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[2015] ZALCJHB 64
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National Union of Mineworkers and Others v MCC Group of Companies (JS 681/2010) [2015] ZALCJHB 64 (27 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 681/2010
DATE:
27 FEBRUARY 2015
Not
Reportable
NATIONAL
UNION OF
MINEWORKERS
.................................................................
First
Applicant
B.
GLADILE & 7
OTHERS
...................................................................
Second
to Further Applicants
And
MCC
GROUP OF
COMPANIES
.........................................................................................
Respondent
Heard:
Stated case.
Delivered:
27 February 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction and
background:
[1]
This matter as agreed upon between the
parties is determined by way of a stated case. The parties had
further agreed that the bundle
of documents constituted agreed
evidence. The common cause facts as gleaned from the parties’
pre-trial minute and the agreed
stated case are as follows:
1.1
The National Union of Mineworkers (NUM)
represents eight of its members listed in annexure “A” to
the applicants’
statement of case, who are the former employees
of the respondent. The respondent conducts business in the mining
industry, and
at the time of the dispute, the individual applicants
were employed on a Marikana contract that the respondent had at the
time.
1.2
At all relevant times, a closed shop
agreement existed between the respondent and another union, Federated
Mining Union (FMU). This
agreement had existed since December 2008.
1.3
On 15 February 2010, the majority of the
respondent’s employees including the second to further
applicants participated in
an unprotected strike action. The strike
action followed upon NUM’s demand to be recognized and be
afforded organizational
rights by the respondent. The respondent had
refused to recognize NUM on the basis that a closed shop agreement
existed with FMU.
1.4
During the work stoppage, the employees
including the individual applicants did not adhere to two sets of
ultimatums issued by the
respondent to return to work. These were
issued on 15 February 2010 in respect of the morning and afternoon
shifts.
1.5
On the same date that the employees
embarked on a work stoppage, the respondent brought an urgent
application before this Court
under case number J 334/10. An order
was granted on 17 February 2010 in terms of which the conduct of the
employees on 15 February
2010 was declared to constitute an
unprotected strike action. Furthermore, a parameter of the premises
was created and the employees’
unlawful conduct was
interdicted. This order was confirmed as final on 3 March 2010.
1.6
When the employees refused to respond to
the ultimatums, they were immediately notified of disciplinary
proceedings scheduled for
18 February 2010. The respondent did not
notify NUM of those proceedings. The majority of the employees
attended the disciplinary
proceedings where they were represented Mr
Mashego, a FMU shop steward. The individual applicants had however
refused to attend
those disciplinary proceedings.
1.7
At the disciplinary hearing, Mr Mashego had
entered a guilty plea on behalf of the employees that were present. A
finding was made
on 22 February 2010 by the chairperson of the
enquiry in terms of which a total of 112 employees were summarily
dismissed including
the individual applicants. A total of 46
employees were however issued with final written warnings.
1.8
Following the dismissals, NUM and the
respondent had entered into discussions to resolve the dispute. This
had resulted with an
agreement on 4 March 2010 in terms of which the
dismissal of the 112 employees was resolved on the following terms;
1.8.1
The industrial action was called off and
the employees would return to work on 5 March 2010.
1.8.2
The parties would conduct a verification
process in respect of the membership of NUM.
1.8.3
If NUM’s membership were to be
verified to be 50+1% at the Marikana Site, the parties would engage
to conclude a recognition
agreement.
1.8.4
The dismissed employees,
except
for the second to further applicants were to receive final written
warnings.
1.8.5
The second to further applicants would
remain dismissed, and NUM retained the right to challenge the
fairness of the dismissal.
Pending the finalisation of litigation,
the individual applicants would not be allowed back on the mine.
1.9
The dispute in respect of the second to
further applicants was referred to the CCMA on 5 March 2010. The
matter was conciliated
on 23 in March 2010 and remained unresolved.
1.10
On 5 March 2010 following the conclusion of
the agreement, the respondent had brought an application for contempt
of court against
a number of employees including the individual
applicants for failing to comply with the court order of 16 February
2010 under
case number J344/10.
1.11
On 16 March 2010 an order was granted in
terms of which certain employees including the individual applicants
were called upon to
appear before the court on 4 May 2010 show cause
why they should not be held to be in contempt of court. Since
these events,
the Respondent has ceased conducting operations at the
Marikana site since 2011.
The issues for
determination:
[2]
As agreed between the parties, the issues for determination are as
follows;
(a) Whether the
dismissal of the individual applicants was substantively fair on the
basis that they had committed the same misconduct
as all the other
striking employees that were dismissed, but the respondent reinstated
or re-employed others but not the individual
applicants.
