Afriforum NPC v Premier, Gauteng Province and Others (1000/2020) [2021] ZASCA 185 (24 December 2021)

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[2021] ZASCA 185
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Afriforum NPC v Premier, Gauteng Province and Others (1000/2020) [2021] ZASCA 185 (24 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1000/2020
In the
matter between:
AFRIFORUM
NPC

APPELLANT
and
THE
PREMIER, GAUTENG PROVINCE
FIRST RESPONDENT
CITY
OF TSHWANE
METROPOLITAN
MUNICIPALITY
SECOND RESPONDENT
MPHO
KEBITSAMANG NAWA N.O.
THIRD RESPONDENT
MEC
OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS,
GAUTENG
FOURTH RESPONDENT
THE
EXECUTIVE COUNCIL,
GAUTENG
PROVINCE
FIFTH RESPONDENT
THE
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
SIXTH RESPONDENT
Neutral
citation:
Afriforum NPC v The
Premier, Gauteng Province and Others
(1000/2020)
[2021] ZASCA 185
(24 December 2021)
Coram:
ZONDI, VAN DER MERWE, MAKGOKA and MBATHA JJA and
MEYER AJA
Heard
:
10 November 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme Court
of Appeal website and release to SAFLII. The date and time for the
hand-down of the judgment is deemed to be
09h45 on 24 December 2021.
Summary:
Section 139(1)
(c)
of the Constitution – dissolution of a Municipal Council – power
of administrator to approve a budget – not legislative function
–
not precluded by s 139(4).
ORDER
On appeal from:
Gauteng
Division of the High Court, Pretoria (Phahlane AJ sitting as court of
first instance):
1       The application for condonation
of the late filing of the first respondent’s heads of argument
is
granted and the first respondent is directed to pay the costs of
opposition thereof.
2       The application for condonation
of the late filing of the third respondent’s heads of argument
is
granted.
3
The appeal is dismissed.
JUDGMENT
Mbatha JA (Zondi, van der Merwe and Makgoka JJA and Meyer AJA
concurring):
[1]     On 28 October 2020, the Gauteng Division
of the High Court, Pretoria (the high court), dismissed with
costs,
an application by the appellant, Afriforum NPC, in which it had
sought to set aside the approval of the 2020/21 annual budget
of the
second respondent, the City of Tshwane Metropolitan Municipality (the
municipality) by the third respondent (the administrator).
The
appellant contended that such approval was unconstitutional and
therefore, invalid. This appeal before us is with leave of the
high
court.
[2]
There was an application by the first respondent for the late filing
of its heads of argument, which should
have been filed by no later
than 10 March 2021, but were only filed on 4 May 2021. The
appellant opposed the application on
the basis that the application
was fundamentally flawed for several reasons. It is not necessary to
restate the submissions made
by the appellant in this regard. The
factors which a court considers when exercising its discretion to
grant condonation are trite.
[1]
[3]     In the circumstances the delay was
satisfactorily explained and there was no prejudice to the appellant.
The application should therefore be granted. Nonetheless the first
respondent should be ordered to pay the appellant’s costs as
its
opposition to the condonation application was not unreasonable.
[4]     Secondly, there was the third
respondent’s application for condonation for the late filing of its
heads.
The appellant did not oppose the application for condonation
and sought to abide by the court's decision. Accordingly, the third
respondent’s non-compliance should be condoned with no cost order.
The issue on appeal
[5]     Returning to the
merits of the appeal, the central issue in the appeal is whether an
administrator appointed
in terms of s 139(1)(
c
) of the
Constitution has the power to approve an annual budget of a
municipality to which he or she is appointed. The determination
of
the issue inter alia requires an interpretation of s 139(1)
(c)
of the Constitution. That interpretive exercise takes place against
the following background. As mentioned already, the budget which
had
previously been approved by the administrator on 30 June 2020, was
ratified by the council upon its reinstatement by the full
court. The
third respondent submitted that this rendered the appeal moot.
Section 16(2)
(a)
of the Superior Court Act provides as
follows:
‘
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought
will have no practical effect or result, the
appeal may be dismissed on this ground alone.
(ii)       Save under
exceptional circumstances, the question whether the decision would
have no practical
effect or result is to be determined without
reference to any consideration of costs.’
