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[2018] ZASCA 112
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Minister of Safety and Security and Another v Schuster and Another (114/2018) [2018] ZASCA 112 (13 September 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-reportable
Case
No: 114/2018
In
the matter between:
MINISTER
OF SAFETY AND
SECURITY
FIRST
APPELLANT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
APPELLANT
and
MARIUS
SCHUSTER
FIRST
RESPONDENT
DARRYL
CAMPHER
SECOND
RESPONDENT
Neutral
citation:
Minister
of Safety and Security & another v Marius Schuster & another
(114/2018)
[2018] ZASCA 112
(13 September 2018)
Coram:
Cachalia, Majiedt,
Willis, Mathopo and Schippers JJA
Heard:
28 August 2018
Delivered:
13
September 2018
Summary:
Arrest and detention –
whether warrants of arrest obtained – whether further detention
after court appearance lawful
– appeal upheld – costs –
appeal decided on the facts – general rule applies.
ORDER
On
appeal from:
The
Eastern Cape Division of the High Court, Grahamstown (Lowe and Smith
JJ sitting as the court of appeal from the magistrate’s
court):
1 The appeal is upheld,
with costs, including the costs of two counsel.
2 The order of the
Eastern Cape Division of the High Court, Grahamstown is set aside and
the following substituted therefor:
‘
(a)
The appeal is upheld with costs.
(b)
The order of the Regional Court of the Eastern Cape held at Port
Elizabeth (the magistrate’s court) is set aside and the
following substituted therefor:
‘
The plaintiffs’ claims
are dismissed, with costs
.’
JUDGMENT
Willis
JA (Cachalia, Majiedt, Mathopo and Schippers JJA concurring):
Introduction
[1]
This appeal is concerned with the alleged unlawful arrest and
detention of the respondents. In the civil action for damages
in the
Port Elizabeth Regional Court, the magistrate found in favour of the
respondents, who had been the plaintiffs in the action
before her.
The appellants thereupon appealed to the Eastern Cape Division of the
High Court, Grahamstown, which dismissed the
appeal with costs. The
appeal before us is with the leave of this court. The appellants are,
respectively, the Minister of Safety
and Security and the National
Director of Public Prosecutions (NDPP).
[2]
The respondents alleged that they had been unlawfully arrested,
without a warrant of arrest, on a charge of robbery on 10 January
2013. Their claim was for damages arising not only from their alleged
unlawful arrest but also their continued detention at the
St Alban's
prison until 30 January 2013.
An
Outline of the Issues
[3]
The arrest of the respondents on the day in question is common cause.
Their case was set out in the particulars of claim as
follows:
‘
On or about the 10
th
of January 2013 at approximately 01h30 and at 38A Renecke Street,
Helenvale, Port Elizabeth, the Plaintiffs were arrested,
without
a warrant
, on a charge of
Robbery, by members of the South African Police Service
.’
(Emphasis added.)
Later,
in the particulars of claim, it is alleged that:
‘
After the Plaintiffs’
arrest,
without a warrant
,
[they were] detained arbitrarily and without just cause at the
Gelvandale police station on the said charge under Gelvandale case
306/08/2012
.’
(Emphasis added.)
There
was no application, at any stage, to amend these allegations.
The
appellants alleged that the arrests were lawful, having been
authorised by warrants issued on 21 November 2012.
[4]
Immediately after the arrest on 10 January 2013, the respondents were
taken to the Gelvandale Police Station until they were
brought to
court later that same day, at approximately 08h30. At the time, the
respondents, who did not have the benefit of legal
representation,
indicated to the court that they intended to apply for bail. The
respondents were remanded in custody until 21
January 2013, when the
bail hearing was scheduled to be heard. On the remand date they
abandoned their bail application, electing
to have an expeditious
trial because, previously, bail on the same charges had been refused.
The matter was then postponed for
trial on 29 January 2013, with the
respondents remaining in custody. They were acquitted on 30 January
2013 and had therefore been
in custody from 10 to 30 January 2013.
[5]
The respondents had previously been arrested in August 2012 in
connection with the same offence. After an initial bail application,
they were denied bail. In October 2012, the case against them was
withdrawn as the complainant did not attend court on the date
of
trial. The respondents were then released, but on 23 October 2012,
the prosecutor in the matter asked the investigating officer
to
ascertain from the complainant whether he still wished to proceed
with the case. In November 2012 the police managed to establish
contact with the complainant. He confirmed that he indeed wished to
do so. Between November 2012 and the arrest of the respondents
on 10
January 2013, the evidence was that Constable January, looking for
the respondents, made several unsuccessful visits to their
home,
because he had considered bringing them to court without a warrant of
arrest. He left several messages for them to report
to the Gelvandale
Police Station, but they did not act thereupon.
