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[2014] ZALAC 73
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Phaka and Others v Bracks and Others (JA 3/2014) [2014] ZALAC 73; [2015] 5 BLLR 514 (LAC); (2015) 36 ILJ 1541 (LAC) (18 December 2014)
REPUBLIC OF SOUTH
AFRICA
Reportable
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA 3/2014
In
the matter between:
PHAKA
AND 19
OTHERS
..................................................................................
APPELLANTS
and
COMMISSIONER
RONNIE
BRACKS
...........................................................
First
Respondent
The
National Bargaining Council For The
Road
Freight
Industry
............................................................................
Second
Respondent
UTI
SOUTH AFRICA (PTY) LTD
(MOUNTIES
DIVISION)
................................................................................
Third
Respondent
Heard: 27 November
2014
Delivered: 18
December 2014
Summary: Review of
jurisdictional ruling –former employees entering into
owner-drivers scheme with employer as independent
contractors –
former employees referring unfair dismissal and unfair labour
practice to bargaining council – arbitrator
ruling that it
lacks jurisdiction because no employment relationship existed between
parties. Evidence showing that former employees
now independent
contractors- distinction between employee and independent contractor
restated- former employees contractors operating
in close
corporation, employing employees to render courier services to
company – no application of the reasonableness test
of review
to jurisdictional ruling- Award and Labour Court’s judgment
upheld- Appeal dismissed with costs.
Coram: Waglay JP,
Murphy and Setiloane AJJA
JUDGMENT
MURPHY AJA
[1]
The
appellants appeal against the decision of the Labour Court (Bleazard
AJ) handed down on 29 May 2013 in which he dismissed their
application to review and set aside the award of the first respondent
(“the arbitrator’) under the auspices of the
second
respondent, the National Bargaining Council for the Road Freight
Industry (“the bargaining council”).The arbitrator
dismissed the claims of the appellants alleging that they had been
wrongfully or unfairly dismissed and subjected to unfair labour
practices by the third respondent (“the company”). In his
award, dated 25 March 2011, the arbitrator held that the
appellants
were not employees of the company but were in fact independent
contractors. Only an employee has the right to refer
an unfair
dismissal or unfair labour practice dispute to a bargaining council
in terms of section 191 of the LRA, and hence the
arbitrator held
that he lacked jurisdiction to deal with the referrals.
[2]
The
appellants brought their review application in terms section 145
and/or section 158 of the Labour Relations Act
[1]
(“the LRA”) on the basis that the decision was
unreasonable, irrational, and not supported by evidence and facts
before
the arbitrator. The correct inquiry, as I will discuss later,
is whether the arbitrator was correct in finding that he lacked
jurisdiction
because the appellants were not employees.
[3]
Two
referrals to arbitration were made by the Retail and Allied Workers
Union (“RAWU”) on behalf of the 19 individual
complainants. The first referral on behalf of five of the appellants
alleged that there had been a termination of contract or unfair
dismissal and sought the reinstatement of those five appellants. The
second referral, which named as applicants all but one of
the
appellants, alleged an unfair labour practice. The disputes relate to
what has been described as an empowerment initiative
initiated by the
company in which it set up a scheme of employing owner-drivers to
render client services on its behalf. The initiative
has a
long-established track record realised over a number of years within
the road freight industry, and enjoys the unqualified
approval and
support of the bargaining council. The appellants’ challenge
arose out of their unhappiness with the empowerment
initiative. Their
referrals and this appeal are thus a test of the integrity of the
empowerment initiative and its acceptability
as an industry practice.
The appellants are aggrieved about the relationships of
locatio
conductio operis
established under and in terms of that empowerment initiative. They
contend that a contract of employment (
locatio
conductio operarum
)
subsisted notwithstanding the apparent existence of a relationship of
independent contractor established in the explicit terms
of the
contract between each individual appellant and the company.
[4]
There
is some uncertainty about the exact nature of the claims of each
appellant and the relief to which they might be entitled
on the basis
of the referrals made on their behalf. But there is no need to
resolve these issues if the arbitrator’s conclusion
that he
lacked jurisdiction is upheld. The crisp issue for determination on
appeal is whether the appellants were employees or
not.
