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[2024] ZAEQC 4
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Changsen v Minister of Justice and Correctional Services and Another (EC 04 / 2021) [2024] ZAEQC 4 (10 July 2024)
THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
[SITTING AS THE
‘EQUALITY’ COURT]
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO: EC 04 / 2021
In the matter between:
XIONG
CHANGSEN
Applicant
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
First Respondent
MINISTER
OF POLICE
Second Respondent
Coram: Wille, J
Heard: 18 June 2024
Delivered: 10 July
2024
JUDGMENT
WILLE, J:
INTRODUCTION
[1]
This opposed application concerned only the limited issue of the
jurisdiction of this
court in determining the applicant’s
complaints. In essence, the applicant contends for unfair
discrimination in that
he was unfairly discriminated against by the
criminal justice system on two grounds, namely: (a) that he was
discriminated against
because he was unable to properly communicate
in his language from the time of his arrests until the criminal
convictions were
returned against him and, (b) that this
discrimination also manifested based on his nationality.
[1]
[2]
Firstly, the applicant seeks specific relief that this matter be
heard in the “Pretoria
High Court” because of the
proximity to the headquarters of the relevant respondents cited in
his application. Also,
he seeks 30 million American dollars in
compensation for injury to dignity, lost income and unlawful
incarceration. Most
importantly, he seeks a judicial review of
the two criminal trials concluded against him and the
setting
aside
of the two convictions returned against him. Finally, he wants
an apology from the respective respondents.
[2]
[3]
Upon a reading of the papers, the applicant seems to be contending
for a judicial
review of his criminal convictions and the sentences
imposed upon him. The relief contended for is difficult to
understand
as the applicant tendered a plea of guilty to the offences
upon which he now stands convicted. This occurred in the lower
courts, and he was legally represented during these proceedings.
During the hearing of this limited issue on the jurisdiction
of this
court, the applicant’s legal representative informed the court
that the applicant was, in any event, now pursuing
a condonation
application and an appeal against his convictions and sentences.
[3]
[4]
The applicant’s case involves alleged unfair discrimination.
The issue
is thus whether the protection under this targeted
legislation is triggered in cases where the complaints are, in
essence, about
the alleged violations of his rights to a fair trial
in the context of a criminal trial where the applicant enjoyed legal
representation.
[4]
CONTEXT
[5]
The complaints stem from his interactions with the police. The
applicant’s
complaints have their genesis in the allegations
that he was arrested twice in 2008 and once in 2011. Warning
statements
were taken from him, and no interpreter was present to
advise him of his procedural rights in this connection. One of
these
warning statements is attached to his papers. In this
case, he remained silent and made no statement to the police.
[5]
[6]
Further, the applicant complains about all the previous legal
representatives who
acted for him in the two criminal matters forming
the subject of his complaints. The papers before me reflect that the
applicant
pleaded guilty to both these charges. One is for the
illegal trading in or illegal possession of elephant ivory, and the
other
is for stealing or receiving stolen electronic goods.
[6]
[7]
The applicant avers that he did not voluntarily plead guilty to these
offences.
This must be considered in the context of his
concession that an interpreter was present during this process.
The applicant
alleges that he was not actively allowed to participate
during the court processes that unfolded in the lower courts.
The
applicant avers that he was racially profiled because of his
nationality.
[7]
[8]
The applicant wants his case to be heard in another province because
all the lawyers
in this province have failed him, and the entire
system of justice in this province has failed him. He also
fears reprisals
from the locally based police. He threatens
international media coverage if he is not vindicated and will resort
to telling
his story on social media.
[8]
[9]
The applicant is angry and says he now views all prosecutors, lawyers
and judges with
suspicion. He fears for his life and safety and
that of his family. At the same time, he admits that there was
a ‘measure
of culpability’ on his part for purchasing
elephant ivory illegally. The applicant in his papers also
repeatedly refers
to the ‘
police’
as the first respondent. The first respondent argues that the
applicant’s arrests and convictions were constitutionally
compliant.
[9]
THE TARGETED
LEGISLATION AND THE CONSTITUTION
[10]
The provisions of the targeted legislation that may find application
are those dealing with discrimination
(as defined), read with certain
constitutionally enshrined rights of general application.
