About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2013
>>
[2013] ZALAC 22
|
|
Du Plessis and Others v South African Local Government Bargaining Council and Others (JA 18/12) [2013] ZALAC 22 (4 October 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case NO: JA 18/12
In the matter between:
AJ DU PLESSIS AND 2210
OTHERS
.
..........................................................
Appellants
and
THE SOUTH AFRICAN
LOCAL GOVERNMENT
BARGAINING COUNCIL
....................................................................
First
Respondent
PROFESSOR K GOVENDER
N.O.
...............................................
Second
Respondent
EKURHULENI
METROPOLITAN MUNICIPALITY
............................
Third
Respondent
Heard: 02 May 2013
Delivered: 04 October
2013
CORAM: waglay jp,
TLALETSI ADJP, DAVIS JA
_________________________________________________________
__
________
JUDGMENT
TLALETSI, JA
Introduction
[1] This is an appeal
against the order of the Labour Court (per Louw AJ) in a review
application brought by the third respondent
in that court for an
order
inter
alia,
reviewing
and setting aside the arbitration award issued by the second
respondent (‘the arbitrator’) under the auspices
of the
first respondent (‘the Bargaining Council’).
[2] The Labour Court
issued an order in terms whereof the award of the arbitrator was
reviewed and set aside. Aggrieved by this
decision, the appellants
unsuccessfully applied for leave to appeal in that Court. Leave to
appeal was granted to the appellants
pursuant to a petition to the
Judge President of this Court.
[3] The litigation in
this case emanates from a referral of a dispute by the appellants to
the Bargaining Council regarding what
they categorised as a dispute
about the interpretation and/or application of the Wage Agreement
entered into between the South
African Local Government Association
(SALGA), the Independent Municipal and Allied Trade Union (IMATU) and
the South African Municipal
Workers Union (‘SAMWU’)
signed on 5 November 2003. The referral was made in terms of section
23 of the Labour Relations
Act 66 of 1995 (“the LRA”) as
amended.
1
The appellants who are
employees of the Ekurhuleni Metropolitan Municipality (‘the
Third Respondent’) were at all relevant
times members of either
SAMWU or IMATU.
[4] The Wage Agreement in
question provided, in Clause 5, for a percentage increase of the
salaries of the municipal employees operating
under the auspices of
the Bargaining Council. Clause 5.6 provided that:
‘
The parties
agree on the categorisation of municipalities in principle to which
effect they hereby undertake to finalise a collective
agreement on
categorisation within a period of three months from the date of
signature thereof.’
The issue in dispute is
how the percentage increases were to be implemented by the third
respondent.
[5] For a better
understanding of the case presented by the appellants and their
contentions in the Labour Court, it is necessary
to set out the
factual background relied upon by the appellants. These facts are
gleaned from the pleadings as well as the oral
and documentary
evidence tendered by the parties and are largely common cause.
Historically, there was a
statutory grading system created in terms of the Remuneration of Town
Clerks Act (“RTCA”)
2
which determined the
criteria for the establishment of wage levels for town clerks in the
various municipalities across the country.
The grading was based on
the size and other factors of the different municipalities. The same
approach was followed in regard to
the remuneration of elected
officials in the Remuneration of Public Office Bearers Act
3
in that the same criteria
was adopted in regard to the determination of the remuneration of
public office bearers to benchmark local
authorities of similar size
and sophistication.
[6] The reasoning for
establishing a grading system in this regard was that town clerks and
elected officials in similar sized municipalities
would have similar
levels of responsibility and similar duties and should therefore
receive similar remuneration. The criteria
adopted referred to issues
such as the number of voters, the budget and size of the local
authorities in order to establish what
grading should be accorded to
municipalities and to determine what level of remuneration should be
paid to town clerks and elected
officials.
[7] The statutory system
similar to the grading system for town clerks and elected officials
was never established for the remuneration
of municipal employees.
However, what happened is that wage agreements,
which
were concluded at national bargaining level, were applied on a
graduated basis in line with the grading of local authorities.
The
reasoning in this regard,
according
to the appellants,
was
that employees in municipalities of similar size and sophistication
had to earn similar remuneration and,
more
specifically, to ensure equitable implementation of the national wage
increases in the local government sector nationally.
