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[2010] ZALCJHB 341
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SAOU and Another v Head of Department Gauteng Dept of Education and Others (J2468/10) [2010] ZALCJHB 341 (21 December 2010)
Reportable
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
no: j 2468/10
In
the matter between:
SAOU
First applicant
NAPTOSA
Second applicant
and
THE
HEAD OF DEPARTMENT,
GAUTENG
DEPT OF
EDUCATION
First respondent
THE
MEC FOR EDUCATION,
GAUTENG
Second respondent
THE
MEC FOR FINANCE,
GAUTENG
Third respondent
THE
PREMIER OF
GAUTENG
Fourth respondent
THE
DIRECTOR-GENERAL OF
TREASURY
Fifth respondent
PERSAL
Sixth respondent
SITA
(PTY)
LTD
Seventh respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This urgent application arises out of the
lengthy and crippling public service strike of July and August 2010,
lasting some 17 working
days.
[2]
The first applicant is the Suid-Afrikaanse
Onderwysersunie (SAOU). It represents about 8 960 members in
Gauteng. The second
applicant is the National Professional
Teachers’ Organisation of South Africa (NAPTOSA). It represents
about 11 700 members
in Gauteng. The members of the two trade unions
are mostly teachers (or “educators”, in the parlance of
the Employment
of Educators Act, registered as such with the South
African Council of Educators). Some members are also staff members
employed
at public schools in Gauteng. NAPTOSA abides the decision of
the court.
[3]
Following the strike, the Gauteng
Department of Education (GDE) deducted money from the remuneration of
educators who had been on
strike. The applicants have no gripe with
the "no work, no pay" principle. However, they say that, in
the case of the
SAOU, their members only went out on strike for one
day; and in the case of NAPTOSA, for four days. Yet the GDE deducted
salaries
for many more days in many cases. In some cases, money was
deducted from educators who did not strike at all.
[4]
The purpose of this application is to
obtain an urgent interdict:
4.1
directing the Head of Department, Gauteng
Department of Education to refund all monies deducted from the
salaries of members of
the applicants pertaining to the public
service sector strike that took place from July to September 2010
("the strike")
forthwith, pending the compilation of a
factually correct database, recording which members of the applicants
in fact participated
in the strike and recording the correct number
of days that such members participated in the strike;
4.2
prohibiting the Head of Department (and the
other respondents) from deducting any further monies pertaining to
the strike from the
salaries of members of the applicants, pending
the compilation of a factually correct database, recording which
members of the
applicants in fact participated in the strike and
recording the correct number of days that such members participated
in the strike.
Background
[5]
At the beginning of the strike, the SAOU
notified the GDE that its members would participate in the strike on
Tuesday, 10 August
2010 only. NAPTOSA indicated that its members
would strike on 10 August 2010 and thereafter on 20, 23 and 26 August
2010 –
i.e. over four days.
[6]
On 26 July 2010 the Head of Department (the
first respondent) sent out a circular headed “Circular
25/2010”. It was
distributed to deputy directors-general; chief
directors; directors at head office and district offices; principals
of schools;
members of school governing bodies; employee
organisations; and all employees.
[7]
In the circular, comprising 14 pages and
headed "strike management", the Head of Department stated
that:
7.1
The principle of "no work no pay"
would be applicable and enforced by the GDE.
7.2
Deductions would "equal an amount
equal to the number of days/hours of service not rendered by an
employee during the period
of the industrial action."
7.3
Each district in the GDE was obliged to
establish a district strike management team. These teams had the duty
and responsibility
to –
7.3.1
“
ensure that all the strike related
information is collected, is accurate, signed off and submitted daily
by the stipulated time
to the identified central point";
7.3.2
monitor compliance with the circular policy
and legislation related to the strike;
7.3.3
ensure that the strike information for the
implementation of the principle of "no work no pay" is
received and submitted.
[8]
The circular set out in detail how strike
information had to be compiled and submitted.
8.1
Heads of institutions (ie principals) would
telephonically report on the number of employees on strike at their
school by 08:30
and 12:00 daily.
8.2
The manager of each district
sub-directorate had to report on the number of employees
participating in the strike to the labour
relations officer by 08:30
and 12:00 daily.
8.3
The labour relations officer at the
district office had to collate these statistics and report to the
district director by 09:00
and 12:45 daily.
