THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1057/2024
In the matter between:
THE MUNICIPAL MANAGER OF THE UMDONI FIRST APPELLANT
LOCAL MUNICIPALITY
THABISILE NDLELA SECOND APPELLANT
THE SPEAKER OF THE COUNCIL OF THE UMDONI THIRD APPELLANT
LOCAL MUNICIPALITY
COUNCIL OF THE UMDONI LOCAL MUNICIPALITY FOURTH APPELLANT
UMDONI LOCAL MUNICIPALITY FIFTH APPELLANT
RAVINAND MAHARAJ SIXTH APPELLANT
EXECUTIVE COMMITTEE OF THE COUNCIL OF SEVENTH APPELLANT
THE UMDONI LOCAL MUNICIPALITY
THE MAYOR OF THE COUNCIL OF THE UMDONI EIGHTH APPELLANT
LOCAL MUNICIPALITY
and
SHAMILA SOOKHRAJ FIRST RESPONDENT
DEMOCRATIC ALLIANCE SECOND RESPONDENT
Neutral Citation: The Municipal Manager of the Umdoni Local Municipality
and Others v S Sookhraj and Another (1057/2024) [2026] ZASCA 65 (6 May
2026).
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Coram: MOLEFE and KGOELE JJ A and DIPPENAAR,
GOVINDJEE and NORMAN AJJA
Heard: 23 February 2026
Delivered: 6 May 2026.
Summary: Municipal law – Local Government: Municipal Structures Act 117 of
1998 – interpretation of s 43(2) – whether the allocation of seats on a municipal
executive committee is fixed for the duration of a council’s five -year term – or
whether it must be re -calculated whenever by-elections alter the composition of
the council – Local Government: Municipal Systems Act 32 of 2000 – costs
order against the municipal manager.
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________________________________________________________________
ORDER
________________________________________________________________
On appeal from : Kwa Zulu-Natal Division of the High Court, Durban (Nkosi
ADJP, sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
Molefe JA ( Kgoele JA and D ippenaar, G ovindjee and N orman AJJA
concurring):
[1] This is an appeal against the judgment and order of the Kwa Zulu-Natal
Division of the High Court, Durban (the high court), granting declaratory and
interdictory relief in favour of the respondents. The high court declared the
decision by the first appellant, the Municipal Manager of the Umdoni Local
Municipality (the Municipal Manager), to be unlawful and the appointment of the
first respondent, Councillor Shamila Sookhraj, to be valid.
[2] The crisp issue to be determined is whether, on a proper interpretation of
s 43 read with ss 45, 46 and 47 of the Local Government: Municipal Structures
Act 117 of 1998 (the Structures Act) ,1 the composition of an executive
committee may , during a Municipal Council’s five -year term, be altered as a
consequence of a by-election taking place. The appellant s framed the specific
issue to be determined by this Court in its notice in terms of rule 8(8) (a) of the
Rules of the Supreme Court of Appeal of South Africa , 1998, and the
respondents agreed that the appeal hinged exclusively on the issue as
formulated by the appellants.
1 Local Government: Municipal Structures Act 117 of 1998 was amended by the Local
Government: Municipal Structures Amendment Act 3 of 2021.
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[3] However, in their heads of argument, the appellants also addressed the
issue of the Municipal Manager’s breach of s 55 of the Local Government:
Municipal Systems Act 32 of 2000 (the Systems Act). The high court found that
the Municipal Manager had egregiously breached her duties, resulting in a
punitive costs order being granted against her, jointly and severally with the
other appellants.
[4] At the hearing of this appeal, the appellants argued that the costs order
granted was not justified and should be set aside. Counsel , however, conceded
that the appellants were bound to the issues as set out in terms of rule 8(8) (a).
That concession was properly made, and the issues surrounding the costs order
do not form part of the issues to be determined by this Court.
Background
[5] The fifth appellant, the Umdoni Local Municipality (Umdoni Municipality)
is a category B municipality established in terms of s 12 of the Structures Act.