[6]
Constable January, who arrested the respondents, said that he showed
them the warrants for their arrest but did not hand over
copies
thereof to them when they were arrested on 10 January 2013. No
original was produced at the civil trial. A copy of the warrant
of
arrest issued in respect of the second respondent, on 21 November
2012, was produced in reply to a request for further particulars
but
there was no copy of any warrant for the arrest of the first
respondent. Constable January testified that he had applied
for
and obtained warrants for both of them. This was not challenged. The
investigation diary, which is part of the police docket,
also refers
to the application for warrants for the arrest of both respondents in
November 2012. The evidence showed that Constable
January made an
affidavit in support of the application for the warrants, took it to
the prosecutor and thereafter went to a magistrate
at New Courts,
Port Elizabeth, where both warrants were issued. This is confirmed by
the fact that the number ‘2’ appears
alongside the name
of the second respondent, who was accused 2 in the trial. Constable
January explained that the reason the police
were able to produce
only one warrant was most probably that the other had been lost when
the respondents were placed in the cells.
It is inherently
plausible and credible in the circumstances of this case that the
police applied for and obtained two warrants
of arrest: the
respondents were alleged to have committed the crimes together and
lived at the same address.
[7]
The second respondent did not testify. There was therefore no
evidence to gainsay that of the State that a warrant for arrest
had
been issued. During the course of his evidence, the first respondent
claimed that, upon their arrest, he asked for a copy of
the warrant
of arrest to be handed to him but this was not done. This allegation
was not made in the pleadings and no amendment
was sought in regard
thereto. On appeal, the court a quo found that the only issue, in
regard to the alleged unlawfulness of the
arrest, was whether the
respondents had asked for copies of the warrants of arrest.
[8]
During the course of cross-examination a series of questions were put
to Constable January, consecutively, reading as one:
Question: ‘
Al
twee eisers het gevra “as jy ‘n lasbrief het gee vir ons
asseblief ‘n “copy” daarvan, dat ons kyk
daarna.”
Toe sê u “nee manne moenie worry nie, kom klim net in”.
Geen regte was verduidelik op die toneel
nie Hulle het by die
polisiestasie gekom en u het die kennisgewing van regte ingevul en
vir hulle gesê om te teken?
’
Answer: ‘
Nadat
ek hulle regte vir hulle gelees het
.’
The
magistrate found that Constable January could not admit or deny that
the respondents requested copies of their warrants of arrest,
upon
their arrest. This is not correct.
[9]
The prosecutor, Ms Odea Rockman, testified in the trial. She
confirmed that on 10 January 2013 she had requested that the matter
be remanded with the accused being held in custody pending their bail
application. She said that because armed robbery was listed
in
schedule 6 of the Criminal Procedure Act 51 of 1977
(the CPA), she had relied
on the peremptory provisions of s 60(11)
(a)
of the
CPA. She testified that the magistrate in the criminal trial had
remanded both accused in custody.
[10]
The magistrate in the civil trial awarded the respondents R50 000
each, with interest from the date of summons to the date
of payment,
for the unlawful arrest on 10 January 2013 and R250 000 each for
their continuing detention until 30 January 2013,
also with interest.
Costs followed the result. As mentioned previously, the appellants
then appealed to the court a quo. The court
a quo dismissed the
appeal with costs.
An
Evaluation of the Issues
[11]
The Constitutional Court’s judgment in
Zealand
v Minister for Justice and Constitutional Development & another
affirms that the onus
naturally rests on the Minister to justify an arrested person’s
loss of liberty.
[1]
If one has regard to the
principles and criteria set out in
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et Cie
,
[2]
and especially the
unchallenged evidence of Constable January and the record of events,
the probabilities are that there were indeed
warrants for the arrest
of both the respondents. This was also the finding of the court a
quo. Counsel for the respondents himself
seemed, ultimately,
constrained to agree as well.
[12]
In
President
of the Republic of South Africa & others v South African Rugby
Football Union &
others,
the
duty to direct a witness’ attention to the fact that he or she
was not telling the truth on a particular point and to
have a fair
opportunity to respond was emphasised.
