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[2018] ZALAC 1
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Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1; [2018] 4 BLLR 337 (LAC); (2018) 39 ILJ 1034 (LAC) (25 January 2018)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Not reportable
Case
no: JA118/13
In
the matter between:
WINNIE
MAHLAKOANE
Appellant
and
SOUTH
AFRICAN REVENUE SERVICE
Respondent
Delivered:
25 January 2018
Summary:
Review of arbitration award – employee dismissed for
fraudulently receive social grant for her two children –
first
disciplinary hearing clearing employee of any wrongdoing as she
produced letters evincing that she requested the payment
of the grant
to be stopped – employer subjecting employee to a second
disciplinary hearing when evidence surfaces that the
letters produced
at the first hearing were forged – court finding that the
second charges leading to the dismissal levelled
against employee
differ from the first charges – court holding that the concept
of double jeopardy relied on by the commissioner
had no application-
consequently, employee found to have forged the letters. Labour
Court’s judgment upheld and appeal dismissed
with costs.
Coram:
Tlaletsi DJP, Ndlovu
et
Coppin
JJA
JUDGMENT
COPPIN
JA
[1]
This is an appeal against an order of the Labour Court (Cele J) in
terms of which an arbitration award made in favour of the
appellant
by a commissioner of the Commission for Conciliation Mediation and
Arbitration (CCMA), to the effect that the dismissal
of the appellant
by the respondent was substantially unfair and reinstating her, was,
at the instance of the respondent, reviewed
and set aside in terms of
section 145 of the Labour Relations Act
[1]
(LRA).
Leave to appeal to this Court was granted by the Labour Court.
Factual
background
[2]
In the year 2000, the appellant was living with her husband, Mr
Setshedi, and two minor children and was unemployed. As a
consequence,
she applied for and was granted a child support grant
for the two children in terms of the Social Assistance Act, which was
repealed
and replaced with a new Act
[2]
(the
SAS Acts).
[3]
On 1 February 2006, the appellant was employed by the respondent. As
a result, her entitlement to the support grants ceased
in terms of
the SAS Acts. Notwithstanding the appellant continued to draw the
grants in breach of that Act.
[4]
When the matter came to the knowledge of the respondent in 2008, the
appellant was charged with fraud, alternatively with breaching
the
respondent’s Disciplinary Code, in that she continued to draw
child support grants despite her employment and in breach
of the SAS
Acts.
[5]
At the disciplinary hearing in 2008, (the first disciplinary hearing)
the appellant’s defence, in essence, was that she
had informed
the South African Social Security Agency (SASSA), which is
responsible for distributing the grants, that she no longer
qualified
for the grants, but nothing came of it. In substantiation of her
defence, she produced two letters purporting to be from
SASSA and
dated 2 October 2006 (one in respect of each child) and in terms of
which SASSA informed the appellant that the grants
had ceased because
of her changed financial circumstances and that she was no longer
entitled to the grants in terms of the social
assistance legislation.
[6]
As a result, the Chairperson of the first disciplinary hearing did
not find the appellant guilty of fraud, but only of continuing
to
receive the grants despite not qualifying therefor, which constituted
an offence in terms of the respondent’s Disciplinary
Codes. As
a sanction, the Chairperson recommended a final warning and this
recommendation was accepted and applied by the respondent.
[7]
In 2010, Mr Setshedi who had now become separated from the appellant,
informed the respondent regarding the two SASSA letters,
which the
appellant relied upon in the first disciplinary hearing, that the
dates on those letters were forged and that he had
assisted the
appellant with the forgery. As a consequence, the respondent charged
the appellant with at least five counts of misconduct
involving
fraud, forgery and uttering, alleging essentially that she had forged
the dates on the SASSA letters and had presented
them as having
emanated from SASSA in 2006, well-knowing that that was not the case
(the second disciplinary hearing).
[8]
In the second disciplinary hearing the appellant was found to have
committed the misconduct as charged and the sanction of dismissal
was
imposed on her about 15 September 2010.
[9]
Aggrieved by this outcome, the appellant referred an unfair dismissal
dispute to the CCMA for conciliation, failing which, arbitration.
At
the end of the arbitration proceedings, the Commissioner issued an
award in which he found that the appellant had been unfairly
dismissed an ordered the respondent to reinstate her.
