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[2019] ZASCA 161
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Body Corporate of Marine Sands v Extra Dimensions 121 (Pty) Ltd (1082/2018) [2019] ZASCA 161; 2020 (2) SA 61 (SCA) (28 November 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1082/2018
In the matter between:
BODY CORPORATE OF
MARINE SANDS
APPELLANT
and
EXTRA DIMENSIONS 121
(PTY) LTD
FIRST RESPONDENT
REGISTRAR OF DEEDS,
PIETERMARITZBURG
SECOND RESPONDENT
Neutral
citation:
Body
Corporate
of
Marine
Sands
v
Extra
Dimensions
121
(Pty)
Ltd
(1082/2018)
[2019] ZASCA 161
(28 November 2019)
Bench:
Ponnan and Mocumie JJA and Tsoka, Koen and Weiner AJJA
Heard:
15 November 2019
Delivered:
28 November 2019
Summary:
Statute – interpretation of the expression
‘adversely affected’ in
s 32(4)
of the
Sectional Titles
Act 95 of 1986
.
ORDER
On appeal from
:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Steyn J with Van Zyl and Ploos van
Amstel JJ concurring, sitting as
court of appeal):
The
appeal is dismissed with costs.
JUDGMENT
Ponnan JA (Mocumie JA and Tsoka, Koen and Weiner AJA concurring):
[1]
This is an application for special leave to appeal and, if granted,
the
determination of the appeal itself. The two judges who considered
the application referred it for oral argument in terms of the
provisions of
s 17(2)(d)
of the
Superior Courts Act 10 of 2013
.
Different considerations come into play when considering an
application for leave to appeal as compared to adjudicating the
appeal
itself. As to the former, it is for the applicant to convince
the court that it has a reasonable prospect of success on appeal.
Success in an application for leave to appeal does not necessarily
lead to success in the appeal. Because the success of the application
for leave to appeal depends,
inter alia
, on the prospects of
eventual success of the appeal itself, the argument on the
application would, to a large extent, have to address
the merits of
the appeal. Here, inasmuch as the appeal raises a point of statutory
interpretation, the application had to succeed.
On that score, the
high court has spoken and, absent an appeal, those judgments will
continue to apply. Future litigants are entitled
to the benefit of
this court’s view on the question. In the circumstances we
considered it appropriate, at the hearing of
the application, to
grant leave to the applicant, who will henceforth be referred to as
‘the appellant’, to proceed
with the appeal. That opens
the door to a full consideration of the merits of the appeal itself.
[2]
The appellant, the Body Corporate of Marine Sands, is a body
corporate
duly constituted in terms of s 36 of the Sectional Titles
Act 95 of 1986 (the STA) for a sectional scheme known as Marine
Sands,
a 19-storey building in a prime beachfront location on
Durban’s Marine Parade. The scheme is partly residential and
partly
non-residential. The ground and first floors consist of
non-residential sections, the basement is utilised for parking and
storage
and the remainder of the building comprises residential
sections.
[3]
When the scheme was registered on 24 June 1993, the developer made a
determination
in terms of s 32(2) of the STA that the levies payable
by the non-residential sections would differ from those of the
residential
sections. The determination had the effect that the
non-residential sections, which represented 11.68% of the floor space
of all
the sections in the building, would be liable for 6% of the
aggregate levies. In 1997, by carving out 133 m² of the common
property on the ground and first floors, the scheme was extended by
the addition of a new non-residential section. This necessitated
an
amendment to the sectional plan and an adjustment of the
participation quota of each of the non-residential sections.
[4]
Since 18 December 2002, the first respondent, Extra Dimensions 121
(Pty)
Ltd (the respondent), had owned six of the nine non-residential
units in the scheme. Prior to the extension of the scheme, the
participation quota of those units was 5,4979%. Thereafter it reduced
to 4,8409%. According to the respondent, for some time after
it had
acquired the six non-residential units, which it used for business
purposes, it had been overcharged because the managing
agent of the
scheme had incorrectly assessed the levies due. Eventually, in June
2012 the managing agent commenced charging levies
in accordance with
the participation quota percentage of each section. The result was
that the monthly basic levy of the respondent
reduced from R16 201,36
in May 2012 to R9 134,15 in June of that year. That, obtained until
the end of 2012.
