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[2020] ZASCA 150
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City Power (SOC) Limited v Commissioner for the South African Revenue Service (1147/2019) [2020] ZASCA 150; 2022 (1) SA 121 (SCA); 83 SATC 523 (20 November 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1147/2019
In
the matter between:
CITY
POWER (SOC) LIMITED
APPELLANT
and
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICE
RESPONDENT
Neutral
citation:
City
Power (SOC) Limited v CSARS
(1147/2019)
[2020] ZASCA 150 (20 November 2020)
Bench:
PONNAN,
SALDULKER and MAKGOKA JJA and MATOJANE and SUTHERLAND AJJA
Heard:
6
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10:00 am on 20 November 2020.
Summary:
Income
Tax Act 58 of 1962 – appellant not a municipality or local
sphere of government – appellant’s accruals
and receipts
not exempt from normal tax under s 10(1)
(a)
and
(b)
.
ORDER
On
appeal from
:
Tax Court of South Africa, Gauteng (Victor J): judgment reported
sub
nom ABC Limited v Commissioner for the South African Revenue Service
[2019]
ZATC 11.
The
appeal is dismissed with costs, including those of two counsel.
JUDGMENT
Ponnan
JA (Saldulker and Makgoka JJA and Matojane and Sutherland AJJA
concurring)
[1]
The issue for determination in this appeal, against a judgment of the
Tax Court (Victor J, sitting in Gauteng), is whether the
appellant’s
accruals and receipts are exempt from normal tax under s 10(1)
(a)
and
(b)
of the Income Tax Act 58 of 1962 (ITA).
[2]
The appellant, City Power (SOC) Limited (City Power), is a
state-owned company, registered as such in terms of the
Companies Act
71 of 2008
.
[1]
On 2 June 2014
the respondent, the Commissioner for the South African Revenue
Service (SARS), issued income tax assessments in
respect of the
2010-2012 years of assessment and disallowed doubtful debt allowances
claimed by City Power.
[3]
City Power had contended that, because it is a municipal entity
[2]
and performs the functions that would otherwise have been performed
by the City of Johannesburg (the City), it qualified for an
exemption
under:
(a)
section 10(1)
(a)
of the ITA, with effect from 1 January 2011;
and
(b)
section 10(1)
(b)
, prior to that date.
It
accordingly objected to the assessment and, upon the objection being
disallowed, appealed to the Tax Court. By agreement between
the
parties, this issue was determined
in
limine
, and
separately from the merits, by the Tax Court.
[4]
Section 5
of the ITA provides that income tax (normal tax) shall be
payable in respect of the taxable income received by or accrued to or
in favour of any person during the year of assessment or any company
during every financial year of such company.
[3]
Section 10
of the ITA is an exemption provision. It provides that
certain specified receipts and accruals are exempt from normal tax.
The
list is a closed one, with the result that, unless specifically
mentioned in
s 10
, the receipts and accruals are taxable in terms of
s 5
of the ITA.
[5]
Prior to 7 February 2007,
ss 10(1)
(a)
and
(b)
of the
ITA provided as follows:
‘
There
shall be exempt from normal tax:
(a)
the
receipts and accruals of the Government, any provincial
administration or of any other state;
(b)
the
receipts and accruals of local authorities…’
Those
provisions were amended by the
Revenue Laws Amendment Act 20 of 2006
.
The words ‘of any other state’ in subsection
(a)
were deleted and the expression ‘local authorities’ in
subsection
(b)
was replaced by the word ‘municipalities’.
The subsections accordingly came to read:
‘
(a)
the receipts
and accruals of the Government or any provincial administration;
(b)
the receipts
and accruals of municipalities.’
[6]
Following the amendment, the
s 10(1)
(b)
exemption came to apply to ‘the receipts and accruals of
municipalities’. The reasons for the amendment appear in an
Explanatory Memorandum on the Revenue Laws Amendment Bill, 2006,
[4]
issued by National Treasury. In this Memorandum, Treasury explains
that ‘the Income Tax
Act
contains various forms of exemption for different spheres of
Government. National and provincial governments are fully exempt
under s 10(1)
(a)
’.