[10]
The respondent did not accept the award and brought an application in
the Labour Court in terms of section 145 of the RLA to
review and set
it aside.
[11]
In coming to make the award in favour of the appellant, the
Commissioner had found, in essence, that it was unfair for the
employer to have subjected the appellant to a second disciplinary
hearing as this constituted double jeopardy because, according
to the
Commissioner: the allegations raised by the respondent at the
arbitration were the same as the allegations raised against
her at
the disciplinary hearing resulting in her dismissal; secondly,
because the respondent’s Disciplinary Code made no
provision
for such a second disciplinary hearing; thirdly, because the first
disciplinary hearing, according to the Commissioner,
was a
fully-fledged disciplinary hearing that gave the parties the
opportunity to lead relevant evidence, including evidence about
the
authenticity of the two contested letters produced and that the final
warning had been given to the appellant as a sanction
as it was fair;
fourthly, because the disciplinary hearing was presided over by a
chairperson of standing, who came to “definitive
decision that
the two contested letters were genuine”; fifthly, because
the appellant’s evidence had been accepted
by the Chairperson
at the first disciplinary hearing as he was impressed with her as a
witness; sixthly, because Mr Setshedi only
spoke out after 18 months
and after he had become hostile towards the appellant and was a
self-confessed accomplice in the alleged
falsification of the dates
on the two letters; seventhly, because the evidence of the appellant
and her witness, Ms N Mtshweni,
to the effect that the letters were
not falsified and that they had gone to the SASSA offices to report
that the appellant no longer
qualified for the grant and had obtained
those letters from them, may be true.
[12]
And, lastly, the Commissioner was further of the view that the
respondent’s special investigator, Mr J G Kidson and its
special prosecutor, Ms C van der Spuy, were ignorant of what happened
at SASSA and that the evidence of Ms Van der Spuy, that the
appellant
“would not have been charged criminally if she produced the two
letters which she did not, is perhaps the strongest
evidence”
against the appellant’s version that the letters were
“authentic and not falsified”.
[13]
The Commissioner then proceeded to set aside the findings of the
disciplinary hearing that resulted in the appellant’s
dismissal
and reinstated her in a post at the respondent as Revenue
Administrator, with full benefits. She was to report for duty
on 15
June 2016, if not on a date agreed to by the parties. The
Commissioner further ordered the respondent to pay the appellant
back
pay in an amount of some R84 600,00 in respect of the period
spanning from the date of her dismissal until about 15 June
2016.
[14]
The respondent took this award on review to the Labour Court seeking
that it be set aside and that the matter be remitted to
the CCMA for
a fresh hearing before a different Commissioner, alternatively that
it be declared that the dismissal of the appellant
was substantively
fair.
Labour
Court
[15]
The Labour Court found that the Commissioner’s finding of
“
double jeopardy
” had “
no support on the
facts or in law
” and that the two sets of misconduct, i.e.
those that the appellant was charged with in the first disciplinary
hearing and
those she was charged with in the second hearing, “
were
clearly distinguishable from each other
”, despite some
facts and role-players that they had in common; that the Commissioner
had “
conflated the two acts of misconduct into one
”;
that the respondent was accordingly found to have been (fairly)
entitled to “
subject
” the appellant to a second
disciplinary hearing “
to deal with the new and different
accusations they just received from the Appellant’s
ex-husband
”.
[16]
The Labour Court found that the respondent could not have anticipated
Mr Setshedi’s allegations concerning the forgery
of the two
letters and from the respondent’s perspective, the second
disciplinary hearing was “
neither malicious not unfounded
”,
though Mr Setshedi’s evidence had to be treated with caution,
because its rationale was meant to do his estranged
wife the “
most
horrible harm
”.
[17]
In respect of the question whether the respondent’s evidence in
the second disciplinary hearing was sufficient for the
appellant to
be found guilty of the misconduct alleged, the Labour Court
concluded, having discussed the evidence briefly, that
it was
apparent that it was more than probable that the letters from SASSA
were dated 2007 and this was apparent from a careful
scrutiny of
those letters and because the grants were not stopped in 2006 but
only in October 2007 which is consistent with Mr
Setshedi’s
version.