[8] The appellants
contended that the grading system forms an integral part of the
current collective bargaining system. The grading
of the
municipalities for purposes of applying the wage agreements, as a
matter of practice, tracked the grading accorded to municipalities
for purposes of remuneration of town clerks and elected officials.
[9] What led to the
present dispute is that on 11 August 2000, the Minister responsible
for local government issued Government Notice
803 which set out the
criteria that should be used in determining the remuneration of
public officials in terms of the POBS. It
stipulated that
municipalities would be graded on a point system based on the rates
income and the number of voters in each municipality.
[10] On 19 September
2000,
the
Greater East Rand Metropolitan Council (‘GERMC’) the
predecessor to the third respondent passed a resolution that
determined itself as a level 13 municipal council. This resolution
was based on the points obtained by the municipality in applying
the
prescribed criterion. Subsequent to this resolution,
the appellant
commissioned an investigation into its correct grading as a municipal
council. The result of the investigation was
that the council was
supposed to be graded a grade 16 municipality and not grade 13.
[11] It is common cause
that on 4 December 2000 a new grading system for the determination of
the grades of municipalities was introduced.
4
The new system had six
grades instead of the previous 16. The criterion for the
determination of the grades was,
however,
almost the same as the
previous one.
5
On 13 December 2000,
the third respondent took
a resolution to adopt the new grade 6 as the correct grade for
remunerating its elected officials.
[12] It is further common
cause that on 30 January 2003, the third respondent’s council
passed a resolution in terms whereof
it regarded itself as a grade 13
municipality for the purpose of remunerating its employees. This
resolution had the effect that
the Wage Agreement of 2003 agreed to
at the central bargaining unit had to be implemented on the basis
that the third respondent
was a grade 13 municipality. It therefore
meant that the appellants were to be remunerated on the basis that
the third respondent
was a grade 13 municipality and not a grade 15
that was applied to the office bearers.
[13] The respondents were
dissatisfied with this result and referred a dispute to the first
respondent in terms of section 23 of
the LRA which, as pointed out
already, involved the interpretation of Clause 5.6 of the 2003 Wage
Agreement. The dispute could
not be resolved through conciliation and
was referred to arbitration. The dispute was arbitrated by the second
respondent.
[14] In his award, the
arbitrator recorded the issue before him to be whether ‘a trade
usage had developed in the sphere of
local government in terms of
which municipalities discharging similar responsibilities,
obligations and duties remunerated their
employees on a similar
basis. If so, should the [third] respondent, as a consequence of the
collective agreement entered into be
deemed as Grade 15 municipality
for the purposes of remunerating its employees?’
[15] The appellants
contended that the third respondent, in implementing the 2003 Wage
Agreement on the basis that the third respondent
was a grade 13
municipality and not a grade six or 15 municipality had deviated from
the custom that had existed for the past 20
years, namely, that the
same criteria that would be used to determine the grade of the
municipality for the purposes of determining
the salaries of town
clerks and/or public officials, would apply when determining the
remuneration of the employees. They contended
that the practice was
that the same grade would apply for remunerating both public
officials and the employees.
[16] The arbitrator
considered the relevant legislation and the collective agreement, as
well as the oral evidence of the appellants’
three witnesses
namely, Mr Neville Rudman (the Chief accountant who was employed in
the Human Resource Division in 1990 and after
nine years moved to the
financial section), Mr Daniel Goosen (who was Director of Human
Resources in 1987 in Springs which later
together with other
municipalities constituted the third respondent), Mr Christofel
Wolfaardt (who was up to 2004 employed as Chief
Accountant and was
working on salary scales at the third respondent from 1987 to 2002/3)
as well as the third respondent’s
witness, Mr Thulani Nciza
(the Manager: Collective Bargaining at the third respondent and
previously a shop steward and later Regional
Secretary for SAMWU).
[17] The arbitrator’s
conclusion and summary of the reasons for the award are captured in
paragraph 59 of the award which
reads thus:
‘
In
conclusion, I am satisfied that there was an established trade custom
and usage in the local government sector that municipalities
would be
graded in accordance with their responsibilities, duties and
obligations. The grade of the municipality determined by
the salary
scales used to remunerate its employees. Employees of similar graded
municipalities were similarly remunerated. I am
satisfied on the
evidence that this trade usage or custom survived the repeal of the
RTCA and continued under the present dispensation.
