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[2024] ZANCHC 45
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Alexkor Soc Ltd v Vast Mineral Sands (Pty) Ltd (1452/2023) [2024] ZANCHC 45 (24 April 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
1452/2023
Heard:
19/03/2024
Date delivered:
24/04/2024
In the matter between:
ALEXKOR
SOC
LTD
Applicant
and
VAST
MINERAL SANDS (PTY) LTD
1
st
Respondent
In re:
VAST
MINERAL SANDS (PTY)
LTD
Applicant
and
ALEXKOR
SOC LTD
1
st
Respondent
RICHTERSVELD
MINING COMPANY (PTY) LTD
2
nd
Respondent
RICHTERSVELD
SIDA !HUB CPA
3
rd
Respondent
MINISTER
OF MINERALS AND ENERGY
4
th
Respondent
JUDGMENTS: APPLICATION
FOR LEAVE TO APPEAL AND
SECTION 18(3)
OF THE
SUPERIOR COURTS ACT, 10
OF 2013
Mamosebo J
[1] Alexkor SOC LTD
(Alexkor) brought an application for leave to appeal to the Supreme
Court of Appeal (SCA), alternatively,
the Full Bench of this
Division, against the whole judgment and order granted on 15
September 2023 essentially granting Vast Mineral
Sands (Pty) Ltd
(Vast Mineral) access to the prospecting area in order to conduct
prospecting activities. Vast Mineral in turn
launched an application
in terms of
s 18(3)
of the
Superior Courts Act, 10 of 2013
, for this
Court not to suspend its judgment and order granted on 15 September
2023 pending the final determination of the leave
to appeal or
appeals against the order. I directed that the two applications be
set down for hearing together and were both heard
on 19 March 2024.
O
nly Alexkor and Vast Mineral are participants
with each opposing the other’s application.
Application for leave
to appeal
[2]
Alexkor filed the Notice of Application for Leave to Appeal with the
Registrar on 02 October 2023. Whereas it is settled
that the grounds
of appeal must be clearly outlined and succinct, Alexkor’s
grounds of appeal were presented in a form of
argument. This is
impermissible. See
Songono
v Minister of Law and order
[1]
.
[3] The following
are the surmised grounds set out in the notice of appeal upon which
Alexkor relies in alleging that I erred
in my judgment:
3.1 That Vast
Mineral failed to prove the existence of a right in terms of s 5(3)
of the Mineral and Petroleum Resources
Development Act, 28 of 2002
(MPRDA);
3.2
That the Oudekraal
[2]
principle
is applicable in these circumstances;
3.3 That Vast
Mineral must comply with the requirements set out in the
Environmental Authorisation;
3.4 That Vast
Mineral has no right to prospect;
3.5 That there is
an absence of an operating agreement;
3.6 That the costs
that were ordered to follow the result.
[4]
The test to determine whether leave to appeal should be granted or
not is trite
[3]
.
Sec 17(1)(a)
of
the
Superior Courts Act espouses
two situations under which a court
may grant leave, namely, where the appeal would have reasonable
prospects of success or where
there is a compelling reason for the
appeal to be heard. Leave to appeal may also be granted if it will be
in the interests of
justice to do so. What needs to be determined is
whether Alexkor has satisfied the requirements of this test or not.
[5] Adv Loxton SC,
for Alexkor, focused his main argument on the ground regarding Vast
Mineral’s failure to obtain a
water licence; without abandoning
the rest of the other grounds. It was argued on behalf of Alexkor
that leave should be granted
based on the following reasons. For Vast
Mineral to conduct prospecting activities, it had to satisfy the
Environmental Authorisation
(EA) Site Specific Conditions, Condition
3, which requires an Integrated Water Use Licence (IWUL) to be
obtained from the Department
of Water and Sanitation (DWS) prior to
commencement of activity. Alexkor maintains that Vast Mineral’s
failure to obtain
a water use licence as required by the EA resulted
in the condition remaining unfulfilled. Alexkor claims that it is on
this basis
that they maintain that the principle in
Oudekraal
is
applicable, informed by Vast Mineral’s election not to apply
for a water licence and that leave should thereafter be granted.
