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[2014] ZALAC 129
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Blue Financial Services Limited v CCMA and Others (JA 53/11 , JR 2819/09) [2014] ZALAC 129 (16 May 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA 53/11
Labour Court Case no: JR 2819/09
In the appeal of:
BLUE
FINANCIAL SERVICES LIMITED
Appellant
(Applicant in the Court
a quo
)
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First
Respondent
J TSABADI
N.O
Second Respondent
ANDREW WILLIAM PATERSON
Third
Respondent
(Respondents in the Court
a
quo
)
Heard: 21 February 2014
Delivered: 16 May 2014
Summary: A REFUSAL BY A COMMISSIONER TO ALLOW A PARTY TO CALL A
WITNESS TO COUNTER THE UNFAVOURABLE EVIDENCE GIVEN BY ANOTHER WITNESS
CALLED BY THAT PARTY WAS UNREASONABLE AND CONSTITUTED A
MATERIAL IRREGULARITY. IF THE WITNESS HAD BEEN ALLOWED TO BE CALLED
THE OUTCOME OF THE HEARING MAY HAVE BEEN DIFFERENT. THE APPEAL
AGAINST A LABOUR COURT ORDER DISMISSING AN APPLICATION TO
REVIEW AND SET ASIDE THE AWARD WAS UPHELD WITH COSTS.THE AWARD OF THE
COMMISSIONER WAS SET ASIDE AND THE MATTER WAS REFERRED BACK
TO THE
CCMA FOR A HEARING
DE NOVO
BEFORE A DIFFERENT COMMISSIONER.
JUDGMENT
COPPIN AJA
[1]
This is an appeal against a decision of the Labour Court (Steenkamp
J) dismissing, with costs, an application brought by the
appellant to
review an award of the second respondent (“
the
arbitrator
”
),
acting under the auspices of the first respondent (“
the
CCMA
”
),
in favour of the third respondent (“
Mr
Paterson
”
),
who had been dismissed by the appellant for making a racist remark,
by ordering the appellant to pay Mr Paterson the equivalent
of four
months’ salary.
[1]
The
court
a
quo
granted
leave to appeal to this Court. Mr Paterson, who is legally
represented, is opposing the appeal.
[2] At the outset of the appeal hearing, the appellant applied for
condonation for its failure to lodge the appeal within the prescribed
period and sought leave to prosecute the appeal. The application was
not opposed. The parties addressed the court on the merits.
The
explanation proffered by the appellant in its condonation application
was not criticised at all by Mr Paterson’s representative
and
it is reasonable. For reasons stated in this judgment the appeal is
successful.
[3] The following facts are relatively simple and common cause. Mr
Paterson, a white person, was employed by the appellant as a
Corporate Finance Manager. On 3 March 2009, Mr Paterson engaged in a
social conversation with a colleague, a black person, Mr Kevin
Kachidza (“
Mr Kachidza
”) in an open plan office in
which Mr Kachidza was working with others. Mr Kachidza was employed
as an Investment Relations
Manager. Some of the appellant’s
staff had just returned from a bush safari where they had engaged in
team building. Mr Kachidza
did not attend. Within earshot of other
employees, Mr Paterson enquired from Mr Kachidza why he did not
attend. Mr Kachidza’s
response was, in essence, that he was not
particularly fond of the bush, whereupon Mr Paterson uttered these
words, which formed
the subject of disciplinary charges and which
culminated in Mr Paterson’s dismissal from his employment with
the appellant,
“
I thought you jungle bunnies liked that sort
of thing
”.
[4] Mr Kachidza did not respond immediately to Mr Paterson’s
statement, but later, on the same day, Mr Kachidza sent an email
to
Mr Paterson in which he relayed his feelings about this statement
that was made. The email reads:
‘
Andrew,
I think there is something which we should talk about when you in the
office. I’ll have you know that it is extremely
offensive to
call anyone a ‘jungle bunny’ under any circumstances.
In the interest of good
relations between colleagues I would strongly advise that you never
use that expression again in polite
company and certainly never again
in front of my corporate affairs team and I.
As long as we have an
understanding on that I don’t think we need to take it any
further on this occasion. I look forward
to discussing it with
you in person.
Kind regards,
Kevin Kachidza.’
