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[2006] ZACC 21
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Minister of Safety and Security v Luiters (CCT23/06) [2006] ZACC 21; 2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC); (2007) 28 ILJ 133 (CC) (30 November 2006)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 23/06
MINISTER OF SAFETY AND
SECURITY Applicant
versus
ALLISTER ROY
LUITERS Respondent
Heard on : 17 August 2006
Decided on : 30
November 2006
JUDGMENT
LANGA CJ:
Introduction
[1]
What are the limits of the
liability of the state to pay damages for the actions of the police? Mr
Allister Roy Luiters, the respondent
in this matter, was severely injured when
he was shot in 1995 by an off-duty policeman, Constable Lionel Siljeur, who was
in the
employ of the South African Police Service (SAPS). Mr Luiters is now a
tetraplegic. The Cape High Court (the High Court) held that
the Minister of
Safety and Security (the Minister), who is the applicant in this matter, was in
law liable for the injuries suffered
by Mr Luiters. This decision was confirmed
on appeal by the Supreme Court of Appeal. This is an application by the
Minister for
leave to appeal against the judgment of the Supreme Court of
Appeal.
Factual background
[2]
The incident occurred on
Jacaranda Street in Eersterivier late in the evening on 14 October 1995 while Mr
Luiters was walking along
in the company of two women. They were suddenly fired
upon from behind by Constable Siljeur and they began to run away. Mr Luiters
was however hit as he ran, sustaining gunshot wounds in the leg and neck. It
was later established that on the same night and on
Jacaranda Street, Constable
Siljeur fired at two other men, Mr Percival Makati and Mr Abram Pietersen,
hitting Mr Pietersen in the
back and the
ankle.
The proceedings in the High
Court
[3]
A civil claim for damages,
instituted by Mr Luiters in the High Court against the Minister, followed. The
parties however agreed
that the Court should concern itself with the resolution
of the issue of liability only and not the amount of damages to be paid.
In the
hearing, the High Court (per Thring J) accepted the account of events given by
Mr William Davidse who testified in support
of Mr
Luiters.
[4]
According to his account, Mr
Davidse was driving a car in the area on the night in question, in the company
of two passengers, Mr
Warren Geldenhuys and Mr Lionel Arries. When the car
turned into Jacaranda Street, they saw Mr Luiters lying motionless in the street
and they drove towards him. They were then confronted by Constable Siljeur. As
their car stopped, the Constable, who was not in
uniform and who looked nervous
and bewildered, pointed the firearm he was brandishing at Mr Davidse. Mr
Davidse tried for several
minutes to calm him down, asking him repeatedly to
lower his firearm, which the policeman eventually did. When asked what the
problem
was, Constable Siljeur replied that he was looking for people who had
robbed him and who had disappeared into the nearby houses.
He asked whether Mr
Davidse and his passengers had seen the robbers. Mr Davidse was under the
impression that the policeman wanted
to arrest the robbers. This he had
inferred from the type of gun that Constable Siljeur was carrying which, he was
told by Mr Arries,
was of a type carried only by police
officers.
[5]
Constable Siljeur eventually
walked away. The car then moved closer to where Mr Luiters was lying and Mr
Davidse’s two passengers
got out of the car and went to assist Mr Luiters.
Suddenly Mr Davidse heard gun shots from behind and drove off down Jacaranda
Street.
He later turned the vehicle around to return to what he described as
“the danger zone”. He saw Constable Siljeur shooting
at Mr
Geldenhuys and Mr Arries. The two men were returning the fire and Constable
Siljeur then fled. The police arrived a short
while later but Constable Siljeur
was at that stage nowhere to be seen.
[6]
Captain Andre Steenkamp told
the Court that he was one of the police officers who arrived at the scene after
the shooting. He found
Mr Luiters lying motionless in the street. A second
person, who had been shot in the ankle, was lying nearby. Nobody volunteered
any information when Captain Steenkamp enquired from the people there who had
shot the two men. The following day, Captain Steenkamp
was directed to a house
where he found and eventually arrested Constable Siljeur. The latter initially
denied that he was a policeman.
When asked by Captain Steenkamp to hand over
his service revolver, he first denied that he had it but later retrieved it from
a
cupboard in the house and handed it over to Captain
Steenkamp.
[7]
Captain Steenkamp further
testified that in terms of the relevant police standing
order
[1]
a police officer who has
discharged a firearm is obliged to report that he or she has done so
immediately. No such report was made
by Constable
Siljeur.
