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[2011] ZANCHC 41
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Haigh v Transnet Ltd (2115/2010) [2011] ZANCHC 41 (2 December 2011)
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: 2115/2010
Case Heard:
25/11/2011
Date delivered:
02/12/2011
In
the matter between:
C R Haigh
.............................................................................................
PLAINTIFF
and
Transnet Limited
...........................................................................
RESPONDENT
Coram: Olivier J
JUDGMENT
Olivier J:
INTRODUCTION
:
The
plaintiff, mr C R Haigh, has instituted an action in which he claims
damages from the defendant, Transnet Limited, a company
formed in
terms of the provisions of section 2 of the Legal Succession to the
South African Transport Services Act
1
(“the
SATS
Act
”
).
The defendant filed a
special plea in which it is alleged:
[2.1]
that the defendant is an organ of state as defined in section 1 of
the Institution of Legal Proceedings Against Certain Organs
of State
Act
2
(“the
Legal
Proceedings Act
”
);
and
[2.2] that the
plaintiff failed to give prior notice to the defendant as required by
the provisions of section 3 of the Legal Proceedings
Act.
The plaintiff has
excepted to the special plea on the basis that it lacks the
necessary averments to sustain such a defence. The
essence of the
exception is that, according to the plaintiff, the defendant is not
an organ of state for the purposes of the
Legal Proceedings Act.
PROCEDURE
:
I
raised the question with mr Pohl, counsel for the plaintiff, whether
the exception procedure should have been followed. Factually
speaking the defendant has quite clearly made the averments required
for the purposes of a special plea like this and it is trite
that
the correctness of factual averments is normally accepted for the
purposes of considering whether a pleading is excipiable
3
.
The
allegation that the defendant is an organ of state as envisaged in
the Legal Proceedings Act is, however, not a factual averment
in the
normal sense of the word. It is in effect an averment that the
definition of an “
organ
of state
”
in
the Legal Proceedings Act includes the defendant. A court takes
judicial notice of the provisions of such an Act
4
and
if an averment pertaining to its provisions is clearly wrong and
irreconcilable with the provisions of the Act, it will have
to be
disregarded
5
.
No amount of evidence will make any difference then.
Mr
Pohl also pointed out that a similar special plea was dealt with on
exception in
Nicor
IT Consulting (Pty) Ltd v North West Housing Corporation
6
.
From a practical point
of view it would make sense to dispose of the question whether the
defendant is an organ of state for the
purposes of the Legal
Proceedings Act as early as possible. Should it appear that the
defendant is an organ of state for the
purposes of that Act, it
could put an early end to this matter and avoid all the delay and
expense of preparing for trial. It
is also important to keep in mind
that the plaintiff is suing,
inter alia
, in his capacity as
the father and guardian of a minor who allegedly suffered injuries.
THE LEGAL
PROCEEDINGS ACT
In terms of the
provisions of section 3 of the Legal Proceedings Act “
No
legal proceedings for the recovery of a debt may be instituted
against an organ of state unless … the creditor has given
the
organ of state … notice in writing of his … intention
to institute the legal proceedings …
”.
The term “
organ
of state
” is defined in section 1 of the Legal Proceedings
Act as meaning:
“
(a)
any national or provincial department;
(b) a municipality
…;
(c) any functionary
or institution exercising a power or performing a function in terms
of the Constitution, or a provincial constitution
referred to in
section 142 of the Constitution;
(d) the South
African Maritime Safety Authority established by
section 2
of the
South African Maritime Safety Authority Act, 1998
…;
(e) The South
African National Road Agency Limited contemplated in section 3 of
The
South African National Roads Agency Limited and National Roads Act,
1998
…;
(f) National Ports
Authority Limited, contemplated in
section 4
of the
National Ports
Act, 2005
, …;
(g) any person for
whose debt an organ of state contemplated in paragraphs (a) to (f) is
liable.”
The crisp question to
be decided is therefore whether the defendant is indeed an organ of
state for the purposes of the Legal
Proceedings Act.
