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[2019] ZALAC 32
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Minister of Justice and Correctional Services and Others v Tshifhango and Another (JA63/2017) [2019] ZALAC 32; [2019] 7 BLLR 627 (LAC); (2019) 40 ILJ 1773 (LAC) (13 March 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA63/2017
In
the matter between:
MINISTER OF JUSTICE
AND
CORRECTIONAL SERVICES
First
Appellant
THE DIRECTOR GENERAL:
JUSTICE
AND CORRECTIONAL DEVELOPMENT
Second Appellant
THE GAUTENG REGIONAL
HEAD: JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
Third Appellant
THE ACTING DIRECTOR
HUMAN RESOURCES:
JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Fourth Appellant
and
TSAKANI
ISABEL TSHIFHANGO
First Respondent
ELIZABETH
KUKI MAKHONDO
Second Respondent
Heard:
22 February 2018
Delivered:
13 March 2019
Coram:
Waglay JP, Phatshoane ADJP and Savage AJA
JUDGMENT
PHATSHOANE
ADJP
[1]
This is an appeal against the judgment and order of the Labour Court
(Prinsloo J)
delivered on 23 March 2017 reviewing and setting aside
the decision to downgrade Ms TI Tshifhango and Ms EK Makhondo, the
first
and second respondents (“the respondents”) from
salary level 8 to salary level 7 and ordering the Minister of Justice
and Constitutional Development, the Director General of Justice and
Constitutional Development, the Regional Head of Justice and
Constitutional Development and the Acting Director Human Resources of
Justice and Constitutional Development, the first to the
fourth
appellants (“the appellants”), to provide the respondents
with reasons for the downgrade of their salary level;
including
affording them an opportunity to make submissions; and considering
them. The appeal is with leave of the Court
a
quo.
[2]
The litigation has a chequered history characterised by several
referrals to various
fora for resolution. Initially, the respondents
approached both the High Court and the Labour Court on 03 and 05 June
2015 for
an order interdicting the appellants from implementing the
downgrade of their salary levels pending the respondents’
exhaustion
of internal remedies. Their applications were struck from
the roll for lack of jurisdiction and urgency, respectively. They
then
lodged their dispute with the General Public Service Sector
Bargaining Council (“GPSSBC”) and later the Public
Service
Coordinating Bargaining Council (“PSCBC”). They
also explored domestic grievance procedures at the workplace but
their
dispute could not be resolved.
[3]
In the end, the respondents launched the present application in terms
of s158 (1)(h)
of the Labour Relations Act, 66 of 1995 (“the
LRA”) seeking,
inter alia
,
to review and set aside the appellants’ decision to downgrade
them from salary level 8 to level 7 and to reinstate them
to salary
level 8 which they deemed their appropriate salary level notch. The
outcome of this application is the subject of this
appeal.
The
factual background
[4]
The respondents were employed as administrative officers on salary
level 7 by the
Department of Justice and Constitutional Development
“the department”. During February 2004, the department
embarked
on a Job evaluations process. Premised on the results of
this process, the first respondent’s salary level was upgraded
from
level 7 to 8 on 15 December 2010 and backdated to 27 August 2008
while that of the second respondent was upgraded from salary level
7
to 8 on 01 December 2012 when she was transferred from Mpumalanga to
Gauteng Regional Office.
[5]
The controversy emerged few years later, during May 2015, when the
respondents were
informed, in the course of the staff meetings that
were held on 13 and 22 May 2015, respectively, that the department
made an error
in upgrading their posts from salary level 7 to 8 and
that they were to be downgraded with immediate effect. In the letters
dated
21 May 2015, which they received from the department on 22 May
2015 they were notified:
‘
(T)he
Regional office Gauteng Human Resources Division has received an
instruction from the Chief Operation Officer at National
Office that
the position that you are currently occupying has been job evaluated
on salary level seven (7) and has been approved
as such.
Kindly be informed that
you have been wrongly upgraded from salary level seven (7) to salary
level eight (8) and therefore you will
be downgraded to the correct
salary level.
