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[2026] ZAGPJHC 313
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Cerebrus Holdings (Pty) Ltd and Others v Transnet SOC Ltd and Others (2023/01865) [2026] ZAGPJHC 313 (28 January 2026)
Links to summary
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2023-018685
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
28/01/2026
In
the matter between:
CEREBRUS
HOLDINGS (PTY) LTD
First Applicant
TOEKOMSTE
SKYN (PTY) LTD
Second Applicant
DVD
QUALITY MINING (PTY) LTD
Third Applicant
and
TRANSNET
SOC LTD
First Respondent
SITATUNGA
MANGANESE (PTY) LTD
Second Respondent
TAWANA
HOTAZEL MINING (PTY) LTD
Third
Respondent
WEPEX
TRADING (PTY) LTD
Fourth Respondent
LIMABRITE
(PTY) LTD
Fifth Respondent
MOKALA
MANGANESE (PTY) LTD
Sixth Respondent
ASSMANG
(PTY) LTD
Seventh Respondent
HOTAZEL
MANGANESE MINES (PTY) LTD
Eighth Respondent
UNITED
MANGANESE OF KALAHARI (PTY) LTD
Ninth Respondent
TSHIPI’
E NTLE MINING (PTY) LTD
Tenth Respondent
KUDUMANE
MANGANESE (PTY) LTD
Eleventh Respondent
KALAGADI
MANGANESE (PTY) LTD
Twelfth Respondent
SEBILO
RESOURCES (PTY) LTD
Thirteenth Respondent
PMG
MINING (PTY) LTD
Fourteenth Respondent
LIDINO
TRADING (PTY) LTD
Fifteenth Respondent
EMANG
MMOGO MANGANESE (PTY) LTD
Sixteenth Respondent
Neutral
Citation
:
Delivered:
By transmission to the parties via email and
uploading onto Case Lines
the Judgment is
deemed to be delivered.
JUDGMENT
SENYATSI
J:
Introduction
[1]
During December 2025, I handed down this judgment. On reflection, I
picked up two typographical errors, namely, firstly not stating
the
seventh respondents in the list of the those entitled to costs in my
order and secondly not including Advocates R. Tshetlo
and S. Mohammed
as the juniors with Advocate R. Bhana SC. This revised judgment
corrects those typographical errors.
[2]
Before the Court are three matters
to be determined together:
(a)
The applicants’ review application
brought under Part B of the amended notice of motion (delivered 28
May 2025);
(b)
The tenth respondent’s purported
counter-application; and
(c)
The seventh respondent’s (Assmang
(Pty) Ltd’s) application for condonation for the late filing of
its heads of argument
and practice note.
[3]
In the main, this is an application brought by three applicants,
Cerebrus Holdings (Pty) Ltd, Toekomste Skyn (Pty) Ltd and DVD
Quality
Mining (Pty) Ltd (collectively “the applicants”) for the
review and setting aside of certain decisions made
by the first
respondent, Transnet SOC Ltd (“Transnet”). The decisions
pertain to Transnet’s process of allocating
railway capacity
for the transport of manganese for export, specifically under its
Manganese Export Capacity Allocation programme,
cycle 3 (“MECA
III”).
[4]
The application is opposed by Transnet and a number of other
respondents, including several mining entities who are either
existing
or emerging manganese miners. The eighth respondent
(“Hotazel”) and the tenth respondent (“Tshipi”)
have
filed extensive heads of argument in opposition, with Tshipi
having launched a conditional counter-application.
[5]
The respondents raise several
preliminary objections: the absence of a Rule 53 record for the
challenged 14 Mtpa “existing
miners” allocation; the
applicants’ expansion of their case without supplementing their
founding papers; locus standi;
delay; and the incompetence of the
counter-application. These objections are well-documented in the
papers
.
Background
[6]
Transnet, a state-owned entity, manages and allocates finite railway
capacity on its network for the transport of manganese from
mines to
ports. Historically, this capacity has been allocated in multi-year
cycles. The previous cycle, MECA II, concluded on
31 March 2023.
[7]
In preparation for MECA III, Transnet undertook a complex exercise to
balance the needs of various stakeholders. This included:
(a)
Existing
miners: Entities with a long-standing contractual relationship with
Transnet, a proven track record of utilizing allocated
capacity, and
a history of reliable payment.
(b)
Emerging
miners: New entrants to the market seeking access to railway capacity
to export their product.
[8]
Transnet’s total available capacity for manganese export is
approximately 16 million tons per annum (“Mtpa”).
