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[2009] ZALCD 25
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Govender v Independent Newspapers KwaZulu-Natal (D260/05) [2009] ZALCD 25 (9 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
D260/05
In
the matter between:
MANICKUM
GOVENDER
APPLICANT
And
INDEPENDENT
NEWSPAPERS
KWAZULU-NATAL
RESPONDENT
JUDGMENT
Cele
J
Introduction
:
1.
This is a claim of unfair dismissal of the applicant based on the
operational requirements of the respondent. The respondent
in its
capacity as the erstwhile employer of the applicant opposed the
claim.
Background
Facts
2.
The applicant commenced employment with the respondent in 1980 as a
casual employee. On 1 July 1985 he was permanently employed
as a
General Assistant in the Publishing Department. He joined the South
African Typographical Union (SATU), a union which operated
within the
respondent’s business together with two other unions being
MWASA and CEPPWAWU. He worked in various positions
within the
respondent but in 2003-2004 he was working in the machine room,
making posters for advertisements.
3.
In November 2003 the respondent represented by its Human Resources
Manager, Ms Rogany, held an informal meeting with the regional
shop
stewards of the unions operating in business. Ms Rogany informed the
shop stewards that there was a possibility of a restructure
to take
place in the Production Department of the respondent. A second
meeting was held on 16 January 2004, attended also by the
shop
stewards’ regional co-ordinators. It still pertained to the
possible restructuring at the respondent. In that meeting
the
respondent issued notices in terms of section 189 of the Labour
Relations Act 66 of 1995 (“the Act”) and served
them on
all the unions. The first consultation meeting was held on 6 February
2004. On 28 January 2004 the respondent sent out
a letter to the
unions setting out the proposals that had been made at the meeting of
21 January 2004. A further consultative meeting
was held on 6
February 2004. An agreement was then reached on 26 February 2004
between the respondent and all union representatives,
including
applicant’s union, in relation to the retrenchment of some of
the employees by the respondent. The settlement agreement
reached was
however reduced to writing and signed by all parties thereto on 11
March 2004. The relevant part of the agreement reads:
“
The
conditions contained in this agreement apply only to full-time,
permanent members of staff (both union and non-union) who are
affected by this restructure process in terms of section 189 (A) of
the LRA. It is agreed that the following categories and number
of
staff were affected by the restructure which subsequently led to
their retrenchment.
Production: 110
·
Factory Aids, Platemakers, General Assistants, Inserters
Circulation: 80
·
Van Assistants
·
Publishing
·
Workshop
·
Subscriptions
·
Drivers
Advertising: 2
·
DTP/Ad Production
…
.
…
.
…
.
·
The company agrees that the union representatives will be introduced
to
the outsourcing company.
·
The company confirms that the six drivers being retrenched on a
voluntary
basis will not be replaced as their positions are entirely
redundant and the company will provide the union concerned with the
names of the affected drivers.
·
The company agrees to provide the relevant union with the names of
the
staff whose positions are declared entirely redundant
…
.
…
.
…
.
…
.
·
It is recorded that the union representatives were mandated by their
members
to accept this agreement.
…
.”
4.
The issues which the court is required to decide pertain to the
substantive fairness of the dismissal. At the commencement of
the
trial, issues around procedural fairness were abandoned by the
applicant. In respect of substantive fairness the issues are
whether:
Ø The
applicant was at all material times employed as a Printer’s
Assistant as opposed to a General Assistant
in the works room.
Ø The
functions that were performed by the applicant were:-
(a)
retained as part of the business of the respondent thereby rendering
the retrenchment of the applicant as part of
restructuring in which
the respondent was engaged, unnecessary, or
(b)
outsourced as a contract function in terms of the restructure
exercise, in accordance with the agreement concluded
with the
applicant’s union.
Ø The
respondent:-
(a)
failed to properly consider alternatives to the dismissal of the
applicant for operational reasons, which dismissal
was not reasonably
necessarily required as part of the respondent’s restructuring,
or
(b)
addressed all issues contemplated in terms of the Labour Relations
act and raised by the SATU in its capacity as
the applicant’s
representative.
Ø The
court can order re-instatement in circumstances where the respondent
contends that the applicant has accepted
that his functions were
outsourced.
5.