The downgrade will be
implemented on persal from 01 June 2015.
Further
be advised that [the] overpayment of [the] salary made to you from
date that you have been upgraded will be recovered in
line with
section 38 of the Public Service Act.’
[6]
The respondents explained that there were other employees similarly
circumstanced
who were never downgraded after the alleged error was
discovered. They made further wide-ranging claims of unfair
discrimination;
unfair labour practice; and unilateral changes to the
terms and conditions of their employment. For present purposes, it is
not
necessary to traverse those issues. At the heart of their
contestation is that they had been on salary level 8 for a period of
approximately seven and four years, respectively, and had not been
consulted by the appellants on the planned downgrading. They
claim to
have reasonably expected to acquire and/or retain salary level 8.
[7]
In defence of the claims made by the respondents, the appellants
filed papers which
raise disputes of fact. I will revert to this
aspect. For present purposes, it suffices to say that they aver that
the respondents’
salary upgrades were effected pursuant to an
administrative error made at the Gauteng regional offices. The
upgrade did not arise
as a consequence of the job evaluation exercise
but was in conflict with the outcome of that process. They explained
that an error
may have occurred following the outcome of the job
evaluation exercise performed in relation to administrative officers
in the
employ of the Magistrate’s Courts and/or in the Office
of the Master of the High Court. The latter jobs had been evaluated
and approved on salary level 8 on 27 August 2008 in terms of an
internal Memorandum dated 21 August 2008 headed: “Job
Evaluation
of 44 Vacant Funded Posts of Administrative Officers on
the approved establishment of the Office of the Magistrate’s
Courts.
The appellants contend that the process of evaluating these
Jobs at salary level 8 did not apply to other administrative officers
who were not employed in the Magistrate’s Courts and the Office
of the Master such as the respondents
in
casu
.
[8]
The appellants refuted the respondents’ allegation that there
were employees
similarly situated who were on salary level 8 and
intimated, insofar as there might be employees who continue to occupy
administrative
posts on salary level 8 other than those engaged in
the services of the Magistrate’s Courts and the Offices of
Master, that
would be an error which ought to be corrected.
[9]
Purporting to act pursuant to s38 (1)(a) of the
Public
Service Act, 1994
[1]
(“the
Act”),
the
appellants say that the department sought to correct the respondents’
salary level back to 7 and to recover the amount
of money overpaid to
them. This action raised the ire of the respondents and precipitated
this litigation.
The
statutory framework
[10]
In terms of s 37(1) of the Act:
‘
(1) Employees
shall be paid the salaries and allowances in accordance with the
salary scale and salary level determined by the Minister
in terms of
section 3(5).’
[11]
Section 3(5) (
a
) provides:
‘
Subject to the
Labour Relations Act and
any collective agreement, the Minister may
make determinations regarding any conditions of service of employees
generally or categories
of employees, including determinations
regarding a salary scale for all employees or salary scales for
particular categories of
employees and allowances for particular
categories of employees.’
[12]
Section 38
stipulates:
‘
(1) (
a
)
If an incorrect salary, salary level, salary scale or reward is
awarded to an employee, the relevant executive authority
shall
correct it with effect from the date on which it commenced.
(
b
)
Paragraph (
a
) shall apply notwithstanding the fact that the
employee concerned was unaware that an error had been made in the
case where the
correction amounts to a reduction of his or her
salary.
(2)
If an employee contemplated in subsection (1) has in respect of his
or her salary,
including any portion of any allowance or other
remuneration or any other benefit calculated on his or her basic
salary or salary
scale or awarded to him or her by reason of his or
her basic salary—
(
a
)
been underpaid, an amount equal to the amount of the underpayment
shall be paid to him
or her, and that other benefit which he or she
did not receive, shall be awarded to him or her as from a current
date; or
(
b
)
been overpaid or received any such other benefit not due to him or
her—
(i)
an amount equal to the amount of the overpayment shall be recovered
from him
or her by way of the deduction from his or her salary of
such instalments as the relevant accounting officer may determine if
he
or she is in the service of the State, or, if he or she is not so
in service, by way of deduction from any moneys owing to him or
her
by the State, or by way of legal proceedings, or partly in the former
manner and partly in the latter manner;
(ii)
that other benefit shall be discontinued or withdrawn as from a
current date, but
the employee concerned shall have the right to be
compensated by the State for any patrimonial loss which he or she has
suffered
or will suffer as a result of that discontinuation or
withdrawal.