[6]
This Court in
Mabotwane Security
Services CC v Pikitup Soc (Pty) Ltd and Others
[2]
referred with approval the following statement in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
:
[3]
‘
A case is moot and therefore not
justiciable if it no longer presents an existing or live controversy
which should exist if the Court
is to avoid giving advisory opinions
on abstract propositions of law.’
In the
Centre for
Child Law v Hoërskool Fochville & Another
,
[4]
this Court held as follows:
‘
This
court has a discretion in that regard and there are a number of cases
where, notwithstanding the mootness of the issue as between
the
parties to the litigation, it has dealt with the merits of an appeal
(see, inter alia,
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) ([1998]
4 All SA 258)
;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA);
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) ([2005]
4 All SA 509)
; and
Executive
Officer
,
Financial
Services Board v Dynamic Wealth Ltd
2012
(1) SA 453
(SCA)). With those cases must be contrasted a number where
the court has refused to enter into the merits of the appeal.
[5]
The broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose (see
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
2013 (3) SA
315
(SCA) para 5).’
[7]
In my view, this Court should exercise its discretion and determine
the appeal despite the fact that the
budget was subsequently adopted
by the re-instated council, as it concerns the interpretation of s
139(1)
(c)
of the Constitution and the lawfulness of a decision taken by an
administrator to approve an annual budget, which are both discrete
questions of law of public importance which are likely to arise in
the future. There may be various circumstances under which a
municipality
may be placed under administration. Certainty is
therefore required. The dictum of this Court in
Capitec
Bank Holdings Limited and Another v Coral Lagoon Investments 194
(Pty) Ltd and Others
therefore finds
application:
[6]
‘
This
court has a discretion to entertain the merits of an appeal, even
where the matter is moot. Where a case poses a legal issue
of
importance for the future that requires adjudication that may incline
the court to hear the appeal.’
Summary of the facts
[8]     On 5 March 2020, the first respondent
(the Premier of Gauteng Province) announced a resolution of the
Gauteng Executive Council to dissolve the City of Tshwane
Metropolitan Municipality Municipal Council (the Council) because it
was
dysfunctional and placed it under administration in terms of s
139(1)
(c)
of the Constitution and s 35(1) of the Local
Government: Municipal Finance Management Act 56 of 2003 (the MFMA),
with effect from
23 March 2020 until a new Municipal Council has been
declared elected. The administrator's powers were determined as
contemplated
by s 35(2) of the MFMA. This gave rise to an urgent
application in the high court by the Democratic Alliance (the DA), a
political
party which governed the municipality, to set aside the
decision to dissolve the Council.
[9]
A specially constituted full court declared the decision to dissolve
the council invalid and set it aside.
[7]
Leave to appeal against the full court judgment was pursued to the
Constitutional Court, thereby suspending the operation of the
judgment. This was followed by the full court order on 29 April
2020, subsequently confirmed by this Court on 27 October 2020,
that
the order remains in operation and should be given effect to, pending
an application for leave to appeal to the Constitutional
Court. On 4
October 2021 the Constitutional Court found the dissolution of the
council unlawful and issued an order compelling the
MEC to invoke his
powers in terms of item 14(4) of the Schedule of the Local
Government: Systems Act, 32 of 2000 (Systems Act), appointing
a
person or committee to investigate the cause of the deadlock of the
municipal council.
[8]
[10]   By 30 June 2020, the administrator had approved the
municipality’s annual budget for the 2020/21 financial year.
This
raised the issue of whether the administrator's appointment in terms
of s 139(1)
(c)
of the Constitution, read with the powers and
functions set out in the terms of reference, vested him with power to
approve the budget.
The legal framework
[11]   It is necessary to set out the relevant provisions
of the Constitution and other statutory instruments within which
the
issue in the appeal must be determined. Section 151(2) of the
Constitution vests the executive and legislative authority of a
municipality in its Municipal Council. This provision is echoed in ss
4(1)
(b)
and 4(2)
(a)
of the Systems Act. The powers and
functions of a municipality are regulated by the provisions of s 156
of the Constitution. Section
156(2) of the Constitution provides that
a municipality may make and administer by-laws for the effective
administration of the matters
which it has the right to administer.