There are preliminary points which were raised by the respondent in
the form of special pleas. Their resolution was made dependent
on the
evidence which was to be led by the parties. Such points are that:-
1. (a)
any dispute between the parties in relation to the retrenchment of
the applicant
was settled by means of an agreement concluded, inter
alia, between the respondent and SATU on or about 11 March 2004;
(b) the applicant
was employed as a General Assistant Publishing in the works room and
formed part of the employment categories
to which the agreement
applies;
(c) the applicant
was a member of SATU and this retrenchment was pursuant to the terms
of the afore mentioned agreement;
(d) the applicant
is bound by the agreement concluded with his union and is not
entitled to pursue any claim pertaining to his retrenchment.
2. SATU should have
been joined in these proceedings. As a consequence of non-joinder the
claim falls to be dismissed.
The
Trial
6.
The Production Director of the respondent, Mr Niles Reinertsen and
the Press Captain and Trade Training instructor, Mr David
Crawford
were called as witnesses for the respondent while the applicant was
the only witness for his case. The respondent had
to prove the
fairness of the reason underlying the dismissal of the applicant due
to its operational requirements.
The
respondent’s version
7.
The core business of the respondent was the production, printing and
distribution of newspapers. According to international standards
most
companies outsourced the workroom as it was not the core business of
newspaper companies. The inserting process could be done
mechanically
or it could be outsourced. In 2004 the respondent found it necessary
to have to reduce the cost base of its business.
It decided against
the retention of its unqualified staff employed as General Assistants
so as to focus on its core business. Various
meetings were then held
with all the unions operating in its business. The unions were
initially opposed to the outsourcing of
the non core business of the
respondent. Mr Reinersten attended one of the meetings with union
representatives to give an explanation
on some of the issues that had
been raised. In that meeting, held on 6 February 2004, he explained
that the staff deployed in the
work room otherwise known as
publishing were all classified as general workers and all were
affected by the restructuring. They
were graded B1 as opposed to the
supervisor and charge hand who were graded B5 and B3 respectively. He
explained that out of 11
supervisors and charge hands 8 would be
retrenched. 192 general assistants were to be retrenched consisting
of 110 from the Production,
80 from the Circulation and 2 from
Advertising sections.
8.
Various addressed were made on behalf of the respondent by its Press
Room Managers and joint communiqués were issued to
explain to
the staff the nature of the retrenchment. Various notices were also
placed on the notice boards by the Unions for the
information of
their members pertaining to the retrenchment.
9.
The respondent had initially been against the idea of seeking
services of an external facilitator from the Commission for
Conciliation,
Mediation and Arbitration (CCMA). Upon the insistence
of the unions, a Ms Patel was appointed to facilitate the process.
10.
In 2004 the applicant worked at the machine room specifically making
posters for advertisements. Every shift in the respondent’s
business was controlled by a supervisor or a Press Captain or leading
hands who were all called Machine Minders. As the applicant
was
unqualified he was not a journeyman or Machine Minder. To qualify as
a journeyman, he had to go through an apprenticeship,
be tested and
to pass the set requirements. Mr Reinertsen did have a discussion
with a Press Room Manager to have the applicant
undergoing
apprenticeship. The applicant had to agree to take a salary cut for
that training. The training was often taken by the
staff who came
young into the work and would then go through it. The applicant did
not undergo that training and was therefore
unqualified. He had not
even lodged any dispute about his grading with the CCMA. His job
title was that of a Printer’s Assistant
who made posters but
did not produce newspapers. The process for the production of
newspapers was different from that used in the
production of the
posters. A high speed printing process was used for producing
newspapers but not for posters.
11.
Mr Crawford attended all meetings which the unions had with the
respondent. He was one of the representatives for SATU. He even
signed the agreement dated 11 March 2004 and did so on behalf of SATU
and as its witness, assisting Mr Myburgh, also of SATU.
According to him all staff that were to be affected by the
retrenchment were described in a meeting of 6 February 2004. Mr
Reinersten
described affected employees as those who were
unqualified. He would not understand why that description was not
used in the minutes
of that day. After every meeting the unions had
with the respondent, SATU would convene a meeting and representatives
would report
back to the members. Mr Crawford was not able to tell if
the applicant attended all such meetings.
12.
