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2024
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[2024] ZAECQBHC 57
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Ziboti and Another v Minister of Police and Others (3286/2024) [2024] ZAECQBHC 57; 2025 (2) SACR 396 (ECGq) (19 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
CASE NO.: 3286/2024
In the matter between:
LUFEFE
ZIBOTI
FIRST APPLICANT
BABALWA
NDWALANE
SECOND APPLICANT
and
MINISTER OF
POLICE
FIRST RESPONDENT
STATION COMMANDER,
KABEGA
POLICE
STATION
SECOND RESPONDENT
MINISTER OF
CORRECTIONAL
SERVICES
THIRD
RESPONDENT
AREA COMMISSIONER:
CORRECTIONAL
SERVICES
FOURTH
RESPONDENT
HEAD OF MEDIUM B, ST
ALBANS
CORRECTIONAL
CENTRE
FIFTH RESPONDENT
JUDGMENT
ZONO AJ
Introduction
[1]
The application is divided into two parts; “
namely
”,
Part A which is in the form of an urgent application. The application
is for the return of applicants’ cellular phones,
“
to
wit
”, a Samsung S23 and a Samsung S21. The relief is
apparently sought against all the respondents. The applicants
seek costs on a punitive attorney and client scale C.
[2]
The application is opposed by the respondents. In so doing the
respondents have file their
Notice to Oppose and answering affidavit
deposed to by Mr Madikane, who describes himself as an Assistant
Director and a Correctional
Official at Old Cape Road, St Albans,
Gqeberha.
[3]
The first applicant is a prison warder in the employ of the
Department of Correctional Services.
On the 8 August 2024 the
first applicant was on duty performing his normal duties as a prison
warder. Members of the Third
Respondent demanded to search the
first applicant, to which search he did not consent. When the search
was taking place there was
no search and seizure warrant. The search
took place in the presence of the fifth respondent who is the Head of
Medium B, St Albans
Correctional Centre, and he supported what other
officials were doing. Nothing was found from the body of the
first applicant.
[4]
After having been searched he was thereafter taken to his private
residence which is within the
premises of the Correctional facility.
The Correctional Official demanded the first applicant to open the
door of his private
residence. Having announced his inability to do
so, they forcefully entered first applicant’s private
residence. They
found the second applicant inside the house.
Among the things they confiscated in the first applicant’s
residence were the
two cellular phones mentioned in the preceding
paragraphs, belonging to the first and the second applicants
respectively. The two
cellular phones were lawfully owned and
possessed by the respective applicants. The applicants have
been in an undisturbed
possession and enjoyment of their cellular
phones.
[5]
The applicants conclude their case by contending that the deprivation
of possession of their cellular
phones was unlawful. They are
using their cellular phones for Job searching.
[6]
In justifying their conduct, namely, that the dispossession was
lawful, the respondents place
the following version to assail
applicants’ case. Mr Madikane, the deponent to the
answering affidavit states that,
on the 8
th
of August
2024, when he was on duty received a Security Intelligence Report
from his Area Commissioner instructing him to arrange
a search at
Room 15, Single Quarter East Side. On that basis they formed a
reason to suspect that the applicant was used
to transport illegal
Contraband into the Correctional Centre.
[7]
When the first applicant reported for duty, Mr Madikane requested to
search first applicant’s
body for the suspected Contraband but
they could not find anything. They proceeded to first applicant’s
room with applicant.
Mr Madikane was with the members of their
Emergency Security Team. The first applicant did not open the
room for them
but they ultimately managed to open the room, and they
found the second applicant inside the room. He explained to the
applicants
the purpose of their search.
[8]
Having discovered the illegal drugs he called the Members of the
South Africa Police Service and
the first and second applicants were
arrested for possession of drugs and subsequently released on bail.
[9]
Cellular phones are part of the articles that were seized as they
form part of the Criminal Investigations
as they might contain
information necessary for prosecution in the case relating to drugs
and other potential charges after investigations
are complete. They
expect to receive incriminating evidence from the cellular phones.
Their contention goes.
[10]
The respondents refuted that the dispossession was unlawful as they
place reliance on the provisions of Correctional
Services Act 111
of 1998
[1]
(CSA). No
specific provision(s) of the Section is identified in the
respondents’ papers to be the one(s) relied on.