THE CONSTITUTION
:
The
term “
organ
of state
”
is
also used in the Constitution
7
and
in legislation enacted to give effect to the Constitution. In
section 239 of the Constitution it is defined as follows:
“’
organ
of state’ means –
any department of
state or administration in the national, provincial or local sphere
of government; or
any other
functionary or institution –
exercising a power
or performing a function in terms of the Constitution or a
provincial constitution; or
exercising a public
power or performing a public function in terms of any legislation,
but does not include a court or a judicial
officer
”.
It is common cause
that the defendant is not a department, a municipality, an
authority, a company or a person as envisaged in
paragraphs (a),
(b), (d), (e), (f) or (g) of the definition of “
organ of
state
” in the Legal Proceedings Act. What needs to be
considered, therefore, is whether it is a “
functionary or
institution exercising a power or performing a function in terms of
the Constitution, or a provincial constitution
referred to in
section 142 of the Constitution
”, as envisaged in
paragraph (c) of that definition. The Northern Cape Province does
not have a constitution of its own.
What has to be considered is
therefore whether the defendant exercises it powers and performs its
functions “
in terms of the Constitution
”.
The part of the
definition contained in paragraph (c) in section 1 of the Legal
Proceedings Act also forms part of the definition
in paragraph (b)
of the definition of “
organ of state
” in section
239 of the Constitution, but the latter definition goes further and,
in paragraph (ii), includes a functionary
or institution “
exercising
a
public
power or performing a
public
function
in terms of any legislation
” (my
emphasis).
This means that a
functionary or institution that does not exercise its powers or
perform its functions in terms of the Constitution,
but that does so
in terms of any other legislation, could still be an organ of state
for the purposes of section 239 of the Constitution
if the power
exercised or the function performed is of a public nature.
TRANSNET
:
On a literal
interpretation of paragraph (c) of the definition of “
organ
of state
” in section 1 of the Legal Proceedings Act it
would, however, be irrelevant whether the power exercised or the
function
performed is of a public nature. The power has to be
exercised or the function performed “
in terms of the
Constitution
” (not any other legislation) for such a
functionary or institution to qualify as an organ of state as
intended in paragraph
(c) of the definition in the Legal Proceedings
Act.
The
defendant, as already mentioned, is the company envisaged in section
2 of the SATS Act. It does indeed perform a public service
and the
very close link between it and the state appears from the following
passage in
Transnet
Ltd v Goodman Brothers (Pty) Ltd
8
at
866 para [37];
“
From
the history of the creation of Transnet, as it appears from the
provisions of the … Act, one can only deduce that all
the
powers and functions of the former SA Transport Services were
transferred to Transnet, who is now obliged to exercise the said
powers and perform the said functions. In doing so, Transnet merely
step into the shoes of the SA Transport Services. Like the
latter, it
is performing a public service and function and exercising all the
powers of a government department. Furthermore, the
State is the only
member and shareholder of Transnet (s 2 (2)); the entire commercial
enterprise of the State (‘previously
existing as the South
African Transport Services’), including all assets,
liabilities, rights and obligations, was transferred
to Transnet (s 3
(2)); the State is the only member and shareholder of Transnet and it
controls Transnet; an employee of Transnet
is deemed to be an
employee of the State (s 9 (2)); Transnet is obliged to provide a
service that is in the public interest (s
15); the Minister of
Transport is entitled to make regulations on a large range of matters
relating to the control and functioning
of Transnet (s 30)
”.
Transnet has, because
of its unique nature and the fact that it exercises and performs
public power and functions, been recognised
to be an organ of state
for the purposes of the definition in section 239 of the
Constitution;
“
A
survey of the material in the light of which that meaning has to be
determined must start with s 32 (1) of the Constitution. This
sections confers upon every person the right of access to any
information held by the State. It is an entrenched right in the Bill
of Rights. That a juristic person (such as the respondent) is
entitled to the right was not in dispute. The Act is the legislation
demanded by section 32 (2) of the Constitution. The appellant was
formed in terms of s 32 of the Legal Succession to the South
African
Transport Services Act 9 of 1989 (the SATS Act). Pursuant to the SATS
Act the appellant is an institution ‘exercising
a public power’
and ‘performing a public function’. That function
includes providing a transport service ‘that
is in the public
interest’. This brings it within the definition of ‘organ
of State’ in s 239 (b) of the Constitution
…. Section 8
(1) of the Constitution provides that the Bill of Rights binds an
organ of state.”
