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[2019] ZASCA 147
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Member of the Executive Council for the Department of Co-operative Governance and Traditional Affairs v Maphanga (652/2018) [2019] ZASCA 147; [2020] 1 All SA 52 (SCA); 2021 (4) SA 131 (SCA) (18 November 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 652/2018
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS APPELLANT
and
JABULANI
CROSBY
MAPHANGA RESPONDENT
Neutral
citation
:
MEC
for the Department of Co-operative Governance and Traditional Affairs
v Maphanga
(652/2018)
[2019] ZASCA 147
(15 November 2019)
Coram:
Maya P, Wallis, Mbha and Dambuza JJA and
Weiner AJA
Heard:
27 August 2019
Delivered:
18 November 2019
Summary:
Procedure –
vexatious proceedings – requirements for an order prohibiting
the institution of legal proceedings under
s 2(1)
(b)
of the Vexatious
Proceedings Act 3 of 1956 and s 173 of the Constitution –
requirements for the grant of a final interdict
restated.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Gorven J sitting as a
court of first instance):
1
The appeal is dismissed with costs.
2
The cross-appeal is struck from the roll.
JUDGMENT
Maya
P:
(Wallis, Mbha and
Dambuza JJA and Weiner AJA concurring)
[1]
This is an appeal against a decision of the KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Gorven J). The court
a quo
dismissed the bulk of relief sought in an application launched by the
Member of the Executive Council for the Department
of Co-operative
Governance and Traditional Affairs, KwaZulu-Natal (MEC), against the
respondent, Mr Jabulani Crosby Maphanga. The
main relief was sought
under s 2(1)
(b)
of the Vexatious Proceedings Act 3 of 1956 (the Act) alternatively,
the common law. The appeal is brought with the leave
of the
court a quo. Mr Maphanga also filed a cross-appeal without first
seeking leave therefor.
[2]
The matter has a long and unhappy history for Mr Maphanga, which
stretches back to the dawn of democracy. This appeal is the
latest
step in his attempts to resolve a dispute which started between him
and his erstwhile employer, the appellant’s department,
in
1998. Before 1994, Mr Maphanga was employed by the Natal Provincial
Administration. Following the amalgamation and rationalisation
process in terms of which the provincial administrations of the
former TBVC homelands were incorporated into the structures of
the
new democratic government, Mr Maphanga was absorbed into the
Department of Local Government and Housing. According to him,
the
problems began at that point as he was not afforded a promotion to
which he was entitled and suffered ill-treatment at the
hands of the
Department.
[3]
His foray into litigation started with a claim, which he brought in
the Labour Court, seeking promotion or appointment to certain
positions within the Department. The Labour Court dismissed the claim
in November 1998 on the basis that it had no jurisdiction
as the
dispute predated the empowering legislation, the Labour Relations Act
66 of 1995 (the LRA). His subsequent action in the
Industrial Court,
which was finalised in August 1999, was unsuccessful. That tribunal
took the view that the claim should have
been pursued in the civil
courts. Thereafter Mr Maphanga lodged complaints with various bodies,
including the Public Protector,
the South African Human Rights
Commission and the City Press newspaper. He also complained in
writing to a Member of Parliament
and the Parliamentary Portfolio
Committee on Justice. All these efforts, which ended in 2004, came to
naught. In the midst of these
processes, in June 2000, he accepted a
voluntary severance package and thus terminated his employment with
the Department.
[4]
After a long lull, in May 2013, he referred an unfair labour practice
dispute to the General Public Service Sectoral Bargaining
Council
(the Bargaining Council) in respect of the Department’s failure
to promote him. These proceedings also failed as
the Council refused
to condone the 12-year lapse since he left the Department’s
employ. His attempt to have this decision
reviewed by the Labour
Court was dismissed in November 2014. And so was the application for
leave to appeal and his petition to
the Labour Appeal Court a year
later, after he failed in the Labour Court. In September 2016 he
served application papers on the
Department in which he sought leave
to appeal from the Constitutional Court. He has, however, not pursued
those proceedings.