What the
respondents do, they quote verbatim the whole provisions of Section
111 of CSA.
[11]
Where a litigant relies upon a statutory provision, it is not
necessary to specify it, but it must be clear
from the facts alleged
by the litigant that the Section is relevant and operative
[2]
.
It is desirable for litigants who seek to justify their conduct that
violated individuals’ rights to clearly identify
both the facts
upon which they base their defence, and the legal basis for their
defence. Generic reference to a provision dealing
with wide ranging
issues is insufficient.
[12]
Section 101 of the CSA provides for entry, search and seizure I the
following terms:
101. Entry, search and
seizure—
“
(
1) In
addition to the powers of a correctional official to search inmates,
their cells and their property and to seize articles
in terms of
section 27, a correctional official also has the power to enter any
premises, to search without warrant any other person
or place and
seize any article when this is reasonably necessary for—
(a) maintaining the safe
custody of an inmate, the security of a correctional centre and
controlling access of persons to and permissibility
of goods in a
correctional centre;
(b) carrying out any
sentence or order in terms of which a person is subject to community
corrections;
(c) preventing, or
gathering evidence of, the commission of any offence under this Act;
(d) investigating theft,
fraud, corruption and maladministration by correctional officials.
(2) Despite the
provisions of subsection (1)—
(a) a correctional
official may not search another correctional official or seize his or
her property without his or her consent
or being authorised to do so
by the National Commissioner but a general authorisation to search
other correctional officials may
be granted to a correctional
official who is required to act in order to control access to or
maintain secure custody within a
correctional centre, or to give
effect to subsection (1) (d); and
(b) action cannot
be taken in terms of subsection (1) (c) or (d) outside a correctional
centre unless a search warrant has been
issued by a magistrate but a
correctional official may act in terms of subsection (1) (c) or (d)
without a warrant when he or she
on reasonable grounds believes that—
(i) a warrant will be
issued authorising action in terms of sub-section (1) (c) or (d); and
(ii) the delay in
obtaining such a warrant would defeat the object of the search.
(3) (a) The provisions of
section 21 of the Criminal Procedure Act, relating to the Issue of a
warrant to a police official apply,
with the necessary changes, to a
correctional official acting in terms of this section.
(b) The provisions of
section 27 of the Criminal Procedure Act, relating to resistance to
entry or search by a police official apply,
with the necessary
changes, to a correctional official acting in terms of this section.
(c) The provisions of
section 29 of the Criminal Procedure Act, relating to the manner in
which a search must be conducted by a
police official apply, with the
necessary changes, to a correctional official acting in terms of this
section.
(4) (a) The
National Commissioner may sell any property seized in terms of this
Act or the property of a deceased or escaped offender
which is in the
care of the Department by public auction, if it is not lawfully
claimed within six months after being seized or
after the death or
escape.
(b) The proceeds of
the sale may be appropriated in settlement of any claims by the State
against the applicable person and the
balance, if any, must be paid
into the National Revenue Fund.
(c) If, after the
period of six months referred to in paragraph (a), a person proves to
the National Commissioner that he or she
is lawfully entitled to the
balance of the proceeds, the balance must be paid to that person.”
[13]
Provisions of Section 101 provides for different things in relation
to different circumstances and persons.
A proper interpretational
exercise is required in the circumstances of this case, so that the
aforesaid provisions be properly
applied to the facts of this case.
[14] In
Cool Ideas
[3]
Majiedt AJA (as he
then was) held that:
“
28 A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their grammatical meaning, unless
to do so
would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
That statutory provisions should always be interpreted
purposively;
(b)
The relevant Statutory provision must be properly
contextualised; and
(c)
All statutes must be construed consistently with the
Constitution, that is, where reasonably possible, legislative
provision
s
ought to be interpreted to preserve
their Constitutional validity. This proviso to the general
principle is closely related
to the purposive approach refer to in
(a)”.
Discussion
[15]
The applicants rely on a Common Law principle of
Mandament
van spolie
which
is designed as a speedy remedy
[4]
providing a summary relief
[5]
.