[5]
The
court
a
quo
formulated the question in issue accurately and succinctly as
follows:
‘
At
the centre of the dispute is whether a written contract that each of
the applicants concluded with the third respondent constituted
a
contract of an independent contractor or an employee. Allied to this
is whether, notwithstanding the express provisions of the
contract,
the applicant were nevertheless employees by virtue of the
presumption included in section 200A of the Labour Relations
Act.’
[6]
The
definition of “employee” in section 213 of the LRA reads
as follows:
'
employee
' means-
(a) any person, excluding
an independent contractor, who works for another person or for the
State and who receives, or is entitled
to receive, any remuneration;
and
(b) any other person who
in any manner assists in carrying on or conducting the business of an
employer.
[7]
Section
200A of the LRA enacts a presumption as to who is an employee for the
purposes of the LRA. It is common cause that it is
applicable in this
case. Section 200A(1) provides:
‘
Until
the contrary is proved, a person who works for, or renders services
to, any other person is presumed, regardless of the form
of the
contract, to be an
employee
,
if any one or more of the following factors are present:
(
a
) the manner in
which the person works is subject to the control or direction of
another person;
(
b
) the person’s
hours of work are subject to the control or direction of another
person;
(
c
) in the case of
a person who works for an organisation, the person forms part of that
organisation;
(
d
) the person has
worked for that other person for an average of at least 40 hours per
month over the last three months;
(
e
) the person is
economically dependent on the other person for whom he or she works
or renders services;
(
f
) the person is
provided with tools of trade or work equipment by the other person;
or
(
g
) the person
only works for or renders services to one person.
[8]
The
company operates as a courier company on a fixed route basis, with
regular and recurring collection times, primarily for financial
houses. At the arbitration hearing, it led the evidence of three
witnesses: Mr d’Almeida, a senior employee; the managing
director Mr Wagner; and an erstwhile employee, Mr Moeng, who now
successfully operates his own independent business having resigned
as
an employee to take up a contract as an owner-driver in terms of the
empowerment initiative. Their evidence was largely unchallenged.
[9]
The
company introduced the scheme in the 1980’s in the interests of
productivity, empowerment and efficiency. After a consultation
process with the company’s employees, agreement was reached in
terms of which existing employees were offered the opportunity
to
participate in the owner-driver programme. The programme was piloted
in Cape Town and was later extended to other areas of the
country.
There was no objection to the scheme by either the unions or the
regulatory authorities prior to the present dispute.
The model was
viewed favourably and its implementation encouraged by the bargaining
council and the relevant government department.
The success of the
programme, according to Mr Wagner, is evident from the number of
drivers who have contracted as such throughout
South Africa, many of
them providing more than one route, and some earning more than R100
000 per month. Mr Moeng, for example,
ran six routes on behalf of the
company, his business having grown over the years from one single
route. He operates through a
close corporation which employs its own
employees who are not employees of the company.
[10]
The
owner-driver model that has been developed entails the contracting of
individual drivers (mostly former employees with their
own vehicles
acquired with the financial and related support of the company) to
perform courier services on behalf of the company.
These contracts
have been developed over the years and take the form of a standard
contract. Participation in the scheme has always
been voluntary.
Those owner-drivers who were previously employed by the company were
required to resign from the company, thereby
terminating their
employment relationship. Thereafter the owner-driver ceased to
receive any benefits associated with employment.
After resignation,
the relationship between an owner-driver and the company would be
governed by the standard written contract
concluded between the
company and the owner-driver or a separate juristic person, usually a
close corporation, if the owner-driver
chose to operate through such.
The company has not and never has had any financial or other
relationship in any close corporations
owned by owner-drivers or with
whom the company has contracted as part of the owner-driver scheme.
The company does, however, offer
assistance to owner-drivers so as to
enable them to set up their businesses and continue to run them
successfully.
[11]
The
vehicle used in the execution of duties under the contract is owned
and operated by the owner-driver, not by the company, though
it was
often acquired with the assistance of the company. However, the
company enjoys no rights of or incidental to ownership over
the
vehicles of owner-drivers. With the development of their businesses,
some owner-drivers have been able to acquire more than
one vehicle,
employ drivers to perform the services they had contracted to provide
under the contract, and in some cases cease
to perform the services
themselves.
