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[2011] ZALCCT 70
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Jack v City of Cape Town and Others (C05/2011) [2011] ZALCCT 70 (9 December 2011)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
CASE NO: C05/2011
NOT REPORTABLE
In the matter between:
THEMBALETHU
JACK Applicant
and
CITY
OF CAPE TOWN
First
Respondent
ADVOCATE
SOEWYBA FLOWERS N.O.
Second
Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL:
WESTERN CAPE DIVISION
Third
Respondent
JUDGMENT
STEENKAMP J:
INTRODUCTION
1.
This is an application for the review and
setting aside of the arbitration award handed down by the second
respondent (“the
arbitrator”) following arbitration
proceedings conducted under the auspices of the third respondent
(“the bargaining
council”) on 20 July and 21 October
2010. The applicant seeks both reinstatement and compensation.
2.
The applicant also applied for condonation
for the late filing of the review application; his supplementary
affidavit in terms of
rule 7A(8); and his replying affidavit.
Furthermore, the applicant’s attorney, Mr Bulelani Mbeleni,
delivered his heads of
argument late. He did not apply for
condonation, but I allowed him to do so from the bar and, in the
interests of justice, allowed
him to represent his client and to
argue the case on the heads of argument that were delivered late and
that I had nevertheless
read and considered.
3.
The applicant referred a dispute to the
bargaining council after he had been dismissed from his employment
with the first respondent
(“the City”) following an
internal disciplinary hearing where he was found guilty on two
charges of misconduct.
4.
The misconduct complained of was that the
applicant had engaged in a business called Career Mobile Services CC
trading as Research
and Performance Solutions (“
RAPS
”),
from at least August 2008 to at least February 2009 in violation of
the City’s policy on private work and declaration
of interests
in companies and close corporations. It is common cause that the
applicant was (and remains) the sole member of the
close corporation
(RAPS).
5.
The applicant was dismissed as the evidence
at the disciplinary hearing showed that RAPS’s “Managing
Director: Themba
Jack” had invoiced the Oudtshoorn Municipality
R82 627, 50 for compiling the annual report of that
Municipality. (Although
it is common cause that Jack was the sole
member of the cc, the letterhead indicated that he was the “managing
director”;
one Dr Marcus Balintulo was the “senior
partner”; and another City employee, Ms Nyameki Fani, was a
“consultant”).
6.
Compiling the annual report was the
responsibility of the Municipal Manager. Mr Thembani Gutas (“Mr
Gutas”), the Municipal
Manager of Oudtshoorn and an ex-City
employee, had outsourced this task to RAPS. It is common cause that
the applicant travelled
to Oudtshoorn on behalf of RAPS to pitch for
the work ‘to secure the job’ – and he conceded at
the arbitration
that had he not done so the business would have been
lost.
7.
The main defence raised at the arbitration
was that the real work was done by someone else - Dr Marcus Balintulo
(“Dr Balintulo”).
Thus although Oudtshoorn Municipality
paid R 82 627, 00 to the close corporation of which the
applicant was the sole member,
in circumstances where he admitted to
soliciting the contract, he still claimed not to have breached the
City’s “no
private work” policy on the grounds that
the alleged only financial beneficiary of this transaction was Dr
Balintulo. Against
this contention is the evidence of Dr Martin Van
der Merwe (“Dr Van der Merwe”) to whom the applicant had
said that
he was upset that he was now in trouble after driving for
hours in the hot sun to Oudtshoorn for a ‘lousy’ R40 000,
as reflected in the transcript read with the arbitration award.
8.
I will deal with the condonation
applications together with the merits of the main application, as I
need to consider the merits
in any event in order to consider the
applicant’s prospects of success in the main application. The
matter was argued on
that basis.
APPLICATIONS FOR
CONDONATION
9.
Section 145(1)(a) of the Labour Relations
Act 66 of 1995 (‘the LRA’) requires a party wishing to
review arbitration
proceedings in which it alleges there is a defect,
to file such application within six weeks of the date upon which the
arbitration
award was served on that party. Section 145(1A) however
allows for the condonation of the late filing of the application.
10.
In terms of Rule 7A(8) of the Rules for the
Conduct of Proceedings in the Labour Court (‘the Labour Court
Rules), an applicant
is required to file its supplementary founding
affidavit, if any, within ten days of the record of the proceedings
being dispatched.
11.
Rule 12 provides for this Court to condone
any non-compliance with a period prescribed by the Labour Court
Rules, on good cause
shown.
12.
The requirement of good cause applies
equally to the exercise of this Court’s discretion in terms of
s 145(1A) of the LRA.
13.
The test for good cause is well
established:
‘
The
approach is that the court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence
it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor,
the
prospects of success and the importance of the case. These facts are
interrelated; they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay. There is a further
principle which is applied and that is that without a reasonable and
acceptable explanation for the delay,
the prospects of success are
immaterial, and without prospects of success, no matter how good the
explanation for the delay, an
application for condonation should be
refused…’
[1]
14.
In
respect of condonation for the late filing of a review application in
an individual dismissal dispute the applicant is required
to provide
a ‘compelling’ explanation and show that he has ‘strong’
prospects of success, such that if
his case were not heard it would
be a miscarriage of justice.
[2]
15.
The applicant’s grounds for
condonation for failing to institute these proceedings within six
weeks are set out in his founding
affidavit and supplemented with
further grounds for condoning the late filing of his supplementary
affidavit. I shall consider
those grounds in the light of the
authorities cited above.
EXTENT OF THE DELAY
16.
The applicant does not explain in any of
his affidavits when he received the award and thus what the extent of
the delay is. It
is common cause that the application for review was
delivered on 12 January 2011. The award is undated. The City says it
received
it on 16 November 2010. Mr Mbeleni, for the applicant,
conceded from the bar that his client would have received it on the
same
day. The review application should therefore have been delivered
by 28 December 2010. It was delivered about two weeks late.
EXPLANATION FOR THE
DELAY
17.
The applicant’s mother passed away on
22 October 2010 – ie about a month before he received the award
and two months
and three weeks before he applied for review. The
applicant states that he was required to see to the administration of
her estate.
He does not explain how long the administration of his
late mother’s estate took and what functions he was required to
perform
during this extensive period.
18.