All that the despoiled person need prove is that, firstly he or she
was in possession of the object; and secondly,
he or she was
deprived of possession unlawfully
[6]
.
An applicant upon proof of two requirements is entitled to a
Mandament
van spolie
restoring the
Status
quo ante
[7]
.
Anyone illicitly deprived of property is entitled to be restored to
possession before anything else is debated or decided. The
principle
is that illicit deprivation must be remedied before the Courts
will decide competing claims to the object or property
[8]
.
[16] It
is a fundamental principle of our law that a person may not take law
into his own hands and a statute
should be so interpreted that it
interferes as little as possible with this principle
[9]
.
A spoliation order is available even against government entities for
the simple reason that excesses by those entities do occur.
Those excess may lead to breaches of the peace, that is what
the spoliation order, which is deeply rooted in the rule of
law,
seeks to avert
[10]
.
[17] It
matters not that a government entity may be purporting to act under
colour of law, statutory or otherwise.
The real issue is
whether it is properly acting within the law. After all,
the principle of legality requires of state
organs to act in terms of
the law
[11]
. It
should make no difference that a government official in dispossessing
an individual of an object unlawfully, the
official purported to act
under colour of the search and seizure powers contained in
Correctional Services Act
[12
]
.
Even the unlawful possessor- a fraud, a thief or a robber is entitled
to the
Mandament’s
protection
[13]
.
[18]
Reliance is placed by the respondents on the provisions of
Section
101
of CSA. It is this provision that must be interpreted that
it interferes as little as possible with the Common law principle
of
Mandament
van spolie
.
It must be read in a manner that is harmonious with the
Mandament
van spolie
.
It must be read in conformity with the Common Law
[14]
.
Where harmonious reading is not possible, statute must trump the
Common Law. It must be clear that the statute intended
to alter
the Common Law
[15]
.
So too the statute must be interpreted to preserve its
Constitutional validity
[16]
.
The reading of the provisions must promote the spirit, purport and
object of the bill of rights
[17]
.
Not surprisingly Section 39 (3) of the Constitution recognises the
existence of rights and freedoms created by the Common Law
if they
are not inconsistent with the Constitution.
[19] It
does not appear to me that the provisions of Section 101 of CSA
intended to alter the Common Law.
There would be disharmony
between Section 101 of CSA, on the one hand, and the remedy of
Mandament van spolie
, on the other, if the Section did not
have Subsection 2 and
the phases like
reasonable necessary,
reasonable grounds
. I deal herein after with Section 102
(2) of the CSA.
[20]
Section 101 (2) of CSA provides:
“
2.
Despite the provisions of Subsection 1-
(a)
A Correctional official may not search another
Correctional official or seize his or her property without his or her
consent or
being authorised to do so by the National Commissioner but
a general authorisation to search other Correctional officials may be
granted to a Correctional official who is required to act in order to
control access to or maintain secure custody within a correctional
centre, or to give effect to Subsection 1(d)”
The subsection appears to
be a standalone provision with regard to what it provides for.
[21]
The search and seizure of a Correctional official by another
Correctional official is generally prohibited.
The power to
search and seize may only be exercised in very restricted and
circumscribed circumstances. It may be exercised
only when
statutorily prescribed or certain pre-conditions or jurisdictional
facts are in existence. The first applicant falls
within the
definition of a Correctional Official as defined in section 1 of
Correctional Services Act. He
is an employees of the Department of
Correctional Services appointed in terms of
Section 3(4).
[22]
Under Common Law, necessary pre-conditions that must exist before an
administrative power can be exercised,
are referred to as
jurisdictional facts. In the absence of such pre-conditions or
jurisdictional facts, so it is said, the
administrative authority
effectively has no power to act at all
[18]
.
Jurisdictional facts refer broadly to pre- conditions or conditions
precedent that must exist prior to the exercise
of the power
and procedures to be followed, or formalities to be observed when
exercising the power
[19]
.
Those facts are jurisdictional because the exercise of power
depends on their existence or observance as the case may be
[20]
.
[23] A
valid exercise of power to search and seize a Correctional official
can only take place when one of the
two pre-conditions or
jurisdictional facts is in existence:
“
(a)
Consent of the Correctional official sought to be searched;
(b)
Correctional official to conduct search and seizure must be
authorised by the National Commissioner.’
