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[2013] ZACC 23
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Mukaddam v Pioneer Foods (Pty) Ltd and Others (CCT 131/12) [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC) (27 June 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 131/12
[2013] ZACC 23
In the matter between:
IMRAAHN ISMAIL MUKADDAM
..............................................................
Applicant
and
PIONEER FOODS (PTY) LTD
...........................................................
First
Respondent
TIGER CONSUMER BRANDS LIMITED
....................................
Second Respondent
PREMIER FOODS LIMITED
............................................................
Third
Respondent
and
LEGAL RESOURCES CENTRE
...........................................................
Amicus
Curiae
Heard on : 7 May 2013
Decided on : 27 June 2013
JUDGMENT
JAFTA J (Moseneke DCJ, Bosielo AJ, Khampepe J, Nkabinde J and Zondo J
concurring):
Introduction
In
our constitutional dispensation everyone is guaranteed access to a
competent court to have their dispute resolved by the application
of
law and decided in a fair manner.
1
But this guarantee does not include the right to choose the method
of approaching and placing a dispute before a particular court.
The
determination of the process to be followed when litigants approach
courts is left in the hands of the courts.
Section
173 of the Constitution recognises and preserves the courts’
power to determine how disputes are to be placed before
them.
2
Our superior courts enjoyed this power even before the adoption of
the Constitution.
3
This case concerns the exercise of this power by the Western Cape
High Court, Cape Town (High Court) in circumstances where the
applicant sought permission to institute a class action against the
respondents. The claims to be pursued are for the payment
of damages
allegedly suffered by members of a particular class as a result of
certain conduct by the respondents.
The facts and litigation history
The
applicant in this application for leave to appeal is Mr Imraahn
Ismail Mukaddam. At the relevant period, he carried on the
business
of distributing bread in the Western Cape. He purchased bread from
some of the respondents who are major bread producers,
and sold it
to informal traders from whom consumers bought their bread. The
record shows that there were approximately 100 distributors
like the
applicant in the Western Cape.
The
respondents are Pioneer Foods (Pty) Ltd (Pioneer Foods), Tiger
Consumer Brands Limited (Tiger Brands) and Premier Foods Limited
(Premier Foods). All are producers of bread from whom the applicant
and other distributors sourced their supplies. However, the
respondents’ businesses are not confined to the Western Cape
Province. They trade throughout the country.
In
2006 the Competition Commission launched an investigation against
the respondents, following complaints that they were involved
in
anti-competitive behaviour in dealing with bread distributors in the
Western Cape. The applicant was one of the individuals
who submitted
complaints to the Commission. The investigation was undertaken in
terms of the Competition Act.
4
Premier Foods sought leniency from the Commission and came forward
with the disclosure of how it had engaged in anti-competitive
conduct with the other respondents in violation of the Competition
Act. The Commission has a corporate-leniency policy in terms
of
which business entities who cooperate in its investigations are
rewarded with the imposition of lenient fines.
5
The
disclosure by Premier Foods led to the expansion of the Commission’s
investigation to other parts of the country. Tiger
Brands was among
the entities implicated in the disclosure. It negotiated and
concluded a settlement agreement with the Commission
in relation to
unlawful conduct in the Western Cape and other parts of the country.
A penalty of nearly R99 million was imposed
on Tiger Brands.
The
complaints against Pioneer Foods were referred to the Competition
Tribunal for adjudication. A lengthy hearing ensued which
culminated
in Pioneer Foods being found guilty of anti-competitive conduct in
breach of the Competition Act. Approximately R196
million in
penalties were imposed on it.
In the
High Court
The
applicant and two other persons
6
instituted an application in the High Court for certification
authorising them to bring a class action against the respondents.
The application was opposed by the respondents.
In
deciding whether to grant certification or not, the High Court
focussed on two requirements only. First, it considered whether
the
cause of action identified by the applicants raised triable issues.
But in this regard the High Court looked at only two
of the three
causes of action mentioned in the applicants’ founding papers.
With regard to the claim for damages based
on section 22 of the
Constitution, the High Court held that the section affords
protection to individual citizens and not corporate
entities. No
ruling was made in relation to the present applicant and another
litigant, both natural persons.
The
second requirement considered by the High Court was whether common
issues of fact or law would be raised in the proposed class
action.
Regarding the applicant, the High Court considered the arguments
made in support of contractual claims. The applicant
alleged that
Pioneer Foods and Premier Foods had breached agreements he had with
them for the supply of bread. The Court compared
these claims to
those of the other two applicants and concluded that the issues to
be raised were different. Accordingly certification
was refused.
The
High Court overlooked a third cause of action mentioned in the
papers. This related to the cause of action based on the
anti-competitive conduct in breach of the Competition Act. The
applicants had asserted that they would seek damages sustained by
them and other distributors as a result of the unlawful conduct for
which the respondents were penalised by the Commission.
In
the founding affidavit deposed to by the present applicant, he
alleged:
“
Every
distributor suffered damages as a result of the unlawful price fixing
and other prohibited practices which the respondents
engaged in.
The bread distributors who
distributed bread during the period in question were particularly
affected and suffered damages as a
result of the respondents’
unlawful and prohibited collusion:
1. that discounts (commissions)
given by all three firms to agents in Paarl would be capped at 90c
and 75c for agents in the Cape
Peninsula; and
2. that none of the firms would
supply new distributors.
The principal relief which will
be sought in the class action is to recover the damages suffered by
the distributors in consequence
of the respondents’ unlawful
conduct.
It is not possible to quantify
this with any degree of exactitude at this time since we require
access to and detailed analysis
of the relevant records and accounts
of the respondents. In the nature of things, the applicants do not
have access to these records
and accounts before instituting
proceedings. In the class action, the applicants will therefore seek
an accounting and a debate
of account in order to establish the
damages which have been suffered by the class. Early discovery will
also be sought in this
application.”
In the
Supreme Court of Appeal
With
leave of the Supreme Court of Appeal, the applicant appealed to that
Court against the High Court order refusing him permission
to
institute a class action. The Supreme Court of Appeal also granted
leave in a related matter involving a similar request by
the
consumers who claimed to have sustained damages as a result of the
respondents’ collusive and unlawful conduct.