[6] Alexkor
contends that the final interdict ought not to have been granted
because at para 19 of the main judgment I referred
to Vast Mineral
relying on
s 5(3)(c)
of the MPRDA; and further that Vast Mineral
cannot rely on either
s 5(1)
or
5
(3) of the MPRDA. Alexkor persisted
with its argument relating to a breach of
s 19(2)(e)
of the MPRDA in
that Vast Mineral failed to comply with the requirements of the
approved environmental management programme maintaining
that the
right to exercise a prospecting right is subject to other laws, for
example, the National Environmental Management Act,
107 of 1998
(NEMA).
[7]
The correct approach to interpretation of documents which includes
legislation and judgments of the Courts is as espoused
in
Endumeni
[4]
.
Alexkor
attacks the existence of Vast Mineral’s right to prospect
predicated on s 5(3)(c) of the MPRDA and urged this Court
to
interpret s 5(3)(a) and 5(3)(c) which stipulates:
“
(3)
Subject to this Act
,
any holder of a prospecting right, a mining right, exploration right
or production right may-
(a)
enter the land to which such right
relates together with his or her employees, and bring onto that land
any plant, machinery or
equipment and build, construct or lay down
any surface, underground or under sea infrastructure which may be
required for the purpose
of prospecting, mining, exploration or
production, as the case may be;
(c) remove and
dispose of any such mineral found during the course of prospecting,
mining, exploration or production, as the
case may be.”
This Court clearly
investigated fully the issue between the parties pertaining to access
to the prospecting area.
[8] A case is made
out in the pleadings. This is what appears at para 51 of Vast
Mineral’s founding affidavit to dispel
the doubt:
“
In
terms of s 5(1) of the Mineral and Petroleum resources Development
Act 28 of 2002 (“the MPRDA”) (which is the legislation
in
terms of which Prospecting Right NC 1192 PR was granted to Vast
Mineral Sands) the Prospecting Right is thus a limited real
right in
respect of the minerals and the land to which that prospecting right
relates. Vast Mineral Sands as the holder of the
Prospecting Right
is, by virtue of s 5(2) of the MPRDA, entitled to the rights referred
to in section 5 and also to such other
rights as may be granted to,
acquired by or conferred upon Vast Mineral Sands as such holder under
the MPRDA or any other law.”
A further need for
interpretation stems from the opposing submissions by the parties.
Vast Mineral contends that its rights are
only subject to the MPRDA.
Alexkor disagrees with the submission that the correct interpretation
is to the effect that it is subject
to other laws.
[9]
In interpreting the MPRDA, this Court must, according to
Endumeni
[5]
attribute meaning to the words used, regard being had to the context
provided by reading the particular provision or provisions
in the
light of the document as a whole and the circumstances attendant upon
its coming into existence. More importantly, consideration
must be
given to the language used in light of the ordinary rules of grammar
and syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document.
[10]
Taking cue from the analysis of the phrase “
subject
to
”
by the SCA in
S
v Marwane
[6]
where
it was held:
“
The
purpose of the phrase “subject to” in such a context is
to establish what is dominant and what is subordinate or
subservient;
that to which a provision is “subject”, is dominant –
in case of conflict it prevails over that
which is subject to it.
Certainly, in the field of legislation, the phrase has this clear and
accepted connotation.”
The submission by Alexkor
can therefore not be correct when it contends that Vast Mineral’s
rights as set out in s 5(3) are
“
subject to
” the
EA, the Sesfikile Agreement and the Co-operation agreement which
requires Vast Mineral to conclude an operating agreement
before
commencing with its prospecting activities. In Section 1 of the MPRDA
‘
this Act
’ includes the regulations and any term
or condition to which any permit, permission, licence right, consent,
exemption, approval,
notice, closure certificate, environmental
management plan, environmental management programme or directive
issued, given, granted
or approved in terms of this Act, is subject.
