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[2012] ZALCCT 56
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Independent Municipal And Allied Trade Union obo Strydom (CA08/08) [2012] ZALCCT 56 (13 February 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, HELD IN CAPE TOWN
JUDGMENT
case
no: CA 08/08
In the matter between:
THE INDEPENDENT
MUNICIPAL AND
ALLIED
TRADE UNION obo ANTON STRYDOM
Appellan
t
(Applicant
in court
a quo
)
and
WITZENBURG
MUNICIPALITY
First Respondent
THE SOUTH AFRICAN
LOCAL
GOVERNMENT BARGAINING
COUNCIL
Second
Respondent
PIET VAN STADEN
N.O.
Third Respondent
Delivered:
13 February 2012
CORAM:
WAGLAY, DJP; ZONDI, AJA
et
MOLEMELA, AJA
JUDGMENT
MOLEMELA
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court in which
it dismissed an
application to review and set aside an arbitration
award issued by the third respondent (“the commissioner”)
under
the auspices of the second respondent. The appeal arises from
the dismissal of a Mr Strydom (“the employee”), a member
of the appellant trade union, by the first respondent (“the
employer”) pursuant to an enquiry into the employee’s
incapacity on the grounds of illness. The incapacity enquiry having
culminated in the employee’s dismissal, the commissioner
subsequently found that the employee’s dismissal was
procedurally and substantively fair. The court
a quo
dismissed
an application to review the award. The appellant approaches this
Court with leave of the court
a quo
. There is no opposition to
the appeal.
Application for
condonation
[2]
At the commencement of the proceedings this court had to determine an
application
brought by the appellant for condonation of its
non-compliance with the rules pertaining to the filing of the appeal
record, the
notice of appeal, as well as the power of attorney. This
Court, being satisfied with service of the application on the first
respondent,
was of the view that the appellant had made a proper case
for the granting of condonation and accordingly granted the order and
re-instated the appeal.
Background
[3]
The employee previously held the position of “Town Clerk”
until December
2000. After a merger of several municipalities to form
the first respondent, the employee occupied the position of Senior
Administration
Officer while acting as its Municipal Manager. Between
May 2004 and January 2005, he was absent from the workplace due to
illness
for about eight months, during which period he was booked
off-sick on the grounds of a mental condition, viz ‘major
depression
disorder with symptoms of post traumatic stress disorder’.
Throughout this period of absence, the employer did not initiate
any
enquiry into the employee’s absence on account of ill-health.
During January 2005 the employee applied for ill-health
retirement
benefits, a procedure commonly referred to as “medical
boarding”, from his pension scheme, which was underwritten
by
Metropolitan Insurance Company (“Metropolitan”). Although
the employer was aware of the employee’s application
for
medical boarding, it took no steps whatsoever for a further four
months. It was only after the employer received Metropolitan’s
notification of its repudiation of the employee’s claim that
the employer directed two letters to the employee. The first
letter
enquired as to the employee’s intended date of resumption of
duties in light of Metropolitan’s attitude to his
claim.
Curiously, on the same day, the employer directed another letter to
the employee notifying him about an enquiry that was
to be held into
his incapacity. The enquiry was subsequently held during July 2005.
The enquiry found that the employee was incapacitated
from performing
his functions with the employer on a permanent basis. The employee
referred an unfair dismissal dispute to the
second respondent and, in
his referral for arbitration, alleged that the incapacity enquiry was
incomplete as he had indicated
that he wanted to obtain a report from
another psychiatrist but was not permitted to do so. The relief
sought by the employee was
that of re-instatement, alternatively
compensation. The commissioner found that the dismissal was
procedurally and substantively
fair. The employee unsuccessfully
launched an application for a review of the award and now approaches
this court on appeal.
Issues in the
appeal
[4]
The essence of the appellant’s appeal is (1) whether the
employer failed to
give any effect to its obligations as enunciated
in item 10 and 11 of Schedule 8 to the Labour Relations Act 66 of
1995 (the “LRA”);
(2) whether the afore-mentioned
non-compliance with the schedule resulted in the employee being
dismissed unfairly; (3) whether
the commissioner’s finding that
the dismissal was fair, was reasonable considering the employer’s
patent disregard
of the aforementioned Schedule; (4) whether the
court
a quo
erred in not setting the award aside and in the
process made fundamentally erroneous findings of fact.
