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[2013] ZALCJHB 26
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UASA and Another v BHP Billiton Energy Coal South Africa Ltd and Another (J354/13) [2013] ZALCJHB 26; [2013] 6 BLLR 602 (LC); (2013) 34 ILJ 2118 (LC) (5 March 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no:J 354/13
In the matter between:
UASA
First Applicant
AMCU
Second Applicant
and
BHP BILLITON ENERGY COAL SOUTH AFRICA LTD
First Respondent
NATIONAL UNION OF MINEWORKERS
Second Respondent
Heard
:
1 March 2013
Delivered
:
5 March 2013
Summary:
Urgent application – organisational rights –
LRA s 18. Minority unions applying to interdict employer and majority
union from changing thresholds for organisational rights in
collective agreement. Earlier agreement between minority unions and
employer made a CCMA award and certified in terms of LRA ss 142A and
143. Dispute about application of collective agreement to
be decided
by CCMA. Interim relief granted pending such determination.
judgment
STEENKAMP J
Introduction
The applicants are minority trade unions at the workplace of BHP
Billiton Energy Coal South Africa Limited (BECSA). They wish
to
declare a new threshold agreement entered into between BECSA and the
majority union, the National Union of Mineworkers (NUM),
declared
null and void.
The applicants are UASA and the Association of Mineworkers and
Construction Union (AMCU). They have formed a coalition for the
purposes of establishing organisational rights at BECSA. NUM and
BECSA have concluded a new threshold agreement that will have
the
effect of raising the threshold for organisational rights, thus
making it more difficult for the coalition to obtain those
rights.
The threshold agreement is due to come into effect tomorrow, 2 March
2013. The coalition has brought this application
on an urgent basis.
They ask the Court to have that agreement “(the 2013 threshold
agreement”) declared null and
void; and to declare a
settlement agreement between the coalition and BECSA dated 5 March
2010 valid and binding. That settlement
agreement, in turn, confirms
the terms of an earlier threshold agreement dated 2005 (“the
2005 agreement”) valid
and binding.
The respondents, BECSA and NUM, oppose the application. They argue
that they are entitled to amend the threshold agreement by
virtue of
the provisions of section 18 of the Labour Relations Act.
1
NUM also takes issue with the question of urgency.
The applicants’ case is based on two contentions: firstly,
that the settlement agreement remains valid and binding (“the
settlement agreement point”); and secondly, that the 2013
threshold agreement is in any event
ultra vires
s 18 of the
LRA because it purports to define the “workplace” as
BECSA’s operations overall and not, as before,
its individual
operations (“the workplace point”).
Background facts
BECSA owns, operates and manages a number of coal mines and related
facilities in South Africa. It also manages a number of coal
mines
and related support facilities that are owned by its subsidiaries.
The applicant unions, as a coalition, have enjoyed organisational
rights at BECSA’s various operations since 2005 in accordance
with the 2005 threshold agreement between BECSA and the majority
trade union, NUM. NUM has a majority membership of about 62%
across
BECSA’s operations.
The threshold agreement specifically allows coalition forming:
“
4.1
For the purposes of meeting the thresholds as required in this
agreement unions may form coalitions as contemplated in the Labour
Relations Act.
4.2 If a coalition is formed,
the coalition and not the individual unions will be recognised and/or
granted union rights.”
In order to acquire organisational rights as defined in sections 12,
13 and 15 of the LRA for a specific operation, the coalition
must
establish membership of a minimum of 15% of employees in the
bargaining unit at that specific operation. “Operation”
is defined as any business site at which employment is provided,
including mines.
The coalition referred a dispute about organisational rights to the
CCMA in December 2009. That resulted in a settlement agreement
reached at the CCMA between the coalition and BECSA on 5 March 2010.
The settlement agreement includes the following terms:
“
1. The
respondent [BECSA] commits to the organisational rights they have
entered into with the coalition of AMCU/UASA (in accordance
with the
threshold agreement of 2005, clause 3.1.1
2
read with clause 4 and also the IR policy of 2007 clause 4.2).
3. The respondent acknowledges
the coalition’s rights to organisational rights with specific
reference to access and the right
to call mass meetings. These
meetings shall be called under the banner of the coalition and shall
not be called by individual members
of the coalition.