8.4
District directors were required to inform
the relevant chief directors of the relevant information by 09:15 and
13:15 daily during
the strike.
8.5
The chief directors would report the
statistical information to the collective bargaining unit at head
office by 09:30 and 13:30
daily during the strike. The collective
bargaining directorate would present the final statistics to the
deputy director-general:
corporate services for signoff and
presentation to the Department of Basic Education by 10:00 and14:30
daily.
8.6
Educators had to sign daily registers at
all schools. The strike registers had to be returned to the strike
administration project
management team for capturing. Capturing would
not be done at district level.
8.7
The circular specified that it is the duty
of the Head of Department as accounting officer to ensure that the
strike management
teams perform their duties. Each strike management
team had to,
inter alia
–
8.7.1
ensure that all the strike related
information is collected and submitted to a central point for
collation;
8.7.2
ensure that districts establish district
strike management committees and that those committees are fully
functional;
8.7.3
monitor compliance with the circular,
policy and legislation related to industrial action;
8.7.4
ensure that all the strike related
information is collected, is accurate, signed off and submitted daily
by the stipulated time
to the office of the Premier, Department of
Public Service and Administration, and Department of Basic Education;
8.7.5
ensure that the strike information for the
implementation of the principle of "no work no pay" is
received; and
8.7.6
ensure that the principle of "no work
no pay" is correctly implemented.
[9]
The strike was suspended on 6 September
2010. It never recommenced.
[10]
The Department of Public Service and
Administration sent out an advisory circular to all heads of national
and provincial departments
on 10 September 2010. It was headed:
"Application of the ‘no work no pay' principle: 2010
public service strike."
[11]
The circular refers to a draft collective
agreement setting out an amicable settlement of the strike. The draft
agreement would
deal with return to work procedures, as well as the
application of the "no work no pay" principle. Deductions
would be
based on working hours lost. It further stated: "To
practically deal with the deductions of the 'no work no pay',
departments
are advised to deal with these matters in the spirit of
the proposed draft agreement".
[12]
A collective agreement as envisaged was
indeed entered into at the Public Service Coordinating Bargaining
Council (PSCBC) on 19
October 2010. This agreement binds the GDE and
the applicants. The agreement records that:
12.1
deductions in accordance with the "no
work no pay" principle would be staggered over three months; and
12.2
the deduction would be based on working
hours lost.
Events after the
strike
[13]
The GDE did not report any problems in the
collection of data to either of the trade unions during the strike.
[14]
There
were a number of meetings between the GDE and the relevant trade
unions
[1]
after the strike. The
applicants say that, at all relevant and material times, the GDE
created the impression that it would work
with the unions in
administering the deductions to be made in an orderly and correct
fashion. The GDE does not deny this in its
answering papers.
[15]
On 4 October 2010 representatives of the
unions attended a meeting of the Provincial Education Labour
Relations Council (ELRC).
The following appears from the minute of
the meeting:
15.1
GDE indicated that it wanted to commence
deductions at the end of November 2010.
15.2
The applicants called for a list of
educators, the number of days and the amounts to be deducted from
each member.
15.3
GDE indicated that it "would have
proof before any deductions could be made against an individual
employee".
15.4
GDE indicated that it would provide
information to all parties in relation to strike deductions.
15.5
The parties agreed that GDE would present
data for verification in a task team meeting on 14 October 2010.
[16]
On 10 October 2010 representatives of all
the unions attended another ELRC meeting. The GDE representative
handed the unions a database
in electronic format. The GDE
representative, Mr Sello Tshabalala – a director: collective
bargaining, employed by the GDE
– deposed to the answering
affidavit on behalf of the first to sixth respondents in this
application. He does not dispute
that the data was not correct in all
respects. At the ELRC meeting, he said that the data would be
verified by district directors
and that an updated database would be
handed to the unions on 15 October 2010.
[17]
On 14 October 2010 the Gauteng chamber of
the ELRC issued a "task team report: strike deductions [2010]".
It recorded
that the chamber mandated the task team to verify
information on strike deductions as it would be presented by the
employer. It
further recorded that: "The employer indicated that
in the implementation of strike deductions they would be mindful of
the
2007 and 2008 deductions and would not subject educators to
further hardships." This assurance arose from the fact
that
some unauthorised deductions arising from a strike in 2007 had
still not been repaid.