The relevant
provisions of the LRA
[5]
It is apt to refer to section 188(2) of the LRA. It provides that:
‘
any
person considering whether or not the reason for dismissal is a fair
reason or whether or not the dismissal was effected in
accordance
with a fair procedure
must take into
account any relevant code of good practice
issued in terms of this Act
’
.
(my
emphasis).
Schedule
8 to the LRA embodies the code in relation to dismissal. Items 10 and
11 thereof provide as follows:
‘
10:
Incapacity: Ill-health or injury
(1) Incapacity on the
grounds of ill-health or injury may be temporary or permanent. If an
employee is temporarily unable to work
in these circumstances, the
employer should investigate the extent of the incapacity or the
injury. If the employee is likely to
be absent for a time that is
unreasonably long in the circumstances, the employer should
investigate all the possible alternatives
short of dismissal. When
alternatives are considered, relevant factors might include the
nature of the job, the period of absence,
the seriousness of the
illness or injury and the possibility of securing a temporary
replacement for the ill or injured employee.
In cases of permanent
incapacity, the employer should ascertain the possibility of securing
alternative employment, or adapting
the duties or work circumstances
of the employee to accommodate the employee’s disability.
(2) In the process of the
investigation referred to in subsection (1) the employee should be
allowed the opportunity to state a
case in response and to be
assisted by a trade union representative or fellow employee.
(3) The degree of
incapacity is relevant to the fairness of the dismissal. The cause of
the incapacity may also be relevant. In
the case of certain kinds of
incapacity, for example alcoholism or drug abuse, counselling and
rehabilitation may be appropriate
steps to consider.
(4) Particular
consideration should be given to employees who are injured at work or
who are incapacitated by work-related illness.
The courts have
indicated that the duty on the employer to accommodate incapacity of
the employee is more onerous in these circumstances.
11 Guidelines in cases
of dismissal arising from ill-health or injury.
Any person determining
whether a dismissal arising from ill-health is unfair should
consider-
(a) whether or not the
employee is capable of performing the work; and
(b) if the employee is
not capable-
(i) the extent to which
the employee is able to perform the work;
(ii) the extent to which
the employee’s work circumstances might be adapted to
accommodate disability, or where this is not
possible, the extent to
which the employee’s duties might be adapted; and
(iii) the availability of
any suitable alternative work.’
[6]
It is trite that the code of good practice is binding on
commissioners. See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
(“The
Sidumo
case”).
My reading of item 10 and 11 gives me the impression that an
incapacity enquiry is mainly aimed at assessing whether
the employee
is capable of performing his or her duties, be it in the position he
or she occupied before the enquiry or in any
suitable alternative
position. I am of the view that the conclusion as to the employee’s
capability or otherwise can only
be reached once a proper assessment
of the employee’s condition has been made. Importantly, if the
assessment reveals that
the employee is permanently incapacitated,
the enquiry does not end there, the employer must then establish
whether it cannot adapt
the employee’s work circumstances so as
to accommodate the incapacity, or adapt the employee’s duties,
or provide him
with alternative work if same is available.
[7]
I must mention that I have no doubt in my mind that permanent
incapacity arising from
ill-health or injury is recognised as a
legitimate reason for terminating an employment relationship and thus
an employer is not
obliged to retain an employee who is permanently
incapacitated if such employee’s working circumstances or
duties cannot
be adapted. A dismissal would, under such circumstances
be fair, provided that it was predicated on a proper investigation
into
the extent of the incapacity, as well as a consideration of
possible alternatives to dismissal.
[8]
The afore-mentioned obligations of the employer as set out in items
10 and 11 of Schedule
8 to the LRA are inter-related with similar
obligations in the
Employment Equity Act 55 of 1998
. In their work
Employment Equity Law
2001:
7-3 to 7.4
,
J L Pretorius
et al
submit that the duty of reasonable accommodation of employees by
employers is not confined to the
Employment Equity Act but
‘is
a duty that is implied in the concept of unfair discrimination in a
general sense’and …‘is one of
the judicial and
legislative tools for realising substantive equality’.
I
agree with this submission. Surely non-compliance with such an
important constitutional imperative would not only impact on
procedural
fairness but on the substantive fairness of the dismissal
as well?
