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[2008] ZALAC 29
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Astral Operations Ltd v Parry (CA 8/05) [2008] ZALAC 29; (2008) 29 ILJ 2668 (LAC) (4 September 2008)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: CA 8/05
In the matter between
Astral Operations Ltd
.......................................................................
Appellant
And
Roger Parry
....................................................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO JP
Introduction
[1] The respondent, a former employee of the appellant,
brought an action in the Labour Court in which he sought an order
that the
appellant pay him various amounts of money arising out of
his previous employment relationship with it and the termination
thereof.
The appellant brought a counter-claim against him for some
payment as well but that counter-claim was later withdrawn. The
appellant’s
claims fell under Claim A, Claim B, Claim C and
Claim D.
[2] Claim A was based on an alleged breach by the
appellant of the contract of employment between the parties in that,
according
to the appellant, the appellant had dismissed him for
operational requirements without following certain contractual or
internal
procedures applicable in the case of such a dismissal. He
relied on the provisions of sec 77(3) of the Basic Conditions of
Employment
Act, NO 75 of 1997 (“
the BCEA
”) to
contend that the Labour Court had jurisdiction to entertain such a
claim. The claim was for the payment of an amount
of R 530 131, 31.
[3] Under Claim B the respondent sought an order for the
payment of his salary for certain periods between October 2002 and
March
2003, notice pay, leave pay, relocation allowance and severance
pay. Under Claim C the respondent sought an order for the payment
of
an amount equivalent to 12 months’ remuneration being
compensation for unfair dismissal under the Labour Relations Act,
1995 (Act 66 of 1995) (“
the Act
”). Claim D was an
alternative claim based on an alleged breach of the respondent’s
right to fair labour practices in
terms of sec 23(1) of the
Constitution of the Republic of South Africa Act 108 of 1996.
[4] The appellant raised the point that the Labour Court
did not have jurisdiction to entertain any of the respondent’s
claims
because its jurisdiction to entertain them would have to be
found either in the Labour Relations Act, 1995 (Act 66 of 1995) (“
the
Act
”) or in the BCEA and those Acts did not apply in Malawi
where the respondent was based because that is a different country.
The respondent maintained that those Acts did apply in his employment
relationship with the appellant and that the Labour Court
did have
jurisdiction. The appellant’s contention was that the relevant
Malawian Court had jurisdiction in the matter. The
appellant also
raised other matters in seeking to defend itself against the
respondent’s claims. It is necessary to set out
the facts of
this matter before considering the questions which need to be decided
on appeal.
The facts
[5] In its Heads of Argument in this Court the appellant
set out from paragraphs 14.1 to 14.11 facts which it said were not in
dispute
in this matter. The respondent did not challenge this in his
heads of argument. In its judgment the Labour Court set out the
factual
background to the dispute in paragraphs 2 to 16. In his heads
of argument in this Court the respondent accepted that factual
background
as correct. In the light of this I set out below a factual
background that is derived from the factual background set out in the
judgment of the Labour Court and the relevant part of the appellant’s
Heads of argument.
[6] The parties set out common cause facts in paragraphs
2.1 to 2.31 of the agreed pre-trial minute. It is convenient to quote
paragraphs
2.1 to 2.31 of the pre-trial minute. They read thus:
“
2.1
The
identity of the parties.
The applicant was employed as the respondent’s
General Manager: Africa Operations, at a monthly remuneration
package of
US$6 680,00 per month plus R 4 133,00 per month.
(Applicant’s car allowance was set in Rands and the balance
of his package
in US dollars). In this position as General Manager:
Africa Operations, applicant was responsible for respondent’s
operations
and subsidiaries in Malawi, Zimbabwe and Zambia.
Applicant was previously an employee of Tiger
Brands Ltd. The Astral Group was unbundled from Tiger Brands and
applicant was
subsequently appointed as a director of Astral Foods
Limited early in 2001. Astral Foods Ltd was the holding company of
inter alia
the respondent (Astral Operations Ltd) and County
Fair Foods (Pty) Ltd.
Applicant’s position with Astral Operations
Ltd became redundant. A written agreement was entered into with
respondent
on 31 July 2001 which had the following salient
features:
It was recorded that applicant’s position
had become redundant and that he had had 23 years of completed
service. (This
was a reference to his years of service with both
Astral Operations Ltd and Tiger Brands).