[8]
The record indicates that
Constable Siljeur was convicted in the Parow Regional Court on eight counts of
attempted murder and sentenced
to an effective 11 years’ imprisonment on
account of the events of the night in
question.
[2]
Although he was no
longer in prison at the time of the High Court trial, neither the Minister nor
Mr Luiters called him as a witness.
[9]
From the fact that Constable
Siljeur told Mr Davidse that he wanted to arrest the robbers, the High Court
concluded that although
he was off duty, Constable Siljeur had subjectively
placed himself on duty at the time of the shooting and was accordingly acting
in
his capacity as a policeman. In the Court’s view, apprehending criminals
was an important police function and it was unlikely
that a member of the public
would attempt such activities. The Court held that the subsequent failure by
the policeman to report
his use of the firearm and his denial of the incident
were compatible with a realisation after the fact that he had gone too far
and
wished to distance himself from the incident. It held that the Minister had not
discharged the onus to show that Constable Siljeur
was in fact performing a
function that took him outside the “kader van staatsdienaar” (cadre
of civil servant) and concluded
that he had acted as a servant of the state.
The Minister was accordingly held to be vicariously liable for the injuries that
had
been inflicted on Mr Luiters.
The
proceedings in the Supreme Court of Appeal
[10]
On appeal, the Supreme
Court of Appeal
[3]
(per Navsa JA)
unanimously held that in light of the judgment of this Court in
K v Minister
of Safety and
Security
[4]
the appropriate test to be applied in cases where employees had deviated from
their normal duties is one that requires two questions
to be asked. These
questions had been formulated in
K
as
follows:
“The first is whether the wrongful acts were done solely for the purposes
of the employee. This question requires a subjective
consideration of the
employee’s state of mind and is a purely factual question. Even if it is
answered in the affirmative,
however, the employer may nevertheless be liable
vicariously if the second question, an objective one, is answered affirmatively.
That question is whether, even though the acts done have been done solely for
the purpose of the employee, there is nevertheless
a sufficiently close link
between the employee’s acts for his own interests and the purposes and the
business of the employer.
This question does not raise purely factual
questions, but mixed questions of fact and law. The questions of law it raises
relate
to what is ‘sufficiently close’ to give rise to vicarious
liability. It is in answering this question that a court should
consider the
need to give effect to the spirit, purport and objects of the Bill of
Rights.”
[5]
(footnote
omitted)
[11]
Addressing the first
question, the Supreme Court of Appeal considered Constable Siljeur’s state
of mind at the time of the shooting.
Relying on the testimony given by Mr
Davidse, the Court agreed with the factual inferences drawn by the High Court
and concluded
that Constable Siljeur had been looking for robbers and had acted
with the authority of a policeman when he approached Mr Davidse
and his
companions. The Court reasoned that the Constable could not have been unmindful
of his authority as a policeman, especially
in light of the fact that he was
using his service pistol. When he approached Mr Davidse, his behaviour
indicated that he was not
completely certain that the occupants of the car were
not in some way connected to the robbery. This might have been the reason
why
he decided to fire on the two men when they stopped to help Mr Luiters. If
Constable Siljeur had merely been on a shooting spree,
he would not have been
cautious in the manner in which he approached the car which was driven by Mr
Davidse.
[12]
The Supreme Court of Appeal
rejected the suggestion by the Minister that Constable Siljeur’s conduct
after the incident indicated
that he was not subjectively acting as a policeman.
On the contrary, it found that his conduct was equally consistent with an
attempt
to distance himself from the shooting incidents because he realised that
he had acted unlawfully. The Court concluded that the High
Court had been
correct in its finding that the policeman had intended to act in the course and
scope of his employment. The Minister’s
appeal was dismissed with costs.
It is against these findings that the Minister now
appeals.
Which Constitution is
applicable?
[13]
The cause of action
occurred in October 1995 while the interim Constitution was in operation and the
proceedings were pending when
the Constitution (the 1996 Constitution) came into
force in February 1997. According to Item 17 of schedule 6 of the 1996
Constitution,
[6]
it shall have no
application to pending proceedings unless the interests of justice require
otherwise. The question that arises
is which of the two Constitutions is
applicable to this case.