Discrimination is broadly defined
as:
‘…
any
act or omission, including a policy, law, rule, practice, condition
or situation which directly or indirectly; (a) imposes burdens,
obligations or disadvantages on; or (b) withholds benefits,
opportunities or advantages from any person on one or more of the
prohibited grounds…’
[10]
[11]
This legislation must be purposively interpreted and read in a
constitutional context.
It seeks to give effect to the letter
and spirit of all our constitutionally enshrined rights. These
provide for every person's
equal enjoyment of all rights and that no
person may be unfairly discriminated against. Further, these
rights must be respected,
protected, and promoted.
[11]
[12]
What is not apparent from the papers before me is an examination and
consideration of the rights
of persons arrested and detained. I
suppose that the applicant has navigated away from this line of
enquiry and examination
as this goes to whether this matter should be
before the criminal courts through judicial review or appeal.
Also, it goes
to the very root of the complaints by the applicant
about damages and why relief was not sought following the civil
remedies in
the common law of delict. This is the very issue to
which I now turn.
[12]
CONSIDERATION
THE CAUSE OF ACTION
[13]
The allegations by the applicant are, among other things: (a) that he
was unlawfully assaulted;
(b) that he was never informed of the
charges preferred against him; (c) that he was unlawfully detained;
(d) that he was forced
to make certain admissions against his will
and, (e) that he was tried in a language that he did not understand
and that the proceedings
where not interpreted in a language that he
understood.
[13]
[14]
In addition to several other shields raised by the respondents, they
aver that the affidavits
supporting the application do not set out
any alleged acts of discrimination and thus do not set out a cause of
action to justify
a finding in support of the relief contended for by
the applicant.
[14]
[15]
They say this because neither the first nor the second respondent
played any role in the actual
court process regarding the
guilty
pleas
tendered by the applicant. It remains the case for the first
and second respondents that the applicant’s founding affidavits
do not allege any facts to support the essence of the claims made by
the applicant.
[15]
[16]
In summary, it seems to me to be undisputed that the applicant
complains that his right to privacy
was infringed and that he was
assaulted. I say this because this is a positive allegation
made by the applicant. Further,
he says that he was arbitrarily
deprived of his freedom and that his home, property and person were
searched without a search warrant.
Finally, he was not informed
of the charges in enough detail to be able to answer them.
These issues must be considered against
the canvas of the common
cause facts that he was legally represented during this time.
[16]
[17]
Most significantly, the applicant does not allege the prevailing
legislation to be
discriminatory
.
This is important because a claim for damages under the umbrella of
equality
should not be instituted where an effective remedy exists at common
law. The applicant conceded during the argument that his claims
for
damages in the common law of delict have long since been prescribed
due to the effluxion of time
[17]
[18]
Elaborating on the facts, the applicant unnecessarily delayed the
launch of civil proceedings
against the respondents under the common
law of delict. I say this because no factual basis or
foundation is set out in the
applicant’s papers for this court
to exercise discretion concerning these inordinate delays on behalf
to the benefit of the
applicant in these proceedings. However,
it must be so that if no explanation is given for the delay, this, as
a matter of
pure logic, must count heavily against the applicant.
[18]
[19]
The applicant remains steadfast in seeking
specific
relief that this matter be heard in the “Pretoria High Court”
because of the proximity to the headquarters
of the relevant
respondents cited in his application. Also, he seeks 30 million
American Dollars in compensation for injury
to dignity, lost income
and unlawful incarceration. Most importantly, he seeks a
judicial review of the two criminal trials
concluded against him and
the
setting
aside
of the two convictions returned against him. Finally, he wants
an apology from the respective respondents.
[19]
[20]
The respondents seek refuge in the legislation that deals with the
constitutional rights of arrested
and detained persons.
Further, they say that the complaints by the applicant are more than
adequately protected by extant
legislation dealing with our criminal
procedure that falls to be followed during criminal trials in our
criminal courts.
Also, the applicant is a citizen of our
country.
[20]
[21]
Thus,
any
claim that the applicant may have had for damages, including
constitutional
or equality
damages,
became prescribed after the lapse of three years. They say it
matters not how this application has been dressed up,
as this does
not change the initial and only cause of action.
[21]
[22]
As a matter of law, I must agree with the respondents’
arguments in this connection.
I say this because it needs to be
clarified (there is a deafening silence from the applicant in this
regard) why the applicant
did not institute a claim for damages in
delict and pursue a judicial review and or appeal in connection with
his criminal convictions
and sentences.