Applicant would take up the newly created position
of General Manager, Africa Operations with respondent with effect
from
1 June 2001.
The contract was concluded in South Africa.
The contract made no reference to the employment
relationship being governed by a legal system other than South
African law.
On the other hand clause 9.2 provided that sick
leave would be “
subject to conditions prescribed by
relevant legislation
”. Clause 13.1 which dealt with
hours of work provided similarly.
The written agreement was signed by applicant on 25
June 2001 and on behalf of respondent on 31 July 2001 (it is in
dispute
whether a letter dated 21 June 2001 in addition set out
further terms and conditions of employment between the parties).
The company policies included a retrenchment
procedure. Clause 2 thereof provided for prior notice of possible
retrenchment
which notice was inter alia obliged to disclose in
writing the reasons for the proposed retrenchment; the proposed
selection
criteria; and the possible date of retrenchment.
Clause 3 of the retrenchment procedure provided
that the company undertook to comply with the “
legally
required consultation process
”. In terms of the procedure
the applicant had to be afforded the opportunity to make
submissions on relevant issues.
His submissions then had to be
responded to. The Company also undertook to endeavour to find
alternative employment for the
applicant.
Paragraph 1.2 of the recordal in the agreement
provided that if applicant had to be retrenched, then, because he
had received
severance pay for the 23 years’ service he had
already rendered “
the future payment of any severance pay
by the company commences to run from the date mentioned in this
paragraph as the date
when the employee takes up the new position
.”
(The respondent contends that it was a term of the employment
contract that the internal retrenchment proceedings would
only
apply to employees in relation to whom the
Labour Relations Act was
applicable. Respondent further alleges that the applicant was not
such an employee claiming that he was employed outside South
African and beyond the territorial application of the
Labour
Relations Act.)
After
the conclusion of the employment agreement of
31 July 2001 the applicant moved to Malawi.
Respondent’s Malawian business was held in a
subsidiary Malawian-registered company called Meadow Feeds Limited
(Malawi).
Meadow Feeds Limited (Malawi) was not profitable.
Applicant introduced respondent to a third party,
Central Poultry 2000, which offered to buy the business of Meadow
Feeds Limited
(Malawi).
Respondent agreed to sell the business to Central
Poultry 2000, and thereby to shut down its Malawian operations.
Applicant was instructed to oversee the sale of the
business and its assets, and the collection of all outstanding
debts owing
to Meadow Feeds Limited (Malawi).
When the announcement of the need for the
applicant’s return to South Africa was communicated to him in
writing by Groenewald
on 23 July 2002 the applicant was informed
that the position in South Africa was being considered, but that
this “
will take some time to finalise and you will be kept
abreast of any developments”
.
On 31 October 2002 respondent’s Groenewald
wrote to the applicant say the following:
“
Since the Malawi
operations are coming to an end and in the absence of a suitable
position elsewhere in the Group, we have no option
other than to
offer you a retrenchment package. The package will be based on the
Astral Policy and will be finalised once you complete
your work in
Malawi
.”
(The respondent averring that Groenewald made a bona
fide error regarding the respondent’s obligation to pay a
retrenchment
package to the applicant.).
Applicant was repatriated to South Africa by the
respondent on 15 November 2002. He returned to his home in the
Western Cape.
On 16 November 2002 applicant met with Groenewald
in Johannesburg. A letter from Groenewald to Gustav De Wet (“
De
Wet
”) dated 22 November 2002, which was copied to
applicant and concerned the meeting of 16 November 2002 stated that
applicant
would receive “
a written document indicating his
pay, the duration of his employment and the detail of his
retrenchment package upon completing
the outstanding issues
.”
The respondent refused to pay a severance package
to the applicant, respondent averring that it determined that it
was not in
law obliged to do so.
Groenewald was himself subsequently dismissed from
his post as Director of Meadow Feeds, Northern Region. At the time
the applicant
was still in the respondent’s employ.
After his repatriation to South Africa the
applicant remained in the employment of respondent and continued to
perform certain
functions relating to the respondent’s
African operations.
Approximately a month after his return to South
Africa, applicant was requested by respondent to conduct certain
further work
in Malawi on its behalf, which he did between 5 and 12
December 2002. On 13 December 2002 and in Johannesburg, applicant
and
de Wet had a meeting where applicant reported back on this
trip, and where the following issues were, amongst others,
discussed.