[24]
Parties in their papers are “
Ad idem
” that there
was no consent secured from the applicants to search and seize their
cellular phone. The first applicant
in his founding affidavit
state as follows:
“
5.2 On 8
August 2024 I was on duty busy performing my duties as a prison
warder. The members of the third respondent demanded
to search
me. I did not consent to the search. They threatened to assault
me if I refuse to be searched….”
Those allegations are not
denied.
[25]
On the other hand Mr Madikane in his answering affidavit makes the
assertion:
“
24. When the
first applicant reported for duty after his lunch break, I requested
that I search his body for the suspected Contrafraud,
which was not
found on him. This led us to want to search his premises
25. I was accompanied
by the first applicant and members of an Emergency Security Team to
his room. The first applicant told
us that he has no entry
because he had left the second applicant behind who he said had gone
away (sic).
26. We managed to gain
entry and we found applicant inside. I explained to them the
purpose of the search”.
From there they continued
with their search which ultimately resulted,
inter alia,
in
the applicants’ cellular phones being seized.
[26]
About entering first applicant’s private residence the first
applicant asserts as follows:
“
5.5 They
forcefully and unlawfully entered my place of residence. In
essence they trespassed and intruded. They ransacked
my place
under the pretext of looking for drugs.
5.6
My girlfriend, the second applicant was present when they entered and
forcefully searched
my place. They also verbally abused my
girlfriend. They demanded to search her on her person even
though, they were
all men. These men were demanding to
forcefully search a woman and physically touch her….”
[27] In
the whole tenor of his affidavit Mr Madikane does not say anything
about the fact that they obtained or
not the consent of the
applicants to search and seize their property. It must
therefore be accepted that the version of the
applicants in this
regard is admitted. In Mc Williams
[21]
it was held:
“
Whilst
quiescence is not necessarily acquiescence, a party who does not make
a firm repudiation of an allegation when bound to do
so incurs the
risk of an adverse inference being drawn against him”
The
dictum
was
quoted with approval in Makhuva
[22]
.
[28]
The first jurisdictional fact for a lawful and a valid search and
seizure of a Correctional official by another
is plainly absent and
was not satisfied. That leaves us with the second jurisdictional fact
requiring that the search and seizure
must be authorised by a
National Commissioner. From the onset I observe that this
jurisdictional fact was not satisfied.
[29]
What prompted the search and seizure of applicants’ cellular
phones is the Security Intelligence Report
from the Area Commissioner
instructing Mr Madikane to arrange a search at room 15, Single
Quarters, East Side. That is captured
in paragraph 23 of respondent’s
answering affidavit in the following words:
“
On the 8
th
of August 2024 I was on duty when I received a Security Intelligence
Report from my Area Commissioner instructing me to arrange
a search
at Room 15 Single Quarters, East Side. The report gave us
reasons to suspect that the first applicant was used to
transport
legal Contraband into our Correctional Centre.”
[30] A
report came from the Area Commissioner. It was a mere report
purpose of which is unknown. Report
was not an authorisation of any
form. It is pivotal that it did not come from the National
Commissioner who is a statutorily
designated official to authorise
that kind of search and seizure. The report does not even
purport to have been written on
the instruction of the National
Commissioner. The National Commissioner has at no stage fathomed of
authorising the search and
seizure of applicants’ cellular
phones. The little that is said to be contained in the report is
transportation of an unmentioned
illegal Contraband into the
Correctional facility. Surely applicants’ cellular phones
were and are not contemplated
in that report.
[31] A
Functionary, in whose power the legislation has conferred, must
himself or herself exercise the power unless
such power has been
delegated to someone else. The Functionary may not abdicate
this power to any other Functionary
[23]
.
There is no allegation that there was an exercise of power based on
delegation of authority to search and seize. In any
event I
find that no authorisation was issued by the National Commissioner at
all. The search and the resultant seizure of applicants’
cellular phones was not authorised.
[32]
State functionaries, no matter how well intentioned, may only do what
the law empowers them to do. That is
the essence of the principle of
legality, the bedrock of our constitutional dispensation, and has
long been enshrined in our law.