[5] Shortly after receiving that email, Mr Paterson responded by
email to Mr Kachidza in the following terms:
‘
Actually,
the phrase I used was ‘bush cat’ and I am sorry you took
it against the spirit in which it was meant. Clearly
I was being more
familiar than is my place where you and I are concerned and I
apologise unreservedly. I look forward to doing
so in person and I
appreciate you approaching me directly.
Cheers
Andrew.’
[6] Notwithstanding Mr Paterson’s response, the next day Mr
Kachidza forwarded his email to one Mr Reinders, the Group Corporate
Affairs Executive, and Mr Van Niekerk, the Chief Executive Officer,
together with a message that he was “
extremely saddened and
outraged
” by what Mr Paterson had said to him and requested
an investigation.
[7] Following an investigation, Mr Paterson was charged with the
following counts of misconduct:
‘
1.
Use of abusive/racist language
in that you addressed a colleague [in] a well-known racist
term.
2.
Behaviour
prejudicial to the maintenance of good order in that your behaviour
toward a fellow-employee [breached] your common law
duty of good
faith to the company.’
[8] In terms of the applicable disciplinary policy, the use of racist
and abusive language in the workplace, or engaging in behaviour
prejudicial to the maintenance of good order and in breach of the
duty of good faith owed to the company, carried a sanction of
dismissal.
[9] At the disciplinary hearing, Mr Paterson admitted using the term
“
jungle bunnies
” in his conversation with Mr
Kachidza. He pleaded guilty to the first charge of misconduct, but
denied that his behaviour
was prejudicial to the maintenance of good
order at the company. He apologised for his use of the objectionable
language. Notwithstanding,
the Chairperson at the disciplinary
hearing, Ms Nolene Petit (Ms Petit), found Mr Paterson guilty on both
charges of misconduct
and Mr Paterson was dismissed from his
employment with the appellant. An internal appeal was unsuccessful
whereupon Mr Paterson
referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (“
CCMA
”).
[10] At the subsequent arbitration hearing at the CCMA, the
commissioner found that Mr Paterson’s dismissal was
procedurally
fair, but substantively unfair. Relying essentially on
the evidence of Mr Kachidza and Mr Paterson, the commissioner found
that
the appellant had dismissed Mr Paterson for reasons other than
those that had formed the subject of the charges against him and
that
the sanction of dismissal was in any event too harsh given the
circumstances. It was the commissioner’s view that the
dismissal of Mr Paterson was for “
flimsy
” reasons.
Since Mr Paterson did not seek reinstatement, the commissioner
granted Mr Paterson compensation by ordering the
appellant to pay Mr
Paterson the equivalent of four months’ salary (i.e. R240 000)
by a certain date.
[11] At the arbitration, Ms Petit, who now presented the case on
behalf of the appellant, called Mr Kachidza as a witness. There,
Mr
Kachidza testified,
inter alia
, that he had referred the
incident to Senior Management for investigation, because Mr Paterson
had denied using the term “
jungle bunnies
” and was
not truly remorseful; that he felt abused and that his conduct in
referring the matter was consistent with the appellant’s
harassment policy. Mr Kachidza testified further that he had offered
not to pursue the complaint against Mr Paterson (i.e. “
to
drop the charges
”) if Mr Paterson apologised openly.
However, when he made this offer he was advised by Mr Reinders that
the third respondent
was, any way, going to be dismissed because of
other things. The charges were not dropped, according to Mr Kachidza,
because it
was seen as a good excuse for dismissing Mr Paterson.
[12] Under cross-examination by Mr Paterson, Mr Kachidza,
effectively, conceded that the appellant was retrenching employees
under
the guise of dismissing them so that it did not have to pay
them retrenchment packages. He testified that at the time of the
arbitration
he was also suspended pending a disciplinary hearing into
allegations of misconduct. He denied telling lies or being put under
pressure to lie in the arbitration proceedings. He further testified,
inter alia
, in response to a question, in that regard, that he
was never informed that Mr Paterson had approached management in an
effort
to have the issues, relating to the charges, conciliated.
[13] When Ms Petit had to re-examine Mr Kachidza, she effectively
cross-examined him. Having been the Chairperson of the disciplinary
hearing, who found Mr Paterson guilty, she tried to discredit Mr
Kachidza by putting to him her recollection of what he had said
or
not said at the disciplinary hearing. She further put to him, in
essence, that he had since laid a grievance against Mr Reinders
and
that he had turned “
hostile
” towards the
appellant, because of his own dispute with it. Ms Petit also put to
Mr Kachidza that his own dispute with the
appellant was “
clouding
his judgment
”. Mr Kachidza denied all of this.