The
applicant also fails to explain when he first consulted an attorney
and why - given that he earned a salary of R840 000 per
annum - he
needed to raise funds before he could instruct an attorney. He is
then silent on how he went about raising these funds
or how long this
took him. It is common cause that the close corporation (RAPS) paid
the legal transcription services. It is not
clear who paid the
applicant’s legal fees, but Mr Mbeleni informed me from the bar
that Mr Jack and the close corporation
use one and the same bank
account. Mr Mbeleni also informed me from the bar that the applicant
consulted him in the week of 16
December 2010. He could not explain
why it took a further three weeks to deliver a simple and
straightforward review application
comprising all of five pages
(including the application for condonation) and setting out only the
following grounds for review:
[3]
‘
In
the arbitration award the second respondent did not deal with the
fact that I disclosed the activity of the Close Corporation
after I
came back from the sick leave.
During cross examination
in arbitration proceedings, Mr Strange testified that Ms Nyameka Fani
was investigated, the outcome revealed
that Ms Nyameka and Dr
Balintulo were the members of the Close Corporation. He further wrote
a recommendation to the City Manager
recommending that Ms Fani be
charged.
Ms Fani Nyameki was not
charged.’
19.
The applicant also fails to explain why
SAMWU, the trade union that assisted him at the internal disciplinary
hearing and at the
arbitration proceedings, was not able to assist
him in instituting review proceedings. He only says that SAMWU
informed him on
16 December 2010 that they would not assist him in
the application for review.
20.
The applicant and his attorney also argued
that they could not obtain the arbitrator’s details from the
bargaining council,
as it was closed from 16 December 2010 to 12
January 2011. Given that the arbitrator’s full name and
designation appear on
the last page of her award, the excuse that the
applicant needed to obtain her full details from the offices of the
bargaining
council is not persuasive. The review application was in
any event, and quite obviously, delivered to her at the address of
the
bargaining council. Those details have always been known to the
applicant, as he had referred a dispute to the bargaining council.
21.
The
applicant’s explanation for the delay, the precise length of
which is uncertain, is set out in a needlessly bald and vague
manner
and cannot by any stretch of the word be said to be “compelling”.
The application for condonation should be
refused on this ground
alone.
[4]
22.
Insofar
as the applicant seeks to blame the late filing of the review
application on his attorney, that cannot assist him. This
court has
held numerous times that there is a degree beyond which a litigant
cannot hide behind the remissness of his legal representative.
[5]
23.
The explanation for the delay is so weak
that the application for condonation should be dismissed on this
ground alone. I shall
nevertheless deal with the prospects of
success, ie the merits of the application for review.
PROSPECTS OF
SUCCESS
24.
The applicant has altogether failed to deal
with the prospects of success on the merits in the application for
condoning his failure
to institute review proceedings within six
weeks and the application is thus in any event fatally flawed.
25.
Only at end of the application condoning
the late filing of the supplementary affidavit, and even then, only
as an afterthought,
does the applicant state:
‘
My
Application [for review] has prospects of success when the matter is
heard before the Honourable Court.’
26.
Even if this allegation could be said to
apply to the application for the failure to institute these
proceedings within six weeks,
which it does not as it was not made in
the initial founding affidavit, it in no way indicates how the
applicant’s prospects
of success are ‘strong’.
27.
In
any event, the applicant’s prospects of success are in fact
weak. The grounds for review relied on by the applicant at
best
constitute grounds for an appeal. At the outset of his oral argument,
I asked Mr Mbeleni what the applicable test on review
was, as he had
not set it out in his heads of argument. His response was that the
test was “whether the arbitrator was incorrect”.
This is
clearly wrong in the light of
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[6]
and tainted the whole application.
28.
Two
days before this matter was heard, the Supreme Court of Appeal
reiterated the distinction between appeal and review in
FAWU
v Pioneer Foods.
[7]
Navsa
JA remarked:
‘
This
case, as many others before it, demonstrates, once again, how
difficult it is to keep the dividing line between appeal and
review.
This is so because, almost inevitably, in reviewing a commissioner’s
award the Labour Court deals with the merits
of a case. Yet that
dividing line has to be kept. See
Sidumo
paras 109 and 244 and the decision of
this court in
Shoprite Checkers (Pty)
Ltd v CCMA
2009 (3) SA 493
para 28. In
Shoprite
para
30, this court stated the following in relation to the review powers
of the Labour Court:
“
Its
warrant for interference with the award of the arbitrator was
narrowly confined.”’
Navsa JA further referred
with approval to an article of Prof Paul Benjamin:
‘
Paul
Benjamin in “Friend or Foe? The impact of Judicial Decisions on
the operation of the CCMA” (2007) 28
ILJ
1, correctly states that the dispute
resolution procedure introduced by the LRA sought to incorporate
review proceedings of arbitration
awards by the labour courts in a
manner that would not undermine the purposes of a system of
expeditious dispute resolution. He
points out that the exclusion of a
right to appeal against a decision of an arbitrator was designed to
speed up the process and
free it from the legalism that accompanies
appeals as well as to avoid inordinate delays and high costs that
flow from appeal hearings.
The learned author refers to s 145 of the
LRA and correctly states that it was intended to create a narrow
ground of review, subject
to shorter time periods. He rightly
concludes that the institution of a review does effectively
constitute a major delay to the
resolution of the disputes. At the
time of the article the average time taken for the Labour Court to
hear a review application
was 23 months from the date of the
arbitration award. Statistics provided by the author shows how
extensively, before the Constitutional
Court judgment in
Sidumo
,
employers used review applications. Dealing with this Court’s
judgment in
Sidumo
before
its ultimate hearing in the Constitutional Court, the author
contemplates whether the flood of review applications would
be
reduced by this court’s decision. He concluded that it is more
likely that it would increase the number of reviews. In
the event of
the submissions by the applicants being upheld the system would, in
my view, be flooded, with the likelihood of a
greater number of
reviews being brought by employers.’
29.
This is one of those cases where the
dispute resolution process envisaged by the LRA has been undermined
by the applicant lodging
an appeal in the guise of a review
application.
30.
The applicant has not alleged that the
arbitrator committed a gross irregularity in the conduct of the
arbitration. Nor has he alleged
that the decision reached by the
arbitrator was so unreasonable that no reasonable decision-maker
could have reached it.
31.
He has in essence simply alleged that the
arbitrator erred in the manner in which she weighed up the evidence,
as Mr
Mbeleni
reiterated in his oral argument. As such he is seeking a rehearing on
the merits which he is not entitled to.
32.