(3)
The accounting officer of the relevant department may remit the
amount of an overpayment
to be recovered in terms of subsection
(2) (
b
) in whole or in part.’
The
Judgment of the Court
a quo
[13]
The Court
a quo
was satisfied that, in terms of s38(1)(a) of
the Act, where an incorrect salary level, scale or reward is awarded
to an employee,
the consequence is that the relevant executing
authority is obliged to correct it and no discretion is exercised in
that regard.
However, it found that there was a decision that had
been made or action taken by the appellants because a determination
of whether
an incorrect salary level, scale or reward was awarded to
an employee must be preceded by some form of assessment or an
investigation.
The power bestowed upon the executing authority by s
38 of the Act had to be exercised within the ambit of the principle
of legality,
fairness, rationality and reasonableness.
[14]
The Court
a quo
further found that any action taken prior to
the implementation of s38 must be procedurally fair. This would
entail,
inter alia
, affording the individuals, whose rights or
benefits stood to be adversely affected, the opportunity to be heard.
It reasoned that
the respondents were not apprised that the
downgrading of their salary levels was being considered; they were
not provided with
reasons for the downgrade; and afforded the
opportunity to make representation before the decision by the
department, to correct
their purported erroneous salary grading, was
put into effect.
[15]
The Court
a quo
was disinclined to restore the
status quo
ante
or determine whether the respondents were correctly or
incorrectly graded on salary level 7. It was of the view that this
question
had to be resolved internally upon consideration of all the
facts including the respondent’s representation and the
applicable
prescripts. As already alluded to, it reviewed and set
aside the decision to downgrade the respondents’ salary level
from
level 8 to 7 and fashioned an order in terms of which the
appellants had to: provide reasons for the downgrade to the
respondents;
evaluate and consider their representations; and
determine whether they were awarded an incorrect salary level that
required correction.
The
grounds of appeal
[16]
Before us, in
summary, it was contended
that:
16.1
The Court
a quo
erred in not finding that the “decision”
to downgrade the respondents’ salary level from 8 to 7 involved
“no
decision at all” but was purely mechanical and aimed
at determining whether there was an error and if so to implement s38
of the Act;
16.2
On the basis of the
Plascon
Evan
Rule
[2]
the Court
a
quo
was
bound to accept the appellants’ version, (as the respondents in
the Court
a
quo
)
and grant them the relief they sought;
16.3
The Court
a quo
erred in holding that: (1) when exercising a
power in terms of s38 of the Act, the executing authority takes a
decision which involves
establishing whether an incorrect salary
level, scale or reward had in fact been awarded to an employee; and
(2) that the decision-making
process had to be effected reasonably
and within the confines of the principle of legality, fairness,
rationality, and had to comply
with a fair procedure;
16.4
Contrary to what had been found by the Court
a quo
the
principle of legality did not require a functionary to act in a
manner that was procedurally fair;
16.5
The Job evaluation exercise was a process that was determined and
implemented at a high
level from which the employees were completely
divorced. The respondents were therefore not in a position to make
any meaningful
contribution. Whether there was an error in the
grading of the posts was an objective enquiry and not dependent upon
any input
from the respondents; and lastly
16.6
The Court
a quo
erred in finding that “
it cannot be
”
that the respondents had no recourse if the application of s38 of the
Act was triggered by mistake.
The
evaluation
[17]
This appeal mainly revolves around the construction placed on
s38(1)(a) of the Act by the Court
a quo
. Predicated on this is
the question whether on a proper interpretation of s38(1)(a) the
respondents were entitled to a hearing
before the correction of the
error by the executing authority.