[18]
The employer provided the trade unions with
the database on an electronic disc. The applicants reviewed the
database and came to
the conclusion that it was "riddled with
errors". It appeared that the database recorded that many
members of the applicants
participated in the strike for more days
than they in fact had participated.
[19]
On 14 October 2010, the employer stated
that it would make information available to schools on the names,
amounts to be deducted,
timeframes and guidelines on how the
deductions would be implemented
before
the process would start. However, it soon transpired that this did
not happen.
[20]
By 2 November 2010 the GDE had not verified
the database. Ms Wilma Henn, a SAOU shop steward, telephoned Mr
Tshabalala to raise
the union’s concern. He replied that he was
on his way to the National Department of Education and that he would
revert "in
due course."
[21]
On 4 November 2010 Mr Fanie Reyneke, the
GDE’s Director: Human Resources Appointments, visited the SAOU
office. This meeting
followed a number of calls from the SAOU,
informing him that the database contained wrong information. Reyneke
stated that the
errors would be corrected. The GDE does not dispute
that the information was incorrect in some respects. It says in its
answering
papers that it expected the trade unions to assist it in
correcting the information.
[22]
A meeting was called between task teams of
the unions and GDE on 10 November 2010. The meeting was attended by
only one representative
of GDE, Ms Thenjiwe Khubeka, a Director:
Collective Bargaining of the GDE. She handed the unions a new
database. The applicants
pointed out that the database was still
incorrect. The unions stated that they would not agree to any
deductions being made on
the basis of the incorrect database. Ms
Khubeka says that she expected the unions to analyse the database and
revert to the GDE
with any discrepancies. At that meeting, Ms Khubeka
indicated that “deductions would… be conducted based on
the resolution
from DoE [Department of Education]”. It later
transpired that the Persal system, through which deductions would be
made,
had already been programmed at that stage.
[23]
An urgent chamber meeting of the ELRC was
convened on 11 November 2010. The meeting was attended by
representatives of the trade
unions; and representatives of the GDE,
including Mr Tshabalala and Ms Khubeka. At the meeting the following
transpired:
23.1
GDE claimed that the strike had lasted for
31 days. This period was calculated on the basis of the 17 days of
the actual strike,
plus 14 days of a "period of disengagement"
announced by SADTU. However, SAOU and NAPTOSA members did not
participate
in this "period of disengagement".
23.2
GDE stated that a deduction equal to 10
days' salary would be made from employees' remuneration at the end of
November 2010. The
period of 10 days would represent one third of the
period of 31 days.
23.3
Mr Tshabalala stated that the Persal system
had already been programmed to deduct an amount equal to 10 days'
remuneration from
each educator.
23.4
The trade unions objected and stated that
the strike had only lasted for 17 days and not 31 days. They stated
that the "period
of disengagement" had to be dealt with
separately. The applicants reiterated that SAOU members had only
struck for one day
and NAPTOSA members for a maximum of four days.
These two unions had also resolved not to participate in the "period
of disengagement".
23.5
The GDE presented the trade unions with an
intended appeal procedure for employees to lodge an appeal if amounts
were incorrectly
deducted from them. The unions rejected this process
and required an undertaking that no deductions would be made until
the GDE
had corrected its database.
23.6
During the meeting, Mr Tshabalala received
a message informing him that National Treasury had been requested to
"reverse"
five of the 10 days that would be deducted and
that Treasury had agreed thereto. It appeared, therefore, that only
five days' salary
would be deducted at the end of November 2010.
[24]
The
SAOU sent a letter to the MEC for Education
[2]
,
Ms Barbara Creecy, on 12 November 2010. It set out its concerns,
stating that the blanket deduction of 5 days’ salary was
based
on a database that is clearly faulty. It expressed the view that the
implementation of the deduction would be “palpably
unfair and
incorrect” and asked her to intervene. It stated that the
union’s view was that an appropriate remedy would
be (a) to
ensure that no deductions of an unlawful nature are made for November
2010; and (b) to require the GDE as a matter of
urgency to establish
an accurate database which can be applied by the Department going
forward. The SAOU requested the MEC to deal
with this issue "as
a matter of the greatest urgency."