Following the November 2021 municipal elections, the Council of the Umdoni
Local Municipality (the Council), the fourth appellant, had 37 councillors elected
to serve in the Council. The African National Congress (ANC) held 17 seats, the
second respondent, the Democratic Alliance (DA) held seven, and the other
parties and independents held 13.
[6] Within 14 days of its election, the Council determined the composition of
the Executive Committee of the Umdoni Municipality (E xco), the seventh
respondent, in accordance with s 45 of the Structures Act. The Council applied
the formula prescribed in ss 43(2)(a) to (c) of the Structures Act, and seats were
proportionally allocated to the Exco. The ANC occupied three seats, the DA two,
and the other parties and independents occupied two. The DA appointed
Councillor Edwin Baptie to one of its two allocated Exco seats.
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[7] On or about 26 November 2021, a councillor resigned from the DA. A by -
election was held for ward 13, a ward previously won by and represented by the
DA. The ANC won the by -election, causing the ANC Council seats to increase
from 17 to 18 seats. By losing the by-election, the DA’s Council seats decreased
from seven to six seats. Representation on the Council was appropriately
amended.
[8] On 29 August 2022, Councillor Baptie resigned as a councillor and also
vacated his office as a member of E xco in terms of s 47(1)(c) of the Structures
Act. This created a vacancy in one of the two E xco seats allocated to the DA.
On 9 November 2022, the DA’s authorised representative, the Chief Whip,
Councillor Singh, advised the Municipal Manager and the Speaker of the
Council of the Umdoni Municipality, the third appellant , that the DA had
appointed Councillor Sookhraj to fill the vacancy that arose on the E xco
pursuant to s 43(2)(e) of the Structures Act.
[9] Instead of implementing the DA’s appointment of Councillor Sookhraj, the
Municipal Manager prepared a report dated 25 January 2023 , recommending
that the Council either re -determine the composition of the E xco in light of the
by-election results, or ‘simply effect the changes occasioned by the changes in
Council’. At an ordinary Council meeting held on 25 January 2023, the Municipal
Manager tabled a report recommending the re -determination of the E xco
composition.
[10] On 22 February 2023 , following a presentation by Ms N Zamisa from
COGTA,2 an ANC councillor moved a motion that Councillor Ravinand Maharaj,
the sixth appellant, be appointed to fill the vacancy created by Councillor Baptie.
The motion was passed by Council vote and Councillor Maharaj, an ANC
member, was appointed to Exco.
2 COGTA is the Department of Cooperative Governance and Traditional Affairs, a key
government department in South Africa.
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[11] Pursuant thereto, Councillor Sookhraj and the DA instituted an urgent
application in the high court to, inter alia, have the election of Councillor Maharaj
to Exco to fill the vacancy declared unlawful. On 24 March 2023, by consent, the
high court (per Nicholson AJ) declared the election of Councillor Maharaj
unlawful, and his appointment was nullified.
[12] The issue that remained to be adjudicated by the high court was who had
the right to appoint a councillor to fill an E xco vacancy; this involved a proper
interpretation of s 43(2) of the Structures Act. The high court (per Nkosi ADJP)
favoured the respondents’ interpretation and held that the 2021 amendment to s
43(2) introduced an intention on the part of the Legislature to reserve , to a
political party, a seat allocated to it on the E xco for the term of the Municipal
Council. The political party to which a seat had been allocated, in this instance
the DA, was empowered to appoint a councillor to fill the vacancy. Th is resulted
in it declaring the appointment of Councillor Sookhraj valid. The high court
further found the conduct of the Municipal Manager to be ‘blatant and
egregious’, and a punitive costs order was made against her.
[13] Aggrieved by the high court’s decision, the appellants applied for leave to
appeal, which was dismissed. On petition, leave to appeal was granted to this
Court.
[14] As stated, the crisp issue to be determined is the proper interpretation of
s 43(2) of the Structures Act , namely whether: ( a) as contended by the
appellants, the composition of an E xco may, during a Council’s five-year term,
be altered as a consequence of by-elections taking place and a change in the
composition of the Council being effected thereby (the proportionality
interpretation); or ( b) as contended by the respondents, the right of political
parties to appoint members to E xco is fixed within 14 days of the Council’s
election and only terminates when the municipality has cha nged or when the
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next Council is elected (categorised by the appellants as ‘the textual
interpretation’).
