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[2021] ZALAC 38
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MEC for Health (North West Province) v South African Medical Association and Another (JA42/2020) [2021] ZALAC 38; [2022] 1 BLLR 60 (LAC); (2022) 43 ILJ 134 (LAC) (18 October 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 42/2020
In the matter between:
MEC FOR HEALTH (NORTH
WEST PROVINCE) Appellant
and
SOUTH
AFRICAN MEDICAL ASSOCIATION
First
Respondent
DR
ELIE
MUTUNZI
Second
Respondent
Date of Appeal:
16
September 2021. Decided on submissions.
Delivered:
Deemed
to be the date the judgment is emailed to the parties 18 October
2021.
Coram:
Waglay
JP, Coppin JA, et Kubushi AJA
JUDGMENT
COPPIN JA
[1] This
is an appeal against the whole order of the Labour Court (Moshoana J)
made in respect of a review application
brought by the second
respondent (“Dr Mutunzi”) to declare that he is deemed
not to be dismissed (i.e. as contemplated
in section 17 of the Public
Service Act
[1]
(“the
PSA”)) and directing the appellant to, with immediate effect,
reinstate him to his employment, retrospective
to the date of his
deemed dismissal, on the same terms and conditions as if he had not
been dismissed, and further directing the
appellant to pay the costs.
Leave to appeal was granted on petition to this Court.
Condonation
[2] The
appellant applied for condonation for the late noting of the appeal.
The notice of appeal which was due
on 22 October 2020 was only filed
one court day later on 26 October 2020. The appellant explains in a
substantive application for
condonation, which was not opposed, that
the delay was due to a rotation of staff necessitated by the
exigencies caused by the
Covid pandemic; that the respondents have
not suffered any prejudice as a result of the late noting and that
the appellant has
excellent prospects of success in this appeal. A
proper case has been made for the grant of the condonation sought.
Factual
matrix
[3] After
having been absent from his employment for a period exceeding three
calendar months, Dr Mutunzi was informed
by Mr L. R Lebotse, Acting
Chief Executive Officer of the Mafikeng Provincial Hospital (“the
hospital”), where he had
been employed, that he was deemed to
be dismissed from his employment with effect from 1 February 2012 due
to his unauthorised
absence from his employment for a period in
excess of one calendar month, and as contemplated in section
17(3)(a)(i) of the PSA.
[4] The
letter further (
inter alia
) informed Dr Mutunzi that if he was
not pleased with that intimation he could make further
representations to the appellant for
his possible reinstatement.
[5] Disgruntled
by the information, Dr Mutunzi complained in writing to,
inter
alia
, Dr Mabote, the clinical manager at the hospital, and caused
a letter dated 7 May 2012 to be sent, on his behalf, by the first
respondent (“SAMA”) to the appellant and to the head of
Labour Relations at the North West Provincial Department of
Health.
[6] In
the letter, SAMA,
inter alia
, explains the absence of Dr
Mutunzi: that he did not intend to abscond from his duties and had
indicated to his employer that he
intended resuming his duties as
soon as his personal problems were solved; that he acted in good
faith and that he had sought the
employer’s permission for his
absence and was “truly under the impression that all was in
order”. SAMA then requests,
on behalf of Dr Mutunzi, that he be
allowed to resume his duties at the hospital and to remain in
occupation of the accommodation
that had been provided to him by the
employer.
[7] The
letter concludes as follows: “We submit that Dr Mutunzi has a
clear disciplinary record and has been
a loyal employee since his
appointment in the public service of South Africa on 5 May, 2007. We
further submit that Dr Mutunzi
regrets the actions which gave rise to
the dismissal and therefore undertakes to ensure that same does not
occur again. We would
greatly appreciate a favourable response to our
humble request…”
[8] Besides
taking those measures, Dr Mutunzi also lodged a dispute with the
Public Health and Social Development
Sectoral Bargaining Council
(“the bargaining council”).
[9] In a
letter by Dr Masike, on behalf of the appellant, to Dr Mutunzi, dated
14 July 2012, Dr Masike states that
it has come to their attention
that Dr Mutunzi has lodged such a dispute even though the Department
was in the process of considering
the representations made by SAMA on
his behalf for his reinstatement. Dr Masike further states that such
lodgement has “undermined
any further efforts to ensure that
his representations are dealt with internally”; that the
Department will “not substantively
deal with” his
representations and will attend to the dispute at the bargaining
council. The letter concludes by directing
Dr Mutunzi, with immediate
effect, to vacate the hospital premises that had been provided to him
by the employer as accommodation.