A
central policy decision was made to increase the share of capacity
allocated to emerging miners. To achieve this, Transnet decided
to
reduce the allocations of five major existing miners by an aggregate
of 15% (2.4 Mtpa) and to make 2 Mtpa of capacity available
exclusively to emerging miners through a competitive tender process.
The remaining 14 Mtpa was to be allocated to existing miners
based on
direct negotiations, considering their historical performance and
operational needs.
[9]
This gave rise to what the parties have termed two distinct
decisions:
The
Provisioning Decision
(a)
Transnet’s
decision to make only 2 Mtpa of capacity available to the market via
a public tender process, reserving the bulk
of capacity for existing
miners.
The
Allocation Decision
(b)
The subsequent
decision, pursuant to the published Invitation and Process Documents,
on how to allocate the 2 Mtpa amongst the qualifying
emerging miners
who applied.
[10]
The applicants, who are emerging miners (save for Cerebrus, a
consulting entity), participated in the tender process
for the 2
Mtpa. The third applicant (“DVD”) was successful and
received an allocation of 310,000 tonnes per annum.
The second
applicant (“Toekomste”) was disqualified after a site
inspection found no evidence of active mining operations.
The first
applicant (“Cerebrus”), a consulting company, did not
qualify as a miner.
[11]
Aggrieved by this outcome and the underlying structure of the MECA
III process, the applicants launched this review.
They seek to set
aside not only the Allocation Decision but also the Provisioning
Decision, arguing that the entire 16 Mtpa should
have been put out to
open tender, pitting emerging miners against existing miners in a
single process.
[12]
I will deal with the condonation application, the counter-application
and the main review.
The
condonation application
[13]
It is critical at this stage to deal with the condonation application
which is not controversial.
Assmang
applies for condonation for the late filing of its heads of argument
and practice note. It brought its application by notice
dated 15
September 2025. The condonation application is unopposed. It explains
the extent of the delay, provides a supporting affidavit,
and
demonstrates no prejudice to any party if condonation is granted.
Nothing in the papers suggests dilatoriness or bad faith.
[14]
Under Uniform Rule 27(1), if parties do not agree, the court may, on
application with notice and good cause, extend or
shorten any time
period set by the rules or by a court order for actions in
proceedings.
[1]
There is no deadline for seeking condonation, and the court has
discretion to grant or deny condonation for late compliance with
procedural requirements.
[15]
The
applicant must provide a full explanation for the delay and show a
bona
fide
attempt
to comply with the procedural rules.
The
test in considering the condonation application is that the court has
a broad discretion to grant condonation for non-compliance
with
procedural rules, provided there is good cause.
[2]
The defendant must provide a full explanation for the delay and show
a
bona
fide
attempt
to comply with the procedural rules.
[16]
The discretion, while extensive, must be exercised judicially,
considering the fairness to both parties and in accordance
with
established legal principles.
[3]
Factors relevant to granting condonation include the degree of
non-compliance, the explanation provided (which must cover the entire
period of the delay and must be a full, detailed and accurate account
of the causes of the delay),
[4]
the applicant’s prospects of success in the matter, and the
potential prejudice to the opposing party, including its interest
in
finality.
[17]
The explanation is adequate, the delay not excessive, and the
interests of justice strongly favour granting condonation
so that the
Court may have the benefit of all submissions.
Condonation is accordingly granted.
The Tenth
Respondent’s Counter-Application
Procedural
incompetence
[18] The tenth
respondent (Tshipi) purports within its answering affidavit rather
than by notice of motion to seek substantive
review relief, including
the review of what it terms the “Impugned Decision” and
the imposition of prescriptive guidelines
on Transnet. The ninth
respondent correctly objects to this approach.
[19] This is so
because Rule 6(1) states the procedure to be followed when bringing
the application and says:
“
Every
application shall be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies
for
relief.”
The
rule is written in peremptory terms and must be complied with.
Failure to comply with its terms is fatal to the so-called
counter-application.
[20]
The Full Court in this division in
Minerals
Council of South Africa v Minister of Mineral Resources and Energy
[5]
held
that:
“
It
is not open
to a co-respondent to claim
relief unless it enters the litigation as an applicant and seeks
that relief on notice of motion.”
[21]
The decision affecting Tshipi’s allocation is not the “Impugned
Decision” before this court. Tshipi’s
allocation was
determined in direct negotiations with Transnet as an existing miner,
separate from the 2 Mtpa tender process for
emerging miners which is
the subject of this review. This Court cannot, in this application,
review a decision that is not properly
pleaded or before it.