7
A panel of five Judges heard both appeals.
8
Judgments in these cases were delivered on the same day.
9
The reasoning in the judgments was, except in respect of one point,
synchronic. The discordant aspect related to what a party
is
required to establish for certification of an “opt-in”
class action.
Apparently
in the exercise of its inherent power, the Supreme Court of Appeal
in
Children’s Resource Centre
pronounced that class
actions should not be limited to constitutional claims. Writing for
a unanimous Court, Wallis JA rejected
the call made from certain
quarters that courts should wait for the Legislature to pass a law
extending class actions to other
claims. He held that courts must
prescribe an appropriate procedure to enable litigants to institute
class actions. He proceeded
to determine “the broad parameters
within which class actions may be pursued and to lay down procedural
requirements that
must be satisfied”
10
when a class action is to be instituted.
The
Supreme Court of Appeal then endorsed the notion that prior
certification by a court is necessary for the institution of a
class
action. It proceeded to lay down requirements which must be met in
an application for certification. First, it said the
class on whose
behalf the action would be brought must have identifiable members,
even if it is some and not all members that
are capable of being
identified. The baseline is that the class must be defined with
sufficient precision that permits an objective
determination of who
qualifies as a member.
Second,
an applicant for certification must show that the class has a cause
of action which raises a triable issue. In the case
of a novel
claim, for example a claim based in delict, the applicant is
required to allege facts sufficiently showing that a
new claim must
be recognised when policy issues are taken into account.
11
Third,
the various claims by members of the class must raise common issues
of fact or law. The commonality must be of a nature
that the
determination of the issue may be achieved by deciding a single
ground common to all claims.
Fourth,
a representative in whose name the class action would be brought
must be identified. The interests of the representative
must not be
in conflict with those of the members of the class. In addition the
representative must have the capacity to prosecute
the class action,
including funds necessary for litigation.
12
Writing
in this case, Nugent JA simply transposed and applied the
requirements laid down by Wallis JA in
Children’s Resource
Centre
. In this regard he said:
“
I have
already joined with Wallis JA in the appeal in the [
Children’s
Resource Centre
]
case in recognising class actions as a permitted procedural device
for pursuing claims, where the case calls for it, so as to
permit
those who are wronged to have access to a court. I need not repeat
what will need to be shown for such a class action to
be certified. I
need say only that included amongst them the applicants for
certification will need to satisfy a court, where a
novel cause of
action is sought to be established, that the claim is at least
legally tenable, albeit that the court is not called
upon to make a
final determination as to the merits of the claim, and that a class
action is the most appropriate means for the
claims to be pursued.
Failing that, the certification of a class action holds the potential
only to be oppressive to the proposed
defendants.”
13
This
was followed by an analysis of the claims set out in the founding
papers lodged in the High Court. The analysis commenced
with a
consideration of the claim based on section 22 of the Constitution.
14
The Supreme Court of Appeal listed three hurdles standing in the way
of this claim. The first was that the evidence did not show
that
members of the class are citizens, in view of the fact that section
22 guarantees rights to citizens only. The second was
that some of
the proposed claimants would be juristic persons on whom no rights
are conferred by the section. The third was that
on the reading of
the section by the Supreme Court of Appeal, it did not guarantee
success once a trade, profession or occupation
has been entered.
Turning
to the claim for damages based on the anti-competitive conduct that
contravened the Competition Act, the Supreme Court
of Appeal held
that this claim was not tenable in law. The Court reasoned thus:
“
The
Competition Act does not purport to protect the profits that an
enterprise will make. On the contrary, at least so far as the
distribution of bread is concerned, it is designed to protect
consumers against excessive prices emanating from anti-competitive
behaviour. The effect of the appellants’ claims is to assert
that it was they, instead of the producers, who were entitled
to reap
the rewards of the prohibited conduct. They assert a right to
transfer to themselves the profits that the producers made,
which in
my view is simply untenable.”
15
The
Supreme Court of Appeal went further to consider whether in the
present circumstances delictual claims could be legally tenable.
It
concluded that they could not. On this aspect the Court said:
“
Reliance
upon delictual claims takes the matter no further. It can be taken
now to be well established that the recognition of claims
for pure
economic loss is heavily policy laden. Nothing was advanced on behalf
of the appellants to suggest that public policy
calls for recognition
of a claim to maximise profits from the sale of bread, least of all
to reap the rewards of price fixing.
The fact alone that the fixing
of prices for bread is prohibited is sufficient to dispose of any
suggestion that policy requires
a claim to be recognised for the
recovery of profits from the practice. Indeed, the corollary of our
finding in [
Children’s
Resource Centre
]
that a claim by consumers is potentially plausible is destructive of
the distributors’ case.”
16
(Footnote omitted.)
Because
the applicant sought to pursue an “opt-in” class action
in terms of which claimants would join the class as
a matter of
individual choice, the Supreme Court of Appeal held that the
circumstances of the case did not warrant a class action
since
joinder under Rule 10 of the Uniform Rules of Court allows multiple
plaintiffs to join in a single action.
17
The Court recorded that the only advantage in favour of the class
action which was advanced on the applicant’s behalf was
that
he would be insulated against personal liability for costs. The
Court did not consider this to be adequate to move it to
authorise
the institution of a class action where access to court may equally
be achieved by means of a joint action.
In
rejecting the reason put forward on behalf of the applicant in
support of certification, the Supreme Court of Appeal said:
“
That
does not seem to me to be a good reason for allowing a class action.
On the contrary, the potential for personal liability
for costs will
often serve as a salutary restraint upon frivolous actions that are
brought oppressively for the purpose of inducing
defendants into
financial settlements, which is one of the dangers to be avoided in
certifying class actions. Indeed, the court
that becomes seized of
the case has a wide discretion to determine where the costs should
fall, taking account the merit of the
claim and the conduct of the
litigation, and is better placed to do so than a certifying court.
Although I do not close the door
to an ‘opt in’ class
action in my view the circumstances would need to be exceptional
before one would be allowed,
and nothing exceptional has been shown
in this case.”
