is Mr
Magagula who only recommended
the plans for approval. The plans were
in fact approved by a plan examiner, Mr Marandena. In any event, as
will appear hereunder,
both had the authority to approve building
plans. I proceed to set out the process of delegation.
[42]
In terms of section 6(1 )(a) of the Building Standards Act the BCO
shall make recommendations to the local authority in regard
to
inter
alia
plans.
Section 7(1) then provides that on receipt of such a recommendation
the local authority has to either approve the plans or
refuse
approval.
[43] The BCO of
Tshwane reports to the Strategic Executive Officer: Housing, City
Planning and Environmental Management, Mr Oupa
Nkoane (the SEO).
Annexure “J” to the answering affidavit sets out the
powers of the SEO as approved by the council
of Tshwane on 24 August
2006. The first five paragraphs of this document are especially
relevant. From these paragraphs it is clear
that the BCO reports to
the SEO and that the SEO may approve or refuse any plans under the
Building Standards Act and approve or
refuse applications for the
erection of any buildings in terms of section 7 of the Building
Standards Act. The SEO also has the
power to take any action
incidental to exercising the powers laid down in the Building
Standards Act.
[44]
Section 59(1)
of the
Local Government: Municipal Systems Act, 32 of 2000
, enjoins a
municipal council to develop a system of delegation that will
maximise administrative and operational efficiency.
Section 59(1
)(a)
states that in accordance with such a system appropriate powers may
be delegated.
Section 59(2)(b)
requires such a delegation to be in
writing. Annexure “J” to which I have referred is clearly
in accordance with this
requirement.
Section 59(2)(d)
states that
such a delegation may include the power to sub-delegate a delegated
power. The appellants argue that because the power
to subdelegate is
not included in annexure “J” the SEO was not empowered to
subdelegate to either Mr Marandena or Mr
Magagula.
[45] In the
answering affidavit it is stated that the SEO is entitled to delegate
the relevant tasks to Mr Magagula and Mr Marandena.
Annexure “F2”
evidences that Mr Magagula was with effect from 30 April 2004
appointed as chief plan examiner. Annexure
“F1" is a very
detailed document setting out inter alia his duties, powers and
authorities.
[46] Two of his
duties are the examining and approval of all building plans. Para 3
lists as his legal obligation the following:
“
3.1.
Approval of all residential and business building plans" on a
daily basis. Mr Marandena was appointed as plan examiner
with effect
from 1 April 2007. His duties and powers as set out in annexure “H”
are the same as that of the chief plan
examiner. These annexures
clearly satisfy the requirement of a delegation in writing.
[47] The argument of
the appellants go further, namely that because the SEO’s power
to sub-delegate is not proved by any document
annexed to the
answering affidavit, he did not have the power to sub-delegate.
Obviously the SEO cannot perform all his duties
as listed in annexure
“J” all by himself. The department of Housing, City
Planning and Environmental Management is
obviously a huge department.
It speaks for itself that he has to sub-delegate his powers in order
to satisfy
section 59(1)
that administrative and operational
efficiency be maximised. The answering affidavit clearly states that
the SEO is entitled to
delegate the task to approve building plans to
a chief plan examiner and a plan examiner. The appellants did not
file a replying
affidavit and has no basis for disputing this
allegation. In any event, I am of the view that it is not a
requirement that the
section 59(2)(d)
power to sub-delegate should
itself be in writing. What we have in writing are the multitude of
powers delegated to the SEO. It
speaks for itself that he cannot
perform all these tasks himself
[48] I therefore
find that this point also does not have any merit.
Conclusion
[49] The appeal
cannot succeed. Costs should follow the event.
Order
[50] The following
order is made:
1. The appeal is
dismissed with costs.
2. In the case of
the third respondent this includes the costs of senior counsel.
A.A. LOUW
Judge of the High
Court
I agree
F.G.PRELLER
Judge of the High
Court
I agree
N. KOLLAPEN
Judge of the High
Court
For the Appellants:
Adv. M.P. van der Merwe
Instructed by:
ROESTOFF & KRUSE ATTORNEYS
For the First
Respondent: Adv. I.J. Smuts SC
Instructed by:
MODUKA MORE ATTORNEYS
1
Walele
v City of Cape Town and others
2008(6)
SA 129 (CC).
2
Walele
supra
para 27
3
2013(2) SA 395 (SCA)
4
See
para 5
5
See
inter alia paras 119 of her judgment
6
Walele
has
since been followed in
De
Jong
v
Trustees,
Simcha Trust
2014(4)
SA 73 (WCC). Interestingly, Rogers J noted that in the period of 6
months following the
Walele
decision
(to which case the Cape Town Municipality was a party) it approved
approximately 20 000 building plans in accordance
with the procedure
which
Walele
had
found to be inadequate. The following was stated in para 30:
“
For
my part, I think the City’s approval of Simcha’s
building plans and those of thousands of other applicants during
the
second half of2008, in violation of the
Walele
judgment,
was a serious dereliction of duty. The City should, in my view,
either have placed a moratorium on the approval of building
plans or
at least put in place a provisional procedure for complying with
Walele
until
final guidelines could be formulated. The one thing the City must
have known would not pass muster was the perpetuation
of the
procedure which was found in
Walele
to
be unlawful.
”
In
Turnbull-Jackson
v
Hibiscus
Coast Municipality
2014
(6) SA 592
(CC) the
Walele
decision
was confirmed and the SCA criticised for not following precedent in
the case of
True
Motives 84 (Pty) Ltd
v
Mahdi
and Another
2009
(4) SA 153
(SCA). Instead the SCA criticised
Walele
and
did not follow it.
7
This
point was expressly taken in Walele - see para 9.