[25]
The only response was a letter from the
office of the MEC on the same day, acknowledging receipt and stating
that "your correspondence
is receiving attention and we will
revert to you shortly."
[26]
NAPTOSA also sent a letter to the Head of
Department on 20 November 2010. It pointed out numerous errors and
stated that the deduction
of five days' salary was in many cases not
based on correct information. It urged the Head of Department to
review the matter and
to "take the decision to correct a
potentially damaging labour situation."
[27]
The Head of Department sent an email to Mr
Tshabalala and two others on 22 November 2010, calling on them "to
meet Naptosa
and discuss the issues raised herein with a view to find
an amicable solution speedily." On 25 November 2010, the Head of
Department sent out a further e-mail to officials to meet NAPTOSA’s
Mike Myburg on the same day. He stated: "We need
to take this
seriously and urgently."
[28]
A meeting did take place on 26 November
2010. The dispute could not be resolved.
Deductions and
discrepancies
[29]
The applicants started receiving complaints
from their members from 24 November 2010 onwards that large sums of
money had been deducted
from their salaries.
[30]
The applicants started investigating the
complaints. The first applicant's counsel handed up four lever arch
files in court containing
discrepancies relating to a number of
schools. In respect of each school, the bundle contains the
following:
30.1
A summary of employees from whom deductions
had been made.
30.2
The number of days deducted from each such
employee.
30.3
The registers kept in accordance with
Circular 25/2010 that were submitted to the GDE.
30.4
Salary slips of the affected employees.
30.5
Refunds, if any.
[31]
The information runs over 1310 pages.
Examples of glaring discrepancies are numerous. Some educators have
received refunds; others
have not. Some have had 10 days' salary
deducted from thire remuneration, others five days, others none. I
was shown examples of
educators who had been at work and who had
signed the prescribed register, yet a number of days' salary had been
deducted from
their remuneration. One educator was on maternity
leave, yet she had 10 days' salary deducted.
[32]
It serves no purpose to enumerate the many
examples of discrepancies from these 1310 pages. Suffice to say that
it is glaringly
obvious that many mistakes have been made. The
examples handed up in court are not exhaustive. They were compiled as
a matter of
urgency. The applicants say that complaints and further
examples are still streaming in. The respondents cannot dispute this.
Although
the respondents say that, after these errors had been
brought to the attention, they have attempted to correct them and
were in
the process of refunding the affected members, it is clear
that many of the applicants' members are still being prejudiced.
[33]
The applicants contend that the deductions
are unlawful for the following reasons:
33.1
Amounts are being deducted, despite the
fact that some of the applicants' members were at work. Many of the
members did not participate
in the strike at all.
33.2
The GDE deducted money in an arbitrary
fashion with no regard whether the employees participated in the
strike or not.
33.3
The deductions are based on incorrect data.
The GDE knew that its database was flawed and undertook to rectify it
before making
any deductions. It did not do so.
33.4
GDE breached the chamber decision of 4
October 2010 to present the data for verification in a task team
meeting on 14 October 2010.
33.5
GDE breached the following undertakings
given at the chamber meeting of 4 October 2010:
33.5.1
its undertaking to provide the applicants
with the information of deductions to be made before the process
would start;
33.5.2
that proof would be obtained before any
deductions would be made from an employee;
33.5.3
its undertaking to provide information to
all parties in relation to the deductions.
33.6
The decisions at the chamber meeting of 4
October 2010 are binding on the applicants.
33.7
The deductions are contrary to the
directives contained in Circular 25/2010, circulated to all of the
applicants' members, that
deductions would equal an amount equal to
the number of days or hours that they had not worked during the
strike;
33.8
the deductions are contrary to the
provisions of the agreement signed in October 2010 at the PSCBC;
33.9
it
contravenes section 38 of the Basic Conditions of Employment Act
[3]
;
33.10
it is administratively unfair;
33.11
the GDE is not entitled to assume that the
applicants' members participated in the strike and place the burden
on them to prove
that they did not; and
33.12
contrary to what is stated in circular
34/2010, GDE deducted 10 days' salary from some employees and not
five days.
In
limine:
jurisdiction
[34]
Mr
Khoza
,
for the first to sixth respondents, raised a jurisdictional point
in
limine.