[5]
In January 2013 the appellant commenced charging the respondent a
basic
monthly levy of R19 878,17. It did so on the basis of a special
resolution that was adopted at the annual general meeting of the
members of the body corporate on 23 August 2012. The effect of the
adoption of the resolution and the subsequent amendment of the
conduct rules, was that the respondent began to be charged levies
amounting to 10,5349% of the total levies for the scheme, whereas
its
total registered participation quota was unchanged at 4,8409%. This
had the effect that the respondent’s levies more
than doubled
in January 2013 to R19 879,17 from R9 134,15 the previous month.
[6]
Consequently, on 31 July 2014 the respondent applied to the
KwaZulu-Natal
Division of the High Court, Durban, for an order in the
following terms:
‘
1.
THAT
the special
resolution passed by the First Respondent on 23 August 2012 resolving
to modify the members’ liability for levy
contributions of the
Marine Sands Sectional Scheme and to amend that scheme’s
conduct rules accordingly be and is hereby
declared to be
invalid.
2.
THAT
the following
amendments to the conduct rules of the scheme, pursuant to the
resolution referred to paragraph 1 of this order, be
and are hereby
declared to be invalid and of no force and effect:
(a)
Conduct Rule 26 in its entirety;
and
(b)
Annexure B to the amended
conduct rules
. . . .’
The Registrar of Deeds, who took no part in the proceedings, was
cited as the second respondent.
[7] In support
of the application, the sole director of the respondent, who
deposed
to the founding affidavit, stated:
‘
38.
In terms of section 32(4) of the Act the basis for the liability of
owners for levy contributions cannot be modified without
the written
consent of any owner who is adversely affected by such modification.
.
. .
40.
As the effect of the first
respondent’s modification of levy contributions is to increase
the applicant’s levies by
more than 100%, I submit that the
applicant is “adversely affected” by such modification,
within the meaning of the
first proviso to Section 32(4) of the Act.
Legal argument will be addressed at the hearing in this regard.
41.
The Applicant did not give its
written consent to the special resolution to modify the liability for
levy contributions or to amend
the conduct rules in this regard. In
fact it was not even asked to give such consent, and my
representative at the annual general
meeting objected, which
objection was minuted. . . .
42.
I therefore submit that the
special resolution passed on 23 August 2012 modifying the levy
contributions and amending the conduct
rules of the scheme in this
regard, is invalid for want of compliance with Section 32(4) of the
Act, and consequently is of no
force or effect.’
[8] The
application failed before Masipa AJ, who dismissed it with costs.
With the leave of this court, the respondent appealed to the Full
Court of that Division, Pietermaritzburg. The judgment of the
full
court
[1]
records that after the hearing of the appeal the parties were
directed to file supplementary heads of argument to address certain
issues that had been identified by the court.
[2]
Although both parties complied with the directive of the full court,
the appellant did assert that it was impermissible for a court,
particularly one sitting on appeal, to
mero motu
identify new
issues not foreshadowed on the papers or addressed by the parties
during the hearing of the appeal.
[9] The full
court (per Steyn J, Van Zyl and Ploos Van Amstel JJ concurring),
however, took the view that:
‘
The
central issue on which this court was tasked to decide is whether the
resolution passed modifying the owner’s liability
for levies,
was
ultra vires
the
Act and therefore void. This issue is not a new issue that was
raised, it was the appellant’s case throughout the proceedings
that the resolution is invalid. The invitation to both parties to
consider the distinction between conduct rules and management
rules
was based on the established facts on record and since both parties
had been given an opportunity to file supplementary heads,
there
could not be any unfairness in the procedure adopted.’
[3]
It concluded:
‘
Accordingly, the “conduct
rule” introduced by the body corporate which modified the
liability of the sectional owners
to contribute towards the levies of
the scheme is not in accordance with the statutory powers of the body
corporate in terms of
the Act. It is in conflict with s 37(1)(
d
)
and accordingly invalid. In light of the conclusion reached it is not
necessary for this court to determine whether the resolution
passed
affected the appellant adversely.’
