THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case No: 44/2000

In the matter between

Standard Bank Investment Corporation
First Appellant

and

The Competition Commission
First Respondent
The Competition Tribunal
Second Respondent
The Minister of Finance                                                           Third Respondent
The Registrar of Banks
Fourth Respondent
The Minister of Trade and Industry
Fifth Respondent
Nedcor Limited
Sixth Respondent
Old Mutual PLC                                                                  Seventh Respondent
The Executive Officer of the Financial Services Board
Eighth Respondent
Liberty Life Association of Africa Limited
Ninth Respondent
South African Society of Banking Officials
Tenth Respondent
The Securities Regulation Panel                                           Eleventh Respondent

Case No: 50/2000

In the matter between

Liberty Life Association of Africa Limited
Second Appellant

and

The Competition Commission
First Respondent
The Competition Tribunal
Second Respondent
The Minister of Finance                                                            Third Respondent
The Registrar of Banks
Fourth Respondent
The Minister of Trade and Industry
Fifth Respondent
Nedcor Limited
Sixth Respondent
Old Mutual PLC                                                                   Seventh Respondent
The Registrar of Long-Term Insurance
Eighth Respondent

Standard Bank Investment Corporation Limited
Ninth Respondent
South African Society of Banking Officials
Tenth Respondent
The Securities Regulation Panel Eleventh Respondent

CORAM:

HEFER, NIENABER, HARMS, MARAIS et SCHUTZ JJA

DATE HEARD:
23 MARCH 2000

DELIVERED:
31 MARCH 2000

J U D G M E N T

MARAIS JA:
[1]     I have had the benefit of reading the judgment of the majority of the
court.  Much as I admire the manner of its writing, I am unable to share its
view as to the jurisdiction of the Competition Commission.  The issue is a
narrow one.  Did the legislature intend s 3 (1) (d) to exclude from the purview
of the Competition Act 89 of 1998 the proposed mergers of the banks and
insurance companies involved?
[2]     I come to the task of interpreting the provision without making any
assumptions a priori as to the legislature‟s sense of priorities or as to its view
on the relative importance of banking considerations as against competition
concerns  That would not be a permissible approach.  If they are relevant and

appear with sufficient clarity from the legislation after one has undertaken the
task, that is another matter.
[3]     Equally, I approach the problem with no innate prejudice against either
“reading in” or “reading down” or “extensively” or “restrictively”
interpreting the provision.  Whether or not the case calls for the deployment
of any of those familiar techniques will only be known once one has taken
into account in their totality all those factors to which it is legitimate to have
regard in aid of interpretation.   If it does, the use of the technique will be no
more nor less intellectually justifiable than giving the language its plain
meaning would have been if there had been no or insufficient reason to
qualify or depart from it.
[4]     Next, I remind myself of what is perhaps obvious; the provision must
not be interpreted in isolation with only the definitions of some of its
component parts being taken into account.  In Associated Newspapers Ltd v
Registrar of  Restrictive Trading Agreements [1964] 1 All ER 55 (HL) at 58
H - 59 B Lord Evershed said:
“It is no doubt true that if s 20 and s21 are looked at without regard to
the context supplied by the rest of the Restrictive Trade Practices Act,
1956, the natural conclusion which their language suggests would be to
confine the jurisdiction of the court to agreements subsisting (at any
rate) when the jurisdiction of the court was invoked. By way of
example I refer to the use (strongly relied on by counsel for the

appellants) of the formula in s 20 (1) that the court should have
jurisdiction to declare whether or not any restrictions „are contrary to
the public interest‟; and perhaps more strongly to the use of the
formula in sub-s (3) of the same section „the agreement shall be void‟.
Nor do I forget the terms of sub-s (5) of s 20 or the language of para
(a) to para (g) of s 21 (1).  To these last mentioned subsections I shall
return later.  But in truth it is not, as I conceive, legitimate to read s 20
and s 21 bereft of their context - more particularly without having first
read the first nineteen sections of the Act.  There is, indeed, solid and
respectable authority for the rule that you should „begin at the
beginning and go on till you come to the end:  then stop‟;  and in my
opinion the rule is I conceive (with all respect to what fell from
DIPLOCK, L.J. (4) in the Court of Appeal) peculiarly proper when
construing an Act of Parliament and seeking to discover from the Act
the parliamentary intention.”