Legal Framework
[15] The Local Government: Municipal Structures Amendment Act 3 of 2021,
governs the election of municipal executive committee s. Section 43 of the
Structures Act provides:
‘43 Composition of executive committees
(1) (a) If the council of a municipality establishes an executive committee, it must
determine a number of councillors necessary for effective and efficient government,
provided that no more than 20 per cent of the councillors (fractions to be disregarded)
or 10 councillors, whichever is the least, are determined.
(b) An executive committee may not have less than three members.
(2) The award of seats on the executive committee to political parties or political interest
must be determined in the following manner -
(a) the number of seats won by a political party or political interest divided by the total
number of councillors determined for that municipality in terms of section 20 and
multiplied by the number of seats on the executive committee;
(b) if the calculation in paragraph (a) gives a surplus, that surplus must compete with
the other similar surpluses, and be awarded to the highest surplus;
(c) if there is an equality of the surpluses, the result must be determined by lot;
(d) the political party or political interest to which seats are allocated to on the executive
committee must, through an authorised representative, appoint their representatives to
occupy such seats;
(e) in the event of a vacancy arising on the executive committee, the political party or
political interest to which the seat was all ocated to will, through an authorised
representative, appoint a councillor to fill that vacancy; and
(f) nothing precludes a political party or political interest from nominating a councillor
from another political party or political interest to one or more of its allocated seats.’
[16] Section 45 is relevant. It provides:
[16] Section 45 is relevant. It provides:
‘45 Determination of members of executive committees
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A municipal council must determine the members of its executive committee from
among its members at a meeting that must be held-
(a) within 14 days after the council’s election;
(b) if it is a district council, within 14 days after the last of the local councils has
appointed its representatives to the district council; or
…’
[17] Section 46 provides that ‘the members of an executive committee are
determined for a term ending, subject to s 47, when the type of the municipality
has been change d…or [when] the next municipal council is declared elected’ ;
while s 47(2) provides that ‘the filling of a vacancy in an executive committee is
subject to s 43’.
[18] Section 47(1) provides:
‘(1) A member of an executive committee vacates office during a term if that member-
(a) resigns as a member of the executive committee;
(b) is removed from office as a member of the executive committee in terms of section
53; or
(c) ceases to be a councillor.’
[19] Section 160(8) of the Constitution provides the foundational framework
for participation in Municipal Councils. It provides:
‘Members of a Municipal Council are entitled to participate in its proceedings and those
of its committees in a manner that –
(a) allows parties and interests reflected within the Council to be fairly represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.’
Principles and competing arguments
[20] There are no material factual disputes in this appeal . The issue relates
solely to the legal issue of statutory interpretation. This appeal is about the
implications of a vacancy arising in an executive committee, how a coun cillor
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can be appointed to fill that vacancy, and whether a change in the composition
of a Council during its five -year term necessarily mandates a change in the
composition of the executive committee. It is noteworthy that the by -elections
occurred as a result of a vacancy which arose in the Council in November 2021.
That by-election on 2 July 2022 resulted in the DA forfeiting a seat in the Council
to the ANC. Councillor Baptie resigned with effect from 29 August 2022 ,
sometime after the by-election in ward 13.
[21] In terms of the oft -cited Endumeni judgment of th is Court , it is well
established that the correct approach to interpretation requires a unitary
approach to the language used in the relevant provision, in the light of the
ordinary rules of grammar and syntax, the words in which the provision appears ,
and the apparent purpose to which it is directed.3 Interpretation of statutes within
the prism of the Constitution does not require a distortion of the language used
so as to extract a meaning beyond that which the words can reasonably bear. It
requires that the language be interpreted as far as possible and without undue
strain so as to favour compliance with the Constitution.