In his replying affidavit, the applicant
has attempted to adduce further grounds for review. They are the
following:
‘
(a)
it is difficult to find work;
(b) I am the bread
winner;
(c) my wife was pregnant;
(d) I have a child who is
[…] years of age; and
(e) I have a nephew and a
niece that I have to support.’
33.
Notwithstanding that the applicant is not
entitled to make out a new case in reply, these appear to be
mitigating factors to be
taken into account when considering whether
or not an employee should be dismissed. They do not constitute
grounds upon which the
arbitrator’s award can be reviewed.
CONDONATION FOR THE
LATE FILING OF THE SUPPLEMENTARY AFFIDAVIT
34.
The record was made available by the
bargaining council on 15 February 2011. Accordingly the supplementary
affidavit should have
been filed by no later than 1 March 2011. In
the event, it was filed on 29 March 2011, exactly four weeks late.
35.
Similarly in this further application for
condonation the applicant’s attempts at demonstrating good
cause are once again
set out in a needlessly vague and bald manner.
35.1.
The applicant again provides no details as
to why he was required to raise additional funds to pay R9 356,
00 for the transcription
of the recording of the arbitration
proceedings. Given that the salary he earned at the City was
R840 000, 00 per annum, this
allegation is without further
explanation, highly improbable.
35.2.
Again the applicant does not take this
Court into his confidence by explaining what avenues he explored for
funding, how long this
took him and how he ultimately raised the
money.
36.
In reply, the applicant attached a “notice
of payment” dated 20 April 2011 (after the City had filed its
opposing affidavit)
which reflects an amount of R 9 356, 00 paid
by “Career Mobile Services CC” on 4 March 2011. The
account number
and reference number correspond to those on the
quotation of Legal Transcriptions CC.
36.1.
No explanation is offered for why the funds
have been channelled through the bank account of the very close
corporation at the centre
of this dispute (a close corporation which
the applicant repeatedly claimed he was not actively involved in). Mr
Mbeleni stated
from the bar that the applicant and the close
corporation operated one and the same bank account.
36.2.
The applicant claims in reply that that he
“had to borrow money from friends” and that he “had
to sell two cows”.
However he is precluded from making out a
case for condonation in his replying papers.
37.
The applicant also fails to explain why,
despite making payment to Legal Transcriptions on 4 March 2011 for
“urgent transcription”,
and notwithstanding their quoted
turnaround time of seven days as well as their oral assurance to the
applicant’s attorney
that they would be able to do the work
within three days, the transcript was only available on 22 March
2011.
37.1.
Finally, contrary to Mr Mbeleni’s
assertion on behalf of his client, it is not the responsibility of
the decision-making body
to type up the transcript of the recorded
proceedings. It is clear from Rule 7A(7) that ‘the costs of
transcription of the
record, copying and delivery of the record and
reasons, if any, must be paid by the applicant and then becomes costs
in the cause’.
38.
Accordingly the applicant has not provided
a reasonably acceptable explanation for his failure to file the
supplementary affidavit
on time.
39.
He has, for the same reasons referred to
above, not made out a case as to why he claims to have strong
prospects of success, stating
simply that he ‘has prospects of
success’.
40.
In the circumstances the applicant has not
demonstrated good cause upon which this Court should exercise its
discretion to condone
either the late institution of the review
application or the late filing of the supplementary affidavit. The
application for review
should accordingly be dismissed with costs on
these grounds alone. As I have indicated, though, I shall
nevertheless deal more
fully with the merits of the review
application as well.
FAILURE TO FILE
HEADS OF ARGUMENT
41.
Against this background of non-compliance
one might have expected that the applicant – or his attorney --
would have perceived
the need to at least file heads of argument
timeously. This was however not the case and the attorney has offered
no explanation
for the late filing of the heads of argument. This
demonstrates a pattern of disregard for the rules of this Court.
42.
Finally, Mr Mbeleni claims in his heads of
argument that the City’s attorneys advised him that they would
not oppose ‘the
application for condonation’. He
persisted with this statement in oral argument. The letter referred
to however clearly deals
with the extension agreed to by the City’s
attorneys for the applicant to file his replying affidavit after the
due date.
This is in fact the explanation offered by the applicant
for failing to file his replying affidavit on time.
43.
It is inexplicable how Mr Mbeleni could
have construed this indulgence by the City’s attorneys in any
other way.
THE MERITS: SUMMARY
OF RELEVANT FACTS
44.
The following relevant facts appear from
the record of the proceedings and were before the arbitrator when she
made her award.
44.1.
The applicant was employed by the City from
1 May 2005 to 4 January 2010. The applicant claims his employment was
terminated on
12 December 2009. Nothing turns on this dispute.
44.2.
At the time of his dismissal, the applicant
was employed in a senior position as the Manager of the Integrated
Development Programme
and earned approximately R 840 000, 00 per
annum.
44.3.
The terms of the applicant’s
employment agreement with the City included
inter
alia
the following:
44.3.1.A
general duty to ‘devote the whole of his time and attention to
the performance of his duties under this agreement
during usual
business hours and after usual business hours when reasonably
required to do so; to display a high duty of care and
good faith in
the performance of his duties; [and] well and faithfully to serve the
City and use his…best endeavours to
promote its interests’.
44.3.2.
A specific duty to comply with the Code of
Conduct for municipal staff members set out in Schedule 2 of the
Local Government Municipal Systems Act 32 of 2000
. Section 4(2) of
the Systems Act prohibits staff from being involved in any business
other than the work of the municipality without
the employer’s
prior consent.
44.3.3.
The applicant was required to ‘disclose
in writing to the City by 31 July each year for the duration of [his]
contract all
his…current directorships (regardless of how much
time they take up) and all his…outside interests and
activities
which take up more than an average of 6 (six) hours per
week, and shall obtain the approval of the City Manager for
continuing
to hold such directorships and remain involved in such
outside interests and activities’.
44.3.4.
In terms of Annexure A to the City’s
Disciplinary Code (“the Disciplinary Code”) setting out
the “Conduct
and Standards”, the applicant was ‘expected
to comply in every respect with the conditions of employment and
collective
agreements and any related regulations, order, policy and
practice’. The applicant was also obliged to ‘refrain
from
accepting any other employment outside of normal working hours
without the
prior
permission of the Department Head or Municipal Manager, which
permission shall not be unreasonably withheld’. [underlining
added].
44.3.5.
The applicant was bound by the City’s
Policy on “Private Work and the Declaration of Interest in
Companies or Close
Corporations” (“the Private Work
Policy”).
44.4.
