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[2011] ZAECMHC 16
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Ngidi v Minister of Home Affairs and Others (1481/07) [2011] ZAECMHC 16 (23 September 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, MTHATHA)
CASE NO:
1481/07
“
REPORTABLE
”
Date
Heard: 25 May 2008
Date
Delivered: 23 September 2011
In the matter between:
NONKOSI
NGIDI
…......................................................................................
APPLICANT
and
MINISTER
OF HOME AFFAIRS
…..............................................
FIRST
RESPONDENT
TSHEKEDI
DISEKO
N.O.
…....................................................
SECOND
RESPONDENT
APPEALS AUTHORITY-HOME AFFAIRS
…..............................
THIRD
RESPONDENT
JUDGMENT
Makaula J
:
[1] It is most important that I should
mention upfront that the delay and the inconvenience caused to the
parties by delivering
this judgment so late is regretted.
[2] The applicant brought an
application seeking the following order:
“
1. Rescinding and
setting aside the decisions of Second and Third Respondents that the
Applicant was guilty of misconduct.
2. Rescinding and setting
aside the decision of the first Respondent to terminate the services
of the Applicant as an employee of
the First Respondent.
3. An order directing the
First Respondent to re-instate the Applicant forthwith on terms and
conditions not less favourable to
those which existed prior to the
purported dismissal.
Directing the First
Respondent to pay the Applicant the salaries, salary bonuses and
other benefits which the Applicant should
have been entitled to, but
for the purported dismissal.
5. Directing the First
Respondent to pay costs and the Second and Third Respondents to pay
costs only in the event of opposing this
application.
6. Granting other
alternative relief.”
[3] The respondents opposed this
application.
A.
Background
:
[4] The applicant before she was
dismissed was in the employ of the first respondent having been
employed as a Book Binder in the
erstwhile government print in
Mthatha
. Due to rationalization, she was deployed on 5 March
2001 in the
Department of Home Affairs
in
Durban
as a
Senior Administrative Clerk, a post she held until her dismissal. The
applicant was dismissed subsequent to a disciplinary
hearing. She
appealed to the appeals authority within the Department. Her appeal
was dismissed hence the present application seeking
the review of the
decision of the first respondent who acted on the recommendations of
the second and third respondents.
B.
Facts
:
[5] The facts leading to the dismissal
may be summarized as follows. The applicant while on duty accepted a
gift of a cool drink
from a customer in contravention of the
regulations of first respondent. She was confronted by her senior at
work. She admitted
having received a tin of cool drink from a
customer. She did so by penning a letter to the first respondent a
copy of which was
annexed to the founding papers. It is not necessary
to deal with its contents. This culminated in a disciplinary action
against
her. A date was set for the hearing and she was represented
by a member of
Nehawu
which was her union.
[6] At the hearing through her
representative, the applicant pleaded guilty to the charge as it
stood. She was convicted and the
sanction was her dismissal from the
employ of the first respondent. The applicant lodged what she termed
a “
domestic appeal”
to the third respondent. The
appeal was dismissed and her dismissal was upheld. The applicant then
approached this court for an
order in terms of paragraph 2 hereof.
[7] The applicant seeks the review on
the basis that there were many irregularities in the impugned
proceedings, namely:
7.1 She was refused legal
representation.
7.2 The presiding officer failed to
inform her of the provisions of clause 4.5.3 of the staff code which
did not make it an offence
to accept a gift which is less than
R350.00
. She was dismissed for having accepted a tin of cool
drink which was far less in value.
7.3 The presiding officer further
failed to confirm with her the plea of guilty tendered by her union
representative.
7.4 The applicant further attacks the
decision of the third respondent on the basis that she did not
understand that an appeal is
only dealt within the four corners of
the record and there is not a need to call further evidence on
appeal.
7.5 The third respondent did not deal
with the grounds of appeal at all.
7.6 Applicant further bases her
application on the provisions of the
Promotion of Administrative
Justice Act 3 of 2000
(PAJA).
She avers that these factors
prejudiced her in the proceedings and resulted in
her dismissal.
[8] All the respondents filed a notice
to oppose the application though it appears from the affidavit
deposed to on behalf of first
respondent that second and third
respondent do not wish to defend the matter. No notice of withdrawal
was subsequently filed by
them as promised in the answering affidavit
filed on behalf of the first respondent.