(b) Whether the
dismissal of the individual applicants was substantively unfair
because there was no further disciplinary hearing
other than the
disciplinary hearing of 18 February 2010, to substantiate the
dismissals.
(c) Whether the
dismissal of the individual applicants was procedurally unfair
because NUM was not notified of the disciplinary
hearing of 18
February 2010.
The submissions:
(i)
Substantive fairness:
[3]
In regards to the substantive fairness of the dismissal, the
respondent submitted the following;
3.1 From the agreed
issues for determination, the Applicants did not take issue with or
challenge the fairness or otherwise of the
original dismissals of 22
February 2010, and to that end, those dismissals must stand;
3.2 Since the
applicants’ case was that they should also have been reinstated
subject to a final warning as the other employees,
their case was
based on the provisions of section 186 (1) (d) of the LRA. A
dismissal as contemplated in this section is a statutory
defined
dismissal that was distinct and separate from the dismissal in
section 186 (1)(a).
3.3 NUM and the
respondent had concluded a collective agreement on 4 March 2010 with
the purpose of resolving the dismissal of 112
employees, and the only
issue for determination is the fairness of the dismissal resulting
from that agreement.
3.4 The dismissal of
the employees on 4 March 2010 however was effected by agreement with
NUM as evident from the provision that
the individual applicants as
identified in annexure “A” of the agreement would remain
dismissed, with NUM retaining
the right to challenge the fairness of
the original dismissal of 22 February 2010. The dismissals of 04
March 2010 therefore cannot
be unfair as they were in terms of an
agreement.
3.5 It would only be
if the respondent had on its own accord and unilaterally applied
selective reinstatement of some employees
it dismissed but not others
that it would amount to selective reinstatement as contemplated in
section 186 (1) (d) of the LRA.
3.6 If the
applicants wished to challenge the fairness of the dismissals, they
were compelled to challenge the fairness of their
original dismissal
on 22 February 2010. They could therefore not challenge the selective
reinstatement on 4 March 2010, which came
by way of agreement that
was binding on the individual applicants.
3.7 The applicants
have not challenged the substantive fairness of their dismissals of
22 February 2010 as they could have done
in terms of the agreement of
4 March 2010. They had initially done so when they referred a dispute
to the CCMA and even in their
statement of case before the Court.
They had however abandoned that case and all that remained in respect
of the challenge to the
dismissals of 22 February 2010 was a
procedural fairness challenge. Thus since there was no dismissal in
respect of the agreement
of 4 March 2010, there could be no
substantive unfairness.
3.8 Where however
the Court were to consider it appropriate to enquire into the basis
of the selection which took place on 4 March
2010, then the normal
principles regarding inconsistency, or the so-called ‘parity
principle’ should find application
in determining the issue
before it.
3.9 It was however
not disputed that the basis of the selection was simply and firmly
founded on a list of names actually agreed
to by NUM and the
respondent, and this agreement was binding on the individual
applicants. There could therefore no issue of inconsistency
in the
light of the agreement, and it could not be said that the respondent
had acted arbitrarily.
[4]
The applicants’ response to the substantive fairness of the
dismissal was as follows;
4.1 The issue for
determination was whether selective non re-employment of the
individual applicants by the respondent was fair.
4.2 The respondent
failed to justify the selective re-employment, and instead sought to
rely on a collective agreement, which it
had entered into with NUM.
Clause 10 of that agreement however stipulated that NUM retained the
right to challenge the fairness
of the exclusion of the applicants
from re-employment or reinstatement.
4.3 The applicants
never agreed with the respondent that they should be excluded hence
the insertion of clause 10. When NUM said
it reserved its rights to
challenge the exclusion of the applicants, it was not in reference to
the fairness or otherwise of the
dismissal due to their participation
in the unprotected strike.
4.4 The respondent's
conduct of excluding the applicants from re-employment had the effect
of breaking the chain of events as they
were originally (i.e. the
dismissals due participation in strike action). Because of this break
in the chain of events, NUM could
no longer challenge the fairness or
otherwise of the dismissal based on the original reason for such
dismissal but rather on the
new reason, which comes in the
intervening cause.
4.5 In agreeing to
re-employ the other dismissed employees, the respondent in fact
abandoned the previous dismissal as it no longer
viewed the offences
for which the employees has been dismissed as serious enough to
warrant a dismissal.