18
The
appeal was then dismissed but in view of the novelty of the claim,
no order was made for costs. The applicant seeks leave
to appeal
against the order of the Supreme Court of Appeal.
Leave to appeal to this Court
Implicating
as it does the exercise of the power located in section 173 of the
Constitution
19
and access to courts which is guaranteed to everyone by the Bill of
Rights, this matter clearly raises constitutional issues
of
considerable importance. In addition the scales are tilted in favour
of granting leave in the interests of justice. As just
mentioned,
the case raises important constitutional questions, some of which
are presented to this Court for the first time.
The judgment of this
Court will benefit litigants who wish to access courts through the
institution of class actions. It will
also serve as a guide to
courts of first instance when called upon to exercise the power in
section 173, with a view to determine
whether in a particular case,
the institution of a class action should be permitted. Our judgment
will also guide appeal courts
in assessing whether the exercise of
that discretion was done judicially. Therefore, leave must be
granted.
Issues
The
main issue is whether the High Court has properly exercised the
power to protect and regulate its process when it refused
to certify
the institution of a class action in this case. But the question
that precedes this issue is whether the Supreme Court
of Appeal,
against whose order leave to appeal is sought, was right in
dismissing the applicant’s appeal and endorsing,
albeit for
different reasons, the High Court’s decision. All parties
having accepted that the standard laid down by the
Supreme Court of
Appeal in
Children’s Resource Centre
is correct, the
third question is whether the correct test for certification was
applied by that Court in this case.
Constitutional and legal background
For a
proper determination of these novel issues, it is necessary to
commence with an outline of relevant constitutional and other
legal
provisions. Our Constitution guarantees everyone the right of access
to courts which are independent of other arms of government.
20
But the guarantee in section 34 of the Constitution does not include
the choice of procedure or forum in which access to courts
is to be
exercised. This omission is in line with the recognition that courts
have an inherent power to protect and regulate
their own process in
terms of section 173 of the Constitution to which I will turn in a
moment.
Access
to courts is fundamentally important to our democratic order. It is
not only a cornerstone of the democratic architecture
but also a
vehicle through which the protection of the Constitution itself may
be achieved. It also facilitates an orderly resolution
of disputes
so as to do justice between individuals and between private parties
and the State. Our courts are mandated to review
the exercise of any
power by State functionaries, from the lowest to the highest ranking
officials.
In
Chief Lesapo v North West Agricultural Bank and Another
,
21
this Court underscored the importance of access to courts in these
terms:
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated and
institutionalised mechanisms to resolve disputes, without resorting
to self help. The right of access to court is a bulwark against
vigilantism, and the chaos and anarchy which it causes. Construed in
this context of the rule of law and the principle against
self help
in particular, access to court is indeed of cardinal importance. As a
result, very powerful considerations would be required
for its
limitation to be reasonable and justifiable.”
22
(Footnote omitted.)
However,
a litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable
the court to
adjudicate a dispute. In the main these procedures are contained in
the rules of each court. The Uniform Rules regulate
form and process
of the High Courts. The Supreme Court of Appeal and this Court have
their own rules. These rules confer procedural
rights on litigants
and also help in creating certainty in procedures to be followed if
relief of a particular kind is sought.
It is
important that the rules of courts are used as tools to facilitate
access to courts rather than hindering it. Hence rules
are made for
courts and not that the courts are established for rules. Therefore,
the primary function of the rules of courts
is the attainment of
justice. But sometimes circumstances arise which are not provided
for in the rules. The proper course in
those circumstances is to
approach the court itself for guidance. After all, in terms of
section 173 each superior court is the
master of its process.
Section 173
Section
173 of the Constitution provides:
“
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.”
Standard
for certification
It is
apparent from the text of the section that it does not only
recognise the courts’ power to protect and regulate their
own
processes but also their power to develop the common law where
necessary to meet the interests of justice. The guiding principle
in
exercising the powers in the section is the interests of justice.
Therefore, this is the standard which must be applied in
adjudicating applications for certification to institute class
actions.
In
Children’s Resource Centre
, the Supreme Court of Appeal
laid down requirements for certification. These requirements must
serve as factors to be taken into
account in determining where the
interests of justice lie in a particular case. They must not be
treated as conditions precedent
or jurisdictional facts which must
be present before an application for certification may succeed. The
absence of one or another
requirement must not oblige a court to
refuse certification where the interests of justice demand
otherwise.
Our
courts are familiar with an evaluation of factors with the view to
determine where the interests of justice lie in a given
case. For
example, this Court undertakes a similar examination in determining
whether it will be in the interests of justice
to grant leave to
appeal. This is not to mean that the factors relevant to the enquiry
are not important. But none of them is
decisive of the issue. The
High Court may follow a similar approach in determining applications
for certification.
In
the light of section 34 read with section 38 of the Constitution,
23
there can be no justification for elevating requirements for
certification to the rigid level of prerequisites for the exercise
of the power conferred without restrictions. Indeed in section 173,
the Constitution does not limit the exercise of the power
nor does
it lay down any condition, except that what is done must be in the
interests of justice. Compelling reasons would therefore
be
necessary for introducing inflexible requirements.
Courts must
embrace class actions as one of the tools available to litigants for
placing disputes before them. However, it is
appropriate that the
courts should retain control over class actions. Permitting a class
action in some cases may, as the Supreme
Court of Appeal has
observed in this case, be oppressive and as a result inconsistent
with the interests of justice. It is therefore
necessary for courts
to be able to keep out of the justice system class actions which
hinder, instead of advancing, the interests
of justice. In this way
prior certification will serve as an instrument of justice rather
than a barrier to it.
Flexibility
in applying requirements of procedure is common in our courts. Even
where enacted rules of courts are involved, our
courts reserve for
themselves the power to condone non-compliance if the interests of
justice require them to do so. Rigidity
has no place in the
operation of court procedures. Recently in
PFE
International and Others v Industrial Department Corporation of
South Africa Ltd
,
24
this Court reaffirmed the principle that rules of
procedure must be applied flexibly. There this Court said:
“
Since
the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their
processes, taking into account the interests of justice. It is this
power that makes every superior court the master of its own
process.