[9] The first respondent contends that
PAJA
is not applicable here. The first respondent contends
that this is a purely labour dispute between an employer and employee
where
the latter was attacking the procedural and substantive
fairness of the decision of the former. That it is so, so argues the
first
respondent, means it should be covered by the provisions of the
Sections 188 (1) and 191 of the
Labour Relations Act 66 of
1995
. The first respondent further avers that in terms of certain
resolutions between the applicant and it, the matter should have been
referred for conciliation and not the route followed by the
applicant. Since that was not done by the applicant, this court
therefore,
lacks jurisdiction to hear the matter.
[10] The respondent refers to the
following resolutions which govern the relationship between the
applicant and itself.
10.1 Resolution 1/2003:
Disciplinary Code and Procedures for the Public Services;
10.2 Resolution 3/2001: Dispute
proceedings of council;
10.3 Resolution 2: The
Implementation of the Council;
10.4 Resolution 4 of 2004: Adoption
of Rules for the Conduct of Proceedings before the General Public
Services Sector Bargaining
Council which includes the rules governing
proceedings before the General Public Services Sector Bargaining
Council (GPSSBC);
10.5 Public Services Regulations,
2001 published under Government Notice No. R.1 of 5 January 2001; and
10.6 Resolution No.3 of 1998.
The first respondent correctly argues
that in terms of
Resolution 1 of 2003
, an employer or employee
may be legally represented by a legal practitioner only if, the
employee is a legal practitioner or the
representative of the
employer is a legal practitioner and a direct supervisor of the
employee charged and when the hearing is
chaired by an arbitrator.
The first respondent submits that since the order sought stems from a
pure labour dispute, the dispute
should have been referred to the
bargaining council for conciliation and arbitration and that the
bargaining council which would
have jurisdiction would be the
General
Public Service Sectoral Bargaining Council
(GPSSBC)
.
[11] The applicant vehemently denies
that these resolutions are anything to go by in support of the
contentions by the first respondent.
The applicant contends none of
the resolutions state that she was not entitled to legal
representation and that she should approach
the labour court instead
of this court. Such an argument is fallacious if one has regard to
Resolution 1 of 2003
. The applicant further submits that the
non-mentioning of the value of the drink she accepted and the amount
of
R350.00
as a minimum amount which could lead to the
contravention, prejudiced her. She argues further that the mere fact
that this is a
public sector dismissal did not make it to be in the
exclusive domain of the labour court.
[12] What is of foremost importance is
for me to determine whether this court has jurisdiction to review the
decision of the first
respondent. The determination of the grounds
for review hinges on whether this court has jurisdiction. If it does,
then I would
have to consider the grounds advanced for reviewing the
decision.
[13] I find the following facts not to
be in dispute;
13.1 that the applicant was in the
employ of the
Department of Home Affairs
(Department)
and was a member of the
National Educators, Health and Allied
Workers Union
(Nehawu);
13.2 that there has been a recognition
agreement between
Nehawu
and the first respondent;
13.3 that in regulating their
relationship, various resolutions were taken which affect the
relationship between
Nehawu
and the first respondent. Such
resolutions include the ones referred to in paragraph 8 above;
13.4 that the collective bargaining
agreement between
Nehawu
and the first respondent is premised
on the provisions of the
LRA
;
13.5 that the applicant as a member of
Nehawu
was represented at the hearing by a union
representative from
Nehawu
;
13.6 that they were furnished with the
charges and applicant pleaded guilty and was found guilty on her plea
and a sanction of dismissal
was returned by the presiding officer
i.e. the second respondent. She appealed to the appeals authority and
the appeal was dismissed;
[14] As alluded to, this matter is
disposable by determining whether this court has jurisdiction or not.
On this aspect, the respondent
submitted that neither
Section 33
of the Constitution
nor
PAJA
clothe this court with
jurisdiction. In the alternative, the first respondent argues that
the dismissal of the applicant did not
constitute an administrative
act. That the first respondent, an organ of state, exercised a public
power did not transform its
conduct in dismissing the applicant into
an administrative act, so contends the first respondent. According to
the first respondent
its actions are covered by
Section 23 of the
LRA
and subsequently, by the resolutions referred to in paragraph
8.