De Wet and applicant discussed the work that remained to
be done following the sale of respondent’s business in
Malawi.
Applicant and de Wet made plans to conduct a business trip
to Malawi in January 2003.
Applicant had previously been the Managing Director
of Meadow Feeds National Operations.
During or about December 2002 various
investigations into misconduct on the part of senior employees were
being undertaken.
De Wet was placed on a warning valid for twelve
months.
Respondent’s Human Resources Director Len
Hansen, writing from Pretoria on 7 January 2003, wrote to the
Applicant and
stated the following.
That respondent confirms that his services “
have
been terminated on 31 December 2002 as per your discussions with
Gustav de Wet 13 December 2002
.”
Respondent advised applicant that he would
not
be paid a retrenchment package apparently because “
the
new owners of the operation in Malawi offered you another
position
.”
Respondent also advised applicant that it would
“
not consider
” him for the position of Managing
Director: Northern Region.
On 14 January 2003 De Wet wrote to the applicant
setting out calculations for the payment of his final salary for
the months
of November and December 2002. His e-mail stated the
respondent wished to transfer the monies as soon as possible.
Neither
of the amounts there reflected nor any part thereof had
been to date paid to the applicant and nor has any tender
subsequently
been made to pay such amount.
De Wet’s letter of 14 January 2003 also
informed the applicant that De Wet believed that “
it will
not be necessary for you to plan to still go to Malawi with me
.”
(It being in dispute as to whether applicant wished to accompany De
Wet to Malawi or not.).
On 30 January 2003 the applicant referred a dispute
to the CCMA in which he, inter alia, alleged that his retrenchment
was unfair
and that the respondent had failed to pay him severance
pay.
Ad respondent’s claim in reconvention
2.30 In late 2001 Applicant introduced a potential
purchaser Central Poultry 2000 Limited (“Central Poultry”)
to Respondent.
Negotiations thereafter commenced relating to the
potential acquisition of Respondent’s business and/or assets in
Malawi
by Central Poultry. In such negotiations Respondent was
represented by Applicant, De Wet and Christo Groenewald. Applicant
was
therefore at the times fully aware of the progress of and
developments in such negotiations.
Meadow Feeds Limited (Malawi) was a wholly owned
subsidiary of the respondent at the time of his dismissal”
The Labour Court
[7] The Labour Court did not deal separately with the
point taken by the appellant that it did not have jurisdiction. It
dealt with
the question of what the proper law was which was to be
applied in adjudicating the respondent’s claims, found that it
was
the South African law and, from this, concluded that, therefore,
it, as a South African court, had jurisdiction. It went on to deal
with the merits of the claims and made various orders the details of
which will be dealt with later if this becomes necessary.
However, it
can be pointed out that the orders did include orders:
(a) for the payment of one month’s salary as
notice pay in leave of notice of termination of the contract of
employment
(b) for the payment of the respondent’s balance of
salary for June, July, November, December 2002 and January 2003.
(c) for the payment of severance pay calculated at two
weeks’ pay for every year of service.
(d) for the payment of accrued leave pay for November
2002 to February 2003
(e) for the payment of an amount equal to twelve months’
remuneration for unfair dismissal for operational requirements.
(f) interest and costs.
[8] Subsequently, the appellant made an application to
the Labour Court for leave to appeal to this Court against some of
the orders.
The Labour Court granted leave to appeal against some of
its orders and refused leave in respect of others. The respondent
also
sought leave to cross-appeal and such leave was granted. For
present purposes it is not necessary to go into orders in respect of
which to leave to appeal was refused and orders in respect of which
leave to appeal was refused.
The appeal
[9] The first question that needs to be decided is
whether or not the Labour Court had jurisdiction to entertain the
respondent’s
claims in the light of the fact that the Act and
the BCEA have no extra-territorial application. Counsel for the
appellant submitted
that the Labour Court had no jurisdiction. In
support hereof he referred to the presumption in our law that “
(i)n
the absence of an intention clearly expressed or to be inferred
either from its language or from the object, subject-matter
or
history of the enactment, …. Parliament does not design its
statutes to operate on its subjects beyond the territorial
limits
”
of the country. In support hereof he referred to Maxwell:
“
Interpretation of Statutes
”, 8
th
ed at
p 127 as approved in
Bishop and others v Contrath & Another
1947(2) SA 800 (T) at 804
. He also referred to the case of
Viljoen v Venter NO 1981(2) SA 152 (W) at 154 H.