It enables a superior court to lay down a process to be followed in
particular cases, even if that process deviates from
what its rules
prescribe. Consistent with that power, this Court may in the
interests of justice depart from its own rules.”
25
(Footnote omitted.)
What
is said in this judgment about certification that must be obtained
before instituting a class action must not be construed
to apply to
class actions in which the enforcement of rights entrenched in the
Bill of Rights is sought against the State. Proceedings
against the
State assume a public character which necessarily widens the reach
of orders issued to cover persons who were not
privy to a particular
litigation.
26
Class actions in those circumstances are regulated by section 38
which confers, as of right, the authority to institute a class
action on certain persons, defined in the section. Moreover, claims
for enforcing rights in the Bill of Rights may even be brought
in
the wider public interest without certification.
In
this case we are not concerned with an enforcement of a right in the
Bill of Rights against the State. Although one of the
claims
mentioned by the applicant is for the vindication of the rights in
section 22 on the Constitution, this claim is to be
pursued against
private companies. I prefer to leave open the question whether the
institution of a class action to enforce a
right in the Bill of
Rights against a private litigant, requires prior certification. The
issue was not canvassed before us and
the interpretation of section
38 of the Constitution was not placed in issue. Parties on both
sides accepted that the requirements
for instituting a class action
laid down in the
Children’s Resource Centre
apply to
this matter. That case was concerned with certification of a class
action under the common law. In these circumstances
it is neither
prudent nor necessary to pronounce on whether prior certification
must be obtained for class actions instituted
in terms of section
38, without interpreting the section.
Proper approach on appeal
Section
173 makes plain that each of the superior courts has an inherent
power to protect and regulate its own process and to
develop the
common law on matters of procedure, consistently with the interests
of justice. The language of the section suggests
that each court is
responsible and controls the process through which cases are
presented to it for adjudication. The reason
for this is that a
court before which a case is brought is better placed to regulate
and manage the procedure to be followed
in each case so as to
achieve a just outcome. For a proper adjudication to take place, it
is not unusual for the facts of a particular
case to require a
procedure different from the one normally followed. When this
happens it is the court in which the case is
instituted that decides
whether a specific procedure should be permitted. The determination
to certify a class action is not
different to exercising the power
to allow one procedure instead of the other.
The
institution of a class action amounts to a procedural matter of
choosing a process suitable to a particular case, like instituting
an individual action or a joint action, both of which are regulated
by the Uniform Rules. In order to avoid interfering unduly
with the
exercise of the power to certify a class action, a court of appeal
must exercise restraint when determining an appeal
against the
exercise of that power.
27
Consistent with this approach, in
S v Basson
28
this Court rejected the argument that it should overturn the trial
court’s ruling, in terms of which evidence was excluded,
on
the basis that the ruling was wrong. This Court said:
“
Even
if a discretion is not a discretion in the strict sense, there may be
circumstances in which a court will nevertheless adopt
an approach on
appeal which will overturn the lower court’s decision only if
it has not been judicially made, or based on
incorrect principles of
law or a misappreciation of the facts. It is necessary to consider
now the nature of the discretion at
issue in relation to the
exclusion of the bail record by the trial court.
Under our constitutional order,
a trial court may exclude otherwise admissible evidence on the basis
that it may render the trial
unfair in order to protect the right to
a fair trial. There can be no doubt that it is the duty of the trial
court to ensure that
the trial is fair in substance and the trial
court is obliged to give content to this notion. In considering the
approach to the
exercise of discretion to exclude otherwise
admissible evidence in order to ensure a fair trial upon appeal, it
should be borne
in mind that trial judges must be given freedom to
exercise this discretion fairly on their understanding of the case
before them.
Courts must be slow to adopt rules which would
straight-jacket a trial judge in the exercise of that discretion.”
29
(Footnotes omitted.)
This
was the approach adopted by this Court in relation to the exercise
of a similar power by the Supreme Court of Appeal in
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others.
30
This Court stated:
“
Where the discretion is a
discretion in the strict sense, in that the Court had a range of
legal choices open to it, an appellate
Court will ordinarily
interfere with the exercise of that discretion only in narrow
circumstances. However, this Court has also
recognised that there
will be occasions where a decision made by another Court, which does
not involve the exercise of a discretion
in the strict sense, will
also be interfered with only in narrow circumstances. Relevant
considerations in these cases will be
the need for the exercise of
judgment by the Court to determine whether the fairness of the
proceedings before it is under threat.
That judgment will often have
to be exercised in the light of a range of complex factors, as this
Court observed in relation to
a different but related question in
Basson
:
‘
When a
trial court assesses the question whether the admission of evidence
would render the trial unfair, it has to consider a range
of factors:
the nature of the evidence in question, and how much of it is of
advantage to the parties; the need to be fair not
only to the accused
but also to the prosecution, in the interests of the broader
community; the need to ensure that a trial can
run efficiently and
reasonably quickly; and the reasons underlying the fact that the
admission of the evidence may render the trial
unfair. These are
complex factors which may well pull in different directions.’”
31
(Footnotes
omitted.)
Having
accepted that “the exercise of the powers recognised in
section 173 is not capable of single characterisation for
the
purposes of determining the correct approach on appeal”,
32
this Court held that interference on appeal should happen only in
specific circumstances. The Court listed factors which persuaded
it
to conclude that intervention must be on the narrow grounds that
apply to the exercise of a strict or narrow discretion. These
factors included the fact that it was undesirable for this Court to
instruct the Supreme Court of Appeal how to regulate the
conduct of
its own proceedings. This, I may add, is consistent with the
proposition that power vests in the court whose process
falls to be
protected and regulated. Ordinarily other courts do not have the
authority to exercise the power in question and
can intervene on
appeal only if the power is not exercised judicially.
33
Another
factor listed in
South African Broadcasting Corporation
was
the fact that the Supreme Court of Appeal in that case was called
upon to exercise a value judgment on how best to ensure
that
proceedings before it were conducted fairly. In addition, it was
pointed out that in the exercise of the section 173 power,
different
courts might legitimately come to different conclusions.
34
These factors will apply equally to the exercise of the power to
determine whether a class action ought to be certified. It is
the
court before which the class action is to be brought which is best
placed to determine whether a class action in relevant
circumstances
will be in the interests of justice.
