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[2024] ZAKZPHC 46
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Gumede and Another v Master of the High Court, Pietermaritzburg and Others (16141/2023) [2024] ZAKZPHC 46 (14 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case no: 16141/2023
In the matter between:
MBONGINKOSI ALOIS
GUMEDE
FIRST APPLICANT
SBONISIWE PRECIOUS
GUMEDE
SECOND APPLICANT
and
MASTER OF THE HIGH
COURT,
PIETERMARITZBURG
FIRST RESPONDENT
PHILLIP BANDLO
GUMEDE
SECOND RESPONDENT
SABELO GOODMAN
GUMEDE
THIRD RESPONDENT
THUTHUKANI
DOBE
FOURTH RESPONDENT
SICELO DERRICK
GUMEDE
FIFTH RESPONDENT
QAPHELISANI OBED
KHUZWAYO
SIXTH RESPONDENT
THE REGIONAL LAND
CLAIMS
COMMISSIONER,
KWAZULU-NATAL
SEVENTH RESPONDENT
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and released to SAFLII.
The date for hand
down is deemed to be 14 JUNE 2024 (Friday) at 14:45.
ORDER
In the result, I make the
following order:
1.
The application is adjourned sine die;
2.
The applicants are granted leave to
supplement their papers regarding the relevant provision(s) of the
Trust Property Control Act
on which their case is founded;
3.
The respondents are granted leave to file
an answering affidavit, if
necessary;
4.
The applicants are liable for the wasted
costs for the day (9 May 2024) on a party and party scale, limited to
Scale C.
JUDGMENT
Chetty J
[1]
On
27 October 2023, an application was brought by the applicants, who
live under the chieftainship of the Gumede household
[1]
and contend to be members of the Makhosi-khosi Communal Property
Trust (the ‘Trust’) established pursuant to the transfer
of immovable property in terms of the
Restitution of Land Rights Act
22 of 1994
in the Ilembe District of the KwaDukuza local
municipality. In the application they seek urgent relief against the
Master of the
High Court, that her decision to appoint of a
five-member task team, following a community meeting on 10 June 2023,
be declared
invalid, unlawful, without force and effect, and be set
aside. The five members against whom relief is sought are those who
are
cited as the second to sixth respondents. As appears from their
answering affidavit, they were appointed trustees for their broad
range of skill sets and leadership abilities, ostensibly to ensure
that the objectives of the trust are achieved.
[2]
[2]
The notice of motion includes various
orders sought as interim relief, including the decision of the Master
to appoint the second
to the sixth respondents as interim trustees in
terms of s 6(1) of the Trust Property Control Act 57 of 1988 (the
‘Trust
Act’), as well as the Letters of Authority issued
to the second to sixth respondents be declared invalid, without force
and
effect and set aside. The legislative provision relied on by the
applicants assumes particular importance for the decision reached
in
this matter. In place of the interim trustees, the applicants seek
that the Master appoints a ‘fit and proper independent
person’
to act as interim trustee and to assume immediate control of the
affairs of the trust. In addition, the applicants
seek to interdict
the affected respondents from managing the affairs of the trust and
from carrying out any exercise designed to
verify or admit new
members to the trust.
[3]
An interim order, by consent, restraining
the first to the sixth respondents from accessing the business
account of the trust, admitting
new members, and acting on the
authorisation of the Master in terms of the appointment on 20 June
2023, was issued on 8 November
2023.
[4]
It bears noting that the Master does not
oppose this application — which is strenuously opposed by the
interim trustees. The
Master filed a report, the salient aspects of
which read as follows:
‘
.
. .I took the impugned decision to appoint the 2
nd
– 6
th
respondents as interim trustees from 23 June 2023 to 20 June 2024.
[3]
The letter of authority and the terms of reference are attached
marked as annexure “A”. The reason for my removal of
the
independent trustees at the time was the matter had been long
outstanding since their appointment in office and that their
appointment
was
nothing
but
a
means
to
ensure
that
the
trust
does
not
ever
return
to
the
claimants. The efforts, which the independent trustees had tried to
implement, did not bear any fruits except that the beneficiaries
were
actually not benefitting anything from the trust. Further extension
for the appointment of the Independent Trustees was no
longer
justifie[d]. The legislature’s intention with the restitution
of the land to the claimants was surely to ensure that
the
beneficiaries of this land enjoy it fully and that it is kept in good
condition from generation to generation.’