[14]
Section 35(3) of the
interim Constitution requires a Court developing the common law to have regard
to the spirit, purport and objects
of the Bill of Rights. Section 39(2) of the
1996 Constitution contains an identical provision. Unlike the interim
Constitution,
however, the 1996 Constitution expressly provides that this Court
has the power to develop the common
law.
[7]
In
Du Plessis and Others v
De Klerk and Another,
[8]
the
precise nature
of the jurisdiction of the Constitutional Court under the
interim Constitution was not
determined,
[9]
but Kentridge AJ held
that the jurisdiction of the Constitutional Court to develop the common law
extended only to the power to ensure
that the spirit, purport and objects of the
Bill of Rights were taken into account by other courts. What seems clear from
the judgments
in that case is that the power of the Constitutional Court to
develop the common law under the interim Constitution was far more
limited than
under the 1996 Constitution.
[15]
The question then is
whether this Court has the power to develop the common law or merely to set out
the principles which another
court should follow, or whether, in light of Item
17 of schedule 6 to the 1996 Constitution, it should deal with the matter on the
basis that the interests of justice require this Court to apply the 1996
Constitution.
[16]
In
Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others
[10]
this Court had to consider whether it would be in the interests of justice
to maintain the limited constitutional jurisdiction of
the Supreme Court of
Appeal under the interim Constitution for cases which were pending when the 1996
Constitution came into force.
The Court held that the interests of justice
required that the jurisdiction of the Supreme Court of Appeal should not be
restricted.
The Court reasoned that
“[t]here is no logical reason why the SCA should be considered competent
to enforce the interim Constitution in proceedings
which were not pending on 4
February 1997, but precluded from doing so if the proceedings were pending. . .
. The continued application
of the jurisdictional provisions of the interim
Constitution to cases pending before the SCA leads to disruptions, delays and
unnecessary
costs in the process of disposing of
appeals.”
[11]
[17]
Similarly, it would not be
in the interests of justice to continue to enforce the limited jurisdiction of
this Court in terms of the
interim Constitution to develop the common law. It
would mean that matters would be sent back by this Court, even where there is
no
need to do so, to the High Court or the Supreme Court of Appeal to develop the
common law. This would, as was said in
Fedsure
, cause
“disruptions, delays and unnecessary costs in the process of disposing of
appeals”. That, together with the fact
that there is no substantial
difference in the rights which are implicated in this case in both the interim
and 1996 Constitutions,
leads to the conclusion that it is in the interests of
justice for the 1996 Constitution to be applied to cases where the development
of the common law by this Court is necessary, even where the facts may have
arisen during the operation of the interim
Constitution.
Does the case raise a
constitutional issue?
[18]
This Court may decide only
constitutional matters and issues connected with decisions on constitutional
matters.
[12]
In
K
this Court
explicitly recognised that questions relating to vicarious liability are not
always purely questions of fact but that
policy and constitutional
considerations are inherent in all questions of vicarious liability. Vicarious
liability, it was stated,
requires the
“courts, bearing in mind the values the Constitution seeks to promote,
[to] decide whether the case before it is of the kind
which in principle should
render the employer
liable.”
[13]
The point was made that generally people should not be held
liable for delicts they did not commit and the policy considerations that
convince a court to depart from that principle prevent vicarious liability from
ever being described as a purely factual issue.
It is necessarily a mixed
determination of policy and fact. The Court however made a distinction between
the first, subjective leg
and the second, objective leg of the test established
and held that the policy considerations only become relevant in the second,
objective leg of the test.
[14]
The
first, subjective leg remains a purely factual inquiry.
[19]
It was also held in
K
that the development of the rules governing vicarious liability in light of
the spirit, purport and objects of the Bill of Rights
is a constitutional
issue.
[15]
The question is whether
the applicant in this case seeks such a
development.
[20]
The submissions presented
in oral argument on behalf of the Minister constituted the high water mark of
his contentions. What was
suggested was that the test formulated in
K
should be varied in respect of off-duty police officers who put themselves on
duty. The variation suggested is that the Minister
should not necessarily be
held vicariously liable even if the police officer subjectively acted as if he
or she were on duty, but
that an additional component should be added which
would render the Minister liable only if the conduct of the police officer was,
in addition, objectively closely related to the interests of the Minister. In
other words, unlike the rule expounded in
K
in respect of on-duty police
officers, subjective intent on the part of an off-duty police officer who places
himself or herself
on duty would not alone be sufficient to render the Minister
vicariously liable.