However,
this does not mean that the court of first instance is not obliged
to follow the law as developed by a superior court.
In deciding
whether a class action should be allowed, that court is bound to
apply the standard or test laid down by a superior
court. This
accords with the principle of judicial precedent. This means that in
future the High Courts will be bound to apply
the interests of
justice standard and in determining where those interests lie in a
given case, guidance will be sought from
the factors mentioned in
paragraphs 15 to 18 above. But the list of factors mentioned there
is not exhaustive. A court will be
free to consider any factor
relevant and material to the enquiry. The point dealt with in this
aspect of the case is, however,
the identification of the standard
applicable on appeal to a decision of the court of first instance on
whether a class action
should be permitted or not. Decisions of this
Court suggest that interference on appeal is justified only if
certain grounds
are established.
As
was observed by this Court in
South African Broadcasting
Corporation
, the proper approach on appeal in the present case
is not whether the decision to refuse certification was correct but
whether
the High Court “did not act judicially in exercising
its section 173 discretion, or based the exercise of that discretion
on wrong principles of law, or a misdirection on the material
facts.”
35
Refusal
to certify
With
this approach in mind, it is now convenient to consider if there is
justification for overturning the High Court’s
refusal to
certify the class action. At the time the High Court considered the
request, the standard applicable to such requests
had not been
determined and the Uniform Rules did not provide for the institution
of class actions. The closest the Uniform Rules
come is to authorise
joint actions. The High Court was asked to negotiate uncharted
waters without any guidelines. It is therefore
understandable that
the Court ended up applying a standard other than the interests of
justice. As a result its decision was
based on an incorrect test.
This justifies interference with its decision on appeal.
Dismissal of appeal
Ordinarily
the application of an incorrect standard ought to have moved the
Supreme Court of Appeal to set aside the High Court’s
order
and remit the matter to the High Court, in the same manner as it did
in
Children’s Resource Centre
. In that case consumers
of bread sought certification to institute a class action for
damages allegedly suffered by them, arising
from the same
anti-competitive conduct of the respondents. The claims they sought
to pursue were described in terms which were
as unclear as the
present claims. The Supreme Court of Appeal in that case, approached
the matter on the footing that it was
not necessary to determine
whether the consumers’ claims were good in law or that on the
papers as they stood then, there
was sufficient evidence showing a
prima facie case. The Court held that those issues were not ripe for
determination due to the
novel nature of the claim, its complexity
and the fact that those issues were raised for the first time in the
Supreme Court
of Appeal.
36
But
in this case the Supreme Court of Appeal adopted a different
approach. It decided the very issues which it had declined to
consider in
Children’s Resource Centre
because it held
that their determination in that case would have been premature.
Here the Supreme Court of Appeal proceeded to
“non-suit”
the applicant on the basis of a standard established by it which did
not exist at the time the application
for certification was launched
in the High Court. As at that stage it was not clear what were the
requirements to be satisfied
in an application for certification.
It
seems to me that there are no compelling reasons for the Supreme
Court of Appeal to have followed an approach different to
the one it
adopted in
Children’s Resource Centre
. This is more so
when the facts that the same panel adjudicated these cases and both
judgments were delivered on the same date,
are taken into account.
It is clear that the Supreme Court of Appeal’s judgment in
Children’s Resource Centre
was prepared before its
judgment in this case. Its judgment in this case refers to and
adopts the standard for certification
laid down in that case.
37
The
only discernible distinction between these two judgments of the
Supreme Court of Appeal is that in
Children’s Resource
Centre
, it held that the applicants had a claim that was
“potentially plausible” even though the Court could not
say whether
the claim was good in law or that its existence was
prima facie established. Here the Supreme Court of Appeal held,
after evaluation,
that the claims advanced were not legally tenable.
It is not clear to me here why the claim that arose from the same
set of facts
could not be potentially plausible.
More
so when regard is had to section 65 of the Competition Act which
permits claims for damages arising from anti-competitive
conduct to
be pursued only after a relevant authority under that Act has
certified that the conduct in question constituted a
prohibited
practice.
38
The certificate issued in terms of the Competition Act constitutes
conclusive proof of its contents.
39
It is apparent from the text of section 65(6)(a) that a party
which suffered damages as a result of anti-competitive conduct
may
approach a civil court for the assessment or award of damages, if
that party was not awarded damages in terms of a settlement
agreement converted into a consent order by the Competition Tribunal
under section 49D(1) of the Competition Act.
In
these circumstances the Supreme Court of Appeal erred in not finding
that the applicant’s claim, like in
Children’s
Resource Centre,
was also potentially plausible. A further error
committed by the Court was the finding that certification in an
opt-in class
action requires the applicant to show exceptional
circumstances.
40
The test of exceptional circumstances is at variance with the
standard laid down by that Court in
Children’s Resource
Centre.
For
these reasons the appeal must succeed and the order issued by the
Supreme Court of Appeal should be set aside. An order similar
to the
one issued by the Supreme Court of Appeal in
Children’s
Resource Centre
must be granted. Its effect would be to remit
the case to the High Court to be dealt with in the light of this
judgment.
Costs
Although
this case raises constitutional issues, it is essentially a
commercial matter between private litigants. I can think
of no
reason why the usual rule that costs follow the event should not
apply here. By the reason of his success the applicant
is entitled
to costs in this Court as well as in the Supreme Court of Appeal.
Order
[56] In
the result the following order is made:
1. Leave
to appeal is granted.
2. The
appeal is upheld.
3. The
orders of the High Court and the Supreme Court of Appeal are set
aside and replaced with the following order:
“
(a) Should the applicant pursue
certification in the High Court, he is granted leave to supplement
his papers within two months
of this order, by delivering
supplementary affidavits to which a draft set of particulars of
claim will be attached, setting
out his claim against the
respondents.
(b) The respondents may deliver answering affidavits within a month
from the date of delivery of affidavits referred to in (a).
(c) The applicant may deliver his reply, if any, within two weeks
from the date he receives affidavits referred to in (b).
(d) The costs of the application are reserved.”