Presently,
municipalities are not prohibited by law from re-grading and on my
interpretation of the Constitution, are permitted
to re-grade in the
absence of national or provincial law stating otherwise. A binding
collective agreement on the issue of re-grading
may also
significantly impact on the powers of the municipalities in this
respect. However, when a municipality elects to re-grade,
it has to
ensure that the new grade directly correlates with its
responsibilities, duties and obligations.
The
Wage Collective Agreement was premised on the continued existence of
these customs. When the respondent decided to re-grade
itself in
January 2003, it was obliged in terms of the existing trade custom
and usage and by the Wage Collective Agreement to
upgrade itself as
Grade 15. The decision by the respondent to grade itself Grade 13 is
in violation of the Wage Collective Agreement
read with the
applicable and binding trade custom and usage. The applicants’
right in this matter thus accrues directly from
the Wage Collective
Agreement.
”(Emphasis
added)
[18] The arbitrator
concluded by making the following award :
‘
a) For the
purposes of remunerating its employees, the respondent must be deemed
to be a Grade 15 municipality as from the date
in 2003 on which it
implemented the Grade 13 salary scales.
b) The respondent must, in accordance
with the salary scales applicable to a grade 15 municipality, pay the
applicants retrospectively
from the date it implemented the Grade 15
salary scales in 2008 to the date in 2003 when it implemented the
Grade 13 salary scales.
c) The sum to be paid will be the
amount that would have accrued to the applicants had the respondent
paid on salary scales applicable
to Grade 15 municipality minus the
amounts actually paid to the applicants and any lawful deductions.
d) The respondent is ordered to pay
the costs incurred by the applicants in respect of the matter heard
by me. The costs are to
be assessed in accordance with Clause 2.39 of
Part D of the SALGBC Main Collective Agreement.’
Proceedings in the
Labour Court
[19] The third respondent
instituted review proceedings in the Labour Court in terms of section
145 (2)(a) of the Act. The grounds
of review relied upon were,
inter
alia
, that the arbitrator misdirected himself in that he asked
and answered the wrong question; failed to apply his mind to the
correct
issue; he incorrectly stated that it was accepted that grade
six under the POBS was equivalent to grade 15 under the RTCA system
and thereby failing to appreciate that the comparability of the RTCA
system and POBS system was fiercely contested since the third
respondent’s case throughout was that it was inappropriate to
equate the two systems which,
inter alia
, used different
factors in quite distinct systems; failed to appreciate the
appellants’ case referred to arbitration being
the that the
Wage rates being paid were a wrong application of a collective
agreement as contemplated in section 23 of the LRA
because the custom
alleged had not been followed; that the appellants acquired a right
to demand the custom be followed i.e. that
the municipality was
obliged to assess itself in terms of certain criteria and upgrade
itself.
[20] It was further
contended that the arbitrator misdirected himself by stating that he
was investigating a system of municipalities
“performing
similar obligations and discharging similar responsibilities to be
similarly graded” which was not the
case articulated by the
appellants. Finally, it was contended, that the arbitrator’s
conclusion that a custom was proved
that obliges the third respondent
to upgrade itself is not rationally connected with the evidence
adduced or with the elements
of the alleged custom.
[21] In its judgment, the
Labour Court remarked that since the respondent was relying on
misconception, in order for the misconception
of issues to constitute
a ground for review, it must be material such that the misconception
or misdirection had prevented a fair
trial of the issues. The Labour
Court held that, in its view, the arbitrator identified the correct
issues to be determined, namely,
whether there was a tacit term in
the Wage Agreement of 2003 to the effect that the municipality should
remunerate its employees
based on a grading system which is directly
linked to the magnitude of its responsibilities, duties and its
service delivery obligations
which the arbitrator found was based on
an established trade and custom. The Labour Court held that the
reasonableness of the award
must be determined by establishing
whether such a custom or trade usage survived the repeal of the RTCA.