[4]
[10] The full court consequently
upheld the appeal, set aside the order of Masipa AJ and substituted
it with the order prayed in the notice of motion. The appellant
thereupon petitioned this court for special leave to appeal the
judgment of the full court. It is that application that was referred
by the two judges who considered it, to this court for argument
pursuant to
s 17(2)(d)
of the
Superior Courts Act. The
appellant
persists in its contention that the full court ought to have
restricted itself, as the court of first instance had done,
to the
issue foreshadowed on the papers, namely, whether the resolution
‘adversely affected’ the respondent as contemplated
by
s
32(4)
of the STA. For the present, I shall confine myself to a
consideration of that issue, which, in my view, is dispositive of the
appeal against the appellant. In so doing, I express no view on the
correctness of the approach or the reasoning of the full court.
Those
questions, which need not now detain me, remain for another day.
[11]
The resolution of the appellant was made in terms of
s 32(4)
of the
STA, which provides:
‘
Subject
to the provisions of
section 37(1)(
b
),
the developer may, when submitting an application for the opening of
a sectional title register, or the members of the body corporate
may
by special resolution, make rules under
section 35
by which a
different value is attached to the vote of the owner of any section,
or the liability of the owner of any section to
make contributions
for the purposes of
section 37(1)(
a
)
or 47(1) is modified: Provided that where an owner is adversely
affected by such a decision of the body corporate, his written
consent must be obtained: Provided further that no such change may be
made by a special resolution of the body corporate until
such time as
there are owners, other than the developer, of at least 30 per cent
of the units in the scheme: Provided further that,
in the case where
the developer alienates a unit before submitting an application for
the opening of a sectional title register
no exercise of power to
make a change conferred on the developer by this subsection shall be
valid unless the intended change is
disclosed in the deed of
alienation in question’.
[12] According to the first
proviso, where an owner is adversely affected by such a decision,
the
written consent of such owner must be obtained. It is common cause
that the respondent did not consent to the resolution. If
anything,
it opposed it. Masipa J held that the fact that the resolution
increased the respondent’s liability for levies
did not mean
that it was adversely affected thereby. The reasoning of the learned
judge appears to have been: (i) no person would
consent to paying
more, so the proviso cannot be interpreted to require
this; (ii) the predecessor
to the
current legislation, the 1971
Sectional
Titles Act, required
a unanimous resolution, which was difficult if
not impossible to achieve, and the change in the new STA must have
been intended
to address this and (iii) the resolution was passed to
remedy an inequitable levy dispensation, and the respondent was not
adversely
affected as it now pays for the benefit it receives.
[13]
In concluding that the respondent was not ‘adversely affected’
by the resolution,
Masipa AJ followed the decision of Theron J in
Algar v Body Corporate of Thistledown
(
Thistledown
),
[5]
to this effect:
‘
Section
24(3) of the Sectional Titles Act, 66 of 1971 required a unanimous
resolution of the members of a body corporate in order
to vary
members’ voting rights and the liability of members to make
contributions to the levy fund. Thus a member of a body
corporate
could act capriciously and without reason in blocking a change in the
basis upon which levies were calculated. Section
32(4) of the 1986
Act reduced the requirement to that of a special resolution which
required a 75% majority, and the consent of
an owner who was
adversely affected by the
resolution.
In
my view, the applicant has adopted a narrow construction of the
section. He has reduced its interpretation to the proposition
that
simply because he must pay more in the way of a monthly
levy, he is
ipso facto
a person who is adversely affected by
the resolution. If this was the interpretation to be placed on the
words “adversely
affected” it is difficult to envisage
any special resolution changing the basis upon which levies were
calculated and charged
that would not require the written consent of
a member of the body corporate. In effect, the situation would be the
same as existed
under the 1971 Act which required a unanimous
resolution of members of the body corporate. This would render the
provisions of
sections 32(4) nugatory and could hardly have been the
intention of the legislature.
The
trite principle of interpretation of statutes is that the language in
the legislation should be read in its ordinary sense and
that the
words must be given their ordinary, literal, grammatical meaning.
Furthermore, words in a statute must be given their
ordinary meaning
in accordance with the context in which they are found. [
Bellevue
Motors CC v Johannesburg City Council
1994 (4) SA 339
(W)
342F-G].
In
my view, the philosophy underlying the Act is that owners of units
should be treated fairly. This is reflected in the scheme
of the Act,
the legislature, in section 32(4) has recognised that when it comes
to the determination of levies payable by members,
each scheme may be
different.’