[10] SAMA
responded to Dr Masike’s letter in a letter dated 20 August
2012. In it they confirm that Dr Mutunzi
had lodged a dispute with
the bargaining council, but then intimate that the arbitrator at the
bargaining council had held that,
in light of Dr Mutunzi’s
deemed dismissal in terms of section 17 of the PSA, the bargaining
council did not have jurisdiction,
but that Dr Mutunzi was
nevertheless entitled to make representations to the appellant in
terms of that section for his reinstatement.
The letter concludes
with a request that the office of the appellant replies to Dr
Mutunzi’s representations.
[11] In
a letter dated 7 September 2012, from a Mr D Bokaba of Employment
Relations in the Provincial Department
of Health, to SAMA, he
confirms that the dispute that Dr Mutunzi referred to the bargaining
council was dismissed, and states that
the Department had “no
intention to re-open the matter” and even if Dr Mutunzi did not
abandon the internal processes,
his deemed dismissal would still
stand on the basis that his representations did not show good cause
for his reinstatement as contemplated
in section 17 of the PSA. No
further reasons for the decision were furnished in the letter which
was, seemingly, only received
by SAMA and Dr Mutunzi on 26 September
2012.
[12] Presumably,
as a direct consequence of the letter from Mr Bokaba, SAMA and Dr
Mutunzi, during November 2012,
brought an application in the Labour
Court for an order: (a) reviewing and setting aside the decision of
the appellant as communicated
in the letter of Mr Bokaba dated 7
September 2012 (the notice of motion seemingly erroneously refers to
6 September 2012) in terms
of section 158(1)(h) of the Labour
Relations Act
[2]
(“LRA”);
(b) reinstating Dr Mutunzi to his former post retrospectively (i.e.
to 20 April 2012) on the same terms and
conditions of employment that
pertained then and without a loss of any remuneration or benefits;
and (c) directing the appellant
to pay the costs of the application
in the event of opposition. The initial founding affidavit was
subsequently supplemented.
[13] Apparently
SAMA and Dr Mutunzi obtained a judgment by default which the
appellant eventually got rescinded
after having overcome several
procedural obstacles. The appellant then caused an answering
affidavit to be filed in the main review
application, deposed to by
Ms Hunter, an Administrator and Accounting officer in the North West
Provincial Department of Health.
SAMA and Dr Mutunzi filed an
affidavit in reply.
Decision
of the court a quo
[14] Even
though it was essentially confronted with a review of the appellant’s
decision which, effectively,
rejected SAMA and Dr Mutunzi’s
representations and request for reinstatement made in terms of
section 17(3)(a) of the PSA,
the court
a quo
elected to
determine whether the deeming provision in section 17 of the PSA had
come into effect in the first place. Referring
to section 17, the
court
a quo
held: “matters involving this section of the
Public Service Act (PSA) remain difficult horses to ride. However,
given the
approach I take at the end, it was unnecessary for me to
ride this difficult horse for long. In my view, with regard to the
decision
to approve the reinstatement or not, its fate ends once a
conclusion is reached that one of the jurisdictional facts is
absent.”
[15] Even
after the court
a quo
had referred to the grounds of review
(albeit cursorily), it essentially determined the application on the
jurisdictional point,
concluding that the deeming provision never
came into effect and that it was not necessary for Dr Mutunzi to have
sought reinstatement
as contemplated in section 17. The court
a
quo
held: “[i]n the final analysis it is perspicuous that
not all the jurisdictional requirements of the section [were met].
This simply implies that the effect of the section – deemed
dismissal – cannot be invoked. On application of the principle
of legality, the decision or action taken on 12 April 2012 to the
effect that the provisions of the section had kicked-in [was]
invalid, ineffectual and has no force of law. Since [Dr Mutunzi] was
not deemed dismissed, it was not necessary for him to seek
reinstatement by showing good cause.”