[12]   Section 160(1)
(a)
of the Constitution
empowers a Municipal Council to make decisions concerning the
exercise of all the powers and the performance
of all the functions
of the municipality. In terms of s 160(2) of the Constitution,
the following functions may not be delegated
by a Municipal Council:
the passing of by-laws; the approval of budgets; the imposition of
rates and other taxes, levies and duties;
and the raising of loans.
Section 229 of the Constitution deals with the municipal fiscal
powers and functions. It provides that
a municipality may impose –
‘
(a) rates on property and
surcharges on fees for services provided by or on behalf of the
municipality; and
(b) if authorised by national legislation; other taxes,
levies and duties appropriate to local government or to the category
of local
government into which that municipality falls, but no
municipality may impose income tax, value-added tax, general sales
tax or customs
duty.’
[13]   The process for approval of the annual budget by a
council of a municipality is this. In terms of s 16(1) of the
MFMA,
the council must for each financial year approve an annual budget for
the municipality before the start of that financial year.
In order to
comply with s 16(1), the mayor of the council must in terms of 16(2)
of the MFMA, table the budget at a council meeting
at least 90 days
before the start of the budget year. The entire process is initiated
by the mayor, who co-ordinates the process
for preparation of the
budget. Once the budget has been published and tabled, the council
must consider approval of the annual budget
in terms of s 24(1), at
least 30 days before the start of the budget year.
[14]   Section 24(2)
(a)
of the MFMA provides that
the annual budget must be approved before the start of the budget
year. If a municipality has not approved
an annual budget or any
revenue raising measures necessary to give effect to the budget by
the first day of the budget year, the
mayor must immediately comply
with s 55 of the MFMA, which enjoins the mayor to make a report to
the provincial executive in such
a case. Section 26 provides for the
consequences of failure to approve the budget before the start of the
budget year. In terms of
s 26(1), the executive council of the
relevant province is entitled to intervene in the municipality in
terms of s 139(4) of the
Constitution by taking any appropriate steps
to ensure that the budget or those revenue-raising measures are
approved, including
dissolving the council and –
‘
(a)
appointing
an administrator until a newly elected council has been declared
elected; and
(b)
approving a temporary budget or revenue-raising measures to provide
for the continued functioning of the municipality.’
[15]   It behoves me to mention that the process followed
by the Gauteng Executive Committee (the provincial executive)
did not
arise from the process envisaged in s 55 of the MFMA. In considering
the impugned decision, one needs to consider the empowering
provision
that was relied upon by the provincial executive when it dissolved
the council and appointed the administrator. It acted
in terms of s
139(1)
(c)
of the Constitution, which provides as follows:
‘
When
a municipality cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the relevant provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including –
. . .
(c)        dissolving
the Municipal Council and appointing an administrator until a newly
elected
Municipal Council has been declared elected, if exceptional
circumstances warrant such a step.’
Appellant’s submissions
[16]   The appellant relied on
Mnquma
Local Municipality and Another v Premier of the Eastern Cape and
Others,
in which the court found that
the approval of a budget is not an executive obligation in terms of s
139(1). The argument was that,
by analogy, the approval of a budget
was not an executive function as envisaged in the third respondent’s
terms of reference. The
court stated as follows in paragraph 58:
[9]
‘
Neither
sub-section (1) nor any of the other provisions of chapter 7
pertinently specify the executive obligations of a municipal
council.
What is clear from a reading of section 139 as a whole is that it
does not include an obligation to approve a budget or
any revenue
raising measures, or a material breach of an obligation to provide
basic services, or to meet its financial commitments
which is “as a
result of a crisis in its financial affairs.” These matters are
specifically dealt with in sub-sections (4) and
(5).”’
[17]   In support of its construction of s 139(1) of the
Constitution, the appellant referred to s 1 of the MFMA, which
defines ‘approved budget’ to mean ‘an annual budget –
(a)
approved by a municipal council; or
(b)
approved by a
provincial or national executive following an intervention in terms
of s 139 of the Constitution and includes such an
annual budget as
revised by an adjustments budget in terms of s 28.’