[21]
This would prevent the
Minister from being held liable for those incidents where an off-duty police
officer, though subjectively intending
to fulfil his or her duties, acts in a
manner which is completely unrelated to the purposes for which the officer was
employed.
It was argued that in these circumstances, the police officer would
not objectively be fulfilling those duties. The main justification
proffered
for drawing the distinction between on-duty and off-duty police officers lay in
the different levels of control exercised
over on- and off-duty police officers
respectively.
[22]
What this submission
amounts to is that the current common law test is wrong and must be developed.
Quite apart from the manner in
which the submission was introduced and its
timing, it will be relevant to ask whether the development contended for is
appropriate.
That depends on whether there is a material distinction between
police officers who are on-duty and those who, although off-duty,
place
themselves on duty. The implication of this submission was that there is a
difference and that the test in
K
does not accommodate this
difference.
[23]
When determining whether an
argument raises a constitutional issue, the Court is not strictly concerned with
whether the argument
will ultimately be successful. In the case of the
development of the common law under section 39(2) of the Constitution, the
question
is whether the argument forces us to consider constitutional rights or
values. Whether or not the submission is ultimately found
to be sound is of
course another matter altogether, and, at the level of an application for leave
to appeal, that concerns the question
whether the appeal on that ground has
reasonable prospects of success. I find that the Minister’s main
contention does indeed
raise a constitutional matter since it seeks the
development of the common law of vicarious
liability.
[16]
[24]
The next question is
whether it is in the interests of justice to hear the matter. The answer to
that question depends in part on
the Minister’s prospects of success.
This is a matter to which I return later.
[25]
In his written argument the
Minister made two further submissions which, although not expressly abandoned,
were superseded by the
line of argument described above. It seems that the
Minister continued to rely on them in the alternative and it is therefore
necessary
to consider whether those submissions raise constitutional
issues.
[26]
It was contended firstly
that since
K
was a deviation case involving police officers who were on
duty, the test for vicarious liability formulated in that case and on
which the
Supreme Court of Appeal had
relied
[17]
should be extended to
include the conduct of off-duty police officers. In my view, this argument does
raise a constitutional issue.
Leaving aside for the moment the question whether
there is any doubt as to the application of the test to off-duty police
officers,
it is clear that the development of the rules of vicarious liability
in the light of the values of the Constitution will ordinarily
raise a
constitutional issue.
[27]
The Minister’s
further submission was directed at the application of the test formulated in
K
. The Minister queried the finding of the Supreme Court of Appeal that
Constable Siljeur subjectively intended to act as a policeman
at the time of the
shooting. A number of reasons were given in support of the Minister’s
criticism of this finding by the
Supreme Court of Appeal. The thrust of the
Minister’s submission, however, was to urge this Court to reconsider the
facts
as found by the High Court and the Supreme Court of Appeal. This
submission does not raise a constitutional issue for as it was
made clear in
K
the question whether a police officer has subjectively acted as a
police officer is purely factual.
[28]
To recap, I have found that
the Minister’s primary submission raised in oral argument does raise a
constitutional issue, as
does his second contention, while the third submission
relating to the factual finding of the Supreme Court of Appeal as to the
subjective
intention of Constable Siljeur does not. It is therefore necessary
to consider whether it is nonetheless in the interests of justice
to grant leave
to appeal. Before I turn to consider that aspect, however, I should mention yet
another string which counsel for
the Minister had to his
bow.
[29]
It was argued on behalf of
the Minister that once the Court assumes jurisdiction on one basis, it has the
power to alter the findings
of both the High Court and the Supreme Court of
Appeal on factual issues even if we do not find it necessary to change the test.
It may well be that the factual issues are issues that are connected to a
decision on a constitutional matter in such
circumstances.
[18]
But the question
would remain whether it would be in the interests of justice for this Court to
interfere with factual findings
once it has decided that the common-law test
needs no development. In reaching this conclusion, however, it should be borne
in mind
that very often a common-law rule is developed incrementally by
application to a set of facts,
[19]
and therefore it is not always easy to distinguish sharply between findings of
fact and findings of law.
[30]
I turn now to the question
of the interests of justice.
Interests of
justice and prospects of success
[31]
Even if a case raises a
constitutional matter, this Court will only grant leave to appeal if it is in
the interests of justice to
do so. I have referred to the fact that the
Minister only specifically raised the argument that a different test should
apply to
off-duty police officers for the first time in oral submissions to this
Court. The Court has repeatedly stressed the importance
of raising
constitutional issues in the High
Court.