[24]
[33]
The provisions of
Section 101
(2) of CSA are couched in imperative
terms. The provisions are couched in negative terms, namely,
“
May
not
”,
which is an indication that they are peremptory
provisions
[25]
.
Peremptory provisions require exact compliance for it to have the
stipulated legal consequences
[26]
.
Any purported compliance falling short of exact compliance with the
statutory requirement construed as peremptory is a nullity
[27]
.
Therefore the search and resultant seizure of applicants’
cellular phones is a nullity and it is of no force and effect.
[34] In
Schierhout
[28]
Innes CJ
observed:
“
It is a
fundamental principle of our law that a thing done contrary to the
direct prohibition of the law is Void and of no effect”
The Constitutional
Court
[29]
quoted with approval
Innes CJ’s observation as follows:
“
What is done
contrary to the prohibition of the law is not only of no effect, but
must be regarded as never having been done- and
that whether the
Lawgiver has expressly decreed or not the mere prohibition operates
to nullify the act”.
The prohibited seizure of
applicants’ cellular phones is a nullity.
[35]
When reading the words “
May not
” and “
without”
in
Section 101
(2) of CSA an ineluctable construction of the
Statutory provisions is that search and seizure without consent or
authorization
referred to above is prohibited. It is that
prohibition that operates to nullify the search and resultant seizure
of applicants’
cellular phones.
[36]
The power to search and seize applicants’ cellular phones was
not sourced in law. Doctrine of legality
which requires that power
should have a source in law, is applicable whenever public power is
exercised. Public power can
be validly exercised only if it is
clearly sourced in law
[30]
.
It is on this basis I find that generic reliance on the provisions of
Section 101
of the CSA is misplaced. Those provisions were not
complied with.
[37]
The Law cannot and does not countenance an ongoing illegality.
The Court has a concomitant duty to
uphold the doctrine of legality
by refusing to countenance an ongoing Statutory contravention.
Court have a duty to ensure
that the doctrine of legality is
upheld
[31]
. On this
score there is simple no basis to allow the respondents to keep
applicants’ cellular phones which were glaringly
unlawfully
seized. It is a common cause that those phones were seized
without a warrant. Accordingly, this application
must succeed.
An interpretational maxim Ex
Consequintibus
applies, where a provision proscribes a certain consequence it
proscribes, by implication, everything that may occasion such a
consequence. Seizure without consent or authorization is proscribed.
[38] It
appears that the cellular phones are in the hands, possession or
control of the second respondent, Station
Commander Kabega Police
Station, an employee of the first respondent, the Minister of
Police. The first and second respondents
are the real parties
to be directed to return the cellular phones to the applicants.
Costs and Urgency
[39]
Upon undertaking to return the cellular phones having been made by
the second respondent on 15 August 2024,
effectively four days after
they were seized, the applicants were invited to go to the police
station ostensibly to receive their
cellular phones during the week
days. It is not gainsaid that at that time the applicants were
ready to approach this Court
on Urgent basis, but halted that legal
process at the instance of the second respondent; on the basis that
an undertaking has been
made to return the cellular phones.
[40] On
their first visit at second respondent’s police station, the
second respondent furnished them with
a number of investigating
officer. He deliberately did not assist them to call his
subordinate, the Investigating Officer
knowing fully well that they
had no phones, and he was enjoying the use of public resources
including government phones in his
office. After having pushed from
pillar to post the applicants were advised on 22 August 2024 that
they were not going to be given
their cellular phones. It is unclear
why the second respondent failed to give the applicants their
cellular phones as promised
as it is clear that the cellular phones
were kept in the police station and not in the body of the
Investigating Office.
[41]
The applicant came to this Court on 26 August 2024 by means of a
Certificate of Urgency. It is in terms
of that Certificate of
Urgency that the applicants caused this matter to be enrolled in this
court. In these circumstances
a point of lack of Urgency is
preposterious and is accordingly without merit. A glaring
unlawful conduct of the respondents
cannot be foiled in the guise of
lack of Urgency when the second respondent wittingly frustrated the
applicants. Urgency
of this matter was sufficiently explained
and on that score the matter is sufficiently Urgent to be heard on a
Motion Court day.