The particular words quoted by Lord Evershed may have come from no more
than Lewis Carroll‟s Alice’s Adventures in Wonderland, Chap XII, but their
soundness can surely not be doubted.
[5]     Having done that, what do I find?  First, a long title which proclaims
that the purpose of the Act is to “provide for the establishment of a
Competition Commission responsible for the investigation, control and
evaluation of restrictive practices, abuse of dominant position, and mergers;
and for the establishment of a Competition Tribunal responsible to adjudicate
such matters;  and for the establishment of a Competition Appeal Court; and
for related matters”.
[6]     Second, a preamble which inter alia laments the existence of

“excessive concentrations of ownership and control within the national
economy, weak enforcement of anti-competitive trade practices, and unjust
restrictions on full and free participation in the economy by all South
Africans”.  It records that “credible competition law, and effective structures
to administer that law are necessary for an efficient functioning economy”,
and that “an efficient competitive economic environment, balancing the
interests of workers, owners and consumers and focused on development,
will benefit all South Africans”.  It recites that the creation of such a regime
is in order, inter alia, to “restrain particular trade practices which undermine
a competitive economy”, to “regulate the transfer of economic ownership in
keeping with the public interest” and to “establish independent institutions to
monitor economic competition”.
[7]     Third, there is in s 2 a statement of the purpose of the Act.  It is
“to promote and maintain competition in the Republic in order -

(a)
to promote the efficiency, adaptability and development of the
economy;

(b)
to provide consumers with competitive prices and product
choices;

(c)
to promote employment and advance the social and economic
welfare of South Africans;

(d)
to expand opportunities for South African participation in world
markets and recognise the role of foreign competition in the

Republic;

(e)
to ensure that small and medium-sized enterprises have an
equitable opportunity to participate in the economy; and

(f)
to promote a greater spread of ownership, in particular to
increase the ownership stakes of historically disadvantaged
persons”

[8]     Fourth, there is the use in s 3 of the very wide opening words “(t)his
Act applies to all economic activity within, or having an effect within, the
Republic” followed of course by the exceptions set out in sub-paragraphs (a),
(b), (c), (d) and (e).
[9]     Fifth, there are in Chapter 2 a series of restrictive practices which are
prohibited, a prohibition upon the abuse of a dominant position in a market,
and a wide ranging category of acts which constitute such abuse, including
price discrimination.  In the same chapter there is provision for exemption to
be granted from its provisions upon application.  In s 10 (4) additional powers
of exemption are conferred upon the Competition Commission.  It may
exempt “an agreement, or practice, or category of either agreements, or
practices, that relate to the exercise of a right acquired or protected in terms
of” six specifically named Acts  Before doing so, notice must be published in
the Gazette and interested parties have 30 days within which to make written
representations as to why the exemption should not be granted.

[10]     Sixth, there is Chapter 3 which is specifically devoted to “Merger
Control”.  It is quite clear that, if the Act is applicable to the proposed
acquisition in the case, it would rank as a “large merger” within the meaning
of s 11.  Whether a merger or proposed merger be a large or intermediate
merger as defined, s 13 (3) prohibits its implementation until approval has
been received from the Competition Commission, the Competition Tribunal
or the Competition Appeal Court, as the case may be.  Relatively short time
limits are stipulated within which the merger or proposed merger must either
be approved, conditionally approved, or prohibited.
[11]     Notice of the merger or proposed merger has to  be  given  in terms of
s 13 (2) to a representative trade union representing the employees of one of
the merging firms involved or, if there is none, to any registered trade union
representing a substantial number of employees of any such firm, or if there
is no registered trade union in such firm, to representatives of the employees
concerned.
[12]     The criteria to be taken into account are set forth in s 16. The initial
enquiry is whether or not the merger or proposed merger “is likely to
substantially prevent or lessen competition”.  That is to be ascertained by
considering the matters listed in s 16 (2) and any other factors relevant to