He contends that the dispute concerns the interpretation and
application of a collective agreement, namely the agreement entered
into at the PSCBC in October 2010. Therefore, he says, the dispute
must be referred to the PSCBC in accordance with s 24 of the
Labour
Relations Act.
[4]
[35]
This argument is, at first blush,
compelling. But is the substance of the urgent application really a
dispute about the interpretation
and application of a collective
agreement?
[36]
Arguing
to the contrary, Mr
Van
Reenen
,
for the first applicant, referred me to the unreported Labour Appeal
Court case of
Minister
of Safety and Security v Safety and Security Sectoral Bargaining
Council and others.
[5]
In that case, Zondo JP
[6]
drew a
distinction between a dispute about the fairness of a transfer –
albeit that the relevant collective agreement set
out the transfer
procedures – and a dispute about the interpretation and
application of a collective agreement.
[37]
In
the course of this judgment, Zondo JP referred to the case of
Johannesburg
City Parks v Mphahlani & others.
[7]
In
that case, the LAC explained the difference between a “dispute”
and an “issue in dispute”
[8]
:
“
There
are a number of areas in the LRA which contain references to disputes
or proceedings that are about the interpretation or
application of
collective agreements, particularly in provisions that deal with
dispute resolution. Some of the sections of the
LRA which contain
such references are sections 22 and 24. In all of those sections the
references to disputes about the interpretation
or application of a
collective agreement are references to the main disputes sought to be
resolved and not to issues that need
to or may need to be dealt with
in order to resolve the main dispute. Let me make an example to
illustrate the distinction that
I seek to draw between
a dispute
and
an issue in dispute.
One may have a
situation where an employee is dismissed for operational requirements
and that dismissal is challenged as unfair
because it is said that in
terms of a certain collective agreement, the employer was supposed to
follow a certain procedure before
dismissing the employee, but did
not follow such procedure. In such a case, in determining whether the
dismissal was fair or unfair,
the Labour Court would have to
determine whether the relevant provisions of the collective agreement
were applicable to that particular
dismissal. The employer might
argue that, although the collective agreement is binding on the
parties, the particular clause did
not apply to a particular
dismissal. This means that the Labour Court has to interpret and
apply the collective agreement in order
to resolve the dispute
concerning the fairness or otherwise of the dismissal for operational
requirements. So, the real dispute
is about the fairness or otherwise
of the dismissal and the issue of whether certain clauses of the
collective agreement were applicable
or were complied with before the
employee was dismissed is an issue necessary to be decided in order
to resolve the real dispute.
In the above example it
cannot be said, for example, that the Labour Court has no
jurisdiction to adjudicate the dispute concerning
the dismissal for
operational requirements and it must be referred to arbitration just
because, prior to or in the course of resolving
the dismissal
dispute, the issue concerning the interpretation or application of
certain clauses of the collective agreement must
be decided. It would
be different, however, when the main dispute, as opposed to an issue
in a dispute, is the interpretation or
application of a collective
agreement. In the latter case the Labour Court would ordinarily not
have jurisdiction in respect of
the dispute and the dispute would be
required to be resolved through arbitration in terms of the LRA."
[38]
It appears to me that the main dispute in
this urgent application is not the interpretation and application of
a collective agreement.
The relief sought is for the Head of
Department to refund the money deducted from the applicants' members
pending the compilation
of a factually correct database. In the
course of deciding whether the applicants are entitled to the relief
sought, I have to
consider various undertakings by the GDE, some of
which are contained in collective agreements of the PSCBC. Those
agreements form
part of the issues in dispute; but the main dispute
is not the interpretation or application of a collective agreement.
[39]
I am satisfied that the Labour Court does
have jurisdiction to decide the application.
Urgency
[40]
The respondents further submit that the
application is not urgent. They point out that, by 11 November 2010,
the applicants knew
that the Persal system had been loaded to make
deductions by the end of November 2010. Yet the applicants only
launched this application
on 2 December 2010.
[41]
I take into account, though, that the
applicants attempted to resolve the dispute relating to the
deductions throughout November
2010. The SAOU wrote to the MEC on 12
November 2010 in an attempt to get her to intervene. They had
received no substantive response
by the time they launched this
application. NAPTOSA attempted to meet with the Head of Department;
after a number of attempts,
they managed to meet with his
representatives on 26 November 2010. The matter could not be
resolved. The pleadings in this matter
comprise close to 300 pages,
and the bundles of documents a further 1310 pages.