4. The
respondents are ordered to pay the applicant’s costs in the
Supreme Court of Appeal and in this Court, including
costs of two
counsel where applicable.
MHLANTLA AJ:
I am
grateful to my brother Jafta J for his judgment (main judgment),
which I support subject to only one reservation. In my
respectful
view, I can see no reason, principled or practical, for
circumscribing the reach of the certification requirement
in “class
actions in which the enforcement of rights entrenched in the Bill
of Rights is sought against the State”
41
or for the caution expressed regarding certification in a
class-action claim where horizontal application of the Bill of
Rights is at issue. As I see it, given the rationale for
certification and the nature of class actions, the benefits of the
certification process apply in all class action suits.
42
That is not to say that the source and nature of the class-action
claim will have no relevance to the certification process.
It may
indeed. As the main judgment rightly emphasises, requirements for
certification should “not be treated as conditions
precedent
or jurisdictional facts which must be present before an application
for certification may succeed.”
43
Rather, courts must always have regard, ultimately, to what the
interests of justice demand in a particular case.
The
rationale for requiring certification in class actions relates to
the peculiar challenges that such litigation presents
to ensuring
effective and fair processes in our courts. The main judgment
summarises this as follows:
“
Courts
must embrace class actions as one of the tools available to
litigants for placing disputes before them. However, it is
appropriate that the courts should retain control over class
actions. Permitting a class action in some cases may, as the Supreme
Court of Appeal has observed in this case, be oppressive and as a
result inconsistent with the interests of justice. It is therefore
necessary for courts to be able to keep out of the justice system
class actions which hinder, instead of advance, the interests
of
justice.
In
this way prior certification will serve as an instrument of justice
rather than a barrier to it
.”
44
(Emphasis
added.)
Certification
is also significant in protecting the interests of persons whose
right to pursue a claim may be extinguished by
a class action. The
outcome of a class action, favourable or unfavourable, is binding
on all members of a class. Thus, the
right of those members to
raise the dispute again will, in terms of our current law, be
substantially limited by the application
of the
res judicata
principle. The preliminary stage of certification therefore
plays an important role in informing and protecting potential class
members through, for example, notification procedures.
45
To my mind, this must be so both in constitutional rights claims as
well as non-constitutional rights claims, and whether the
parties
are State or non-State actors.
I
therefore support the order and the main judgment’s
reasoning, save for paragraphs 40 and 41 thereof.
FRONEMAN J (Skweyiya J concurring):
I
agree that leave to appeal must be granted and that the appeal must
succeed, but I have a different understanding of the effect
that
the development of the common law by the Supreme Court of Appeal in
Children’s Resource Centre
46
had on its own adjudication of the present case. I also consider it
necessary to expand somewhat on why I consider that the
Supreme
Court of Appeal’s treatment of the applicant’s
potential claim in the proposed class action was too strict.
Lastly, I express no opinion on whether certification should also
be required where class actions are brought under section
38 of the
Constitution, as it was not an issue before this Court and the
parties were not in a position to present full argument
on it.
Development
of the common law
Neither
the common law nor legislation made provision for a class action.
The Supreme Court of Appeal developed the common law
in
Children’s
Resource Centre
to allow for the use of a class action in
non-constitutional claims not directly based on the alleged
infringement of a fundamental
right in the Bill of Rights. It
acknowledged the source of its power to do so in section 173 of the
Constitution.
47
The reasoning that led Wallis JA to this development was that
it would be irrational to allow class actions for constitutional
matters and not non-constitutional claims,
48
because of the similarities involved.
49
This is what gives this case much of its constitutional dimension.
In
Children’s Resource Centre
the Supreme Court of Appeal
was careful not to tread onto policy issues in its development of
the common law, because that
“would not involve a development
of the common law, but rather a substantial alteration to it.”
50
It expressed similar caution that the factors that it mentioned
should be considered in deciding whether certification of a
class
action should be granted, were not exclusive
51
and that the application of its guidelines would have to be applied
on a case-by-case basis.
52
None
of the parties sought to attack the Supreme Court of Appeal’s
approach to the development of the common law in this
manner in
Children’s Resource Centre
. I can find no fault with
it either. To the contrary, it is an important and valuable
contribution to the body of our law.
It provides our courts with a
flexible set of guidelines to apply in applications for the
certification of class actions in
common law claims, case by case.
My
understanding of the legal position flowing from this development
is that courts are bound by the authoritative exposition
of the
development of the common law by the Supreme Court of Appeal –
or by this Court, if it adds to or alters any feature
of the
development made by the Supreme Court of Appeal. Courts have no
discretion under section 173 of the Constitution not
to apply the
common law as authoritatively articulated by the Supreme Court of
Appeal or this Court. What they may do is to
apply the developed
law within the framework of their own process. Their decision not
to allow certification
53
may be set aside on appeal only if there was a material
misdirection of fact or law. I see no reason to deviate from this
approach here.
Application of the development of the common law
The
Supreme Court of Appeal applied the law as developed in
Children’s
Resource Centre
to the facts of the present case. Once again I
can find no fault with that general approach. As explained by this
Court in
K v Minister of Safety and Security
,
54
development of the common law may take place incrementally or on
occasion more substantially, when “a common-law rule
is
changed altogether, or a new rule is introduced”.
55
When that happens the developed rule is applied to the case at hand
and subsequent cases,
56
much in the same way as this Court recognises that the
retrospective effect of an order may need to be limited in the
light
of the doctrine of objective constitutional validity or
invalidity.
57
The development that occurred in
Children’s Resource
Centre
was of the substantial kind.
What
remains is to determine whether the Supreme Court of Appeal’s
application of the
Children’s Resource Centre
principles to the facts of this case was correct. In my view there
are two aspects of that application that are open to criticism.
The
first is the addition of a further requirement, namely that in
opt-in cases certification should only be granted in exceptional
circumstances. I agree with the main judgment that this stringent
addition to the
Centre Resource Centre
guidelines is
uncalled for. The second relates to the finding that the
applicant’s claim is not tenable. I consider that
evaluation
as too harsh in the particular circumstances. It is to that aspect
that I now turn.
A tenable claim?