Mr Crawford remembered being approached by the applicant sometime
before the agreement of 11 March 2004 was signed. The applicant
told
him that he was concerned that he was a Machine Minder but was going
to be outsourced. He asked the applicant to produce papers
for his
qualification but he failed as he was not qualified. When asked what
qualifications the applicant had, he said to him that
he had no
papers. He was then told that there was nothing which the union could
help him with. Nor could he prefer him over all
the other unqualified
members. He then told the applicant to follow whatever agreement
would be reached with the respondent. There
was no lack of clarity
that he was going to be affected as one of the 110 employees in the
Production Section to be retrenched.
13.
As a Trade Training instructor, Mr Crawford looked after all the
training within KwaZulu-Natal in his field and he looked after
all
apprentices. As a Press Captain, he was also a Machine Minder. To
qualify as a machine minder, a candidate had to undergo a
four year
apprenticeship which involved a study of all modules and the passing
of a practical test called a Trade Test. The apprenticeship
was
referred to as an N course or a T/1/2/3. According to him the
applicant had never attempted the apprenticeship under him and
was
therefore not an apprentice.
14.
During the consultation process the employees were offered to stay in
the company if they wanted to but that they would have
to under
contract. All unions preferred outsourcing because they were told it
was lawful and could not be stopped. Union members
voted in favour of
outsourcing and representatives were authorised to sign the
settlement agreement.
15.
The respondent used what was known as the Peterson Grading to
categorise different levels of its employees. According to Mr
Crawford that grading was used more for salary ratings as Grade 1 and
Grade 2 were also used. The staff under Grade 1 were the
qualified
and those in Grade 2 were unqualified. The applicant fell under Grade
2 as he was not possessed of any scarce skills.
Even if the applicant
may have passed some modules, he would not be qualified until he
passed the Trade Test. The fact that he
may have had some staff
working under him at the time of retrenchment did not mean that he
was a supervisor or that he was qualified.
16.
The work which had been done by the applicant was then done by a
person known as Derick, through an outsourced company. Derick
was a
Machine Minder who, in addition, was doing commercial printing which
had not been done by the applicant.
17.
The employment termination letter of the applicant was dated 12 March
2004. Thereafter he never approached any of the union
representatives. The severance pay was therefore given to him in cash
as he had requested. On 18 March 2004 the applicant issued
a written
request, advising the respondent, that his pension fund benefits were
to be paid to him in cash. On 7 May 2004 an amount
of R 97 573,13 was
paid out to the applicant as a retrenchment benefit effective from 31
March 2004, by means of a cheque. As he
had been requested, he signed
a copy of the memorandum as an acknowledgement of receipt of the
cheque and the IRP5 certificate.
When Messrs Reinertsen and Naicker
of the respondent spoke to the applicant on re-employment, the
applicant said he wanted to go
into some business as the salary
offered was too low. He never, at that stage, raised any outstanding
issues, such as being incorrectly
identified for retrenchment.
18.
Mr Crawford conceded that in the section 189 notice no mention had
been made of what was to happen to skilled or unskilled employees.
He
said that when they met the respondent thereafter, they were told
exactly what was to happen. He conceded that the minutes of
their
first consultation meeting did not make any reference to qualified
and unqualified employees, notwithstanding the fact that
job
categorisation was used, such as Factory Aids, Platemakers and
Inserters. In relation to the letter of 28 January 2004 issued
by the
respondent to the unions, he said that the categorisation “General
Assistants” was clearly understood to include
Press Assistants.
The term “General Assistant” did have a degree of
uncertainty to their members but not to union representatives
as Mr
Reinertsen had explained in the meeting what was to happen, inter
alia, in the works room. He also conceded that in the agreement
of 11
March 2004 there was no use of the categorisation “Unqualified
and qualified employees.” He said that it was
before the
agreement had been signed that the respondent supplied the names of
the affected employees. The list included the applicant.
The
applicant’s version
19.
After he had taken up permanent employment with the respondent, he
occupied various positions at different times and they included
being
an Inserter, Operator and a charge hand in the mail room. For a
period of about 3 years he took up modules with the respondent
and
thereafter qualified as a Supervisor in the mail room. In 1994 he
successfully applied to be transferred to the machine room,
for a
vacancy in News Set Department, which he assumed on 1 May 1994. He
was then holding the position of a grade (ii) (a) which
corresponded
with a grade B(5) according to the Peterson Grading. Implicit in the
transfer was a reduction in his salary due to
his loss in shift
rates. He had to undergo a probation period and thereafter a decision
was to be taken about his permanent status.