[22]
[23]
I also say this because it is trite that this species of equality
relief may not be claimed where
a clear and compelling alternative
remedy was readily available to the applicant. This relief is
being claimed to camouflage
the actual cause of action. The
applicant does not explain, engage with or contextualize the
inordinate delays in instituting
a claim in delict for damages
against the respondents. Also, the applicant has now, for the
first time during the argument,
advanced that he intends to seek
condonation and appeal against the convictions and sentences imposed
upon him by the lower criminal
courts.
[23]
THE RELIEF
[24]
The relief sought is in the form of a declarator. This is
because of the possible consequences
that flow should the relief be
granted. An application for a declarator requires a two-stage
approach. The court must
satisfy itself that an applicant is a
person who has an existing, future, or contingent right or
obligation. Then, if so,
the court must decide whether the case
is appropriate for exercising the discretion conferred upon it.
Furthermore, the court
may decline to grant declaratory relief if it
regards the question raised as hypothetical, abstract, or academic.
In this
context, our apex court has held that a hypothetical interest
is an interest that is expressly claimed but is neither real nor
genuine.
[24]
[25]
A declaratory order is a discretionary remedy, and the discretion to
grant a declaratory order
should not be exercised where the question
raised is academic, abstract, or hypothetical. Put another way,
where the questions
raised in a matter are wholly academic, a court
should decline to grant a declaratory order.
[25]
[26]
Indeed,
there
are rare cases where our courts have entertained applications, the
effect of which may be moot. In these applications,
the
interests of justice have demanded that the matter be heard,
notwithstanding that it is moot. Some of the factors that
may
determine the interests of justice include the following: (a) whether
any order a court may make will have some practical effect
either on
the parties or on others; (b) the nature and extent of the practical
effect that any possible order might have either
on the parties or on
others; (c) the importance of the issue; (d) the complexity of the
issue; (e) the fullness or otherwise of
the arguments advanced, and
(f) if the decision would resolve disputes between different
courts.
[26]
[27]
I needed more persuasion to understand how a declarator would advance
the matter or have any
practical effect on the litigation. I
say this primarily because the academic nature of the relief sought
by the declarator
becomes apparent considering the following: (a) any
claim for damages, constitutional or otherwise, has prescribed due to
the effluxion
of time, and (b) the applicants have failed to give the
required statutory notice to institute their claims against the
respondents.
[27]
PRESCRIPTION
[28]
Further, it was argued that the applicant could not be granted
condonation for the late filing
of his application in these
circumstances, even if he had applied for condonation. He did
not. As a matter of pure
logic, this must be so because if a
debt becomes extinguished by prescription, condonation cannot
generally be granted. No
purpose would be served by granting
condonation regarding a debt that no longer exists and cannot be
enforced. The purpose
cannot be to revive debts already
euthanized and prescribed
due
to the effluxion of time.
[28]
[29]
The issue for consideration is whether a claim for constitutional
damages constitutes a debt.
In this case, the alleged violation
of constitutional rights would entail the commission of a delict if
proven. The word
‘
debt’
should be given its
ordinary grammatical meaning, which is, among other things:
‘…
a
liability or obligation to pay or render something - the condition of
being obligated…’
[29]
[30]
The applicant’s claims are for compensation sounding in money
and must be included in the
meaning of the word
debt
.
Also, it would not be legally permissible to escape the legislative
provisions of prescription by merely formulating a claim
under the
umbrella of constitutional damages when the claim has all the
features of a claim in the law of delict sounding in money.
[30]
[31]
The definition of a debt includes explicitly a claim for any
liability for which an organ of
the state is liable for payment of
damages. The applicants’ shield to this is that
prescription does not apply as the
damages sought against the
respondents do not amount to a debt that would be prescribed.
The argument is that this is not
an obligation to pay money, deliver
goods, or render services.
[31]
[32]
The claim by the applicant is undoubtedly, by its very nature, a
claim for constitutional damages.
Our apex court has decided on
what comprises a
debt
in circumstances such as these, and it has even been confirmed that a
claim to transfer immovable property in the name of another
amounts
to debt.
[32]
THE NATURE OF THE
DAMAGES CLAIMED
[33]
The rights the applicant seeks to protect are adequately provided for
in delict and through criminal
procedure. The common law and
our existing legislation are powerful vindications of those
constitutional rights. This
must be so because our constitution
is primary, while its influence is
indirect
because
it is perceived through its effects on the legislation and the common
law.