[9]
I am of the view that the provisions of item 10 and 11 are
inextricably tied and thus
non-compliance therewith would render a
dismissal both procedurally and substantively unfair. This view is
strengthened by the
following remarks made by the former Labour
Appeal Court in
National
Union of Mineworkers and Another v Libanon Gold Mining Co Ltd,
[2]
where
the court interpreted the relevant provision of the previous
Labour
Relations Act as
follows
:
‘
I
n
my view it would not be fair to dismiss an
employee without first exhausting the possible alternatives. …What
is in issue
is the respondent’s act of terminating the
appellant’s employment. Observance of a fair process is in my
view fundamental
to the question whether its decision to do so was
fair. In my view, the fairness or otherwise of the decision cannot be
divorced
from the process by which it was arrived at.’
[10]
In the case of
Samancor
Tubatse Ferrochrome v Metal & Engineering Industries Bargaining
Council and Others,
[3]
(
the
court, dealing with a dismissal based on incapacity albeit not one
related to illness, stated as follows:
‘
Manifestly,
the question as to whether a dismissal in the circumstances of the
present dispute is substantively fair depends upon
the facts of the
case. An employer needs to consider the reasons for the incapacity,
the extent of the incapacity, whether it is
permanent or temporary,
and whether any alternatives to dismissal do exist
’
.
The
approach followed by the chairperson of the incapacity enquiry
[11]
The incapacity enquiry was held on the 25
th
July 2005,
approximately six months after the employee had unsuccessfully
applied for early retirement benefits. At the enquiry,
the employer
relied on the medical report filed by a dr van Niekerk (a
psychiatrist) which was attached as a supporting document
to the
employee’s application for early retirement benefits. The
employer also relied on the assessment report submitted
by
Metropolitan in support of its decision repudiating the employee’s
application. As stated before, at the time of the enquiry,
dr van
Niekerk’s report was six months old. The latter report
inter
alia
stated as follows:
‘
Whilst
we do not dispute that the claimant is currently precluded from
returning to his own occupation with the current employer,
it is our
opinion that it would be premature to establish the permanence of
ongoing incapacity at this early stage. Since the claimant’s
symptoms reportedly stabilise when removed from the specific stressor
of his own workplace, it is accepted that with ongoing psychotherapy
and special management, the claimant is deemed capable of resuming
his own occupation or reasonable alternative duties within the
open
labour market in the future’.
[12]
Having considered both dr van Niekerk’s medical report and the
Metropolitan’s evaluation
report, the chairperson of the
enquiry concluded that the employee’s continued employment with
the employer would be contrary
to medical opinion and would not be
viable. It is not clear from the enquiry’s outcome report as to
why the chairperson found
that ‘insufficient argument had
presented for me to conclude that the condition of the employee is
directly linked to his
work circumstances (sic) when the undisputed
medical evidence as embodied in dr van Niekerk’s report
actually stated that
the employee’s condition was indeed caused
by work-related stress. Furthermore, he chose to finalise the enquiry
on the basis
of a medical report that was issued six months prior to
the enquiry, despite the employee having indicated that he intended
seeking
a second opinion from another psychiatrist. Clearly, reliance
on an out of date report compromises the making of a proper
assessment
of the extent of an employee’s incapacity.
[13]
Furthermore, the chairperson of the enquiry seems to have used the
enquiry for other purposes
which had nothing to do with establishing
the extent of the employee’s incapacity, thus fortifying the
appellant’s
contention that the enquiry was not only about
incapacity but also about misconduct. I would agree with this
contention based on
the following utterances made by the chairperson
of the enquiry: Firstly, having correctly stated in the introductory
part of the
outcome report that his role was primarily to decide the
degree of incapacity and to determine to what extent the employee
could
continue to perform his duty, he went on to state that the
issue to be decided was ‘
not whether the employee is fit for
duty or not but goes beyond that
. It would highly be
inappropriate as chairperson to make such a recommendation since I am
not a qualified medical practitioner
who can make that kind of
decision. Rather, I have the responsibility to consider
whether or
not a continued employment relationship is going to be amenable
to
both parties concerned.’ Secondly, having recommended that the
employee’s services be terminated with immediate effect,
the
chairperson went on to state that ‘…it is advisable to
reconvene the hearing specifically to allow Strydom
to present
arguments in mitigation
’. Thirdly, the chairperson,
referring to a previous occasion where the employee had lodged a
claim for compensation arising
from an alleged injury on duty, stated
that it needed to be recorded that the employee had ‘
fraudulently
applied
and submitted a report to the Department of Labour.’