[16] The
court
a
quo
came to the conclusion that the deemed dismissal provision did not
come into effect, based on its interpretation of the leave provisions
in section 20 of the Basic Conditions of Employment Act
[3]
(“the BCEA”). It found (effectively) that an employee
does not require the approval of his or her employer to take
annual
leave. According to the court
a
quo
,
since Dr Mutunzi was on annual leave, his absence for the period from
28 December 2011 up to 30 January 2012 was not of the kind
contemplated in section 17 of the PSA. Secondly, in respect of his
absence for the period from 30 January to 10 April 2012, according
to
the court
a
quo
,
Dr Mutunzi had applied firstly, orally and then in writing for unpaid
leave of absence and the employer was obliged to grant his
request.
[17] In
respect of the remedy, the court
a
quo
had no difficulty in itself directing the reinstatement of Dr
Mutunzi. It concluded that it had such power and found justification
for that view in a dictum from a decision of a Kenyan court of appeal
in the matter of
Kenyatta
University
[4]
,
to the effect that judicial review is only concerned with the process
followed and not with the merits of the decision reviewed
and that in
considering there whether the litigant was qualified to be awarded a
Phd “the court was undertaking the statutory
role of the
University”. The court
a
quo
preferred that approach, notwithstanding local authority to the
contrary, which it attempted to distinguish. In view of the approach
that is taken in this appeal it is not necessary to engage that issue
any further.
[18] Counsel
for the appellant, in their heads of argument, confined themselves to
addressing the narrow question,
namely, whether the jurisdictional
facts for the coming into effect of section 17(3)(a)(i) of the PSA
were present, and the respondents’
counsel, in turn, also
confined himself to that very narrow question.
[19] It
is argued on behalf of the appellant, in essence, that the court
a
quo
erred in its conclusion that the jurisdictional requirements
for the section’s operation were not present. In particular,
the appellant contends, that by reason of his absence from work
without permission for a period in excess of one calendar month,
Dr
Mutunzi had “brought himself within the net of section
17(3)(a)(i).”
[20] The
appellant further contends the following: that the respondents did
not seek a declaratory order as granted
by the court
a quo
, or
at all, and that the respondents never made out the case for such
relief; further, that the court
a quo
, in any event, did not
have the power to order reinstatement consequent upon granting the
declaratory order; that an order of reinstatement
was only
appropriate in instances where the dismissal is found to be unfair
and not where it is found to be invalid; that there
was no decision
on 17 April 2012, or at all, to dismiss Dr Mutunzi from his
employment and that the letter of that date merely
informed him of
the effect of the operation of the law. It was further contended that
the court
a quo
had found incorrectly that the act of
informing Dr Mutunzi accordingly was an exercise of public power
reviewable in terms of the
constitutional principle of legality.
[21] The
appellant further argued that it was never Dr Mutunzi’s case
that his absence from his employment
was with permission; that the
court a quo’s interpretation of the leave provisions in section
20 of the BCEA was wrong; and
that its interpretation of section
17(3)(a) of the PSA was similarly wrong; that it was common cause
that Dr Mutunzi was absent
from work for more than one calendar month
and that he did not have permission for such absence, and that in
those circumstances
the jurisdictional requirements of the relevant
section had been met.
Discussion
[22] It
is now trite that the deemed dismissal provision in section 17(3)(a)
of the PSA does not require a decision
in order to operate. It
operates automatically in terms of the law if all the requirements of
the section are met. If a person
to whom the section applies, absents
himself from his employment without permission for a period exceeding
one calendar month,
in terms of the law, as stipulated in that
section, he (or she) “shall be deemed to have been dismissed
from the public service
on account of misconduct with effect from the
date immediately succeeding his or her last day of attendance at his
or her place
of duty.”
[5]
[23] It
was in issue on the papers whether Dr Mutunzi, on his version, was
scheduled to go on annual leave at the
beginning of December 2011 or
that he delayed his leave as requested by the hospital because he was
assisting with the shortage
of doctors as experienced by the hospital
at that point in time. On the appellant’s version, in terms of
its leave policies,
Dr Mutunzi had to apply for leave and get
permission for his leave from Dr Mabote, the clinical head of the
hospital, or his delegate,
Dr Lofembu, who were authorised in that
regard. When Dr Mutunzi took what he regarded as his “annual
leave” on 28 December
2011 it was not with the requisite
permission. It is not disputed that at no stage before he took the
“leave” did Dr
Mutunzi discuss it with any of them.