[14]
Thistledown
, which in
effect altered the statutory provision rather than interpreting it,
cannot be supported. Although the judgment alluded
to the trite
principle of interpretation, it failed to give the words ‘their
ordinary, literal, grammatical meaning’
or for that matter, any
meaning. In effect, it simply put a red line through the proviso,
thereby rendering it nugatory. ‘Once
the meaning of a statutory
provision is clear and unambiguous it is the function of a court to
give effect thereto. It is not then
permissible to have recourse to
pre-existing legislation for the purpose of construing the statutory
provision.’
[6]
Nor, can subsequent amendments of the Act be relied upon as an aid to
the construction of the section.
[7]
It bears reiteration that it is for a court to consider the language
used in the light of the ordinary rules of grammar and syntax,
the
context in which the provision appears and the apparent purpose to
which it is directed.
[8]
It is not for a court to substitute what it regards as reasonable,
sensible or businesslike for the words actually used, as this
would
cross the divide between interpretation and legislation.
[9]
‘Courts are not entitled, under the guise of absurdity,
to avoid the legislature’s clear intention because they
regard
the particular consequences to be harsh or unwise.’
[10]
Moreover, once the intention of the legislature is clearly
established, it can be dangerous to speculate as to why the
legislature
would have intended a particular result.
[11]
[15]
Here, the task of the interpreter is to ascertain the meaning of the
expression ‘adversely
affected’ in the particular context
of the statute in which it appears.
[12]
The purpose of the STA is to establish a framework for sectional
ownership. As it was put in
Mobile Telephone Networks (Pty) Ltd
and another v Spilhaus Property Holdings (Pty) Ltd & others
:
[13]
‘
Sectional
title ownership consists of three elements, namely individual
ownership of a section, joint ownership of the common parts
of the
sectional title scheme and membership of a body corporate. The
registered title-holder of a unit is the owner of the section,
joint
owner of the common parts of the scheme and a member of the body
corporate. Thus, a person, buying into a sectional title
scheme,
enters into a series of interlocking relationships. The [STA]
introduced several new concepts into our law. By providing
for the
division of land and buildings comprising a development scheme into
sections and common property, it created an entirely
new
composite
res
,
called a unit, which consists of a section and an undivided share in
the common property. The section is considered the principal
component, with the undivided share in the land and other common
property inextricably linked thereto as an accessory. The Act
also
created an entirely new form of composite ownership, namely separate
ownership of a section coupled with joint ownership of
the common
property. Sectional owners own the common property collectively in
undivided shares in accordance with the provisions
of the Act.’
[16] Because none of the elements
can be disposed of separately, the real rights created pursuant
to
the STA must be clearly defined and discernible by all. In that
regard the STA provides for a system of registration. In certain
respects, sectional owners must sacrifice their independence and
individual decision-making and submit to the collective
decision-making
of the body corporate. All sectional
owners become members of the body corporate upon
registration
of a unit in their name. The body corporate is charged
with the responsibility of enforcing the rules and the control,
administration
and management of the common property of the scheme
for the benefit of all members.
[14]
But the rights and proprietary interests of an owner will not have to
always necessarily yield to the will of the majority. The
body
corporate generally governs by way of resolutions. Some resolutions
require unanimity, others a 75% majority and yet others
a simple
majority, whilst some, such as the resolution in question here,
require the consent of specific owners.
[15]
It is thus not for a court to substitute what has been ordained by
the legislature with what it considers fair. After all, notions
of
fairness must be sourced within the four corners of the Act. A
disregard of the words used by the legislature, on the basis
of a
general principle of ‘fairness’ leads not only to
uncertainty but also a failure to observe the separation of
powers
doctrine.
[16]
[17] If one considers the proviso
in the context of the STA as a whole, the following considerations
are pertinent: The STA draws a distinction between residential and
non- residential schemes with regard to the calculation of the
participation quota. In a scheme for residential purposes only, the
STA has adopted the floor area of a section as the basis for
calculating the participation quota.
[17]
Since the formula of relative floor area was considered too rigid for
calculating the participation quotas for sections in schemes
not used
solely for residential purposes, the STA provides that the
determination of the participation quotas of non-residential
sections
should be left to the discretion of the developer.
[18]
The importance of the participation quota is that it determines the
extent of the undivided share of a sectional owner in the common
property and therefore forms an indivisible part of the ownership of
a sectional title unit.