[12]
Mr
Wagner, the managing director, testified that the company is
primarily geared towards servicing the major banks by providing
daily
for cheque, bills of exchange, credit card and internal documentation
collection and distribution. The documents moved can
have a very high
value and are also time-sensitive commodities and constitute a high
security risk. The relationships between the
company and the banks
are strictly governed by service level agreements and if the
stipulated service levels are not met then there
are financial
consequences, including penalties, for the company. The times within
which documents must be collected and/or distributed
are determined
by the banks with whom the company contracts. The driver must adhere
to a scheduled collection and delivery programme,
with stipulated
stops at set times. These stipulated routes are incorporated into the
agreements concluded between the company
and owner-drivers.
[13]
A
failure to adhere to the stipulated times or service level agreements
will result in penalties being imposed as against the company.
In
circumstances where the failure is attributable to the owner-driver
then, under the contract concluded between the owner-driver
and the
company, penalties can also be imposed on the owner-driver. Repeated
breaches by the company of the service level agreements—including
breaches committed by owner-drivers whilst performing services under
their own contracts—may result in the cancellation of
the
agreements between the company and its clients. The standard form
contracts concluded between the company and owner-drivers
reflect
this reciprocity between what is expected of the company from its
clients and what the company in turn requires from owner-drivers.
Persistent or material failures by owner-drivers amounting to a
breach of the agreement between the owner-driver and the company
may
also result in the cancellation of the owner-driver contract.
[14]
The
agreements and the nature of the services provided to the company’s
clients also necessitate the wearing of identity cards,
uniforms,
vehicle safety precautions, security clearance checks, trip-sheets,
record-keeping and drivers to have cell-phones.
[15]
The
vehicle is an essential component of the courier services provided
and, for that reason, vehicle roadworthiness, safety and
reliability
is a contractually stipulated requirement. As the vehicle is
perceived by clients to be representative of the company,
there are
also requirements that the vehicles be presentable and portray the
company brand appropriately. The drivers of vehicles
must all be
licensed. The vehicles themselves must be properly licensed and
fitted with tracking devices and insurance. The safety
and security
of the cargo also restricts the use to which a vehicle can be put
whilst it is being used for purposes of collecting
and delivering
documents. There are no restrictions on the uses to which the owner
of a vehicle can put the vehicle outside of
working hours.
[16]
The
scheme and the elements of it have been recognised in the Code of
Good Practice on Broad Based Black Economic Empowerment for
the
Transport Sector as a worthy initiative providing real and meaningful
opportunities for the development of business ownership
and the
economic empowerment of individuals.
[2]
The requirements of wearing uniforms and identification to reflect
association with the company, vehicle maintenance standards,
routes,
training, resignation as an employee, penalties, etc. are all
expressly recognised in the Code as being necessary elements
of the
owner-driver scheme.
[17]
The
nature of the arrangement and its recognition and acceptance in the
industry coalesce, according to the company, to show that
the
programme is not in fact employment under another guise. This, it
submitted, is most evident in the terms of the contract itself.
[18]
As
mentioned earlier, a standard form contract has been used and
developed over time to implement the owner-driver programme. This
contract has become an industry-wide example and is promoted on the
website of the bargaining council. In accordance with general
principle and doctrine, the contract falls to be interpreted by
having regard to its plain and unambiguous language understood
contextually and purposively.
[3]
[19]
The
contract repetitively and in clear language records that the
relationship between the parties is not one of employment. Thus,
clause 2.1 of the contract provides that the company “hereby
engages the services of the Contractor who shall effect the
collection and delivery of goods on behalf of (the company) according
to the route structures detailed in Annexure A”. The
company
maintains that this clause expressly reflects an intention that the
appointment effected under the contract is one of an
independent
contractor for the purpose of providing services in the form of the
collection and delivery of goods according to the
specified routes.
Its contention is supported by clauses 2.4 and 2.5 which are even
more explicit. Clause 2.4 provides that the
company “hereby
appoints the contractor which accepts the appointment as an
independent
Contractor
for the purposes of providing (the company) with the service”.
Clause 2.5 in turn reads as follows: “It is recorded
that
nothing in this agreement, whether expressed or implied, shall be
construed as creating the relationship of either employer
and
employee or franchisor and franchisee between the parties”. The
agreement thus expressly excludes any intention to constitute
an
employer/employee relationship. And, lastly, Clause 11 expressly
records that the contractor and his employees are not employees
of
the company and that nothing in the contract renders them to be such.