[14] At the end of this questioning by Ms Petit of Mr Kachidza, she
requested permission from the commissioner to call Mr Reinders
to
give his side of the story. The commissioner enquired of Ms Petit how
Mr Reinders’ testimony was going to advance her
case. She
replied that fairness dictated that he be called to give his version
of what he had said, or did not say to Mr Kachidza.
She submitted,
inter alia
, that she was not aware of the discussion that Mr
Kachidza said he had with Mr Reinders until Mr Paterson’s
questioning of
Mr Kachidza. She also submitted that she had reason to
believe that Mr Kachidza was involved in assisting Mr Paterson in the
preparation
of his case. Mr Kachidza disputed the veracity of her
submissions and described them as “
absurd
” and
“
ridiculous
”. Having heard Mr Paterson on the
matter, the commissioner did not grant permission for Mr Reinders to
be called, ruling
that Mr Reinders’ evidence would take the
matter no further, because if Mr Reinders contradicted Mr Kachidza,
it would be
the word of one against the other.
[15] Mr Paterson testified at the arbitration hearing,
inter alia
,
that he had approached his own manager and Mr Kachidza’s
manager to discuss the issues in the hope of conciliation. Both
the
managers had said to him that Mr Kachidza was not interested in
discussing the possibility of conciliation with him. According
to Mr
Paterson, given the benefit of hindsight, it was clear to him that
the appellant’s management deliberately avoided
the possibility
of conciliation. He conceded at the arbitration to using the term
“
jungle bunnies
”, but testified that he was now
aware of the pain and humiliation that it caused. He said that he
genuinely believed that
he had used the term “
bush cat
”,
but had since discovered that it was also an objectionable, racist
term. He was not aware that Mr Kachidza’s perception
was that
he was trying to deny using a racist term and that he was optimistic
that if there had been an attempt at conciliation
the matter between
him and Mr Kachidza would have been amicably resolved. Mr Paterson
further disputed the reasonableness of the
sanction of dismissal,
given the circumstances, and testified about the difficulties he had
in finding employment given his profile
and the depressed economic
circumstances. At the time of his incident he was about to get R100
000 in the form of a bonus, but
it was not paid out to him because of
his dismissal. He contended that he was treated unfairly and that his
dismissal was for ulterior
purposes.
[16] The commissioner accepted Mr Kachidza’s evidence as being
true and dismissed contentions by Ms Petit that Mr Kachidza
had
become a hostile witness. The commissioner found that both Mr
Kachidza and Mr Paterson had approached senior management, albeit
separately and without each other’s knowledge, to resolve the
matter amicably, but their efforts, were thwarted by senior
management who, instead informed Mr Paterson that Mr Kachidza did not
want anything to do with him. The arbitrator found, in essence,
that
the reason for management’s conduct in this regard was for
ulterior purposes and that Mr Kachidza’s evidence concerning
what Mr Reinders told him, namely that Mr Paterson was going to be
dismissed for other reasons, was credible. The commissioner
accordingly found that if management did in fact want to dismiss Mr
Paterson for other reasons they should have charged him accordingly.
Furthermore, the commissioner accepted that given the circumstances,
in particular Mr Paterson’s apology and show of remorse,
the
sanction of dismissal was “
too harsh
”. According
to the commissioner, it was an isolated incident and it had not been
shown that Mr Paterson had used the racist
statement before.
[17] The commissioner accordingly concluded that the third
respondent’s dismissal was substantively unfair and found:
17.1
The
reason for the termination of Mr Paterson’s employment was
unfair, invalid, unreasonable and “
not
based solely
”
on the
appellant’s “
commercial
rationale and is simply capricious
”
;
17.2
The
reason for the termination of Mr Paterson’s services “
was
not objectively established in a formal disciplinary hearing
”
;
17.3
The
dismissal of Mr Paterson “
was
effected without due regard
[for]
the
code of good practice: dismissal which emphasises both procedural and
substantive fairness when affecting dismissal related
to conduct
and/or capacity
”
;
17.4
Mr
Paterson’s dismissal “
does
not comply with the provisions of
section 188
of the
Labour Relations
Act 66 of 1995
”
.