[22] The Labour Court,
thereafter, made the following findings:
a) The arbitrator did not
at any stage consider the import of clause 5.6 of the Wage Agreement
of 5 November 2003 coupled with the
evidence of Nciza and as a
consequence failed to weigh up the evidence in a balanced manner and
disregarded this relevant and important
evidence before him.
b) Since the parties had
agreed as part of the Wage Agreement of 2003 that they would reach
agreement sometime in the future as
to how municipalities would be
categorised for the purposes of remunerating employees, it was an
indication that the parties had
abandoned the old custom and practice
in terms of simply adopting the grading applicable based on the
principles either emanating
from RTCA or the POBS. It cannot as such
be concluded that the previous custom and trade practise formed a
tacit term of the Wage
Agreement of 2003. The result is therefore
that the arbitrator did not understand the import of clause 5.6 of
the Wage Agreement
in question. His decision is therefore not one
which a reasonable decision maker could have reached in the
circumstances.
c) The failure by the
parties to enter into negotiations to agree on the categorisation of
the municipality and their failure to
finalise a collective agreement
within a period of three months from 1 July 2002 and extended to 4
February 2003 did not give the
arbitrator the power to step into the
shoes of the parties and categorise the third respondent based on his
own opinion as to how
and on what basis the third respondent should
grade itself for purposes of remunerating its employees.
d) The arbitrator, by
concluding that the third respondent should in 2003 be deemed to be a
grade 15 municipality, alluded to equity
factors which were quite
irrelevant to the rights issues before him. This was evident by
stating that he could see no reason and
logic or in principle for a
municipality to be graded in the top rank for purposes of
remunerating the political office bearers
and in a much lower
category for the purposes of remunerating its employees. This in fact
introduced an equity norm into an inquiry
as to what might justify a
defence.
[23] Having concluded
that the arbitrator failed to apply his mind to the validity of the
unambiguous language of the Wage Agreement
of 5 November 2003 and did
not have jurisdiction to categorise the third respondent, the Labour
Court made an order setting the
award aside and made no order with
regard to the costs of the review application.
The appeal
[24] The appellants
raised several grounds upon which the judgment of the Labour Court is
challenged. These may be summarised thus:
The Labour Court erred:
a) by concluding that the
determination of the existence of a trade usage was irrelevant to the
review application;
b) in concluding that the
custom and practice to the effect that similarly sized local
authorities remunerate its employees on a
similar basis was abandoned
by the parties because of clause 5.6 of the Wage Agreement of 5
November 2003;
c) by concluding that the
arbitrator was not empowered to determine the categorisation of the
third respondent;
d) in viewing the 2008
Collective Agreement as simply resolving a strike;
e) in finding that the
arbitrator had no jurisdiction or the powers to categorise the third
respondent when that was the issue that
he had to decide and the
parties having agreed that the Bargaining Council had jurisdiction to
arbitrate their dispute.
[26] Advocate Myburgh SC,
who appeared on behalf of the appellants in this Court, made several
submissions which make it unnecessary
to deal with each and every
submission made by his predecessor in the Labour Court and who also
prepared the heads of argument
filed on behalf of the appellants.
Counsel submitted that the real dispute
in casu
was the
interpretation and application of the Wage Agreement of 2003. The
question is, therefore, whether the findings of the Commissioner
are
justifiable. He submitted that the issue was about how the Wage
Agreement of 2003 should be applied at the third respondent
and as
such it was not required of the arbitrator to apply contractual
principles of law but a common sense approach and fairness.
Counsel
submitted further that since the award of the arbitrator was being
reviewed and was not a subject of appeal, it was not
for the Labour
Court or this Court for that matter to interpret the Wage Agreement
but whether the interpretation by the arbitrator
was justifiable and
not whether it is a correct one. He referred to five findings that
were made by the arbitrator in support of
his conclusion, namely,
that the custom and practice as a matter of fact existed; wage
increases were based on grading; salary
scales were applied to grades
in existence at all material times; the Wage Agreement was premised
on the existence of the custom
and practice and that he found the
decision of the respondent to have a disparity in grading and as such
unfair and wrong.
[27] It must be
emphasised that the dispute referred to arbitration was about the
interpretation and application of a collective
agreement.
6
The powers of the
arbitrator to determine the dispute referred are,
therefore,
derived and delineated
from the provisions of the Act since the referral was made in terms
of s 24 of the Act.
7
[28] It is important to
note further that the Wage Agreement of 5 November 2003 is an
agreement that was negotiated and entered
into at national level. The
parties in this dispute were not directly involved since they were
represented by SALGA. The arbitrator
therefore, sought to interpret
and apply an agreement which was not negotiated and concluded
directly by the parties. This fact
alone,
in
my view, could not have made the task of the arbitrator any easier.
