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[2012] ZALCCT 19
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Nothnagel v Karoo Hoogland Municipality and Others (C 431/12) [2012] ZALCCT 19; (2014) 35 ILJ 758 (LC) (11 June 2012)
Reportable
Of
interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 431/12
In the matter between:
LOUIS NOTHNAGEL
Applicant
and
KAROO HOOGLAND MUNICIPALITY
First Respondent
JAN PETRUS JULIES
Second Respondent
ERNEST SAAYMAN
Third Respondent
Heard
:
8 June 2012
Delivered
:
11 June 2012
Summary:
Suspension of senior municipal employee –
urgent interdict – disciplinary regulations for senior managers
–
Lebu v Maquassie Hills Municipality
and
Biyase v
Sisonke District municipality
followed.
JUDGMENT
STEENKAMP J
Introduction
This is yet another one of those cases where it appears that an
internal political squabble between a former municipal manager,
on
the one hand, and a newly elected mayor and newly appointed
municipal manager, on the other hand, may well be at the heart
of
the dispute. On the face of it, though, the applicant (a senior
municipal employee and a former municipal manager) has been
suspended pending a disciplinary hearing concerning allegations of
financial irregularities. Whether those allegations have any
basis,
is not for this court to decide. That is for another forum and
another time. What is before this court today, is an urgent
application to uplift the suspension. Either way, the ratepayers of
Williston, Fraserburg and Sutherland will have to foot the
bill to a
greater or lesser extent. Whether that is a prudent way to spend the
meagre resources of a small municipality, is not
for this court to
decide either.
Background facts
The applicant was suspended, purportedly in terms of the Local
Government: Disciplinary Regulations for Senior Managers, 2010
1
(“the regulations”) on 22 May 2012. He has brought an
urgent application to have that suspension set aside on the
basis
that it is unlawful. He disavows any reliance on an unfair labour
practice contemplated by s 186(2)(b) of the Labour Relations
Act.
2
Instead, he founds his claim in administrative law and the alleged
non-compliance with the regulations issued in terms of the
Systems
Act.
The Karoo Hoogland Municipality is a municipality within the meaning
of s 2 of the Systems Act. It operates from the small town
of
Williston in the Northern Cape. Its geographic area comprises the
districts of Williston, Fraserburg and Sutherland.
The applicant has been employed in local government for some 17
years. He is currently the Director: Corporate Services of the
Municipality. He served as its municipal manager in terms of s 57 of
the Systems Act from June 2009 until October 2011, whereafter
he
reverted to his post of Director: Corporate Services.
The third respondent (Saayman) was appointed as municipal manager at
the end of 2011. His appointment appears to have been controversial,
as he obtained the lowest scores in an evaluation of six shortlisted
candidates. It is not part of the dispute before me to decide
whether Saayman’s appointment was a proper one.
The second respondent (Julies) is the incumbent mayor. He assumed
the post in January 2012. During the first meeting of the municipal
council of his tenure, allegations of the irregular payment of
performance bonuses and honoraria were discussed. This much is
common cause. The applicant alleges that, at the meeting of 12
January 2012, the mayor threatened to suspend him. Saayman (the
municipal manager) denies this in his answering affidavit and points
out that the applicant was not at that meeting; however,
instead of
placing the full facts before the court by way of a minute of the
meeting, Saayman (apparently on behalf of all three
respondents)
merely “put the applicant to the proof” of what happened
at the meeting.
On 13 January 2012, after having been informed of what had allegedly
transpired at the council meeting, the applicant addressed
an
internal memorandum to the municipal manager and council members
with the heading, “Beweerde skorsing.” He referred
to an
sms that he had sent out on the day of the meeting in which he had
said,
inter alia
:
“
Ek
bring dit onder u aandag dat ek vanmiddag verneem het dat ek
klaarblyklik [sic] geskors gaan word... die geloofwaardigheid van
die
gerug word bevraagteken, maar ek bring dit tog onder u aandag want ek
het reeds by 2 vorige geleenthede aan u genoem dat daar
sulke
beweringe is... ek vertrou dat u my belange in hierdie verband sal
beskerm sou dit blyk waar te wees”.