7. It is agreed in principle
that with regards to clause 3 of the threshold agreement, the
coalition shall be consulted/negotiated
with on matters of mutual
interest exclusive of those that the national bargaining structures
have jurisdiction over.”
The settlement agreement was made an award of the CCMA in terms of
section 142A of the LRA on 30 June 2010 and certified in terms
of
section 143 of the LRA on 27 July 2010.
The industrial relations policy provides that, in accordance with
section 18 of the LRA, BECSA and the majority union (currently
NUM)
will agree on threshold levels applicable to recognition and
participation in collective bargaining structures in accordance
with
sections 12, 13 and 15 of the LRA. It also provides for a dispute
resolution mechanism. If the dispute is not resolved internally,
it
must be referred to the CCMA.
On 31 January 2013 BECSA informed the coalition that it had
concluded a new threshold agreement (“the 2013 agreement”)
with NUM. The key features of the 2013 agreement are the following:
With effect from March 2013 recognition of any trade union in BECSA
will be based on the total union membership at asset level
(i.e.
BECSA as a company) and no longer by operation.
Organisational rights under sections 12, 13 and 14 of the LRA,
which the coalition currently enjoys, will require 30%
representation
at asset level and not 15% per operation.
The coalition formed the view that the settlement agreement giving
effect to the 2005 threshold agreement remains valid and enforceable
until set aside, as it was made an award of the CCMA and certified
as such. It is also of the view that the settlement agreement
–
and thus the 2005 threshold agreement – is a valid, binding
and enforceable contract.
On 6 February 2013 the coalition’s attorneys wrote to BECSA
and declared a dispute in terms of the IR policy. In terms
of that
policy, the parties had to resolve the dispute within 10 days. They
could not do so and the 10 days expired on 20 February
2013. The
coalition launched this urgent application on 21 February 2013 and
it was set down for hearing on 1 March 2013.
Evaluation / Analysis
Before dealing with the merits with the dispute, I need to consider
the question of urgency.
Urgency
BECSA did not take issue with the question of urgency. The NUM did.
Mr
Fourie
argued that the coalition had been aware of the
2013 threshold agreement since 31 January, but only launched the
application
three weeks later for hearing on 1 March 2013, the day
before the agreement is due to take effect. He argued that the
internal
dispute resolution mechanism prescribed in the IR policy is
not part of a binding collective agreement; and that the coalition
ignored the peremptory provisions of the same policy that provides
that unresolved disputes must be referred to the CCMA.
3
I shall deal with the question of referral to the CCMA under the
heading of jurisdiction. With regard to urgency, though, I cannot
agree with the submission made on behalf of NUM. Had the coalition
not followed the internal dispute resolution steps set out
in the IR
policy, the respondents may well have been heard to complain that it
should have done so and that an application to
this court would have
been premature.
I agree with Mr
Halgryn
, for the coalition, that it was
compelled to first of all exhaust internal remedies. They invoked
the internal dispute resolution
mechanism by way of a letter to
BECSA on February 2013. They also sent a copy of this letter to NUM
on 18 February 2013.
They asked NUM to agree to suspend
the implementation of the 2013 threshold agreement for an agreed
period of time and to agree
on dates for the filing of papers to
eliminate the need to approach this Court on an urgent basis. No
agreement could be reached.
The coalition then brought the
application on the day that the ten days prescribed in the IR policy
expired. The application
could not be brought sooner, i.e. before
first exhausting the internal dispute resolution remedy contained in
IR Policy and it
could not be brought any later, as the termination
date is the 2
nd
of March 2013.
I accept that the matter should be heard on an urgent basis. BECSA
and NUM have filed comprehensive answering affidavits and
the
coalition has replied. All of the parties have engaged counsel and
they have, commendably, prepared full argument in the
time available
to them. The matter is ripe for hearing.
Jurisdiction: Interim or final relief?
Mr
Halgryn
, for the applicants, brought the Court’s
attention to the fact that the internal dispute resolution mechanism
contained
in clause 5 of the IR Policy provides that:
“
Any
dispute affecting a group of employees will be dealt with as follows:
…
…
If the dispute is not resolved
within the ten day working day period, the dispute must be referred
to the either the CCMA or a private
dispute resolution agency.”