[18]
T
he
present state of the law concerning interpretation, in general, was
expressed in these terms in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The 'inevitable
point of departure is the language of the provision itself', read in
context and having regard to the purpose
of the provision and the
background to the preparation and production of the document.’
[19]
Section 38(1)(a)(b) is narrowly focused on the correction of an
incorrect salary, salary level,
salary scale or reward awarded to an
employee. The language used in s38(1)(a) is clear and the intention
plain: insofar as an incorrect
salary, salary level, salary scale or
reward is awarded to an employee, the relevant executive authority is
bound to make the correction
with effect from the date on which it
commenced. This much is unambiguous. A plain reading of the provision
says nothing about
any consultation or hearing that ought to be
afforded to an employee prior to the correction of the incorrect
salary level. There
could be no reason for reading in words to
qualify the unambiguous text. Apparent from s38(1)(b) the correction
shall be effected
notwithstanding the fact that the employee
concerned was unaware that an error had been made in the case where
the correction amounts
to a reduction of his or her salary. Seen in
this context, no amount of representations the respondents could have
made would have
had any impact on the decision to be taken. In my
view, s38(1)(a) ought not to be interpreted in a manner that
restricts the State’s
right to correct an incorrect salary
level. Section 38(1)(a) was designed to remove any discretion that
the executing authority
may otherwise have enjoyed. His or her
obligation to correct an incorrect salary level or salary scale, with
effect from the date
when it commenced, arises by operation of law.
[20]
The Court
a quo
erred in basing its finding, that there ought
to have been a hearing prior to the correction of the respondents’
salary level,
on the principle of legality. The doctrine does not
itself require a functionary to afford a person a hearing; what it
requires
is for the functionary to abide by the law. If on one hand a
statute or other law requires the functionary to afford the subject
a
hearing, then the doctrine of legality requires that functionary to
act in accordance with that statute. If on the other the
statute is
silent or does not require a functionary to afford the subject a
hearing the doctrine of legality will not impose such
an obligation.
I am not persuaded that the executing authority misconceived his
power and/or acted irregularly in not observing
the
audi
principle in the circumstances where the statutory provision makes no
room for this. The Court
a quo
erred in concluding that the
power bestowed upon the executing authority by s38 of the Act had to
be exercised within the ambit
of the principle of legality, fairness,
rationality and reasonableness.
[21]
Properly distilled and ancillary to the question whether the
respondents were entitled to a hearing
before a decision to downgrade
their post levels is the question whether an error had occurred in
the determination made pursuant
to s3(5) read with s37 of the Act.
The respondents did not pertinently raise the issue whether there had
been an error in the upgrading
or downgrading of their salary level
in their papers.
There are disputes of fact on
this aspect and on the reasons provided by the department for having
upgraded the respondents’
salary level to level 8. The parties
rely on completely different memoranda in support of their respective
stances.
[22]
The respondents contended that nothing triggered the application of
s38 by the executing authority
because the upgrade of their salary
level to level 8 was not erroneously effected. According to them, the
upgrade had its genesis
in the outcome of the Job evaluation results
which were approved on 27 August 2008 for the
Regional
Offices and Courts
in respect of
various posts which included the posts they occupied. They sought to
find support for their argument in a memorandum
dated 09 February
2010 which requested the Deputy Director General: Corporate Services
to approve the uniform implementation of
the already approved job
evaluation results for posts on the establishment of the ‘
Regional
Offices
and
Courts
in the regions’
where such
implementation had not been effected. They further rely on a
memorandum dated 04 June 2010 from Corporate Services:
CFO-Chief
Directorate Budgets, the purpose of which was to source funds from
identified savings on the department’s budget
in order to
implement the approved job evaluation results on the establishment of
various ‘
Regional Offices and
Courts
.’
[23]
Juxtaposed against the respondent’s argument is the appellants’
contention that the
respondents’ salary level was fortuitously
upgraded to salary level 8. This conclusion, they contended, is
founded on a memorandum
dated 12 February 2008 headed “Job
Evaluation of Posts in the Directorate Organisational Development”
which records
that the posts of Assistant Director: Employee
Assistant Programme; Assistant Director: Employment Equity; and
Administrative Officer
were subjected to the Job Evaluation process.