[18]
The Labour Court held that the Commissioner’s finding that the
two letters could not have emanated from SASSA was inconsistent
with
its other findings. Further, that the Commissioner’s reasoning
was at odds with the respondent’s evidence: The
Commissioner’s
finding, for example, that the evidence of the appellant and the
witness Ms Mtshweni had a number of discrepancies,
but that Ms Van
der Spuy presented stronger evidence than the appellant in respect of
the two letters, did not justify the Commissioner’s
conclusion
in favour of the appellant. According to the Labour Court, the
Commissioner’s conclusion in those circumstances
“is a
clear manifestation of his failure to apply his mind appropriately to
the proven facts”’. The Labour Court
held that this
amounted to a gross irregularity and that the Commissioner ought to
have found that the misconduct of the appellant
“
was proved
on the accepted evidence
”. The misconduct was also of a
very serious nature involving “
forgery, uttering and
dishonesty
” and brought the respondent’s name into
disrepute.
[19]
In the result, the Labour Court reviewed and set aside the award of
the Commissioner and found that the appellant’s dismissal
was
substantively fair. No costs order was made.
On
appeal to this court
[20]
In this Court the appellant, in essence, defended the findings of the
Commissioner. Her contentions through counsel, in brief,
were the
following. Because the Chairperson in the first disciplinary hearing
accepted the two letters as “
genuine
” and “
not
fraudulent
”, and because he was impressed with the
appellant and her witness the “
element of fraud was
eliminated
”. It was submitted the respondent failed to
prove that the two letters were fraudulently obtained and that the
Labour Court
erred in finding that it was more than probable that the
original letters were obtained in 2007, because the grants were only
stopped
in 2007, and because SASSA did not have the original letters.
In dealing with the discrepancies in the letters, it was submitted
that nothing was mentioned by the whistleblower, Mr Setshedi, about
the date which had allegedly been altered.
[21]
In substantiation, the appellant’s counsel submitted, in
essence, that the second disciplinary hearing constituted “
double
jeopardy
”, because the charges in that hearing “
emanated
from an issue that was ventilated or ought to have been raised which
was not and then ventilated in the first hearing
”. Further,
that the second hearing was “
tantamount to an appeal of some
sort to the first hearing if not malicious
”; that the
Chairperson in the first disciplinary hearing had “
a duty to
challenge and verify
” the authenticity of the letters “
but
elected not to do so
”. Further, that the Chairperson’s
conduct rendered the issue, concerning the authenticity of the
letters, “
res judicata
”.
[22]
Counsel for the appellant further submitted that it was not fair for
the second disciplinary hearing to be “
opened against
”
the appellant. It was further submitted that the credibility of Mr
Setshedi was not questioned and that, instead, his evidence
was
accepted without question. Further, that Mr Setshedi was not required
to produce the original letters to support his allegations,
or the
e-mails that were allegedly sent to him in which he was commended for
a job well done in forging the letters. Counsel for
the appellant
also questioned the fact that the respondent was not required to
produce proof of its allegations, despite Mr Setshedi’s
hostility towards his wife. Counsel proceeded to criticise Ms Van der
Spuy’s evidence, contending that it was misleading
and further
submitted that “
the dismissal of the appellant remained
unfair and therefore unlawful because she was dismissed for a charge
not proven on a balance
of probabilities; that the holding of the
second disciplinary inquiry constituted double jeopardy and was
encouraged by malice”
. The appellant’s counsel
submitted in conclusion that the appeal ought to be upheld, that the
order of the Labour Court set
aside and that the ruling of the
Commissioner be “
reinstated
”.
[23]
On the other hand, the respondent’s counsel argued in support
of the reasoning, findings and conclusions of the Labour
Court and
asked that the appeal be dismissed with costs.
Consideration
[24]
The test on review is not whether the Commissioner was right or
wrong, but whether, as laid down by the Constitutional Court
in
Sidumo
v Rustenburg Platinum Mines Ltd and Another
(Sidumo
)
[3]
and
by this Court in
Gold
fields Mining SA (Pty) Ltd v CCMA and Others,
[4]
the
decision made by the Commissioner is one that a reasonable
decision-maker could not have made. It is also a trite principle,
subsequently restated by this Court and other courts, that if the
Commissioner misconstrues the nature of the inquiry and that
has an
impact on the outcome of the arbitration, it would constitute a
reviewable irregularity.