[3]
Indeed, the respondents’ presentation of their case appears to
have been ‘all over the place’, being made up
as they
went along. Given the manner in which the matter was dealt with by
the respondents, it would be wrong to find that Constable
January was
asked for but did not produce the warrants of arrest. Both the
magistrate and the court a quo erred in their finding
in this regard.
Accordingly, the arrest was not unlawful, either on the basis that it
was effected without a warrant or, in terms
of s 39(2) of the CPA,
that when Constable January was asked to produce it he failed to do
so.
[4]
Accordingly, the
issues dealt with in
Minister
van Veiligheid en Sekuriteit v Rautenbach
[5]
do not arise in this case. So, too, the case is fundamentally
distinguishable from
Baasden
v Minister of Safety and Security
[6]
and
Minister
of Safety and Security v Tyokwana
,
[7]
to
which we were referred.
[13]
There remains the question of whether the detention of the
respondents, after they had been brought to court on 10 January
2013
until their acquittal on 30 January 2013, was unlawful. The point
decided in
Isaacs
v Minister van Wet en Orde
[8]
that, where a person has been unlawfully arrested, his or her
detention thereafter is unlawful, until such time as a magistrate,
exercising a judicial function, decides to order the continued
detention of the person arrested, obviously does not arise. The
anterior precondition of the unlawfulness of the arrest has been
disposed of, in favour of the appellants.
[14]
In
De
Klerk v Minister of Police
,
[9]
the majority of this court referred to
Sekhoto
to hold that the Minister of Police could not be held responsible for
a detention after the arrested person had been brought before
court.
[10]
This court is
mindful of the salutary duty, set out in
Carmichele
v Minister of Safety and Security
,
[11]
of the prosecutor to put
before the magistrate all facts which may be relevant to him or her
in the exercise of that discretion.
[12]
Nevertheless, no matter
what the facts that may have been put before the magistrate by the
prosecutor on 10 January 2013, these
would not have prevented the
detention of the respondents until the formal bail hearing.
[15]
The alleged offence, being robbery involving the use of a firearm, is
indeed listed in schedule 6 of the CPA. Section 60(11)
(a)
of
the CPA is cast in peremptory terms, requiring that an accused person
be ‘detained in custody’ unless ‘having
been given
a reasonable opportunity to do so he or she ‘adduces evidence
which satisfies the court that exceptional circumstances
exist which
in the interests of justice permit his or her release’. In the
interest of an expeditious trial, the respondents
had abandoned their
bail hearing. They therefore did not adduce any evidence to permit
their release from detention. Correspondingly,
no fault can be
attributed to any representatives of the State in respect of the
respondents being held in custody. The appeal
must be upheld.
C
osts
[16]
Almost a century ago, in
Texas
Co (SA) Ltd v Cape Town Municipality
,
[13]
Innes
CJ explained the purpose of a costs award as follows:
‘
[C]osts are awarded to a
successful party in order to indemnify him for the expense to which
he has been put through having been
unjustly compelled either to
initiate or to defend litigation as the case may be. Owing to the
necessary operation of taxation,
such an award is seldom a complete
indemnity; but that does not affect the principle on which it is
based
.’
[14]
Generally,
in civil litigation, costs follow the result. Relying on
Harrielall
v University of Kwazulu-Natal
[15]
,
counsel for the respondents submitted that we should depart from the
general rule and apply the so-called ‘
Biowatch
principle’.
[16]
In terms
of
Biowatch
and restated in
Harrielal
,
unless the litigation is frivolous or vexatious, litigants who are
unsuccessful in proceedings against organs of state should
not be
mulcted with costs in constitutional matters.
[17]
[17]
The appellants, the Minister and the NDPP, are organs of state.
Although the respondents’ claim lacked merit –
indeed was
marked by its slenderness – the litigation cannot be said to
have been frivolous or vexatious.
[18]
What remains to be considered is whether the claim, based as it was
on an alleged unlawful arrest and detention (ie deprivation
of
freedom), can be said to be a constitutional matter as contemplated
in
Biowatch
and in
Harrielall
.
[18]
Shorn of some rhetorical flourishes, this is an ordinary delictual
claim for damages, one of many instituted in our courts
daily. The
central issues turned on narrow factual enquiries. First, in respect
of the arrest – whether it had been effected
with a warrant or
not. Secondly, with regard to the detention – whether the
prosecutor failed to place all relevant facts
relating to bail before
the magistrate. It did not involve any legal question, much less any
constitutional principle. A brief
overview of the history of this
particular delict, which forms part of the personality rights, may be
helpful in demonstrating
why this is not a constitutional matter, as
envisaged in
Biowatch
and
Harrielall
.