These jobs were graded in terms of the EQUATE Job Evaluation System
and presented
to the Job Evaluation Panel on 11 February 2008 for
consideration. In terms of this memorandum, the job of an
Administrative officer
was graded at salary level “6+”
but it was recommended that it be graded on salary level 7. The
appellants say that
the respondents fell into the latter category.
The recommendations of the Job Evaluation Panel that they be placed
on salary level
7 were supported by the Director: Business Process
Improvement and the Acting Chief Director: Value Added Services and
accepted
on 19 February 2008 by the Director General.
[24]
As support for their case that there had been an error in upgrading
the respondents’ salary
level to 8, the appellants further
sought to rely on the memorandum of 21 August 2008 which was issued
during the same period in
respect of which the respondents aver the
job evaluation results upgrading their level to 8 were approved. This
memorandum unequivocally
relates to the job evaluation results of 44
vacant funded posts of administrative officers on the approved
establishment of the
Magistrate’s Courts. It is axiomatic that
in terms of this memorandum, the salary level of administration
officers in the
Office of the Master and in the Magistrate’s
Court were evaluated at salary level 8.
[25]
Mr Hulley, for the appellants, contended that the memorandum dated 09
February 2010, which is
relied upon by the respondents as support
that their salary levels were evaluated at level 8, failed to
correctly distinguish between
different categories of administration
officers, identified in the department’s memoranda of September
2006; February and
August 2008, being administration officers in the
Offices of the Master and the Magistrate’s Courts.
[26]
In terms of the
well-
established
Plascon-Evans
rule,
where in motion proceedings disputes of fact arise on the affidavits,
a final order can be granted only if the facts averred
in the
applicant’s affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order.
[4]
The application
procedure was not designed to resolve the material factual impasse
elicited on the papers which, in my view, ought
to have been resolved
through the leading of oral evidence and require factual resolution.
A litigant who elects to proceed on
motion runs the risk that
disputes of fact may arise. Where it is clear that the dispute is not
resoluble on the papers
a
Court may,
inter
alia
,
dismiss the application.
As
already alluded to, the Court
a
quo
was
disinclined to determine whether the respondents were correctly or
incorrectly graded on salary level 7, an issue at the heart
of the
contestations between the parties. In my view, the Court
a
quo
ought to have dealt with the disputes of fact under the prism of the
Plascon
Evans
Rule. It, therefore, erred in fashioning the order as it did,
directing amongst others, that the appellants determine whether the
respondents were awarded an incorrect salary level that required
correction. It ought to have dismissed the application.
[27]
One pertinent aspect of this case which merits attention is the
recovery of the overpayments
purportedly made to the respondents
following the erroneous grading of their salary levels. It is a
weighty consideration that
the respondents had been on salary level 8
for a period of approximately seven and five years, respectively, and
enjoying benefits
concomitant to the level in question.
Ex facie
the letters notifying the respondents that they were incorrectly
graded, they were also informed that the recovery of the overpayment
would be effected in accordance with s38 of the Act. The correction
of their salary level has an effect of changing their conditions
of
services and negatively impacts on their livelihoods and financial
commitments.
[28]
Section 38(2)(b)(i) of the Act which empowers the State, as an
employer, to recover monies wrongly
paid to its employees directly
from their salaries without due process or agreement was declared
unconstitutional in
Public
Servants Association on behalf of Ubogu v Head of the Department of
Health, Gauteng and Others
[5]
(“
PSA
obo Ubogu
”).
The following ratio for the decision is apposite
[6]
:
‘
[65] The effect of
the provision is to impose strict liability on an employee. The
deductions may be made without the employee concerned
making
representations about her liability and even her ability to pay the
instalments. The impugned provision also impermissibly
allows an
accounting officer unrestrained power to determine, unilaterally, the
instalments without an agreement with an employee
in terms of which
the overpayment may be liquidated.