[5]
It
added:
‘
Certain
institutions, boards and bodies subject to the Public Finance
Management Act, 1999 (Act 1 of 1999) (PFMA) are exempt from
income
tax under s 10(1)
(cA)
,
along with their wholly owned subsidiaries. Municipalities receive
exemption as a “local authority” under s 10(1)
(b)
,
but municipal entities that are subject to the Municipal Finance
Management Act, 2000 (Act 32 of 2000) (MFMA) are fully taxable.’
[7]
The reason advanced for the change was that: ‘[t]he Income Tax
system fails to provide a coherent regime for Government
entities’.
According to Treasury:
‘
The
various references to local councils, boards and committees are
outdated. The definition of local authority will accordingly
be
scrapped in line with the new system for local government as
prescribed by the Local Government: Municipal Structures Act, 1998
(Act 117 of 1998). Henceforth, only “municipalities”
(Categories A, B and C) will be exempt as opposed to “local
authorities”. Collateral changes in this regard have already
been made in the Value-Added Tax Act along with corresponding
changes
to the Transfer Duty Act.’
[6]
[8]
Section 10(1) of the ITA was amended once again, on 2 November 2010,
by the Taxation Laws Amendment Act 7 of 2010. Subsection
(1)
(b)
was deleted, while subsection (1)
(a)
was substituted by the
following:
‘
There
shall be exempt from normal tax—
(a)
the
receipts and accruals of the government of the Republic in the
national, provincial or local sphere…’
Thus,
after 1 January 2011, City Power had to qualify as ‘the
government of the Republic in the ... local sphere’ for
it to
be exempt from normal tax.
[9]
In terms of s 40(1) of the Constitution of the Republic of South
Africa, 1996 (the Constitution), the Government of the Republic
of
South Africa is constituted as national, provincial and local spheres
of government, which are distinctive, interdependent and
interrelated.
[7]
Chapter
7 of the Constitution provides, among other things, for the
establishment of municipalities for the whole of the territory
of the
Republic. In terms of s 155(6) of the Constitution, each provincial
government must establish municipalities in its province
in a manner
consistent with the legislation enacted in terms of s 155(2) and
(3).
[8]
Municipalities
established throughout the territory of the Republic constitute the
local sphere of government.
[9]
The
local sphere of government is structured as ‘
(a)
self-standing municipalities,
(b)
municipalities that form part of a comprehensive coordinating
structure, and
(c)
municipalities that perform coordinating functions.’
[10]
[10]
As the Explanatory Memorandum to the Tax Law Amendment Bill, 2010
[11]
makes plain, ‘[t]he proposed amendment seeks to update the
wording of the Income Tax Act in line with the current concept
of the
three spheres of government in the Constitution’.
[12]
[11]
‘Municipality’ is defined in s 1 of the ITA as meaning:
‘
[a]
municipality which is within a category listed in s 155(1) of the
Constitution
[13]
…
and
which is an organ of state within the local sphere of government
exercising legislative and executive authority within an area
determined in terms of the Local Government: Municipal Demarcation
Act, 1998 (Act 27 of 1998).
[14]
City
Power plainly did not qualify as a municipality as defined. That
ought to be the end of the enquiry insofar as the s 10(1)
(b)
exemption is concerned. However, it was contended that the exemption
found application because, in discharging the constitutional
functions that the City was obliged to perform, City Power acted
qua
City. Accordingly, so the argument went, its receipts and accruals
fell to be treated on the same footing as those of a municipality.
What this contention boils down to is that City Power must, for all
intents and purposes, be deemed to be a municipality, with
the result
that the s 10(1)
(b)
exemption applies. Although by no means persuaded, I shall assume in
City Power’s favour that it is permissible to approach
the
enquiry in this fashion. For, it seems to me that even on this
footing City Power fails to bring itself within the exemption.
[12]
In this regard,
Income
Tax Case No 327
[15]
is
instructive. The Court had to there consider whether an individual
who was employed by a Board that was established by and on
behalf of
Government is a ‘government employee’ for the purposes of
qualifying for an exemption. It reasoned:
‘
Now,
the letter of the Governor of the Colony does not appear to bear out
the appellant's contention that he is a Government servant.