[19]
At common law, the right to liberty has been recognised since time
immemorial. It originates from the period of the
Usus
Modernus Pandectarum
and
was based on the
actio
iniuriarum
in the Roman-Dutch law.
[19]
The law reports, both before and after our present constitutional
dispensation are replete with instances of actions based
on the
wrongful deprivation of liberty, of which unlawful arrest and
detention respectively are each a species.
[20]
We are not aware of any reported decision, and have not been referred
to any, where an action of this type has been held to be
a
‘constitutional matter’ as envisaged in
Biowatch
and in
Harrielall
.
[20]
Unlawful arrest and detention infringes the right to bodily freedom
(or
libertas)
,
which was already recognized as long ago as 1895 in
The
Queen v Sigcau
[21]
as follows: ‘(t)he value of a man’s personal liberty is
far beyond any estimate in mere money’. Roman law recognized
this right, as part of personality rights, as one of significant
importance: ‘
libertas
inaestimabilis res est’
(liberty is a thing beyond price).
[22]
[21]
The right to freedom of the person is also, importantly, entrenched
as a fundamental right in the Bill of Rights in s 12(1)(
a
)
and (
b
)
of the Constitution. This court has held that where a statutory
mechanism is available to vindicate constitutional rights, it
must be
used, provided it is constitutionally unobjectionable.
[23]
The same applies in respect of a well-established common law remedy,
such as a delictual claim for damages for unlawful arrest
and
detention. Against this background, it may be helpful to analyse
briefly the issues which were at stake in
Biowatch
and
Harrielall.
[22]
Biowatch
concerned the correctness of two adverse costs orders
against the Biowatch Trust, an environmental watchdog. It sought
information
from the Directorate, Genetic Resources in the Department
of Agriculture with regard to the generic modification of organic
material.
In
Biowatch
, the Constitutional Court enunciated the
approach to be adopted in respect of costs orders in unsuccessful
litigation against the
state in constitutional matters as follows:
‘
In
Affordable
Medicines
this Court held
that as a general rule in constitutional litigation, an unsuccessful
litigant in proceedings against the state ought
not to be ordered to
pay costs
.
. . . .
The rationale for this general rule is
three-fold. In the first place it diminishes the chilling effect that
adverse costs orders
would have on parties seeking to assert
constitutional rights. Constitutional litigation frequently goes
through many courts and
the costs involved be high. Meritorious
claims might not be proceeded with because of a fear that failure
could lead to financially
ruinous consequences. Similarly, people
might be deterred from pursuing constitutional claims because of a
concern that even if
they succeed they will be deprived of their
costs because of some inadvertent procedural or technical lapse.
Secondly, constitutional
litigation, whatever the outcome, might
ordinarily bear not only on the interests of the particular litigants
involved, but on
the rights of all those in similar situations.
Indeed, each constitutional case that is heard enriches the general
body of constitutional
jurisprudence and adds texture to what it
means to be living in a constitutional democracy. Thirdly, it is the
state that bears
primary responsibility for ensuring that both the
law and state conduct are consistent with the Constitution. If there
should be
a genuine, non-frivolous challenge to the constitutionality
of a law or of state conduct, it is appropriate that the state should
bear the costs if the challenge is good, but if it is not, then the
losing non-state litigant should be shielded from the costs
consequences of failure. In this way responsibility for ensuring that
the law and the state conduct is constitutional is placed
at the
correct door.’
[24]
(Footnotes omitted.)
[23]
In
Harrielall
a student unsuccessfully challenged on review the decision of the
University of KwaZulu-Natal not to admit her to its medical school.
In dismissing Ms Harrielall’s appeal, this court followed
the general rule on costs, holding that the ‘
Biowatch
principle’
did not apply as no constitutional issues were involved. The
Constitutional Court disagreed on two grounds. First,
it held that
reviewing administrative action under the PAJA constitutes a
constitutional issue. In determining Ms Harrielall’s
application for admission, the University exercised a public power.
Secondly, the Constitutional Court noted that, in applying
for
admission to medical school, Ms Harrielall wanted to access further
education for training as a medical doctor. The university’s
refusal of her application touched upon her right of access to
further education in s 29(1)(
b
)
of the Constitution.
[25]
[24]
It is important not to lose sight of the underlying rationale behind
the ‘
Biowatch
principle’,
first enunciated in
Affordable
Medicines
and
confirmed in
Harrielall
.
