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[2018] ZALAC 9
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County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others (CA02/2017) [2018] ZALAC 9; [2018] 8 BLLR 756 (LAC); (2018) 39 ILJ 1953 (LAC) (11 May 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no:
CA02/2017
In the matter
between:
COUNTY FAIR
FOODS (EPPING),
A
DIVISION OF ASTRAL OPERATIONS
LTD
Appellant
and
FOOD
AND ALLIED WORKERS’ UNION
First
respondent
BONGIWE
XUZA & 119 OTHERS
Second
and further respondents
Heard:
02 November 2017
Delivered:
11 May 2018
Coram:
Coppin, Sutherland JJA and Savage AJA
Summary
:
County Fair informed staff that annual discretionary bonuses would
not be paid due to its financial position. In response, on
15
December 2010, more than
200
employees
embarked on an unprotected strike
.
Three ultimatums were issued to employees. 64 employees returned to
work on 15 December 2010 and 58 employees returned on 17 December
2010. All signed a comeback document, which included an undertaking
that they would desist from such action, and received a final
written
warning for their conduct. The second respondents failed to comply
with the final ultimatum to return to work on 17 December
2010,
despite it being extended to provide additional time for them to do
so. County Fair then instituted a lock out. The second
respondents
returned to work on Monday 20 December 2010, signed the comeback
document but were suspended from duty pending disciplinary
hearings
at which they were found to have committed misconduct and were
dismissed. The Labour Court found the dismissals unfair
on the basis
that the sanction was harsh since the respondents had only remained
on strike
for
an extra 1½ days. County Fair was ordered to reinstate the
respondents on a final warning with 6 months’ back pay.
On
appeal: found that the respondent employees’ failure to adhere
to final ultimatum distinguished them from their fellow
employees who
had returned to work in response to the ultimatum. In such
circumstances, the dismissal of the respondent employees
was fair and
the appeal succeeds with costs.
Coram:
Coppin and Sutherland JJA and Savage AJA
Judgment
SAVAGE AJA:
Introduction
[1]
This
appeal, with the leave of the Court
a
quo
,
is against the judgment of the Labour Court (Steenkamp J) in which
the dismissal on 3 January 2011 of the second to further respondent
employees (the respondent employees) for engaging in an unprotected
strike action from 15 December 2010 until 20 December 2010
was found
to be substantively unfair, with the respondent employees reinstated
into their employment with six (6) months’
back pay.
[2]
The
appellant County Fair Foods (Epping), a division of Astral Operations
Limited, operates a chicken processing plant in Epping
Industrial
from which its supplies chicken for distribution and on-sale to
consumers. On 20 August 2010, the appellant addressed
a communiqué
to all employees which it placed on notice boards, in which it
cautioned that annual discretionary bonuses
may not be paid due to
the appellant’s profitability concerns. On 12 October 2010,
employees were informed in a second communiqué,
also placed on
notice boards, that the decision had been taken that bonuses would
not be paid due to the appellant’s poor
financial position
caused by a downward pressure on poultry prices, reduced consumer
spending and other factors.
[3]
A
third communiqué was addressed to staff on 19 October 2010. In
it, the appellant noted employee discontent with the bonus
decision
but reiterated that the bonus would not be paid. On 19 November 2010,
the appellant shared its key financial indicators
with employees in
writing, reiterating that the bonus decision had been taken to
safeguard both the company and jobs given stagnant
revenue, reduced
sales, a downward pressure on the price of chicken, a 28% drop in
operating profit and company returns of 42.9%
below what had been
budgeted.
[4]
On
Wednesday 15 December 2010, the appellant informed the first
respondent, Food and Allied Workers’ Union (FAWU), that FAWU
was a minority union given its reduced membership levels and that the
union was no longer a collective bargaining partner. The
same day, a
number of employees, including the respondents, demanded to be
addressed by the appellant’s managing director
regarding the
bonus issue. The appellant refused to accede to this demand. From
13h45, the majority of processing employees staged
a sit-in in the
canteen at the appellant’s premises demanding to be addressed
by management on the bonus issue and refused
to resume work as they
had not received their year-end bonuses.
[5]
After
the lunch break, at 14h45, the production manager, Ms Avril Arendse,
a member of the appellant’s management team, met
with the
striking employees who had congregated in the yard adjacent to the
processing area. Four employees were chosen by those
on strike to
represent the strikers. Ms Arendse asked the representatives to
explain to the striking employees that the strike
was unlawful and to
warn them of the consequences of their continued conduct, including
that they faced the possibility of dismissal.