competition in the particular market.  Amongst the factors is “whether the
business or part of the business of a party to the merger or proposed merger
has failed or is likely to fail” (s 16 (2) (viii)).   If it appears that competition is
likely to be substantially prevented or lessened, it has to be considered
whether any pro-competitive gains which will be greater than and offset the
effects of any prevention or lessening of competition will ensue, and whether
the merger can or cannot be justified “on substantial public interest grounds
by assessing” various factors set forth in s 16 (3).  They are the effect the
merger will have on a particular industrial sector or region, employment, the
ability of small businesses, or firms controlled or owned by historically
disadvantaged persons, to become competitive, and the ability of national
industries to compete in international markets  In order to make
representations on any public interest ground I have mentioned, the Minister
of Trade and Industries may participate in the proceedings before the
Competition Commission, the Competition Tribunal or the Competition
Appeal Court.
[13]     Seventh, there is s 21 which lists the functions of the Competition
Commission.  It is required, inter alia, to “negotiate agreements with any
regulatory authority to co-ordinate and harmonise the exercise of jurisdiction

over competition matters within the relevant industry or sector and to ensure
the consistent application of the principles of this Act” (s 21 (1) (h)).  It is
also responsible to “participate in the proceedings of any regulatory
authority” and to “advise, and receive advice from, any regulatory authority”
(s 21 (1) (i) and (j)).
[14]     Eighth, the Competition Commissioner, the Deputy Commissioner,
the members of the Competition Tribunal and the members of the
Competition Appeal Court are all required to have “suitable qualifications
and experience in economics, law, commerce, industry or public affairs”.
[15]     Ninth, there are comprehensive powers given to the Competition
Tribunal to deal with transgressions  If a merger is implemented in
contravention of Chapter 3, divestiture may be ordered and an administrative
fine imposed.
[16]     Tenth, the Competition Tribunal is empowered to grant an exemption
from a relevant provision of the Act (s 27 (1) (a)).
[17]     Eleventh, the Competition Tribunal and the Competition Appeal Court
share exclusive jurisdiction in respect of the interpretation and application of
Chapters 2, 3 and 6 (other than s 65) and the functions referred to in s 21 (1),
27 (1) and 37 (1) and the latter Court has final jurisdiction in respect of any

such matter (s 65 (3) and (4)).
[18]     Twelfth, there are transitional provisions in Schedule 3 to the Act the
effect of which is broadly this  Mergers conditionally approved or prohibited
under the Maintenance and Promotion of Competition Act 86 of 1979 are to
be regarded as mergers conditionally approved or prohibited under the
present Act.  An exemption granted under the 1979 Act is to be regarded as
having been granted under the present Act but is valid for only 12 months
after the date of commencement of the present Act (30 November 1998).  A
merger which took place between the date of publication of the present Act
(20 October 1998) and the date on which it came into operation (30
November 1998) and which would have constituted an intermediate or large
merger if it had taken place after the commencement of the present Act, is
regarded for a period of 12 months after the latter date as a merger in
contravention of Chapter 3 and is subject to the divestiture provisions of the
present Act unless it was approved under the 1979 Act or has been notified in
terms of item 4 B.  Item 4 B provides that any party to such a merger may
within 3 months of the coming into operation of the present Act notify the
Competition Commission of the transaction in terms of s 13 as if it were an
intermediate or large merger whereupon the provisions of Chapter 3 (Merger

Control) of the present Act (mutatis mutandis) become applicable to it.  (The
emphasis which has been supplied while reviewing these provisions of the
Act is mine.)
[19]     I return to s 3 (1) (d).  The definitions of “public regulation” and
“regulatory authority” in s 1 are very wide.  What emerges from them is that
the public regulators covered by them could range from highly expert
regulators of exalted stature whose writ runs nationwide and who derive their
authority from nationally applicable legislation to far more humble and less
expert functionaries whose physical area of jurisdiction is small indeed and
who have been empowered to regulate by some locally applicable
subordinate legislation.  Equally worthy of note is that the exempting
provision as I shall call it is of course applicable not only to those acts
presently subject to or authorised by public regulation, but also to all such
acts as may in future become so subject or so authorised.
[20]     Once one has read the Competition Act in its entirety it becomes quite
plain that the evils it identifies are regarded as not having been adequately
countered in the past and that a change for the better is intended.   It is also
plain that a “competitive economic environment”, the regulation of “the
transfer of economic ownership in keeping with the public interest” and the