[5]
Attached to the Master’s report,
dated 6 November 2023, are the letters of authority issued in terms
of s6(1) of the Act as
well as a letter addressed to the Makhosi
Khosi Community Trust dated 20 June 2023. The letter confirms the
appointment of the
Interim Trustees to look into the administration
of the Trust and to furnish the Master with a report of the past
expenditure of
the Trust, including the disposal of trust property.
In addition, the interim trustees were tasked with verifying and
updating
the beneficiary list, lodging financial reports, and audited
statements, and holding elections for the appointment of a new board
before 19 June 2024. Of significance is that the letter clearly
states in the heading (in bold font) that the appointment of the
trustees is made in terms of s 7(1) and 16(1) of the Trust Act.
[6]
The
present application, it was contended by the counsel for the
applicants, is brought in terms of s 23 of the Trust Act.
Counsel
for the respondents, however, argued that the proper procedure that
the applicants should have followed ought to have taken
the form of a
review in terms of Rule 53. This latter contention cannot be
sustained in light of the Supreme Court of Appeal’s
judgment in
Fesi
and Another v Trustees Elect of the Ndabeni Communal Property
Trust.
[4]
In
Fesi, the court squarely addressed this issue, stating:
‘
.
. .They contended that the proper procedure would have been for the
respondents to launch an application in terms of PAJA and
in
accordance with Rule 53 of the Uniform Rules, to review and set aside
the decision by the Master to not issue the letters of
authority. In
this regard it was contended on behalf of the Master that the
principle set out in the decision of this court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA) should apply, namely, that the Master’s
decision remains valid until set aside by way of review.
[54] Section 23 of
the Act on which the respondents based their application in the court
below provides as follows:
“
Any
person who feels aggrieved by an authorization, appointment or
removal of a trustee by the Master or by any decision, order
or
direction of the Master made or issued under this Act, may apply to
the court for relief, and the court shall have the power
to consider
the merits of any such matter, to take evidence and to make any order
it deems fit.”
This
kind of review is dealt with by Professor Hoexter
[5]
under the heading ‘Special statutory review’ (at 113) as
distinct from a PAJA and other types of review. She points
out that
this is sometimes a wider power than ordinary review and thus more
akin to an appeal but that it might well be narrower
with the court
being confined to particular grounds of review or particular
remedies. It would, of course, depend on the relevant
statutory
provisions. In
Nel
& another NNO v The Master (ABSA Bank Ltd & others
intervening)
2005
(1) SA 276
(SCA), para 22-23, this court, with reference to
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903
TS 111
, discussed statutory reviews of the kind in question and
endorsed Professor Hoexter’s exposition. In Honoré at
191,
para 119, the authors, in dealing with the power of the court
when there is a challenge in terms of the Act in relation to the
Master’s
appointment
of
trustees point out, with reference to s 23, that the terminology of
that section makes it plain that the court may consider that
disputed
issue anew.
[6]
At para 154 (page
251) of Honoré, the learned authors note that
all
the
Master’s decisions in terms of the Act are subject to
reassessment by the court. They go on (page 252), to state that
s 23
makes it plain that the substantive justification for any action by
the Master may be scrutinised. They also state the following:
“
[T]he
substantive justification for any action by the Master may be
scrutinised. The applicant will in other words not have to establish
that the Master committed a reviewable irregularity but only that
there are grounds for the court to substitute a decision it considers
better. The court is expressly empowered “to consider the
merits” of the matter, to take evidence “and to make
any
order it deems fit”. This goes further than the entitlement to
administrative justice now embodied in statute under the
Constitution.”.’
[7]
I am satisfied that the application is
properly before the court, as a review under s 23 of the Trust Act.
The point of contention
by the respondents must fail.
[8]
The overarching purpose of the application,
as set out in the applicants founding affidavit, is to set aside or
‘invalidate’
the decision of the Master to appoint the
second to sixth respondents as interim trustees. As referred to
above, that decision
is attacked from various angles including the
attendees of the meeting at which the decision was taken to appoint
interim trustees,
defective notice of the meeting, and that the
procedure to appoint the trustees was a variance with numerous
provisions of the
trust instrument.