Thereafter, the four
representatives asked to speak to
the
fresh processing and distribution executive, Mr Francois Oosthuizen.
At
15h40 Mr Oosthuizen
joined
the meeting and the bonus issue was discussed
.
At the meeting, Ms Arendse and Mr Oosthuizen issued a verbal
ultimatum informing employees, through their representatives, that
the strike action embarked upon was unlawful and that should they not
comply with this ultimatum to return to work by 07h30 on
16 December
2010 disciplinary action would follow. A written ultimatum was faxed
to FAWU at 15h59, although the union claims that
it has not received.
Thereafter, 64 employees returned to work and signed a “comeback
document” which contained an
undertaking that they would
refrain from participating in the unprotected strike action and
accepted receipt of a final written
warning for their conduct.
[6]
On
Friday, 17 December 2010, the appellant’s human resources
facilitator, Mr Loyiso Mciteka, issued a final ultimatum to the
remaining strikers in English and Xhosa, informing them verbally that
if they did not sign the comeback document, the gates would
be closed
at 07h30 and they would be barred from entering the premises. This
deadline was extended to 08h00 following discussions
with the
appellant’s head office. In response to this ultimatum, a
further 58 employees signed the comeback document, received
a final
written warning and returned to work.
[7]
At
08h35 on 17 December 2010, a lockout notice which was dated 16
December 2010, was read to the remaining assembled striking
employees.
The notice was thereafter put up on the appellant’s
gates and the gates were locked. The lock-out demands, as set out in
the notice, were the immediate and unconditional suspension of the
unprotected strike action; that employees unconditionally accept
the
decision not to pay bonuses; and that they enter into a collective
agreement recording these terms.
[8]
On
Monday 20 December 2010, the remaining striking employees indicated
that they were willing to return to work and signed the comeback
document, which included the undertaking and acceptance of a final
written warning. They were told to return to the appellant’s
premises the following day. On their return the next day, the
employees were suspended from duty. A disciplinary hearing was held
on 23 and 28 December 2010, following which, on 3 January 2011, the
120 respondent employees were dismissed from their employment
with
the appellant.
[9]
Aggrieved
with their dismissal, the matter was referred to the Labour Court for
adjudication. In the statement of case filed by
the respondents,
issue was taken with the substantive fairness of the dismissal of the
employees on the basis of the employees’
length of service, the
limited gravity of their conduct, the underlying reason for their
grievance, the limited duration of the
strike, the fact that the
appellant failed to adopt a more conciliatory approach to the matter
and that less severe sanctions existed
which would have achieved the
desired result.
[10]
The
appellant opposed the matter and disputed that the dismissals were
unfair. It stated this to be so given the economic consequences
suffered by the company as a result of the strike, with 80120
chickens processed out of a scheduled production of 118 500
on
15 December 2010. By 16 December 2010, the appellant was required to
employ replacement labour and with limited skilled labour
available,
only 97 895 chickens could be processed. However, by 17 December
2010, also using replacement labour, 104 495
of the scheduled
105 300 chickens were processed. Attempts to contact FAWU’s
organiser on 17 December 2010 to discuss
the strike were
unsuccessful. Furthermore, the appellant took issue with the conduct
of the respondent employees at the disciplinary
hearing at which they
denied reading communiqués regarding the bonus issue; claimed
that they were unaware that the strike
was unprotected, when two
managers had informed them of this; claimed no ultimatum had been
given, when it had; and claimed that
they would return to work on 17
December 2010 after the ultimatum given, when they did not. In the
circumstances, given the failure
to comply with the unprotected
nature of the strike, the final ultimatum given, the economic harm
suffered and the conduct of the
respondent employees at the
disciplinary hearings, the appellant contended that the dismissal of
the remaining 120 employees was
substantively fair.
Judgment of
the Labour Court
[11]
The
Labour Court accepted that in participating in an unprotected strike,
the employees had made no attempt to comply with the Labour
Relations
Act 66 of 1995 (the LRA). The Court took account of the short
duration of the strike and its peaceful nature. It found
there to be
no arbitrary distinction between the striking employees who received
a final warning and those who were dismissed.