[24] It
is further the appellant’s version that when Dr Mutunzi
contacted Dr Mabote in January 2012 his absence
was not authorised.
The leave form which was purportedly completed by Dr Mutunzi on 15
December 2011 was only seen by Dr Mabote
on his return to work after
9 January 2012. Dr Mabote had recorded on the form that the leave was
not discussed with the clinical
manager before Dr Mutunzi absented
himself from 28 December 2011 to 31 January 2012; and that that
period of absence was not treated
as annual leave, but was treated as
“unauthorised leave without pay.”
[25] There
was also a dispute about the content of a discussion between Dr
Mutunzi and Dr Mabote in mid-January
2012 when Dr Mutunzi had
telephoned Dr Mabote. According to Dr Mutunzi it was to inform that
he had family problems and that he
was not able to return to South
Africa as per his original plan. According to Dr Mabote this
conversation had taken place a few
days before 30 January 2012 and he
had informed Dr Mutunzi in no uncertain terms that he could not
further extend his absence that
had never been authorised in the
first place. Dr Mutunzi elected out of his own to remain on extended,
albeit unauthorised leave,
despite Dr Mabote’s refusal to
approve the same.
[26] It
is admitted that when Dr Mutunzi returned to work on 10 April 2012 he
had been informed by Dr Mabote that
his work had been assigned to
another doctor and that on 12 April 2012 a letter had been given to
Dr Mutunzi by Dr Mabote informing
Dr Mutunzi that the issue
concerning his absence had been referred to the Labour Relations
Unit.
[27] It
is not clear from the judgment how the court
a quo
resolved
the factual disputes regarding the leave. Seemingly, it overcame the
difficulty of resolving those disputes by its construction
of section
20 of the BCEA, in particular to the effect that section 20(6) means
that approval for annual leave was not required,
and that,
accordingly, Dr Mutunzi was on annual leave for the period 28
December 2011 to 30 January 2012, and that his absence
from his
employment for that period was not what was contemplated in section
17 (3) (a) of the PSA.
[28] Even
in respect of the second period, that is from 1 February to 10 April
2012, the court
a quo
, seemingly, having effectively found
that Dr Mutunzi had requested an extension of his annual leave (i.e.
the first period), on
its interpretation of section 20 of the BCEA,
reasoned that the appellant was obliged to give him such an
extension, and, accordingly
that the second period was also not an
unauthorised absence as contemplated in section 17(3)(a) of the PSA.
[29] Regarding
the disputes of fact, it was clearly not open to the court
a
quo
to decide the matter on the probabilities. It is trite that
application proceedings do not lend themselves to such assessment.
[6]
Further, it was not open to the court
a
quo
,
to arbitrarily prefer the version of Dr Mutunzi above that of Dr
Mabote. The proper course was to decide the matter on the version
of
the respondent, unless that version was so far-fetched and obviously
improbable that it could have been rejected out of hand.
[7]
[30] The
court
a quo
ought to have found that Dr Mutunzi took time off
from 28 December 2011 to 31 January 2012, which was not authorised;
that he purportedly
filed a request-for-leave form in respect of that
period on 15 December 2011, but never discussed this with any of his
superiors
whom he was obliged to discuss it with; that the leave form
only came to the attention of Dr Mabote when he returned from leave
himself and that Dr Mabote had endorsed on the form that Dr Mutunzi’s
leave was not discussed with the clinical manager for
approval before
Dr Mutunzi left and that the period of absence was treated as
unauthorised and unpaid. The court
a quo
should further have
found that in the telephonic conversation Dr Mutunzi had with Dr
Mabote a few days before 30 January 2012,
in which Dr Mutunzi
requested an extension of his absence, Dr Mabote had made it clear to
Dr Mutunzi that he would not extend,
what was already unauthorised
leave, any further; and that despite this intimation Dr Mutunzi
continued to absent himself from
his duties at the hospital until he
eventually returned to work on 10 April 2012.
[31] Even
if one discounts the first period, i.e. gives Dr Mutunzi the benefit
of the doubt and assumes that it
was authorised, which I do not, his
absence from his duties well exceeded one calendar month. If one also
takes into account the
first period, then his absence exceeded three
calendar months.