[18] The commissioner noted Mr Paterson’s desire not to be
reinstated because of the acrimony prevailing in the workplace
and
that even in those circumstances he had a discretion to order
reinstatement. The commissioner, however, decided to exercise
his
discretion in favour of awarding Mr Paterson compensation equivalent
to four months’ salary. Payment was ordered to be
effected by
means of a cheque to be collected by Mr Paterson from the appellant’s
premises within 14 days of the service
of the award on the appellant.
[19] The appellant brought an application to review and set aside the
commissioner’s award in terms of section 145 of the
Labour
Relations Act 66 of 1995 (“
the LRA
”). Ms Petit,
the deponent to the founding affidavit, alleged that the commissioner
had committed multiple material errors
and misdirections and that he
failed to “
properly, rationally and justifiably apply his
mind to the facts and/or law
” and that his award “
is
not reasonable
”, and his decisions were not decisions that
“
a reasonable decision-maker would make
”. It was
further contended in the review, on behalf of the appellant, that the
commissioner, in coming to the conclusion
that the appellant
dismissed Mr Paterson for other reasons, i.e. used the disciplinary
hearing and the dismissal as an alternative
for retrenchment, failed
to take into account that Mr Paterson, at the time, had only been
employed by the appellant for five months
and would not have been
entitled to a retrenchment package. It was submitted in that regard
that if it had been the appellant’s
intention to retrench Mr
Paterson, it could in those circumstances simply have retrenched him
and not used dismissal as an alternative.
It was further submitted
that the commissioner did not take cognisance of the fact that Mr
Kachidza had an ulterior motive in “
substantiating
”
Mr Paterson’s version rather than the appellant’s
version. In this regard, Mr Kachidza’s personal dispute
with
the appellant was mentioned. It was further submitted that the
commissioner had erred in not accepting that Mr Kachidza had
turned
into a hostile witness during the arbitration proceedings and that
the commissioner had erred in not allowing the appellant
to call Mr
Reinders.
[20] Further grounds of review raised against the commissioner’s
award were the following. It was averred that the commissioner
unreasonably accepted Mr Kachidza’s testimony, namely that he
was told by Mr Reinders that Mr Paterson was going to be dismissed
for other reasons anyway; that the commissioner erred in multiple
ways in his findings regarding the words that were uttered by
Mr
Paterson. In this regard, it was, in essence, alleged that the
commissioner had erred in not finding that Mr Paterson had not
been
honest. It was also averred that the commissioner had erred in
finding in the circumstances that the dismissal was “
too
harsh
”.
[21]
The Labour Court dismissed all of these points and found that the
commissioner’s decision and conclusion were reasonable.
With
regard to the commissioner’s refusal to permit Mr Reinders to
be called, the Labour Court held that it did not find
the
commissioner’s conclusion that Reinders’ evidence would
not take the appellant’s case further “
so
unreasonable as to make the entire award reviewable
”
.
Regarding the commissioner’s conclusions, including the
conclusion regarding the harshness of the sanction of dismissal,
the
court
a
quo
held
that the “
award
is comprehensive and well-reasoned
.
In
coming to the conclusion that it did, he took into account the
evidence of the complainant, Kachidza. In considering the question
of
sanction, [carefully considered the context and Paterson’s
subsequent conduct]. His conclusion is not so unreasonable
that
no reasonable Commissioner could reach a similar conclusion. It
falls within the bounds of reasonableness. This is not
a case such as
that of Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
[2]
where
the employee said, in relation to black employees, ‘los die
kaffer – laat hom vrek
’
.
The
factors that Commissioner Tsabadi took into account clearly
distinguish the facts of the case before him
.”
The Labour Court accordingly dismissed the review with costs.
[22] On appeal, it was submitted that the Labour Court erred in
essence, in finding that the commissioner’s decisions and
findings were justifiable and/or reasonable. The same points of
review that were argued in that court were repeated in heads of
argument before this Court and it was submitted, in essence, that the
court erred in not upholding them and in not reviewing and
setting
aside the commissioner’s award.