[5]
In June 2016, Mr Maphanga delivered a notice of his intention to
institute legal proceedings against the MEC in terms of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002. Thereafter, he launched an action in the KwaZulu-Natal
Division of the High Court, Durban. In that matter, he sought damages
allegedly arising from the wrongful and unlawful sale in
execution of
his home by the Department, to settle his taxed costs bill of
R41 174, 83, arising from his losses in the Labour
Courts.
[1]
(We
were informed at the hearing of the appeal that the high court had
since dismissed the claim with costs.) He further referred
a
grievance to a ‘complaints hotline’ assigned to the State
President.
[6]
Upon receipt of Mr Maphanga’s notice to sue, the MEC approached
the court a quo seeking the following relief:
'1. [T]hat
Respondent may not institute legal proceedings, in any high court or
inferior court, against the applicant, her Department
or any employee
or former employee of the Public Service, unless Respondent first
obtains, pursuant to an application which must
be served on
Applicant, leave from such court, which leave:
1.1 shall not be
granted unless such court is satisfied that such proceedings are not
an abuse of the process of such court and
that there is
prima
facie
ground for such proceedings.
1.2 may be granted
on conditions, including a condition that Respondent may not
institute any such proceedings, unless he first
pays all moneys owing
in respect of all and any costs orders that have been granted in
favour of Applicant against Respondent.
2. Respondent may
not institute any proceedings in any court without disclosing to such
court a copy of this order.
3. It is declared
that all and any claims that Respondent may have had arising from his
employment, prior to 30 June 2000, in the
public service:
3.1. have been
finally determined in terms of the applicable labour law; and/or
3.2. have become
prescribed in terms of the Prescription Act No. 68 of I969.
4. Respondent is
interdicted from defaming, insulting or harassing Applicant and all
employees in her Department in relation to
any claims and disputes
arising from Respondent's said employment in the public service.
5. In particular,
but without derogating from paragraph 4 above, Respondent is
interdicted from referring to any forum or institution
any complaint
relating to his said employment in the public service, unless he
first obtains leave from this court.
6. Respondent is
ordered to pay the costs of this application on a scale as between
attorney and client.'
[7]
The MEC also brought an urgent interlocutory application and obtained
interim relief in respect of prayers 1 to 4 of this Notice
of Motion.
She also sought the stay of the proceedings in the high court and the
dispute referral to the Bargaining Council pending
the finalisation
of the main application. At the conclusion of the proceedings, in
which the MEC sought to have the interim relief
made final, the court
a quo granted only the interdict sought in prayer 4, but only
partially in respect of the defamation claim,
and dismissed the rest
of the application. The court a quo was not satisfied that the MEC
met the requirements of s 2(1)
(b)
of the Act or the
common law as she claimed.
[8]
Mr Maphanga, who represented himself in the appeal and in all the
litigation and disputes between the parties since the beginning,
did
not appear before us due to illness. But he indicated that the matter
could proceed in his absence and also filed extensive
and useful
heads of argument which we considered sufficient for purposes of the
hearing in the view we take of the matter. The
appeal therefore
proceeded in his absence.
[9]
The MEC initially characterised the main issues regarding the relief
sought in paragraphs 1, 2 and 3 of the Notice of Motion
as follows:
whether (a) the disputes and complaints referred to extra-curial and
quasi-judicial forums constituted legal proceedings
for the purposes
of s 2(1)
(b)
of
the Act; (b) the inherent powers and discretion of a court to grant a
restraint order in terms of s 173 of the Constitution require
a
history of persistent vexatious legal proceedings that are ‘obviously
unsustainable’; and (c) the respondent’s
claims in
relation to his employment in the Department have prescribed. The
gist of her argument was that the court a quo (a) overlooked,
for
purposes of s 2(1)
(b)
,
that by March 2017 Mr Maphanga had instituted five legal proceedings,
including the disputes referred to the Bargaining Council,
against
the MEC and (b) misconstrued the powers and discretion conferred on
courts by the common law as codified in s 173 of the
Constitution to
address abuses of court process.
