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[2016] ZALAC 35
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KwaZulu-Natal Tourism Authority and Others v Wasa (JA113/14) [2016] ZALAC 35; [2016] 11 BLLR 1135 (LAC); (2016) 37 ILJ 2581 (LAC) (28 June 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 113/14
In
the matter between:
KWAZULU–NATAL
TOURISM AUTHORTIY
First Appellant
THOLAKELE
DLAMINI
Second Appellant
NDABEZITHA
KHOZA
Third Appellant
and
NALELI
WASA
Respondent
Heard:
18 February 2016
Delivered:
28 June 2016
Summary:
Practice and procedure – Plascon-Evans rule that a founding
affidavit must set out essential
evidence if unchallenged, would
prove the applicant’s case restated - an applicant that
foresees that the facts adduced to
prove its case would be
challenged, should not proceed by way of application but by way of
action – in application proceedings
where court is unable to
determine on the papers the veracity of the facts has the option to
either refer the matter to oral evidence
or dismiss the application
on the basis that the applicant had failed to discharge its
onus
by proving its case on a balance of probabilities. If it should be
obvious to applicant that the facts will be placed in dispute
the
Court should refuse to refer the matter to Oral evidence- In
casu
employee dismissed for dishonesty sought damages as a result of the
breach of contract – employer providing document evincing
that
employee dishonest and in breach of her contract – employee
ought to have foreseen that dispute of facts will
arise from her
application as employee charged with dishonesty and a disciplinary
hearing held where she was found to have committed
the breach–
Labour Court ought to have accepted employer’s evidence in
light of the Plascon-Evans rule - Labour Court
erring in finding that
there was no dispute of facts. –
Relief for
damages – unlike compensatory relief granted for unfair
dismissal in terms of the LRA, no such relief available
in a claim
for breach of contract made under the BCEA. Claim under BCEA is a
claim for damages – the extent of the damages
suffered by the
party seeking damages must be proved – employee that failed to
prove damages as a result of the breach of
contract entitled to no
relief – Labour Court’s judgment finding to the contrary
set aside. Appeal upheld.
Coram:
Waglay JP, Ndlovu JA
et
Murphy AJA
JUDGMENT
WAGLAY JP
Introduction
[1] This is an appeal against the
judgment of the Labour Court (Baloyi AJ) which found that the
termination of the respondent’s
(employee) fixed term contract
of employment by the first appellant (employer) was unlawful and
constituted a breach of contract.
As relief for the breach, the
Labour Court ordered the employer to pay the employee as damages the
amount the employee would have
earned over the full contract period.
The employer was also ordered to repay to the employee certain
deductions made from the employee’s
last salary payment.
Background
[2] The employee was employed as the
Chief Operation Officer (COO) on a fixed term contract for a period
of five years, commencing
on 1 August 2008. The employee was to
report directly to the employer’s Chief Executive Officer (CEO)
who in turn reported
to the employer’s Board. In terms of the
employer’s applicable policy, the authority to appoint and to
institute disciplinary
proceedings against the COO rested in its
Board.
[3] The duties that the employee was
required to perform included:
‘
To
provide strategic leadership to the Tourism Information Services,
Marketing and Communications and Tourism Development functions
at the
Kwazulu-Natal Tourism Authority (the employer) by devising,
implementing and controlling systems and procedures, supervising
subordinates, developing and driving initiatives, reporting on key
issues to the CEO and management in order to ensure that these
departments are positioned to support the Authority in accomplishing
its strategic tourism objectives through the effective
implementation’.
[4] The Two Oceans Marathon (Two
Oceans) is a race that takes place in Cape Town. This race serves to
contrast the Comrades Marathon
(the Comrades), a race that takes
place in Durban under the auspices of the employer. Both these races
are extremely popular and
attract runners from all over the world. A
week or two preceding the Two Oceans, the employee sought permission
from the CEO to
travel to Cape Town to attend the Two Oceans for
purposes of “
activating and promoting”
the
Comrades at that event.
[5] The CEO granted the permission and
the employee instructed her subordinate, one Thembelihle Dlamini, to
travel with her to Cape
Town to assist her in performing her tasks.