[22]
Lastly, on the merits, the doctrine of legitimate expectation does
not assist Tshipi. Its previous allocation was governed by a
commercial contract (MECA II). The renegotiation of terms for a new
contractual period (MECA III) is a commercial engagement. As
held
in
Cape Metropolitan Council v Metro Inspection Services
(Western Cape) CC
2001 (3) SA 1013
(SCA), when a public
authority exercises a contractual right of renewal or negotiation on
terms previously agreed with a substantial
commercial entity, it is
not exercising a public power that attracts public law duties of
fairness beyond those in the contract.
Tshipi had no legitimate
expectation to a specific allocation in perpetuity
[23]
Tshipi did not intervene as an applicant nor file a notice of motion.
The counter-application is thus irregular and falls to be
dismissed.
I deal with the main application as set out below.
The Main
Application
The
Legal Framework and Standard of Review
[24]
The foundational principle governing this review is the separation of
powers, a cornerstone of our constitutional democracy. As
recently
reiterated by the Supreme Court of Appeal in
Esau
and Others v Minister of Co-Operative Governance and Traditional
Affairs and Others
[6]
a
court may not set aside executive decisions simply because it
disagrees with them or believes a better process could have
been
devised. The Court said the following to formulate this principle:
“
That
is not to say that the courts have untrammeled powers to interfere
with the measures chosen by the executive to meet the challenge
faced
by the nation. Judicial power, like all public power, is subject to
the rule of law.
[7]
Perhaps
the most obvious constraint on the power of the courts is the
doctrine of the separation of powers, a principle upon
which our
Constitution is based
[8]
and
which allocates powers and responsibilities to the three arms of
government – the legislature, the executive and the
judiciary.
[9]
What the
separation of powers means in a case such as this, is that a court
may not set aside decisions taken and regulations made
by the
executive simply because it disagrees with the means chosen by the
executive, or because it believes that the problems that
the
decisions or regulations seek to address can be better achieved by
other means: the wisdom of the executive’s exercises
of power
are not justiciable, only their legality. Somewhat cynically,
Schreiner JA, in
Sinovich
v Hercules Municipal Council
,
[10]
said
that ‘[t]he law does not protect the subject against the merely
foolish exercise of a discretion by an official,
however much the
subject suffers thereby”.
[25]
As the quoted passages from the case suggest, the wisdom of an
executive exercise of power is not justiciable; only its legality
is.
The wisdom of an executive exercise of power is not justiciable; only
its legality is.
[26]
The Constitutional Court in
AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer: South African Social Security Agency and
Others
(No 2)
[11]
affirmed that the court’s role in procurement reviews is not to
ascertain whether the decision was correct, but whether
the process
followed was lawful, reasonable, and procedurally fair. The Court
again, said the following on separation of powers:
“
There
can be no doubt that the separation of powers attributes
responsibility to the courts for ensuring that unconstitutional
conduct is declared invalid and that constitutionally mandated
remedies are afforded for violations of the Constitution. This
means that the Court must provide effective relief for
infringements
of constitutional rights.
[12]
Hence,
the answer to the
separation
of powers argument lies in the express provisions of section 172(1)
of the Constitution. The corrective principle
embodied there
allows correction to the extent of the constitutional inconsistency,
in this case, an invalid award of the tender
for five years.”
[27]
It is therefore trite that the court’s role in procurement
reviews is not to ascertain whether the decision was correct,
but
whether the process followed was lawful, reasonable, and procedurally
fair.
[28]
Section 217(1) of the Constitution requires organs of state to
contract for goods and services in accordance with a system that
is
“fair, equitable, transparent, competitive and cost-effective.”
This provision is central to the applicants’
challenge.
However, its application is not boundless. As argued by Transnet and
supported by authority, section 217(1) regulates
the tender
process
once it has commenced
. It does not dictate to an
organ of state
what
it must contract for or
how
much
of a finite resource it must offer to the market. The
decision on what to put out to tender is a precursor to the section
217(1) process.
[29]
A decision not to procure, or to limit what is procured, is typically
an executive, polycentric decision located in the “heartland
of
the exercise of executive authority”. In
City
of Tshwane Metropolitan Municipality v Nambiti Technologies (Pty)
Ltd
[13]
the Court said:
“…
A
decision as to the procurement of goods and services by an organ of
State is one that lies within the heartland of the exercise
of
executive authority by that organ of State. We live in a country of
finite resources at every level of government. Decisions
by organs of
State on how their limited resources will be spent inevitably involve
painful compromises.”