[10]
During the hearing of the appeal, however, reliance on s 2(1)
(b)
of
the Act was abandoned and the case was solely based on the ‘court’s
inherent jurisdiction to determine its own process
under common law
as codified in s 173 of the Constitution’. Reliance was placed
on this court’s judgment in
Corderoy
v Union Government (Minister of Finance)
,
[2]
which
it was contended the court a quo misunderstood. I must point out at
the outset that in the light of the view I have of the
matter, the
MEC could indeed not rely on s 2(1)
(b)
for
reasons which I consider it necessary to set out in the circumstances
of this case. But that did not entitle her to directly
invoke the
constitutional provisions to enforce her rights without first relying
on the Act,
[3]
which, as I explain later in the judgment, was enacted to address the
common law limits regarding the court’s jurisdiction
to grant
curtailment orders against vexatious proceedings.
[11]
Section 2(1)
(b)
of
the Act reads:
‘
If, on an
application made by any person against whom legal proceedings have
been instituted by any other person or who has reason
to believe that
the institution of legal proceedings against him is contemplated by
any other person, the court is satisfied that
the said person has
persistently and without any reasonable ground instituted legal
proceedings in any court or in any inferior
court, whether against
the same person or against different persons, the court may, after
hearing that other person or giving him
an opportunity of being
heard, order that no legal proceedings shall be instituted by him
against any person in any court or any
inferior court without the
leave of that court, or any judge thereof, or that inferior court, as
the case may be, and such leave
shall not be granted unless the court
or Judge or the inferior court, as the case may be, is satisfied that
the proceedings are
not an abuse of the process of the court and that
there is prima facie ground for the proceedings.’
[12]
It is clear from the ordinary wording of this provision that it
brings within its purview actual or prospective litigation
[4]
brought or threatened by a person who has persistently, and without
any reasonable ground, instituted legal proceedings in any
court or
inferior court, whether against the same or any other person or
persons. The purpose of the provision is ‘to put
a stop to
persistent and ungrounded institution of legal proceedings …
in the Courts’ ie to ‘put a stop to the
making of
unjustified claims against another or others, to be judged or decided
by the Courts’.
[5]
So, an applicant who seeks the protection of the provisions must
establish, first, that the respondent has in the past instituted
legal proceedings in a court against her, or any other person or
persons persistently and without reasonable cause. Secondly, she
must
prove that further litigation has been brought against her or is
reasonably contemplated.
[13]
The question which arises is whether the procedures employed by Mr
Maphanga, flowing from his dissatisfaction with the manner
in which
the Department treated him, constituted legal proceedings instituted
in a court within the meaning of s 2(1)
(b)
of the Act. If
they are such legal proceedings it must then be determined whether
they were persistent and without any reasonable
ground.
[14]
‘Court’ is defined in s 1 of the Act as ‘any
provincial or local division of the Supreme Court of South Africa’.
These definitions and the hierarchy of the South African courts
derive from the Supreme Court Act 59 of 1959 which has since been
repealed by the
Superior Courts Act 10 of 2013
. In terms of the
repealed statute, ‘inferior court’ meant ‘any court
(other than a court of a division) which
is required to keep a record
of its proceedings, and includes a magistrate or other officer
holding a preparatory examination into
an alleged offence’. The
Labour Court was not included in that definition of ‘court’
‘and inferior court’
as set out in the repealed Act.
Neither was the Industrial Court, which this Court held, in
South
African Technical Officials’ Association v President of the
Industrial Court & others,
was neither a Division of the Supreme Court, as it is not mentioned
in the First Schedule of the Supreme Court Act, nor an inferior
court, as it is not required to keep record of its proceedings, but
an administrative body which did not sit as a court of law
at all,
even when it discharged functions of a judicial nature.
[6]
[15]
The appellations of the courts have, however, changed with the advent
of the
Superior Courts Act. Thus
the ‘Supreme Court of South
Africa’ is now the ‘High Court of South Africa’ and
a ‘Superior Court’
means ‘the Constitutional Court,
the
Supreme
Court of Appeal, the High Court and any court of a status similar to
the High Court’, such as the Labour Court. The
‘inferior
court’ has become a ‘lower court’, which is defined
as ‘a court of a regional division
and a magistrate’s
court established in terms of the
Magistrates’ Courts Act, 32
of 1944
’.