[20]
It is a matter of
fairness to the parties involved in the litigation and prevents this Court from
sitting as a court of first and
last instance. It is also especially important
to have a judgment of the Supreme Court of Appeal in matters that concern the
development
of the common law.
[21]
The Court has also noted that when the constitutional issue at play involves the
development of the common law, all courts have
a responsibility to consider the
impact of the Bill of Rights even if it has not been referred to by the
parties.
[22]
Failure to raise a
section 39(2) argument in the High Court or the Supreme Court of Appeal does
not, therefore, invariably bar an
applicant from this
Court.
[23]
Each case will have to
be evaluated on its own merits to determine what the interests of justice
require.
[32]
However, it is unnecessary
to decide whether the Minister’s tardiness in raising this argument should
result in a denial of
leave to appeal. It is trite that it will seldom be in
the interests of justice to grant leave to appeal to this Court if there
are no
reasonable prospects of success.
[24]
I remain unpersuaded that a variation of the test in
K
is required. In
my view, the contention that the rules of vicarious liability should be
different in respect of off-duty police
officers who place themselves on duty to
the rules governing on-duty police officers cannot
succeed.
[33]
What the Minister contended
was that there is a difference in the level of control exercised over an
off-duty police officer as compared
to a police officer who is on duty. This is
not necessarily so. But even if this contention were correct, that alone would
not,
in my view, warrant a different level of scrutiny. While vicarious
liability is not based on the employer’s control over an
employee, the
level of control exercised by the employer will obviously be a relevant factor
in determining whether there was a sufficiently
close link between the conduct
and the employment when considering the second stage of the
K
test. The
level of control is therefore already a relevant consideration. It does not
seem necessary or desirable to elevate it
to the status of a decisive factor
which determines the test that applies.
[34]
It moreover seems to me
that counsel for Mr Luiters is correct in suggesting that the variation to the
rule, as suggested by the Minister,
would have the effect of lessening the
emphasis on the responsibility of the Minister to ensure that police officers
are properly
trained and carefully screened to avoid the risk that they will
behave in a completely improper manner. What it would mean is that
the more
improper the conduct of the police officer, the less likely the Minister will be
held liable. This result is not one that
accords with a Constitution that seeks
to render the exercise of public power
accountable.
[35]
It follows in my view that
once off-duty police officers are found on the facts of a particular case to
have put themselves on duty,
as they are empowered and required to do by their
employer, they are for the purposes of vicarious liability in exactly the same
legal position as police officers who are ordinarily on
duty.
[36]
As far as the alternative
submission which seeks an extension of the
K
test to off-duty police
officers is concerned, it would similarly not be in the interests of justice to
grant leave to appeal. In
K
the Court made it clear that the test is
applicable to all deviation cases, regardless of the identity of the employer or
the status
of the employee.
[25]
It
is relevant to note that the decision in
Minister of Police v
Rabie
,
[26]
which developed the
two-stage test originally and from which the test in
K
was derived, was
concerned with the case of an off-duty police officer who had placed himself on
duty. “Extending” the
test to off-duty police officers, as we are
being requested to do, would amount simply to making explicit what is already
implicit
in
K.
This is in fact the basis on which the Supreme Court of
Appeal and the High Court had proceeded.
[37]
It follows that it would
not be in the interests of justice to grant leave to appeal in this
matter.
Delay in institution of
proceedings
[38]
Although eleven years have
passed since Mr Luiters was rendered tetraplegic, the legal proceedings are
still not over, and to date
he does not appear to have received any
compensation. Because of the length of the delay and the absence of any
explanation for
it on the record, I issued directions prior to the hearing
calling upon the parties to give the reasons for the delay by way of affidavit.

It appears from those affidavits that summons was issued in October 1996 (one
year after the shooting incident). The plea was filed
on 18 November 1996. Mr
Luiters’ attorneys then requested that the matter be kept in abeyance
pending the criminal trial.
Constable Siljeur was convicted on 24 August 1998.
For various reasons which were explained by the attorneys for Mr Luiters, they
took no further steps until the matter was recommenced in January 2004. It
appears from this account that the delays arose largely
from problems they
encountered and not from any failure of diligence on the part of the
Minister’s attorneys. It remains only
to be added that delay in
litigation is deeply undesirable and that it is important for courts to
investigate significant delays
where possible.