[14]
[30]
Such a decision, if reviewable at all, is subject only to the
low-threshold rationality review under the principle of
legality. The
question is whether there is a rational connection between the
decision and a legitimate governmental purpose.
Analysis
A.
The Provisioning Decision
[31]
The applicants’ attack on the Provisioning Decision is, in
essence, a request for this Court to dictate to Transnet
how to
manage its finite railway capacity. They argue that by reserving 14
Mtpa for existing miners without an open tender, Transnet
violated
section 217(1) and acted irrationally.
[32]
I find no merit in this challenge for the reasons set out below.
Nature
of the Decision
[33]
The Provisioning Decision was made prior to the commencement of any
tender process. The Invitation Document explicitly stated that
2 Mtpa
was being made available for tender. The decision on how to apportion
the total capacity between existing and new market
entrants was a
classic polycentric, executive decision. It involved balancing
complex factors such as honouring existing commercial
relationships,
ensuring the financial stability and operational efficiency of the
railway network (which relies on consistent,
high-volume users), and
fulfilling a policy imperative to empower emerging miners. This is
precisely the type of balancing act
entrusted by the Constitution to
the executive, not the judiciary. Interfering with Transnet’s
decision in this regard will
amount to judicial overreach which
violates the rule of law on separation of po wers as provided for in
the Constitution. The decision
does not, in my view, violate the
principle of legality and is therefore not reviewable.
Application
of Section 217(1)
[34]
The contention that section 217(1) governs the decision of what to
tender is
an
overreach. The section governs how a tender process is run once a
decision
to procure has been made. To hold otherwise would mean any
member
of the public could challenge a State entity’s decision not to
sell a particular asset or service, leading to an absurdity
and
crippling State commercial operations. The authorities cited by
Transnet, including
Nambiti
[15]
and
SAAB
Grintek Defence (Pty) Ltd v South African Police Service
[16]
are
persuasive
on this point.
Rationality
[35]
Even if the Provisioning Decision were reviewable, it easily passes
the
rationality
test. The reasons proffered by Transnet are cogent and logical as
demonstrated below.
Continuity
and Stability
[36]
Existing miners have invested billions in infrastructure reliant on
Transnet’s services and have a proven record
of payment and
utilisation. Abruptly subjecting their allocations to a competitive
tender against newcomers would create commercial
uncertainty,
potentially destabilising the rail network’s
revenue
base and operational planning. In any event, there is not enough
capacity on the rail network for the allocation of
manganese except what
Transnet in its
wisdom, has decided to allocate and divide between existing and new
manganese miners. To submit as Mr. Motau SC
for the applicants,
did that new miners are forced to use road
transport which is expensive and
inefficient
because of heavy congestion of trucks at Richards Bay Port does not
make the Transnet decision, dare I say, reviewable.
Practical
Empowerment
[37]
A “flat-footed” tender for all 16 Mtpa would likely have
seen emerging miners, with smaller operations and
unproven track
records, outmatched by established miners. By ring-fencing a portion
of capacity (2 Mtpa) for emerging miners, Transnet
created a
realistic pathway for their entry and growth, consistent with broader
economic empowerment goals.
Phased
Approach
[38]
The decision is part of a phased strategy to increase emerging miner
allocation from 13% under MECA II to a target of
30%. This demonstrates a rational, incremental approach to
transformation, mindful
of both the need
for
change and the practicalities of network management.
[39]
The applicants’ complaint that a “better” process
existed is irrelevant. The
court’s
role is not to optimise policy but to assess its lawfulness and
rationality. The Provisioning Decision was
rational.
B.
The Allocation Decision
[40]
The applicants raise several grounds against the Allocation Decision,
namely:
(a)
the
disqualification of Toekomste was based on a material error of fact
and was unfair;
(b)
the allocation
of an equal 310,000 tonnes to each successful emerging miner was an
irrational “blanket approach”;
(c)
the process
was vague and procedurally unfair; and (iv) Transnet failed to
provide adequate reasons.
I
deal with each of the grounds as set out below.
Disqualification
of Toekomste
[41]
The record shows Transnet conducted a physical site inspection. Its
officials, accompanied by Toekomste’s own representatives
including its Mine
Manager, found no
evidence of active mining: pits were marked “closed”,
there were no operational roads, and no trucking
activity was observed.