(my emphasis).
The arbitration
[14]
The arbitration was held from 15
th
to 26
th
of June 2006. Documentary evidence was handed up and each party
called one witness. It is settled law that an arbitration hearing
is
a hearing
de
novo
.
In the case of
County
Fair Foods (Pty) Ltd v CCMA and Others
[4]
it
was stated as follows: ‘However, the decision of the
commissioner as to the fairness or unfairness of the employer’s
decision is not reached with reference to the evidential material
that was before the employer at the time of its decision but
on the
basis of all the evidential material before the commissioner. To that
extent, the arbitration proceedings are a hearing
de
novo
’.
This
principle was recently re-affirmed by the Constitutional Court in the
case of
the
Sidumo
case supra
at para 18 and
also at para 59 where the following was stated:
‘…
This
determination [whether a disputed dismissal was fair] and the
assessment of fairness is not limited to what occurred in the
disciplinary hearing.’
[15]
On the understanding of what an arbitration hearing entails, one
would have expected that the
commissioner would listen to evidence
afresh and then make a determination as to the fairness or otherwise
of the employee’s
dismissal. Instead of doing so, the
commissioner sought to confine himself only to the evidence that was
available as at the time
of the enquiry notwithstanding the fact that
new evidence was adduced before him, both documentary and oral. The
latter approach
was wrong as it equated an arbitration hearing with
an appeal hearing of some sort, quite far removed from the principle
enunciated
in the afore-mentioned cases.
[16]
The commissioner’s summary of Mr du Plessis’ evidence
confirms that it was not disputed
that the employee suffered from the
illness diagnosed by dr van Niekerk, which, according to the same
doctor, was work-related.
The same summary of evidence also revealed
that dr van Niekerk had noted that the employee’s condition was
not permanent
and had contended that the employee could be ready for
duty by 2007.
[17]
The commissioner’s summary of evidence as it appears on p42 of
the record reveals that
dr Kalinski’s report was handed in at
the arbitration hearing. This report
inter alia
stated that
the employee was capable of fulfilling the demands of his job and he
ought to be encouraged to return to work. That
same report also
stated that the employee’s diagnosis had always been of such a
nature that he should never have been regarded
as permanently
impaired. The commissioner focused on an earlier report that stated
that the employee would possibly be ready to
resume his duties in
2007, totally ignoring dr Kalinski’s report that showed that at
the time of the arbitration hearing,
he had already recovered from
his illness. Despite this evidence being before the commissioner, he
ignored dr Kalinski’s
entire report except the part stating
that the employee could not bear to be at work. Surprisingly, on the
same page on which this
remark was stated, the report also stated
that the employee ‘did not appear to be clinically depressed
and no psychotic symptoms
were evident’, which evidence was not
taken into account by the commissioner. I must however add that the
employee failed
to file the final page of Dr Kalinski’s report.
Whether this played a role in the arbitrator’ failure to
consider the
report as whole is not evident.
[18]
The commissioner furthermore found that the employee did not “want”
to accept an
alternative position Du Plessis confirmed that there
were many other clerical positions available but none were offered to
the
employee as it was assumed that he would not accept a lower
position. The commissioner in my view correctly ignored the evidence
of the employee’s legal representative, that the employee had
an interest in doing alternative work as the employee was available
to tender such evidence himself. For its part, the employer did not
present any medical evidence either disputing the employee’s
illness or his fitness to return to work or to do alternative work.
This, notwithstanding the fact that the
onus
to prove the
fairness of the dismissal rested on it, that is the employer.
[19]
The commissioner also seems to have been unsure as to how to deal
with the evidence that was
put before him. Having canvassed all the
evidence in his summation of the evidence adduced at the arbitration,
including the medical
report issued by another psychiatrist, viz
dr Kalinsky, he went on to state that he could not consider dr
Kalinski’s
report as it was issued after the enquiry. This
confusion is aptly demonstrated by the following passage from the
award:
‘
It is trite that an
arbitrator must decide a case on the evidence before him and not what
was before the chairperson. As has been
mentioned, Drs van Niekerk
and Kalinsky’s reports could not have served before the
chairperson. In my view, for the reasons
alluded to above, I am
unable to find that there is any basis for me to interfere with the
finding and sanction of Respondent
.’