On 14 October 1994 he
wrote a letter requesting his position to be rectified. Authorisation
for the increase in his hourly rate
was granted on 21 October 1994.
On 17 September 1996 he wrote a letter in which he requested a
review of the job title which
he asked to be re-described according
to the capacity he held in the machine room of the Works Department.
On 4 February 1998 he
wrote a letter in which he asked the respondent
to consider him as a qualified journeyman. He stated that he had
worked as a journeyman
without assistance and supervision. He stated
that he had been disappointed by not being given formal training
(apprenticeship)
so that he could be certified as a qualified
journeyman. Again on 12 February 1998 he requested a job re-grading,
stating that
he had been in platemaking, cutting, finishing of jobs
and printing for four years while holding grade (ii) (a). on 30 April
1998
the respondent issued a letter in which the position held by the
applicant was stated as of a Printer’s Assistant-Machine
Room-Works Department. The certificate of service issued by the
respondent on 12 March 2004 states the occupation of the applicant
as
one of Printer’s Assistant.
20.
In 1996 he was a Machine Minder even though he earned a salary that
was higher than that of the position. He needed a proper
job
description and was given one of Printer’s Assistant but he was
not given a letter explaining his position. Nor was he
given a
Peterson grading. He should have been a grade C2 or C1, according to
the salary he was earning at the time, which was much
more than that
of a grade B1. In 1998, Mr Hutson, a Manager of the respondent agreed
to let him do the apprenticeship so that he
could be a journeyman. Mr
Hutson left the respondent and was replaced by Mr Naicker. Mr Naicker
advised the applicant that he had
to take a salary cut if he had to
do the apprenticeship. Yet the applicant knew of people whose salary
was not cut when they did
the apprenticeship. He could not afford a
salary cut as he had a daughter at a university. Management promised
him that his job
would not be affected whereupon he continued with
it, printing posters for various papers and attending to the special
orders from
the printing room. He had two assistants for whom he had
to set up the machine.
21.
The applicant attended two of the three meetings pertaining to the
outsourcing of some of the functions of the respondent. He
was told
that his position would not be affected. In the discussions there was
no mention of unqualified people having to be affected.
In
applicant’s understanding a Printer’s Assistant was not a
General Assistant. There was however another Mr Manickum
Govender who
was a Factory Assistant with grade B(1). The applicant was not a B(1)
grade nor was he in the machine room.
22.
Towards the end of February 2004, the applicant heard that his name
was among affected employees. He approached Mr Myburgh who
represented SATU members to ask why he was affected. Mr Myburgh said
that the applicant was a General Assistant and that he could
not
assist him as the applicant had no qualification documents. He
approached Mr Crawford for help. Mr Crawford said that he thought
the
applicant was a Machine Minder but he did not say if he would do
anything for him. When he took the matter up with Mr Neo Naicker,
he
was told that his job was redundant. His last working day was at the
end of February 2004. The letter of termination of employment
dated
12 March 2004 came to him after he had already left work. He believed
that his position was not redundant and that there
was a Mr Derick
Maharaj and people from Workforce who took over from him. He was told
to apply for a position with the Workforce
but was offered one third
of the salary earned by Mr Maharaj and it was much less than what he
himself had been earning. He denied
that he wanted to start his
business. He refused to join Workforce because he wanted his job back
and because the whole process
had not been properly explained to him.
23.
The applicant conceded that he had no qualifications of a Machine
Minder. He conceded that SATU could conclude a valid agreement
with
the respondent on retrenchment but he said the concluded agreement
did not cover or include him. He conceded that SATU thought
he was a
General Assistant and therefore that it incorrectly understood his
grading. He conceded that the respondent acted on representations
of
SATU to include him in the list of affected employees. He believed
the respondent was partly to blame as it was supposed to
have
upgraded his position. He agreed that Mr Derick Maharaj, who took the
work he had been doing was employed by an outsourced
company,
Capital. He pointed out that his position was not redundant but was
outsourced. He agreed that he had not informed the
respondent, just
before the agreement was signed, that SATU was not representing him.
He conceded that he accepted the retrenchment
package without
reserving any of his rights.
Submissions
by parties
Respondent’s
submissions
24.