[7]
[16]
The changes to the court designations flow from the Constitution
which describes the South African judicial system as follows:
‘
166 Judicial
system
The courts are-
(a)
the Constitutional Court;
(b)
the Supreme Court of Appeal;
(c) the
High Court of South Africa, and any high court of appeal that may be
established by an Act of Parliament to hear appeals
from any court of
a status similar to the High Court of South Africa;
(d) the
Magistrates’ Courts; and
(e) any
other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to
either the
High Court of South Africa or the Magistrates’
Courts
.’(Emphasis
added)
However,
the Act, which is 63 years old, has not kept abreast with these
developments. Thus, its definition of ‘court’
remains
unchanged and still refers to the ‘Supreme Court of South
Africa’ which no longer exists. This anomaly requires
the
definitions of ‘court’ in the Act and the
Superior Courts
Act, which
are
in
pari materia
in this regard, to be construed in manner so as to be consonant.
[8]
[17]
Evidently, Mr Maphanga’s complaints to the Human Rights
Commission, the Public Protector, the Member of Parliament, the
City
Press newspaper and the Parliamentary Portfolio Committee on Justice
were not legal proceedings and the referrals to these
bodies did not
constitute the institution of legal proceedings in a court. These
forums and the Member of Parliament do not fit
in any of the above
definitions and are not ‘courts’ as envisaged by the
relevant statutes; old and new.
[18]
It must then be determined whether the dispute which was lodged with
the Bargaining Council under the LRA was ‘legal
proceedings’
for the purposes of s 2(1)(b) of the Act ie proceedings before a
court or inferior court. Section 34 of the
Constitution entrenches
the right of access to courts by granting the right to have any
dispute that can be resolved by the application
of law in a fair
public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum. Do such
bargaining
councils constitute a court or inferior court for the purposes of the
Act? The answer is No. While they are independent
and impartial
tribunals for the purposes of s 34 and resolve labour disputes in a
manner similar to courts,
[9]
there is clear authority that they are not courts. The Constitutional
Court in
Sidumo
,
[10]
held that the Commission for Conciliation, Mediation and Arbitration
was an administrative tribunal, not a court. In
Myathaza
,
the same point was made about bargaining councils.
[11]
[19]
It follows that the disputes lodged by Mr Maphanga in the Bargaining
Council enjoy no higher status than those referred to
the other
extra-curial bodies and were not legal proceedings instituted in a
court or lower court. That leaves the review and appeal
proceedings
which he launched in the Labour Courts in 2014, after the enactment
of the
Superior Courts Act, and
the damages claim concerning the
alleged sale in execution of his house, which he brought in the high
court against the MEC. I
include the Labour Court because I accept,
for present purposes, that as a matter of construction of the
definition of ‘court’
in the Act, the fact that the
Labour Court has a status equivalent to a high court brings it within
the Act’s ambit. So the
first requirement of these provisions
is met and it remains to determine whether the proceedings were
persistent and without reasonable
cause.
[20]
On the question whether there have been persistent proceedings, I
agree with the court a quo’s approach in interpreting
the
section, and in this particular instance,
the
word ‘persistent’. Due account must be given to the
language, context and purpose of the legislation.
[12]
Although constitutionally valid,
[13]
the legislation must nonetheless be accorded a narrow construction as
it interferes with a protected right and restricts the right
of
access to courts, to avoid undue limitation of the right.
[14]
The word ‘persistent’ has a variety of meanings which
include ‘continuous, constantly repeated, recurring’
and
‘determined, dogged, steadfast, tenacious’.
[15]
The meaning envisaged in the present context must be a ‘recurring’
or ‘constantly repeated or continuous’
institution of
legal proceedings in a court.
[21]
As the court a quo rightly found, there has been no multiplicity of
proceedings here and the fact that Mr Maphanga has not
had legal
representation throughout the litigation must bear some relevance.