Counsel for
the appellants contended that, since the respondent’s workplace
was in Malawi, the Labour Court could not have
jurisdiction. In
support of the submission that, if an employee’s workplace was
outside the country, the laws of this country
could not apply to such
person, Counsel also relied upon
CIWU v Sopelog cc (1993) 14 ILJ
144 (LAC)
and the decision of the Appellate Division in
Genrec
Mei (Pty)Ltd v Industrial Council for the Iron, Steel, Engineering,
Metallurgical Industry and others
(1995) 4 BLLR 1(A)
,
Lamani &
Another v CTC Bus Co Ltd & Another 1988 (9) ILJ 583 (E), Tawusa v
Bahwaduba Bus Service (Pty) Ltd 1989 (10) ILJ
1169 (IC), Wilson v
Maynard Ship Building Consultants AB
(1978) ICR 377
, Todd v British
Midlands Airways Ltd
(1978) ICR 959
Janata Bank v Ahmed
(1981) IRLR
457
and Weston v Vega Space Systems Engineering Ltd
(1989) IRLR 429.
[10] In the Sopelog matter Scott J, sitting in the now
defunct Labour Appeal Court created under the Labour Relations Act
1956 (Act
28 of 1956 as amended), had to decide the question whether
the Industrial Court had jurisdiction to entertain an application in
terms of sec 17(11)(a) of the old Act where the employees concerned
worked on oil rigs outside the territorial waters of the Republic,
the workers were residents of the Republic, their employer’s
principal place of business was in Cape Town and its registered
office was in Johannesburg. Scott J concluded that in that case the
industrial court had no jurisdiction because the workers’
workplace fell outside the territorial boundaries of the Country and,
therefore, of the industrial council.
[11] In the Genrec matter the question was whether or
not the old Act, prior to certain amendments thereof in 1991, was
applicable
to the dismissal dispute between the workers concerned and
their employer which, if answered in the affirmative, would mean that
the respondent industrial council had jurisdiction to deal with such
dispute but, if answered in the negative, would mean that
the
respondent industrial council had jurisdiction to deal with such
dispute.
[12] In the Genrec matter the employer, that is Genrec
Mei (Pty) Ltd, had its principal place of business in Durban and that
area
fell within the area of jurisdiction of the industrial council.
The employees who, after dismissal referred their dismissal dispute
to the respondent industrial council for conciliation, were recruited
by Genrec to perform work on an oil rig situated above the
continental shelf and outside South African territorial waters. The
contracts of employment between the workers concerned and Genrec
had
been concluded in Durban and the workers themselves were resident in
Durban.
[13] Sec 2(1) of the old Act provided, prior to its
amendment in May 1991, that the old Act applied to “
every
undertaking, industry, trade or occupation.
” The 1991
amendment extended the application of the old Act to undertakings
performing work in, on or above the continental
shelf. The Appellate
Division held that the old Act did not, prior to its amendment in
1991, apply to the undertaking operated
by the employer on the oil
rig above the continental shelf outside South African territorial
waters.
[14] Although it is not very easy to determine the
actual basis for the Court’s decision that the old Act did not
apply to
the case in Genrec, it seems that the Court made the
decision on the basis of where the employer was carrying on its
undertaking
in which the employees concerned were working. (see
Genrec at p. 5 H-I). At 6 B-C in Genrec Van Heerden JA, writing for
the Appellate
Division said:
“
It seems clear therefore
that, if one ignores the provisions of s 48(1)(c) of the Act, the
jurisdiction of an industrial council
is limited to matters relating
to an undertaking carried on in an area in respect of which it is
registered. Now, although the
Council is one of the few industrial
councils registered for the whole of South Africa, it was rightly
common cause that prior
to the 1991 amendment of s 2(1) the Act by
itself did not have extra-territorial application, and that hence the
council could
not deal with disputes existing in an undertaking
carried on outside the Republic. The main bone of contention between
the parties
was on the question where the appellant’s
undertaking in which the respondents were employed was being carried
on.”