It follows therefore that the phrase “
subject to this Act
”,
in my view, connotes that the MPRDA is the dominant Act and the EA
and the agreements are subservient to the MPRDA. I find
that s
5(3)(c) was never part of the dispute despite having found its way
into my judgment. I find that “
subject to this Act
”
in these circumstances refers to the MPRDA. Hence the order granted
confirms that Vast Mineral should be granted access
because it had
made out a case of being denied access despite being the holder of a
prospecting right.
[11]
Notwithstanding that s 19(2)(e) of the MPRDA requires the holder of a
prospecting right to comply with the conditions
of the environmental
authorisation, the following decision and the reasons thereto on the
Environmental Authorisation granted to
Vast Mineral (Annexure HP8) is
noteworthy.
“
The
Department is satisfied, on the basis of information availed to it
and subject to compliance with the conditions of this environmental
authorisation, that the applicant should be authorised to undertake
NEMA EIA listed activity(ies) specified below. Details regarding
the
basis on which the Department reached this granting decision are set
out in Annexure “I” of this environmental
authorisation.”
In
the first paragraph of Annexure 1: Reason for the decision, under the
heading “Background” reads:
“
Vast
Mineral Sands (Pty) Ltd submitted an application for an EA for
activities listed in the EIA Regulations. This company has a
signed
agreement in place with Alexkor (Pty) Ltd as this prospecting area
fall under the diamond mining area of the Richtersveld
Mining Company
and Alexkor as which is a Joint Venture.”
Para
25 of the main judgment considered the averment by Vast Mineral that
it would not be engaging in any water use as contemplated
in s 21 of
the National Water Act
[7]
and
referred to the Act itself under footnote 5. The absence of a water
use licence does not bar Vast Mineral as the holder of
a prospecting
right from gaining entry to the premises to plan prospecting
activities.
[12] The contention
by Alexkor that allowing Vast Mineral to enter the area will be in
contravention of s 5A of the MPRDA,
a prohibition relating to the
illegal act, cannot be substantiated. The section stipulates:
“
No
person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for and
produce any mineral or petroleum or commence with any work incidental
thereto on any area without-
(a)
An environmental authorisation.”
Alexkor cannot be correct
in its stance that Vast Mineral does not have the right to prospect
because of the absence of a water
use license. As stated earlier the
right to prospect is predicated on s 5(3)(a) of the MPRDA and Vast
Mineral is still the holder
of a prospecting right. In as far as the
absence of an operating agreement is concerned, an aspect dealt with
in the main judgment,
para 27, is clearly not a jurisdictional
requirement and continuing to raise it, is an exercise in futility.
[13] The gist of
Alexkor’s argument centres around the unfulfilled requirement
by Vast Mineral to obtain a water use
licence thereby failing to
comply with Condition 3 of the environmental authorisation. However,
what cannot be ignored or overlooked
is what was considered by the
Department and the Minister prior to granting the application and the
relationship between Alexkor
and Vast mineral. These parties,
together with the Richtersveld community and Richtersveld company
were in a joint venture. That
is why some of the considerations were
informed by the joint venture position. Alexkor never filed any
objections to the Department
or to the Minister. I said in the main
judgment that I have no doubt that Alexkor acquiesced in the entire
arrangement and reneged
later for unfathomable reasons. This failure
to obtain a water licence cannot be read in isolation. Regard being
had to s 38A(2)
of the MPRDA dealing with environmental
authorisations, an environmental authorisation issued by the Minister
shall be a condition
prior to the issuing of a permit or the granting
of a right in terms of this Act. It should be kept in mind that Vast
Mineral was
granted a prospecting licence which is now extended from
01 February 2023 to 01 January 2026.
[14] Adv Van
Niekerk SC, for Vast Mineral, contended that the right asserted is
the right to prospect as contemplated in s
5(3)(a) of the MPRDA.
However, Alexkor has never in its papers or during argument attacked
the prospecting right granted to Vast
Mineral. It also does not
attack the environmental authorisation per se, which was also granted
to Vast Mineral. The right asserted
by Vast Mineral is to enter the
land to which the prospecting right relates.