The
letter states that the Board is a body established by Statute;
that its purpose is to foster the demand for the products
of the
Colony in the markets of the world; and that the Board has
appointed appellant to act as Commissioner for the Union
of South
Africa. When we have regard to the terms of the Ordinance it appears
to us that this is a body similar to bodies which
have been created
in recent times for the purpose of furthering the trade of a country
in other countries. But the terms of the
Ordinance do not indicate
that the body in question is under the direct control of a Government
department. It is free to act at
its discretion, and the only
question which raises any difficulty is regarding the levy and
destination of the money. Its moneys
are derived from the levy of a
special export duty. That duty when recovered is paid direct to the
Board monthly by the Principal
Collector of Customs, and no part is
credited to the general revenue of the Colony. That is a departure
from the recognised and
accepted way of dealing with Government
revenue. The Board has a very general discretion, and what seems to
be of great importance
is the language which is used in the Ordinance
with regard to the appointment of officers. … In terms of the
subsection
the Board appoints, employs, etc, its own officers, and it
decides the administration of its own affairs. Now, those words “its
own” indicate in both cases that this is something entirely
separate from the Government or any other authority in the Colony.
In
other words, although created by Statute like a great many
non-government bodies are, and although it derives its funds under
the subsection mentioned from the Collector of Customs by means of
the levy mentioned, it is quite independent. It appoints its
own
employees and remunerates and controls its own officers. Now, the
fact that it controls its own officers indicates that the
officers
are not subject to the ordinary control which is exercised over
government officers of the Public or Civil Service in
the ordinary
sense of the term. It is an entirely independent control. It is true,
as argued by the appellant, that if the Government
is dissatisfied
with the work of the Board, or in an extreme case, with the work of
an individual officer, it may withhold the
funds of the Board, and
thus virtually terminate its existence, but those same powers would
appear to belong to any body to which
government funds are
contributed, whether hospital or charitable institutions, or even
private institutions. A government is under
no obligation to continue
to provide funds to an object whose proceedings it does not approve
of. That, however, is not the test
whether an individual is in the
employment of the Government. Here the appellant is appointed,
employed, remunerated and controlled
by the Board itself, and the
Board is a totally independent body.’
[13]
Those factors are present here. The City simply enjoys the ordinary
powers of a shareholder over City Power. City Power has
an
independent Board of Directors (the Board), which is autonomous,
exercises its powers independently and is enjoined to act in
the
interests of City Power. Its powers, as appear in City Power’s
memorandum of incorporation, are wide and substantial;
and are,
crucially, in the nature of those ordinarily associated with private
companies. The Board has the power, inter alia, to:
purchase or
acquire shares, debentures and every other kind or description of
movables and immovables; apply for, purchase or by
any other means
acquire, transfer, protect, prolong or renew patents, patent rights,
licences, trade marks, concessions or
any other rights and to
deal with and alienate them; borrow money in accordance with policies
and within the ambit of the authorisation
of the Board of Directors;
secure the payment of moneys borrowed in any manner, including the
mortgaging and pledging of property
and without detracting from the
generality thereof, in particular by the issue of any kind of
debenture stock, with or without
security; lend money to any person
or company; invest money in accordance with the investment policies
approved by the directors;
and to open and operate banking accounts.
[14]
City Power may also form and have an interest in any company or
companies, amalgamate with other companies and take part in
the
management, supervision and control of the business or operations of
any similar company or business. It may also enter into
partnerships.
In terms of the Service Delivery Agreement concluded between City
Power and the City on 1 September 2006, the services
to be provided
by the former are electricity distribution services, which
constitutes its core business. It may however undertake
any business
other than its core business, albeit with the City’s consent,
which consent shall not be unreasonably withheld.
[15]
Moreover, Parts 5 and 6 of Chapter 8A of the Local Government:
Municipal Systems Act 32 of 2000 (the Systems Act) contain
a range of
measures that are designed to ensure the independence of the Board.
Section 93A
(b)
provides that the parent municipality of a municipal entity ‘must
allow the board of directors and chief executive officer
of the
municipal entity to fulfil their responsibilities’. Section 93E
regulates the appointment of Directors of the Board
and provides that
the board of directors of a municipal entity must have the requisite
range of expertise to effectively manage
and guide the activities of
the municipal entity. At least a third of the directors must be
non-executive directors. In addition,
the Chairperson of the Board
must also be a non-executive director.