[23] As regards the merits, the main submissions of the appellant, in
the hearing before us, was directed, firstly, at the commissioner’s
acceptance of the evidence of Mr Kachidza in the circumstances and in
particular at the commissioner’s refusal to allow the
appellant
to call Mr Reinders as a witness. It was submitted that in so
refusing, the commissioner committed a gross irregularity
which was
reviewable because it affected the outcome of the arbitration. The
commissioner found,
inter alia
, that the appellant had
dismissed Mr Paterson for other reasons, without the benefit of Mr
Reinders’ evidence and that in
deciding on the compensation to
be awarded to Mr Paterson, in
lieu
of reinstatement, the
commissioner must have taken into account the evidence that Mr
Paterson had been dismissed for other reasons.
[24] It was submitted on behalf of Mr Paterson that the
commissioner’s refusal to allow Mr Reinders to be called, had
no
material bearing on the outcome, because the commissioner had in
fact come to his conclusion that the dismissal was substantively
unfair on two bases. The first being that Mr Paterson had been
dismissed for other reasons, and the second, that the sanction of
dismissal was too harsh. The argument in this regard was that the
second basis stood independently and was not linked to the issue
of
whether Mr Paterson had been dismissed for other reasons, which
could, in turn, be linked to the evidence which the appellant
intended Mr Reinders to give.
[25]
It is now trite that an award of a commissioner would not be reviewed
and set aside if it is one which a reasonable commissioner
would have
made.
[3]
In
Herholdt
v Nedbank Ltd,
[4]
the
Supreme Court of Appeal,
per
Cachalia
and Wallace JJA, summarised the position regarding the review of CCMA
awards as follows
:
‘A review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a)
of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only
be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence if the
effect is to render the outcome unreasonable.
’
[26]
I now return to the facts of this case. It is not entirely clear that
Kachidza had become “
hostile
”
since
the hearing. In court proceedings a witness is regarded as hostile if
he is “
not
desirous of telling the truth to the court at the instance of the
party calling him
”
.
[5]
The
mere fact that the witness gives evidence that is not favourable to
the party calling him does not make him a hostile witness.
The party
who is confronted with the situation where his own witness gives
unfavourable evidence may apply to have that witness
declared hostile
in order to cross-examine him (This is usually done by putting to
that witness a previous inconsistent statement
and then trying to
persuade the court to declare the witness hostile), and/or call other
evidence to contradict the unfavourable
evidence of that witness.
[6]
[27] What is clear from an analysis of the proceedings in this case,
is that Ms Petit did not follow trial procedure. When she
was
supposed to re-examine Mr Kachidza she, instead, accused him of
becoming hostile and cross-examined him without first seeking
permission to do so. She seemingly relied on her own recollection of
what the witness said at the disciplinary hearing to try and
impeach
him and did not proceed to produce a record of those proceedings. So,
effectively, while she alleged inconsistency, she
never proved it. In
my view, however, the question, whether Mr Kachidza should have been
declared a hostile witness, is a “
red-herring
”.
What is clear is that Mr Kachidza gave evidence that was unfavourable
to the appellant. The appellant would have been entitled
to call
evidence to contradict the unfavourable evidence.
[28] The commissioner did not challenge the appellant’s
entitlement to call Mr Reinders to contradict Mr Kachidza, but
questioned
the practicality of calling Mr Reinders in the
circumstances. The commissioner’s reasoning being that the
calling of Mr Reinders
would not advance the case of the appellant,
since it would be the evidence of Mr Reinders against that of Mr
Kachidza. The commissioner
appears to have misconceived the enquiry,
because of the nature of the test which he applied. The test which he
applied was clearly
speculative. The commissioner merely anticipated
that it would be the word of one against the other (i.e. a kind of
“
stalemate
” situation), but failed to take into
account that there may have been a number of other possible outcomes
if Mr Reinders
had been allowed to be called to counter Mr Kachidza’s
unfavourable evidence. An obvious one is that Mr Reinders may have
been believed on the points in issue, but not Mr Kachidza. In my
view, the commissioner did not approach this aspect reasonably,
since
it was not possible to anticipate the outcome, without Mr Reinders
having been called. I pointed out earlier that since Mr
Kachidza gave
evidence that was unfavourable to the appellant, it was entitled to
call other evidence to contradict that unfavourable
evidence. In the
circumstances, the entitlement, to call Mr Reinders, trumped
speculations about the practicality of allowing him
to be called.