The respondents cannot hide behind their conduct of
frustrating, making mockering of the applicants and later lament
about the
lack of Urgency. The second respondent was aware at
the time he was making a promise to return the cellular phones that
he
was not going to do that.
[42]
The vexing part of the application lies with the abuse of power and
deliberate frustration of the applicants
by the respondents. To
start with, there was no reference made in the so call “
Security
Intelligence Report
” to the second applicant.
The fifth respondent did not mention the name of the second applicant
either.
The second applicant is not a member of Correctional
Services Department. She is just an unemployed South African
Citizen,
depending on her cellular phone to receive important
messages like job offers and calls for job interviews. It is
not at
all decipherable and cannot be fathomed on a reasonable
standard of intelligence why her cellular phone was taken.
[43] No
contrition or penitence was shown by the respondents for the gross
disregard of applicants’ rights.
When the second
respondent was promising the applicants the return of their cellular
phones, he knew that they are unlawfully retaining
applicants’
cellular phones. Refusal to return applicants’
cellular phones in those circumstances, amounts
to an abuse of power
by those exercising public power. Malice was manifest when the
applicants were being push from pillar
to post, when it was known
that they were not going to be given their cellular phones. The
promise of return of cellular phones
was never intended to be
fulfilled at the time the second respondent was making it.
[44]
The appalling manner in which the seizure of applicants’
cellular phone was conducted is not meaningfully
dealt with in the
Answering Affidavit. It must be accepted that applicants’
cellular phones were seized in a manner
that undermines their
applicants’ privacy and dignity. A contingent of male
Correctional officials descended upon a
female who could not help
herself. That was the grossest abuse by male public official
with attributes of not respecting
a woman’s body whom they had
no reason to search in the first place.
[45] In
Kirland
[32]
Cameron J aptly
held:
“
82….On
the Contrary, there is a higher duty on the Sate to respect the law,
to fulfil procedural requirements and to tread
respectfully when
dealing with rights. Government is not an indigent or
bewildered litigant adrift on a sea of litigious
Uncertainty, to whom
Courts must extend a procedure- Circumventing lifeline. It is
the Constitution’s primary agent.
It must do right, and
it must do it properly.”
Respondents’
conduct is antithetical to this Constitutional Court
dictum.
[46] In
Kalil N. O.
[33]
Leach
JA, has not been quiet and he had this to say:
“…
..Thus
where, as here, the legality of their actions is at stake, it is
crucial for public servants to neither be coy nor to play
fast and
loose with the truth. On the contrary, it is their duty to take
the Court into their confidence and fully explain
the facts so that
an informed decision can be taken in the interests of the public and
good goverances…….our present
Constitutional order
imposes a duty upon Sate Officials not to frustrate the enforcement
by Court of Constitutional rights.”
[47]
The respondents, when seizing applicants’ cellular phones did
not have respect to applicants’
(especially second applicant)
rights to dignity and privacy. They did not have regard to the
rule of law. When applicants
came to this Court to enforce
their rights the respondents clinged tightly onto unmeritorious
procedural nicities, (Urgency) solely
to frustrate enforcement of
applicants’ rights.
[48] In
the amalgam of all the circumstances of this case, this application
succeeds with costs on a punitive
attorney and client costs.
Order
[49] I
the result I make the following order:
49.1
Applicants’ noncompliance with the form and time limits
relating to service of papers is hereby condoned,
and that this
application is hereby heard as an Urgent matter in terms of Rule 6
(12) of the Uniform Rules of Court.
49.2 The
first and second respondents are hereby directed to forthwith return
to the applicants two cellular phones,
to wit
,
a Samsung
S23
and
a Samsung S21.
49.3 The
respondents are directed to pay costs of this application on a Scale
as between attorney and Client (Scale
C).