[32] Unfortunately,
the court
a quo
erred in its interpretation of section 20 of
the BCEA. The section does not lend itself to a reasonable
interpretation that Dr
Mutunzi did not require permission for the
first, or the second period of his absence.
[33] The
court
a quo
not only erred in finding that when Dr Mutunzi
absented himself from his official duties from 28 December 2011 to 30
January 2012
(i.e. the first period) he was on annual leave, having
come to that conclusion on the mere say-so of Dr Mutunzi, but also
erred
in principle in its interpretation of section 20 of the BCEA.
The section does not mean that when an employee’s leave is due
he or she can take it without the approval of the employer.
[34] In
its interpretation, the court
a quo
first referred to section
20(2) and concluded, in effect, that the section meant that an
employer is obliged to grant an employee
annual leave, but then added
“[p]erspicously if an employee takes annual leave, such an
employee does not necessarily require
the permission of an employer”,
and that despite the fact that the next subsection which the court
a
quo
referred to, namely section 20(10), which is mandatory in its
wording, provides that “annual leave must be taken – (a)
in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at
the time
determined by the employer in accordance with this section.”
[35] Firstly,
section 20(2) does not provide that an employee does not require (or
necessarily require) the permission
of an employer before going on
annual leave. It is very likely that chaos would ensue in the
workplace if everyone could go on
annual leave as and when they
pleased, simply because it was due, without the employer’s
sanction. The legislation never
envisaged such an outcome, therefore,
section 20(10) was enacted, the wording of which is clear and
unambiguous.
[36] The
court
a quo
did not refer to an agreement as envisaged in
subsection 10(a), nor did it refer to the position envisaged in
subsection 10(b).
Further, there is anyway no allegation that the
employer in this instance determined that Dr Mutunzi could go on
annual leave from
28 December 2011 to 30 January 2012, or at all.
[37] The
court
a quo
seemingly also found that section 20(6) made it
possible for Dr Mutunzi to extend his absence from work without
permission. But,
that is a misreading of the subsection. Subsection
(6) refers back to subsection (5) which provides that: “[a]n
employer
may not require or permit an employee to take annual leave
during – (a) any other period of leave to which the employee is
entitled in terms of this chapter; or (b) any period of notice of
termination of employment.” Subsection (6) then provides
that:
“despite subsection (5), an employer must permit an employee,
at the employee’s written request, to take leave
during a
period of unpaid leave. The “leave” envisaged here is
annual leave and the ‘’unpaid leave’’
envisaged in the subsection is clearly authorised unpaid leave. So
that during a period of authorised unpaid leave the employer
must
permit the employee to take paid leave if it is requested by the
employee in writing. This, of course, has to be subject to
the caveat
that the paid leave must be due.
[38] Regrettably,
the court
a quo
’s reasoning, namely, that “once
annual leave or any other form of leave for that matter is involved
there can be no
mention of absence without permission” is
flawed, as it is based on the false premise that any form of leave
can be taken
without the permission of the employer.
[39] The
deemed dismissal envisaged in section 17(3)(a) of the PSA takes
effect when an employee, to whom the section
applies, absents himself
without permission of his head of Department, office or institution
for a period exceeding one calendar
month. If permission for an
absence is required, it must be obtained in order to avoid the
operation of the section.
[40] There
is no doubt on the facts, properly found, that Dr Mutunzi absented
himself from his official duties
at the hospital without having
obtained the requisite permission. All of the jurisdictional
requirements for the operation of the
deeming provision were thus in
place immediately after his unauthorised absence exceeded one
calendar month. The conclusion of
the court
a quo
to the
contrary is, unfortunately, not correct.
[41] It
is apparent from the letter written by SAMA on behalf of Dr Mutunzi
and dated 7 May 2012, that neither
they, nor Dr Mutunzi, contended
that his absence from his duties was with the permission of the
employer. On the contrary, the
letter purports to explain the absence
as having been due to Dr Mutunzi’s “personal problems”
that were not resolved.