[15] Applicant vigorously argues that
this court has jurisdiction. In a nutshell applicant’s
reasoning is premised on the
following submissions;
15.1 she denies that the “
so-called
General Services Sector Bargaining Council (GSSBC)” (sic)
deal with the irregularities complained of;
15.2 that resolution 4 of 2004 did not
oust the jurisdiction of this court;
15.3 that resolution 4 of 2004 had not
been signed by
Nehawu
;
15.4 that part 2 and 3 of the rules of
GPSSBC
did not make it obligatory that this dispute should be
referred for conciliation;
15.5 that the termination of her
employment is a concern of labour and employment relationship only.
In support thereof, applicant
alleges that in the notice calling upon
her to appear for the enquiry, the respondent acted
ultra vires
its powers when it refused her the right to legal representation;
15.6 that
PAJA
is applicable.
15.7 that the provisions of
Section
23 of the Constitution
do not deal comprehensively with the
issues to be determined because they do not cover the issue of legal
representation at the
level of the hearing. It only deals with trade
unions only.
[16] It is appropriate to refer to
Section 23 of the LRA
which provides;
“
23 Legal Effect of
Collective
Agreement
(1) A collective
agreement binds -
(a) the parties to the
collective agreement
;
(b) each party to the
collective agreement
and
the members
of every
other party to the
collective agreement
, in so far
as the provisions are applicable between them . . .;
(c) . . .”
(My
emphasis)
[17] The provisions of the rest of the
section are not pertinent to the matter at hand. As already stated in
the preceding paragraphs,
it is clear beyond doubt that the applicant
is a member of
Nehawu
hence she was represented as such both
at the hearing and on appeal. In fact it is not even her case that
she is not. The collective
bargaining agreement was signed and
endorsed by
Nehawu
and the first respondent and was in force
at the time of her dismissal. The collective bargaining agreement
binds both the employer
and trade unions and their members, which is
the first respondent and the applicant herein. The agreement
regulates their relationship
and deal with the dispute resolution
mechanisms and the conduct of disciplinary enquiries. In particular
Resolution 2 of 2000
provides as follows;
“
2. All disputes
that arise in this sector:
2.1 between the trade
unions and state
(sic)
as employer parties who fall within the
registered scope of the GPSSBC; and
2.2 the employees and the
state, as employer that fall within the registered scope of the
GPSSBC
shall
be
resolved in terms of the dispute resolution procedures set out in the
constitution of the council.”
(My underlining)
[18] The agreement, contrary to what
the applicant suggests in her founding affidavit, was signed by
Nehawu’s
representative i.e.
Mr
Monwabisi Jaxa
on 7 July
2000.
Resolution 4 of 2000
deals with the adoption of rules for
the conduct of proceedings before the
GPSSBC
.
This resolution was passed in fulfillment of paragraph
222
of the Constitution of Council
referred
to in paragraph 2.2 of
Resolution
2 of 2000
referred to
above. It gives credence to the reality that the
GPSSBC
is an accredited governing body of the
CCMA
to
perform dispute resolution functions.
Part
2 and 3 of Resolution 4 of 2004
deals
with the procedure to be followed when a dispute such as the present
one arises between the parties. In terms thereof, the
dispute has to
be referred for conciliation and arbitration if it remains
unresolved. The applicant admits, this, but insists that
there is
nothing that precludes her from bringing this application based on
PAJA
before
this court. I disagree with her basing that on the provisions of the
resolution as dealt with above.
[19]
Mr
Noxaka
, for the applicant,
correctly in my view, argued that this court has jurisdiction founded
on
PAJA
.
He based his argument in the decision in
Fredericks
& Others v MEC for Education & Training Eastern Cape &
Others
1
.
The debate about concurrent
jurisdiction between the Labour Court and the High Court has been
settled. In
Gcaba v
Minister for Safety & Security
2
,
Van Der Westhuizen J
held
as follows:
“
[71] Section
157(2) confirms that the Labour Court has concurrent jurisdiction
with the High Court in relation to alleged or threatened
violations
of fundamental rights entrenched in Ch 2 of the Constitution and
arising from employment and labour relations, any dispute
over the
constitutionality of any executive or administrative act or conduct
by the State in its capacity as employer and the application
of any
law for the administration of which the minister is responsible.