[9]
As stated earlier, the applicants case is
largely premised on the grounds that the Master acted in terms of the
wrong statutory
provisions when she appointed the interim trustees in
terms of s 6(1) of the Trust Act, that such appointment was at
variance with
the provisions of the trust deed and that the
appointments be set aside. Throughout its papers and indeed in its
heads of argument,
the applicant makes repeated reference to the
appointments being made in terms of s 6(1) of the Trust Act. In the
founding affidavit,
the applicants say that on 20 June 2023 the
Master, of her own accord and unbeknown to members of the Trust,
appointed five members
to the Interim Task Team ‘acting in
terms of section 6(1) of the Act’.
[10]
The
averment that the Master acted in terms of s 6(1) is repeated at
different points in the founding affidavit where the applicants
state
that an appointment in terms of this section, being s 6(1), is
predicated on three possible scenarios: (a) where a trustee
is
elected in terms of the trust deed; (b) where an appointment has been
made in terms of s 7 or; (c) where the court appoints
a trustee.
[7]
The founding affidavit then proceeds to say without equivocation that
the “Master neither acted in terms of s7(1) of the
Act nor was
she complying with any court order which so appointed the
respondents.” Later in the founding affidavit, it is
stated
that the Master “should have invoked her s7(1) powers and
appoint a fit and proper independent person to act”.
The
applicant proceeds to state that the Master did not make the
appointment in terms of s7(1).
[11]
As I have understood the applicant’s
case throughout, the applicants contend that the Master made an error
of law by appointing
the interim trustees by acting in terms of
s7(1). She ought to have acted in terms of s 6(1) of the Trust Act
and followed the
provisions of the trust deed when deciding on the
criteria of persons to be appointed as trustees.
The primary thrust of the applicant’s
case is that the Master flouted the provisions of the trust deed by
not appointing trustees
in accordance with the provisions of the
trust instrument.
[12]
The
applicants also attached to their papers the unreported judgment in
P
B Gumede and others v Khan NO and others
[8]
in
which arguments similar to those advanced by the applicants in the
present matter were raised therein. Bezuidenhout AJ (as she
then was)
considered the provisions of the Makhosi Khosi Communal Property
Trust (the same which serves before me) and the argument
that the
Master was obliged to act in terms of s 7(1) of the Trust Act when
appointing independent trustees in the absence of a
provision in the
trust instrument. The learned judge concluded that the proviso of the
trust deed relied on by the applicants in
that case did not assist
them. The provisions of Clause 14.15 of the Trust Deed refer to a
‘duly convened General Meeting
of Members shall have the right
at any time to
remove
or
substitute
a trustee as it may deem appropriate…’. (my
underlining.). It was correctly pointed out by the court that that
particular
clause deals with the removal of a trustee, whereas then
(as in the present case) one is dealing with the appointment of
independent
trustees.
In
those circumstances, it was held that as long as the Master appointed
the trustees in accordance with the Act, there could be
no complaint.
[13]
I
have referred to the above judgment not to delve into the merits of
the dispute before me, but solely to indicate that the applicants,
at
the time when they launched this application, must have been aware of
the basis on which Bezuidenhout AJ arrived at her decision,
and in
particular those aspects of the judgment relating to the Master’s
powers under s 7(1) of the Act in relation to the
provisions of the
trust deed. It would also have been abundantly clear to the
applicants once they were in possession of the answering
affidavit,
that the respondents contend that the Master acted in terms of s 7(1)
when she appointed the second to the sixth respondents,
as the terms
of the independent trustees who had been in their positions for
several years, had come to an end by effluxion of
time.
[9]
On
that basis, the respondents contend that the office of the trustee
became vacant and after consultation with interested parties,
the
Master appointed the second to sixth respondents as interim trustees.
[14]
It
was contended by the respondents that the appointments were
consistent with the provisions of s7(1) of the Trust Act.
s
6(1) of the Trust Act is the authorising section, enabling the
trustee to carry out his or her mandate.
[10]
The
respondents therefor persist in their view that the appointments were
not made in terms of the Trust Deed, but pursuant to the
Master’s
powers in terms of s 7(1). The applicants’ persisted in their
contention that s 6(1) was the operative provision,
and accord to the
respondents they were misplaced, and based their challenge an
incorrect assumption. This was partly due to the
applicants not
having first obtained the record before they engaged in litigation.
The respondents contend that had the applicants
done so, they would
have realised that the appointments were made in accordance with s
7(1) and not s 6(1). In that event, the
present application may never
have materialised.