The
applicant has done no one any favour in the manner in which he has
prevaricated and changed the grounds for his alleged
claim against
the respondents in argument before the Supreme Court of Appeal and
before this Court.
58
In the Supreme Court of Appeal he apparently relied on a claim
under section 22 of the Constitution,
59
allied to the provisions of the Competition Act,
60
but the Court treated it on a wider basis, namely as a claim under
section 22 of the Constitution, read together with the Competition
Act, as well as one under the common law.
61
In
this Court the applicant did not pursue the section 22 argument
with any vigour and rightly so. As pointed out by the Supreme
Court
of Appeal,
62
the right that section 22 guarantees to a citizen is to enter a
trade, profession or occupation, but not a right to a successful
outcome once having done so. And if there is another basis in the
common law or in legislation to claim damages, one would
be hard
pressed to find a cogent reason for a separate constitutional claim
for damages as well.
63
The
Supreme Court of Appeal also made short shrift of the delictual
claim, stating that no policy reasons were advanced for
the
“recognition of a claim to maximise profits from the sale of
bread, least of all to reap the rewards of price fixing.”
64
It is here where some more caution was, in my view, called for.
In
Children’s Resource Centre
the Supreme Court of Appeal
stated:
“
It
must be borne in mind that, as a result of the procedure we now lay
down, the party seeking certification will have set out
in a draft
pleading and in affidavits the basis for the proposed action. In so
doing the court will probably have more material
available to it in
regard to the cause of action than would be the case with a normal
exception. That will enable the court to
make a proper assessment of
the legal merits of the claim and, sensitively applied in this new
area of law and procedure there
should not be a difficulty. Unless
it is plain that the claim is not legally tenable, certification
should not be refused. The
court considering certification must
always bear in mind that once certification is granted the
representative will have to deliver
a summons and particulars of
claim and that it will be open to the defendant to take an exception
to those particulars of claim.
The grant of certification does not
in any way foreclose that or answer the question of the claim’s
legal merit in the
affirmative.”
65
Because
of the particular circumstances of the case we have no pleadings or
affidavits before us yet. The founding affidavit
does, however,
contain the passage quoted in the main judgment,
66
which seeks to lay the bare basis for a damages claim under section
65 of the Competition Act. The Competition Tribunal findings
are
before us and establish the unlawful conduct under the Competition
Act which allegedly caused the damages. It has not yet
been
determined in our law what the true nature of a claim under section
65(1) is and it is unwise to attempt to do so at this
early
certification stage of proceedings.
67
In
argument before us it was contended that there is no room, on the
basis of the Tribunal’s findings, for a damages claim
by both
the applicant’s class of bread distributors and by consumers
as a separate class. It could only be one or the
other, the
argument went. The difficulties of proving causation were alluded
to in this regard. There may well yet be merit
in these
contentions, but the apparent inexorable logic of the contentions
will be better tested in later court proceedings
where the policy
considerations relating to unlawfulness and legal causation can be
fully aired and assessed, as is the case
in normal court
proceedings.
For
the moment, at this early stage of the proceedings, and also
because we are at the early development of any possible damages
claims under section 65 of the Competition Act, it suffices to
state that although neither the Constitution nor the common
law
guarantees profit, they do not forbid the making of profit either.
I am of the view that it would be premature finally
to determine,
at this early stage of certification, that there is no tenable
claim in our law when someone alleges that, had
there been no price
fixing, his or her business could have been better off in the
competitive environment that would have followed,
and that, because
of this, ultimately consumers could have benefitted too. There may
well be difficulties in relation to who
would have benefitted in
the competitive market, on what basis they may have benefitted, and
to what extent they would have
benefitted, but these considerations
should rather await fuller examination once the action is
commenced.
[77]
For these reasons I concur in the order granted in the main
judgment.
For
the Applicant: Advocate R P Hoffman SC, Advocate W de Vos and
Advocate C D Shone instructed by Knowles Hussain Lindsay Inc.
For
the First Respondent: Advocate S F Burger SC, Advocate P McNally SC
and Advocate J A Cassette instructed by Cliffe Dekker
Hofmeyer Inc.
For
the Second Respondent: Advocate J Dickerson SC and Advocate M
O’Sullivan instructed by Edward Nathan Sonnenbergs.
For
the Third Respondent: Advocate D Unterhalter SC, Advocate M du
Plessis and Advocate L Kelly instructed by Nortons Inc.
For
the Amicus Curiae: Advocate
T Ngcukaitobi
and
Advocate M Bishop instructed by Legal
Resources Centre.
1
Section
34 of the Constitution provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
2
The
full text of section 173 is quoted in [33] below.
3
Then
the source of the power was the common law.
4
89
of 1998.
5
Agri
Wire (Pty) Ltd and Another v Commissioner of the Competition
Commission and Others
[2012] ZASCA 134
;
[2012] 4 All SA 365
(SCA).
6
One
of the parties was a juristic person.
7
Children’s
Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and
Others
[2012] ZASCA 182
;
2013 (2) SA 213
(SCA) (
Children’s
Resource Centre
).
8
They
were Nugent JA, Ponnan JA, Malan JA, Tshiqi JA and Wallis JA.
9
29
November 2012.
10
Children’s
Resource Centre
n 7 at para 22.
11
Id
at para 37.
12
Id
at para 48.
13
Mukaddam
and Others v Pioneer Foods (Pty) Ltd and Others
[2012] ZASCA
183
;
2013 (2) SA 254
(SCA) (
Mukaddam
) at para 4.
14
Section
22 provides:
“
Every citizen has the right
to choose their trade, occupation or profession freely. The practice
of a trade, occupation or profession
may be regulated by law.”
15
Mukaddam
above n 13 at para 9.
16
Id
at para 10.
17
Rule
10(1) provides:
“
Any number of persons, each
of whom has a claim, whether jointly, jointly and severally,
separately or in the alternative, may
join as plaintiffs in one
action against the same defendant or defendants against whom any one
or more of such persons proposing
to join as plaintiffs would, if he
brought a separate action, be entitled to bring such action,
provided that the right to relief
of the persons proposing to join
as plaintiffs depends upon the determination of substantially the
same question of law or fact
which, if separate actions were
instituted, would arise on each action, and provided that there may
be a joinder conditionally
upon the claim of any other plaintiff
failing.”