[26]
The basis of the rationale is primarily to avoid deterring litigants
who might wish to vindicate their constitutional rights. Moreover,
constitutional litigation enhances – indeed magnifies –
the general body of constitutional jurisprudence.
Constitutional
litigation also places the primary responsibility for
ensuring that the law and state conduct conforms with the
Constitution where
it belongs: at the door of the state.
[27]
These considerations do not apply in the present case.
[25]
There is a second compelling reason why this is not a constitutional
matter: the case turned solely on the facts, rather than
on any novel
or abstruse principle of law that has not yet been tested in the
courts. In
Booysen
v Minister of Safety and Security
[28]
the Constitutional Court decided that it lacked the requisite
jurisdiction to grant leave to appeal.
[29]
That decision was based on the principle, enunciated in earlier
decisions of that court, that it will not entertain matters that
turn
only on facts in the application of established legal principles.
[30]
In this regard, the Constitutional Court referred to two of its
earlier decisions,
Mankayi
v Anglogold Ashanti Ltd
[31]
and
Mbatha
v University of Zululand
.
[32]
In
Mankayi
the
Constitutional Court reaffirmed its earlier decision in
Boesak
[33]
that a challenge on the sole basis that this court was wrong on the
facts, is not a constitutional issue.
[34]
In a separate concurring judgment in
Mbatha,
Madlanga
J held that ‘what is in essence a factual issue’ may not
‘morph into a constitutional issue through the
simple facility
of clothing it in constitutional garb’.
[35]
That is indeed an eloquent discouragement of ‘dressing
up’ when the occasion does not justify it.
[26]
In summary: following well-established precedent, the present case is
plainly not, in any useful sense, a ‘constitutional
matter’.
Suing the police for damages for wrongful arrest and detention is not
the same as testing one’s constitutional
rights. This case
turned solely on the facts. To borrow, once again, from Madlanga J in
Mbatha
,
‘where it is clear that the substance of the contest between
parties is purely factual, it cannot be said to raise a
constitutional
issue purely because the applicant says it does’.
[36]
To apply the ‘
Biowatch
principle’ in such cases would open the floodgates for
opportunistic claims which may nevertheless fall short of being
categorised
as ‘frivolous’ or ‘vexatious’. It
would promote risk-free litigation. The potential consequences are
deeply
disturbing. To deprive the successful appellants, the Minister
and the NDPP, and, by extension, the fiscus itself, of costs in the
present matter would be unjust and inequitable. It would also lack a
rational foundation. Costs must follow the result.
Order
[27]
The following is the order of this court:
1 The appeal is upheld,
with costs, including the costs of two counsel.
2 The order of the
Eastern Cape Division of the High Court, Grahamstown is set aside and
the following substituted therefor:
‘
(a)
The appeal is upheld with costs.
(b)
The order of the Regional Court of the Eastern Cape held at Port
Elizabeth (the magistrate’s court) is set aside and the
following substituted therefor:
‘
The plaintiffs’ claims
are dismissed, with costs
.’
____________________
N
P WILLIS
Judge
of Appeal
APPEARANCES:
For
the Appellants: PJJ De Jager SC (with him, F Petersen)
Instructed
by:
The
State Attorney, Port Elizabeth
c/o
The State Attorney, Bloemfontein
For
the Respondents: JW Wessels
Instructed
by:
Peter
McKenzie Attorneys, Port Elizabeth
c/o
Huggett & Hendriks Inc, Bloemfontein
[1]
Zealand v Minister for Justice and
Constitutional Development & another
[2008]
ZACC 3
;
2008 (4) SA 458
;
2008 (6) BCLR 601
;
2008 (2) SACR 1
(CC) para 24.
[2]
Stellenbosch Farmers’ Winery
Group Ltd &
another
v Martell et Cie
&
others
2003
(1) SA 11
(SCA) para 5.
[3]
President of the Republic of South
Africa &
others v
South African Rugby Football Union & others
[1999] ZACC 11
;
2000 (1) SA 1
;
1999
(10) BCLR 1059
paras 61-64.
[4]
Section 39(2) of the CPA reads as
follows: ‘The person effecting the arrest shall, at the time
of effecting the arrest or
immediately after effecting the arrest,
inform the arrested person of the cause of the arrest or, in the
case of an arrest effected
by virtue of a warrant, upon demand of
the person arrested hand him a copy of the warrant.’