On 20 October 2009 the applicant was given
notice to attend a disciplinary hearing in respect of two charges,
namely:
44.4.1.
That he had committed an act of serious
misconduct by submitting a sick leave application form, requesting
sick leave and being
paid for sick leave, including for 19 December
2008, when in fact he was performing private work; and
44.4.2.
That he had committed an act of serious
misconduct in that he had engaged in a business called Career Mobile
Services CC trading
as Research and Performance Solutions (“
RAPS
”),
from at least August 2008 to at least February 2009 in violation of
the City’s policy on private work and declaration
of interests
in companies and close corporations.
44.5.
The charges arose out of an annual report
prepared for the Oudtshoorn Municipality by RAPS, the trading name of
the close corporation
of which the applicant is the sole member.
44.6.
An internal audit by Oudtshoorn
Municipality, triggered by the fact that one quotation only had been
obtained for the compiling
of the annual report, led to a forensic
investigation which linked the applicant to RAPS. This information
was then passed on to
the City.
44.7.
The applicant was found guilty of both
charges at the internal disciplinary hearing and was dismissed.
44.8.
The applicant referred a dispute for
arbitration to the bargaining council, claiming that his dismissal
was substantively unfair.
The main defence raised by the applicant at
arbitration was that he had not performed the work of producing the
Annual Report for
Oudtshoorn Municipality but that this had been done
by his alleged partner, Dr Balintulo.
44.9.
The applicant testified that he had won the
CC in a business competition prior to commencing work with the first
respondent. He
disclosed his ownership of the CC to Dr Wallace Mgoqi
(‘Dr Mgoqi’), the former City Manager, at the time of his
interview
but said that it was dormant. Dr Mgoqi allegedly told the
applicant that this would not be a problem as long as it did not
interfere
with the applicant’s work.
44.10.
At that time, so the applicant testified,
he had no intention of using the CC. However he was subsequently
approached by Dr Balintulo
(in 2007) who asked if he could conduct
business through RAPS.
44.11.
Although the applicant is the only member
of RAPS registered on the founding statement, he claims that Dr
Balintulo and Ms Nyameka
Fani (“Ms Fani”) were also
members. This is based on an alleged oral partnership agreement the
applicant had with Dr
Balintulo and Ms Fani.
44.12.
In terms of this alleged agreement, the
applicant would sell 40% of his members’ interest to Dr
Balintulo and 20% to Ms Fani.
This would however only be paid for at
a later stage. He would retain the remaining 40%. The applicant
admitted that no amended
founding statement was ever lodged with the
Registrar of Companies and Close Corporations, offering simply the
excuse that he ‘was
very busy’.
44.13.
In reply the applicant claims that his
‘intentions were to give Dr Balintulo and Nyameka Fani shares
in the CC’. This
is in direct conflict with his earlier
insistence in the replying affidavit that Dr Balintulo and Ms Fani
were also members of
the CC.
44.14.
The applicant also clearly indicated in a
belated declaration of interest and application for private work that
he was the owner
of 100% of RAPS.
44.15.
Notwithstanding these claims, the proposal
sent to Oudtshoorn Municipality was on a RAPS letterhead containing
all the applicant’s
details and was signed by the applicant.
Significantly, the letter purported to be signed by “Themba
Jack, Managing Director”
and not by Dr Balintulo; it was
purportedly sent from Jack’s residential address; and it
provided his personal email address
and cellphone numbers, and not
those of Balintulo, as contact details. Similarly the invoice for an
amount of R 82 627, 00
sent by RAPS to Oudtshoorn Municipality
was also signed by the applicant and not by Balintulo.
44.16.
The applicant’s explanation for this
was that he had given his electronic signature and the letterhead of
RAPS with all of
his contact details on it to Dr Balintulo. He also
testified that he had prepared a
pro
forma
proposal for Dr Balintulo to use.
44.17.
The applicant’s signature was on the
attendance register for a meeting at Oudtshoorn Municipality held on
19 December 2008.
At the arbitration, he confirmed that this was his
signature. At the internal disciplinary hearing, the applicant denied
ever having
gone Oudtshoorn.
44.18.
However at the arbitration proceedings he
changed his version to say that he had in fact gone to Oudtshoorn but
not on 19 December
2008 as alleged by the first respondent. Instead
he claimed he had gone there on 5 September 2008, as “the owner
of the company”
to secure the contract for Dr Balintulo. He
claimed that he had simply forgotten about the previous trip to
Oudtshoorn as he was
on anti-depressant medication.
44.19.
Yet once he had been charged and advised to
attend the disciplinary hearing, he admitted that he had told Dr Van
der Merwe, his
immediate superior, that he had gone to Oudtshoorn.
44.20.
The applicant in his replying affidavit,
makes much of the fact that he nevertheless denied mentioning to Dr
Van der Merwe any specific
amount that he earned. This does not
detract from the fact that between the time that he was charged and
the disciplinary hearing
he admitted to Dr Van der Merwe that he had
gone to Oudtshoorn. Yet at the disciplinary hearing itself he
neglected to put up the
version that he had indeed gone to Oudtshoorn
on 5 September 2008. Notwithstanding the comments of the arbitrator
in her award
that the applicant’s excuse for this was
‘reasonable’, I agree with Mr
Kahanovitz
that this version is highly improbable; but that is not part of the
review application before me.
44.21.
Dr Balintulo allegedly went to the meeting
at Oudtshoorn Municipality on 19 December 2008 after the applicant
declined his request
to attend. Dr Balintulo had also allegedly
written the annual report and sent out the invoices himself.
44.22.
The next time the applicant heard about the
issue, he says, was when he contacted Dr Balintulo to ask him how
much RAPS had earned
so that he could fill out the form for the
declaration of interest and application to do private work in March
2009.
44.23.
The applicant testified that when he
returned to work in February 2009 from approximately two months of
sick leave he was prompted
to make the declaration of interest and
apply for permission to do private work after a colleague informed
him that the Private
Work Policy had been amended.
44.24.
On 26 March 2009, the applicant both
declared his interest in RAPS and applied for permission to conduct
private business by providing
‘corporate governance advice’.
The applicant indicated at three separate places in his declaration
of interest that
RAPS was involved in ‘corporate governance,
head-hunting and performance management’. Dr Van der Merwe
testified that
the compiling of annual reports is a component of
performance management and one the applicant is instrumentally
involved in for
the City.
44.25.