establishment of “institutions to monitor economic competition” are key
concepts in the legislative plan to achieve that change for the better.  In short,
the general thrust of the stated objects of the Act is more and better control
and certainly not less control than had existed in the past.
[21]     When reading s 3 (1) one is struck by the amplitude of its opening
words viz “This Act applies to all economic activity within, or having an
effect within, the Republic ........ “.  One recalls that the Act is to bind even
the State.  One reads on to take account of the exceptions in sub-paragraphs
(a), (b), (c), (d) and (e).  All but (d) are unsurprising, for an understandable
rationale for their existence is not far to seek.  But (d) is in a different
category.  Its sweep, if considered in isolation, is so potentially wide and
prima facie so at odds with all the other indications of legislative intent in the
Act, that one cannot help but feel that there is more to this than meets the eye.
Did the legislature take one step forward and two steps backwards?  Did it,
despite its brave words, retreat to a regulatory jurisdiction far less extensive
in its reach than that which existed  under the 1979 Act as amended?  Did it
intend to achieve such an ostensibly retrograde result simply by the insertion
of this, to my mind, somewhat enigmatic exempting provision?  Rhetorical
flourishes these may appear to be but they are questions which arise in one‟s

mind.
[22]     It is true of course that the answers must be found, not in speculation,
but in what the legislature itself has said.  But that does not mean that where
its intention to lay hands on competition concerns in a comprehensive and
effective manner is manifest ex facie the Act as a whole, a meaning should be
assigned to a generally cast and generally applicable exempting provision
which would have the effect of precluding it from carrying out its intention to
a degree and extent far greater than did the legislation it was designed to
supplant.
[23]     Had the words of (d) been so intractable in their ordinary meaning that
they could only bear the meaning which the majority considers they must
bear, I would have been prepared to hold that the contra-indications of
legislative intent derived from the Act itself are so strong that a departure
from that meaning would be justified.  There would be nothing new in that.  It
has been done time without number.  Whether or not a court does it depends
entirely upon the strength of its conviction that the other legitimate indicia of
legislative intent are so strong that not even the strength of the ordinary
meaning of the words used can overcome them.
[24]     Before explaining how I think the exempting provision falls to be

interpreted let me say something about the interpretation of it for which
respondents contend.  It is as bold as it is simple.  The act of economic
activity in issue is the acquisition of control.  That act is subject to or
authorised by public regulation.  In so far as banks are involved the regulation
occurs under the Banks Act.   In so far as insurance companies are involved
in the transaction the regulation occurs under the Long Term Insurance Act.
In both instances there is an identifiable regulatory authority.  It is quite
irrelevant whether or not the criteria which those regulators must look to, or
are entitled to look to, are competition concerns of the kind reflected in the
Competition Act.  Nor does it matter whether or not any consultation with the
Competition Commission is required.  The jurisdiction of the competition
authorities is therefore excluded.  That a merger having the deleterious effects
against which the Competition Act sets its face may occur without the
competition authorities or indeed any regulatory authority having considered
them or even having jurisdiction to consider them, is of course inherent in the
contention, but that is said to be the inevitable result of giving the language
employed in the exempting provision its plain and unambiguous meaning.
[25]     If that contention should be thought to be too unpalatable it is argued
in the alternative that in the case of the Banks Act the requirement that there

be consultation with the Competition Commission softens the impact of that
interpretation of the exempting provision.
[26]     The implications of the main contention are, as I see it, startling.  Its
premise is that the legislature did not care whether a merger which might be
offensive to both the letter and the spirit of the very Act in which the
exempting provision is found, came about and was implemented, as long as
someone somewhere who qualified as a regulatory authority had been
empowered to say yea or nay to the merger.  Whether that functionary had
been empowered to do so simply to facilitate enforcement of stamp duties
legislation, or simply to facilitate the monitoring of mergers so as to ensure
the absence of foreign control of South African companies, or for whatever
reason, would not matter.  The proposition, if correct, would leave
unaddressed and unregulated by the very authorities specifically charged with
oversight of them mergers having the offensive characteristics spelt out in the
Competition Act,  as long as some or other authority with power to authorise
mergers had authorised them, and even although the latter authority was not
required to, and had not in fact, paid the slightest attention to those offensive
characteristics when authorising the mergers  I find it impossible to reconcile
such a result with the clearly stated aims of the Competition Act.