He continued:
“
Ek
bring dit verder ook onder u aandag dat ek vanoggend (13 Januarie
2012) weer van die beweerde skorsing verneem het en wel by
monde van
‘n Raadslid. Ek begin ongelukkig vermoed dat daar wel warhead
in die gerug mag wees en plaas derhalwe die volgende
op rekord:
Skorsing van ‘n werknemer
impliseer beweerde (ernstige) wangedrag. Ek was by geen wangedrag
betrokke nie.
Ek het nog nooit enige kennis
van enige beweerde wangedrag van u of die Raad ontvang nie, nog is
enige beweerde optrede of gebrekkige
prestasie deur mself, deur u of
die Raad onder my aandag gebring.”
He received no response and addressed a further memorandum to the
municipal manager and council members. He pointed out that,
in terms
of the Systems Act, the council had to establish an equal, fair,
open and non-discriminatory work environment. He expressed
the
opinion that he is being victimised and complained of unfair
treatment. Still he received no response.
The next significant moment in the saga was on 17 February 2012. An
article appeared in a newspaper, the
Diamond Fields Advertiser
,
quoting Saayman as saying that “previous councils” had
mismanaged funds, employed “cronies” for which
there was
no financial planning, gave contracts to friends and made irregular
appointments of senior managers that were not in
accordance with
section 57 of the Systems Act. The mayor, Julies, said that this was
“only the tip of the iceberg of gross
mismanagement”.
As the previous municipal manager, the applicant took the view that
these allegations reflected on his tenure. He and the Chief
Financial Officer, MK Botha, wrote a letter to Julies and Saayman on
22 February 2012, quoting from the article. They continued:
“
Graag
word dit pertinent onder u aandag gebring dat, met die mees onlangse
gerugte van beweerde optrede teen ons as Senior Bestuur,
tesame met
die voorgemelde ernstige aantygings, daar ‘n doelbewuste
heksejag aan die gang is teen ons.”
They
reserved their rights.
The applicant was also made aware of an extract from the minute of a
special council meeting of 12 January 2012. The extract
from that
minute was to be tabled at the council meeting of 6 March 2012 and
read as follows:
“
Besluit
dat:
die regsdienste van advokaat
Charlton Rex gebruik kan word om ‘n opinie in te win rakende
aangeleenthede in die Munisipaliteit>”
Adv Rex was the respondents’ counsel in these proceedings. It
appears that the council paid him a fee of R62 500,
00 on an
invoice dated 1 February 2012. According to the applicant, no proof
was submitted to the council that Adv Rex actually
presented it with
an opinion or other legal advice. This was not denied in the
respondents’ answering affidavit.
Saayman appointed the applicant as acting municipal manager in terms
of s 59 of the Systems Act in his absence for the periods
28 March –
2 April and 10 – 13 April 2012.
On 4 May 2012 Saayman informed the applicant of the Municipality’s
intention to suspend him in terms of regulation 6. Saayman
informed
him that the following allegations of serious misconduct against him
would be investigated:
“
1.
Financial misconduct – you contravened section 172(2) of the
Municipal Finance Management Act 56 of 2003 in that you contravened
and/or failed to comply with a condition of the delegated power of
authority and also contravention of regulation 32 of the Local
Government Performance Regulations for Municipal Managers and
managers directly accountable to Municipal Managers when you
deliberately
and intentionally awarded to yourself a performance
bonus without following prescribed procedures.
2. Financial misconduct you
contravened [
sic
] section 172(2) of the Municipal Finance
Management Act 56 of 2003 in that you contravened and/or failed to
comply with a condition
of the delegated power of authority and also
contravention of regulation 32 of the Local Government Performance
Regulations for
Municipal Managers and managers directly accountable
to Municipal Managers when you deliberately and intentionally awarded
to yourself
an ‘duplicate’ honorarium whilst acting as
Municipal Manager.
3. Prejudicing the
administration, discipline or efficiency of the Municipality.
4. Contravention of the Code of
Conduct for municipal staff members.”
The letter went on to state:
“
The
Municipal Council has reason to believe that your presence at the
workplace may jeopardise any investigation into the alleged
misconduct and or [
sic
]you
may interfere with potential witnesses.
You are hereby afforded the
opportunity in terms of clause 6(2) of the aforementioned Regulations
to make written submissions to
the Municipal Council as to why you
should not be suspended within seven (7) days from date hereof. A
failure to do so will be
construed as a waiver of your aforementioned
right.”