4.6 The respondent
therefore must have had other charges in respect of the applicants
over and above the ones for which everyone
had been dismissed and
this could be the only rationale for excluding them. It was contended
that this was evident from the wording
of clause 9 of the agreement
which provided that; “
The following people in addendum ‘A’
will remain dismissed and will not be allowed back on the minded
Marikana site
pending the outcome of litigation which will be
accepted by both parties and MCC will provide relevant information
regarding charges,
minutes of hearings etc”
. It was argued
that this wording clearly postulates that the respondent was to bring
new charges against the applicants and convene
disciplinary hearings,
which would justify the exclusion of the applicants.
4.7 Since the
respondent never put new charges nor convened fresh hearings in
respect of the individual applicants, it therefore
had no
justification for excluding them. Since further the respondent
elected to re-employ other employees dismissed on account
of their
participation in the illegal strike, it was unfair to re-employ some
of them, and to exclude others unless the differential
treatment
could be justified on the basis of fair rationale and objective
criteria.
4.8 The selective
treatment of the individual applicants was arbitrary and capricious,
rendering their selective non re-employment
unfair. What the
respondent did when it embarked on the selective treatment exercise,
was to condone the participation of the dismissed
employees in the
illegal strike, other acts of intimidation and gross insubordination.
In the absence of additional acts of misconduct
committed by the
applicants to justify their exclusion from re-employment, the
conclusion to be reached was that the respondent
wanted to sift out
troublemakers from its employ, given the history of the relations
between the respondent and the applicants
in relation to the
mobilisation of the workforce to join NUM.
Evaluation:
[5]
As per the agreement on issues to be determined, the first is whether
the dismissal of the individual applicants was substantively
fair on
the basis that they had committed the same misconduct as all the
other striking employees that were dismissed, but the
respondent had
reinstated or re-employed others but not the individual applicants.
[6]
As it was correctly pointed out on behalf of the respondents, the
dismissal as identified above can only be as contemplated
in section
186 (1) (d)
[1]
of the LRA. This
form of dismissal is a statutory defined dismissal that is distinct
and separate from the original dismissal in
terms of section 186 (1)
(a) of the LRA. The elements of selective non-re-employment include a
previous dismissal; employees dismissed
for the same or similar
reasons; an offer of re-employment made to some of them; and a
refusal to re-employ other employees. All
of these factors are
present in this case. It is further accepted that the date of a
dismissal contemplated in section 186 (1)
(d) is the date on which
the employer refused to reinstate or re-employ other dismissed
employees
[2]
.
[6]
From the wording of s186 (1) (d) of the LRA it is further accepted
that this form of dismissal is distinguishable from a form
of an
unfair labour practice as contemplated in section 186 (2) (c) of the
LRA, which pertains to an act or omission on the part
of the employer
involving a failure or refusal to reinstate or re-employ a former
employee in terms of any agreement. To this end,
it should be
accepted that a dismissal contemplated in section 186 (1) (d) does
not require an express agreement that the employer
will re-employ the
dismissed employees. The employer may act unilaterally.
[7]
Since a dismissal contemplated in s186 (1) (d) does not require an
express agreement on the part of the employer to re-employ
a
dismissed employee, it then follows that the next issue for
determination is whether there was any basis for distinguishing
between those employees that were re-employed and those that were
not. In this regard, it is further accepted that selective
re-employment
is not
per
se
unfair, and that the circumstances of each case would determine
whether it was fair or not
[3]
.
[8]
The respondent’s contention was that the individual applicants
remained dismissed as a consequence of clause 9
[4]
of an agreement between the parties. The argument as I understand it
is that as a consequence of this agreement, the original dismissals
of 22 February 2010 stood, and the fairness thereof would be
determined by subsequent litigation.
[9]
NUM for the purposes of these proceedings does not however pursue the
substantive fairness of the dismissals of 22 February
2010. This in
my view is at odds with the right it had reserved in that regard as
per clause 9 of the agreement. It is further
my view that NUM’s
position in this regard is clearly informed by an incorrect
interpretation of what dispute it had reserved
its rights to pursue
as per clause 9 of the agreement.
[10]
In my view, there is no logic in NUM’s contentions that what it
had expected was for the respondent to proffer fresh
charges in
respect of the individual applicants in order to justify their non
re-employment. There was clearly no basis for the
respondent to
formulate new charges against the individual applicants after the
agreement was concluded. The dispute surrounding
the non-selection or
non re-employment of the individual applicants arose from that
agreement, whilst the main dispute however
came about as a
consequence of the dismissals of 22 February 2010, which remained in
place after the agreement of 4 March 2010.
[11]
There is further no merit in the contention that in agreeing to
re-employ other employees, the respondent had effectively abandoned
the dismissal of 22 February 2010. With the agreement, what took
place was in effect, the reversal of the dismissal of other
employees,
and the sanction being replaced with a final written
warning, whilst the dismissal of the individual applicants stood
pending litigation.