[66] Section 38(2)(b)(i)
undermines a deeper principle underlying our democratic order. The
deductions in terms of that provision
constitute an unfettered
self-help − the taking of the law by the State into its own
hands and enabling it to become the
judge in its own cause, in
violation of section 1(c) of the Constitution. Self-help, as this
Court held in
Chief Lesapo
, “is inimical to a society in
which the rule of law prevails, as envisaged in section 1(c) of our
Constitution.” Although
there may be circumstances when good
reasons exist − justifying self-help − this is however
not a case of that kind.
[67] By aiding self-help,
the impugned provision allows the State to undermine judicial process
− which requires disputes
be resolved by law as envisaged in
section 34 of the Constitution. This provision does not only
guarantee access to courts
but also safeguards the right to have a
dispute resolved by the application of law in a fair hearing before
an independent and
impartial tribunal or forum. It is not
insignificant that section 31 of the Act envisages recovery of money,
in the case of unauthorised
remuneration, “by way of legal
proceedings”. The Minister of Public Service argues that
Ms Ubogu’s section
34 right was not violated because that
protection applies only to disputes that are capable of resolution by
application of law.
This contention is flawed. The Minister does not
explain why the existing dispute was not capable of resolution by the
application
of law in a fair public hearing before a court. The
mechanism through section 38(2)(b)(i), as currently formulated, is
clearly
unfair. It promotes self-help and imposes strict liability on
an employee in respect of overpayment irrespective of whether the
employee can afford the arbitrarily determined instalments and was
afforded an opportunity for legal redress.
[68] On those bases,
section 38(2)(b)(i) does not pass constitutional muster.’
[29]
The decision in
PSA
obo Ubogu
is
instructive that an employee is entitled to a hearing before a
decision is taken in respect of the manner in which an employee
would
have to reimburse the employer for the overpayments made consequent
upon an incorrect salary grading. In
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council and Others,
[7]
this Court remarked that it is implicit in the purpose of the s38 of
the Act read as a whole that the exercise of a power conferred
upon
the executing authority by the section had to be exercised
reasonably.
[30]
There can be no rational basis, in respect of the planned
reimbursement of the alleged overpayment,
for the appellants not to
afford the respondents an opportunity to make representation and/or
participate in the decision that
may adversely affect them. More
importantly, this would provide to the respondents a platform to
influence the outcome of the decision
and prevent the unfettered
self-help.
[31]
To recapitulate, s38(1)(a) was designed to remove any discretion that
the executing authority
may otherwise have enjoyed when correcting an
incorrect salary, salary level, salary scale or reward. His or her
obligation to
correct an incorrect salary level or salary scale, with
effect from the date when it commenced, arises by operation of law.
On
the question whether there had been an error in the upgrading or
downgrading of the respondents’ salary levels, insofar as
there
were material disputes of fact not resoluble on the papers as they
stood, the Court
a quo
erred in not dismissing the
application. Its order falls to be set aside.
[32]
I am satisfied that the requirements of law and fairness do not
justify an order as to costs
due to an ongoing employment
relationship between the parties. In the result, I make the following
order.
Order
1.
The
appeal is upheld;
2.
The order of the Court
a
quo
is set aside and substituted with
the following:
“
1.
The application is dismissed.
2.
No order is made as to costs.”
_________________________
MV Phatshoane
Acting
Deputy Judge President
Waglay
JP and Savage AJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR
THE FIRST TO THE FOURTH APPELLANTS: Adv Hurley SC
Instructed
by the State Attorneys
FOR THE FIRST AND SECOND
RESPONDENTS: Ms TI Tshifhango and
Ms
EK Makhondo (in person)
[1]
Proclamation No 103 of 1994.
[2]
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Lt
d
1984 (3) SA 623 (A).
[3]
2012 (4) SA 593
(SCA).
[4]
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Lt
d
1984 (3) SA 623 (A).
[5]
(2018) 39 ILJ 337 (CC).
[6]
At 357H – 359C paras 65-68.
[7]
[2014] 10 BLLR 987
(LAC) at 996 para 29