[22] Beyond the general Endumeni framework, the Constitution imposes a
specific interpretative obligation on courts. Section 39(2) of the Constitution
mandates that ‘when interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights’. The Constitutional Court in
Chisuse and Others v Director -General Department of Home Affairs and
Another4 cautioned:
‘However, in seeking a constitutional interpretation in accordance with their obligations
under section 39(2) of the Constitution, courts must not lose sight of the fact that the
3 Natal Joint Municipal Pension Fund v Endumeni Muni cipality [2012] ZASCA 13; [2012] 2 All SA
262 (SCA); 2012 (4) SA 593 (SCA) para 18.
262 (SCA); 2012 (4) SA 593 (SCA) para 18.
4 Chisuse and Others v Director-General, Department of Home Affairs and Another [2020] ZACC
20; 2020 (10) BCLR 1173 (CC); 2020 (6) SA 14 (CC) para 54.
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construction given to legislation must still be reasonable. Strained readings of texts, no
matter how well-intentioned, can lead to dissonance.’
[23] The appellants ’ foundational submission is that the interpretation
proffered by the respondents and favoured by the high court did not engage with
the Constitution, its provisions on the establishment of Municipal Councils, and
its value s and principles. This, so the argument goes, resulted in an outcome
that was faithful only to the text, to the exclusion of context and purpose. They
argue that the respondents’ interpretation is inconsistent with the Constitution ,
because it allows a party that had lost electoral support to retain seats on the
Exco.
[24] Central to this contention is the appellant’s reliance on the provisions of
s160(8)(a) of the Constitution in arguing that there must be proportionality on the
executive committee of the Council.5 Reliance is also placed on s 157(2) of the
Constitution in terms of which the election of members to a municipal council
must be in accordance with national legislation which must prescribe a system
of proportional representation. It is contended that once there has been a by -
election which alters the number of seats allocated to any particular political
party, there must be an alteration in the composition of the executive committee.
This would apply, irrespective of whether there is a vacancy on the Exco or not.
The appellants conten d that the respondents ’ interpretation is inimical to fair,
proportionate, and democratic representation of political parties in the Council
and Exco and is inconsistent with s 160(8)(a), and therefore unconstitutional.
Alternatively, they contend that the said sections of the Structures Act are
inconsistent with s 160(8)(a) (fair representation ), s 160(8)(b) (consistent with
democracy), and s 195(1)(f) (accountability), to the extent that they permit a
reallocation of seats in the Exco only upon a change in the type of municipality
reallocation of seats in the Exco only upon a change in the type of municipality
or the election of a new Council.
5 As read with ss 1(d), 157(2)(b) and 195(1) and (2) of the Constitution.
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[25] In response, the respondents rely on the principle of subsidiarity 6 in
pointing out that the appellants did not launch any frontal attack o n the
constitutionality of the Structures Act or any of the relevant provisions . This, the
appellants accepted, arguing that if their interpretation w ere accepted, it would
be entirely consistent with the Constitution and thus no frontal challenge was
necessary. This challenge is not a direct constitutional attack on s 43(2) itself.
[26] Insofar as the appellants’ interpretation is based on what they term
‘proportionality’, their reliance does not avail them . Section 157(2) of the
Constitution refers to the election of members of a municipal council in
accordance with national legislation which must prescribe a system of
proportional representation . Section 160(8) which pertains to participation of
members of a municipal council in its proceedings and committees , in turn
requires fair representation, not mathematical proportionality . The Constitutional
Court in Socialist Agenda of Disposse ssed Africans v Minister of Cooperative
Governance and Traditional Affairs (SADA),7 was asked to declare s 43(2)(c) of
the Structures Act unconstitutional because it resolves tied surplus vote
calculations for Exco seats ‘by lot’ (sortition), rather than by strict proportional
calculation. The court held:
‘What is constitutionally required in terms of section 160(8) of the Constitution bears on
the participation of members of the council. They are entitled to participate in the
council’s proceedings and the council’s committees, in a manner that allows parties and
interests reflected within the council to be fairly represented, in a fashion that is
consistent with democracy. That section does not require that members of political
parties be proportionally represented on executive committees as elected to the council.