Dr Van der Merwe also testified that he had
approved the applicant’s application on the basis that the
applicant had told
him he was not actively involved in managing the
business, but that he would never have done so had the applicant
mentioned that
he was providing services to the Oudtshoorn
Municipality. He also pointed out that the applicant had, in
discussion, indicated
that he would be providing services to private
businesses.
44.26.
Dr Van der Merwe testified that larger
municipalities have a duty to assist smaller municipalities.
Therefore there was a clear
conflict of interest in the applicant
providing services for a fee to another municipality which he would
ordinarily have been
required to provide in the course of his
employment with the first respondent.
44.27.
Although the applicant filled in the amount
of R 82 500, 00 under remuneration received from RAPS, he
testified that he never
received any of that money and he only
declared it because it was his company. He claimed that in terms of
the alleged agreement
with Dr Balintulo the person who did the work
would earn the money for the work done.
44.28.
Despite confirming that he was familiar
with the term of his employment contract that he was required to
disclose, by 31 July each
year, all his current directorships,
regardless of the amount of time they take up, the applicant
insisted, both at the arbitration
proceedings and in his replying
affidavit, that because RAPS was a dormant company and did not take
up more than six hours a week
of his time, he did not need to. This
is a disingenuous argument.
44.29.
The applicant conceded that after his
initial disclosure to Dr Mgoqi at his job interview he did not make
any formal or informal
disclosures until March 2009.
44.30.
The only application ever submitted by the
applicant to do private work was on 26 March 2009. There was no
permission to do private
work on either 28 August 2008 when the
proposal from RAPS was sent to Oudtshoorn Municipality or on 28
January 2009 when the invoice
for work done was submitted by RAPS to
Oudtshoorn Municipality.
44.31.
The applicant agreed that the Disciplinary
Code applied to him and that it required the applicant to obtain
“prior”
permission for outside work. Similarly the
applicant confirmed that the Private Work Policy was in place prior
to his employment
with the City and the Disciplinary Code required
him to familiarise himself and comply with all polices.
44.32.
The applicant conceded that there was a
conflict of interest as RAPS was now active and the work Dr Balintulo
was doing was for
local government.
45.
Therefore on his own version the applicant
knew by 5 September 2008 at the latest, that RAPS was tendering to
provide work to other
municipalities. The applicant therefore
conceded that a conflict of interest was present (even where the work
was done by Dr Balintulo).
46.
Although the applicant produced an
affidavit from Dr Mgoqi, neither Dr Balintulo nor Ms Fani was called
by the applicant to testify
on his behalf. His reasons for not
calling these people to testify ranged from a sense he had that they
did not wish cross the
DA, to the fact that he regarded Dr Balintulo
as his senior and that there was some dispute between them about the
tax payable
by RAPS for income earned.
SUMMARY OF THE
ARBITRATOR’S FINDINGS
47.
The arbitrator made the following findings:
47.1.
In respect of the first charge against the
applicant, she (the arbitrator) found that the City had not
discharged the onus of proving
that the applicant had been in
Oudtshoorn on 19 December 2008. Taking into account the employer’s
onus, she was prepared
to accept the version now raised by the
applicant that he had been there on 5 September and not 19 December
2008. Thus, although
he was found to have breached his obligation not
to take on private work, he was not found to have also abused his
sick leave for
this purpose. The first charge has therefore
fallen away and does not form part of this review application.
47.2.
In respect of the second charge the
arbitrator found that the applicant was under an obligation in terms
of the City’s Private
Work Policy to seek permission prior to
engaging in private work. The applicant was the sole member of RAPS
and it was common cause
that RAPS had performed work for a
municipality without the prior consent of the City and that this work
created a conflict of
interest.
47.3.
The arbitrator noted that ‘[t]he
applicant had gone to great lengths to remove himself from the
business dealings of Dr Balintulo’
in order to disclaim
responsibility for RAPS’s transactions with the Municipality
but the applicant had failed to call additional
witnesses who could
have supported his version that it was Dr Balintulo only who had done
the work for the Oudtshoorn Municipality.
47.4.
He had failed to call his most important
witness and cited various reasons for not calling him. The arbitrator
however found that
‘[t]here was no need to protect Dr Balintulo
if the applicant, and Dr Balintulo for that matter, were doing honest
dealings’.
47.5.
She found however that there was no basis
in law for the contention that there was no relationship between the
applicant and Dr
Balintulo. The applicant was the sole member of the
CC. Dr Balintulo was (at best) an employee or an agent of RAPS. Dr
Balintulo
also could not have been a director, as the misleading
letterhead claimed, as close corporations do not have directors. It
was
thus clear that the applicant had engaged in private work without
the requisite prior permission to do so.
47.6.
The arbitrator therefore found the
applicant guilty on charge two and upheld the decision to dismiss
him, finding his misconduct
to be of a serious nature as it involved
dishonesty.
GROUNDS FOR REVIEW
FOUNDING AFFIDAVIT
48.
The applicant sets out his grounds for
review at paragraphs 11.1 and 11.2 of his founding affidavit. He
claims that:
48.1.
The arbitrator failed to consider the fact
that he had disclosed the activity of RAPS after he came back from
sick leave; and
48.2.
Although the first respondent’s
principal forensic officer, Mr Rod Strange (“Mr Strange”),
had testified that
he had recommended that Ms Fani be charged she was
never charged.
SUPPLEMENTARY
FOUNDING AFFIDAVIT
49.
The applicant then expanded on these
grounds for review in his ‘amended founding affidavit’
and raised these additional
grounds:
49.1.
The arbitrator failed to take into account
the fact that he was only charged approximately seven months after
disclosing his interests;
49.2.
The arbitrator failed to consider that he
was on sick leave during December 2008 and could not disclose prior
to Dr Balintulo attending
the meeting at Oudtshoorn Municipality on
19 December 2008;
49.3.
His failure to disclose timeously did not
prejudice the City;
49.4.
His conduct did not involve an intentional
disregard of the City’s policy but an error of interpretation;
49.5.
The arbitrator failed to take into account
the provisions of the employment contract and the fact that the City
did not prove that
his directorship of RAPS took up more than six
hours per week of his time;
49.6.
The arbitrator did not capture all the
evidence before her;
49.7.
The arbitrator did not apply her mind to
the evidence before her;
49.8.
She ignored the level of honesty
demonstrated by him through his voluntary disclosure of the
activities of RAPS; and
49.9.
She failed to take into account that
dismissal was not a proper sanction.
50.