[20]
It is clear from the award that the commissioner admitted documentary
and oral evidence pertaining
to dr Kalinski’s report, but then
made a finding that he could not consider the reports that did not
serve before the chairperson
of the enquiry. Having made such a
finding, he then still proceeded to relying on certain parts of dr
Kalinski’s report,
albeit selectively. Unfortunately the
medical report to the effect that the employee had recovered from his
illness and his representative’s
evidence that the employee was
willing to accept alternative employment was not taken into account
by the commissioner and he instead
relied on dr van Niekerk’s
initial report, which indicated that the employee would resume duties
only in 2007. It was on
this basis that the commissioner went on to
conclude that the employee had no desire to return to work. This
conclusion, in my
view was based on a wrong premise.
[21]
Whereas at the enquiry, the chairperson’s interpretation of
Metropolitan’s assessment
report was that the employee was
incapable of resuming his employment with the employer, by the time
of the arbitration, the assessment
had been clarified as follows:
‘
It
was our opinion however that the claimant’s condition, at the
time of the assessment,
could not be
totally, permanently and continuously disabling in terms of
performing his own or a reasonable alternative occupation.
’
(my emphasis).
This
clarification, too, was before the commissioner and it was also
referred to in the pre-arbitration minutes, but was not taken
into
account.
[22]
This conduct on the part of the commissioner flies in the face of the
well-established principle
of our law, stated as follows at para 268
of the
Sidumo
case (
supra
):
‘
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in the words of Ellis, the commissioner’s
action prevents the aggrieved party from having its case fully and
fairly determined. This constitutes a gross irregularity in
the
conduct of the arbitration proceedings as contemplated in
section
145(2)(a)(ii)
of the LRA. And the ensuing award falls to be set aside
not because it is wrong, but because the commissioner has committed a
gross
irregularity in the conduct of the arbitration proceedings
.’
The finding of the
court
a quo
vis-á-vis the review test
[23]
In the
Sidumo
case (
supra
) the review test was
enunciated as follows in par 110:
‘
To
summarize, Carephone held that
s145
of the LRA was suffused by the
then constitutional standard that the outcome of an administrative
decision should be justifiable
in relation to the reasons given for
it. The better approach is that
s145
is now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in Bato Star: Is the decision
reached by the commissioner
one which a reasonable decision-maker could not reach? Applying it
will give effect not only to the
constitutional right to fair labour
practices but also to the right to administrative action which is
lawful, reasonable and procedurally
fair.’
[24]
In the case of
Fidelity
Cash Management Services v CCMA and Others,
[5]
the
court elaborated on the afore-mentioned test as follows:
‘
The
court will need to remind itself that it is dealing with the matter
on review and the test on review is not whether or not the
dismissal
was fair or not but whether or not the commissioner’s decision,
one way or another, is one which a reasonable decision-maker
could
not reach in all of the circumstances.’
[25]
I have, in the afore-going paragraphs demonstrated how the
commissioner failed to consider certain
evidence that was put before
him. If an arbitration hearing is a hearing
de novo
, then
there is no valid reason why the additional evidence that was
presented at the arbitration hearing was not considered. Failure
to
consider all the relevant evidence clearly resulted in the employer
failing to do a proper assessment of the employee’s
capability
to continue working, as contemplated in item 10 and 11 of Schedule 8.
When consideration is paid to all the above circumstances,
it stands
to reason that the decision of the commissioner was one that a
reasonable decision maker could not reach and thus fell
to be set
aside on review.
[26]
The court
a quo,
however, dismissed the application for
review, having stated that the question that needed to be answered
was: ‘Can an employee
insist on being employed in the same
workplace that he alleges has induced his depression?’ The
court
a quo
then went on to remark as follows:
‘
Typically
of all employees who do not succeed with their application for
medical boarding, this employee, too was in a Catch-22
situation. He
had to assert that he was permanently unfit for work in order to
succeed in his application. When he failed in that
application, he
had to assert that he could perform some work in order to resist an
incapacity dismissal successfully.”’