[18]
This was so, it was submitted on behalf of the appellant, because the
approval of an annual budget entails a legislative
function, which
the administrator was not afforded. It was contended that a budget
can only be approved by either a municipal council
or provincial
executive only in the case of a temporary budget in terms of s 139(4)
and 139(5) of the Constitution. For this contention,
the appellant
relied on the judgment of this Court in
Premier
of the Western Cape and Others v Overberg District Municipality and
Others,
where this Court held as
follows:
[10]
‘
The
real question is thus whether there is anything in the MFMA which
excludes a directive by the provincial executive that compels
approval of the budget by the council after 1 July, from the wide
ambit of ‘any appropriate steps’. The answer to this question,
I
believe, is that the MFMA imposes no such limitation on the powers of
the provincial executive. At the risk of repetition, I point
out
that, as I see it, ‘any appropriate steps’ in s 139(4) clearly
include a directive by the provincial executive that enables
the
council to approve the annual budget. Any exclusion of that power in
the MFMA would therefore impose a limitation on the powers
bestowed
upon the provincial executive by the Constitution itself. Since the
MFMA contains no express limitation to that effect,
it would have to
be implied. Needless to say, in my view, that one could hardly imply
a limitation into legislation that would be
unwarranted by the
Constitution.’
The appellant further submitted that the Constitution did not intend
that an administrator should approve a budget where the council
has
been dissolved. The appropriate steps to approve the budget can, so
it submitted, only be taken by the provincial executive in
terms of s
139(4). It was further submitted that s 139(4) provides a twofold
process, namely, interim caretaking measures and the
approval of the
budget only by the provincial executive to provide for the continued
functioning of the municipality until the elected
council takes over.
[19]
Furthermore, for its contention that the approval of the budget is a
legislative function falling beyond the administrator’s
competence,
the appellant relied on the decision in
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
,
[11]
and the views expressed by Woolman and Bishop.
[12]
It asserted that the provincial council could have approved a
temporary budget in terms of s 139(4).
Evaluation of the merits
[20]   At the outset, I must state that the appellant
conflated s 139(1) and s 139(4). These sub-sections cater for
different scenarios under which the provincial executive may
intervene. In this case, the provincial executive proceeded in terms
of s 139(1)
(c)
by dissolving the council and appointing the
administrator. The s 139(1)
(c)
intervention occurs when a
municipality cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation.
In relevant parts, s 139
reads:
‘
Section
139 Provincial intervention in local government
1.         When
a municipality cannot or does not fulfil an executive obligation in
terms
of the Constitution or legislation, the relevant provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment
of that obligation, including-
(a)
issuing a directive to the Municipal
Council, describing the extent of the failure to fulfil its
obligations and stating any steps
required to meet its obligations;
(b)
assuming responsibility for the
relevant obligation in that municipality to the extent necessary to-
(i)        maintain
essential national standards or meet established minimum standards
for the
rendering of a service;
(ii)       prevent that
Municipal Council from taking unreasonable action that is prejudicial
to the
interests of another municipality or to the province as a
whole; or
(iii)      maintain economic
unity; or
(c)
dissolving the Municipal Council and
appointing an administrator until a newly elected Municipal Council
has been declared elected,
if exceptional circumstances warrant such
a step.’
It is thus left to the discretion of the provincial council which
process it will follow, as long as it is appropriate. These powers
are distinguishable from the powers set out in s 139(4), which
provides as follows:
‘
4.
If a municipality cannot or does not fulfil an obligation in terms of
the Constitution or legislation to approve a budget or any
revenue-raising measures to give effect to the budget, the relevant
provincial executive must intervene by taking any appropriate
steps
to ensure that the budget or those revenue-raising measures are
approved, including dissolving the Municipal Council . . .’.
Thus, the intervention depends on the nature of the failure to
execute an obligation, and the appropriateness of the internvention.
[21]   Section 139(1)
(c)
is a broad provision, aimed
at a failure by a municipality to ‘fulfil an executive obligation
in terms of the Constitution or legislation’.
It gives a discretion
to the provincial executive whether to intervene or not. On the other
hand, s 139(4) is specific. It is triggered
by a Municipal Council’s
failure to approve a budget or any revenue raising measures to give
effect to the budget. It is couched
in peremptory terms, making it
mandatory that the provincial executive intervene by taking
appropriate steps to ensure that the budget
or revenue raising
measures are approved. A simple reading of s 139(4) makes it plain
that the failure to approve a budget or revenue
raising measures is
the only trigger for an intervention by the provincial executive in
terms of s 139(4). Therefore, s 139(4)
read with the provisions
of s 26 of the MFMA, caters only for the consequences of failure to
approve a budget before the start of
a budget year.