[15]
This brings me to the about turn by the
applicants to what has been stated in their founding affidavit and
their replying affidavits.
At the hearing of the matter, the
applicant’s counsel conceded that s 6(1) of the Trust Act was,
in fact, the ‘appointing’
or ‘authorising’
provision for the trustees to act and that the Master acted in terms
of s 7(1) when she appointed
the second to sixth respondents as
interim trustees. At this point, counsel for the respondents
submitted that the proper course
for the applicants would be to
withdraw their application and tender the respondent’s costs,
as the case which the respondents
had come to meet is one in which
the applicants contended that
the
Master
improperly
and
unlawfully
exercised
powers
in
terms
of
s6(1)
in appointing the interim trustees. That
position is fundamentally altered by the applicants’
concession, despite the respondents
pointing out from inception that
the Master had acted in terms of s 7(1).
[16]
The
respondents relied on
Swissborough
Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others
[11]
in support of the contention that the applicants case had
fundamentally changed and that it was not competent for them to make
out a new case in argument, let alone such case not having been made
at all on affidavit. In
Swissborough
Diamond Mines
it
was held that—
‘
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the
issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the
Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must
adduce evidence in the
affidavits. In
Hart v Pinetown Drive-Inn
Cinema (Pty) Ltd
1972 (1) SA 464
(D) it
was stated at 469C--E that
“
where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings by way
of action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition, be sufficient
to resist an objection
that a case has not been adequately made out. The petition takes the
place not only of the declaration but
also of the essential evidence
which would be led at a trial and if there are absent from the
petition such facts as would be necessary
for determination of the
issue in the petitioner's favour, an objection that it does not
support the relief claimed is sound.”.’
[17]
It
follows that an applicant must accordingly raise the issues upon
which it would seek to rely in its founding affidavit by defining
the
relevant issues and by setting out the evidence upon which it relies
to discharge the onus of proof resting on it in respect
thereof.
[12]
The
well-established principles are that a party in motion proceedings
may advance a legal argument in support of the relief or
defence
claimed by it even where such arguments are not specifically
mentioned in the papers, provided they arise from the facts
alleged.
In motion proceedings, the parties’ affidavits constitute both
their pleadings and their evidence. A litigant must
plead his cause
of action or defence with at least such clarity and precision as is
reasonably necessary to alert his opponent
to the case he has to
meet.
[13]
[18]
Upon
being confronted with the argument that the applicant was essentially
making out a new case for the first time and seeking
to rely on a
statutory premise which was not made out in its founding or replying
papers, counsel for the applicant sought to rely
on
Barkhuizen
v Napier
[14]
that it was entitled to raise a point of law, albeit for the first
time in argument.
Although
counsel was unable to refer me to the critical aspect in the
judgment, I assume that what counsel had in mind was the reference
to
what Zondo J stated to be the following:
‘
The
mere fact that a point of law is raised for the first time on appeal
is not in itself sufficient reason for refusing to consider
it. If
the
point is covered by the pleadings
,
and if its consideration on appeal involves no unfairness to the
other party against whom it is directed, this Court may in the
exercise of its discretion consider the point. Unfairness may arise
where, for example, a party would not have agreed on material
facts,
or on only those facts stated in the agreed statement of facts had
the party been aware that there were other legal issues
involved. It
would similarly be unfair to the other party if the law point and all
its ramifications were not canvassed and investigated
at trial.’
[19]
The
critical points referred to by Zondo CJ are whether the issue is
covered by the pleadings and whether the consideration of the
issue
by the appeal court would involve unfairness to the other party.
Apart from Barkhuizen referring to a point raised for the
first time
on appeal, the question is whether it results in unfairness and
prejudice.
[15]
The
problem that confronts the applicants, in my view, is that the
factual premise of their case is that the appointment of the
independent trustees was made in terms of s 6(1) of the Trust Act.
They now change their case to contend that the challenge is
one under
section 7(1). In my view, this involves a fundamental change in the
case which they wish to advance.
[16]
[20]
The
respondents do not accept the change in approach, for reasons either
of prejudice or unfairness. However, it also places the
Court at a
disadvantage in that where matters are placed on the roll as opposed
motions, they involve a significant amount of time
dedicated to
preparation and consideration and independent research of the
arguments set out in the Heads. In this case, even in
the Heads, the
applicant gives no indication that they concede that the appointment
of the trustees was made in terms of s 7(1).