[16]
Once appointed, it is then the duty of the Board to inter alia
‘provide effective, transparent, accountable and coherent
corporate governance and conduct effective oversight of the affairs
of the municipal entity’.
[17]
The
Board must appoint a Chief Executive Officer (CEO) of the entity, who
then reports to the Board.
[18]
[16]
The Local Government: Municipal Finance Management Act 56 of 2003
(MFMA) is also of relevance. Section 85(1) and
(2) of the MFMA
provides that:
‘
(1)
A municipal entity must open and maintain at least one bank account
in the name of the entity.
(2)
All money received by a municipal entity must be paid into its bank
account or accounts, and this must be done promptly and
in accordance
with any requirements that may be prescribed.’
The
bank account must be administered by the accounting officer (the
CEO), who is accountable to the Board for the entity’s
bank
accounts.
[19]
As
such, the fact that City Power might have agreed, through a service
level agreement, to grant the City access to its accounts,
does not
change the fact that any decision over that bank account is exercised
solely by the Accounting Officer and the Board.
[17]
City Power’s formation is explained in a letter to SARS dated
24 February 2014. It stated that the City housed municipal
entities
in separately registered companies from 2001 for various reasons,
some of which include the attraction of quality top
management to
create efficiency in the City and its municipal entities, for
business and commercial reasons and to create better
ownership. The
business was to be run along commercial lines, its object being to
generate profit in the course of distributing
electricity. There
appears to be no restriction on City Power generating a profit. The
effect of creating a private company for
purposes of performing the
functions of electricity distribution is that the receipts and
accruals are those of the company, whereas
in instances where the
City itself directly distributes electricity (ie after purchasing in
bulk from Eskom for downstream on-selling
to consumers within its
geographical jurisdiction), the receipts and accruals in relation to
the supply of electricity would fall
into the general funds of the
municipality.
[18]
It is not in dispute that the income from the supply of electricity
by City Power is the income of City Power, notwithstanding
that the
City may have access to such monies. Such income is reflected in City
Power’s financial statement. The funds thus
accrued to City
Power.
[20]
What
it decides to do with such funds at a later stage does not change its
character.
[21]
[19]
I turn to consider whether City Power falls within the concept of the
‘local sphere of government’. In
Independent
Electoral Commission v Langeberg Municipality
,
[22]
the
Constitutional Court explained that a ‘sphere of government’
is a clearly defined concept and does not necessarily
include an
organ of state which performs a function that would ordinarily have
been performed by the government. It held:
‘
In
this broad sense, the Commission does perform a governmental
function. More specifically, it implements national legislation
concerning the conduct of elections. … That does not mean,
however, that the Commission falls within the national sphere
of
government as contemplated by chapter 3 of the Constitution.’
[23]
[20]
In that matter, the Constitutional Court concluded:
‘
The
Commission has tried to make some point of the fact that the conduct
of the election falls within the national legislative authority
of
Parliament, contending that this is a factor which points to the
Commission being part of the national sphere of government.
This is
an oversimplification. … The Commission is clearly a State
structure. The fact that a State structure has to perform
its
functions in accordance with national legislation does not mean that
it falls within the national sphere of government.’
[24]
[21]
In a similar vein, in
Minister
of Home Affairs and Another v Public Protector
,
this court held that the Office of the Public Protector is ‘not
a department of state or administration and neither can
it be said to
be part of the national, provincial or local spheres of
government’.
[25]
With
reference to s 239 of the Constitution,
[26]
Plasket
AJA stated:
‘
It
is therefore not an organ of state as contemplated by subsection (
a
)
of the definition. It is, however, an institution that exercises both
constitutional powers and public powers in terms of legislation.
It
is, consequently, an organ of state as contemplated by subsection (
b
)
of the definition.’
[27]
[22]
These considerations apply equally to City Power. It is not part of
the local sphere of government and is thus not located
within such
sphere. The mere fact that it performs constitutional functions,
which would ordinarily have been performed by the
City, does not mean
that it is part of or located within the local sphere of government.
[23]
The appellant relies on
Grinpal
[28]
and
Joseph
[29]
and
contends that in those judgments, the Constitutional Court
‘characterised City Power through its functions’. The
appellant’s reliance on these judgments is, however, misplaced.