As I remarked above, these ‘grounds
for review’ do not constitute anything of the sort. They are,
at best, grounds for
an appeal. This court only has jurisdiction to
entertain a review from the bargaining council, not an appeal; and,
as the SCA recently
reminded us, the distinction should be kept
clear.
51.
Each of these grounds is nevertheless dealt
with below.
The arbitrator did not
deal with the fact that the applicant disclosed the activity of RAPS
after he returned from sick leave and
he was unable to make the
disclosure before Dr Balintulo attended the meeting on 19 December
2008
52.
The arbitrator clearly stated twice in her
award that it was ‘not intended to form a comprehensive record
of the evidence
led’ and that ‘[a]ll the evidence has
been considered’.
53.
The applicant’s disclosure of the
activity of RAPS on 26 March 2009 was extensively dealt with by the
applicant in both his
evidence in chief and under cross-examination.
It appears that the arbitrator considered this evidence in reaching
the decisions
set out in her award.
54.
However it is not clear what relevance the
applicant is seeking to place on the timing of his disclosure in
relation to his period
of sick leave.
55.
The applicant was on sick leave for
approximately two months from 17 November 2008 to February 2009.
56.
In terms of his employment contract the
applicant was required to:
56.1.
‘
disclose in writing to the City by
31 July each year for the duration of [his] contract all his…current
directorships (regardless
of how much time they take up) and all his
outside interests and activities which take up more than an average
of six hours per
week, and shall obtain the approval of the City
Manager for continuing to hold such directorships and remain involved
in such outside
interests and activities’; and
56.2.
‘
refrain from accepting any other
employment outside of normal working hours without the prior
permission of the Department Head
or Municipal Manager, which
permission shall not be unreasonably withheld’.
57.
The applicant, on his own version, knew by
no later than 5 September 2008 that his close corporation, RAPS, was
tendering to provide
services to Oudtshoorn Municipality. Most
tellingly he was the person who was instrumental in securing this
work for RAPS.
58.
It is common cause that the first time the
applicant either applied for permission to engage in private work or
declared his directorship
in RAPS (after his initial disclosure at
his interview with Dr Mgoqi) was on 26 March 2009.
59.
Therefore the fact that he was on sick
leave from November 2008 to February 2009 is in no way relevant to
the question of whether
he had prior permission to conduct work,
through RAPS, for the Oudtshoorn Municipality or his failure to
disclose his directorship
in RAPS by 31 July each year and
accordingly whether he was in breach of his contract of employment.
60.
Accordingly the award is not reviewable on
these grounds.
THE ARBITRATOR
FAILED TO CONSIDER THAT MS FANI WAS NOT CHARGED
61.
The applicant claims that the arbitrator
failed to take into account the fact that, despite Mr Strange
testifying that Ms Fani was
a director of RAPS and that he
recommended that she also be charged, she was not charged.
62.
In
this regard, Mr Mbeleni put much store in the unreported judgment of
Tokwe
v Masote NO and Others.
[8]
But in that case the employee was a member of a dormant close
corporation; and the arbitrator had not considered whether dismissal
was an appropriate sanction. In the case before me, despite the
applicant’s denials, it is clear that the close corporation
of
which he was the sole member was active in the relevant period from
August 2008 to February 2009; and the arbitrator specifically
dealt
with the fairness of the sanction in these terms:
‘
The
applicant’s misconduct was serious and dishonest. He held a
senior position and one of responsibility. He knew his actions
were
wrong but nevertheless embarked and continued with it. The applicant
flagrantly disregarded the rules of the respondent and
his actions
can be described as gross. The applicant was depressed and I had
considered his personal circumstances as well. I had
regard to the
guidelines of the disciplinary code of the respondent as well as all
the circumstances of this case. I find that
dismissal was a fair
sanction for this matter.’
63.
Item 7 of the Code of Good Practice:
Dismissal set out in Schedule 8 to the LRA, states that in
considering whether a dismissal
for misconduct was fair regard should
be had to whether a rule or standard was contravened; and if so
whether this rule or standard
was (i) was valid or reasonable, (ii)
was known to the employee, (iii) was consistently applied and (iv)
dismissal was the appropriate
sanction for contravention of the rule.
64.
On the basis of Mr Strange’s
testimony, the applicant appears to take issue with (iii) above,
namely that the rule was not
consistently applied.
65.
It is however clear from the evidence
placed before the arbitrator that the rule was in fact not
inconsistently applied.
65.1.
First, the testimony of Mr Strange that Ms
Fani was a ‘director’ of the applicant was based solely
on the fact that
she was listed as such at the bottom of the RAPS
letterhead. Mr Strange testified further that she was not registered
as a member
of RAPS on the database of the Registrar of Companies and
Close Corporations.
65.2.
The applicant’s testimony that Ms
Fani and Dr Balintulo were directors of RAPS was disregarded as
improbable (and in fact
impossible in terms of company law) by the
arbitrator in her award.
65.3.
The only evidence connecting Ms Fani to
RAPS was the version of the applicant that he had sold 20% of his
members’ interest
in RAPS to her.
65.4.
It was common cause that Ms Fani had never
done any work through RAPS.
65.5.
Ms Fani was not employed in the same
position as the applicant. Her particular terms and conditions of
employment were never placed
before the arbitrator at the arbitration
proceedings nor was it alleged by the applicant, or any evidence
produced to support such
an argument, that Ms Fani had not applied
for permission to engage in private work or declared her interest in
RAPS.
65.6.
At the time of Mr Strange’s report to
the first respondent, Ms Fani’s fixed term contract was about
to expire. The applicant
in fact testified that Ms Fani’s
contract with the City had come to an end on 30 July 2009 –
several months before
the applicant was charged in October 2009. In
oral argument, Mr Mbeleni argued that this was an error and that she
in fact left
the City’s employ shortly before the applicant’s
disciplinary hearing. It is in any event common cause that she was
no
longer employed by the City at that time.
65.7.
Ms Fani, the person best placed to testify
on this point, was never called as a witness by the applicant. The
reason offered by
the applicant for not calling her was that ‘she
does not want to be called and she has nothing - she wants nothing to
do
with anyone’.
66.
It is clear from the evidence before the
arbitrator that the cases of the applicant and Ms Fani were quite
distinct. The fact that
Mr Strange recommended that she be charged is
irrelevant and her involvement with RAPS was covered in evidence.