[25]
As I will discuss in more detail, the finding of the Labour Court, in
effect, that the Commissioner did not reach a decision
which a
reasonable decision-maker, in light of all the facts and
circumstances could have reached, is unassailable. The Labour
Court’s
resultant finding, that the dismissal of the appellant in those
circumstances was substantially fair, is also in
my view
uncontestably correct.
[26]
In elaboration, I shall deal in turn, with what are, essentially, the
two principal issues in this appeal. The first pertains
to the
alleged “
double jeopardy
” issue and the second to
whether the charges of misconduct in the second disciplinary hearing
had been proved. A related
question is whether the dismissal of the
appellant was substantively fair.
‘
Double
jeopardy
’
[27]
The principle of “double jeopardy” has, as its heart,
fairness and this rule or principle simply entails that an
employee
cannot, generally, be charged again with the same misconduct that he
or she was either found guilty or not guilty of.
However, there are
instances where breaches of this rule or principle can be condoned.
The paramount consideration, however, is
fairness to both sides.
[5]
[28]
It is apparent that the charges of misconduct in the first
disciplinary hearing in 2008 and those in the second hearing are
not
the same, so the double jeopardy principle does not arise for
consideration. In the first disciplinary hearing, the appellant
was
charged with fraud, alternatively with a contravention of section
12(2) read with section 17 of the SAS Act, alternatively,
with
contravening clause 6.1 of the respondent’s Codes of Conduct.
The main allegations in that disciplinary hearing being
that the
appellant, well-knowing that she did not qualify for the child
support grants in respect of her two children and in terms
of the SAS
Acts continued to take those grants. In the alternative, it was
alleged that she received the grants knowing that she
was not
entitled to do so. It was also alleged that she failed to inform
SASSA of her changed financial circumstances after she
became
employed by the respondent and as she was required to do by law.
[29]
The record of that inquiry shows that the appellant pleaded guilty to
the main charge of fraud, but was ultimately found not
guilty of that
charge on the basis that the evidence did not support that charge.
According to the Chairperson in that inquiry,
on the evidence “
Ms
Mahlakoane made no representation causing a loss or a potential loss
to the Department of Social Development
”. The appellant was
however found guilty of the first alternative charge as she continued
to receive the grants well-knowing
that she was not entitled to them
and because this constituted an offence, and accordingly, a
contravention of the respondent’s
Disciplinary Code. The
appellant was given a final written warning valid for one year on 5
September 2008.
[30]
Those charges did not relate at all to the authenticity of the
letters or the genuineness on the dates of those letters. Those
issues were not part of the charges in the first inquiry and the
letters were merely submitted by the appellant in that inquiry
in
substantiation of her defence that she had reported her changed
financial circumstances to SASSA in 2006, but they nevertheless
continued to pay the grants despite such notification.
[31]
The charges in the second disciplinary hearing emanate from
information supplied to the respondent by Mr Setshedi, her estranged
husband, that the dates on the letters which the appellant had relied
on, had been altered with his assistance. According to him,
the date
on the original letters from SASSA was 2 October 2007, but they had
altered the year to 2006. Part of their
modus operandi
to make
the date of 2006 appear authentic, was to rely on copies of the
altered original letters and to have those copies certified
as true
copies of the original letters. The true original letters were
discarded, and the appellant produced copies of the falsified
letters
at the first hearing. According to Mr Setshedi, even the certificates
proclaiming the authenticity of those altered copies
was also false.
They purported to be certifications by a police officer, but the name
of the police officer appearing on those
certificates was made-up;
such a police officer does not exist and the police have never seen
the copies. According to Mr Setshedi,
he obtained and applied the
SAPS stamp himself. He also completed those portions requiring
completion himself and had signed as
if they had been signed by a
member of the police services.
[32]
The charges in the second disciplinary hearing, therefore, centred on
the falsification of the dates on the letters. It was
never an issue
or in contention before and never required resolution or
investigation before. Charge 1 relates to the letter in
respect of
the one child. It is alleged in essence that the appellant
created a false letter with the intent to defraud the
respondent by
altering the date and the contact details on the document. It is
further alleged that this altered document purports
to have been
issued by SASSA on 2 October 2006, whereas SASSA in truth and in fact
issued the letter on 2 October 2007. This is
a forgery count.