[33]
[34]
Thus, the applicant seeks to label his claims as damages and prefer
them as
equality
court
claims. The applicant does so to circumvent the effect of
prescription and time-bars on his claims. The applicant’s
case is that his damages claim is appropriate for his relief.
However, as I understand our jurisprudence, considering all
alternatives, it must be the most appropriate relief.
[34]
[35]
Put another way, the common law of delict is broad enough to offer
appropriate relief for breach
of those constitutional rights
contended for by the applicant. Where the common law gives
effect to constitutional rights
and offers remedies for their
protection, the proper course is to use the common law to enforce
those rights.
[35]
[36]
Thus, in this case, the applicant’s difficulty is not that the
law of delict is insufficiently
protective but rather that the
statutory law on prescription and our criminal law legislation
precludes his claim in delict.
But even if prescription did not
apply to his claims, it would not be just and equitable for the
applicant’s failures to
support an argument that constitutional
damages are the most appropriate relief in the circumstances.
[36]
[37]
This is so because our courts have repeatedly confirmed that
constitutional damages would only
be awarded where the existing law,
including the development of the common law, is inadequate to
vindicate a violation of or threat
against a citizen's rights.
It must be so that constitutional damages do not constitute an
alternative means of appropriate
relief where a claim in delict could
more than have adequately compensated the applicant and where that
relief itself is an extraordinarily
effective and powerful
vindication of any constitutional rights that may be in question.
[37]
[38]
Put another way, where a common law remedy exists, a claimant must
first have recourse to that
remedy as a matter of pure logic. I
say this because, in most cases, our common law is broad enough to
provide all the appropriate
remedies for a constitutional right
violation. An award for constitutional damages is not available
where there is no evidence
to prove that such damages would serve as
a significant deterrent against an individual or systemic repetition
of the infringement
in question.
[38]
[39]
Most significantly, in support of the declaratory relief sought by
the applicant, he contends
for violating his rights as an arrested
and detained person. There is nothing systemic or discriminatory
about his alleged claims.
Also, his claims do not morph into
facts. The respondents deny these allegations. The allegations
made by the applicant
are general and lack specificity.
[39]
[40]
I say this because the papers before me needed to contain the facts
supporting the conclusions
the applicant desires the court to draw.
Thus, it is difficult, if not impossible, to discern (let alone
decide) from the
material before me how the actions or omissions by
the respondents amounted to discrimination and, thus, a trammelling
of the applicant’s
constitutional rights.
[40]
JURISDICTION OF THE
EQUALITY COURT
[41]
I must conduct an enquiry in the prescribed manner and determine
whether unfair discrimination,
hate speech, or harassment has
occurred, as alleged. Further, I must remember that
the
court's character is that the proceedings are meant to be
expeditious. The remedies are to be corrective, restorative,
and deterrent in nature.
[41]
[42]
In addition, I must consider and be mindful of the existence of
systemic discrimination and inequalities
concerning race, gender, and
disability in all spheres of life and the need to take measures to
eliminate them from our society.
These are all issues that I
must consider when dealing with the problem of determining
jurisdiction. Also, I must be
mindful of this targeted
legislation's objects and guiding principles. Finally, I must
adopt an approach focusing on substance
rather than form.
[42]
[43]
In addition, absent a direct challenge to this legislation, I must
assume that this targeted
legislation is not constitutionally
inconsistent and claims must be decided within its margins.
Thus, it is not legally permissible
to treat this targeted
legislation and the provisions in our constitution as
interchangeable. They are not.
[43]
[44]
The
applicant sought no relief against the second respondent, and the
first and second respondents are referred to interchangeably.
By elaboration and for clarity, the relief claimed in the various
parts of the application is not discrete as they rest on a finding
of
alleged unfair discrimination concerning the same conduct. What
is vital in this case is that the definition of
nationality
does
not include rights and obligations usually associated with
citizenship.
[44]
[45]
Most importantly, the applicant would be unlikely to prove a
likelihood of recurrence of the
alleged unfair discrimination to
warrant the relief contended for. If the applicant cannot
sustain a case for damages in
delict and seeks no consequential
relief (other than through a judicial review or an appeal), it would
be difficult to discern
how an order from this court could assist the
applicant’s cause. I say this because this court is not
obliged to declare
the respondents’ conduct constitutionally
invalid (even if it was) as it may be appropriate and necessary to
dispose of the
question using subsidiary law.