On the face of it, the dispute in this case is one that affects a
group of BECSA’s employees and thus the question arises
if
this dispute has to be referred to the CCMA, there being no
agreement to refer the dispute to an agreed private dispute
resolution agency.
Mr
Halgryn
submitted that whereas the CCMA has the
jurisdiction to adjudicate the
interpretation or application
of a collective agreement, it has no jurisdiction to pronounce on
the
validity
of a collective agreement.
I find myself unable to agree with this distinction. The parties
agree that the threshold agreements, as well as the settlement
agreement confirming the 2005 threshold agreement, are collective
agreements. Section 24 of the LRA regulates disputes about
collective agreements. It provides that every collective agreement
must provide for a dispute resolution procedure about its
interpretation or application, as the parties in this case have
done. Although he cites no authority for the proposition, Clive
Thompson
4
states that:
“
A
collective agreement may, like any other agreement, also be
determined for fundamental breach
.
Any dispute about the termination of an agreement would be arbitrable
under s 24
.”
And
“
Collective
agreements are legally binding instruments. Any dispute over the
interpretation or application (
which
would include enforcement
)
of a collective agreement is a rights dispute, and a resort to power
to settle differences is not permitted”.
I agree with Prof Thompson’s interpretation. It seems to me
that the CCMA – and not this Court – has jurisdiction
to
arbitrate the question whether the 2005 threshold agreement, read
with the settlement agreement, must be applied and enforced.
As Mr
Myburgh
pointed out, the essential substance of the
applicants’ case is that BECSA’s termination of the
organisational rights
granted to them in terms of the settlement
agreement is unlawful – it being on this basis that the
ultimate relief sought
by the applicants is a declarator that the
settlement agreement ought to be complied with. This is the
main
dispute, with the
issues
in dispute being the settlement
agreement point and workplace point.
5
Once it is accepted that the settlement agreement constitutes a
collective agreement – as Mr
Halgryn
did -- then the
main dispute is simply about the lawfulness or otherwise of the
termination of or non-compliance with a collective
agreement. This
is the quintessential ‘interpretation or application’
dispute in terms of section 24, in respect
of which the CCMA has
jurisdiction.
6
In the process of arbitrating the main dispute, the CCMA would have
jurisdiction to make a determination on the issues in dispute,
i.e.
the settlement agreement point and the workplace point.
The workplace point boils down to the contention that the settlement
agreement (and thus the organisational rights granted in
terms
thereof) could not have been terminated lawfully through the
conclusion of an invalid threshold agreement.
The CCMA has jurisdiction to consider and determine this issue
because: (a) the workplace point is an issue in dispute, as opposed
to being the main dispute (over which the CCMA has jurisdiction);
(b) the focus of this issue in dispute remains on the settlement
agreement; and (c) in the process of determining a dispute within
its jurisdiction, the CCMA has the power to decide all ancillary
issues (including issues that it would typically not have the
jurisdiction to decide on their own).
7
In relation to the latter point, the following
dictum
of the
LAC in
SACCAWU v Speciality Stores Ltd
8
warrants mention:
‘
Based
on the considerations set out above it must be concluded, with
respect, that the court
a
quo
erred in coming to the conclusion that the Labour Court had the
exclusive competence to determine what a “workplace”
was
in the dispute between the parties in regard to the appellant's
alleged organizational rights. The commission has the competence,
in
terms of s 21, to determine any dispute which prevents the conclusion
of a collective agreement in terms of s 21(3) of the Act.
This
finding makes it unnecessary to deal with the other aspects raised in
the original application and on appeal.’
By parity of reasoning, the CCMA, in dealing with a section 24
dispute within its jurisdiction, has the power to determine any
issue which gave rise to the termination of the collective
agreement.
In the result, this Court only has the jurisdiction to grant interim
relief in this matter, as the main dispute falls to be finally
determined by the CCMA in terms of section 24.
Mr
Halgryn
submitted that, if the Court finds that the CCMA
does have the jurisdiction to adjudicate the validity of collective
agreements,
then the Applicants seek the following interim relief:
“
An
order interdicting and prohibiting the First Respondent from
implementing the new threshold agreement pending the outcome of
the
adjudication of the lawfulness and validity of the settlement
agreement and of the lawfulness and validity of the new threshold
agreement in the CCMA, if it is found that this is a dispute which
may be adjudicated by the CCMA, or any other forum agreed to
by the
parties.