6 The principle of subsidiarity requires that, where legislation has been enacted to give effect to a
constitutional right, a court must adjudicate the matter through that legislation rather than directly
under the Constitution, unless the legislation itself is challenged as constitutionally invalid. See
Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28; 2010 (3) BCLR 239
(CC); 2010 (4) SA 1 (CC) para 73. See also My Vote Counts NPC v Speaker of the National
Assembly and Others [2015] ZACC 31; 2016 (1) SA 132 (CC) para 54.
7Socialist Agenda of Dispossessed Africans v Ministe r of Cooperative Governance and
Traditional Affairs [2025] ZACC 26; 2026 (1) BCLR 13 (CC).
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Rather it entitles members of a council to participate in proceedings of committees in a
fairly representative manner and consonant with democratic principles.’8
[27] As held in SADA, s 160(8) does not require proportional representation
in executive committees. It requires fair representation through meaningful
participation. It cannot , therefore, be unconstitutional for s 43(2)(e) to preserve
seat allocations for the term , notwithstanding mid -term changes in Council
composition. Moreover, s 43(2)(f) permits a political party to nominate a
councillor from another political party to fill its allocated seat. If this is
constitutionally permissible, then preserving original seat allocations through s
43(2)(e) is equally permissible.
[28] It can thus not be concluded, as argued by the appellants, that the
respondents’ interpretation is unconstitutional. It was common cause that the
appellants had not mounted any frontal challenge to the constitutionality of s
43(2)(e) of the Structures Act.
Analysis
[29] In analysing the relevant provisions, the starting point is the text, bearing
in mind the context and purpose of the provisions. The 2021 Structures Act
amendment introduced s 43(2) in its current form. Prior to 2021, s 43(2) was
brief and general, requiri ng only that executive committees be composed such
that parties were represented ‘in substantially the same proportion’ as in
Council. The Legislature replaced this with a formulaic approach, expressly
distinguishing between initial allocation (ss 43(2)(a)-(d)) and vacancy -filling
(s 43(2)(e)). The Legislature did not differentiate between circumstances where
a vacancy arises on resignation or removal from a committee or if someone
ceases to be a councillor - in which event there would inevitably be a by -
election. The same process would be followed in either of those eventualities.
8 Ibid para 35.
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This separation suggests legislative intent to create temporal stability in the
Exco composition.
[30] The critical phrase in the amended s 43(2)(e) is ‘the political party or
political interest to which the seat was allocate d to’. The past tense ‘was
allocated’ refers to a completed historical event , namely the initial determination
of Exco composition within 14 days of the Council’s election pursuant to ss
43(2)(a) to (d) and s 45 of the Structures Act. Had the Legislature intended a
re-calculation at the time of every vacancy, it would have used a present or
future tense formulation such as ‘to which the seat is allocated’ or ‘to which the
seat would be allocated’. Instead, it used the definite past tense , referring to the
original allocation event.
[31] This textual choice is reinforced by s 43(2)(d), which uses the present
tense passive construction ‘to which seats are allocated’ to describe the
contemporaneous appointment process following initial seat allocation. In
contrast, s 43(2)(e) uses ‘to which the seat was allocated’, because it describes
vacancy-filling that occurs after the initial allocation has been completed. The
definite article ‘the seat’ denotes a specific, identified seat that ‘was allocated’ to
a particular party at the time of the initial Exco determination. The language
clearly creates a vested entitlement: the party retains the right to fill that seat for
the duration of the Exco term, regardless of subsequent fluctuations in Council
representation. Furthermore, the word ‘appoint’ in s 43(2)(e) confirms
autonomous party authority. The political party does not nominate or propose a
candidate subject to Council approval; it exercises an independent appointment
power.