111
The
purpose of this provision is to extend the jurisdiction of the Labour
Court to disputes concerning the alleged violation of
any right
entrenched in the Bill of Rights which arise from employment and
labour relations, rather than to restrict or extend
the jurisdiction
of the High Court. In doing so, s 157(2) has brought employment and
labour-relations disputes that arise from
the violation of any right
in the Bill of Rights within the reach of the Labour Court. This
power of the Labour Court is essential
to its role as a specialist
court that is charged with the responsibility to develop a coherent
and evolving employment and labour
relations jurisprudence. Section
157(2) enhances the ability of the Labour Court to perform such a
role.
112
[72] Therefore, s 157(2)
should not be understood to extend the jurisdiction of the High Court
to determine issues which (as contemplated
by s 157(1) have been
expressly conferred upon the Labour Court by the LRA. Rather, it
should be interpreted to mean that the Labour
Court will be able to
determine constitutional issues which arise before it, in the
specific jurisdictional areas which have been
created for it by the
LRA, and which are covered by s 157(2)
(a),
(b)
and
(c).
[73] Furthermore, the LRA
does not intend to destroy causes of action or remedies and s 157
should not be interpreted to do so.
Where a remedy lies in the High
Courts, s 157(2) cannot be read to mean that it no longer lies there
and should not be read to
mean as much. Where the judgment of Ngcobo
J in
Chirwa
speaks of
a court for labour and employment disputes, it refers to labour-and
employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might lie in
other courts, like the High Court and Equality Court,
can no longer
be adjudicated by those courts. If only the Labour Court could deal
with disputes arising out of all employment relations,
remedies would
be wiped out, because the Labour Court (being a creature of statute
with only selected remedies and powers) does
not have the power to
deal with the common-law or other statutory remedies.”
[20]
Mr Noxaka
further argued
that “
the complaint in this matter is not solely a labour
matter because it also involves other questions.”
He
tabulated those to be the following:
19.1 The third respondent failed to
consider the appeal that was placed before him;
20.2 Failure to allow her to have
legal representation during the disciplinary hearing which is a right
conferred by the constitution
relying on paragraph 33 of the decision
in
Fredericks & Others
referred to above.
20.3
Mr Noxaka
submitted that
the conduct of terminating the employment contract constitutes an
administrative action and therefore it is reviewable
in terms of
PAJA
.
[21]
Ms Da Silva,
counsel for
first respondent, correctly submitted that
Section 33 of the
Constitution
confers a right to administrative action that is
lawful, reasonable and procedurally fair of which
PAJA
gives
effect to.
[22]
Section 1 of PAJA
defines
an administrative action as follows:
’‘ ’
administrative
action’
means any decision taken, or any failure to take a decision, by –
(a) an organ of state,
when -
(i) exercising a power in
terms of the Constitution or a provincial constitution; or
(ii) exercising a public
power or performing a public function in terms of any legislation; or
(b) a natural or juristic
person, other than an organ of state, when exercising a public power
or performing public function in
terms of an empowering provision,
which adversely affects
the rights of any person and which has a direct, external legal
effect, . . .”
[23] It is common cause that the first
respondent is an organ of state and that the second respondent was
acting under the auspices
of the first respondent. In the instant
matter, the applicant and the first respondent entered into a
contract of employment which
is basically regulated by the
LRA
and mechanism provided therein such as
the collective bargaining agreement referred to.
[24] It is apparent that when the
first respondent exercised the power of terminating the employment
contract basing its decision
on the outcome of the misconduct
enquiry, it was not exercising a power in terms of the Constitution
or a Provincial Constitution
or public power or the performance of a
public function in terms of any legislation as required by
PAJA
.
[25]
Section
33 (1) of the Constitution
concerns
itself with the review of acts which are by nature administrative. I
agree with the submission by
Ms
Da Silva
, that the focus of
the enquiry as to whether conduct constitutes administrative action,
is not dependent on the position which
the functionary occupies but
rather on the nature of the power being exercised. In
President
of the RSA & Others v South African Rugby Football Union &
Others
3
,
the court held that:
“
. . . the test for
determining whether conduct constitutes administrative action is not
the question whether the action concerned
is performed by a member of
the executive arm of government.