In these circumstances, I must consider the requirements for interim
relief.
The requirements for the granting of interim relief
The requirements for the grant of an interim interdict are well
known: a
prima facie
right; irreparable harm; balance of
convenience favouring the grant of relief; and the absence of a
satisfactory alternative
remedy.
9
In order to establish a
prima facie
right, an applicant must
provide
prima facie
proof of facts that establish the
existence of a right in terms of the substantive law.
10
A strict legal right to interim relief must be established, not
simply a moral or equitable right.
11
The test applicable to the resolution of factual disputes in
applications for interim relief is that set in
Webster v
Mitchell
12
.
The status of the settlement agreement
The parties agree that the settlement agreement is a collective
agreement – in this case, between BECSA and the coalition,
and
not between BECSA and NUM (the majority union) as in the case of the
2005 and 2013 threshold agreements.
BECSA and NUM contend that, because it is a collective agreement, it
is capable of termination like any other.
There are two difficulties with this submission. Firstly, the
certification of the settlement agreement cannot be overlooked.
Secondly, the question is whether BECSA and NUM can agree to
terminate a collective agreement between them when that agreement
(the 2005 agreement) was converted into a settlement agreement to
which NUM was not a party; and that settlement agreement was
certified.
Section 142A of the LRA provides that:
“
The
Commission may, by agreement between the parties ... make any
settlement agreement in respect of any dispute that has been referred
to the Commission, an arbitration award.”
In this case, the coalition referred a dispute between them and
BECSA to the CCMA. The resultant settlement agreement revived
the
2005 threshold agreement and specified that BECSA “commits to
the organisational rights they have entered into with
the coalition
of AMCU/UASA (in accordance with the threshold agreement of
2005...)”, i.e. 15% membership per operation.
It is that agreement that was made an arbitration award. The fact
that the underlying 2005 threshold agreement, as well as the
settlement agreement itself, are collective agreements, cannot, in
my view, detract from the fact that there is a binding arbitration
award that binds BECSA and the coalition. And that award was
certified in terms of s 143(3). The effect of that subsection is
that the award may be enforced “as if it were an order of the
Labour Court”.
NUM is not bound by the award; but BECSA is. In
Tony Gois t/a
Shakespeare’s Pub v Van Zyl & others
13
this Court held that the certification of an award does not convert
it to an order of the Labour Court. It remains an arbitration
award,
albeit it one that can be enforced as if it were an order of the
Labour Court. But, in the circumstances of this case,
the fact
remains that the settlement agreement is now an arbitration award
that is final and binding upon the coalition and BECSA.
There appears to be nothing to prevent NUM and BECSA from entering
into new agreements
inter se.
However, in the face of the
extant arbitration award, BECSA cannot, on the face of it, enforce
new thresholds contrary to those
contained in the arbitration award
against the coalition.
On this basis, it appears to me that the applicants have established
at least a
prima facie
right for the interim relief sought
pending arbitration before the CCMA. I will nevertheless consider
the arguments pertaining
to the effect of s 18 of the LRA and the
dispute about the “workplace” in this context.
Collective agreements, s 18 of the LRA and the definition of
‘workplace’
The respondents have, understandably, placed much emphasis on the
principle of majoritarianism that underlies the collective
bargaining regime codified in the LRA.
As the LAC put it in
Kem-Lin Fashions CC v Brunton &
another
:
14
‘
The
legislature has also made certain policy choices in the Act which are
relevant to this matter. One policy choice is that the
will of the
majority should prevail over that of the minority. This is good for
orderly collective bargaining as well as for the
democratisation of
the workplace and sectors. A situation where the minority dictates to
the majority is, quite obviously, untenable.
But also a proliferation
of trade unions in one workplace or in a sector should be
discouraged. There are various provisions in
the Act which support
the legislative policy choice of majoritarianism. Some of them are
sections 14(1); 16(1);
18(1)
;
25(1) and (2); 26(1) and (2); 32(1)(a) and (b); 32(3)(a), (b), (c)
and (d) and 32(5); 78(b).’
15
(Emphasis added.)