And hence it provides further that they are not entitled
to recover
any benefits or emoluments that would normally accrue to employees of
the company. Clause 13 records that the contractor
acknowledges and
agrees that the relationship is not one of employment, that the
nature of the agreement was explained to the contractor
and that the
rights applicable to employees on retrenchment are not of application
to the relationship.
[20]
In
addition, clauses 3 and 7 of the contract oblige the contractor to
provide the vehicle that is a
sine
qua non
for the execution of the services under the contract and a cell
phone. This obligation extends to the hiring of replacement vehicles
and ensuring that the vehicles are properly licensed and roadworthy.
Such clauses are not usually found in employment contracts.
Likewise,
the consideration amount payable under the contract is not calculated
qua
salary but is
inter
alia
a reimbursement of costs and include, where applicable, the levying
of VAT on the services rendered (clause 5).
[21]
Clause
10.2 contains another distinguishing feature in that the contractor
“shall not have the authority in the conduct or
administration
of its business to incur any debt or obtain any credit facilities
either in the name of or on behalf of (the company)”.
Clause
10.3 further constrains the relationship. It imposes a positive
obligation on the contractor to disclose its independent
status to
outside stakeholders by requiring it to “timeously advise its
suppliers, creditors, their financial institutions
and all other
parties affected by this agreement that it does business with, that
it does not constitute any part of (the company)”.
The contract
also expressly countenances the contractor having employees of its
own that would provide the services on behalf of
the contractor and
excludes any contractual relationship arising as between these
employees and the company (clause 15). The fact
that the contract
permits the contractor to employ others to provide the services is,
according to the company, inimical of any
suggestion that this could
be an employer/employee relationship.
[22]
The
company accordingly submitted that on a proper interpretation of the
contract, it does not and cannot give rise to a relationship
of
employment between the contracting parties.
[23]
Of
the possible 20 appellants who sought relief of one kind or another,
nine gave evidence before the arbitrator. It is unnecessary
to
discuss their evidence in any detail. It is sufficient to focus on
their collective submissions pertaining to the nature of
their legal
relationship with the company. There are however a few features of
their evidence that must be highlighted. Firstly,
some of the
appellants operated as owner-drivers through close corporations;
secondly, some were still engaged in on-going contracts
while the
contracts of others had been terminated through the effluxion of time
or on grounds of breach of contract arising from
poor or
non-performance; thirdly, some of those individuals who employed
employees had registered as employer contributors to UIF,
SDL and
COIDA; fourthly, the company had assisted some of the individuals to
set up their businesses and acquire cars; fifthly,
the individuals
were paid after submitting invoices with some being registered for
VAT, none of them were paid a salary, but were
paid a contractually
agreed amount determined with reference to the number of routes they
were contracted to service and the distance
of those routes; and
sixthly they admitted to having resigned from employment with the
company before taking up the owner-driver
contract.
[24]
It
was submitted on behalf of the appellants that despite their
participation in the empowerment initiative, they remained employees
on a par with other drivers employed by the company. Their reasons
for taking that view is that the contract subjected them to
significant control by the company and their activities were
integrated into the company in such a way as to constitute an
employment
relationship. They point to the following in support of
their claim. Firstly, the contract required them to report for duty
six
days per week for specified hours and they were subject to
instructions from the same persons who had been their superiors
before
the initiative. This proposition is not strictly speaking
correct. The contractor is free under the contract to have others
perform
the duties, as many did after forming close corporations and
employing their own employees. Secondly, the contract imposes
restrictions
upon the freedom of the contractor to employ employees
of their choice, to wear their preferred clothing, to use their cars
as
they wish during working hours, to acquire vehicles from the
dealership of their choice and permitted the company to deduct PAYE
and other financial penalties. These arrangements and restrictions,
they argued, gave rise to the presumption that they were employees
in
terms of section 200A of the LRA, in that they were subject to
significant direction and control by the company, worked almost
exclusively for it, were economically dependent on and derived their
income mainly if not exclusively from it; and the company
had failed
in its evidence to rebut the statutory presumption.
[25]
The
arbitrator, as stated, held that the appellants were not employees.
He commenced his analysis with reference to the definition
of an
“employee” in section 213 of the LRA and said:
‘
The
first part of the definition under section 213 reflects the common
law concept of an employee. Under the common law, an employee
is
someone who works under a contract of service (
locatio
conductio operarum
)
as opposed to a contract for services (
locatio
conductio operis
).