The task of the arbitrator was,
in
my view,
limited
to the question whether on the interpretation of clause 5.6 of the
Wage Agreement 2003 there is an implied term that the
respondent
would re-grade itself to the highest possible grade for a
municipality of its size and pay its employees accordingly.
The Wage Agreement 2003
has a status of subordinate legislation and was also extended to
non-parties in terms of s 32(2) of the
LRA.
8
This is a matter of law
which this Court is entitled to take judicial notice of. It,
therefore,
means that the arbitrator
could not lightly import an implied term into a contract that had
acquired the status of subordinate legislation.
[29] It is apposite at
this stage to deal with the main submission made on behalf of the
third respondent because should it be upheld,
it has the effect of
disposing of the appeal. The issue was also considered by the Labour
Court and was decided in favour of the
third respondent. The issue
relate to the jurisdiction of the arbitrator and is a point of law.
The contention on behalf of the
appellants to the effect that the
Labour Court was not entitled to consider this issue is against
binding authority of this Court
and the Constitutional Court.
9
Therefore, a failure by
the Labour Court to consider the issue only because it was not raised
by the parties, or because the parties
decided not to raise a point
of law which is apparent from the papers and the evidence would
infringe the principle of legality.
Put differently, a decision taken
without considering the point of law which is relevant to the dispute
is a decision premised
on an incorrect application of the law.
[29] What the arbitrator
did in his award,
was
to consider the decision of the respondent taken on 30 January 2003
which graded the third respondent as a grade 13 municipality
for
purposes of remunerating its employees and concluded that that
decision was wrong. He then ruled that the third respondent
was or is
deemed a grade 15 municipality. To come to this conclusion,
the arbitrator failed to
take into account the fact that a determination of a grade for a
council involves the exercise of an administrative
decision under the
legislation governing municipalities. The resolution to grade a
municipality to a particular grade stands as
such irrespective of any
view that it is incorrect or unfair. In
Manana
v King Sabata Dalindyebo Municipality
10
it was stated that :
‘
A municipal
council acts through its resolutions. No doubt a municipal council is
entitled to rescind or alter ist resolutions.
And no doubt an
interested party is entitled to challenge its validity on review. But
once a resolution is adopted in my view its
officials are bound to
execute it, whatever view they might have on the merit of the
resolution, in law or otherwise, until such
time as it is either
rescinded or set aside on review.
’
11
[30] The grading of the
municipality was not regulated by any collective agreement, including
the one which was the subject of interpretation
and application in
casu. The arbitrator therefore, did not have the power to set aside
administrative acts such as the resolution
of the third respondent
through an alleged custom or practice. He therefore exceeded his
jurisdiction and powers by in effect regarding
the third respondent
to what in his view is the correct grading instead of interpreting
the collective agreement. His decision
to impose his preferred
grading based on fairness undermines the principle of legality and
the powers of a municipality conferred
by the Constitution and
legislation to administer its affairs. Furthermore, there is nothing
ambiguous about the Wage Agreement
2003 that required the arbitrator
to determine the grading of the third respondent. The appeal should
therefore succeed.
[31] What remains is the
issue relating to costs. In my view it would be in accordance with
the requirements of law and fairness
that there be no order as to
costs.
[32] In the result, the
following order is made:
1. The appeal is
dismissed with no order as to costs.
__________________
Tlaletsi ADJP
Acting Deputy Judge
President of the Labour Appeal Court
Waglay JP and Davis JA
concurred in the judgment of Tlaletsi ADJP.
Appearances:
For the appellants:
Advocate Myburgh SC
Instructed by: Edward
Nathan Sonnenbergs.
For the Fourth
Respondent: Advocate Cassim SC
Instructed by:
Du Plessis De Heus &
Van Wyk.
1
Section
23 of the LRA provides that:
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) the members of a
registered trade union and the employers who are members of a
registered employers’ organisation that
are party to the
collective agreement if the collective agreement regulates—
(i) terms and conditions
of employment; or
(ii) the conduct of the
employers in relation to their employees or the conduct of the
employees in relation to their employers;
(d) employees who are
not members of the registered trade union or trade unions party to
the agreement if—
(i) the employees are
identified in the agreement;
(ii) the agreement
expressly binds the employees; and
(iii) that trade union
or those trade unions have as their members the majority of
employees employed by the employer in the work-place.