When the MEC launched these proceedings there were
only review and
appeal proceedings in the Labour Courts following the refusal of
condonation by the Bargaining Council mentioned
above. Whilst all
these proceedings concerned the promotion dispute, it is clear that
they multiplied merely because Mr Maphanga,
who represented himself,
failed to identify the correct forum in which to vindicate his claim.
The proceedings in the high court
were based on an entirely different
cause of action as already stated. Similarly the dispute pending in
the Bargaining Council,
which concerns severance pay. Lastly, the
proceedings that precipitated the present application were
proceedings arising out of
an alleged sale in execution of Maphanga’s
house, which was not an attempt to re-litigate his employment dispute
over the
failure to promote him. It cannot, by any stretch of the
imagination, be found in these circumstances that there was a
persistent
or repetitive institution of legal proceedings in this
matter.
[22]
Neither can it be found that Maphanga approached the courts without
any reasonable grounds. As I have pointed out, none of
the
proceedings in the Labour Courts (and the Industrial Court) were
resolved on their merits. An unequivocal finding that the
claims had
no reasonable basis cannot be made on the available record. This is
more so considering the strong indications from
Mr Maphanga’s
uncontested allegations that he may indeed not have been treated
fairly and properly during the rationalisation
process of the civil
service and his absorption into the Department.
[23]
The same holds true for the damages claim launched in the high court.
It is not possible to make a conclusive finding that
it was
instituted without any reasonable ground. This is so because the MEC,
who bore an onus to prove otherwise, could not deny
that the alleged
sale in execution may have occurred before she assumed office. She
merely cast doubt on Mr Maphanga’s version
based on his
allegations about suspicious information that he claimed to have
uncovered. That information did not detract from
his core contention
that his house was unlawfully sold in execution. To my mind, the fact
that the claim was subsequently dismissed
by the high court does not
change the situation as one does not know the basis on which it was
dismissed and whether or not Mr
Maphanga will take it further on
appeal. The MEC therefore failed to establish a right to the relief
sought in paragraphs 1 and
2 of her Notice of Motion under s 2(1)
(b)
of the Act.
[24]
I turn to deal with the MEC’s mainstay argument, that she is
entitled to the relief set out in paragraphs 1 and 2 of
her Notice of
Motion under the common law as codified in s 173 of the Constitution.
In terms of the latter
provisions, ‘[t]he Constitutional Court, the Supreme Court of
Appeal and the High Court of South Africa
each has the inherent power
to protect and regulate their own process, and to develop the common
law, taking into account the interests
of justice.'
[25]
It was firmly established in the South African common law, long
before the advent of the Constitution, that the Supreme Court
had the
inherent power to regulate its own process and stop frivolous and
vexatious proceedings before it.
[16]
This power related solely to proceedings in the Supreme Court and not
to proceedings in the inferior courts or other courts or
tribunals.
The following principles crystallised over the ages.
It
had to be shown that the respondent had ‘habitually and
persistently instituted vexatious legal proceedings without
reasonable
grounds.
[17]
Legal
proceedings were vexatious and an abuse of the process of court if
they were obviously unsustainable as a certainty and not
merely on a
preponderance of probability.
[18]
I
must point out at this juncture that this definition applied to all
litigation that amounted to an abuse of court process. The
attempt by
the MEC’s counsel to distinguish the cases from which the
principle derives on their facts was, therefore, mistaken.
[26]
A court must, in granting this type of relief, proceed very
cautiously and only in a clear case, make a general order prohibiting
proceedings between the same parties on the same cause of action and
in respect of the same subject matter where there has been
repeated
and persistent litigation, and craft such order to meet only the
immediate requirements of the particular case.
[19]
The
stringent onus on the applicant who seeks the relief and the need for
the court’s caution in exercising this power obviously
arise
from the fact that the relief curtails a litigant’s access to
court.
[20]
[27]
The Act has neither repealed nor changed these common law principles.