[6] Prior to the employee’s
departure to Cape Town, some members of the employer’s staff,
who heard about the employee’s
pending trip attempted to
discourage her from attending the Two Oceans because the trip was not
planned. Added to the lack of planning,
the Two Oceans coincided with
the annual research project the employer was conducting over the same
weekend. The research project
involved a music festival at Splashy
Fen in Kwazulu-Natal Midlands. This project had taken immense
planning, including surveys,
printing of material and the obtaining
of accreditation for the event for the employer to be able to conduct
their research. The
employee’s presence at this event was
considered to be important.
[7] Notwithstanding the protest from
certain members of the employer’s staff, the employee with her
assistant travelled to
Cape Town, on 2 April 2010, at the employer’s
expense to attend the Two Oceans.
[8] On her return, questions were
asked as to why the employee had not informed the employer’s
head of research about the
research the employee intended to conduct
at the Two Oceans, particularly, because the employer had done the
necessary research
with respect to the Two Oceans just two years
earlier. Furthermore, requests to the employee to file a report about
the research
she performed at the Two Oceans were either ignored or
not responded to.
[9] The employer then discovered that:
although the employee had instructed her assistant to accompany her
to Cape Town, the assistant
was not asked to perform any task; the
employee also did not seek, and was not granted, accreditation to
attend the event; the
employee had registered as any other athlete to
participate in the event; and had, indeed, competed in the Two
Oceans.
[10] The employee while admitting that
she participated as an athlete stated that she conducted a survey at
the race and did so
while running the race.
[11] When the above information
reached the ears of the CEO, he decided to investigate whether the
trip undertaken by the employee
was simply a personal one to
participate in the Two Oceans or to do research and promote the
Comrades for the employer as she had
indicated when requesting his
authority to undertake the trip. He thus engaged the Internal Audit
Unit to investigate whether the
trip undertaken by the employee was
indeed part of her work project or merely a holiday. Due to various
reasons including the resignation
of the initial investigator, the
report by the Internal Audit Unit was only finalised almost a year
after being requested.
[12] The report indicated that the
employee planned the trip to Cape Town to participate in the Two
Oceans and not for any official
purpose. It called for the employee
to be charged for, amongst other things, dishonesty.
[13] The employee was duly charged, a
hearing was held and the employee was found to have committed the
misconduct complained of.
The Chairperson of the hearing recommended
that she be dismissed. The CEO dismissed the employee, on 19 April
2012, a decision
which was later ratified by the Board.
[14] I may add that the employee was
in terms of the employer’s practice and rules required to file
a report on the work she
performed in the field, in this case at the
Two Oceans. She did eventually file a report, this she did after
being called to answer
misconduct charges. The report failed to
establish the nature of the survey she had said she had conducted, in
fact the report
gave no indication of the employee having conducted
any survey or done any work “
activating and promoting”
the Comrades.
[15] The total
expenses incurred by the employer for the trip on the employee and
her assistant amounted to R21 049.31
The Labour Court Application
[16] After her
dismissal, relying on the Basic Conditions of Employment Act
(BCEA),
[1]
the employee instituted the application proceedings, the result of
which is the subject of this appeal. She sought amongst other
things
for her dismissal to be declared an unlawful breach of her employment
contract and for the employer to be ordered to pay
damages for such
breach in an amount equal to what she would have earned for the
remainder of her fixed term contract, and for
payment of certain
other monies which she alleged were due to her.
[17] In the founding affidavits filed
by the employee in support of the application, she avers that the
investigation undertaken
by the employer did not comply with the
prescripts of
Public Finance Management Act 1 of 1999
read with
Public Finance Treasury Regulations. She further states that the real
charge of misconduct that was preferred against
her was that of
“Financial Misconduct” and, as such, only an “Accounting
Authority” or a person authorised
in writing by the Accounting
Authority could institute such a misconduct charge. This she said was
not done.
[18] The employee also avers in her
founding affidavit that the forensic investigation report was neither
credible not authentic
and that her representations in rebuttal of
the allegation made against her “
fell on deaf ears
”.
[19] Finally, she avers that her
dismissal was unlawful because it was not authorised by the Board and
states that she had “
in fact performed [her] duties in terms
of the scope falling under [her] responsibilities as outlined by
employment contract job
description”
.