What
matters is not so much the functionary as the function.
The
question is whether the
task
itself is administrative or not.”
[26] Reliance by
Mr
Noxaka
on the
Chirwa
judgment in this aspect is misplaced.
In
J P Paul Kriel v The
Legal Aid Board
4
,
Mhlantla JA
et
Leach AJA,
as
he then was,
held as follows:
“
The question
whether an unfair dismissal in the public sector amounts to
administrative action has been settled by the Constitutional
Court
in
Chirwa
v Transnet Ltd and others
4
.
The
Constitutional Court held that public servants now enjoy the same
protection afforded employees in the private sector under
the LRA.
The court further held that a public service employee could not have
two causes of action, one under the LRA and the
other under PAJA,
and that the decision of an organ of state to dismiss an employee is
not an administrative act but involves
the exercise of a contractual
power.”
[27] At paragraph 15 the learned
Judge further held as follows;
“
The decision in
Chirwa
led to
this court, in circumstances not dissimilar to the present, holding
in
Transman
(Pty) Ltd v Dick and Another
7
that it could not review a termination of an employee’s
employment as it did not constitute administrative action. A similar
conclusion was reached in
Makambi
v MEC for Education, Eastern Cape.
8
”
[28] In the matter of
Transman
(Pty) Ltd v Dick and Another
5
,
Jafta JA,
as
he then was, dealing with the same issue held as follows;
“
In
Chirwa
v Transnet Ltd and Others
6
the Constitutional Court held that public servants can no longer
challenge their dismissals by invoking administrative review
procedures because they now enjoy the same protection afforded
employees in the private sector under the
Labour Relations Act.”
[29
] The learned Judge dealing with
whether the review application was competent or not, went on in
paragraph 19 to hold that;
“
The answer to
this question lies in whether the chairperson’s verdict and
the termination of employment constitute decisions
which are
reviewable in administrative law. On the authority in
Chirwa
we
know that such decisions cannot be reviewed either under PAJA or s
33 of the Constitution.”
[30] I further agree with the
submissions made by
Ms Da
Silva
that the subject
matter of the power involved in this matter is the termination of
the employment contract due to misconduct by
the applicant based on
the employment contract between her and the first respondent. The
act complained of does not involve the
implementation of legislation
which constitutes an administrative action.
[31] The following passage by
Ngcobo
J
in
Chirwa
v Transnet and Another
6
,
succinctly deals with the issues at play in this matter;
“
[143] Support for
the view that the termination of the employment of a public sector
employee does not constitute administrative
action under section 33
can be found in the structure of our Constitution. The Constitution
draws a clear distinction between
administrative action on the one
hand and employment and labour relations on the other. It recognizes
that employment and labour
relations and administrative action are
two different areas of laws. It is true they may share some
characteristics. Administrative
law falls exclusively in the
category of public law while labour law has elements of
administrative law, procedural law, private
and commercial law.
[144] The Constitution
contemplates that these two areas will be subjected to different
forms of regulation, review and enforcement.
It deals with labour
and employment relations separately. This is dealt with in section
23 under the heading “Labour Relations”.
In particular,
section 23(1) guarantees to ‘[e]veryone . . . the right to
fair labour practices.” The Constitution
contemplates that
labour relations will be regulated through collective bargaining and
adjudication of unfair labour practices.
To this extent, section 23
of the Constitution guarantees the right of every employee and every
employer to form and join a trade
union or an employers’
organization, as the case may be.
[145] Nor is there
anything, either in the language of section 23 or the context in
which that section occurs, to support the
proposition that the
resolution of labour and employment disputes in the public sector
should be regulated differently from disputes
in the private sector.
On the contrary, section 23 contemplates that employees regardless
of the sector in which they are employed
will be governed by it. The
principle underlying section 23 is that the resolution of employment
disputes in the public sector
will be resolved through the same
mechanisms and in accordance with the same values as in the private
sector, namely, through
collective bargaining and the adjudication
of unfair labour practice as opposed to judicial review of
administrative action.
It is apparent from the Public Administration
provisions of the Constitution that employment relations in the
public service
are governed by fair employment practices.