[22]   In the present case, the administrator was not
appointed as a consequence of a failure by the municipality to
approve
a budget but in terms of s 139(1)
(c)
. His terms of
reference were to:
‘
(i)
undertake all executive functions of a municipal council;
(ii)       undertake all
statutory executive functions of the Mayor;
(iii)      undertake all fiscal
and financial management functions at the municipality, including
being signatory
on the municipal primary banking account;
. . .
(vi)      ensure implementation
of financial systems, policies and procedures.’
Section 139(1)
(c)
of the Constitution imposes no obligation on
the provincial executive to pass an interim budget when it dissolves
the council. It
refers to the dissolution of the council and the
appointment of an administrator until a newly elected Municipal
Council has been
declared elected, if exceptional circumstances
warrant such a step.
[23]   The clear purpose of the appointment of an
administrator is to ensure the continued functioning of the
municipality.
The administrator does so as the legal substitute of
the Municipal Council. This leads to two important consequences.
First, the
administrator could hardly fulfil this function without an
approved budget. It follows that if an administrator is in office
when
the aforesaid legislative provisions oblige the approval of a
budget, the approval thereof by the administrator would accord
squarely
with the very purpose of the appointment of the
administrator. Secondly, a reference to a Municipal Council in
provisions such as
s 160 of the Constitution and the definition of
‘approved budget’ in s 1 of the MFMA, must be understood as
including a reference
to the duly authorised legal substitute of the
Municipal Council for the time being.
[24]   A proper analysis of the appellant’s contention
reveals that it comes down to saying that s 139(4) and 139(5)
of the
Constitution provide for a blanket prohibition against the approval
of a budget by an administrator. Such an intention could
easily have
been clearly expressed, but cannot be found in the text of these
provisions. And as I have said, their context points
the other way.
[25]   The fundamental flaw in the appellant’s case is
that it assumed that whenever a municipal council is dissolved,
regardless of the basis for the dissolution or the power invoked, it
is only the provincial executive that is empowered to adopt
the
budget.
[26]   I agree with the first respondent that budget
approval is not a legislative function. As I have said, s 151(2) of
the Constitution provides that the executive and legislative
authority of a municipality is vested in its Municipal Council. The
Constitution does not define these terms. They should accordingly
bear their ordinary meanings. A legislative function relates to
the
making of laws, as envisaged in, inter alia, s 156 (2) read with s
162 of the Constitution or the imposition rates and taxes
in terms of
s 229 read with, inter alia, s 6 and 14 of the Rates Act 6 of 2014.
The fact that it is preceded by a debate in the municipal
council
does not mean that the act of passing a budget is a legislative
function. The interpretation of the budget process should
be
considered in the context of its purpose, which is executive in
nature. The budget essentially facilitates service delivery.
[27]
The appellant’s reliance on
Fedsure
[13]
was incorrect. The first respondent correctly pointed out that
Fedsure
is
no authority for the proposition that the approval of the budget is
law-making. The fact that s 151(2) vests the council
with
executive and legislative powers does not confer to the council the
same powers as envisaged in the national and provincial
governments,
the Constitution limits the council’s power to legislate only to
the passing of by-laws. In fact, only a resolution
is required to
adopt a budget. Most significantly, the
Fedsure
judgment concerned the legality of rates imposed by the Municipal
Council on its residents. The majority in
Fedsure
found that when power is exercised to raise rates and taxes or
appropriation of public funds, the National, provincial or local
government
exercises a power under the Constitution peculiar to
legislative bodies. It further concluded that it did not seem to the
Court that
the action of municipal legislatures, in resolving to set
the rates, can be classified as administrative action as contemplated
by
s 24 of the interim Constitution.
[28]   It remains to deal with the appellant’s reliance
on para 58 of
Mnquma.
It will be recalled that the court held
that the obligations to approve a budget or to provide basic services
are not executive obligations
within the meaning of s 139(1), because
these matters, amongst others, are specifically dealt with in s
139(4) and (5). This interpretation
is not correct. Section 139(4)
and (5) simply do not purport to define executive obligations or to
differentiate between executive
and legislative obligations. This is
particularly illustrated by the fact that the obligations of a
Municipal Council to provide
basic services and to meet its financial
commitments are clearly of executive nature. The reliance on
Mnquma
was thus misplaced.