[20] The employee also takes a swipe
at the CEO stating that the only reason she was charged was because
the CEO was determined
to terminate her employment as his (the CEO’s)
contract was due to expire and he feared that the employee would get
his job
because he became the CEO after holding the position as then
held by the employee.
[21] With regard to the damages and
repayment of monies claimed, the employee makes no averments at all
save to state the following
in her founding affidavit:
‘
RELIEF
11.The
relief sought is as set out in paragraphs 1 to 3.2 of the Notice of
Motion.’
[22] The application was opposed by
the employer on a number of grounds; I see no need to repeat all of
the grounds although they
are not without merit. Essentially the
employer sets out exactly how the Forensic Investigation Report was
sought, prepared and
received. While the employer does not deny that
it suffered financial loss consequent upon the employee’s
conduct, the charge
preferred against her was not that of financial
mismanagement but that of dishonesty. Most importantly though, the
employer submitted
that the application should be dismissed because
in approaching the Court by way of motion proceedings, the employee
jeopardised
her own case because she should have anticipated that a
number of disputes of fact would arise which could not be resolved
without
the need of leading oral evidence. The employer added that
since all the essential facts were disputed, applying the
Plascon-
Evans
test, the application should be dismissed. Finally, the
respondent argued that notwithstanding all of the above, the
employee’s
claim should be dismissed because she had failed to
prove any damages as she did not set out any facts, nor made
averments about
any damages she may have suffered, assuming a breach
on the part of the employer.
[23] The Labour
Court curiously found that there were no factual disputes on the
papers and that the employer had failed to follow
its own procedures
relating to disciplinary procedure that applied to employees in the
position of the employee. Based thereon,
it held that the employee’s
contract was unlawfully breached and ordered the employer to pay to
the employee an amount equal
to what the employee would have earned,
for the balance of her contract period, as damages, and to repay the
amount R21 049.31
being the amount deducted by it in respect of
the costs incurred on the Cape Town trip. The Labour Court relying on
the matter
of the
South
African Football Association v Kwena Darius Mangope
[2]
(
SAFA
)
and
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(
Billiton)
[3]
believed there was no need for the employee to prove damages.
The Appeal
[24]
The
employer has raised a number of grounds of appeal, none of them are
without merit. However, at the very outset and on a very
basic level,
the issue of the rules relating to application proceedings need to be
restated as was done by this Court in the matter
of
SAFA
where
it said:
‘
It
is trite that an application encompasses pleadings and evidence, all
rolled into one. The affidavits take the place of the pleadings
and
the evidence, and formulate the issues of fact between the parties
and contain the evidence upon which each wishes to rely.
The
applicant must set out in the founding affidavit the facts necessary
to establish a
prima
facie
case
in as complete a way as the circumstances demand. The respondent is
required in the answering affidavit to set out which of
the
applicant’s allegations he admits and which he denies and to
set out his version of the relevant facts. In dealing with
the
applicant’s allegations of fact, the respondent should bear in
mind that the affidavit is not solely a pleading and that
a statement
of lack of knowledge coupled with a challenge to the applicant to
prove part of his case does not amount to a denial
of the averments
of the applicant. Likewise, failure to deal with an allegation by the
applicant amounts to an admission. It is
normally not sufficient to
rely on a bare or unsubstantiated denial.
Unless
an admission, including a failure to deny, is properly withdrawn
(usually by way of an affidavit explaining why the admission
was made
and providing appropriate reasons for seeking to withdraw it) it will
be binding on the party and prohibits any further
dispute of the
admitted fact by the party making it as well as any evidence to
disprove or contradict it.
The
inherently limited form and nature of evidence on affidavit means
that on occasion an application will not be able to be properly
decided on affidavit, because there are factual disputes which cannot
or should not be resolved on the papers in the absence of
oral
evidence. The various provisions of Rule 7 of the Rules of the Labour
Court take cognisance of this reality. Rule 7(3) requires
the
applicant to set out the material facts in the founding affidavit
with sufficient particularity to enable the respondent to
reply to
them, while Rule 7(4) expects the same on the part of the respondent.
Rule 7(7) grants the Labour Court a discretion to
deal with an
application “in any manner it deems fit”, which may
include “referring a dispute for the hearing
of oral evidence”.