[32] Section 43 must not be read in isolation, but in the context of ss 45, 46
and 47. Section 45 creates a single definitive moment for Exco determination:
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‘within 14 days after the council is elected’ . The word ‘must’ is mandatory .9 No
provision exists for subsequent re -determination during the term , except in
limited circumstances under s 47(1) (vacancies) or s 53 (removal by Council
resolution). Section 46 provides that Exco members ‘are determined for a term
ending’ when either the type of municipality changes or the next Council is
declared elected. By-elections are not listed as a termination event. If the
Legislature intended by-elections to trigger Exco re -composition, it would have
expressly provided for this.
[33] Section 47(2) provides that the filling of a vacancy in an executive
committee is subject to s 43. The appellants contend that this requires a re-
application of the entire formula in s 43(2) (a) using current Council numbers.
This interpretation is incorrect and is not supported by the text. First, it ignores s
43(2)(e), which is the specific provision within s 43 addressing vacancy fil ling.
Second, ‘subject to’ does not carry a pre-determined legal meaning; its effect
depends on the context.10 Third, if s 47(2) required the re-application of the
formula in s 43(2) (a), then s 43(2) (e) would be redundant. Fourth, t he
appellants’ interpretation renders s 43(2)(e) meaningless.
[34] Regarding purpose, s 152 of the Constitution provides that the objects of
local government include ‘to provide democratic and accountable government
for local communities’ and ‘to ensure the provision of services to communities in
a sustainable manner’. This legislative design promotes two policy objectives.
First, municipalities, particularly h ung Councils, experience chronic instability
when minor shifts in Council seats trigger total Exco reshuffling. This paralyses
service delivery and undermines effective governance. Second, requiring Exco
9 Minister of Environment al Affairs and Tourism and Others v Pepper Bay Fishing (Pty) Ltd ;
Minister of Environmental Affairs and Tourism and Others v Smith 2004 (1) SA 308 (SCA);
Minister of Environmental Affairs and Tourism and Others v Smith 2004 (1) SA 308 (SCA);
[2003] 4 All SA 1 (SCA) para 32.
10 Pangbourne Properties Ltd v Gill & Ramsden (Pty) Ltd 1996 (1) SA 1182 (A) at 1187 I-1188A.
See also Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v SA Post Office
Ltd [2012] ZASCA 160; [2013] 1 All SA 266 (SCA); 2013 (2) SA 133 (SCA) para 19.
15
re-determination after every by -election creates administrative complexity,
potential disputes, and frequent disruption to municipal operations.
[35] General municipal elections determine overall Council composition, and
derivatively, the Exco. These occur every five years an d reflect a
comprehensive electoral mandate. Ward by-elections address specific, localised
vacancies in individual w ards. They do not constitute a municipal -wide electoral
event and do not provide a fresh mandate for the Council or Exco as a whole. It
is rational for the Legislat ure to decide that Exco composition should be stable
for the five -year term, with proportionality assessed only at the time of general
elections.
[36] I agree with the high court that t he allocation of seats on a municipal
executive committee under s 43(2) of the Structures Act is fixed for the duration
of the Council’s five-year term. It is not re-calculated whenever by-elections alter
the composition of the Council. By -elections are not a termination event. The
interpretation is consistent with the Constitution. The DA’s appointment of
Councillor Sookhraj on 9 November 2022 was therefore lawful.
[37] In my view, the appellants’ argument ignores the changes brought about
by the amendment of the Structures Act. It further ignores and strains the
wording of the text and distorts the context and purpose of the relevant
provisions. The right of political parties or political interests under the Structures
Act to appoint members to an executive committee is fixed within 14 days of the
Council’s election. Such a right would only terminate when the municipality has
changed, or the next Council is declared elected. It follows that the appeal must
fail.
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[38] I therefore make the following order:
The appeal is dismissed with costs, including the costs of two counsel.
_____________________
D S MOLEFE
JUDGE OF APPEAL
Appearances:
For the Appellants: I Topping SC and S Luthuli
Instructed by: T.L Mbili Attorneys, Durban
Honey Attorneys, Bloemfontein
For the Respondents: W Shapiro SC and D Sive
Instructed by: Minde Schapiro & Smith Inc, Bellville
Symington De Kok Attorneys, Bloemfontein.