However, the dismissal
of the respondent employees, who had continued to strike for 1½
days more than their fellow employees,
was found to be too harsh and
unfair when the company was satisfied it could continue working with
those employees who had returned
to work. The Court found that while
some distinction between the different groups of striking employees
was appropriate and although
the ultimata given had been clear, the
respondent employees’ conduct was not so egregious that it
warranted dismissal when
after reconsidering their actions over the
weekend they had returned to work. The respondent employees were
therefore reinstated
with a final written warning and, given their
defiance of the ultimatum given and the five-year delay in the
hearing of the matter,
back pay was limited to six months. No order
of costs was made.
Submissions
on appeal
[12]
The
appellant takes issue on appeal with the judgment of the Labour Court
on the basis that having regard to the seriousness of
the misconduct
committed, the Court erred in failing to find that valid reason
existed for differentiating between the conduct
of the employees who
acted in accordance with the terms of the final ultimatum and those
who had not. The fact that the unprotected
strike was embarked upon
in bad faith during a critical business production cycle indicated
that it was a form of economic sabotage
aimed to “wreak havoc”
on the appellant’s ability to meet its festive season
orders.
[1]
No reason was advanced by the respondents as to why the law had not
been complied with given that two months’ notice had
been to
employees of the bonus decision, which gave employees ample
opportunity to pursue a grievance or take any other lawful
collective
action. Since there was no reason why the provisions of sections 64
and 65 were not complied with, employees lost the
protection with
which they could have clothed themselves and opened them up to the
sanction of dismissal.
[13]
Furthermore,
it was argued that the untruthful contentions advanced by employees
at the disciplinary enquiry undermined the trust
relationship with
the appellant as an employer. These included that employees seldom
read company notices, when this was not so;
that there was
uncertainty regarding the payment of the bonus on 15 December 2010,
when there was not; that they were unaware that
the strike was
unprotected or illegal, when two managers had informed them of this;
the claim that no ultimatum had been given,
when it had; and that in
response to the 17 December 2010 ultimatum, they had indicated that
they would return to work that day,
when they did not and instead
elected to remain on strike. With reference to cases such as
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Mndebele)
[2]
and
NUMSA
and Others v WG Davey (Pty) Ltd,
[3]
it was argued that there was no
bona
fide
reason advanced as to why the final ultimatum was ignored. As a
result, given the nature and seriousness of the employees’
misconduct, the sanction of dismissal for the respondent employees
who did not comply with the final ultimatum was fair. Even if
their
dismissals were unfair, a reinstatement order, it was argued, was
inappropriate in that it was reasonably impracticable given
the
unchallenged evidence of deteriorating conditions in the industry.
[14]
The
respondents oppose the appeal on the basis that the appellant offers
no compelling reason as to why the judgment of the Labour
Court was
wrong. In
WG
Davey (Pty) Ltd v NUMSA and Others,
[4]
the Supreme Court of Appeal found that it was incumbent on the Court
to determine whether in the circumstances of that matter the
dismissals pursuant to a fair ultimatum were fair. Although the
appellant’s case was that even though they were not able
to
obtain enough temporary workers on 15 December 2010 and 16 December
2010, production was virtually unaffected by the absence
of the
remaining strikers on 17 December 2010. The facts are therefore
similar to those in
NUMSA
v Boart MSA (Pty) Ltd,
[5]
in which this Court found that since no irreparable harm was proved
given the employment of temporary workers, the dismissals were
unfair
and the employees reinstated.
[15]
The
sanction of dismissal was not fair on the facts of this matter, it
was argued, further when the delay in the return of the respondent
employees could be given effect by not making the reinstatement order
retrospective to the date of dismissal. Furthermore, regard
should be
had to the fact that the lock-out became effective after 08h00 on 17
December 2010 when the ultimatum expired and the
gates were locked.
Since in terms of s193(2) of the LRA reinstatement was appropriate,
any changing circumstances at the appellant’s
business after
the dismissal of the respondent employees does not justify it being
found to be reasonably impractical to reinstate
the employees. For
these reasons, it was contended that the order of the Labour Court
should remain in place with the appeal to
be dismissed.
Evaluation
[16]
Section
68(5) of
the LRA requires that the Code of Good Practice
[6]
be considered in determining whether a fair reason for dismissal
exists for participation in an unprotected strike.
[7]
Both item 6 and item 7 of the Code are to be considered in making
such determination.