[15] Having
carefully and dispassionately considered the application for leave to
appeal in order to determine whether there
are reasonable prospects
that another court would come to a different finding than this court
had reached, I have not found any.
I am also of the view that there
are no compelling reasons to entertain this appeal. I am therefore,
satisfied that there are no
reasonable prospects of a successful
appeal.
In the result the
application for leave to appeal to the Supreme Court of Appeal
alternatively, to the Full Bench of this Division,
must fail.
Application in terms
of
s 18(3)
of the
Superior Courts Act, 10 of 2013
[16] The relief
that the applicant, Vast Mineral, is seeking, on an urgent basis, is
a declarator in terms of
s 18(3)
for the order granted on 15
September 2023 to be put into immediate operation despite the
application for leave to appeal having
been filed by Alexkor or any
subsequent appeal process that may follow. It also seeks costs of
this application which shall include
two counsel where so employed.
[17]
Section 18
of
the
Superior Courts Act, dealing
with the suspension of decision
pending appeal, stipulates:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2) Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution
of a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application
for leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3) A court may
only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order
otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so
order and that the other party will not
suffer irreparable harm if the court so orders.
(4)
(a) If a court
orders otherwise, as contemplated in subsection (1)-
(i)
the court must immediately record
its reasons for doing so;
(ii)
the aggrieved party has an automatic
right of appeal to the next highest court;
(iii)
the court hearing such an appeal
must deal with it as a matter of extreme urgency; and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(b) 'Next
highest court', for purposes of paragraph (a) (ii), means-
(i) a full court
of that Division, if the appeal is against a decision of a single
judge of the Division; or
(ii) the Supreme
Court of Appeal, if the appeal is against a decision of two judges or
the full court of the Division.”
[18]
Wallis JA in
Knoop
NO and Another v Gupta (Execution)
[8]
,
made
the following remarks pertaining to
s 18:
[45] These
provisions have now been considered by this court in three judgments.
[University of the Free State v Afriforum
and Another
2018 (3) SA 428
(SCA) paras 5 -6; Ntlemeza v Helen Suzman Foundation and Another
2017
(5) SA 402
(SCA) paras 19 – 22 and Premier for the Province of
Gauteng and Others v Democratic Alliance and Others
[2020] ZASCA
136].
The effect of these is that an applicant for an execution order
must prove three things, namely exceptional circumstances; that
they
will suffer irreparable harm if the order is not made; and that the
party against whom the order is sought will not suffer
irreparable
harm if the order is made.
[46] Courts have
always eschewed any attempt to lay down a general rule as to what
constitutes exceptional circumstances.
The reason is that the enquiry
is a factual one. There is a helpful summary in MV Ais Mamas that has
been endorsed both by this
court and by the Constitutional Court. In
the context of
s 18(3)
the exceptional circumstances must be
something that is sufficiently out of the ordinary and of an unusual
nature to warrant a
departure from the ordinary rule that the effect
of an application for leave to appeal or an appeal is to suspend the
operation
of the judgment appealed from. It is a deviation from the
norm. The exceptional circumstances must arise from the facts and
circumstances
of the particular case.”
[19] This Court
granted Vast Mineral a final interdict on 15 September 2023 granting
it permission to enter the Remainder,
Portion 8 and Portion 9 of Farm
1 District Namaqualand and Farm 155 District Namaqualand for
prospecting purposes following in
an urgent application. Alexkor was
the only respondent who opposed the application.
[20] A brief
background is to this effect. On 30 June 2017 a joint venture formed
between Alexkor and the RMC on one hand
and Vast Mineral on the
other. In that same year, 20 October 2017, Alexkor’s acting
Chief Executive Officer (CEO), Mr Vimai
Bansi, addressed a letter to
the CEO of the PSJV, Mr Mervyn Carstens, confirming that Alexkor is
aware of, and has given approval
for Vast Mineral to mine heavy
minerals at the mining operations in Alexander Bay. This was subject
to VMS securing the necessary
permits from the various government
departments. Alexkor remained an interested and vigilant party.