The applicant responded in these terms on 7 May 2012:
“
I deny
the so-called allegations against me in this regard.
I am also of the opinion that
the Council had ulterior motives in effecting a disciplinary
investigation in this regard.”
Unfortunately the applicant did not set out any further basis for
his denial. In this application he annexed a minute of a council
meeting of 9 December 2011 in terms whereof the finance committee of
the Council – including Julies, the first respondent
–
approved an honorarium to the applicant, who was not present. They
also approved a performance bonus.
In a letter dated 22 May 2012 and delivered to the applicant on 23
May 2012, Julies and Saayman informed the applicant of the
Municipality’s decision to suspend him. Apart from repeating
the allegations of misconduct quoted in the 4 May letter,
they
stated:
“
This
letter serves to inform you that the Municipal Council, after
considering your submissions in terms of section [
sic
]
6(2) of the Local Government: Disciplinary Regulations for Senior
Managers, 20 [
sic
]
(Government Gazette No 43213) decided to suspend you from work with
immediate effect with full pay and retention of your benefits
in
terms of clause 6(4) thereof pending a disciplinary investigation
that must be concluded and pending the outcome of the disciplinary
investigations.”
It went on to state that the
reasons for suspension are:
“
1. The
Municipal Council has reason to believe that your presence in the
workplace may jeopardise any investigation into the alleged
misconducts [
sic
];
2. and or [
sic
] that you
may interfere with potential witnesses;
3. That your presence at the
workplace may be detrimental to the stability of the municipality;
4. That you may commit other
acts of misconduct.”
The applicant submits that his suspension is unfair, and that the
process followed was irregular and unlawful. He launched this
application on 1 June 2012 for hearing on Friday 8 June 2012. The
respondents filed answering affidavits on 6 June and the applicant
replied on 7 June.
The regulations
The relevant clauses of the regulations are the following:
“
DISCIPLINARY
CODE AND PROCEDURES
2. Purpose and
application.—(1) This Disciplinary Code—
(a) applies to all—
(i) municipalities;
(ii) senior managers; and
(b) is intended to—
(i) provide an internal
mechanism for management of misconduct;
(ii) establish standard
procedures for the management of misconduct;
(iii) support constructive
labour relations;
(iv) ensure a common
understanding of misconduct and discipline;
(v) promote mutual respect
between senior managers and council;
(vi) promote acceptable conduct;
(vii) avert and correct
unacceptable conduct; and
(viii) prevent arbitrary or
discriminatory actions.
(c) prevails in the event of any
inconsistency with any systems and procedures adopted by a
municipality in terms of section 67 (1) (h)
of the Act to
the extent that those procedures apply to senior managers.
3. Principles.—(1) This
Disciplinary Code is informed by the following principles—
(a) Discipline—
(i) is fundamentally a
corrective measure and not punitive; and
(ii) must be applied in a
prompt, fair, consistent and progressive manner.
(2) This Disciplinary
Code is necessary for the efficient delivery of services, and ensure
that senior managers—
(a) have a fair hearing in a
formal or informal setting;
(b) are timeously informed of
allegations of misconduct made against them; and
(c) receive written reasons for
any decisions taken against them.
(3) A disciplinary
hearing must—
(a) take place in the area of
jurisdiction of the municipality; and
(b) be concluded within the
shortest possible time.
(4) Except in
exceptional circumstances, a disciplinary action may not be taken
against a senior manager until a full
investigation has been carried
out.
4. Policy.—(1) If
a senior manager is alleged to have committed misconduct, the
municipal council
must institute disciplinary proceedings in
accordance with this Disciplinary Code.
(2) The maintenance
of discipline is the responsibility of the municipality.
(3) Discipline must
be effected with due regard to—
(a) the Code of Conduct for
municipal staff members as contained in Schedule 2 of the Act; and
(b) the Code of Good Practice
provided for in Schedule 8 of the Labour Relations Act, 1995 (Act No.
66 of 1995).
(4) The principles of
natural justice and fairness must be adhered to notwithstanding
criminal or civil action having
been instituted.
(5) Disciplinary
procedures may not be dispensed with as a result of criminal, civil
or other action having been instituted,
or pending the outcome of
such action.