[8]
Item 6(1) recognises that participation in an unprotected strike
constitutes misconduct but that -
‘…
like
any other act of misconduct, it does not always deserve
dismissal. The substantive fairness of dismissal in these
circumstances
must be determined in the light of the facts of the
case, including –
(a)
the
seriousness of the contravention of this Act;
(b)
attempts
made to comply with this Act; and
(c)
whether
or not the strike was in response to unjustified conduct by the
employer.’
[17]
Item
7 provides guidelines which should be considered when determining
whether a dismissal for misconduct is unfair, being –
‘
(
a)
whether or not
the employee contravened a rule or standard regulating
conduct in, or
of relevance to, the workplace; and
(b)
if a rule or standard was
contravened, whether or not –
(i)
the rule was a valid or
reasonable rule or standard;
(ii)
the employee was
aware, or could reasonably be expected to have been aware,
of the
rule or standard;
(iii)
the rule or standard has been
consistently applied by the employer; and
(iv)
dismissal with an appropriate
sanction for the contravention of the rule or standard
.’
[18]
The
three ultimata given to employees cautioned them to halt the
unprotected strike they had embarked upon and return to work, failing
which they would risk dismissal. There is no dispute that these
ultimata complied with item 6(2) of Schedule 8 of the LRA in that
in
clear language the striking employees were informed of the
consequences of their failure to heed the warning and given an
appropriate
opportunity to reflect on their conduct and to desist
from it.
[9]
Following
the first ultimatum, 64 employees returned to work. Thereafter, in
response to the final ultimatum issued, a further 58
employees
resumed their work. All of these employees undertook in writing not
to engage in further unprotected strike action and
accepted receipt
of a final written warning for their conduct.
[19]
There
is no dispute that the final ultimatum on 17 December 2010 was
extended for a further 30 minutes so as to provide still a
further
opportunity for the respondent employees to comply with its terms;
and that the respondent employees did not adhere to
the terms of the
extended final ultimatum. After the expiry of the final ultimatum, at
08h35 on 17 December 2010, the appellant
instituted a lock-out, the
demands of which were that:
‘
1
All County Fair Foods employees currently partaking in any industrial
action immediately
and unconditionally cease its strike action;
2
All County Fair Foods employees unconditionally accept the company’s
decision not to make payable any discretionary performance bonuses
during this financial year and as accordingly communicated to
all
affected County Fair Foods employees;
3
The parties mutually agree to a collective agreement clearly
stipulating
such mutually agreed terms as referred herein above prior
to such employees returning to normal duty.’
[20]
The
lock-out notice stated further that:
‘
For
the duration of the lockout no person who refuses to submit to the
above-mentioned terms and conditions will be permitted to
tender
their services nor will they receive any remuneration for the full
duration of such industrial action from the company…’
[21]
There
is no suggestion made by the respondents that the lock-out prevented
the return of the respondent employees to work. When
the
respondent employees did return to work on Monday 20 December 2010,
the first working day following 17 December 2010, they undertook
in
writing to cease any further unprotected industrial action and agreed
to receive a final written warning for their conduct.
Although by
doing so, the impasse between the appellant and the respondents was
resolved
,
the issue of a lock-out notice and even the partial compliance by the
respondent employees with certain of the lock-out demands,
did not
prevent the appellant from taking disciplinary action against those
employees who had breached workplace discipline by
embarking on the
unprotected strike and failing to comply with a final ultimatum to
return to work.
[22]
It
has repeatedly been stated by our courts that engaging in an illegal
strike constitutes serious and unacceptable misconduct by
workers in
respect of which an employer is entitled to take disciplinary
action.
[10]
Dismissal has been found to be an appropriate sanction where
an
unprotected strike was planned to create maximum pressure and
undermine the authority of the employer;
[11]
and
where there has not been compliance with an ultimatum given to return
to work, even when the ultimatum was not one in a
conventional
sense and where the strike has been of a short duration.
[12]
[23]
In
this matter the unprotected strike was embarked upon deliberately
during the peak end of the year production season with no attempt
made to comply with the LRA. It was not in response to unjustified
conduct by the appellant and less disruptive methods were clearly
available to the employees to resolve their dissatisfaction with the
bonus issue.
[24]
The
conduct of the respondent employees in failing to adhere to the terms
of the final ultimatum given to them, distinguished them
from their
fellow employees who returned to work. Consequently, their conduct
could on the facts clearly be differentiated from
that of other
striking employees, in the same manner as it was in
NUMSA
and Others v CBI Electric Cables.