It is important to note in this regard that, as foreshadowed
above,
the Act was promulgated in direct response to the decision in the
Anastassiades
case, which was cited with approval by the Constitutional Court in
Beinash
.
This decision illustrated
the
inadequacies of the common law
,
in particular that the South African courts had no power under the
common law, to impose a general prohibition that would curtail
the
plaintiff’s right to litigate beyond the immediate requirements
and the parties in the particular case. The contention
made on the
MEC’s behalf that
Corderoy
‘did not attempt
to define the limits of the kind of orders that can be granted in
terms of a court’s inherent powers’
or ‘state that
other forms of ‘persistent, vexatious conduct such as are
present in this case [which] resulted in extra
curial as opposed to
judicial proceedings would’ be excluded, was wrong. The court a
quo correctly comprehended and applied
the principles set out in the
matter.
[28]
The reasons I gave earlier for the finding that the MEC failed to
show that Mr Maphanga persistently instituted legal proceedings
against the Department and the MEC without reasonable grounds under s
2(1)
(b)
of
the Act apply with equal force here and need not be repeated. Bearing
in mind that the provisions relied upon and
Corderoy
cover only proceedings
in the high court, Mr Maphanga clearly did not habitually and
persistently institute legal proceedings against
the MEC and the
Department. Neither was it shown as a certainty that any of his
claims were ‘obviously unsustainable’
in the manner
envisaged in
African
Farms.
Accordingly, no
case was made out for the relief sought in paragraphs 1 and 2 of the
Notice of Motion under the common law too.
[29]
It remains to deal with the rest of the relief which the court a quo
refused to grant. As indicated above, the MEC also sought
far
reaching declaratory relief in paragraph 3 of her Notice of Motion.
She asked for an order that all claims arising from Mr
Maphanga’s
employment in the public service prior to 30 June 2000 have been
finally determined and have prescribed. It was
argued that he had
exhausted all his legal options and that it was inconceivable that he
could still have a viable claim that has
not prescribed or became
time-barred.
[30]
This submission is beset by a number of challenges. The declaratory
order would relate to claims that have not been identified.
It is
impossible to say in advance that such claims have prescribed. It is
equally impossible to decide whether they have been
resolved in terms
of applicable labour law as we do not know what they are. Another
insurmountable challenge for the MEC in this
regard is that the high
court and this Court have no jurisdiction to adjudicate claims
brought under the LRA. Needless to say,
this Court consequently does
not have the power to make the determination requested by the MEC.
[31]
There is no controversy regarding the interdictory relief which the
court a quo granted in accordance with paragraphs 4 of
the Notice of
Motion. This is so because the cross-appeal which Mr Maphanga lodged
was incurably flawed. As mentioned at the outset,
he did not seek
leave to bring the proceedings. Uniform rule 16(1)
(a)
requires
a substantive application in every matter where leave to appeal is
prescribed by law. The rule applies mutatis mutandis
to
cross-appeals. Thus, a respondent who wishes to cross-appeal must
obtain leave to cross-appeal.
[21]
Mr Maphanga’s cross-appeal therefore has no basis and cannot be
entertained. This leaves the interdictory relief intact.
[32]
Counsel for the MEC did not press us for the interdict sought in
paragraph 5 of the Notice of Motion, to bar Mr Maphanga from
referring any complaint relating to his employment in the public
service to any forum or institution. This was a prudent stance
as it
was not shown how his complaint to the Presidential hotline was
injurious or damaging and amounted to harassment or defamation
as
alleged. No case was made out for this relief and it was properly
refused.
[33]
The prayer for the confirmation of the rule nisi granted on 17 March
2018, pending the finalisation of the main application,
which
included the final stay of the high court and the dispute before the
Bargaining Council, must also fail in light of the dismissal
of the
proceedings upon which it was predicated. The requisites for a final
interdict – a clear right, an injury actually
committed or
reasonably apprehended and an absence of similar or adequate
protection by any other ordinary remedy – were
not
established.
[22]
The prayer simply had no foundation.
[34]
In the result, the following order is made:
1 The appeal is
dismissed with costs.
2 The cross-appeal
is struck from the roll.