9
In
Transnet
Ltd t/a National Ports Authority v Owner of MV Snow Crystal
it
was decided that Transnet had concluded a contract in its capacity
as an organ of state
10
.
It has also been recognised as an organ of state for the purposes of
the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act, 19 of 1998
11
,
but in that Act the term “
organ
of state
”
is
defined with specific reference to section 239 of the Constitution.
SUBMISSIONS ON
BEHALF OF DEFENDANT
:
Mr Beharie, counsel
for the defendant, conceded that, on a literal reading of the
provisions of the SATS Act in accordance with
their ordinary
grammatical meaning, Transnet would not be included in any part of
the definition of an “
organ of state
” in that
Act. As regards paragraph (c) of that definition he did not attempt
to argue that the defendant performs its functions
or exercises it
power in terms of the Constitution. It clearly does so in terms of
the SATS Act. He also conceded, if I understood
him correctly, that
there is no ambiguity in the wording of those provisions.
Mr Beharie argued,
however, that there is a different kind of ambiguity, and an
absurdity, that needs to be addressed by adopting
a purposive
approach in reading and interpreting the definition of the term
“
organ of state
” in the Legal Proceedings Act. He
advanced this argument as follows:
According to the
preamble of the Act the object and intention was to align and
harmonise “
different notice periods for the institution of
legal proceedings”.
The
South African National Roads Agency Limited and National Roads
Act
>
12
,
which is the enabling Act of the South African Roads Agency Limited
(“
SANRAL
”
),
contains no notice requirement or period that needed to be aligned
or harmonised with anything, yet SANRAL was included in
the
definition of “
organ
of state
”
in
the Legal Proceedings Act during 2005.
It is therefore clear
that, despite the reference in the preamble of the Legal
Proceedings Act to the need to harmonise different
notice periods,
the legislature in 2005 decided to go further than that and to
provide the advantage of a notice requirement
and period to a body
like SANRAL, where it previously did not have that protection.
The defendant is
performing a public service and there is no reason why it should
not also enjoy the protection and advantage
of a notice
requirement. An interpretation to the effect that the legislature
did not include the defendant into the definition,
at least when it
went further than harmonising different notice periods and included
SANRAL into the definition, would result
in an anomaly.
On a purposive
approach and interpretation the defendant, being in no less a
deserving position than SANRAL, should in some
way be read into the
definition (although mr Beharie did not suggest how or where in the
existing definition this could be
done).
He
did suggest, however, that the definition of an organ of state in
the Constitution should be taken as a starting point and
that the
definition of the same term in the Legal Proceedings Act should be
interpreted in a way that would “
promote
the spirit, purport and objects of the Bill of Rights
”
13
.
DISCUSSION
:
It
is not the stated object of the provisions of the Legal Proceedings
Act to provide notice requirements and periods where none
existed
before. The fact that the legislature did so in the case of SANRAL
would not in itself justify an interpretation that
would in some way
also include Transnet. We do not know why the legislature decided to
incorporate SANRAL into its definition
of an “
organ
of state
”
in
that Act and it is not up to this court to speculate about what the
legislature’s intention had been in doing so
14
.
What is important, however, is that the legislature seemed to accept
that SANRAL could not be regarded as a functionary or institution
as
envisaged in paragraph (c) of that definition.
There
is in any event no room for a so-called purposive interpretation or
for a reading of anything into the provisions of the
Legal
Proceedings Act if there is no ambiguity and if its provisions have
not been declared invalid
15
.