THE ARBITRATOR
FAILED TO TAKE INTO ACCOUNT THE FACT THAT THE APPLICANT WAS ONLY
CHARGED SEVEN MONTHS AFTER DISCLOSING
67.
The applicant claims that the reason for
the delay in charging him was linked to the fact that he had lodged a
complaint against
Councillor Belinda Walker.
68.
That this was the rationale for charging
the applicant is denied by the City in its opposing papers. The
course of events leading
to the applicant being charged was canvassed
at length in the evidence of Mr Nel and Mr Strange and was not
challenged by the applicant
at the proceedings, namely that:
68.1.
An internal audit was conducted by
Oudtshoorn Municipality into the compiling of the annual report for
which only one quote had
been obtained which lead to a forensic
investigation being commissioned.
68.2.
It was found that there was a link between
the company that produced the annual report and an employee of the
City, namely the applicant
and the acting municipal manager of
Oudtshoorn, Mr Gutas.
68.3.
This information was passed on to the City
which in turn passed it on to its own Forensic Services Department
who conducted an investigation.
68.4.
The forensic officer tasked with
investigating the matter recommended that the applicant be charged.
69.
In
the absence of any evidence to gainsay this, and in particular
evidence that the motive for charging the applicant was the complaint
lodged by him against Ms Walker, the version of the City on this
dispute of fact must be preferred.
[9]
70.
Even in his replying affidavit the
applicant’s claim of a conspiracy against him falls down where
he states that ‘[t]his
mean (sic) that the first respondent was
planning to dismiss me
before
I submit my letter of Complain (sic) on 23 July 2009’. (my
underlining).
71.
It follows that the arbitrator did not fail
to consider that the applicant was only charged seven months after he
disclosed and
that the reason for this was, on the evidence placed
before the arbitrator, unrelated to the complaint lodged by the
applicant.
FAILURE TO DISCLOSE
TIMEOUSLY DID NOT PREJUDICE THE CITY
72.
A conflict of interest arises when a party
who owes a duty to another party instead promotes the interests of a
third party over
those of the party to whom he owes a duty.
73.
By its very nature, a conflict of interest
prejudices the party whose interests are subjugated to the interests
of another party.
74.
The applicant was required, in terms of his
employment contract, ‘to display a high duty of care and good
faith in the performance
of his duties; [and] well and faithfully to
serve the City and use his best endeavours to promote its interests’
.
75.
By being the sole member of a close
corporation that received remuneration for providing services to
another municipality when these
services would ordinarily have been
provided by the applicant within the course of his employment with
the City, the applicant
was placing the interests of RAPS (and hence
his own interests) above those of the City. A conflict of interest
therefore clearly
existed.
76.
The applicant admitted this much under
cross examination when he stated that the reason he disclosed his
interest in RAPS in March
2009 was because the close corporation was
now active and services were being provided to other municipalities.
77.
The applicant claims in his replying
affidavit that he simply ‘testified that there was a potential
conflict of interest because
the close corporation could do work with
the City at any time’.
78.
However Dr Van der Merwe’s testimony
was clear and unchallenged: had he known that RAPS, the close
corporation which the applicant
declared having the sole interest in,
was providing services to other municipalities, he would not have
approved the applicant’s
application to engage in private work
through RAPS. Dr Van der Merwe made it clear both that a duty rested
on larger municipalities
to assist smaller municipalities and that
the work performed by RAPS for Oudtshoorn Municipality was the type
of work which the
applicant was performing for the City.
79.
It is therefore clear that the conflict of
interest was not ‘potential’. It had arisen. It follows
that the applicant’s
failure timeously to disclose did
prejudice the City.
APPLICANT’S
CONDUCT DID NOT INVOLVE AN INTENTIONAL DISREGARD OF THE CITY’S
POLICY BUT AN ERROR OF INTERPRETATION AND
THE FACT THAT THE CITY DID
NOT PROVE THAT HIS DIRECTORSHIP OF RAPS TOOK UP MORE THAN SIX HOURS A
WEEK.
80.
The applicant repeatedly claimed at the
arbitration proceedings that he was not required to disclose his
directorship in RAPS by
31 July each year as required by clause 13.4
of his employment contract as he claimed that it did not take up more
than an average
of 6 hours per week of his time.
81.
The applicant persisted with this claim in
his replying affidavit and in oral argument.
82.
Clause 13.4 is conjunctive and clearly
places a duty on the applicant to do two things, namely to ‘disclose
in writing to
the City by 31 July each year for the duration of [his]
contract:
82.1.
“
all his…current directorships
(regardless of how much time they take up)
and
82.2.
all his…outside interests and
activities which take up more than an average of 6 hours per week”’.
83.
If either or both of the above disclosures
apply then clause 13.4 requires the applicant to ‘obtain the
approval of the City
Manager for continuing to hold such
directorships and remain involved in such outside interests and
activities’.
84.
It therefore beggars belief that the
applicant can persist with his claim that he was not required to
disclose his directorship
of RAPS as it did not take up more than six
hours a week of his time, and claim that the arbitrator should have
considered that
his only fault was an error of interpretation of what
was required by the City’s policy and his employment contract.
85.
It was never the applicant’s
testimony at the arbitration proceedings that he had misinterpreted
his employment contract nor
was this argued in the written
submissions filed on his behalf.
86.
The award is not reviewable on this ground.
THE ARBITRATOR DID
NOT CAPTURE ALL THE EVIDENCE AND DID NOT APPLY HER MIND TO THE
EVIDENCE BEFORE HER.
87.
The testimony at the arbitration
proceedings was captured on a recording device.
88.
In the absence of an indication in his
founding papers as to which evidence the arbitrator allegedly failed
to capture, the applicant
has failed to establish that her award is
reviewable on this ground.
89.
Similarly the applicant does not specify
which evidence the arbitrator allegedly failed to apply her mind to.
90.
In his replying affidavit the applicant
appears to alter his complaint to say that the arbitrator ‘failed
to analyse all the
evidence before her’.
91.
Again, no indication of which evidence the
arbitrator allegedly failed to analyse is provided by the applicant.
This is therefore
a clear indication that the applicant has no
grounds for review but is simply seeking a rehearing on the merits.
THE ARBITRATOR
IGNORED THE LEVEL OF HONESTY DEMONSTRATED BY THE APPLICANT THROUGH
HIS VOLUNTARY DISCLOSURE AND FAILED TO TAKE INTO
ACCOUNT THAT
DISMISSAL WAS NOT A PROPER SANCTION
92.