[33]
Count 2 is an uttering count. The gist of it being that the
appellant, with the intent to defraud the respondent, “
passed
off this falsified letter in the first disciplinary hearing to the
prejudice of the respondent
”. Counts 3 and 4 are the same
as 1 and 2 but relates to the second child.
[34]
Count 5 is a charge of fraud wherein it is alleged that the
appellant, at the first disciplinary hearing, with the intent to
defraud SARS or Adv Hiemstra SC, who presided at that hearing,
misrepresented that she had made several attempts to cancel the
SASSA
grants; had approached SASSA on 2 October 2006 informing it of her
changed financial position and requesting it to cancel
the grants and
that the two letters were true and correct and obtained on 2 October
2006, whereas she had made no attempt to cancel
the grants; did not
approach SASSA on 2 October 2006 on the matter; did not obtain the
letters form SASSA on 2 October 2006; and
that the letters were only
obtained in 2007 and, furthermore, that the appellant had thereby
induced the respondent, or the Chairperson
(Mr Hiemstra), to believe
that she was not guilty of the charges or that she should receive a
more lenient sanction. There was
also an alternative to count 5. This
alternative related to dishonesty, although it is almost worded
exactly as count 5, but for
reference to a different provision under
the respondent’s Disciplinary Code.
[35]
The Commissioner’s conclusion, in effect, that the charges of
misconduct in the first and second disciplinary hearings
were the
same, and that the principle of double jeopardy found application,
are material misdirections. The appellant was not charged
in the
first disciplinary hearing with falsifying letters, or with making
false representations to the respondent, or to Mr Hiemstra.
The
misconduct charged in the first and second disciplinary hearings are
apparently distinctly different. A reasonable commissioner
would have
appreciated the material differences in the two sets of charges and
would not have reached the same conclusion as the
Commissioner.
Were
the charges proved
?
[36]
As despicable as Mr Setshedi’s perceived act of disloyalty
toward his estranged wife, the appellant, might seem, his
version is
supported and confirmed in all material respects by independent facts
and circumstances and/or evidence.
[37]
The appellant’s version that she went to SASSA to report her
status on more than one occasion and that SASSA gave her
proof on her
insistence of her reporting, in the form of the two letters, is not
borne out by the wording of the letters. After
all, why would the
SASSA letters be informing the grantee of the lapse of the grant and
the reason for it, if the grantee is the
one that informed them, in
effect, to stop the grant? It is more probable that SASSA wrote the
letters after becoming aware that
the appellant no longer qualified
for the grants and proceeded to stop them. The last paragraphs of the
letters, that are also
identical, confirms that it was a notification
by SASSA to the appellant and not the other way round.
[38]
A further observation is that the letters notify the grantee (i.e. in
this case the appellant) that the grant has lapsed and
not that it
will lapse in the future. It is improbable that in a letter dated 2
October 2006 SASSA would notify the grantee that
the grant has
lapsed, but then the lapse is affected only a year later in October
2007. It is more probable that the grant stopped
immediately after
SASSA was informed of the appellant’s change in income. The
grant lapsed only in October 2007. It is more
likely that the change
was only then reported to SASSA.
[39]
The appellant conceded that she received the social grants until
October 2007. This is consistent with her cancellation request
being
made and processed during that month. The uncontested evidence was
further that SASSA, which has not been accused at all,
let alone by
the appellant, of partisanship or of having a motive to falsely
implicate the appellant in wrongdoing, had no record
of letters
issued to the appellant in 2006, but had on record letters issued to
her on 2 October 2007.
[40]
SASSA’s records included a backup hard copy of those letters
and an audit of the cancellation process that had been done
in 2007,
which confirmed that no cancellation request had been made in 2006.
An Assistant Manager at SASSA, Ms Sorajbally, who
had been called as
a witness, produced the relevant SASSA file at the hearing and
testified
inter alia
that they keep on file all letters that
had been sent to grantees and the only letters sent or given to the
appellant were the
ones dated 2 October 2007. The grants, according
to Ms Sorajbally, were cancelled on 2 October 2007. All of this,
according to
her, was confirmed by an audit.
[41]
Ms Sorajbally further explained that a request for cancellation of
the grants payable to the appellant, came, not from the
appellant,
but from the Special Investigation Unit (SIU) and that it was one of
a whole number of such requests. She refuted the
appellant’s
version that the appellant had requested cancellation in 2006 and
explained the process that SASSA followed when
a grantee or recipient
requests a cancellation. When such a person requests cancellation,
they are required to complete a form
and they are issued with a
receipt letter after they had cancelled the grant.