In
my view the legislature, in enacting the definition of an “
organ
of state
”
in
the Legal Proceedings Act, quite clearly chose to limit the group of
functionaries and institutions to which that Act would
apply, by not
including those that performed their functions and exercised their
powers in terms of legislation other than the
Constitution or a
provincial constitution (and that are not specifically provided for
in paragraphs (a), (b), (d), (e), (f) or
(g)). It must be kept in
mind that the Legal Proceedings Act came into being long after the
proclamation and commencement of
the Constitution and the
legislature must be deemed to have been aware of the wider
definition of the term “
organ
of state
”
in
the Constitution when it enacted the Legal Proceedings Act
16
.
What should also be
kept in mind is that the legislature quite clearly intended to
exclude some organs of state from the operation
of the Legal
Proceedings Act. The use of the word “
certain
” in
the title of the Act, and in its preamble, makes this abundantly
clear. There are several examples of bodies and institutions
that
have been recognised to be organs of state for the purposes of the
Constitution, but that are not included in the definition
of that
term in the Legal Proceedings Act:
In
Mlatsheni
v Road Accident Fund
it
was held that the Road Accident Fund, established by section 2 of
the Road Accident Fund Act
17
,
is an organ of state as intended in section 239 of the
Constitution
18
.
The Legal Proceedings Act was assented to on 24 November 2002, and
came into operation on 28 November 2002, and therefore
many years
after the Road Accident Fund had come into operation. The
legislature, when enacting the Legal Proceedings Act,
is deemed to
have been aware of the fact that the Road Accident Fund Act
contained its own provisions regarding notice prior
to the
institution of legal proceedings
19
.
Yet it chose not to include the Road Accident Fund as one of the
functionaries or institutions to which the Legal Proceedings
Act
would be applicable. Again, it is not required of this court to
speculate about what the reason for that decision may have
been.
One can imagine, however, that the circumstances, duties and
obligations of bodies, functionaries and institutions may
differ to
such an extent that it may not be advisable to subject all of them
to the same, or any, notice requirements.
In
National
Gambling Board v Premier, Kwazulu-Natal, and Others
it
was held that both the National Gambling Board, a juristic person
established by section 2 of the National Gambling Act
20
,
and the Kwazulu-Natal Gambling Board, a juristic person established
by the Kwazulu-Natal Gambling Act
21
,
were organs of state as intended in section 239 of the
Constitution
22
.Once
again neither of these bodies is included in the definition of an
“
organ
of state
”
.
The Legal Proceedings Act was enacted long after the two boards had
already come into existence and had been recognised to
be organs of
state for the purposes of the Constitution.
The
same applies to Telkom. It was incorporated as a company long
before the Legal Proceedings Act was promulgated. It was held
to be
an organ of state for the purposes of the Constitution as long back
as in 1996
23
,
yet the legislature once again saw fit not to include Telkom in its
definition of an “
organ
of state
”
in
section 1 of the Legal Proceedings Act.
Just as the
legislature chose not to align and harmonise the notice and
prescription periods in the Road Accident Fund Act with
those
applicable to the organs of state included in the definition in
section 1 of the Legal Proceedings Act, it also chose to
extend the
protection and advantage of a notice period to SANRAL, in
circumstances where no such notice period had existed before
and
where there had therefore not been any need to align or harmonise.
Even if it could be argued that this is inconsistent,
and even an
anomaly, it would in my view not open the door for a reading into
the definition in the Legal Proceedings Act of
provisions affording
other functionaries and institutions the advantage of a notice
requirement just because the court may be
of the opinion that they
should also have such an advantage.
“
A
Judge has authority to interpret, but not to legislate, and he cannot
do violence to the language of the lawgiver by placing upon
it a
meaning of which it is not reasonably capable, in order to give
effect to what he may think to be the policy or object of
the
particular measure
”
24
.
“
Ultimately,
when the meaning of the language in the context is ascertained, it
must be applied regardless of the consequences and
even despite the
interpreter’s firm belief not supportable by factors within the
limits of interpretation, that the legislator
had some other
intention …
”
25
.