[19]
The participation quota as determined in accordance with ss 32(1) and
(2) is included in a schedule to the registered sectional
plan. The
schedule specifies the quota of each section as well as the total of
the quotas of all sections.
[20]
[18]
The participation quota determines the following: (i) the value of
the vote of the owner
of the unit in a case where the vote is to be
reckoned in value; (ii) the unit owner’s undivided share in the
common property;
and (iii) the proportion in which the owner has to
contribute to the levy fund of the sectional title scheme or be held
liable
for the payment of a judgment debt of the body corporate of
which he is a member.
[21]
If levies are charged otherwise than in accordance with the
participation quota, the rule which provides for this must be
registered
in the Deeds Office before it comes into effect.
[22]
[19]
I now pass to consider the ordinary meaning of the expression
‘adversely affected’
– which it bears in ‘ordinary colloquial speech’.
[23]
‘The normal and permissible method available to a court to
ascertain the ordinary meaning of words is to turn to authoritative
dictionaries – the most reliable sources of information in
regard to the general accepted usage of words – for aid’.
[24]
According to the Oxford & Cambridge English Dictionaries, the
meaning of ‘adverse’ is ‘unfavourable,
disadvantageous,
to the detriment of, having a negative effect’.
And ‘affect’ means ‘to make a difference to’
or ‘to
cause something to change’. Here, the difference
or change to the respondent is that its proportional liability for
the total
levies of the scheme has more than doubled. This is
unfavourable, not only because it pays more but also because the
increased
levy liability, which attaches to the ownership of the
units, makes them less attractive investments. This interpretation is
consistent
with the general requirement imposed by s 1(3)(c) of the
STA for any unanimous resolution. This sub-section provides: ‘for
the purposes of the definition of “unanimous resolution”
in subsection 1(1) - where the resolution in
question adversely affects the proprietary rights or powers of any
member as owner, the resolution shall not be regarded as having
been
passed unless such member consents in writing thereto’.
[20] The STA is thus designed to
ensure that, before purchasing a sectional title unit, the
prospective purchaser will be aware of the participation quota
attaching to that unit and the levy liability. The liability for
levies is an incident of ownership of a sectional title unit and is a
burden that attaches to such ownership. An increase in that
levy
burden is accordingly a diminution of his rights of ownership. The
appellant alleges that the previous levy regime ‘grossly
discriminated’ against residential sections, because those
owners had to pay higher levies. This contradicts the thrust of
its
own argument that having to pay higher levies does not in and of
itself constitute an ‘adverse effect’. The high
court’s
judgment was premised on the fallacious assumption that the prior
levy dispensation was unfair and the legislature
could not have
intended this. The STA clearly provides that in a mixed use scheme
such as this, levies do not have to be charged
in proportion to the
floor area ratio. In terms of s 32(2) of the STA, the developer is
given an unfettered discretion in this
regard. The facts on the
record do not show either that the levy regime prior to the
resolution was unfair, or that the regime
after modification was
fair. This was certainly not common cause on the papers. Neither
party knew the reasons for the developer’s
participation quota
determination.
[21] The high court approached
the matter on the basis that the result of the resolution was
fair,
and therefore the consent of the appellant was not required. This
approach, which ostensibly imports a further proviso that
is not
expressed in the Act, is clearly wrong. If that had been the
intention of the legislature, one imagines, that it would have
said
so. Such an approach, resting as it does on nebulous notions of
fairness, brings uncertainty into the Act. What is more, it
disregards the carefully crafted scheme of the Act. It also ignores
the plain meaning of the expression and therefore could hardly
have
been intended by the legislature. Moreover, it assumes that it is
unfair for the participation quota not to accord with floor
area
ratio, yet section 32(2) expressly provides for this in the case of
non-residential sections. In the context of a resolution
to modify an
owner’s liability for levies, it seems a simple matter of logic
that an owner whose liability for levies increases
is adversely
affected thereby. It is impossible to conceive of any other meaning
of those words. That being so, the clear intention
of the legislature
is that the written consent of such a member must be obtained, so as
to observe the
audi alteram partem
rule and to prevent a
diminution of property rights being imposed on a minority by the
majority.
[22] I therefore conclude that
the respondent was ‘adversely affected’ within the
meaning of that expression by the resolution and that its written
consent was required. It follows that the resolution is
ultra
vires
the Act and void, and that the consequent amendment to the
conduct rules is likewise void. On this basis as well the appeal to
the
full court by the respondent ought to have succeeded.