[42]
I am satisfied that the applicants acted
with due haste in compiling the voluminous information and launching
this application once
it became apparent that the parties could not
resolve their dispute amicably. It is also apparent that the
educators involved face
a bleak festive season if the matter is not
disposed of urgently. The matter should therefore be considered on an
urgent basis.
A clear right?
[43]
The applicants have made out a clear right
for the relief sought. It appears from the evidence before me that
the prescribed registers,
detailing their members’ attendance
or non-attendance during the strike, were submitted to the GDE. The
GDE deducted money
from their salaries without having established a
proper basis to do so.
[44]
I must stress that the applicants’
members have no right to be paid for days on which they were on
strike. They must be refunded
pending the compilation of a factually
correct database only. Once that has been done, the respondents will
be able to deduct the
amounts equal to the days or hours during which
the educators were, in fact, striking.
Absence of alternative
remedy
[45]
The affected educators could follow the
appeal process outlined in Circular 34/2010 , issued on 17 November
2010.
[46]
However, that process only relates to
deductions that have been made for the period 23-27 August 2010. From
the bundles that were
provided to report, it appears that deductions
were made in respect of other periods as well.
[47]
The timeframe set out in the appeal process
gives no indication as to when refunds will be made. As the applicant
pointed out, some
deductions made in 2007 have still not been
refunded. The appeal process does not provide a satisfactory
alternative remedy.
Balance of
convenience
[48]
The balance of convenience favours the
affected educators.
[49]
The Department has budgeted for the payment
of their salaries. Once it has compiled and verified a factually
correct database, it
will be able to deduct the correct amounts from
employees who participated in the strike.
[50]
The applicants' members, on the other hand,
were given the assurance that money would only be deducted for the
days on which they
were actually on strike. The “festive
season” will be a misnomer for those educators who either did
not participate
in the strike or in respect of whom money was
deducted for more days than those on which they were on strike. For
those of the
Christian faith, the celebration of Christmas will be
tempered. (I hasten to add that those educators who were on strike,
and in
respect of whom the correct amounts were deducted in
accordance with the "no work, no pay" principle, cannot
complain
about a resultant lack of money during the school holidays
and the festive season).
Conclusion
[51]
The applicants have made out a case for the relief sought. Although
they have an ongoing relationship with the respondents,
they were
forced to incur significant legal costs to approach this court only
after attempts at an amicable resolution failed.
In law and fairness,
costs should follow the result in this case.
Order
[52]
The prescribed forms of service and time
periods are dispensed with and this matter is heard as one of urgency
in terms of rule
8.
[53]
The first respondent is ordered to refund
all monies deducted from the salaries of the applicants' members
pertaining to the public
service sector strike that took place from
July to September 2010 by no later than 31 December 2010, pending the
compilation of
a factually correct database, recording, which members
of the applicants in fact participated in the strike and recording
the correct
number of days that such members participated in the
strike.
[54]
The first to sixth respondents are
prohibited from deducting any further monies pertaining to the strike
from the salaries of the
applicants’ members, pending the
compilation of a factually correct database, recording, which members
of the applicants
in fact participated in the strike and recording
the correct number of days that such members participated in the
strike.
[55]
The first to sixth respondents are ordered
to pay the applicants' costs jointly and severally, the one paying,
the other to be absolved.
_________________________________
STEENKAMP
J
Date
of hearing:
10 December 2010
Date
of judgment:
21
December 2010
For
the applicants:
Adv WHJ van Reenen
Instructed
by
Erasmus Inc, Pretoria
For
the respondents:
Adv
M Khoza
Instructed
by
The State Attorney, Johannesburg
[1]
The relevant trade unions were the SAOU, NAPTOSA and the South
African Democratic Teachers’ Union (SADTU). SADTU is not
a
party to these proceedings and I will concern myself with the SAOU
and NAPTOSA only for the purposes of these proceedings.
[2]
The second respondent
[3]
Act 75 of 1997
[4]
Act 66 of 1995
[5]
PA 2/09, unreported, 29 January 2010.
[6]
as he then was
[7]
Unreported, JA 31/08 (LAC).
[8]
Paras [18] – [20]