The definition explicitly excludes independent contractors. The
second part of the definition is much wider than the first and,
but
for the express exclusion, would cover independent contractors and
even partners and brokers. The Courts distinguish between
people
‘assisting in the carrying on or conducting of a business’
who would be employees and those persons ‘performing
work or
services which have the effect of providing such assistance’
who, as independent contractors fall outside the scope
of the
definition of employees.’
[26]
The
arbitrator proceeded then to consider the implications of section
200A of the LRA and correctly stated the legal position as
follows:
‘
Section
200A of the LRA seeks to assist vulnerable individuals in
establishing employee status. Although section 200A leaves the
definition of ‘employee’ unchanged, it creates a
rebuttable presumption that a person who renders services to any
other person is presumed, regardless of the form of the contract, to
be an employee, if any one or more of a list of seven factors
are
present. Thus even if the contract of work purports to be that of
independent contractor, if any one of the listed factors
is present,
that person is presumed to be an employee:
. . .
The general principle in
law is that if a person alleges a state of affairs, that person must
prove it. Section 200A shifts that
burden of proof to the employer
party to show that the person is not an employee if any one of the
seven factors is present. The
factors [listed in section 200A(1)(a)
to (g)] are drawn from jurisprudence in our civil Courts
.’
[27]
The
arbitrator thereafter considered the tests that have been developed
in our jurisprudence which inform the factors underpinning
section
200A(1) of the LRA. This included a consideration of the control
test, the integration or organisation test, the dominant
impression
(or multiple) test and the public policy test. He had regard to the
applicable case law and decided that the appellants
were independent
contractors not employees and that the statutory presumption had been
rebutted by the evidence in this instance.
[28]
The
arbitrator concluded as follows:
‘
Turning
to the evidence presented at the hearing it is clear that the
majority of the Applicants were employees of the Respondent
before
and that they had been invited to be part of this empowerment scheme.
None of the Applicants was forced in any way to participate
in the
scheme. They did so voluntarily. This was further established by the
fact that despite all of them stating that they did
not understand
the terms and conditions of the contract they renewed these contracts
without seeking any advice on them.’
He
thus recognised that there was a difference between the position of
the appellants prior to their resignation as employees and
their
appointment as owner-drivers and their position afterwards. He later
added:
‘
In
light of the above it is clear that when the Applicants were invited
to embark on the owner/driver concept they were well aware
that they
would no longer be employees as they would have to resign. A number
of the Applicants benefited from the program renewing
the exact same
contract which they are now alleging they never understood. In
addition despite having copies they never sought
advice as the
contracts remained the same. One can therefore safely conclude that
as long as the Applicants benefited from the
agreement they had no
problem. The problems in my view started when they were being
penalised for non-performance of the contract.
It is further my
candid view that the issues raised by the Applicants were mere red
herrings and that they knew that there was
a benefit in entering into
contracts with the Respondent as they were empowered thereby since
they obtained assets which they would
otherwise not have had.
Furthermore the success of the program can only be measured by the
endorsement it received from various
authorities.’
[29]
The
appellants sought review of the award of the arbitrator on the basis
that the conclusion reached by him was not a decision that
a
reasonable decision-maker or arbitrator in that position could have
reached. This is an incorrect approach. When the jurisdiction
of the
arbitrator is in question the issue is whether he objectively had
jurisdiction in law and fact. The arbitrator’s finding
was that
as the appellants were not employees he had no jurisdiction to
determine their referrals of unfair dismissal and unfair
labour
practice disputes to the bargaining council. The court on review in
such an instance is required to determine whether that
finding was
correct. The arbitrator either had jurisdiction or he did not. A
finding that he had jurisdiction because he might
reasonably have
assumed as much is wholly untenable in principle. No legal power may
be exercised without authority. The standard
of review enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
that in order to succeed in a review, the applicant must establish
that the award was one that could not have been made by a reasonable
decision-maker, applies only to the review of determinations of the
fairness of a dismissal or labour practice. It has no application
to
the determination of jurisdiction.
[30]
The
appellants did not persist before this Court with the contention that
they did not understand the terms of the contract.