[13]
[25]
Our
courts have repeatedly stated that fairness generally requires that
like cases should be treated alike
[14]
and that disciplinary
consistency
is the hallmark of progressive labour relations.
[15]
While discipline should be neither capricious nor selective,
[16]
this applies within reasonable bounds and subject to the proper and
diligent exercise of discretion in each individual case with
fairness
remaining a value judgment.
[17]
There
may exist valid grounds in a particular case to distinguish the
conduct of one employee from
another,
albeit that they have engaged in the similar conduct, having regard
to the material facts applicable.
[26]
The
appellant was neither capricious nor selective in its approach to the
misconduct committed by the respondent employees. The
collective
activity of the respondents could, unlike in
CEPPWAWU
v Metrofile
,
[18]
be legitimately differentiated from the employees who complied with
the final and earlier ultimata. The striking workers were,
therefore,
not all on the same footing given the respondent employees’
failure to comply with the final ultimatum given to
them. As much was
not in dispute. This constituted a material distinguishing feature
between the different groups of strikers which
provided a legitimate
factual basis which permitted the appellant to differentiate between
the conduct of the respondent employees
and that of those striking
workers who had complied with the ultimata issued.
[19]
[27]
As
was stated in
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[20]
in determining
whether a dismissal is fair or not does the decision-maker is “…
not
given the power to consider afresh what he or she would do, but
simply to decide whether what the employer did was fair”.
Deciding
this does not require the decision-maker “…
to
defer to the decision of the employer. What is required is that he or
she must consider all relevant circumstances.”
[28]
In
determining the appropriateness of a dismissal as a sanction,
consideration must be given to the applicable circumstances and
whether a less severe form of discipline would have been more
appropriate, since dismissal is the most severe sanction
available.
[21]
In
National
Education, Health and Allied Workers Union (“NEHAWU”) v
University of Cape Town and Others,
[22]
the
Constitutional Court recognised that –
‘…
the
focus of section 23(1) is, broadly speaking, the relationship between
the worker and the employer and the continuation of that
relationship
on terms that are fair to both. In giving content to that right, it
is important to bear in mind the tension between
the interests of the
workers and the interests of the employers which is inherent in
labour relations. Care must therefore be taken
to accommodate, where
possible, these interests so as to arrive at the balance required by
the concept of fair labour practices.
It is in this context that the
LRA must be construed.’
[23]
[29]
While
the appellant suffered economic harm as a result of the strike, the
evidence showed that this harm was chiefly experienced
for the first
1½ days after commencement of the strike and was therefore
attributable to the conduct of all striking employees
and not the
respondent employees alone. However, i
n
concluding that dismissal was too harsh a sanction to be imposed on
the respondent employees, in my view the Labour Court did
not have
appropriate regard to the fact that the unprotected strike action was
embarked upon in a critical business period; the
final ultimatum had
been issued calling on the respondent employees to return to work;
the final ultimatum had been extended to
provide the respondent
employees with additional time within which to comply with it; the
final ultimatum was ignored by the respondent
employees with no
bona
fide
reason
put up to explain why this was so; that no remorse was shown for this
conduct by the respondent employees; and to the conduct
of the
respondent employees at the disciplinary hearing.
[30]
The
facts showed that the respondents displayed a blatant disregard for
the authority of the appellant as employer without regard
to the
consequences of their actions on either the business of the employer
or the employment relationship
.
The fact that the strike had continued for a further 1½ days
was not a sufficiently material fact to warrant weighing
considerations
of fairness in favour of the respondents or to justify
a finding that the dismissal of the second respondents was unfair
when regard
was had to the totality of factors placed before the
Labour Court. Having regard to all such factors, the sanction of
dismissal
imposed on the respondent employees by the appellant was,
in my mind, fair given their decision to embark on unprotected strike
action at a critical business period and their persistent refusal,
without
bona
fide
reason provided, to comply with the repeated ultimata given to them
to return to work.
[31]
It
f
ollows
for these reasons that the appeal must succeed. There is no reason in
law or fairness why costs should not follow the result.
Order
[32]
In
the result, the following order is made:
1.
The
appeal succeeds with costs.
2.
The
order of the Labour Court is set aside and substituted as follows:
‘
1.