___________________________
A S ZONO
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
For the
Applicants
:
Adv S Zimema
Instructed
by
: Joko & Co Inc
First Floor Harbourview
Building
Oakworth Road
Humerail
GQEBERHA
Email:sjoko@jokoco.co.za
For the
Respondents :
Adv Dwayi
Instructed
by
: The Office of the
State Attorney
29 Western Road
Central
GQEBERHA
Email:
lapotgieter@justice.gov.za
Date
heard
: 05 September 2024
Delivered
on
;
19 September 2024
[1]
Section 111 of
Correctional Services Act 111 of 1998
[2]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) Para 27; Yannaku v Apollo
Club
1974 (1) SA 614
(A) at 623f
[3]
Cool Ideas 1186 CC v Hubard and Another
2014 (4) SA 474
(CC) para 28
[4]
Mangala v Mangala
1967 (2) SA 415
(E) at 416D
[5]
Amina Bee v Shaik Hoosen
1946 NPD 59
at 61
[6]
Yeko v Qana
1973 (4) SA 735
(A) at 739E
[7]
Ivanov v North West Gambling Board and Others
2012 (6) SA 67
SCA
Para 19.
[8]
Tswelopele Non-Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others
2007
(6) SA 511
SCA Para 21
[9]
George Municipality v Vena and Another
1989 (2) SA 263
(A) at 271H-272B
[10]
Ngqukumba v Minister of Safety and Security and Others
2014 (5) SA
112
(CC) para 12
[11]
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) Para 49
[12]
Ngqukumba v Minister of Safety and Security and Others
2014
(5) SA 112
Para (13)
[13]
Tswelopele Non-Profit Organisation and Others v City of Tshwane
Municipality and Others
2007 (6) SA 511
(SCA) Para 21
[14]
Dhananakium v Subramaian and Another 1943 AD160 at 167;
Ngqukumba v Minister of Safety and Security and Others
2014 (5) SA
112
Para 16
[15]
Law Society of South Africa and Others v Minister for Transport and
Another
2011 (1) SA 409
(CC) Para 69
[16]
Cool Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC) Para 28
[17]
Section 39 of the Constitution
[18]
Kimberly Junior School and Another v Head of the
Northern Cape Education Department and Others
2010 (1) SA 217
(SCA)
Par 11
[19]
MEC for Health, Eastern Cape and Another v Kirland
Investments (Pty) Ltd 2014 (3) SA (C) Para 98; E.M. v Minister
of
Home Affairs and Another (3153/2024) [2024] ZAECMHC 65 (27 august
2024) Para 13
[20]
Cora Hoxter: Administrative Law in South AFRICA, Second
Edition, page 290; Paola v Jeeva N.O
[2003] ZASCA 100
;
2004 (1) SA 396
SCA Para 11, 14
and 16
[21]
Mc Williams v First Consolidated Holdings (Pty) Ltd
1982 (1)
SA 1
(A) at 10
[22]
Makhuva and Others v Lukoto Bus Services (Pty Ltd and
Others
1987 (3) SA 376
(V) at 386E-F
[23]
Hofmeyer v Minister of Justice and Another
1992 (3) SA
108
(C) at 117 F-G; Minister of Environmental Affairs and Tourism v
Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
SCA Para 20
[24]
Head
of Department, Department of Education Free State Province v Welkom
High School and another; Head of Department, Department
of
Education, Free State Province v Harmony High School and another
2014 (2) SA 228
(CC) Para 1
[25]
Moroka v Premier of Free State Province and Others
(295/20)
[2022] ZASCA 34
(31 March 2022) Para 21-22; 82 LAWSA, Vol
25, Part
1 Page 399
Para 366, Cora Hoxter: Administrative Law in
South African, 2
nd
Edition, Page 50
[26]
Shalala v Klerksdorp Town Council and Another
1969 (1)
SA 582
(T) at 587A-C
[27]
GM. Cockram, 3
rd
edition Page 163
[28]
Schierhout v Minister of Justice
1926 AD 99
at 109
[29]
Cool Ideas CC v Hubbard and Another
2014 (4) SA 474
(cc) Para 90
[30]
AAA Investments (Pty) Ltd v Micro Finance Regularly
Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) Para 58
[31]
Lester v Ndlambe Municipality
2015 (6) SA 283
(SCA) Para
23, 24, 27 and 28
[32]
MEC for Health, Eastern Cape and Another v Kirland
Investments (Pty) Ltd
2014 (3) SA 481
(CC) Para 82
[33]
Kalil N.O. and Others v Mangaung Metropolitan
Municipality and Others
2014 (5) SA 123
(SCA) Para 30