[31]
The
court
a
quo
determined the application before it correctly by deciding
de
novo
the question of whether the appellants were employees. If they were
not employees, then the bargaining council had no jurisdiction
to
entertain their claims.
[5]
The
learned judge proceeded from the premise that the legal relationship
between the parties must be gathered primarily from a
construction of
the contract which they concluded. In this regard, he referred to
SA
Broadcasting Corporation v McKenzie
[6]
in which this Court held that in seeking to discover the true
relationship between the parties, the court must have regard to the
realities of the relationship and not regard itself bound by what
they have chosen to call it. He went on to examine those realities
and concluded that the statutory presumption had been rebutted. There
was accordingly no employment relationship and that the arbitrator
was correct in his finding that he lacked jurisdiction.
[32]
In my
view, the arbitrator and the court
a
quo
reached the right conclusion for the right reasons. The repetitive
references in the contract to the nature of the relationship,
and the
painstaking effort to define it, leave no doubt that the intention of
the parties was to establish relationships overtly
on a different
footing to the previously existing employment relationships. This is
confirmed not only by the express wording of
the contract and the
purport of its terms, but also by the fact that the appellants
resigned their employment before embarking
on the scheme. Add to
these the facts that the appellants mostly conducted their dealings
with the company (for a period of many
years) through close
corporations of which they were the principal member, and employed
their own employees to render the contractual
services, and the
proposition that we have here to do with a
locatio
conductio operis
is frankly unassailable.
[33]
The
levels of control and direction reserved to the company by the
contract in relation to the routes, hours of performance, vehicle
maintenance, branding etc. are all essential requirements of the
contract intrinsic to the nature of the services to be performed
by
the company to its clients. The company transports sensitive
financial information and does so in accordance with the needs
of its
clients. It is obliged to delegate those requirements to its
sub-contractors. By virtue of its character, the business of
couriering financial documents must be done efficiently during
business hours on conditions that cannot be left to the discretion
of
the sub-contractors. These constraints do not in the operational
circumstances of these peculiar contracts alter the relationship
to
one of employment, especially so in those instances where the
contractor is a close corporation employing subordinate employees
with no prior or existing relationship with the company. Insofar as
the company deducts PAYE from the amounts payable to the
owner-driver,
it did so in pursuance of a responsibility imposed upon
it by the income tax legislation in relation to the taxation of
independent
contractors
[7]
.
[34]
Accordingly,
in all of the circumstances, the appellants’ relationship with
the company as owner-drivers did not amount to
a relationship of
employment and the arbitrator as confirmed by the court
a
quo
was correct to hold that he lacked jurisdiction.
[35]
Whilst
the company opposed the review application on the grounds that it was
quite evidently lacking in merit, it appreciated that
the application
presented it with an opportunity to vindicate the scheme which it had
developed over many decades and which the
appellants sought to
undermine. The review application thus had significant implications
for both the company and the industry
as a whole. To this extent, the
review application was a test of the integrity of the empowerment
initiative and the company did
not seek its costs in the court and
tribunal below. The vindication it sought was achieved in the court a
quo
in a judgment which lucidly upheld the scheme. However, it now takes
the view that the predictable lack of prospects of success
on appeal
justify dismissing the appeal with costs. I agree with that
submission and see no reason why the costs should not follow
the
result.
[36]
The
appeal is accordingly dismissed with costs.
________________
JR Murphy AJA
I agree
________________
Waglay JP
I
agree
_______________
Setiloane AJA
APPEARANCES:
FOR THE APPELLANTS: Mr W
Khoza
Instructed
by RAWU
FOR THE THIRD RESPONDENT:
Adv B E Leech SC
Instructed
by Rose-Innes Inc
[1]
Act
66 of 1995.
[2]
GN
1162 of 2009 in
Government
Gazette
32511 of 21 August 2009.
[3]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para 18;
Bothma
Batho Transport v S Bothma & Seun Transport
2014
(2) SA 494
(SCA) at paras 10 – 12; and
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
2013 (6) SA 520
(SCA) at para 16.
[4]
2008
(2) SA 24 (CC).
[5]
Denel
(Pty) Ltd v Gerber
[2005]
9 BLLR 849 (LAC).
[6]
(1999)
20 ILJ 585 (LAC) at para 10.
[7]
The
Fourth Schedule to the Income Tax Act 58 of 1962