[27]
In my view, the question posed and the aforementioned remarks made by
the court
a quo
were misplaced as they did not take the
following facts into account: firstly, none of the medical reports
that were submitted claimed
that the employee was permanently
disabled or incapacitated. Secondly, there was a substantial lapse of
time (a period of six months)
between the application for medical
boarding and the incapacity enquiry, such that by the time the
arbitration hearing was held,
the employee had, according to dr
Kalinski recovered from his mental condition and could resume duties.
Under such circumstances,
there was no basis for finding that the
employee was permanently incapacitated or that he could not
reasonably be accommodated
by the employer.
[28]
In addition to the above, it is patently clear from the award that
the commissioner did not pay
due regard to items 10 and 11 of
Schedule 8 and thus failed to comply with
section 188(2)
of the LRA,
which non-compliance has already been alluded to in the preceding
paragraphs. This is another reason why the award
fell to be set
aside, which the court
a quo
did not do.
[29]
I am satisfied that the decision of the commissioner was not one that
a reasonable decision-maker
could have reached under the
circumstances and ought to have been set aside by the court
a quo
and substituted with an order that the dismissal of the employee
was both substantively and procedurally unfair
.
The court
a
quo
therefore erred in coming to the opposite conclusion. In view
of this finding, which is dispositive of the matter, I do not deem
it
necessary to address myself to the aspect pertaining to the errors
made by the court
a quo
in its summation of the evidence
adduced at the arbitration hearing, which allegedly led it to make
fundamental errors of fact.
[30]
I have noted that the relief sought by the employee was that of
re-instatement, alternatively
compensation. It is trite that the
primary remedy is that of re-instatement, except where same is
inappropriate, in which event
compensation should be ordered.
[31]
When deciding on the appropriate relief, I am entitled to take into
account the commissioner’s
finding that the employee did not
want to work for the Respondent. This was the evidence led by the
employer and not rebutted by
the employee. In fact, as I have said
earlier the employee, although available, refused to testify at the
arbitration. I am also
entitled to take into account the employee’s
conduct particularly after he was said to be fit to resume his duties
in determining
an appropriate relief.
[32]
Despite the earlier report that the employee was not permanently
disabled, nothing was said as
to what, if anything, did the employee
do to demonstrate an interest to return to work.
[33]
Also, although the medical report produced at the arbitration claimed
he was fit to commence
employment, no such tender was made, nor was
the employer’s evidence that he will not want to return to work
challenged.
The absence of the employee testifying and wanting to
submit to cross-examination about his willingness to work
particularly in
light of the evidence to the contrary must call into
question the appropriateness of granting reinstatement.
[34]
Furthemore, the employee has not worked since 28 May 2004 and there
is also no evidence that
the stressors that caused his condition are
in any way eliminated or lessened. In these circumstances I am
satisfied that this
is not a matter in which reinstatement is
appropriate.
[35]
I, however, believe that the employee should be compensated for being
dismissed unfairly. With
regard to costs I see no reason why costs
should not follow the result in the court
a quo
.
[36]
In the result, I would grant the following order:
1.
The application for condonation of the late
filing of the appeal record, the notice of appeal, as well as the
power of attorney
is granted.
2.
The appeal against the decision of the
Labour Court is upheld.
3.
The commissioner’s award is hereby
reviewed and set aside and replaced with the following order:
3.1
‘
The dismissal of Anton Strydom was
both procedurally and substantively unfair.
3.2
The first respondent is ordered to pay
compensation to Anton Strydom in an amount equivalent to 12 months
remuneration at the rate
that applied on the date of his dismissal.
3.3
The first respondent is further ordered to
pay the costs of the suit.’
4.
No order is made as to costs in respect of
the appeal.
____________________________
MOLEMELA, AJA
I
agree.
_____________________________
WAGLAY
DJP
I agree.
_____________________________
ZONDI
AJA
APPEARANCES:
For
the appellant: Mr. Niehaus of Minaar Niehaus Attorneys
[1]
[2007]
12 BLLR 1097(CC)
at paras
175
and 269.
[2]
(1994)
15 ILJ 585 (Lac) At 589 F-J
.
[3]
2010)
31 ILJ 1838 (LAC) at para 11,
[4]
(1999)
20 ILJ 1701 (LAC) at para 11.
[5]
(2008)
3 BLLR 197
(LAC) at par 98 – 99.