Section 18 reads as follows (under the heading ‘right to
establish thresholds of representativeness’):
‘
(1) An
employer and a registered trade union whose members are a majority of
the employees employed by that employer in a workplace,
or the
parties to a bargaining council, may conclude a collective agreement
establishing a threshold of representativeness required
in respect of
one or more of the organisational rights referred to in sections 12,
13 and 15.
(2) A collective agreement
concluded in terms of subsection (1) is not binding unless the
thresholds of representativeness in the
collective agreement are
applied equally to any registered trade union seeking any of the
organisational rights referred to in
that subsection.’
The word ‘workplace’ is, in turn, defined in section
213 as follows:
‘
(a) in
relation to the public service …
(b) ......
(c) in all other instances means
the place or places where the employees of an employer work. If an
employer carries on or conducts
two or more operations that are
independent of one another by reason of their size, function or
organisation
, the place or places where employees work in
connection with each independent operation, constitutes the workplace
for that operation’.
(Emphasis added.)
Brassey
16
comments as follows on section 18:
‘
It permits a union or group of unions that have
recruited the majority of employees in a workplace to introduce, by
agreement with
the employer, a new threshold for the acquisition of
those rights that the statute confers on unions which can demonstrate
“sufficient
representativeness”. The new standard will
then apply to third parties who seek to exercise statutory rights
provided it
is universally applicable to all unions. One object of
the section is to enable the parties to put a numerical figure to the
otherwise
somewhat indeterminate concept of “sufficiently
representative” for which the stipulated sections (12, 13 and
15) provide.
But the primary object of the section is to promote
workplace majoritarianism, that is, the system under which a single
union or
group of unions enjoy exclusive rights or representation
within a workplace. …
There is no obligation on the union to demand new
thresholds or on the employer to agree to them. The matter is left to
be determined
in the process of collective bargaining. If the
employer refuses to agree to a union proposal, however, the union can
call its
members out on strike over the issue.
…
An agreement establishing new thresholds of
representation simply substitutes a new standard for the old one of
sufficient representation;
it says nothing about the employer’s
right to act unilaterally. If the union wants to prevent an employer
from granting rights
to unions who fail to meet the threshold, it
must, by collective bargaining, extract a commitment from the
employer to this effect.’
17
That is exactly what BECSA and the NUM did in this instance.
Ordinarily, they could have agreed to raise the threshold, as they
purported to do in January 2013 with effect from tomorrow, 2 March
2013. But these are not ordinary circumstances. BECSA is bound
by
the arbitration award that, in turn, compels it to abide by the 2005
threshold agreement that gives AMCU and UASA, acting
in coalition,
organisational rights based on 15% membership per operation. That
agreement cannot bind NUM, but it does bind BECSA.
The related dispute concerns the definition of ‘workplace’.
Whereas the 2005 agreement assigns organisational rights
based on a
threshold of 15% per operation, the 2013 agreement intends to do so
based on 30% membership across all of BECSA’s
operations taken
together.
Brassey goes on to say this about the definition of ‘workplace’:
‘
The
“workplace” is the organising moment for various rights
under the Act. It determines the constituency within which
organisational rights are asserted (Chapter II) and a workplace forum
can be established (Chapter V).
…
In
the private sector the nature of a “workplace” is a
question of fact
.
If the employees all work in one place, it is the workplace: if they
are divided into separate branches or depots, the separate
locations
can each be a workplace.
Deciding
whether two locations are separate workplaces entails an examination
of the extent to which they operate independently
of each other,
which in turn entails a consideration of the size, function and
organisation of each. Geographical separation will
be important, but
will not always be decisive. A single workplace might embrace depots
in adjoining towns
,
factories that share a common fence might yet be separate workplaces;
and cases will occur in which employees are working in the
same
building but are in different workplaces because they are in separate
divisions. Employees might share a workplace though
they never see
each other: they might, for example, be software designers who work
from home but keep in touch by computer and
so share a sort of
“virtual reality workplace”. The simplicity of the
criteria by which workplaces are determined can
help to keep
demarcation disputes to a minimum but cannot eliminate them
entirely.’
18
(Emphasis added.)