[45]
[46]
In this case, no parallel proceedings are pending in the high court.
When the court determines
a matter following the equality legislation
(with no parallel proceedings pending), it cannot also sit as an
ordinary high court.
[46]
[47]
I say this, among other things, because no pending proceedings can be
conveniently consolidated.
In summary, the applicant's only
complaint that may attract the jurisdiction of this court is the
allegation that he was
unfairly discriminated against based on race,
ethnicity, and language. The applicant still needs to set up an
evidential
basis for these averments. It must be so that
allegations that lack specificity do not equate to establishing a
prima
facie
case against the respondents. Thus, the alleged acts of unfair
discrimination do not attract this court’s jurisdiction.
[47]
STATUTORY NOTICES
[48]
This specific legislation, as referenced above, provides in summary,
among other things, that
no legal proceedings for the recovery of a
debt may be instituted against an organ of state unless the creditor
has given the organ
of state a notice in writing of the intention to
institute the legal proceedings in question. The organ of state
may consent
in writing to the institution of these legal proceedings
without the notice and may consent if the notice has been received
but
still needs to comply with the relevant specific legislative
requirements.
[48]
[49]
The obligatory prior notice must also comply with strictly imposed
time limits. If these
time limits and other legislative
requirements are not adhered to, the party in default may seek
condonation for non-compliance.
[49]
[50]
The applicant failed to comply with these mandatory notices, and his
claim for damages is stillborn.
This is because the respondents
have not consented in writing to the institution of the legal
proceedings without such notice having
been given by the
applicant.
[50]
[51]
In summary, the relevant portion of this legislation provides that no
legal proceedings for the
recovery of a debt may be instituted
against an organ of the state unless the creditor has given the organ
of state in question
notice in writing of his or her or its intention
to institute the legal proceedings in question or the organ of state
in question
has consented in writing to the institution of those
legal proceedings without such notice. This notice must be
given within
six months from the date the debt became due and be
served on the organ of the state. This notice also must comply with
specific
informative requirements.
[51]
[52]
It seems that on the papers presented before me, the applicant has
not adequately engaged with
or given a judicially acceptable reason
why he did not comply with this legislation and the reason why they
did not provide this
statutory notice, which would have been a
relatively simple exercise by their legal representatives.
There is simply no explanation
whatsoever on the papers.
[52]
CONCLUSION
AND COSTS
[53]
Cases
of this nature should not attract any orders regarding costs.
Also, the matter was determined on the limited issue of
jurisdiction. Emphasis must be placed on this application's
constitutional character because these proceedings essentially
sought
to vindicate fundamental rights in connection with alleged unlawful
actions by the respondents. The following legal
principles,
which are found in our jurisprudence, apply when dealing with matters
that truly have constitutional ingredients. The
principles dictate
whether the matter has a constitutional ingredient if there is a
genuine, non-frivolous challenge to the constitutionality
of a law or
conduct by the state. If so, it is appropriate that the state
bear the costs if the challenge is good, but if
not, the losing
non-state litigant should be shielded from the costs and consequences
of failure.
[53]
[54]
Concerning costs, the court always retains the discretion to make an
order that seems just and
equitable, considering the position of the
party against whom any such cost order is levied. Several
factors must be considered
when a cost award is issued in such
circumstances. The applicants’ cause of action should have been
in the common law of
delict. However, I am not satisfied that
any cost order should be granted without further evidence. In
my view, a contextual
approach must, of necessity, be adopted.
[54]
ORDER
[55]
The following order is issued:
1.
The application is dismissed.
2.
There shall be no order as to costs.
_________
E D WILLE
(CAPE TOWN)
[1]
The
applicant's first language is Chinese, and he is a Chinese national.
[2]
He
seems to have adopted a shotgun approach and filed complaints
against a number of regulatory bodies.
[3]
The
applicant contends for
procedural
irregularities
in connection with his convictions.
[4]
The
Promotion of Equality and Prevention of Unfair Discrimination Act, 4
of 2000
.
[5]
How
this is a violation of his rights to his prejudice is not apparent
from the papers presented to me.
[6]
The
details of the convictions and sentences needed to be clearly
defined in the record.
[7]
He
says this is solely because he is of Chinese origin.
[8]
He
has uploaded media files for release to “YouTube”.