That discretion, in keeping with general practice and principles
applicable in relation to the determination
of applications, should
be exercised to ensure that justice is done with a view to resolving
a dispute of fact. Whether a factual
dispute arises from the papers
is not a discretionary decision; it is itself a question of fact and,
importantly, a jurisdictional
pre-requisite for the exercise of the
discretion to refer the dispute for the hearing of oral evidence.
While the equivalent provision
in Rule 6(5) (g) of the High Court
Rules is more explicit in this regard, requiring, as it does, the
referral to oral evidence
to be “with a view to resolving any
dispute of fact”, there can be no doubt that Rule 7(7) of the
Labour Court Rules,
being
in pari materia
, should be construed
similarly to that effect.
As
pointed out in
Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
, a real dispute of fact will arise in one of three
ways. Firstly, the respondent may deny one or more of the material
allegations
made by the applicant and produce evidence to the
contrary, or may apply for the leading of oral witnesses who are not
presently
available or who though averse to making an affidavit,
would give evidence if subpoenaed. Secondly, the respondent may admit
the
applicant’s affidavit evidence but allege other facts which
the applicant disputes. Thirdly, the respondent, while conceding
that
he has no knowledge of one or more material facts stated by the
applicant, may deny them and put the applicant to the proof,
and
himself give or propose to give evidence to show that the applicant
and his deponents are untruthful or their evidence unreliable.
A
real dispute of fact will not arise therefore if the respondent
relies merely on a bare denial of the applicant’s allegations
or simply puts the applicant to the proof of allegations and in
effect indicates no intention to lead evidence disputing the truth
of
the applicant’s allegations. Bare denials will not suffice to
give rise to a dispute of fact where the facts averred fall
within
the knowledge of the denying party and no basis is laid for disputing
the veracity or accuracy of the averment. There is
accordingly a duty
upon a legal advisor who settles an answering affidavit to ascertain
and engage with facts which his or her
client disputes and to reflect
such disputes fully and accurately in the answering affidavit. If
that does not happen, the court
may well take a robust approach and
grant the applicant relief in accordance with the rule enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
which
provides that notwithstanding factual disputes on the papers, if the
court is satisfied that the applicant is entitled to
relief in view
of the facts stated by the respondent together with the facts in the
applicant’s affidavits which are admitted
or have not been
denied by the respondent, it will grant the relief sought by the
applicant.’
[4]
[Footnotes
omitted]
[25] Although the above
dictum
deals with what a respondent is required to do to oppose an
application, it demonstrates that a founding affidavit must set out
all of the essential evidence which, if left unchallenged, would
prove the applicant’s case and grant it the relief sought.
Alternatively, challenges to the averments the applicant makes could
arguably not be sustained. However, where an applicant can
or should
anticipate that the facts essential for it to prove its case would be
challenged, it should not proceed by way of application
but by way of
action. The reason for this is that where there will be dispute of
fact the court will be unable to determine on
the papers before it
where the truth lies and it will simply dismiss the application on
the basis that the applicant had failed
to discharge its
onus
by proving its case on a balance of probabilities. While the Court
always has a discretion to refer certain issues in an application
for
oral evidence, where there are disputes of fact, this is not
automatic. In my view, a Court will or should however never refer
an
application to be determined by the leading of oral evidence, thus
converting an application to a trial, where an applicant,
in total
disregard of the principle that where disputes of facts are
anticipated a matter should be instituted by way of action,
proceeds
nonetheless by way of an application.
[26] Considering the real issues
before the Court, the employee needed to satisfy the Labour Court on
its papers that:
(a)
she travelled to Cape Town to perform the tasks she claimed she would
perform, that she
did so perform the tasks and filed her report as
required;
(b)
the employer failed to follow the proper procedure in disciplining
her; and,
(c)
her dismissal was not properly authorised as provided for in the
employer’s rules.
[27] On all of the above issues, the
facts presented by the employee were disputed by the employer. More
importantly however the
employee should have anticipated that those
facts would be disputed. On the very first issue of whether the
employee performed
the tasks for which she sought and was granted
permission to travel to Cape Town, the employee only makes a bold
statement that
she did so. In its answer, the employer provides
details as to why this could not be so, not least of which was the
report filed
by the employee just prior to her misconduct hearing
(nearly two years after the event) which fails to demonstrate that
she had
carried out the tasks that she had said she would. Added to
this is the statement by her assistant who accompanied her that no
work was indeed performed at the Two Oceans. It would be naïve
to accept a flippant remark made by the employee that she conducted
a
survey while running the race. Besides the fact that this dispute
does not get the employee out of the starting blocks in proving
her
claim for breach of her employment contract, it demonstrates that it
was indeed the employee who breached her contract of employment.