18
Mukaddam
above n 13 at para 14.
19
The
full text of section 173 is quoted in [33] below.
20
Section
34 quoted above n 1 read with section 165 of the Constitution.
Section 165 provides:
“
(1) Judicial authority of the
Republic is vested in the courts.
(2) The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and
without
fear, favour or prejudice.
(3) No person or organ of state may interfere with the
functioning of the courts.
(4) Organs of state, through legislative and other
measures, must assist and protect the courts to ensure the
independence, impartiality,
dignity, accessibility and effectiveness
of the courts.
(5) An order or decision issued by a court binds all
persons whom and organs of state to which it applies.”
21
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC).
22
Id
at para 22.
23
Section
38 provides:
“
Anyone listed in this section
has the right to approach a competent court, alleging that a right
in the Bill of Rights has been
infringed or threatened, and the
court may grant appropriate relief, including a declaration of
rights. The persons who may approach
a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its
members.”
24
[2012]
ZACC 21
;
2013 (1) SA 1
(CC);
2013 (1) BCLR 55
(CC).
25
Id
at para 30.
26
See
in this regard
Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR 441
(CC) at para 10.
27
See
Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd
(‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A).
28
[2005]
ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC).
29
Id
at paras 111-2.
30
[2006]
ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) (
South
African Broadcasting Corporation).
31
Id
at para 39.
32
Id
at para 40.
33
Id
at paras 40-1.
34
Id
at para 40.
35
Id
at para 41.
36
Children’s
Resource Centre
above n 7 at para 88 read with para 75.
37
Mukaddam
above n 13 at para 4.
38
Section
65(6) provides:
“
A person who has suffered
loss or damage as a result of a prohibited practice—
(a) may not commence an action in a civil court for the
assessment of the amount or awarding of damages if that person has
been
awarded damages in a consent order confirmed in terms of
section 49D(1); or
(b) if entitled to commence an action referred to in
paragraph (a), when instituting proceedings, must file with the
Registrar
or Clerk of the Court a notice from the Chairperson of the
Competition Tribunal, or the Judge President of the Competition
Appeal
Court, in the prescribed form—
(i) certifying that the conduct constituting the basis
for the action has been found to be a prohibited practice in terms
of this
Act;
(ii) stating the date of the Tribunal or Competition
Appeal Court finding; and
(iii) setting out the section of this Act in terms of
which the Tribunal or the Competition Appeal Court made its
finding.”
39
Section
65(9).
40
Mukaddam
above n 13 at para 14.
41
See
[40] above.
42
This
refers to the type of representative action where members of a
class, although not formally and individually joined, benefit
from,
and are bound by, the outcome of the litigation in question. In the
context of constitutional claims under the Bill of
Rights, section
38(c) of the Constitution specifically recognises the possibility
for such class actions. See, for example,
Ngxuza and Others v
Permanent Secretary, Department of Welfare, Eastern Cape, and
Another
2001 (2) SA 609
(ECD), where the Court considered
class actions in the context of section 38 of the Constitution.
There, the Court noted the
potential benefits of a preliminary stage
where leave has to be sought in order to proceed with the class
action suit (at 624D-J).
In that case, the Court crafted an order to
give effect to the class action, which order was later approved by
the Supreme Court
of Appeal (
Permanent Secretary, Department of
Welfare, Eastern Cape, and Another v Ngxuza and Others
[2001]
ZASCA 85
;
2001 (4) SA 1184
(SCA)).
43
See
[35] above.
44
See
[38] above.
45
Such
notification procedures are not available in joinder proceedings. By
contrast, once a class is certified
a court must
provide for members of the class to be notified of the upcoming
action. Notification procedures are particularly
significant in the
context of opt-out class actions because all members of the class
will be bound by the judgment except for
those members who actively
opt out of the class. Without adequate notification procedures
individuals could be bound to a judgment
even though they had not
explicitly consented to, and may not even have been aware of, the
action.
46
Children’s
Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and
Others
[2012] ZASCA 182
;
2013 (2) SA 213
(SCA
).
47
Id
at para 15.
48
See
section 38(c) of the Constitution.
49
Children’s
Resource Centre
above n 46 at para 21.
50
Id
at paras 22 and 85.
51
Id
at para 28:
“
Without excluding the
possibility of there being other issues that require consideration,
it suffices for our purposes to say
that a court faced with an
application for certification of a class action must consider the
factors set out in the list in para
26 and be satisfied that they
are present before granting certification.
I
now address in greater detail some of these factors that are of
particular relevance for this case
.”
(My emphasis.)
52
Id
at para 15.
53
Whether
the granting of certification is appealable was left open in
Children’s Resource Centre
above n 46 at para 25.
54
[2005]
ZACC 8
;
2005 (6) SA 419
(CC);
2005 (9) BCLR 835
(CC).
55
Id
at para 16.
56
Compare
Minister of Finance and Others v Gore NO
[2007] ZASCA (98);
2007 (1) SA 111
(SCA);
Trustees, Two Oceans Aquarium Trust v
Kantey & Templer (Pty) Ltd
[2005] ZASCA (109);
2006 (3) SA
138
(SCA); and
Minister van Polisie v Ewels
1975 (3) SA 590
(A).
57
Gory
v Kolver NO and Others
(
Starke and Others
Intervening)
[2006] ZACC 20
;
2007 (4) SA 97
(CC);
2007 (3) BCLR 249
(CC) at para
43.
58
In
this Court he sought to advance another cause of action, based on
the alleged interference with contractual relations. This
had no
basis in the papers.
59
Section
22 provides that “[e]very citizen has the right to choose
their trade, occupation or profession freely. The practice
of a
trade, occupation or profession may be regulated by law.”
60
89
of 1998.
61
Supreme
Court of Appeal judgment at para 6.
62
Id
at para 8.
63
See
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC).
64
Supreme
Court of Appeal judgment at para 10.
65
Children’s
Resource Centre
above n 46 at para 39.
66
See
[12] above.
67
Compare
Children’s Resource Centre
above n 46 at paras 66-73.