When
the legislature provided for the establishment of the National Ports
Authority Limited and for its inclusion in the definition
of the
term “
organ
of state
”
in
the Legal Proceedings Act during 2005
26
,
the legislature again had a golden opportunity to also include
Transnet into that definition, had it wished to do so. In fact,
the
public company National Ports Authority Limited is apparently a
subsidiary company of Transnet Limited, through which it
trades as
the National Ports Authority
27
.
Under these circumstances it is completely inconceivable that the
legislature would again have unintentionally overlooked Transnet
Limited as a company which should also be included within the
definition of
“
organ
of state
”
in
the Legal Proceedings Act. In my view the fact that the legislature,
under these circumstances and while being deemed to have
been aware
of the existence of Transnet Limited and of the fact that there
existed no notice period or requirement in respect
of it, again did
not include Transnet Limited into its definition, is a clear
indication of the fact that the legislature did
not wish to do so
and that this was a deliberate choice.
The
Legal Aid Board, another body or institution that is not
specifically named in the definition of an “
organ
of state
”
in
the Legal Proceedings Act, has not only also been held to be an
organ of state for the purposes of the Constitution
28
by
the Supreme Court of Appeal
29
,
but it also appears to have been assumed to be an organ of state for
the purposes of the provisions of section 3 (1) of the
Legal
Proceedings Act. The judgment in the case
Legal
Aid Board & Others v Singh
30
is,
with respect, not very clear in this regard. In paragraph [3]
thereof reference is made to the fact that the second appellant,
which had actually been a prosecutor and not the Legal Aid Board
(which was the first appellant), had filed a special plea in
which
it was alleged that the respondent (plaintiff) had failed to comply
with the provisions of section 3 (1) of the Legal Proceedings
Act.
Immediately thereafter, however, it is stated to have been common
cause that the “
first
appellant
”
(which
was the Legal Aid Board) was an organ of state for purposes of the
Legal Proceedings Act. Even if it is assumed that it
had actually
been the first appellant, the Legal Aid Board, that had filed a
special plea, it is clear that the question whether
the Legal Aid
Board actually was a functionary or institution as envisaged in
paragraph (c) of the definition of an “
organ
of state
”
in
the Legal Proceedings Act was not pertinently considered
31
.
It appears not to have been debated whether the Board, in providing
legal assistance to indigent persons, was not in fact “
performing
a function in terms of the Constitution
”
32
,
which could be argued to mean that it was indeed a functionary or
institution as envisaged in paragraph (c) of the definition
of an
“
organ
of state
”
in
the Legal Proceedings Act
33
.
This case can therefore never be authority for the proposition that
Transnet Limited should also be regarded as an organ of
state for
the purposes of the Legal Proceedings Act.
It
is of interest to note that the predecessor of Transnet Limited, the
South African Transport Services, did indeed enjoy the
protection of
a notice requirement
34
.
That protection was lost when the South African Transport Services
Act was repealed by the SATS Act on 6 October 1989,
which Act
contains no notice requirement. Unlike the South African Transport
Services, which had been a government institution,
Transnet Limited
has never enjoyed the benefit of a notice requirement. This was the
position since October 1989 and, at the
time when the Legal
Proceedings Act came into operation on 28 November 2002 it was still
the position. For a period of more or
less 13 years the legislature
was apparently satisfied that there was no need to provide Transnet
Limited with the advantage
of a notice requirement
35
.
When it amended the definition in the Legal Proceedings Act in 2005
to include SANRAL and National Parts Authority Limited,
it was
apparently still satisfied that Transnet Limited should not be
afforded the advantage of a notice requirement. Against
this
background it could never be said that the provisions of the Legal
Proceedings Act should be interpreted to in some way
impliedly
include Transnet Limited as an organ of state for the purposes of
that Act.
The fact is therefore
that, prior to the enactment of the Legal Proceedings Act, citizens
had the right to institute legal proceedings
against Transnet
Limited without any prior notice and there is no clear indication in
that Act (even as amended) that the legislature
intended to take
away that right and to change the existing position. Even if it
could be said that the provisions of the Act
are ambiguous in this
regard (which I do not think is the position) it should not be
interpreted to take away existing rights
and to interfere with the
fundamental right of access to courts.