(2) A
collective agreement binds for the whole period of the collective
agreement every person bound in terms of
subsection
(1) (c)
who
was a member at the time it became binding, or who becomes a member
after it became binding, whether or not that person continues
to be
a member of the registered trade union or registered employers’
organisation for the duration of the collective agreement.
(3) Where applicable, a
collective agreement varies any contract of employment between an
employee and employer who are both bound
by the collective
agreement.
(4) Unless the
collective agreement provides otherwise, any party to a collective
agreement that is concluded for an indefinite
period may terminate
the agreement by giving reasonable notice in writing to the other
parties.
2
Remuneration
of Town Clerks Act 115 of 1984.
3
Act
20 of 1998.
4
Government
Notice 1326. The new system was based on two criteria, namely, the
rates income and the number of registered voters
of a municipality.
5
It
transpired during arbitration that in fact the highest grade
available to a municipality in terms of the previous system was
actually grade 15 and not 16.
6
In
CUSA v Tao Ying Metal Industries and Others
[2009] 1 BLLR 1
(CC) at para 66, Ngcobo J held that the commissioner must, as
required by the Act, deal with the substantial merits of the
dispute, and this can only be done by ascertaining the real dispute
between the parties. In deciding what the real dispute between
the
parties is, the commissioner is not bound by what the parties say is
their dispute. He/she is required to consider all the
facts
presented including what the parties say is their dispute, the
outcome requested and the evidence presented.
7
Section
24 of the Act provides that: ‘Disputes about collective
agreements
Every collective
agreement excluding an agency shop agreement concluded in terms of
section 25 or a closed shop agreement concluded
in terms of section
26 or a settlement agreement contemplated in either section 142A or
158 (1) (c), must provide for a procedure
to resolve any dispute
about the interpretation or application of the collective
agreement. The procedure must first require
the parties to attempt
to resolve the dispute through conciliation and, if the dispute
remains unresolved, to resolve it through
arbitration.
(2) If there is a
dispute about the interpretation or application of a collective
agreement, any party to the dispute may refer
the dispute in writing
to the Commission if-
(a) the collective
agreement does not provide for a procedure as required by subsection
(1);
(b) the procedure
provided for in the collective agreement is not operative; or
(c) any party to the
collective agreement has frustrated the resolution of the dispute in
terms of the collective agreement.
(3) The party who refers
the dispute to the Commission must satisfy it that a copy of the
referral has been served on all the
other parties to the dispute.
(4) The Commission must
attempt to resolve the dispute through conciliation.
(5) If the dispute
remains unresolved, any party to the dispute may request that the
dispute be resolved through arbitration.
(6)
If
there is a dispute about the interpretation or application of an
agency shop agreement concluded in terms of section 25 or
a closed
shop agreement concluded in terms of section 26, any party to the
dispute may refer the dispute in writing to the Commission,
and
subsections (3) to (5) will apply to that dispute.
(7) Any person bound by
an arbitration award about the interpretation or application of
section 25 (3) (c) and (d) or section
26 (3) (d) may appeal against
that award to the Labour Court.
(8) If there is a
dispute about the interpretation or application of a settlement
agreement contemplated in either section 142A
or 158 (1) (c), a
party may refer the dispute to a council or the Commission and
subsections (3) to (5), with the necessary changes,
apply to that
dispute.’
8
Government
Gazette No:26159 of 18 June 2004. See:
Unitrans Fuel and Chemical
(Pty) Ltd v Allied Workers Union of SA and Another
(2010) 31 ILJ
2854 (LAC).
9
See
Cusa v Tao Ying Industries and Others at para 68
City of
Cape Town v SAMWU OBO Jacobs and Others
[2009] 9 BLLR 882
(LAC)
at para 27;
President of the Republic of South Africa v SA Rugby
Union
2000 (1) SA 1
(CC) at para 141.
10
Manana
v King Sabata Dalindyebo Municipality
[2011]
3 BLLR 215 (SCA).
11
Ibid
at 22. See also
Oudekraal Estates (Pty) Ltd v City of Cape Town
and Others
[2004] 3 All SA 1
(SCA);
Mgoqi v City of Cape Town
and Another; In Re: City of Cape Town v Mgoqi and Another
[2006]
9 BLLR 873
(C);
City of Cape Town v SAMWU OBO Jacobs and Others
(supra).