In
Speciality Stores
,
19
the LAC held as follows:
‘
It
must also be kept in mind that the definition of a “workplace”
in s 213 of the Act is preceded by the qualification
that it bears
that meaning “unless the context [of the Act] otherwise
indicates”. As pointed out by Thompson
Current
Labour Law 1997
at 4, the context of determining a proper workplace in terms of the
Act in a lock-out dispute may well be different from the context
for
determining a workplace in an organizational rights dispute. The
possibility of different determinations of a workplace, in
different
contexts, is one contemplated and accepted in terms of the Act
itself.’
20
Given the nature of section 18 and the agreements flowing from it,
it is, of course, ordinarily permissible for the parties to
a
threshold agreement to enter into a new agreement or amend the
existing agreement and, in so doing, increase the threshold
for the
grant of organisational rights. This is what occurred, as Mr
Myburgh
pointed out, in
United Association of South Africa – The
Union v Impala Platinum Ltd & others
21
.
As I have remarked above, though, these are not ordinary
circumstances. NUM and BECSA can enter into and amend agreements in
terms of s 18. What BECSA cannot do, given the binding arbitration
award of 5 March and 30 June 2010, is to enforce new thresholds
as
against AMCU and UASA without their consent as long as that award
stands. But I say so only in the context of finding that
the
coalition has established a
prima facie
right, though open to
some doubt, for the interim relief they seek; it is for a CCMA
arbitrator to delve into and make a finding
on the merits in terms
of s 24 of the LRA.
Conclusion
For these reasons, I find that this Court does not have jurisdiction
to rule on the merits of the main dispute. That dispute
must be
referred to arbitration. I am satisfied, though, that the applicants
have established a
prima facie
right for the interim relief
sought pending that arbitration. They have no alternative remedy
pending the resolution of the dispute
and the balance of convenience
clearly favours them.
Costs
There is an ongoing relationship between all four parties before
court. This interim order will not finally determine the dispute
between them. In these circumstances, and taking into account the
requirements of both law and fairness, a costs order is not
appropriate.
Order
The respondents are interdicted and restrained from implementing the
threshold agreement dated 30 January 2013 pending the outcome
of the
determination of the dispute about its application or validity by
the CCMA or a private forum agreed upon by the parties.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Leon Halgryn SC
Instructed by Bester &
Rhoodie.
FIRST RESPONDENT:
Anton Myburgh SC
Instructed by Edward
Nathan Sonnenbergs.
SECOND RESPONDENT:
Greg Fourie
Instructed by Cheadle Thompson & Haysom.
1
Act
66 of 1995 (the LRA).
2
The
parties were
ad idem
that the reference to clause 3.1.1 is
erroneous. That refers to a 30% threshold for collective bargaining
rights. The reference
should have been to clause 2.1, providing for
a 15% threshold for organizational rights.
3
Or
private dispute resolution, which is not relevant to this
application.
4
Clive
Thompson, “Organisational rights and collective bargaining”
in Thompson & Benjamin
South African Labour Law
(Vol 1,
Service no 41, 2000) AA1-140-141.
5
See
regarding this classification:
Johannesburg City Parks v
Mphahlani NO & others
[2010] 6 BLLR 585
(LAC) at paras
14-15;
Minister of Safety and Security v Safety and Security
Sectoral Bargaining Council & others
[2010] 6 BLLR 594
(LAC)
at paras 11-12;
SAOU & another v The Head of Department,
Gauteng Department of Education & others
[2011] 7 BLLR 720
(LC) at paras 37-38.
6
Cf
NUCW v Oranje Mynbou & Vervoer Maatskappy Bpk
[2000] 2
BLLR (LC) para 9.
7
See
in addition to the judgments cited above,
Department of Justice v
CCMA & others
[2004] 4 BLLR 297
(LAC) at paras 60-62.
8
(1998)
19
ILJ
557 (LAC) para [34].
9
Prest
The Law and Practice of Interdicts
(1
st
ed) at
50-51.
10
LAWSA
vol 11 (1
st
re-issue), para 317;
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189.
11
Prest
at 52.
12
Supra.
13
[2003]
11 BLLR 1176
(LC).
14
[2001]
1 BLLR 25
(LAC) para [19].
15
At
para 19.
16
Brassey
Commentary on the Labour Relations Act
(revision service 2,
2006 at A3-23-24).
17
At
A3-23 – A3-24.
18
At
A9-35 – A9-36.
19
Para
3.4.4 above.
20
At
para 29.
21
[2012]
7 BLLR 708
(LAC).