It alleges that Dr Mutunzi had sought
permission from the employer and was “truly under the
impression that all was in order”
(even though no rational
basis for such belief is disclosed). More significantly, the letter
purports to be in compliance with
section 17(3)(b) which requires an
employee, who is deemed to be dismissed as contemplated in subsection
(3)(a), to show good cause
for his or her reinstatement by the
relevant executive authority.
[42] The
review application brought by SAMA and Dr Mutunzi was to review and
set aside, on stated grounds, (
inter alia
) the decision of the
relevant authority, namely the appellant, not to reinstate Dr
Mutunzi. Unfortunately, in light of its conclusion
that the deeming
provision in section 17(3)(a) never came into effect, because of a
lack of jurisdictional facts, the court
a quo
, did not deal at
all with the merits of that review.
[43] Neither
counsel have dealt with the merits of the review in their heads of
argument, having confined their
submissions to the findings of the
court
a quo
on the coming into effect of the deeming
provision.
[44] This
Court’s power to deal with a review ground not dealt with by
the Labour Court is circumscribed.
This Court is legally competent,
in terms of the latter part of section 174(b) of the LRA, to finalise
a matter on appeal before
it and not to remit the matter back to the
Labour Court if there has already been an inordinate delay in
finalising it, or if such
a course would entail a further long delay
and further costs. However the exercise of that power has been held
by this Court in
Sinuko
[8]
to depend upon the facts and circumstances of the matter before it.
[45] The
general rule in respect of reviews is that it is the function of the
Labour Court to review decisions,
including awards. A departure from
that rule is exceptional and depends on whether, in a particular
case, the interests of justice
and convenience will be best served by
this Court finalising the matter and not remitting it. Other
important factors include whether
the issues were fully canvassed
before the Labour Court, whether there is likely to be prejudice if
the matter is not remitted
and whether finalisation of this matter by
this Court is requested by the parties
[9]
.
The list is not closed
[10]
.
[46] In
this matter, as pointed out above, there was no request by any of the
parties that this Court finalise
the review which was technically not
dealt with on its merits by the court
a quo
. In fact, no
arguments are proffered by any of the parties concerning the merits
of the review. There would clearly be prejudice
if this Court deals
with those grounds in such circumstances, without the benefit of full
argument and the judgment of the Labour
Court on the merits. Thus, it
is not in the interest of justice for this Court, in those
circumstances, to effectively sit as a
court of first instance in
respect of the merits of that review. It is quintessentially a matter
for remission to the Labour Court.
[47] Taking
all the facts and circumstances, as well as the law and fairness into
account, a costs order does not
appear to be justified, both, in
respect of this appeal and the hearing in the court
a quo
.
[48] In
the result:
48.1 The
late noting of the appeal is condoned;
48.2
The appeal is upheld;
48.3 The
order of the court
a quo
is set aside;
48.4
The matter is referred back to the Labour Court for a hearing on the
merits of the review,
de novo,
before a different judge;
48.5 There
are no costs orders.
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Kubushi AJA concur in the judgment of Coppin JA.
APPEARANCES: (There was
no oral hearing. This matter was decided on the basis of the written
submissions of the parties as agreed
by them)
FOR THE
APPELLANTS: MJ
Ramaepadi SC and SB Nhlapho
Instructed
by the State Attorney
FOR THE FIRST
RESPONDENT: MJ Van As
Instructed
by Solomon Holmes Attorneys
[1]
Public
Service Act, 103 of 1994.
[2]
Act
66 of 1995.
[3]
Act
75 of 1997.
[4]
Kenyatta
University and 2 others v Elena D Korir
[2016] eKLR
http://www.kenyalaw.org
at
page 9.
[5]
See
,
inter alia
,
Grootboom
v National Prosecuting Authority and another
2014 (2) SA 69
(CC);
Phenithi
v Minister of Education and others
2008 (1) SA 420
(SCA
);
Minister of Defence and Military Veterans and another v Mamasedi
2018
(2) SA 305 (SCA).
[6]
See,
inter alia,
Zuma
v National Director of Public Prosecutions
2009 (2) SA 277 (SCA).
[7]
See,
inter alia,
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
2008 (3) SA 371 (SCA).
[8]
National
Union of Metalworkers of SA obo Sinuko v Powertech Transformers
(DPM) and others
[2014] 2 BLLR 133
(LAC) paras 27 -42 et seq.
[9]
Ibid.
[10]
Ibid.