[27]     A caveat may not be out of place here.  When interpreting the
exemption provision one must not allow oneself to be mesmerised by the
fortuitous circumstance that banks and insurance companies are involved in
the particular case.  The provision is of general application and the
interpretation of its potential breadth and field of application cannot depend
upon the nature of the industry which happens to be involved.
[28]     In my opinion there is a fallacy in the main argument for respondents
Just as a licence to trade in a particular commodity is not a licence to trade in
a way which is unlawful in terms of the common law or another statute, so is
an authorisation given under the Banks Act and the Long Term Insurance Act
to two banks and two insurers to merge not to be regarded as an authorisation
to merge notwithstanding that the merger will have the deleterious results
which another Act controlling mergers has spelt out and has been enacted to
combat.  It is no more than an authorisation to merge because the
requirements of the Banks Act and the Long Term Insurance Act are
satisfied.  It should not be construed as an authorisation to merge even if the
social evils identified by the Competition Act are present or will ensue.
[29]     If the exempting section is so understood when applied to mergers
then some at least of its scope and purpose is readily apparent.  In my view its

true purpose is not to immunise large swathes of economic activity from the
attentions of the competition authorities but to prevent a situation akin to
double jeopardy arising and potential clashes between regulatory authorities
whose regulatory concerns are the same.  To illustrate, if there be another
statute dealing with mergers between particular kinds of companies and a
merger cannot be permitted under that statute if it be found to be
monopolistic in tendency, then the fact that that transaction is subject to
public regulation in that particular respect, or that authorisation has been
given because it is not found to be monopolistic in tendency, will exclude it
from being attacked on the same ground before the Competition Commission.
[30]     An example is s 38 of the Liquor Act 27 of 1989 which precludes the
holder of a licence from permitting any other person to procure a controlling
interest (defined as meaning an interest as defined in s 1 of the Maintenance
and Promotion of Competition Act of 1979, for which one must now read the
Competition Act of 1998) without the consent of the chairperson of the
relevant Liquor Board.  That consent must be refused if in his or her opinion
the possibility exists that the granting of the application may cause a harmful
monopolistic situation to arise or to be aggravated in the liquor trade or a
branch thereof.  A “monopoly situation” was defined in the 1979 Act.  The

expression is not used in the 1998 Act but it appears from item 3 of the
Transitional Provisions in Schedule 3 to the 1998 Act that a “monopoly
situation” as defined in the 1979 Act is to be regarded as a “prohibited
practice” within the meaning of the 1998 Act.
[31]     What this approach entails, is acknowledging that what may appear to
be one single act may in fact be multi-faceted and comprehend two or more
acts  Parties who enter into and implement a merger of the deleterious
character described are doing a number of things  To the extent that what they
do has deleterious effects which were not approved and could not have been
approved, their act was not subject to regulation nor was it authorised and the
jurisdiction of the competition authorities was not ousted.
[32]     As counsel for Liberty chose to express it, an act is seldom colourless
It may be multi-hued.   If one of those colours imparts to the act a
competition dimension falling within the ambit of the competition concerns
of the Competition Act, and the other regulatory authority has no jurisdiction
to deal with that dimension and cannot be taken to have authorised the act in
that dimension, then the act is not beyond the reach of the Competition Act.
[33]     If this process of interpreting s 3 (1) (d) amounts to reading words
such as “for competition purposes” into the provision, so be it, but it is only

the result of ascertaining the intended breadth of the provision by reading it in
the context of the statute as a whole and in the light of the mischief which
would be left entirely unchecked if it were not so read.  I may point out that,
although the working of the sub-conscious mind is so stealthy that one may
not realise at first that one has done it, one has already “read into” the
provision the word “other” before the words “public regulation”.  That is so
obviously what is meant that one had sub-consciously read it in that light
even although the word “other” was not there.  I cannot imagine that anyone
would cavil at that. If yet further “reading in” or “reading down” is shown to
be necessary in order to give effect to the intention plainly expressed
elsewhere in the Act, then that too should occasion no disquiet.
[34]     I am not unduly troubled by the suggested lack of a means of
calibration referred to in the judgment of the majority.  Another statute which
deals as comprehensively with competition concerns as does the Competition
Act cannot be expected.  If it existed the Competition Act would be
redundant.  There need not be a meticulously precise correlation between the
rationale for the control for which the other statute provides and that for
which the Competition Act provides  In my view, substantial correlation
would suffice.  It is not a question of the other statute having to mirror all or