The situation can be
contrasted to that of an administrator who deliberately relies on an
incorrect statutory power for his or
her actions, resulting in the
action being null and void.
[17]
[21]
After considering the factual basis under
which the applicants have launched their application and their attack
against the decision
of the Master as having acted under an incorrect
statutory premise, the subsequent capitulation that the Master indeed
acted under
the correct statutory provision must mean that the
applicant should have either requested that the matter be postponed
to allow
for the applicants to amend their papers and bring them in
line with the argument they sought to advance. The other alternative
would have been to withdraw the application and tender the
respondent’s costs. It did neither but persisted in relying on
a different statutory provision to argue its cases on a factual
premise that was designed to accommodate its challenge to
appointments
made under s 6(1) rather than s 7(1).
[22]
In
determining an appropriate remedy, I have considered that other
courts have generally taken a nuanced approach to the issue of
mis-reliance on legal provisions or changing legal arguments. While
not encouraged, such change is not always fatal to a case.
Relevant
considerations include whether the mis-reliance was inadvertent or
deliberate as in
Minister
of Education v Harris
[18]
where the inadvertent mis-reliance was treated more leniently.
In
addition, there is the existence of a correct alternative provision,
as noted in
Latib
v Administrator, Transvaal
.
[19]
The
court should consider fairness to the opposing party, including
whether they have had sufficient opportunity to address new
arguments; the timing of the change in argument; and whether it could
be characterized as “trial by ambush”.
[23]
In my view, the granting of an order, in
the exercise of my discretion, to adjourn the determination of the
merits of the application,
is a more equitable outcome than the
dismissal of the application.
In
this way, the applicant has the opportunity to properly assess the
merits, in light of the concession that the Master’s
appointment was made in terms of s 7(1), and the potential success of
the new arguments. Similarly, the respondents will have the
opportunity to respond, should any new argument arise.
[24]
The decision of the court to postpone a
determination of the merits is solely a result of the change of
approach by the applicants.
The respondent came to meet the case
which had been made out on the papers. In my view, the respondents
should be entitled to the
wasted costs for the day.
[25]
In the result, I make the following order :
1
The application is adjourned
sine
die
;
2
The applicants are granted leave to
supplement their papers regarding the relevant provision(s) of the
Trust Property Control Act
on which their case is founded;
3
The respondents are granted leave to file
an answering affidavit, if
necessary;
4
The applicants are liable for the wasted
costs for the day (9 May 2024) on a party and party scale, limited to
Scale C.
M R CHETTY
Judge of the High Court
Appearances
For
the Applicant:
S
Madikizela
Instructed
by:
Mkhize
P R Attoreys
Address:
63
Dale Road, Manor Gardens, Durban
Email:
Mkhize.prattorneys@gmail.com
c/o
Vilane
& Co Attorneys
323
Boom Street Pietermaritzburg
For
the Respondent:
M
Naidoo SC (with S Govender)
Instructed
by:
Cebisa
Attorneys
Address:
12
Joe Slovo Steet Mansion House
Email:
litigation@cebisaattorneys.co.za
c/o
Shepstone
& Wylie
First
Floor, Absa House
Pietermaritzburg
Ref:
JTM/mm/
Tel:
033
355 1780/30/97
Email:
jmanuel@wylie.co.za
Date
of reserved:
9
May 2024
Date
delivered:
14
June 2024
[1]
The
respondents dispute the claim of the first applicant, contending
that he is not the biological nor adopted son of Soputshu
Gumede, or
that he is a beneficiary, and that he has no
locus
standi
to
bring the application.
Various
other allegations are levelled against the second applicant in
contesting her
locus
standi
.
It
is not necessary to deal with these contentions in light of the
decision that I have reached and in light of an application
being
made to strike out such allegations.
[2]
The
second respondent has over twenty years’ experience in the
fitting and engineering sector and land sustainability issues,
having obtained an N2 qualification from the Swinton Technical
College in 2007; the third respondent has a Bachelor of Education
degree with an economics background with over 10 years’
experience; the fourth respondent has a Master’s degree in
Development Studies and plays
an
active
role
in
the
Qwabe-Enkwenwezini
Traditional
Council;
fifth
respondent
is
a
qualified
Chartered Account, currently employed as a finance manager at a
large insurance company and the sixth respondent holds
a doctorate
in Leadership, Management and Policy Development from UKZN.