[29]   In conclusion, the executive powers given to the
third respondent included the power to approve the budget. The
appeal
has to fail.
[30]
With regard to costs, since the appeal was on a constitutional issue
against an organ of state, in line with the
Biowatch
[14]
principle, the appellant should not be saddled with the state
respondents’ costs.
The order
[31]   Accordingly, the following order is made:
1       The application for condonation
of the late filing of the first respondent’s heads of argument
is
granted and the first respondent is directed to pay the costs of
opposition thereof.
2       The application for condonation
of the late filing of the third respondent’s heads of argument
is
granted.
3       The appeal is dismissed.
Y T MBATHA
JUDGE
OF APPEAL
Appearances
For
appellant:
A T Lamey (with him C van Schalkwyk)
Hurter Spies Inc., Pretoria
Rossouw & Conradie Inc., Bloemfontein
For first
respondent:    T Ramogale
The State Attorneys, Pretoria
The State Attorneys, Bloemfontein
For third
respondent:    T J Bruinders SC (with him M
Motlogelwa)
Malebye Motaung Mtembu Inc., Pretoria
JL Jordaan Attorneys, Bloemfontein
[1]
Uitenhage Transitional Local
Council v South Africa Revenue Services
[2003] 4 All SA 37
(SCA);
2004 (1) SA 292
(SCA) para 6; See also
Turnbull-Jackson
v Hibiscus Municipality
[2014] ZACC 24
;
2014 (6) SA 592
;
2014
(11) BCLR 1310
(CC) para 25 to 26 and
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
and Others, National Director of
Public Prosecutions and Another v Mulaudzi
[2017]
ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA).
[2]
Mabotwane Security Services CC v Pikitup Soc
(Pty) Ltd and Others
[2019] ZASCA 164
para 15.
[3]
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
;
2000 (1) BCLR 39
CC para 21 footnote 18.
[4]
Centre for Child Law v Hoërskool Fochville &
another
[2015] ZASCA 155
;
2016 (2) SA
121
(SCA) para 11. (Emphasis added.)
[5]
See
Radio Pretoria v Chairman, Independent Communications
Authority of South Africa above
;
Rand Water Board v Rotek
Industries (Pty) Ltd
2003 (4) SA 58
(SCA);
Minister of Trade
and Industry v Klein NO
[2009] 4 All SA 328
(SCA);
Clear
Enterprises (Pty) Ltd v CSARS
[2011] ZASCA 164
(SCA);
The
Kenmont School & another v DM & others
[2013] ZASCA 79
(SCA); and
Ethekwini Municipality v South African Municipal
Workers Union & others
[2013] ZASCA 135
(SCA);
Legal Aid
South Africa v Magidwana & others
[2014] 4 All SA 570
(SCA);
and
Deutsches Altersheim Zu Pretoria v Dohmen & others
[2015] ZASCA 3 (SCA).
[6]
Capitec Bank Holdings Limited and Another v
Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99
;
[2021] 3 All SA 647
(SCA) para 19. (Footnote
omitted.)
[7]
Democratic Alliance and Others v Premier for the Province of
Gauteng and Others
[2020] 2 All SA 793 (GP).
[8]
Premier, Gauteng and Others v Democratic Alliance and Others; All
Tshwane Councillors who are Members of the Economic Freedom Fighters
and Another v Democratic Alliance and Others; African National
Congress v Democratic Alliance and Others
[2021] ZACC 34
;
2021
(12) BCLR 1406
(CC)
.
[9]
Mnquma Local Municipality and Another v
Premier of the Eastern Cape and Others
[2009] ZAECBHC 14 (Footnotes omitted.)
[10]
Premier of the Western Cape and
Others v Overberg District Municipality and Others
2011 (4) SA 441
(SCA);
[2011] 3 All SA 385
(SCA) para 30. (Footnotes
omitted.)
[11]
Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
CC;
1998 (12) BCLR
1458
para 45.
[12]
Stu Woolman and Michael Bishop
Constitutional
Law of South Africa
2ed (2012) pages
22-123 and 22-124.
[13]
Ibid fn 11.
[14]
Biowatch Trust v Registrar
Genetic Resources and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
.