any particular number of the concerns which are reflected in the Competition
Act before the exempting provision will operate.  The enquiry is ad hoc in
character and a far more limited one.  One asks what there is about the act
which is said to render it such that it should not be allowed or should be
regulated.  If the answer is that it is “likely to substantially prevent or lessen
competition” one looks to see whether there is any other statute which may
regulate an act of that colour.  If the act is the acquisition of a controlling
interest in a liquor firm and there is a statute which allows it to be permitted
only if a harmful monopolistic situation will not arise or be aggravated, then
there is a substantial correlation in the competition concerns of the two Acts
and the Competition Act is excluded.  If, on the other hand, the acquisition of
such a controlling interest is allowed to be permitted only if the acquirer, if a
natural person, is found to be a fit and proper person and has not been
convicted of any offence involving violence or dishonesty, there is no such
correlation and the Competition Act is not excluded.
[35]     Each case will have to be decided on its own facts and the mere fact
that there may be difficulties in deciding whether sufficient correlation exists,
is not a sufficient reason to say that none need exist.  If doubtful cases arise
and they are not sufficiently clearly within the excepting provision then the

competition authorities‟ jurisdiction will exist.  That seems to me to be
entirely consistent with the stated aims of the Competition Act.
[36]     I do not find speculation about policy shifts helpful.  Before one can
conclude that there has been a shift in policy there must be clear indications
of it in the legislation.  I find no such indications  On the contrary, the picture
seems clear.  There was some earlier legislative vacillation but it was
followed by dual control from 1991.  Far from there being any clear
indication in the Competition Act of 1998 that the existing policy of dual
control was to change, there are clear indications of a resolve to take proper
charge of competition concerns, to move away from the “weak enforcement
of anti-competitive trade practices of the past, and provide “credible
competition law, and effective structures to administer that law”.  That is
hardly an appropriate preamble to an abolition of the competition authorities‟
existing control over a vast range of economic activity or to reversion to a
policy abandoned many years before.
[37]     In advanced economies mergers are notorious for their capacity to
eliminate or stifle competition.  That they may be benign in intent is not
conclusive.  Their effects may be malign.  For that very reason the
Competition Act singles them out eo nomine for its special attention and

dedicates an entire chapter to their control.  In such circumstances it seems to
me to be futile to attempt to justify a wide reading of the ambit of what
mergers are excepted by s 3 (1) (d) by suggesting that if it is not so read, there
could be nothing or little to which it will apply.  That may be precisely what
was intended.  And until one has done what it is well nigh impossible to do,
namely, trawled through the sea of statutes, provincial ordinances, local
government legislation, and subordinate legislation in South Africa, and
considered the licences, tariffs, directives or similar authorisation issued by a
regulatory authority or pursuant to a statutory authority which exist, one will
not be able to identify what is covered by the exception.  And even when that
has been done, the census of acts excluded will not be complete for, as I have
pointed out before, the excepting provision also applies to what may come to
exist in future.  What that may be it is impossible to say.  Human ingenuity is
infinite when it comes to the avoidance of irksome restrictions upon
economic activity.  The excepting provision cannot be interpreted as if its
operation is confined to the field of mergers  It extends to all acts amounting
to economic activity which would otherwise have been regulated by the Act.
There is certainly no shortage of acts to which it would apply.
[38]     The alternative argument referred to in par [25] is, in my opinion,

unsound.  The fact that provision was made for consultation with the
Competition Commission in the Banks Act is at best for respondents neutral.
The provision existed in 1990 when the Banks Act was enacted and at a time
when it was quite clear that the then Competition Board had concurrent
independent jurisdiction over bank mergers It was plainly not an ouster
provision then and its character did not change merely because in 1998 the
Competition Act was enacted and contained the general exempting provision
(s 3 (1) (d)).  Nor does the fact that the public interest is one of the matters to
be considered under the Banks Act and the Long Term Insurance Act take the
matter any further.  It too had been a requirement in 1990 when the Banks
Act was enacted.  It was also required to be considered in the Long Term
Insurance Act. That notwithstanding, the then Competition Board enjoyed
parallel jurisdiction.
[39]     In so far as anything said in the case of SAD Holdings Ltd (referred to
in the majority judgment) is inconsistent with what I have said, I am in
respectful disagreement with it.
[40]     For the rest, I am in respectful agreement with the majority.  I would
uphold the appeal of the appellants in respect of the matter dealt with in this
judgment and make appropriate consequential orders  As this is a minority

judgment there is no point in spelling those orders out.

R M MARAIS

JUDGE OF APPEAL