Sec 48(1)(c) of the old Act – to which the learned
Judge of Appeal referred in the above passage - gave the Minister
additional
power to declare by notice in the Government Gazette that
provisions thereof would be binding in an area additional to that in
respect to which the industrial council concerned was registered. Sec
48(1)(c) was irrelevant to the issues in the Genrec matter.
[15] From the passage quoted above it seems to me that
the Appellate Division was saying that the industrial council could
not,
in the absence of sec 48(1)(c) of the old Act, have jurisdiction
in respect of a matter “
relating to an undertaking carried
on in an area in respect of which
” it was not registered.
The Court also stated that it was “
rightly common cause
”
that, prior to the 1991 amendment of sec 2(1) of the old Act, the old
Act did not by itself have extra - territorial application
and “
hence
the council could not deal with disputes existing in an undertaking
carried on outside the Republic
.” The Court pointed out at
6 C-D that the issue between the parties in the Genrec matter was “
on
the question where [Genrec’s] undertaking in which the
[employees] were employed was being carried on.”
[16] The Appellate Division said that Scott J may have
gone too far by equating the location of the workplace with the
location
of the carrying on of an undertaking (see Genrec at 7 F-G).
In Genrec the Court pointed out at 7 I- 8C that:
(a) the question where an undertaking is being carried
on at any given time is ultimately one of fact;
(b) although Genrec did carry on an undertaking in
Durban, it was also engaged in another undertaking conducted on the
platform;
(c) the vast majority of Genrec’s employees
working on the platform were not part of Genrec’s regular
workforce;
(d) the respondent employees in the Genrec matter were
recruited specially for employment to work on the platform.
(e) the respondent employees’ contracts of
employment in the Genrec matter were of limited duration and were to
come to an
end of the completion of “
the Hook-up contract
”
and, thereafter, they would no longer be employees of Genrec. In
other words, said the Court, they would at no stage be
employed in
the Durban undertaking unless, of course, new agreements were to be
concluded with them at a later stage.
[17] In the light of the above factors and those that
had been mentioned by Booysen J in the court of first instance in the
Genrec
matter, said Van Heerden JA, it appeared that the undertaking
in which the employees in the Genrec matter were employed was
completely
divorced from the Durban undertaking. The Court then
concluded: “…
. I am consequently of the view that in
its main characteristics the former undertaking pertained solely to
work to be executed
on the platform and, hence outside our
territorial waters
.” (see Genrec at 8 B-C).
[18] Having considered the Genrec decision I am of the
view that in that case the Appellate Division decided the application
or
non-application of the old Act to the dispute in the case
according to the locality of the undertaking carried on by Genrec in
which the respondent employees were employed (see what the Court a
quo was reported to have said at 6D-E, 7C- 8B). I propose to
use the
same criterion to decide the issue in the present matter. I am
mindful of the fact that in Genrec the Appellate Division
was dealing
with a case in which the locality of Genrec’s undertaking where
the respondent employees worked was of particular
significance
because in terms of the old Act the jurisdiction of the industrial
council – which was in issue in that case
- was linked to both
the undertaking carried on as well as the area in respect of which
the industrial council was registered.
Nevertheless, I do not think
that that factor should make a material difference because, even
under the current Act, a similar
issue could arise involving a
bargaining council as under the current Act a bargaining council’s
jurisdiction in respect
of an employer depends upon the type of
undertaking which the employer runs and whether the area in which the
employer conducts
such undertaking falls within the territorial scope
of the bargaining council. In such a case the Supreme Court of Appeal
would
probably follow the same approach in deciding whether the Act
applied or whether the bargaining council has jurisdiction in respect
of a similar dispute.
[19] In a case where there was no bargaining council and
the Commission for Conciliation, Mediation and Arbitration would have
to
be involved if the Act applied, the position would be that in
terms of sec 115 of the Act the CCMA has jurisdiction in the whole
Republic and, obviously, has no jurisdiction outside the Republic. It
seems to me that in a case involving the CCMA the Court could
also
ask whether the employer’s undertaking in which the employees
work is carried on inside or outside the Republic. If
it was carried
on inside, the CCMA would then have jurisdiction and, if where it was
carried on outside, the CCMA would not have
jurisdiction.