[29] Even though it appears from the commissioner’s award that
he did not specifically find that Mr Paterson had been dismissed
by
the appellant to obviate the necessity of retrenching him, the
commissioner did find as a fact that Mr Paterson was dismissed
for
reasons other than those which formed the subject-matter of the
charges at the disciplinary enquiry. It may be so that the
commissioner also found that the sanction was in any event too harsh
because of the circumstances, but in that regard the commissioner
also erred in referring to the misconduct, that Mr Paterson had
pleaded guilty to, as “
flimsy
”. Reinders’
evidence was clearly material to the first issue, namely, whether Mr
Paterson had been dismissed for other
reasons. The second basis,
according to the argument of Mr Paterson’s counsel, was
independent of the first basis, but counsel
had difficulty showing on
the record that Mr Kachidza’s testimony, namely that Mr
Paterson was to be dismissed for other
reasons, did not influence the
commissioner’s finding on the second basis. Counsel could also
not explain what was “
flimsy
” about the misconduct
that Paterson was found guilty of, and ascribed this to unfortunate
language on the part of the commissioner.
[30] It is clear that in deciding on the compensation to be paid to
Mr Paterson, who did not seek reinstatement, the commissioner
took
into account that Mr Paterson was dismissed for reasons other than
his unfortunate use of racist language. The outcome, namely,
the
commissioner’s findings on substantive fairness and
compensation, might have been different if the appellant had been
allowed to call Reinders and Reinders had contradicted the
unfavourable evidence of Mr Kadhidza.
[31] In my view, a reasonable commissioner would not have disallowed
the calling of Mr Reinders. The disallowance is an irregularity
which
is material since it clearly influenced the outcome of the
arbitration. The court
a quo
was thus wrong in its finding and
conclusion that the commissioner’s decisions, conclusions and
award were of a kind that
a reasonable commissioner could have come
to, or have made. Both parties in their submissions conceded that if
the award were to
be set aside, because of the commissioner’s
refusal to allow the calling of Mr Reinders, the matter ought to be
referred
back to the CCMA for hearing to enable the appellant to
produce the necessary evidence to contradict the unfavourable
evidence
given by Mr Kadchiza. In my view, the irregularity is of a
kind that vitiates the entire award and fairness calls for a hearing
de novo
.
[32] As regards costs, the appellant has asked for costs in the event
of the appeal succeeding. Mr Paterson’s counsel has
submitted
that even if the appeal succeeds there should be no costs order. In
my view, given all the facts and circumstances, in
fairness and in
law, no costs order should be made in respect of the appeal or the
review.
[33] In the result the following is ordered:
1.
The
late lodging of the appeal is condoned.
2.
The
appeal is upheld and no order as to costs is made.
3.
The
Labour Court’s order, dismissing the review application, is set
aside and is substituted with the following order:
“
1.
The arbitration award of the second respondent under Case No GATW
6055.09, dated 30 August 2009 and issued on 21 September 2009,
is
reviewed and set aside.
2.
The
matter is referred back to the Commission for Conciliation, Mediation
and Arbitration for a hearing de novo before a different
Commissioner.
3.
No costs order is made.
”
Coppin AJA
I agree:
Tlaletsi DJP
I agree:
Ndlovu JA
APPEARANCES:
FOR THE APPELLANT
Adv R G
Bowles
Instructed by Gerhard Botha and Partners Inc
FOR THE RESPONDENT
Adv W J Hutchinson
Instructed by Fluxmans Inc
[1]
Mr
Paterson did not seek reinstatement.
[2]
Crown
Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
[2002]
6 BLLR 498 (LAC).
[3]
See
Sidumo
and Another v Rustenburg Platinum Mines and Others Ltd
2008
(2) SA 24
(CC) (also reported in
[2007] 12 BLLR 1097
(CC)). The
Sidumo
decision
was followed and explained by the SCA in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
2009
(3) SA 493
(SCA) (also reported at [2009] 7 BLLR 619).
[4]
[2013]
11 BLLR 1074
(SCA) par 25 at 1084.
[5]
S v
Steyn en Andere
1987
(1) SA 353
(W) at 357G-H.
[6]
See
The
South African Law of Evidence
(2
nd
Edition)
D T Zeffert and A P Paizes pages 901-902 and the cases cited there
including
Moothoosamy
v Murugan
1919
(40) NLR 402.