[9]
The
second respondent is cited but no relief is contended for against
the second respondent.
[10]
Section
1
(viii) of Act 4 of 2000.
[11]
Sections
2 (b) (i) and 6 of Act 4 of 2000 read with section 7 (2) of the
Constitution of the Republic of South Africa.
[12]
The
rights as set out in sections 35(2) and 35(3) of the of the
Constitution of the Republic of South Africa.
[13]
These
all seem to be violations of sections 35(2) and 35(3) of the
Constitution of the Republic of South Africa.
[14]
The
allegations made are of a general nature with a lack of specificity.
[15]
Neither
of the respondents could have played a role in the guilty pleas
tendered by the applicant.
[16]
Various
experienced legal practitioners represented the applicant during his
criminal proceedings.
[17]
A
constitutional damages claim is not permissible simply because a
claim in delict was not pursued timeously.
[18]
Hoexter
and Penfold (Eds) Administrative Law in South Africa, (Third
Edition, 2021) at page 735.
[19]
This
“apology” relief is indeed catered for in the targeted
legislation.
[20]
See
the definition of “nationality” referenced earlier.
[21]
The
words used do not change the cause of action.
[22]
This
could only be because the applicants sought to circumvent the
Prescription Act, 68 of 1969
.
[23]
The
delays seem to be wished away because of the constitutional nature
of the declarator sought by the applicants.
[24]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others
2013 (3)
BCLR 251
(CC) at para 51.
[25]
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others 1996 (12) BCLR 1599 (CC).
[26]
The
applicant has the judicial review and appeal mechanisms at his
disposal.
[27]
Section
3
(1)
and 3 (2) of the Legal Proceedings Against Certain Organs of State
Act, 40 of 2002.
[28]
Premier
of the Western Cape Provincial Government v BL
[2012] 1 All SA 465
(SCA), at paras 4 and 15.
[29]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344E-G.
[30]
No
distinguishing features of the cause of action contended for were
advanced by the applicants.
[31]
The
applicants attempt in some way to rely on section
39
(2) of the Constitution of the Republic of South Africa, 1996.
[32]
Ethekwini
Municipality v Mounthaven (Pty) Ltd
2019 (4) SA 394
(CC) at para 93.
[33]
Eskom Holdings SOC Ltd v Vaal River Development Association (Pty)
Ltd and Others
2023 (4) SA 325
(CC) at para 233.
[34]
Residents, Industry House and Others v Minister of Police and Others
2023 (3) SA 329
(CC) at para 118.
[35]
Fose
v Minister of Safety and Security 1997 (3) SA 786 (CC).
[36]
The
applicant’s claim in delict has prescribed and is excluded and
he has the rights of judicial review and appeal at his
door.
[37]
Fose
v Minister of Safety and Security,
[1997] ZACC 6
;
1997
(3) SA 786
(CC
).
[38]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC
).
[39]
This
allegation is not borne out by the papers and is in any event
disputed.
[40]
These
disputes could not be resolved on motion.
[41]
Section
21 (1) and
section 4
(1) of the
Promotion of Equality and Prevention
of Unfair Discrimination Act, 4 of 2000
[42]
I
must interpret the provisions of this legislation to give effect to
the Constitution of the Republic of South Africa, 1996.
[43]
September v Subramoney [2019] ZAEQC 4: [2019] 4 All SA 927 (WCC).
[44]
See
the definition of “nationality” in section 1(1) of Act 4
of 2000.
[45]
J T Publishing (Pty) Ltd and Another v Minister of Safety and
Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) at para 15.
[46]
Manong
and Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape and Another 2009 (6) SA 589 (SCA).
[47]
Also,
the pending criminal appeal or review processes cannot be
consolidated with this application.
[48]
Section
3
(1)
and 3 (2) of the Legal Proceedings Against Certain Organs of State
Act, 40 of 2002.
[49]
Section
1 of the Legal Proceedings Against Certain Organs of State Act, 40
of 2002.
[50]
The
applicants were obliged to give the respondents written notice
within six months from when the debt became due.
[51]
This
notice was not given to the respondents in any form, and no consent
was granted at the instance of the respondents.
[52]
No
reasons were advanced why this statutory notice was not given to the
respondents.
[53]
Biowatch
Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC).
[54]
A
holistic approach must be adopted with a view to assess the
different positions adopted by the parties.