[3]
Date
as inserted in the Master’s report incorrectly reads 23 June
2023 to 20 June 2023.
[4]
Fesi
and Another v Trustees Elect of the Ndabeni Communal Property Trust
[2018]
ZASCA 33
;
[2018] 2 All SA 617
(SCA) at para 53 - 54
[5]
C
Hoexter
Administrative
Law in South Africa
2
ed (2012).
[6]
Cf
Shenker
v the Master
1936
AD
136.
In Honoré the authors note that that decision is in
direct contrast with the provisions of the Act.
[7]
The
averment that the Master appointed interim trustees on 20 June 2023
whilst acting in terms of s6(1) is persisted with throughout
the
Heads of Argument.
This
is made unequivocally clear where at para 32 of the Heads the
following is stated:
‘
It
is respectfully submitted that, in the circumstances, the Master
acted under a wrong empowering provision when she appointed
interim
trustees (the 2nd
–
6th
respondents)
in terms of 6(1) instead of s7(1) of the Act, hence she committed an
error of law.’
Relying on
Selati v
Master of the High Court and Another
(3343/2019) [2020] ZALMPPHC
50 (19 May 2020) where the Master commits an error of law, the
applicants submitted that in the result
the appointment and the
letters of authority issued by the Master must be set aside. Further
reliance was placed on
Moshoeshoe v Master of the High Court
N.N.O and Others
(3981/2022) [ 2023] ZAGPJHC 1134 (5 October
2023) where it was held that “invoking a wrong empowering
provision to locate
an administrator’s ability to act or
decide will be vested with nullity.”
[8]
P
B Gumede and others v Khan NO and others
(4454/2020P)
12 February 2021.
[9]
Section
7 of the Act reads as follows:
‘
(1)
If the office of trustee cannot be filled or becomes vacant, the
Master shall, in the absence of any provision in the trust
instrument, after consultation with so many interested parties as he
may deem necessary, appoint any person as trustee.
(2) When the Master
considers it desirable, he may, notwithstanding the provisions of
the trust instrument, appoint as co-trustee
of any serving trustee
any person whom he deems fit.’
[10]
Section
6(1) reads as follows:
‘
(1)
Any person whose appointment as trustee in terms of a trust
instrument, section 7 or a court order comes into force after
the
commencement of this Act, shall act in that capacity only if
authorised thereto in writing by the Master.’
[11]
Swissborough
Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others
1999
(2) SA 279
(T) at 323F – 325B.
[12]
See
Heckroodt
NO v Gamiet
1959
(4) SA 244
(T);
Van
Rensburg v Van Rensburg en Andere
1963
(1) SA 505 (A).
[13]
National
Director of Public Prosecutions v Phillips and Others
2002
(1) BCLR 41
(W).
[14]
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007
(5) SA 323
(CC) .
[15]
Naude
and Another v Fraser
[1998]
ZASCA 56;
1
998
(4) SA 539
at 558 B-C.
[16]
Poseidon
Ships Agencies (Pty) Ltd v African Coaling & Exporting Co
(Durban) (Pty) Ltd
1980
1 SA 313 (D).
[17]
See
Minister
of Education v Harris
[2001]
ZACC 25
,
2001 (4) SA 1297
(CC) where the court considered the
validity of a notice in which the Minister of Education issued
determining the age requirement
for admission to a ‘school’.
The
debate centred on whether this notice was applicable only to public
schools. In addition, it was contended further that “the
fact
that the Minister had mistakenly purported to exercise his powers
under section 3(4) of the National Policy Act rather than
correctly
under section 5(4) of the Schools Act, did not mean that the notice
was as a consequence ultra vires.” The Court
then referred to
the decision in
Latib
v Administrator, Transvaal
1969
(3) SA 186
(T) in which different subsections of an Ordinance
empowered the declaration of public roads over farmland on the one
hand and
municipal land on the other, but the notice had referred to
only one of the relevant subsections. The proposed public road was
to traverse both farmland and land falling within a municipal area.
The Administrator contended that this was due to an oversight.
The
Court reasoned that even if this was so, it would not result in the
notice becoming a nullity.
[18]
Minister
of Education v Harris
fn
17.
[19]
Latib
v Administrator, Transvaal
1969
(3) SA 186
(T).