Ms L Pillay appearing for the respondent conceded that the special
plea relating to the non-joinder of SATU did not stand for
adjudication. The court had earlier enquired whether the order sought
would in any substantial manner affect SATU. She added that
any claim
against SATU would have, in any way, prescribed.
25.
She highlighted the other points that had been raised as a special
plea. She pointed out that the applicant had agreed that
the union
had signed the agreement of 11 March 2004 for its members, including
him and therefore that there was no longer any live
issue in that
regard. She said that the agreement was one signed at a collective
bargaining level. She pointed out that the respondent
had acted in
compliance with the agreement, inter alia, by paying the applicant
who in turn, accepted the same without reservations.
26.
In relation to other issues falling out of the special plea, she
submitted that there was a general need for the respondent
to
retrench and the unions agreed with it. She said that there was a
need to retrench the applicant as his functions had been outsourced
by agreement. She said that respondent’s evidence, which was
subsequently confirmed by the applicant, was that the poster
making
done by the applicant was not a core function of respondent’s
business. She submitted that it was not competent of
the court to
order reinstatement as the post of the applicant no longer existed
and the outsourced company had not been joined
as a party. In respect
of compensation she pointed out that the applicant had already
received the severance pay, the notice pay
and an ex-gratia payment.
27.
In respect of the selection criteria, she said that the respondent
and the unions agreed on employees to be retrenched and that
a case
of bumping had not been pleaded by the applicant. She submitted that
the selection criteria was applied as agreed to. She
submitted that
the dismissal was premised on fair reasons.
Applicant’s
submissions
28.
Mr R.B. Donachie appearing for the applicant submitted that the
purpose of an agreement is to settle an existing dispute. In
this
matter, the parties had to agree on a category and the number of the
staff that was to be retrenched. He pointed out that
the parole
evidence rule applied in this matter. He submitted that the agreement
made no mention of the Printer’s Assistant
to be included in
the category of affected employees. He said that nowhere was it
stated that a General Assistant included a Printer’s
Assistant.
Nor did the agreement refer to any unskilled or unqualified
employees. He said that the agreement covered employees
in the A2-B1
grades
29.
He argued that the job of the applicant continued after the
retrenchment and that the purpose of the retrenchment exercise to
cut
costs, was never achieved. He said that there was no evidence, except
vague submissions, that the termination of such services
as were
offered by the applicant was necessary. He said that as the list of
retrenchees was given to the unions after the signing
of the
agreement, a mistaken inclusion in the list of names could not be
cured by the agreement. He said that the dismissal was
substantively
unfair and that the applicant was entitled to be reinstated. When
asked by court he could not explain who of the
110 workers in
Production could have been wrongly excluded such that his place was
taken by the applicant.
Analysis
30.
This matter concerns the question of whether the termination of an
employment relationship between the applicant and the respondent
was
founded on a fair reason. That an employer and employee may agree to
terminate the employment contract is trite. Should such
an agreement
be reached by the parties to it, a new contract to terminate the
employment relationship comes into being and supercedes
any provision
to the contrary in the contract of employment.
31.
In this case, the underlying reason for the dismissal of the
applicant, together with other employees, was stated to be a cost
cutting measure. The respondent wanted to meet the demands of the
highly competitive market within which it operated by ensuring
that
it maximised the use of resources as efficiently and as effectively
as would be possible. To achieve the stated objective,
it decided to
rid itself of those functions which it deemed, did not constitute its
core function of its business. During the trial
it became common
cause that the function executed by the applicant was a non core
business of the respondent.
32.
Mr Donachie has submitted that the whole exercise, in respect of the
applicant, has been in futility in that the job of the
applicant
continued after the retrenchment and that the purpose of cutting
costs was never achieved. He was saying that the respondent
ought to
have proved a direct saving consequent upon the retrenchment. That,
in my view, was a narrow approach which omits the
indirect saving
because the work and expenditure involved in supervising the
retrenched employees by the managerial staff had fallen
away.
Management had more time to concentrate on other functions. See in
this respect-Seven Abel CC t/a The Crest Hotel v Hotel
and Restaurant
Workers’ Union & Others (1990) 11 ILJ 504 (LAC).
33.