[42]
This factual finding formed a reasonable basis for disqualification.
The applicants’ attempt to introduce Department
of Mineral
Resources reports in the replying affidavit to prove historical
mining is impermissible as it seeks to make a new case
on reply.
Furthermore, it does not displace the reasonableness of Transnet’s
decision made on the information before it at
the time. There is no
evidence of bad faith or a failure to apply its mind. The submissions
made on behalf of the applicants by
Mr. Motau SC, do not support the
contention that Transnet’s decision was unreasonable.
The
Blanket Allocation
[43]
Transnet allocated 310,000 tons to each of the six qualifying
emerging miners. The applicants argue this was irrational
and that a
differential allocation based on individual merit should have been
made. This argument misunderstands the context. The
310,000 tons
represented a sustainable minimum threshold, a starting point
designed to accommodate growth.
[44]
The Process Document contemplated annual reviews and potential
re-allocation based on actual performance. This approach
was rational
in the
context
of onboarding new, unproven entities. It ensured a fair entry point
for
all qualifying miners while allowing for future adjustments based on
demonstrated capacity. The decision in
MEC
for Environmental Affairs and Development Planning v Clairison
’s
CC
[17]
cautions courts against
interfering with the weight a functionary attaches to factors within
its discretion. In this regard, the
Court said the following in that
case:
“
It
has always been the law, and we see no reason to think that PAJA has
altered the position that the weight or lack of it to be
attached to
the various considerations that go to making up a decision, is that
of the decision-maker. As it was stated by
Baxte
r:
[18]
‘
The
court will merely require the decision-maker to take the relevant
considerations
into account
; it will not prescribe
the
weight
that must be accorded to each
consideration, for to do so could constitute a usurpation of the
decision-maker’s discretion.’”
[45]
I am of the view therefore that
Transnet’s
approach was not irrational.
Procedural
Fairness and Vagueness
[46]
The Process Document outlined the key criteria for evaluation:
financial,
operational,
and technical capability. The applicants, including DVD which
successfully navigated the process, were able to understand
and
comply with these requirements. The standard for clarity in such
documents is
“
reasonable
certainty,” not “perfect lucidity”
[19]
.
[47]
The documents met this standard. The process afforded all applicants
an
equal opportunity to participate. There
was no duty to engage in further
consultations
or
audi alteram partem
hearings beyond what the published
process provided.
Reasons
[48]
Transnet’s reasons are contained in the evaluation records,
site inspection
reports, and the allocation
table. These documents reveal that the decisions
were
based on the applicants’ compliance (or non-compliance) with
the
published criteria. This is sufficient
to meet the requirement for reasons.
D.
The Appropriate Remedy
[49]
In light of my finding that the review fails on its merits, the
question of a just and equitable remedy under section
172(1)(b) of
the Constitution does not arise. However, had I found any invalidity,
I would have been persuaded by the arguments
of Transnet and the
eighth respondent regarding the catastrophic consequences of an
immediate setting aside.
[50]
The MECA III allocations have been in effect since 1 April 2023.
Contracts have been concluded and significant commercial
operations,
investments, and employment dependencies have been structured around
them. As emphasised in
Millennium
Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo
Province
[20]
,
courts must weigh the interests of disappointed tenderers against the
immense public and commercial disruption caused by
unravelling such
decisions. A suspension of any invalidity to allow for an orderly
transition would have been the only just and
equitable course.
Conclusion
and Costs
[51]
The applicants have invited this Court to overstep its constitutional
role. They ask not for a review of legality, but
for the Court to
substitute Transnet’s executive and commercial judgments with
its own. This I cannot do. The decisions under
review were rational,
taken in good faith, and within the lawful ambit of Transnet’s
executive and commercial authority.
[52]
The application for review therefore falls to be dismissed. The tenth
respondent’s conditional counter-application
is similarly
dismissed.
[53]
The general rule is that costs follow the result. There is no reason
to deviate from this rule. The applicants chose
to litigate and have
been unsuccessful. The first respondent and the other opposing
respondents are entitled to their costs.
Order
[54]
Accordingly, the following order is made:
(a)
The
application for review is dismissed.
(b)
The tenth
respondent’s conditional counter-application is dismissed.
(c)
The applicants
are ordered to pay the costs of the all the respondents that
participated in these proceedings and opposed
this application,
jointly and severally, the one paying the others to be absolved, such
costs to include the costs of two counsel
where so employed.