5. Disciplinary
procedures.—(1) Any allegation of misconduct against
a senior manager must be
brought to the attention of the municipal
council.
(2) An allegation
referred to in sub-regulation (1) must be tabled by the mayor or the
municipal manager, as the case
may be, before the municipal council
not later than seven (7) days after receipt thereof, failing which
the mayor may request the
Speaker to convene a special council
meeting within seven (7) days to consider the said report.
(3) If the municipal
council is satisfied that—
(a) there is a reasonable cause
to believe that an act of misconduct has been committed by the senior
manager, the municipal council
must within seven (7) days appoint an
independent investigator to investigate the allegation(s) of
misconduct; and
(b) there is no evidence to
support the allegation(s) of misconduct against the senior manager,
the municipal council must within
seven (7) days dismiss the
allegation(s) of misconduct.
(4) The investigator
appointed in terms of sub-regulation (3) (a) must, within a
period of thirty (30) days of his
or her appointment, submit a report
with recommendations to the mayor or municipal manager, as the case
may be.
(5) The report
contemplated in sub-regulation (4) must be tabled before the
municipal council in the manner and within
the timeframe as set out
in sub-regulation (2).
(6) After having
considered the report referred to in sub-regulation (4), the
municipal council must by way of a resolution
institute disciplinary
proceedings against the senior manager.
(7) The resolution in
sub-regulation (6) must—
(a) include a determination as
to whether the alleged misconduct is of a serious or a less serious
nature;
(b) authorise the mayor, in the
case of municipal manager, or municipal manager, in the case of the
manager, directly accountable
to the municipal manager to—
(i) appoint—
(aa) an independent and external
presiding officer; and
(bb) an officer to lead
evidence; and
(ii) sign the letters of
appointment.
6. Precautionary
suspension.—(1) The municipal council may suspend a
senior manager on full pay
if it is alleged that the senior manager
has committed an act of misconduct, where the municipal council has
reason to believe
that—
(a) the presence of the senior
manager at the workplace may—
(i) jeopardise any investigation
into the alleged misconduct;
(ii) endanger the well-being or
safety of any person or municipal property; or
(iii) be detrimental to
stability in the municipality; or
(b) the senior manager may—
(i) interfere with potential
witnesses; or
(ii) commit further acts of
misconduct.
(2) Before a senior
manager may be suspended, he or she must be given an opportunity to
make a written representation
to the municipal council why he or she
should not be suspended, within seven (7) days of being notified of
the council’s
decision to suspend him or her.
(3) The municipal
council must consider any representation submitted to it by the
senior manager within seven (7) days.
(4) After having
considered the matters set out in sub-regulation (1), as well as the
senior manager’s representations
contemplated in sub-regulation
(2), the municipal council may suspend the senior manager concerned.
(5) The municipal
council must inform—
(a) the senior manager in
writing of the reasons for his or her suspension on or before the
date on which the senior manager is
suspended; and
(b) the Minister and the MEC
responsible for local government in the province where such
suspension has taken place, must be notified
in writing of such
suspension and the reasons for such within a period of seven (7) days
after such suspension.
(6) (a) If
a senior manager is suspended, a disciplinary hearing must commence
within three months after the
date of suspension, failing which the
suspension will automatically lapse.
(b) The period of
three months referred to in paragraph (a) may not be extended by
council.”
Jurisdiction
This court has confirmed in a number of decision that it has
jurisdiction and the power to interdict a suspension that does not
conform to the subordinate legislation quoted above – most
recently in
Biyase v Sisonke District Municipality & another
3
and the two cases involving
Lebu v Maquassi Hills Local
Municipality.
4
Urgency
The respondents have argued that the matter is not urgent. I
disagree. Given that the applicant is resident and works in
Willowmore,
some 500km from Cape Town, and that he had to travel to
Cape Town in order to consult his attorney and counsel, the time
lapse
of one week to launch the application is not unduly long. The
applicant also gave the respondents sufficient time to file
answering
papers and the applicant wasted no time in replying.
Mr
Engela
pointed out that, in
Biyase
5
a similar time lapse was condoned and the matter was deemed to be
sufficiently urgent.
Clear right?
In terms of regulation 4(4) the municipality is enjoined to adhere
to the principles of natural justice and fairness when instituting
disciplinary steps and deciding on precautionary suspension.