[5]
Minister van Veiligheid en
Sekuriteit v Rautenbach
1996
(1) SACR 720 (A).
[6]
Baasden v Minister of Safety and
Security
[2014] ZAGPPHC
52; 2014 (2) SA SACR 163 (GP)
.
[7]
Minister of Safety and Security v
Tyokwana
[2014] ZASCA
130
;
2015
(1) SACR 597
(SCA)
.
[8]
Isaacs v Minister van Wet en Orde
[1995] ZASCA 152
;
[1996] 1 All SA 343
(A) at 323I-J. See also
Minister
of Police & another v Du Plessis
[2013]
ZASCA 119
;
2014
(1) SACR 217
(SCA) para 14.
[9]
De Klerk v Minister of Police
[2018] ZASCA 45
;
[2018] 2 All SA 597
;
2018 (2) SACR 28
(SCA)
(
De
Klerk
). See also
Minister
of Saf
e
ty
and Security v Magagula
[2017]
ZASCA 103
para 15 and
Minister
of Police & another v Zweni
[2018]
ZASCA 97
(
Zweni
)
para 9.
[10]
De Klerk para 12, referring to paras
42-44 of
Sekhoto
.
[11]
See for example
Carmichele v
Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) (
Carmichele
).
[12]
Id para 63.
[13]
Texas Co (SA)
Ltd v Cape Town Municipality
1926
AD 467.
[14]
Id
at
488.
[15]
Harrielall v
University of KwaZulu-Natal
[2017]
ZACC 38
;
2018 (1) BCLR 12
(CC) (
Harrielall
).
[16]
The principle
emanates from
Biowatch
Trust v Registrar
,
Genetic
Resources
&
others
[2009] ZACC 114
;
2009 (6) SA 232
(CC) (
Biowatch
).
[17]
Harrielall
paras 10-12.
[18]
In
Lawyers
for Human Rights v Minister in the Presidency
[2016] ZACC 45
;
2017 (1) SA 645
(CC);
2017 (4) BCLR 445
(CC) para
19, the Constitutional Court, relying
on
Bisset v Boland Bank Ltd
1991 (4) SA 603
(D) at 608D-F, held what is vexatious litigation is
that which is –
‘“
[F]rivolous,
improper, instituted without sufficient ground, to serve solely as
an annoyance to the defendant”. And a frivolous
complaint?
That is one with no serious purpose or value. Vexatious litigation
is initiated without probable cause by one who
is not acting in good
faith and is doing so for the purpose of annoying or embarrassing an
opponent. Legal action that is not
likely to lead to any procedural
result is vexatious.’
[19]
J Voet
Commentarius
Ad Pandectas
(1723) 48 2.
(Translated by Sir Percival Gane in
The
Selective Voet being the Commentary on the Pandects
(1955)).
[20]
See for example
Liversidge
v Anderson & another
[1941] UKHL 1
;
[1942]
AC 206
(HL);
(1941) 3 All ER 338
(HL) and
Rossouw
v Sachs
1964 (2) SA 551
(A), which have been referred to with approval in numerous
subsequent cases.
[21]
The
Queen
v Sigcau
(1895)
12 SC 283
at 285.
[22]
D 50 17 106.
[23]
Jayiya v MEC
for Welfare, Eastern Cape
2004(2)
SA 611 (SCA) para 9.
[24]
Biowatch
,
paras 21-23.
[25]
Harrielal
,
paras 17-19.
[26]
See also
Hotz
and others v University of Cape Town
[2017] ZACC 10
; 2018(1) SA 369 (CC) paras 22.
[27]
Biowatch
para 23.
[28]
Booysen v
Minister of Safety and Security
[2018]
ZACC 18.
[29]
In terms of s
167(3)(
b
)(i)
and (ii) of the Constitution the court’s jurisdiction is
limited to constitutional matters and matters that raise an
arguable
point of law of general importance that ought to be decided by the
court.
[30]
Booysen
para
50-52.
[31]
Mankayi v
Anglogold Ashanti Ltd
[2011]
ZACC 3
;
2011 (3) SA 237
(CC) (
Mankayi
).
[32]
Mbatha v
University of Zululand
[2013]
ZACC 43
;
2014 (2) BCLR 123
(CC) (
Mbatha
).
[33]
S v Boesak
[2000]
ZACC 25
;
2001 (1) SA 912
(CC) para 12.
[34]
Mankayi
fn
35 para 12.
[35]
Mbatha
fn
36 para 222.
[36]
Mbatha
fn 36 para 22.