[21] Vast Mineral
was granted a prospecting right on 01 February 2018 resultantly
making it a holder of a registered Prospecting
Right NVC 11923 PR in
respect of specified heavy minerals. It was to prospect on Remainder
Portion 8 and Portion 9 of farm 1 District
Namaqualand as well as
Farm 155 District Namaqualand. The same prospecting area falls within
the diamond mining area of the Pooling
and Sharing Joint Venture
(PSJV) which is an Alexkor area. The secretary of the Alexkor RMC JV
confirmed on 10 August 2018 that
the agreement between Vast Mineral
and the Alexkor RMC JV was in good standing.
[22] Vast Mineral
was issued with the necessary Environmental Authorisation on 06
September 2018 NCS 30/5/1/1/3/2/1 (11923)
EM permitting it to
commence with Listed Activity 20 under Listing Notice 1 as published
in R.983 of 2014. It was also issued with
a Waste Management Licence,
NCS30/5/1/3/3/2/1 (10646) EM on the same day. Vast Mineral’s
Prospecting Right was notarially
executed on 07 November 2018 and
registered in the Mineral & Petroleum Titles Registration office
on 04 December 2018. It thereafter
commenced with the collection of
samples in the area. By 2019 it had conducted extensive testing and
had spent on drilling and
laboratory analysis. In-between Covid 19
happened and thereafter followed an exchange of communication between
Vast Mineral and
Alexkor for access, which culminated in the urgent
application and now this application.
[23] The crisp
question that follows is whether there are exceptional circumstances
demanding a deviation from the norm of
suspending the operation or
execution of the order of 15 September 2023 pending the application
for leave to appeal or of an appeal
process or not.
Exceptional Circumstances
[24] Mr Haroon
Pandor, who deposed to the founding affidavit in the application for
leave to execute, stated that Vast Mineral’s
case was
exceptional for the following reasons: Vast Mineral is seeking to
protect and execute its limited real right to prospect.
The primary
issue pertains to the limited period remaining within which to
complete the prospecting operations. The initial five
years have
lapsed and it is now granted an extension of three years ending on 31
January 2026 without an option of a further extension.
Four of the
first five-year term was wasted on the dispute regarding access of
Vast Mineral to the prospecting area. The Covid
19 pandemic has also
put a spanner in the wheel, negatively affecting operations. So far,
Vast Mineral had only ten months to conduct
the prospecting
activities. Vast Mineral needs to complete the prospecting activities
in order to obtain the results that will
substantiate its application
for the mining right. Should this not occur, it stands to lose its
investors. Mindful of the objectives
of the MPRDA expanding
opportunities to the previously disadvantaged communities to
participate in mineral industries and to benefit
from the mineral
resources, the refusal by Alexkor to grant Vast Mineral access
extends to a denial of these benefits to Richtersveld
community who
need jobs and economic development.
[25] Alexkor’s
response to the aforementioned is the following. The urgency caused
by the limited duration of the prospecting
right is Vast Mineral’s
own doing. Despite the dispute between the parties having arisen in
October 2019, Vast Mineral’s
inaction for the period October
2019 to June 2022 should not be ignored. Alexkor contended that the
urgency is self-created and
must be rejected as an exceptional
circumstance. Vast Mineral’s failure to apply for the
Integrated Water Use Licence is
also of its own doing. It has also
not applied for this specific condition to be amended or taken the
decision on judicial review,
so the argument went. Alexkor further
argued that Vast Mineral’s further reliance on the economic
output to the Richtersveld
community should not be accepted as an
exceptional circumstance.
Irreparable harm
[26] In
substantiation of its argument that it will suffer irreparable harm
if the application is refused Vast Mineral submitted
the following:
Should Vast Mineral not
be able to complete its prospecting activities it will not be able to
motivate its application for a mining
right. Resultantly, the
Richtersveld community will be denied job opportunities. Vast Mineral
has already invested a substantial
amount of money in this project
and stands to suffer financial prejudice as well as lose the
financial support of investors.