The regulations are in the form of subordinate legislation and binds
all the parties to this application. The applicant has a
right to be
treated fairly and lawfully in terms of the regulations and the
principles of natural justice.
Should the respondents not have adhered to those principles, the
applicant would have established a clear right for the relief
sought. But in the letters of 4 May and 22 May 2012, the respondents
purport to act in terms of the regulations. Did they do
so?
The applicant submits that the respondents have not acted in
accordance with regulations 5(3), 5(4) and 5(5). Mr
Engela
argued
that the council did not appoint an independent investigator within
seven days to investigate the allegations of misconduct;
that the
investigator did not submit a report within 30 days; and that no
such report was tabled before the council.
Regardless of Adv Rex’s independence, it does indeed appear
from the uncontested evidence before me that he has not submitted
a
report that has been tabled at council since his apparent
appointment on 6 March 2012 or the earlier payment of his invoice
in
February 2012. It seems clear, on the evidence before me, that the
respondents have not complied with regulation 5.
As far as regulation 6(1) is concerned, the respondents did set out
almost
verbatim
the wording of that regulation in their
letter of 4 May 2012. Was that proper compliance, or was it mere lip
service, as Mr
Engela
argued?
As this court pointed out in
Maquassi Hills (1):
6
“
[I]n
terms of regulation 6(1), it is not sufficient for the Council to
allege that the senior manager has committed an act of misconduct
in
order to suspend him; it must also have reason to believe that his
presence may jeopardise the investigation, endanger the well-being
or
safety of any person or municipal property, or be detrimental to
stability in the Municipality; or that he may interfere with
potential witnesses or commit further acts of misconduct.
Although the respondents did repeat these words, they set out no
basis for any of these fears – ie why they had “reason
to believe” that the applicant’s presence at the
workplace may lead to any of these consequences. Indeed, it is
difficult to fathom how the respondents could reasonably have
entertained any of these fears when they appointed the applicant
as
acting municipal manager during April 2012 – shortly before
they suspended him and during the period when, they say,
Adv Rex was
busy with his investigation.
The same pertains to the decision to suspend that was allegedly
taken in terms of regulation 6(3) and 6(4). There is no evidence
before me that the council did indeed “consider” the
applicant’s submissions before taking the final decision
to
suspend him. When I asked him for a minute of such a council
meeting, Mr
Rex
could point to none in his clients answering
papers.
The applicant must also be criticised for the way in which he went
about making representations. If he is convinced of his innocence,
as he says he is, it serves little purpose for him to simply deny
that he committed the misconduct. He should have placed the
council
in a better position to consider his representations by setting out
in full why he should not be suspended, perhaps in
an abbreviated
form setting out the factors he has placed before this court. But
even so, it does not appear from the evidence
before this court that
the respondents have considered his representations or the factors
set out in regulation 6(1) at all.
They may appear to have complied
with the regulation in form, but they have not done so in substance.
As this court pointed out in
Mogothle v Premier of the Northwest
Province & others
7
and reiterated in
Maquassie Hills (1)
8
:
“
[S]uspension
is the workplace equivalent of arrest. It is not something that an
employer should resort to lightly, and when it does,
it should give
the employee a proper opportunity to be heard. That can only be done
in circumstances where the employer has explained
why it deems a
suspension necessary, and the employee has had a proper opportunity
to respond to those reasons.”
In this case, even though the applicant was given an opportunity to
make representations, the respondents have in teh first place
not
laid the ground to explain the reasons why he should not remain in
the workplace; and secondly, it does not appear that they
considered
either his representations or the factors outlined in regulation
6(1) before confirming the decision to suspend. As
Van Niekerk J
held in
Maquassi Hills (2):
9
“
The
purpose of any suspension must be rational, and a municipality must
be in a position to establish the reasonableness of its
belief...
The notice must contain at least
a description of the misconduct that the manager is alleged to have
committed, and the council’s
justification for its in-principle
decision, and invite representations in relation to both. Both the
nature of the misconduct
alleged and the purpose of the proposed
suspension must be set out in terms that are sufficiently particular
so as to enable the
senior manager to make meaningful representations
in response to the proposed suspension.”