[20] In this matter the respondent terminated his
contract of employment with Astral by agreement and took a severance
package amounting
to R 600 000,00 even though he was being offered
another job. He then concluded a completely new contract of
employment for his
new job. That is his Malawian job. That was the
position of General Manager: Africa Operations. He then relocated to
Malawi. He
was working for a Malawian subsidiary of the appellant. He
made monthly reports to the Head Office in South Africa. The
operation
in Malawi was separate from the South African operation of
the appellant. That is why he was able to sell that operation
separately.
Those of the respondent’s duties that he performed
outside Malawi were not performed inside South Africa. If he was to
work
in the South African undertaking of the appellant, he and the
appellant would have needed to enter into a new contract of
employment
with the appellant. In my view when all the facts of this
matter are considered and the question is asked as to where the
undertaking
was carried on in which the respondent worked, the answer
would be an easy one, namely: Malawi! In fact when one has regard to
the facts of the Genrec case and the facts of this case, one would
realise that it would be very difficult to distinguish this case
from
the Genrec case. In both cases the employer had a business operated
from the Republic. In both cases the employee was or employees
was or
were resident in the Republic. In both cases the employer had an
operation outside South Africa. In both cases the employee
or
employees had entered into specific contracts of employment requiring
them to work outside South Africa. In the light of all
of this it was
decided in Genrec that the Act did not apply prior to its amendment.
In the light of all of this I am of the view
that the Act did not
apply to the appellant’s operation in Malawi and that the
Labour Court had no jurisdiction to entertain
the respondent’s
claims.
[21] In concluding that the Labour Court did not have
jurisdiction to entertain the respondent’s claims, I am mindful
of the
fact that some of the respondent’s claims were based on
the contract of employment and not on the BCEA or the Act. This would
give rise to the argument that, based on the provisions of sec 77(3)
of the BCEA, the Labour Court has the same jurisdiction as
the High
Court in respect of any matter concerning a contract of employment
and that, even if the BCEA and the Act did not apply,
the Labour
Court would have jurisdiction to deal with such claims in the same
way as the High Court would have had jurisdiction.
In this regard it
would be pointed out that both the plaintiff and the defendant in
South Africa, the contract was concluded in
South Africa and if the
Court gave a monetary judgment in favour of the plaintiff, that money
judgment would be executed in South
Africa. While I do understand all
of this, my difficulty is that the Labour Court can only derive
jurisdiction to entertain such
claims from sec 77(3) of the BCEA and,
without that provision, it would not have such jurisdiction. If the
BCEA did not apply to
this case obviously sec 77(3) of the BCEA also
did not apply.
[22] The Court below reached the conclusion that the
BCEA and the Act applied to this case. I have taken a different view.
I wish
to make two observations which in my view are responsible for
the different outcome in the court below. The first is that it seems
to me that, as Counsel for the appellant submitted, the Court a quo
dealt first with the question of the proper choice of law and
once it
had concluded that the parties had chosen the South African law as
the law that would apply, it seemed to it that it followed
that the
Labour Court had jurisdiction. In my view this did not follow.
Parties are able to choose whatever law as the law that
must be
applied in resolving a dispute between themselves arising out of some
agreement between them. That law may be invoked by
a court in a
foreign jurisdiction to adjudicate a dispute. In this case a Malawian
court could have applied South African law including
the BCEA and the
Act in adjudicating the respondent’s claims against the
appellant.
[23] The other observation is that it does not appear to
me that the Court below sufficiently considered the question of what
criterion
was used in Genrec to determine whether the industrial
council in that case had jurisdiction in that matter.
[24] In the light of the conclusion I have reached on
the appeal, the cross-appeal falls away. In the premises it seems to
me that
the appeal must succeed. I am of the view that the
requirements of the law and fairness dictate that there should be no
order as
to costs.
[25] In the result I make the following order:
1. The appeal is upheld,
2. The cross-appeal is dismissed.
3. There is to be no order as to costs on appeal and
cross-appeal.
4. Those orders of the Labour Court in respect of which
leave to appeal was granted are set aside and replaced with the
following
order:
“
(a)
This
Court has no jurisdiction to entertain the Applicant’s claims.
(b) There is to be no order of costs.”
Zondo JP
I agree.
Jappie JA
I agree.
Patel JA
Appearances:
For the Appellant : Mr A C Oosthuizen SC
Instructed by : Cliffe Dekker Inc
For the Respondent: Mr C S Kahanovitz
Instructed by : Dernardt Vukic Potash & Getz
Date of judgment : 4 September 2008