What
is critical here, however, is that it should have been clear as
daylight to the employee that the employer would dispute her
claim
that she went to the Two Oceans to conduct the business of the
employer. Also that the employer would challenge such allegation
and
would be supported in its stance by producing a report prepared by an
independent body that she went on a personal trip. Added
is the fact
that a proper disciplinary hearing was conducted at which evidence
was placed before a chairperson and the employee
was given an
opportunity to state her case (the employee very conveniently forgot
to even mention that she was subjected to a disciplinary
hearing in
respect of the misconduct the employer alleged she had committed).
The employee was faced with evidence presented by
the employer to
demonstrate that it was she who had breached the contract of
employment by being dishonest in making a request
of travelling to
Cape Town on a pretext of performing work-related duties while she
went on a personal jaunt. The issue here is
not whether what the
employer says is true. It is simply that applying the
Plascon
Evans
test, the court is obliged to accept the version of the
employer. All the court had before it was a statement in the founding
affidavit
to the effect that the employee did no wrong, as against
this is a statement from the employer with supporting documents that
the
employee was and continued to be dishonest. Those advising the
employee should have known that what the employer said in its papers
is exactly what it would say and they would then not be able to
succeed in their application.
[28]
Every essential fact that the employee
needed to satisfy the court about was disputed by the employer with
sufficient averments
to remove the dispute from the realm of bare or
unsubstantiated denial. In the absence of the facts being tested by
the leading
of oral evidence, the Labour Court had no choice but to
accept the averments made by the employer on all of the critical
issues
relating to the alleged breach.
[29]
The only allegation made by the employee,
of some merit, was that she could only be dismissed by the Board and
this was not done.
She was in fact dismissed by the Chairperson of
the Board subsequent to a disciplinary hearing. But again, in
response to this,
the employer presented evidence to the effect that
it had delegated that function to the Chairperson of the Board (this
was supported
by minutes of the Board); that the Board was at all
times aware of the processes that were taking place with regard to
the disciplinary
action taken against the employee; and, that after
the dismissal the Board had ratified the decision of its chairman to
dismiss
the employee.
[30]
The issue of whether the Board had to
decide on the dismissal itself prior to the employee’s
dismissal or that the Board could
not
ex
post facto
ratify a decision as it was
a decision for them to make: this issue is one which had to be
canvassed at trial as to whether or
not the formalities followed by
the employer in dismissing the employee was within the ambit of its
constitution. On the papers,
while there may be a suspicion that it
might not be so, this is not sufficient. It is the employee as the
applicant, who bears
the
onus
of satisfying the court that this was a pre-emptive fact going to the
root of her dismissal and thus leading to the alleged unlawful
breach
of her contract.
[31]
In the circumstances, the Labour Court’s
finding that there was no dispute of facts was totally erroneous. In
fact, every
relevant fact was properly disputed on the papers before
the Labour Court and as such the application should have been
dismissed
by the Labour Court.
[32]
Having
arrived at the above decision, there is no need to deal with the
issue of damages. I however consider this an important issue
in this
matter in light of the reasons given by the Labour Court in awarding
damages to the respondent. As stated earlier, the
Labour Court
relying on the matters of the
SAFA
and
Billiton
concluded
that there was no need for the employee to prove damages. This is
clearly wrong. The employee did not seek compensation
based on her
dismissal being unfair in terms of the Labour Relations Act (LRA)
[5]
,
she sought damages consequent upon a breach of contract in terms of
the BCEA. She instituted a civil claim for damages. Two issues
arise
in this respect. Firstly, she had to prove: (i) that she suffered
damages as consequence of the breach, that there is a link
between
the damages she suffered and the breach; and secondly (ii) the
quantum of damages she actually suffered.