It is common cause that at the time of RAPS
producing the annual report for Oudtshoorn Municipality the applicant
had neither made
an application to engage in private work or a
declaration of his ownership of RAPS other than at his initial
interview.
93.
When the applicant did finally make the
disclosure and apply for permission in March 2009, he was far less
candid than he would
have this Court believe.
94.
Dr Van der Merwe’s clear and
uncontested testimony was that the applicant had informed him that he
was not actively involved
in the management of RAPS. He also
testified that the applicant told him that RAPS would be providing
services to private businesses.
It was on this basis that the Dr Van
der Merwe approved the applicant’s application.
95.
As the evidence showed this was in fact not
the case.
96.
Clause 2.7.5 of the Annexure to the
Disciplinary Code provides that an employee may be dismissed on the
first occasion for
inter alia
‘any act of gross dishonesty’.
97.
As the arbitrator found that the applicant
had been grossly dishonest, taking into account the nature of his
position and the misconduct,
it follows that dismissal was an
appropriate sanction.
98.
In fact the applicant admitted at the
arbitration proceedings that if a person were found guilty of the
charges he was charged with,
it would be appropriate that he be
dismissed.
99.
The arbitrator therefore clearly considered
the appropriateness of the sanction of dismissal taking into account
the various circumstances.
The award is not reviewable on this
ground.
REASONABLENESS OF
THE AWARD
100.
Although
not specifically raised by the applicant, save for several
unsupported assertions in reply that the second respondent’s
award was unreasonable, I am entitled to consider the reasonableness
of the award.
[10]
101.
The
standard against which the arbitrator’s award must be measured
is whether, taking into account all the evidence placed
before her,
the decision of the arbitrator was so unreasonable that no
decision-maker could have reached this decision.
[11]
102.
This
does not require that the decision of the arbitrator be impeccable.
In many instances decision-makers acting reasonably would
reach
different decisions. The test simply requires that the actual
decision reached is one that a reasonable decision-maker could
not
reach in that it falls outside of the range of reasonable outcomes.
[12]
103.
The arbitrator’s award has not been
shown to be so unreasonable that no decision-maker could have reached
it, taking into
account the evidence set out above, in particular the
fact that:
103.1.
The applicant admitted being bound by the
City’s policies as well as the terms of his employment
contract;
103.2.
He was the sole member of a close
corporation that provided services for remuneration to another
municipality;
103.3.
He admitted going to Oudtshoorn on 5
September 2008 as the owner of the close corporation to present his
company to the Oudtshoorn
Municipality;
103.4.
It is common cause that no prior permission
to engage in private work was obtained at the time of RAPS providing
services to the
Oudtshoorn Municipality nor did the applicant make
any declaration concerning his directorship after his initial
disclosure at
his interview.
104.
The
Supreme Court of Appeal has held that the test enunciated by the
Constitutional Court in
Sidumo
supra
is conceptually no different to the ‘justifiability’ test
set out in
Carephone
(Pty) Ltd v Marcus N.O. and Others
.
[13]
105.
Even on this standard, the arbitrator’s
award was rationally connected to both the reasons for her decision
and the evidence
placed before her.
106.
The award is therefore not reviewable on
this ground.
CONCLUSION
107.
The applicant has failed to make out a
proper case in either of the condonation applications brought by him.
Accordingly, the application
for review should be dismissed with
costs on this basis alone.
108.
Similarly, the applicant has failed to make
out a case for review on any of the various grounds set out in his
founding affidavits.
He has simply sought to claim that the
arbitrator incorrectly weighed up the evidence. As such he is seeking
to appeal her decision
which he is not entitled to do.
109.
With regard to costs, I take into account
the applicant’s and his attorney’s pattern of disregard
for the rules of this
court, and the fact that the application was
entirely without merit from the outset.
RULING
110.
The application for condonation is
dismissed.
111.
The application for review is dismissed.
112.
The applicant is ordered to pay the first
respondent’s costs, such costs to include the costs of two
counsel where so employed.
_______________
STEENKAMP J
JUDGE
OF THE LABOUR COURT
Heard:
1 December 2011
Delivered:
9 December 2011
APPEARANCES:
Applicant:
B.
Mbeleni of Tsengiwe Mbeleni Attorneys.
First Respondent
:
C.S. Kahanovitz SC
(Assisted
by S. Fergus in drafting of heads of argument)
Instructed
by Webber Wentzel.
[1]
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at 211F - I. See also
Foster
v Stewart Scott Inc
(1997)
18
ILJ
367
(LAC) at 369C - E; and
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532 B - F.
[2]
See
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
(2000)
21
ILJ
166 (LAC) at 174E-I; and
A
Hardrodt (SA) (Pty) Ltd v Behardien and Another
(2002)
23
ILJ
1229
(LAC) at 1231A and 1234A.
[3]
Quoted
verbatim.
[4]
See
in general
National
Union of Metalworkers of SA obo Nkuna and Others v Wilson
Drills-Bore (Pty) Ltd t/a A and G Electrical
(2007)
28
ILJ
2030
(LC) at 2034A - B.
[5]
Saloojee
v Minister of Community Development
1965
(2) SA 135
(A) 141 B-H;
Khan
v Cadbury SA (Pty) Ltd
[2011] JOL 27124
(LC);
Silplat
v CCMA and Others
[2008] ZALC 33
;
[2011] 8 BLLR 798
(LC) at para 54.
[6]
(2007)
28
ILJ
2405 (CC).
[7]
[2011] ZASCA 210
(29 November 2011) para [22]. See also
SAMWU
v Ethekwini Municipality
(LAC case number DA 6/09, 29 November 2011) para [18]; and
Bestel
v Astral Operations
[2011]
2 BLLR 129
(LAC) para [18].
[8]
[2009]
ZALC 26
(
Case
no JR 113/08, 27 February 2009).
[9]
In
this regard see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 635B;
Masombuka
v Mashiane N.O. and Others
(JR
2619/05)
[2009] ZALC 16
(3 February 2009) at para 13.
[10]
See:
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
(2008)
20
ILJ
2461
(CC) at para 131, per O’Regan J.
[11]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405
(CC) at para 110; and
Fidelity
Cash Management Service v CCMA and Others
(2008)
29
ILJ
964 (LAC) at para 103.
[12]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others (supra)
at
para 118-119.
[13]
(1998)
19
ILJ
1425
(LAC) and see also
Edcon
v Pillemer N.O. and Others
[2010]
1 BLLR 1
(SCA) at 9E-G.