_________________________
MM
MAYA
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES:
APPELLANTS:
DP Crampton
Instructed
by:
PKX
Attorney, Pietermaritzburg
Lovius
Block Attorneys, Bloemfontein
RESPONDENT:
No appearance
1
The MEC denied that
the Department was involved in the alleged sale in execution. She
relied on the seeming lack of evidence in
this regard and Mr
Maphanga’s allegations that his investigations revealed that
the property was not sold in execution but
was inherited by a Mr
Raphael Maphanga and mysteriously transferred to his mortgagee,
Ithala Bank.
[2]
Corderoy
v Union Government (Minister of Finance)
1918
AD 512.
[3]
See for
example,
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party & others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
; para 62;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism & others
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
2004 (7) BCLR 687
(CC); paras 21-26;
My
Vote Counts NPC v Speaker of the National Assembly & others
[2015] ZACC 31
;
2016 (1) SA 132
(CC) para 53.
[4]
See
ABSA
Bank Ltd v Dlamini
[2007] ZAGPHC 241
;
2008 (2) SA 262
(T) para 24.
[5]
S v
Sitebe
1965
(2) SA 908
(N) at 911A-B;
Beinash
& another v Ernst & Young & others
1999
(2) SA 116
(CC) para 15.
[6]
South
African Technical Officials’ Association v President of the
Industrial Court & others 1
985
(1) 597 (A); cited in
Sidumo
& another v Rustenberg Platinum Mines Ltd & others
2008
(2) SA 24
(CC)
para
82.
[7]
In terms of
s 74
of the
Magistrates’ Courts Amendment Act 120 of 1993
.
[8]
Petz
Products v Commercial Electrical Contractors
1990
(4) SA 196
at 204H-I;
R
v Maseti
1958 (4) SA 52
(E) at 53H;
Assign
Services (Pty) Ltd v National Union of Metal Workers of South Africa
& others
2018
(5) SA 323
(CC) para 107.
[9]
Myathaza
v Johannesburg Metropolitan Bus Services (Soc) Ltd t/a Metrobus &
others
[2016]
ZACC 49
;
2017 (4) BCLR 473
(CC);
2018 (1) SA 38
(CC) para
23;
Food
and Allied Workers’ Union obo Gaoshubelwe v Pieman’s
Pantry (Pty) Ltd
[2018]
ZACC 7
;
2018 (5) BCLR 527
(CC);
[2018] 6 BLLR 531
(CC) para 198.
[10]
Ibid,
fn 6 paras 84-88.
[11]
Ibid, fn 7.
[12]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012
(4) SA 593
(SCA) para 18.
[13]
Beinash
,
fn 5, paras 17-21.
[14]
Regering
van die Republiek van Suid-Afrika v Disotto en andere
[1997] ZASCA 83
;
1998
(1) SA 728
(SCA) at 735D-E.
[15]
‘
Shorter
Oxford English Dictionary’
6 ed Vol 2.
[16]
Western
Assurance Co v Caldwell’s Trustee
1918
AD 262
at 271;
Corderoy
v Union Government (Minister of Finance)
1918 AD 512
;
In
re Anastassiades
1955 (2) SA 220
(W);
African
Farms and Townships Ltd v Cape Town
Municipality
1963 (2) SA 555
(A) at 565D-E.
[17]
Corderoy
,
ibid, at 519.
[18]
African
Farms
,
ibid.
17
Corderoy
,
ibid.
18
Corderoy
at 519;
Western
Assurance Co
,
at 273;
Fisheries
Development Corporation of SA Ltd v AWF Investments (Pty) Ltd &
others
1979 (3) SA 1331
(W);
s
34 of the Constitution.
[21]
South
African Railways & Harbours v Sceuble
1976
(3) SA 791
(A) at 794A-D;
National
Union of Mineworkers of South Africa & others v Henred Fruehauf
Trailers (Pty) Ltd
[1994] ZASCA 153
;
1995
(4)
SA 456
(A) at 475E-G.
[22]
Setlogelo
v Setlogelo
1914
AD 221
at 227.