[146] Section 195 which
sets out the basic values and principles governing public
administration, includes as part of those values
and principles,
“employment and personnel management practices based on . . .
fairness”. These provisions contemplate
fair employment
practices. In addition, one of the powers and functions of the
Public Service Commission is “to give directions
aimed at
ensuring that personnel procedures relating to . . . dismissals
comply with [fair employment practices]”. This
flows from the
requirement that dismissals in the public service must comply with
the values set out in section 195(1). These
provisions echo the
right to fair labour practices in section 23(1). And finally,
section 197(2) provides that the terms and
conditions of employment
in the Public Service must be regulated by national legislation.
[147] These provisions
must be understood in the light of section 23 of the Constitution
which deals with labour relations, and
in particular, section 23(1)
which guarantees to everyone the right to fair labour practices.
Section 197(2) does not detract
from this. It must be read as
complementing and supplementing section 23 in affording employees
protection. Indeed, the LRA,
which was enacted to give effect to
section 23 of the Constitution, and the Public Service Act, 1994,
which was enacted to give
effect to section 197(2) of the
Constitution, complement and supplement one another. By its own
terms, the LRA governs all employees,
including those in the public
sector except those specifically excluded. For its part, the Public
Service Act which governs,
among other things, the “terms and
conditions of employment” expressly provides that the power to
discharge an officer
or employee “shall be exercised with due
observance of the applicable provisions of the
Labour Relations Act,
1995
”.
[148] As pointed out
earlier, the line of cases which hold the power to dismiss amounts
to administrative actions rely on
Zenzile.
This case and its
progeny must be understood in the light of our history.
Historically, recourse was had to administrative law
in order to
protect employees who did not enjoy the protection that private
sector employees enjoyed. Since the advent of the
new constitutional
order, all that has changed. Section 23 of the Constitution
guarantees to every employee, including public
sector employees, the
right to fair labour practices. The LRA, the
Employment Equity Act,
1998
, and the
Basic Conditions of Employment Act, 1997
, have
codified labour and employment rights. The purpose of the LRA and
the
Basic Conditions of Employment Act is
to give effect to and
regulate the fundamental right to fair labour practices conferred by
section 23 of the Constitution. Both
the LRA and the
Basic
Conditions of Employment Act, were
enacted to give effect to
section
23
, now govern the public sector employees, except those who are
specifically excluded from its provisions. Labour and employment
rights such as the right to a fair hearing, substantive fairness and
remedies for non-compliance are now codified in the LRA.
It is no
longer necessary therefore to treat public sector employees
differently and subject them to the protection of administrative
law.
[149] In my judgment
labour and employment relations are dealt with comprehensively in
section 23 of the Constitution. Section
33 of the Constitution does
not deal with labour and employment relations. There is no longer a
distinction between private and
public sector employees under our
Constitution. The starting point under our Constitution is that all
workers should be treated
equally and any deviation from this
principle should be justified. There is no reason in principle why
public sector employees
who fall within the ambit of the LRA should
be treated differently from private sector employees and be given
more rights than
private sector employees. Therefore, I am unable to
agree with the view that a public sector employee, who challenges
the manner
in which a disciplinary hearing that resulted in his or
her dismissal, has two causes of action, one flowing from the LRA
and
another flowing from the Constitution and PAJA.
[150] I conclude that
the decision by Transnet to terminate the applicant’s contract
of employment did not constitute administrative
action under section
33 of the Constitution. This conclusion renders it unnecessary to
decide whether PAJA applies.”
Consequently I make the following
order:
1. The application is dismissed
with costs.
_________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Counsel for the Applicant: Mr Noxaka
Attorneys for the Applicant: A F
Noxaka & Co
Ludidi Building
MTHATHA
Counsel for the 1
st
Respondent: Adv Da Silva
Attorneys for the 1
st
Respondent: State Attorney
c/o Tinto Gumle Inc
Suite 543-5
th
Floor
ECDC Building
MTHATHA
1
[2001] ZACC 6
;
2002
(2) BCLR 113
CC
2
2010
(1) SA 238
paras 71-73
3
2000
(1) SA 1
(CC) at para 141
4
(138/08)
[2009] ZASCA 76
(1 June 2009) para 13
5
[2009]
3 ALLSA 183
(SCA) at para 17;
2009 (4) SA 22
(SCA) at para 17.
6
Supra
at para [143] – [150]