[23] In the result, the appeal is
dismissed with costs.
V M Ponnan Judge of Appeal
14
APPEARANCES:
For
Appellant:
A J Boulle
Instructed by:
John Hudson & Company,
Durban Lovius Block, Bloemfontein
For First
Respondent:
L M Mills
Instructed by:
Richard Evans & Associates,
Kloof
Symington & De Kok,
Bloemfontein
[1]
See
Extra Dimensions 121 (Pty) Limited v Body Corporate of Marine
Sands & another
(AR121/2017) [2018] ZAKZPHC 69 (
Extra
Dimensions
).
[2]
Those issues being the following:
‘(a) In terms of
s 32(4)
of the
Sectional Titles Act 95 of
1986
the body corporate had the power to make a rule under
s 35
by
which the liability of an owner to make contributions to the levy
fund is modified.
(b)
The special resolution at page 55 of the papers includes
the
following: ‘. . . and that the new conduct rule would allow
levies to be based on the new Participation Quota Schedule
based on
the area of each section.’ Annexure B to the new conduct rules
reflects a “Modified Participation Quota
Percentage” in
respect of each section in the scheme.
(c)
The following references to the answering affidavit suggest
that the
trustees intended to modify the participation quotas: page 68 para
16; page 82 para 46, 47; page 83 para 54.
(d)
What the trustees could have done was to make a rule to
the effect
that in future the liability of owners to make contributions to the
levy fund would be based on the floor areas and
not on their
participation quotas. However, according to the special resolution
they appear to have amended the participation
quotas. Did the body
corporate have the power under
s 32(4)
to modify the participation
quotas? If not, is the special resolution ultra vires and invalid?
(e)
The liability of owners to make contributions, and the
proportions
in which the owners shall make contributions for the purposes of
s
37(1)
, was prescribed by
rule 31
of the management rules referred to
in
s 35(2)(a).
Was it competent for the body corporate to modify the
liability of owners to make contributions by amending the conduct
rules
as opposed to the management rules? If not, is the special
resolution not also invalid for this reason?’
[3]
Extra Dimensions
fn 1 para 13.
[4]
Extra Dimensions
fn 1 para 24.
[5]
Algar v Body Corporate of Thistledown and others
[2010] JOL
26140
(N) at 3.
[6]
Ebrahim v Minister of the Interior
1977 (1) SA 665
(A) at
680A-B.
[7]
Ibid at 680B-C.
[8]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[9]
Ibid.
[10]
Geue & another v van der Lith & another
[2003] ZASCA 118
;
2004 (3) SA
333
(SCA) para 15.
[11]
Ibid.
[12]
Fundtrust (Pty) Ltd (In Liquidation) v Van Deventer
1997 (1)
SA 710
(A) at 726J.
[13]
Mobile Telephone Networks (Pty) Ltd and another v Spilhaus
Property Holdings (Pty) Ltd
[2018] ZASCA 16
;
2018 (3) SA 396
(SCA) para 1 (footnotes omitted).
[14]
Section 36(4).
[15]
GJ Pienaar
Sectional Titles and other fragmented property schemes
(2010) para 2.5.3 and 4.2.3 (GJ Pienaar).
[16]
SAA (Pty) Ltd v Aviation Union of South Africa & others
[2011] ZASCA 1
;
2011 (3) SA 148
(SCA) para 19.
[17]
Section 32(1).
[18]
Section 32(2).
CG van der Merwe
Sectional Titles, Share Block and
Time-sharing
LAWSA Volume 1 (loose-leaf) para 333 at 3-19.
[19]
GJ Pienaar at 81.
[20]
Sections 5(3)(g).
[21]
GJ Pienaar para 2.4.
[22]
Section 32(4)
read with
s 35.
[23]
Per Lord Atkinson in
Falkiner v Whitton
1917 AC 106
at 110,
cited with approval by Kotze JA in A
ssociation of Amusement and
Novelty Machine Operators & another v Minister of Justice &
another
1980 (2) SA 636
(A) at 660F.
[24]
Association of Amusement and Novelty Machine Operators &
another v Minister of Justice & another
1980 (2) SA 636
(A)
at 660F.