I now return, as I must, to the special plea raised by the
respondent. The submissions by the respondent are that:
(a) any dispute
between the parties in relation to the retrenchment of the applicant
was settled by means of an agreement concluded,
inter alia, between
the respondent and SATU on or about 11 March 2004;
(b) the applicant
was employed as a General Assistant Publishing in the works room and
formed part of the employment categories
to which the agreement
applies;
(c) the applicant
was a member of SATU and this retrenchment was pursuant to the terms
of the afore mentioned agreement;
(d) the applicant
is bound by the agreement concluded with his union and is not
entitled to pursue any claim pertaining to his retrenchment.
34.
During the trial, the applicant conceded to the submissions under
(c). He also conceded to the submission under (d) provided
the court
found under (b) that he was correctly classified as a General
Assistant.
Was
the dispute settled by the agreement?
35.
In terms of the agreement between the parties, 110 employees in the
Production Section of the respondent were to be retrenched.
That
categorisation had formed part of the discussions between the
parties. In one of the consultative meetings Mr Reinertsen was
called
to come and explain, inter alia, the category of employees to be
retrenched. In his evidence in court he said that the explanation
he
proffered was that unqualified employees were to be retrenched. That
explanation was subsequently confirmed by Mr Crawford who
was present
in that meeting. While the descriptive “unqualified employees”
does not appear in any of the minutes and
in the agreement, I am
persuaded by the evidence of the two witnesses of the respondent that
such an explanation was, in all probabilities,
given by Mr
Reinertsen. The unions accepted his explanation and he was therefore
excused. The respondent was to supply a list with
names of
retrenchees. That it did. Neither the unions nor the applicant took
issue with the respondent on why the applicant was
included in the
list. Unless the proceedings are mechanically recorded, the minutes
of a meeting are only a summary of the issues
traversed in that
meeting. Even in his evidence, the applicant testified that he spoke
to Mr Myburgh of SATU who said that he had
been included in the list
because he was a General Assistant.
36.
In his evidence the applicant conceded that he did not withdraw his
mandate for SATU to represent him when the agreement was
signed. By
then, he had already seen his names in the list. He proceeded to take
part in the processing of documents for the payment
to him of the
retrenchment package which was only paid in terms of the agreement
reached by the respondent and the unions. He was
offered some further
employment which he turned down because he considered the salary to
have been too low. The probabilities of
this matter make it difficult
to resist making a conclusion that the applicant indeed wanted to
take the money paid out to him
and to reinvest it in some business as
testified to by Mr Reinertsen.
37.
Whether the applicant was in a senior and a responsible position,
would not help to resolve the issue. In the list of retrenches
there
are senior employees such as:
Ø S.A.
Zuma – Vanman Supervisor
Ø D.
Govender - Transport manager Circ.
Ø E.
Wilson – Publishing Supervisor
Ø R.
Dunbar – Senior Ad. Prod. Supervisor
38.
In my view, the agreement of 11 March 2004 between the parties, was
one legitimately signed at a collective bargaining level.
Therefore
any dispute between the parties in relation to the retrenchment of
the applicant was settled by means of this agreement.
Was
the applicant a General Assistant
39.
At the end of the trial it had become common cause that the
applicant was not possessed of any qualifications appropriate
to the
industry in which the respondent operated. He had made some attempts
to be allowed to undergo the apprenticeship with the
respondent but
he was not successful to do it under his terms. There were a number
of employees of the respondent who had undergone
the apprenticeship
and had been qualified in some fields. To distinguish the applicant
from that group he could be referred to
as unqualified employee and
therefore a General Assistant. Nothing really turned on being a
Printer’s Assistant as he was
not a qualified Printer. He was
therefore in no different position from the Platemakers who were
referred to as such in the list
but were also known as General
Assistants. It must be remembered that the main consideration was
whether he performed a core function
in the business of the
respondent and he conceded that he did not. He conceded that the
function he performed at the time was outsourced
and was thereafter
carried out by a private company distinguishable from the respondent.
40.
From the foregone, it must follow that the points raised by the
respondent as a special plea must be and therefore are all upheld.
41.
The following order will therefore issue:
1.
The claim of the applicant is dismissed.
2.
His dismissal was substantively fair.
3.
No costs order is made.
________
Cele
J
Date
of Hearing: 25 August 2008
Date
of Judgment: 9 January 2009
Appearances:
For
the Applicant:
Mr
R.B Donachie - Henwood Britter and Caney
For
the Respondent:
Ms
L. Pillay – Webber Wentzel Bowens