The dismissal of the applicants was fair.’
___________________
SAVAGE AJA
Coppin JA and
Sutherland JA agree.
APPEARANCES:
FOR APPELLANT:
Mr
A C Oosthuizen SC
Instructed by
Werksmans Attorneys
FOR RESPONDENTS:
Mr P Benjamin (heads prepared by Mr J G van
der Riet SC)
Instructed by
Cheadle Thompson & Haysom
[1]
With
reference to
TGWU
and others v De la Rey’s Transport (Pty) Ltd
(1999) 20 ILJ 2731(LC);
STEMCWU
and Others v Brano Industries (Pty) Ltd
(2000) 21 ILJ 666 (LC).
[2]
(2016)
37 ILJ 2610 (LAC) at paras 27-28.
[3]
(1995)
3 BLLR 121
(IC) at 157D.
[4]
(1999)
20 ILJ 217 (SCA) at para 13.
[5]
(1996)
1 BLLR 13
(LAC) at 18H0J, 21F and 21I-J.
[6]
Code
of Good Practice: Dismissal (Schedule 8 to the LRA).
[7]
Section
68(5) states as follows: ‘
(5) Participation
in a
strike
that
does not comply with the provisions of this Chapter, or conduct in
contemplation or in furtherance of that
strike
,
may constitute a fair reason for
dismissal
.
In determining whether or not the
dismissal
is
fair, the Code of Good Practice: Dismissal in
Schedule
8
must
be taken into account.’
[8]
NUMSA
v CBI Electric African Cables
[2014] 1 BLLR 31 (LAC).
[9]
Code
of Good Practice: Dismissal (Schedule 8);
Mndebele
(
supra
at note 2) at para 28.
[10]
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[2016]
2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ
2485 (CC) at para 50;
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union and Others
[1993]
1994 (2) SA 204 (A) at 216E.
[11]
Ibid.
See
too
SA
Clothing and Textile Workers Union and Others v Berg River Textiles
– A Division of Seardel Group Trading (Pty) Ltd
(2012)
33
ILJ
972
(LC) at para 30 and
Triple
Anchor Motors (Pty) Ltd and Another v Buthelezi and Others
(1999)
20 ILJ 1527 (LAC).
[12]
Mndebele
op
cit.
(see
note 2) at para 34.
[13]
(
2014)
35 ILJ 642 (LAC).
[14]
Cape
Town City Council v Masitho and Others
(2000)
21 ILJ 1957 (LAC) at para 12.
[15]
Gcwensha
v CCMA and Others
[2006]
3 BLLR 234
(LAC)
at para 36. See too
Irvin
& Johnson
(1999)
20 ILJ 2302 (LAC) at para 29.
[16]
Chemical Energy Paper
Printing Wood & Allied Workers Union and Others v Metrofile
(Pty) Limited
(2004)
25 ILJ 231 (LAC)
at
paras 36-37;
National
Union Metalworkers of SA v Haggie Rand Ltd
(1991)
12 ILJ 1022 (LAC) 1029G-H.
[17]
National Union of
Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd
(1994)
15 ILJ 1257 (A) at 1264A-D;
SACCAWU
and Others v Irvin & Johnson (Pty) Ltd
(1999) 20 ILJ 2302 (
LAC)
at para 29;
Cape
Town Council v Masitho and Others
(2000) 21 ILJ 1957 (LAC) at para 14.
[18]
Op
cit
(see
note 16).
[19]
Metrofile
(ibid)
at
para 38 quoting
Cape
Town City Council v Masitho and Others
op
cit.
(see
note 17) at 1961A.
[20]
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC)
at
para 79.
[21]
TAWUSA
(op cit)
at
para 50. See too
Fidelity
Cash Management Service v CCMA and Others
(2008)
29 ILJ 964;
National
Union of Mineworkers v Black Mountain Mineral Development Co (Pty)
Ltd
(1997)
18
ILJ
439
(SCA);
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and
Others
1996 (4) SA 577 (A);
(1996) 17
ILJ
455
(A);
Triple
Anchor Motors (Pty) Ltd v Buthelezi
(1999) 20 ILJ 1527 (LAC);
Mzeku
and others v Volkswagen SA (Pty) Ltd
(2001)
22 ILJ 1575 (LAC).
[22]
2003
(3) SA 1
(CC)
at 589 C–D.
[23]
At
para 40.