[42]
In the case of the appellant, SASSA did not have on record that they
issued either a receipt, or that the appellant had completed
a form.
That together with the fact that they had on record letters identical
in content to the ones relied upon by the appellant
in the first
disciplinary hearing, but which were dated 2 October 2007, and were
issued at the request of SIU, was further strong
independent
corroboration of the veracity of Mr Setshedi’s version.
[43]
On the probabilities, it is unlikely in the extreme for all of the
following to occur coincidentally, namely for SASSA to have
no record
of the letters for 2006, and for it to have no receipt and no form,
which are an integral part of the cancellation process.
It is more
probable that those documents were not in SASSA’s file because
no request for cancellation by the appellant occurred
in 2006 or even
in 2007 and that the cancellation had only been effected at the
request of SIU in October 2007 when the letters
were also issued.
[44]
Effectively, Mr Setshedi’s version that the police stamp on the
falsified letters, was also a falsification, stood uncontested.
On
the appellant’s own version, she had no knowledge how the stamp
got to be placed on those letters. It was rather strangely
put by her
representative to Mr Kidson that the appellant only became aware that
the police stamp on the letters was fraudulent
after she heard her
husband testified at the second disciplinary hearing.
[45]
Another aspect that weighs heavily against the appellant’s
veracity and in effect supports the truth of Mr Setshedi’s
version is the uncontested evidence given by Ms Sorajbally that SASSA
could not change the date of the letters on the system because
it was
hard coded. As stated earlier SASSA would in any event have had no
motive for changing the dates.
[46]
One must also take into account that the appellant had a clear motive
for changing the date. Unless she showed at the first
disciplinary
hearing that she had requested a cancellation, she faced the prospect
of being found guilty of fraud and of being
dismissed. Mr Setshedi
confirmed the rationale for changing the date of the letters.
[47]
The
onus
of proving the misconduct in the second inquiry, and
then in the contested arbitration that followed that inquiry, was to
be discharged
by proof on a balance of probabilities. There is no
doubt that the
onus
in this instance had been discharged by
the respondent. The probabilities are overwhelmingly that the date on
the letters that
had been issued by SASSA on 2 October 2007 had been
altered to 2 October 2006 and that the police stamp on the copies of
those
letters, are falsifications. The Commissioner’s finding,
in effect, that the charges were not proved is not a conclusion that
a reasonable decision-maker would have come to.
[48]
The misconduct was of a very serious nature and involved calculated
acts of dishonesty perpetrated by the appellant and Mr
Setshedi. In
those circumstances, the sanction of dismissal was clearly justified.
For all those reasons, the Labour Court’s
order is correct.
[49]
The fact that the appellant nevertheless pursued this appeal given
the circumstances, weighs heavily in favour of an order
that the
costs should follow the result. I find no reason in fact or law why
that should not be so.
[49]
In the result, the appeal is dismissed with costs.
________________________
P
Coppin JA
Tlaletsi
DJP concurs in the judgment of Coppin JA.
After
the judgment was reserved and before it could be finalised the
allocated scribe, Ndlovu JA, sadly passed away. This resulted
in the
unfortunate delay, for which we apologise.
APPEARANCES
:
FOR
THE APPELLANT:
M Z Makoti
Instructed by T T Hlapolosa Inc
FOR
THE RESPONDENT:
Adv Riaz Itzkin
Instructed by Edward Nathan
Sonnenbergs
[1]
Labour
Relations Act 66 of 1995
.
[2]
The
Social Assistance Act 59 of 1992 was repealed by and replaced with
the
Social Assistance Act 13 of 2004
.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Another
[2007]
12 BLLR 1097
(CC) para [110].
[4]
Gold
Fields Mining SA (Pty) Ltd v CCMA
and
Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
LAC esp. para [14].
[5]
See
inter
alia BMW (SA) (Pty) Ltd v Van der Walt
(2000)
21 ILJ 113 (LAC);
Branford
v Metro Rail Services (Durban) and Others
(2003)
24 ILJ 2269 (LAC) and the helpful and insightful discussion of the
topic in J Grogan “
Workplace
Law
”
(2007)
pp 200-204.