[27] Whereas the
requirement in terms of the section is to show that Alexkor will not
suffer irreparable harm should the application
be granted, Alexkor
did not demonstrate in the papers or in oral argument the harm it
will suffer. In its answering affidavit it
relies on the harm the
PSJV will suffer. Vast Mineral contended that Alexkor has not shown
any authority to litigate on behalf
of the PSJV. The holder of the
mining right is the Richtersveld Mining Company, cited as the second
respondent in the
s 18(3)
application which has elected not to
participate in these proceedings. The Richtersveld Mining Company is
actually a vehicle for
the economic aspirations of the Richtersveld
community. Alexkor’s claim that they will suffer prejudice in
the PSJV is without
substance. Vast Mineral maintains that Alexkor
has the duty to maintain protocols for everyone’s safety but it
much rather
pursues an obstructive strategy to keep Vast Mineral out
of the premises for as long as it possibly can. Alexkor is not
justified
in allowing Vast Mineral to operate and conduct its
prospecting activities under the umbrella of its existing security,
safety
and access policies, and later renege on them. A party cannot
be allowed to adopt two irreconcilable positions.
[28] This is what
Alexkor claimed as reasons for its potential harm. It says the
prospecting right is unlawful; there is no
health and safety policy
in place; there could be a possible death of any employee, official
or contractor; any failure to comply
with the Mining Health and
Safety Act will lead to the mining right being withdrawn resulting in
commercial harm; and the operating
agreement is not in place.
[29] Regard being
had to the submissions by both counsel for and against the existence
or not of the three requirements to
be met by Vast Mineral in order
for leave to execute to be granted, I am satisfied that the following
are exceptional circumstances
upon which to grant this application:
29.1 Vast Mineral
is a holder of a prospecting right;
29.2 It is a
limited real right which can only be extended once. The extension
will expire on 31 January 2026.
29.3 There is no
basis for Alexkor to have granted vast Mineral ten months of
prospecting without the purported operating
agreement only to renege
later without outlining its basis therefor.
29.4 The
Integrated Water Use Licence never served as a bar when Vast Mineral
was granted access and conducted its activities
albeit for a limited
duration under the PSJV where Alexkor was involved and never objected
at any stage.
29.5 There is a
good case made out of irreparable harm to be suffered by Vast
Mineral, whereas the irreparable harm purportedly
suffered by Alexkor
outside the PSJV is not discernible.
I am therefore satisfied
that Vast Mineral has met all the requirements for the redress
sought. The exceptional circumstances arose
from the facts and
circumstances of this case. It is for the aforementioned reasons that
Vast Mineral stands to succeed in the
s 18(3) application.
[30] On the
question of costs. Awarding of costs remains within the discretion of
the Court which must be exercised judicially.
There is no reason why
costs should not follow the result.
[31] In the result,
the following order is made:
1. The application
for leave to appeal is dismissed with costs, such costs to include
those consequent upon the employment
of two counsel.
2. It is declared
that, in terms of
s 18(3)
of the
Superior Courts Act, 10 of 2013
, the
order granted by this Court on 15 September 2023 be put into
immediate operation and effect notwithstanding any appeal or
appeals.
3. That the costs
of the
s 18(3)
application, which costs shall include the costs of
two counsel where so employed, be paid by Alexkor SOC Ltd.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the
Applicant/respondent:
Adv. CDA Loxton SC
Adv.
TV Mabuda
Instructed
by:
Messina Inc
c/o
Engelsman Magabane Inc
For the
Respondent/applicant:
Adv. JG Van Niekerk SC
Adv. N
Erasmus
Instructed
by:
Fasken Inc
c/o
Van de Wall Inc
[1]
1996
(4) SA 384
(E) at 385C - E
[2]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA)
[3]
The
Mont Chevaux Trust v Goosen 2004 JDR 2325 (LCC); S v Notshokovu &
Another
[2016] ZASCA 112
(7 September 2016)
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA)
[5]
Ibid
at para 18
[6]
1982
(3) SA 717 (A)
[7]
36
of 1998
[8]
2021
(3) SA 135
(SCA) at paras 45 and 46