“
If,
then, the expression under consideration is susceptible of two
meanings and is thus ambiguous, it is the second which it should
bear
…. This would accord with a number of well-established canons
of construction,
viz
that
where a statute is reasonably capable of more than one meaning, …,
that a strict construction is placed on statutory
provisions which
interfere with elementary rights …, that a statute is not
presumed to take away prior existing rights …
”
36
A
requirement of notice like that contained in the Legal Proceedings
Act limits the fundamental right of access to courts
37
and,
insofar as the provisions of the Act may be open for interpretation,
it should be interpreted to avoid such effect.
A
case in point is the
Nicor
case
referred to above
38
.
An action was instituted against the North West Housing Cooperation,
a corporation established by the North West Housing Cooperation
Act
39
.
It raised the special defence that it was an organ of state for the
purposes of the Legal Proceedings Act and that the plaintiff
had
failed to give prior notice to it in terms of section 3 of that Act.
It was held that, in order to determine whether the
cooperation was
an organ of state as envisaged in the Legal Proceedings Act, it had
to be determined whether the defendant derived
any power or function
“
directly
”
from
the Constitution. Only then could it be said that the defendant
performed its functions “
in
terms of the Constitution
”
,
as required by paragraph (c) of the definition in the Legal
Proceedings Act. The words “
in
terms of the Constitution
”
had
to be narrowly construed and connoted “
that
both the identity of the functionary or institution and the power or
function that he, she or it exercises are identified
in the
Constitution itself
”
.
The power or function had to arise directly from the Constitution in
order to qualify such a functionary or institution as an
organ of
state for the purposes of the Legal Proceedings Act. It was also
held, importantly, “
that
the legislature did not intend
(the
Legal Proceedings Act)
to
apply to all organs of State
”
.
It was found that the defendant derived its powers from the North
West Housing Cooperation Act, and not from the Constitution,
and
that it was therefore not an organ of state for the purposes of the
Legal Proceedings Act.
The
enabling legislation of Transnet Limited is the SATS Act, and not
the Constitution The SATS Act is also not an Act that was
proclaimed
to give effect to the provisions of the Constitution
40
.
Transnet Limited therefore does not even indirectly derive its
powers from the Constitution.
CONCLUSION
:
The defendant is
therefore not a functionary or institution as intended in paragraph
(c) of the definition of “
organ of state
” in
section 1 of the Legal Proceedings Act. Even though it performs
public functions it does not do so in terms of the
Constitution, or
in terms of a provincial constitution. No other part or paragraph of
that definition lends itself to an interpretation
which would
include the defendant as an organ of state for the purposes of that
Act. There is no ambiguity in the provisions
of that definition in
this regard and there is also no scope to read in any provisions
which would include the defendant as an
organ of state for the
purposes of that Act.
Therefore
the allegation that the defendant is an organ of state for the
purposes of section 3 (1) of the Legal Proceedings Act
is bad in
law. It has to be disregarded, with the result that the special plea
raised by the defendant discloses no defence.
The averments in the
special plea would “
on
every possible interpretation
”
thereof,
read with the Legal Proceedings Act, not sustain the special defence
raised
41
.
COSTS
:
There is no reason why
costs should not follow the result in this case. The contrary was
also not argued.
ORDER
:
The following order is
therefore made:
The exception is
upheld with costs.