Those judgments merely reiterated a trite principle, namely
that City
Power performs a public function.
[30]
That
much is not in dispute.
Grinpal
and
Joseph
do not state that simply because City Power performs a public
function it falls within the local sphere of government. Nor does
Allpay.
[31]
[24]
The
ratio
in
Grinpal
appears at para 23, whereafter the court stated that, ‘[h]aving
found that City Power is a municipal entity governed by [the
Systems
Act] and that
Grinpal
is an organ of state, the next question is whether s 197
of
the [Labour Relations Act 66 of 1995]
is
applicable to both entities’.
[32]
It
then proceeded to find that s 197 applies to City Power.
[33]
That,
however, is a far cry from finding that City Power is located within
the local sphere of government. Significantly, the Constitutional
Court observed that City Power performs public functions ‘akin
to those of a municipality’.
[34]
[25]
The same can be said of
Joseph
and
Allpay
2
.
In
Joseph
the Constitutional Court was concerned with the question of whether
City Power was performing a public or a private function when
providing electricity to the residents of Ennerdale Mansions. It
found that it was performing a public function and that public-law
duties, such as the duty of procedural fairness, thus applied to City
Power.
[35]
Similarly,
in
Allpay
2
the Constitutional Court was dealing with the question whether Cash
Paymaster was performing a public function and was thus bound
by the
Constitution. Importantly, it held that ‘[i]n our
constitutional structure, [the entity] … does not have to
be
part of government or the government itself to be bound by the
Constitution as a whole’.
[36]
[26]
There is accordingly no merit in the suggestion that City Power falls
within the local sphere of government. As the receipts
and accruals
of City Power are not those of ‘the government of the Republic’
in any of the spheres (ie the national,
provincial or local spheres),
and were at no stage the ‘receipts and accruals of
municipalities’, the s 10(1)
(a)
and 10(1)
(b)
exemptions do not apply in respect of the income in issue.
[27]
It follows that the appeal must fail. In the result:
The
appeal is dismissed with costs, including those of two counsel.
_________________
V M Ponnan
Judge of Appeal
APPEARANCES
For
Appellant:
P J J Marais SC (with him P
A Swanepoel SC)
Instructed
by:
Edward
Nathan Sonnenbergs Inc, Johannesburg
McIntyre
van der Post, Bloemfontein
For
Respondent:
A Subel SC (with him L Kutumela)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
[1]
A
‘state-owned company’ is defined in
s 1
of the
Companies
Act 71 of 2008
as:
‘
[a]n
enterprise that is registered in terms of this Act as a company, and
either—
(a)
is
listed as a public entity in Schedule 2 or 3 of the Public Finance
Management Act, 1999 (Act 1 of 1999); or
(b)
is
owned by a municipality, as contemplated in the Local Government:
Municipal Systems Act, 2000 (Act 32 of 2000), and is otherwise
similar to an enterprise referred to in paragraph
(a)
…’
[2]
The definitions section of the
Local Government: Municipal Systems Act 32 of 2000 (the Systems Act)
provides that a ‘municipal
entity’ is:
(a)
a
private company referred to in s 86B(1)
(a)
;
(b)
a
service utility; or
(c)
a
multi-jurisdictional service utility…’
A
‘municipal service’ is in turn defined to mean ‘a
service that a municipality in terms of its powers and functions
provides or may provide to or for the benefit of the local community
irrespective of whether—
(a)
such
a service is provided, or to be provided, by the municipality
through an internal mechanism contemplated in section 76 or
by
engaging an external mechanism contemplated in section 76; and
(b)
fees,
charges or tariffs are levied in respect of such a service or not…’
Finally,
in terms of s 76:
‘
A municipality may
provide a municipal service in its area or a part of its area
through—
(a)
an
internal mechanism, which may be—
(i) a department or other
administrative unit within its administration;
(ii) any business unit devised
by the municipality, provided it operates within the municipality's
administration and under the
control of the council in accordance
with operational and performance criteria determined by the council;
or
(iii) any other component of its
administration; or
(b)
an
external mechanism by entering into a service delivery agreement
with—
(i) a municipal entity;
(ii) another municipality;
(iii) an organ of state…’
[3]
See s 5(1)
(c)
and
(d)
of the Income Tax Act
58 of 1962 (ITA).