ML
SENYATSI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
DATE
APPLICATION HEARD
:
15,16,17 October 2025
DATE
JUDGMENT HANDED DOWN
:
28
January 2026
APPEARANCES
Counsel
for the Applicant:
Advocate
Terry
Motau SC
Advocate
Stuart Scott
Advocate
Refiloe
Molefe
Instructed
by:
Cuzen Randeree Dyasi Inc
Counsel
for the First Respondent:
Advocate A Rafik Bhana SC
Advocate
R Tshetlo
Advocate
S Mohammed
Instructed
by:
Lawtons Inc
Counsel
for the third and thirteenth respondents: Advocate O. Cook SC
Instructed
by:
Beech Veltman Inc.
Counsel
for the sixth respondent:
Advocate A.R.G. Mundell SC
Instructed
by:
Webber Wentzel
Counsel
for the seventh respondent:
Advocate TJ Bruinders SC
Advocate
Matthew Kruger
Instructed
by:
Webber Wentzel
Counsel
for the eighth respondent:
Advocate
B.
Roux SC
Instructed
by:
Cliffe Dekker Hofmeyr
Inc
Counsel
for the ninth respondent:
Advocate F. Snyckers SC
Advocate
L Crow
Advocate
B Mazibuko
Instructed
by:
Pinsent Masons South Africa
Inc
Counsel
for the tenth respondent:
Advocate B. Leech SC
Advocate
A. Ngidi
Instructed
by:
Rakhee Bhoora & Barr- Mary Tyzack
Fasken (incorporated in
South Africa
as Bell Dewar Inc
[1]
Gool
v Policansky
1939 CPD 386
at 390
[2]
Botha
t/a Tax Consulting SA v Renwick (2019/35217) [2021] ZAGPJHC 37 (13
April 2021) at paras 16 to 27, Du Plooy v Anwes Motors
(Edms)Bpk
1983 (4) SA SA 212 (O) at 216H-217D
[3]
Du
Plooy v Anwes Motors supra at footnote 2 at 217B
[4]
Van
Wyk v Unitas Hospital and Others
[2007] ZACC 24
;
2008 (4) BCLR 442
(CC);
2008 (2) SA
472
(CC) at para 22 & Unitrans
Fuel
& Chemical (Pty) Ltd v Dove-Co Carriers CC
[2010] JOL 25743
(GSJ) at para 7.
[5]
2022
(1) SA 535
(GP) at para 63.
[6]
2021
(3) SA 593
(SCA) at para 6,
[7]
S
v Mabena and Another
[2006]
ZASCA 178
;
2007
(1) SACR 482
(SCA)
para 2.
[8]
Constitutional
Principle VI of Schedule 4 of the interim Constitution required the
Constitutional Assembly, when drafting the
final Constitution, to
make provision for the separation of powers.
[9]
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
1996
[1996]
ZACC 26
;
1996
(4) SA 744
(CC);
1996
(10) BCLR 1253
(CC)
paras 106-113;
South
African Association of Personal Injury Lawyers v Heath and
Others
[2000]
ZACC 22
;
[2000] ZACC 22
;
2001
(1) SA 883
(CC);
2001
(1) SA 77
(CC)
paras 24-25.
[10]
Sinovich
v Hercules Municipal Council
1946
AD 783
at
802-803
.
[11]
2014
(1) SA 604
(CC) at paras 42 and 45
[12]
See
Mvumvu
and Others v Minister for Transport and Another
[2011]
ZACC 1
;
2011
(2) SA 473
(CC);
2011
(5) BCLR 488
(CC)
at paras 46 and 48 and
Fose
v Minister of Safety and Security
[1997]
ZACC 6
;
1997
(3) SA 786
(CC)
[1997] ZACC 6
; ;
1997
(7) BCLR 851
(CC)
at para 69
.
[13]
2016
(2) SA 494
(SCA) at para 43
[14]
Soobramoney
v Minister of Health.
KwaZulu-
Natal
[1997]
ZACC 17
;
1998
(1) A 765 (CC).
[15]
See
footnote 13 above.
[16]
[2016]
3 All SA 669
(SCA) at para 24.
[17]
2013
(6) SA 235
(SCA) at para 20.
[18]
Lawrence
Baxter
Administrative
Law
1ed
(1984) at 505.
[19]
See
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others (CCT 48/13)
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1)
BCLR 1
(CC
)
para
87
[20]
2008
(2) SA 481
(SCA) para 23.