[39]
Delays in a case of this
sort are of particular concern. The compensation to which three courts have now
held he is entitled will
only be awarded to Mr Luiters more than a decade after
he was shot. In this connection two factors of special relevance to persons
severely disabled by catastrophe should be borne in mind. The first is that the
early period of recovery and rehabilitation is particularly
stressful and likely
to require expensive medical attention. The need for some form of financial
support is particularly intense
at this stage. The second is that the very
disability giving rise to the damages weakens the capacity of the injured person
to pursue
the claim with all the vigour
required.
[40]
These questions were barely
touched upon in argument, and in this judgment it would not be appropriate to go
beyond saying that the
law in this area should wherever possible function in a
manner that promotes justice to all concerned in as practical a manner as
possible.
[41]
As far as the present
matter is concerned, final judgment on the merits has now at last been given.
There can be no doubt, therefore,
that Mr Luiters can immediately apply for
interim payments, under Rule 34A of the Uniform Rules of Court, for medical
costs and loss
of income.
[27]
Furthermore, the High Court which must now determine the quantum of Mr
Luiters’ damages may prescribe the procedure for the
further conduct of
the action and in particular for an early
trial.
[28]
The issue of the
state’s liability now having been settled once and for all, it is to be
hoped that the question of quantum
will be resolved in the speediest possible
fashion.
Costs
[42]
In my view, there is no
reason to depart from the ordinary rule that costs should follow the
result.
Order
[43]
The following order is
made:
The application for leave to appeal is dismissed with costs, including the costs
consequent upon the employment of two counsel.
Moseneke DCJ,
Kondile AJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J, Sachs J, van der
Westhuizen J and Yacoob J concur in the
judgment of Langa CJ.
For the applicant: W Trengove SC and RT Williams SC instructed by the State
Attorney, Cape Town
For the respondent: HP Viljoen SC and HM Raubenheimer SC instructed by Smith
& De Jongh Attorneys
[1]
Police Standing Order
G251.15.1.
[2]
There was also an unrelated
charge of assault in respect of which he was convicted.
[3]
The judgment is reported as
Minister of Safety and Security v Luiters
[2006] ZASCA 11
;
2006 (4) SA 160
(SCA).
[4]
[2005] ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9)
BCLR 835
(CC).
[5]
Id at para 32.
[6]
Item 17 reads:
“All proceedings which were pending before a court when the new
Constitution took effect, must be disposed of as if the new
Constitution had not
been enacted, unless the interests of justice require
otherwise.”
[7]
Section 173 of the Constitution reads:
“The Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own
process, and to develop the
common law, taking into account the interests of
justice.”
[8]
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC).
[9]
Kentridge AJ at paras 63-64 and
Mahomed DP at paras 86-87.
[10]
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998
(12) BCLR 1458
(CC).
[11]
Id at paras 110 and 111.
[12]
Section 167(3)(b) of the
Constitution which reads: “The Constitutional Court . . . may decide only
constitutional matters,
and issues connected with decisions on constitutional
matters”. See also
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR
36
(CC) at para 15.
[13]
K
above n 4 at para
23.
[14]
Id at para 32, quoted above
at para 10.
[15]
Id at para 18.
[16]
See
K
above n 4 at
para 23.
[17]
See
Luiters
above n 3
at paras 19-26.
[18]
See
Alexkor Ltd and
Another v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003
(12) BCLR 1301
(CC) at paras 29-30.
[19]
K
above n 4 at para
16.
[20]
See, for example,
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at paras 8-9;
S v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC);
1996 (12) BCLR 1588
(CC) at para 15.
[21]
Carmichele v Minister of
Safety and Security and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 58-59.
[22]
Phumelela Gaming and
Leisure Ltd v Gründlingh and Others
[2006] ZACC 6
;
2006 (8) BCLR 883
(CC) at para
26.
[23]
Id at para 26.
[24]
See, for example,
Mabaso
v Law Society, Northern Provinces and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2)
BCLR 129
(CC) at para 27;
S v Bierman
2002 (10) BCLR 1078
(CC) at para
9.
[25]
K
above n 4 at paras
24-44.
[26]
1986 (1) SA 117
(A). See
also
K
above n 4 at paras 31-32.
[27]
Rule 34A(1)-(4).
[28]
Rule 34A(7).