[33]
The employee failed to provide any evidence whatsoever as to the loss
she suffered as a result of her dismissal and, as such,
even if she
had proved that the employer had breached the employment contract,
she would not succeed in obtaining any award. Insofar
as the Labour
Court sought support for its decision to grant the relief sought on
the basis of the
dictum
in the
Billiton
matter which stated that there was no need to prove damages to obtain
compensatory relief in an unfair dismissal dispute, such
support was
erroneous.
Billiton
case dealt with a claim under the LRA and not one under the BCEA. It
is correct that no damages need to be proved when seeking
compensatory relief under the LRA because section 194 of the LRA
provides that where a dismissal is found to be unfair on substantive
or procedural grounds, the commissioner or the Labour Court may grant
compensation to the employee within certain limitations.
The amount
awarded there to a dismissed employee is not damages as understood
within a civil claim context but a statutory relief,
hence there is
no need to prove any loss.
Billiton
therefore had no application to this dispute. See also
ARB
Electrical Wholesalers v. Hibbert
[6]
.
[34] While the
SAFA
matter is
of application, the Labour Court appears to have totally misread the
judgment. The Court there emphasised that in a claim
such as this,
the employee was obliged to prove his/her damages failing which no
amount is awarded to the employee. It stated:
‘
[A]
plaintiff claiming damages for a prospective loss of future salary
must adduce evidence enabling a fair approximation of the
loss even
though it is of uncertain predictability and exactitude. It is not
competent for a court to embark upon conjecture or
guesswork in
assessing damages when there is inadequate factual basis in evidence.
Moreover,
allowance has to be made for the contingency or probability that the
anticipated future loss may not in fact eventuate,
at least not in
its entirety, because the dismissed employee may obtain another job
or source of income. There should be evidence
as to the reasonable
period it would take a person in the position of the respondent to
obtain analogous employment. By similar
token, any amount awarded as
damages for future loss has to be discounted to current value. In
other words, the value of the expectancy
of future salary before and
after the breach has to be determined in order to quantify damages.
Where it is highly probable that
the expectancy would have been
realised but for the breach, the value of the expectancy will usually
be the value of the expected
income (the salary for the unexpired
period) less amounts which reasonably might be earned (potential
collateral and mitigated
amounts), adjusted firstly by a contingency
for the possibility of the entire loss not being realised, and
discounted in addition
for the advantage of the expectancy being
accelerated or received earlier than it would have been.
It
was therefore, in my opinion, wrong for the Labour Court to equate,
without further ado, the respondent’s damages with
the salary
owing for the balance of the unexpired period of his fixed term
contract. Such an amount, in the nature of things, will
in all cases
be the maximum payable as damages. But the maximum does not
axiomatically follow upon breach…’
[7]
[35]
Also in the
SAFA
matter, the employee did not receive the balance of his contract
value but only the damages he had proved to have suffered. The
employee in that matter set out, in an affidavit, the losses he
suffered as a result of the employer’s breach and this loss
was
not challenged by the respondent. It was this proved loss which
constituted the damages in that matter and that is what was
awarded
to the employee, not the balance of his contract value, nor was the
damages awarded in the absence of it being proved.
In the
circumstances, the Labour Court got it wrong. Not only did the
employee fail to prove any damages, but she failed to make
out a case
for a breach in the first place.
[36]
Finally, I need to re-emphasise that a
civil claim for damages as provided for in the BCEA (as was the case
here) has nothing to
do with a claim for an unfair dismissal in terms
of the LRA.
Order
[37]
In the result, I make the following order:
(i)
The appeal is upheld with costs.
(ii)
The order of the Labour Court is
substituted with the following order:
“
The
application is dismissed with costs.
__________________
Waglay
JP
I agree
_______________
Ndlovu
JA
I agree
_______________
Murphy
AJA
APPEARANCES:
FOR THE APPELLANTS:
Adv M T K Moerane SC and Adv W S Kuboni
Instructed by
Ndwandwe & Associate Inc
FOR THE RESPONDENT:
Adv M S Sebola
Instructed by
Nchupetsang Attorneys
[1]
No 75 of
1997.
[2]
(2013) 34
ILJ 311 (LAC)
.
[3]
2010
(5) BCLR 422 (CC).
[4]
At paras
9-12.
[5]
Act 66 of
1995
[6]
Compare:
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
(2015) 36 ILJ 2989 (LAC);
[2015] 11 BLLR 1081
(LAC) at para 22-24.
[7]
At para 45
and 47.