In a judgment handed down just over a month ago, the Labour Appeal
Court confirmed, in a slightly different context (pertaining
to the
SMS Handbook) that “there must be an objectively justifiable
reason to deny the employee access to the workplace
based on the
integrity of any pending investigation into the misconduct.”
10
The court added that:
“
As a
general rule, a decision regarding the lawfulness of a suspension ...
will call for a preliminary finding on the allegations
of serious
misconduct as well as a determination of the reasonableness of the
employer’s belief that the continued presence
of the employee
at the workplace mught jeopardize any investigation etc.”
In the present case the respondents have not established such an
objectively justifiable reason. Neither have they set out the
purpose of he suspension with sufficient particularity. I am
satisfied that the applicant has established a clear right for the
relief sought.
Irreparable harm?
Although the applicant is being paid, he is still suffering ongoing
harm that cannot simply be remedied in due course, should
the
allegations against him prove to be unfounded in the ensuing three
months (or longer) provided for in regulation 6(6).
The applicant is a senior manager and long-standing local government
official. There can be little doubt that his reputation
is being
sullied by the mere fact of his suspension in the small town of
Williston. As Van Niekerk J remarked in
Mogothle:
11
“
In
regard to the prejudice suffered by the applicant,
Muller
’s
case,
supra
,
although it dealt with the additional dimension of a deprivation of
remuneration during a period of suspension, emphasises the
personal
and social consequences that suspension brings. The link between the
freedom to engage in productive work and the right
to dignity was
recently emphasised by Nugent JA in
Minister
of Home Affairs & others v Watchenuka & another
2004 (4) SA 326
(SCA) [also reported at
[2004] 1 All SA 21
(SCA) –
Ed], where he stated:
“
The
freedom to engage in productive work – even where that is not
required in order to survive – is indeed an important
component
of human dignity . . . for mankind is
pre-eminently a social species with an instinct for meaningful
association. Self-esteem and the sense of self-worth – the
fulfilment of what it is to be human – is most often bound
up
with being accepted as socially useful.” (At paragraph [27].)”
Alternative remedy?
As was the case in
Maquassi Hills
, the applicant in this case
has disavowed any reliance on s 186(2)(b) of the LRA. His claim is
based on the failure of the respondents
to comply with the
Regulations. I need only repeat the words of Van Niekerk J in
Mogothle
12
that are equally apposite to this case:
“
The
respondents’ claim, in these circumstances, that an action for
damages will cure any loss that the applicant has suffered,
takes no
account of the fact that a claim for damages is costly, time
consuming and complex and that, in any event, it cannot account
for
the detrimental consequences of indefinite suspension, especially
those of a more incorporeal nature referred to by Nugent
JA in the
Watchenuka
judgment,
supra
.”
Conclusion
The applicant has made out a proper case for the relief he seeks. I
agree with both parties that costs should follow the result.
My only
regret is that it is the ratepayers of Williston and surrounds who
will foot the bill.
Order
I grant an order in the following terms:
The forms and service provided for in the Rules are dispensed with
and the matter is heard as one of urgency in terms of rule
8.
The suspension of the applicant by the first respondent is set
aside.
The first respondent is ordered to pay the costs of the
application.
_______________________
AJ Steenkamp
Judge of the Labour Court
APPEARANCES
APPLICANT:
Adv RB Engela
Instructed by Wessels &
associates, Cape Town.
RESPONDENTS:
Adv CM Rex
Instructed by Mthembu &
Van Vuuren Inc, Bloemfontein.
1
Issued
in terms of s 120 of the Local Government: Municipal Systems Act,
Act No 32 of 2000 (“the Systems Act”) and
published as
Government Notice No 344 in
Government Gazette
No 34213, 21
April 2011.
2
Act
66 of 1995 (“the LRA”).
3
(2012)
33
ILJ
598 (LC).
4
(2012)
33
ILJ
642 (LC) and (2012) 33
ILJ
653 (LC).
5
Supra
para [23].
6
(2012)
33
ILJ
643 (LC) para [32].
7
(2009)
30
ILJ
605 (LC).
8
Supra
para [35].
9
(2012)
33
ILJ
653 (LC) para [16].
10
MEC
for Education, North West Provincial Government v Gradwell
(Case
no JA 58/10, LAC, Johannesburg, 25 April 2012) paras [22] and [28]..
11
Supra
para [47].
12
Supra
para [48].