[4]
National
Treasury
Explanatory
Memorandum on the Revenue Laws Amendment Bill, 2006
WP2
– 06.
[5]
Ibid at 40.
[6]
Ibid.
[7]
Democratic
Alliance and Another v Masondo NO and Another
[2002] ZACC 28
;
2003
(2) SA 413
(CC) para 7.
[8]
Section
155(6) of the Constitution.
Section 1
of the
Local Government:
Municipal Demarcation Act 27 of 1998
defines a municipality as ‘a
municipality mentioned in s 155(6) of the Constitution and includes
a municipality which existed
when this Act took effect…’
[9]
Section
151(1) of the Constitution.
[10]
Ex Parte
Chairperson of the Constitutional Assembly: In re Certification of
the Amended Text of the Constitution of the Republic
of South
Africa, 1996
1997
(2) SA 97
(CC)
para 77.
[11]
National
Treasury
Explanatory
Memorandum on the Taxation Laws Amendment Bill, 2010
WP – 10.
[12]
Ibid at 104.
[13]
Section
155(1) of the Constitution provides:
‘
There
are the following categories of municipality:
(a)
Category A: A
municipality that has exclusive municipal executive and legislative
authority in its area.
(b)
Category B: A
municipality that shares municipal executive and legislative
authority in its area with a category C municipality
within whose
area it falls.
(c)
Category C: A
municipality that has municipal executive and legislative authority
in an area that includes more than one municipality.’
[14]
The
definition of ‘municipality’ was inserted by Act 20 of
2006 and accords with
s 2
(a)
of the
Local Government: Municipal Systems Act 32 of 2000
.
[15]
Income Tax
Case No 327
(1935)
8 SATC 254
(U) at 256-8.
[16]
Section 93E(1)
(a)
-
(c)
of the
Local
Government: Municipal Systems Act 32 of 2000 (the Systems Act).
[17]
Section
93H(1)
(a)
of the Systems Act.
[18]
Section 93J
of the Systems Act.
[19]
Section 85(5)
of the Systems Act.
[20]
Commissioner
for Inland Revenue v Cactus Investments (Pty) Ltd
60
SATC 141
at 152.
[21]
Commissioner
for Inland Revenue v Witwatersrand Association of Racing Clubs
1960
(3) SA 291
(A) at 180.
[22]
Independent
Electoral Commission v Langeberg Municipality
[ZACC
23]
[2001] ZACC 23
;
2001 (3) SA 925
(CC)
(Langeberg
Municipality)
paras 22, 27 and 29-31.
[23]
Ibid para 24.
(Footnotes omitted.)
[24]
Ibid para 30.
[25]
Minister
of Home Affairs and Another v Public Protector
[2018]
ZASCA 15
;
2018 (3) SA 380
(SCA) para 34. (Footnotes omitted.)
[26]
Section 239
of the Constitution defines ‘organ of state’ to mean:
‘
(
a
)
any department of state or administration in the national,
provincial or local sphere of government; or
(
b
) any other functionary
or institution—
(i) exercising a power or
performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power
or performing a public function in terms of any legislation, but
does not include a court or a
judicial officer.’
[27]
Minister of Home Affairs
(above fn 25) para
34.
[28]
City Power
(Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others
[2015]
ZACC 8; 2015 (6) BCLR 660 (CC).
[29]
Joseph and
Others v City of Johannesburg and Others
[2009]
ZACC 30
;
2010 (4) SA 55
(CC).
[30]
This
principle had already been confirmed by the Constitutional Court in
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006]
ZACC 9
;
2007 (1) SA 343
(CC) at paras 40-43 (Yacoob J) and
119 (O’Regan J).
[31]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others (No 2)
[2014]
ZACC 12
;
2014 (4) SA 179
(CC) (
Allpay
2
).
[32]
Grinpal
(above fn 28) para 24.
[33]
Ibid para 34.
[34]
Ibid para 23.
[35]
Joseph
(above
fn 29) para 46.
[36]
Allpay 2
(above
fn 31) para 53, referring to the dictum of Yacoob J in
AAA
Investments
(above
fn 30) para 41.