______________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the Plaintiff: Adv L Le R
Pohl
Instructed by: Haarhoffs,
KIMBERLEY
For the Respondent: Adv N Beharie
Instructed by: Du Toit
Prokureurs, KIMBERLEY
1
9
of 1989
2
40
of 2002
3
Herbstein
& Van Winsen – The Civil Practice of the High Courts in
South Africa
, 5
th
edition, Vol 1, Cilliers
et al
,
p 639
4
Durr
v S A Railways and Harbours
1917 CPD
284
at 286
5
Compare
Trustees, Bus Industry Restructuring
Fund v Break Through Investments CC and Others
2008
(1) SA 67
(SCA)
6
2010
(3) SA 90
(NWM)
7
The
Constitution of South Africa Act, 108 of 1996
8
[2000] ZASCA 151
;
2001
(1) SA 853
(SCA)
9
Transnet
Ltd and Another v SA Metal Machinery Co (Pty) Ltd
2006
(6) SA 285
(SCA) para [8]; see also
Transnet
Ltd and others v Chirwa
[2007] 1 ALL
SA 184
(SCA) para [15];
Chirwa v
Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA
367
(CC) para’s [28] and [142]; compare
Transnet
Ltd v Goodman Brothers (Pty) Ltd, supra
,
where the question was left open at 871I
10
[2008] ZASCA 27
;
2008
(4) SA 111
(SCA) para [19]
11
Pedro
and Others v Greater George Transitional Council
2001
(2) SA 131
(C) para [13]
12
7
of 1998
13
section
39 (2) of the Constitution
14
Summit
Industrial Corporation v Claimants against the Fund Comprising the
Proceeds of the Sale of M V Jade Transporter
1987
(2) SA 853
(A) at 596G-597B
15
Standard
Bank Investment Corporation Ltd v Competition Commission and Others;
Liberty Life Association of Africa Ltd v Competition
Commission and
Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) at 810;
Minister of Safety and Security v
Sekhoto and another
[2011] 2 All SA
157
(SCA) para [15]
16
Stellenbosch
Wine Trust v Oude Meester Group Ltd
1977
(2) SA 221
(CPD) at 240 D
17
56
of 1996
18
2009
(2) SA 401
(E) para’s [13], [14]
19
s
ection
24 of the Road Accident Fund Act
20
Act
33 of
1996
21
Act
10
of 1996
22
[2001] ZACC 8
;
2002
(2) SA 715
(CC) para’s [18], [19]
23
Directory
Advertising Costs Cutters v Ministers for Posts, Telecommunications
and Broadcasting and Others
1996 (3)
SA 800
(T) at 811B
24
Dadoo,
Ltd and Others v Krugersdorp Municipal Council
1920
AD 530
at 543
25
Jaga
v Dönges, NO and Another; Bhana v Dönges, NO and Another
1950 (4) SA 653
(A) at 664G-H
26
s
ee,
inter alia
,
sections 1
,
4
and
88
of the
National Ports Act, 12 of 2005
, which
was assented to on 31 July 2005 and came into operation on 26
November 2006
27
Transnet
Ltd t/a National Ports Authority v Owner of MV Snow Crystal, supra
28
and
the promotion of Administrative Justice Act, 3 of 2000, which was
promulgated to give effect to the provisions of the Constitution
29
Kriel
v Legal Aid Board and Others
2010 (2) SA 282
(SCA) para [12]
30
unreported
judgment by a Full Bench in the Natal Provincial Division on 25
August 2008, case nr 14939/05, appeal nr AR 99/07
31
The
Legal Aid Board clearly is not an organ of state as envisaged in any
of the other paragraphs of that definition
32
see
section 35 (3) (g) of the Constitution
33
Although
it would, on the other hand, possibly not have derived its power
directly from the Constitution
34
see
section 64 (3) of the South African Transport Services Act, 65 of
1981
35
see
Transnet Ltd v Ngcezula
1995
(3) SA 528
(AD) at 544E
36
Tshwete
v Minister of Home Affairs (RSA)
1988
(4) SA 586
(A) at 612G
37
see
Moise v Greater Germiston Transitional
Local Council: Minister of Justice and Constitutional Development
Iintervening (Women’s
Legal Centre as
Amicus
Curiae
)
[2001] ZACC 21
;
2001
(4) SA 491
(CC) para’s [12], [13]
38
p
ara
[6] above
39
24
of 1982
40
compare
S G v C G
2010
(3) SA 352
(ECP) para [4];
Chirwa v
Transnet Ltd and Others, supra
, para
[148]
41
Klokow
v Sullivan
2006 (1) SA 259
(SCA)
para[15]