[12]
This matter being dealt with as a stated case, the court is bound to
determine the issues as placed before it and pleaded by
the parties.
It being apparent that the substantive fairness of the dismissals of
22 February 2010 is not challenged either as
gleaned from the agreed
issues for determination or from the heads of argument as filed on
behalf of the applicants, what has to
be determined is whether the
non re-employment of the individual applicants on 4 March 2010 was
substantively fair.
[13]
NUM in placing reliance on
Food
& General Workers Union & others v Design Contract Cleaners
(Pty) Ltd
[5]
had
submitted that it would be unfair not to re-employ the individual
applicants unless the differential treatment could be justified,
based on fair, rational or objective criteria. In this case, the
respondent had according to NUM failed to justify the selective
treatment and it could only be concluded that the exclusion was
arbitrary and capricious.
[14]
As already indicated, the respondent on the other hand relied on the
agreement concluded by the parties for the contention
that the
selective non-re-employment was agreed to. In regards to the
agreement in question, it is common cause that its validity
is not an
issue before the court. Had this been the issue, one would have
sought guidance from various authorities where the view
is held that
notwithstanding the voluntary nature of a collective bargaining
process and the need to respect the primacy of collective
bargaining
arrangements, there might be instances where the Court may interfere
with such arrangements where they infringe on fundamental
constitutional values, particularly the right to fair labour
practices
[6]
.
[15]
In contending that the selective non-re-employment of the individual
applicants was agreed upon, the respondent further placed
reliance on
Fakude
and others v Kwikot (Pty) Ltd
[7]
where Molahlehi J had held that a trade union was entitled to take
decisions on behalf of its members without necessarily having
obtained their consent even if such decisions would adversely affect
those members.
[16]
As already indicated, selective re-employment would not
per se
be unfair, and this is one of those instances where it should be
concluded that there is no basis for a conclusion to be reached
that
it was unfair. The difficulty the applicants are faced with in this
case is that where an agreement was reached on the issue
of selective
non-re-employment, it would always be an insurmountable task to show
how the respondent in this case had acted arbitrarily
or capriciously
in not selecting employees for re-employment. An agreement comes
about as a result of consensus reached between
the parties.
[17]
The second difficulty is that is that even if the onus is on the
employer to show fairness in the non-selection of the individual
applicants, if the only way of discharging that onus is by production
of an agreement, a rebuttal by NUM becomes even more onerous
where
the validity of that agreement is not placed in dispute.
[18]
The third difficulty is that in the absence of the validity of the
agreement being challenged, it becomes even more onerous
for the
applicants to extricate themselves from its terms. In this case, it
was not seriously disputed that the list of those employees
to be
re-employed and those to be excluded was agreed upon. The individual
applicants were identified for exclusion in the agreement,
and are
thus bound by it. By virtue of that agreement, it becomes
incomprehensible as to how it could be argued that the exclusion
of
the individual applicants from re-employment was arbitrary or
capricious.
[19]
As is apparent from the agreement, the dismissal of the individual
applicants remained an issue which NUM was entitled to pursue.
I
however fail to appreciate how NUM could have incorrectly come to the
conclusion that the only dismissal it could challenge was
that
emanating from the non-re-employment.
Even
if on NUM’s reading of Clause 10 of that agreement that it
retained the right to challenge the fairness of the exclusion
of the
Applicants from re-employment or reinstatement, there is however no
basis to do so in the light of the constraints pointed
out above.
[20]
The intervening factor, i.e. the agreement, only applied insofar as
the other employees who were re-employed are concerned,
as their
status had changed. The status of the individual applicants had
however remained unchanged after the agreement, and their
dismissal
could only be as a consequence of their participation in the
unprotected strike action and nothing else.
[21]
NUM’s reading and
reference to the
provision of ‘
relevant information
regarding the charges, minutes of hearings
etc” as per clause 9 of the agreement is equally incorrect as
such relevant information could only be in relation to the
dismissal
of 22 February 2010, which substantive fairness NUM was entitled to
challenge. It was common cause that no other hearings
were held
leading to dismissals other than on 22 February 2010 and I fail to
appreciate how it could have been expected of the
respondent to
either hold fresh hearings or proffer fresh charges against the
individual applicants when there was an agreement
that they remained
dismissed.
[22]
In the light of the above conclusions, it follows that any arguments
pertaining to issues surrounding inconsistency in respect
of
selective non re-employment equally find no application in this case
in the light of the agreement. To this end, there is no
basis for a
finding to be made that the selective non-re-employment of the
individual applicants was substantively unfair.
[23]
The second issue for determination was whether the dismissal of the
individual applicants was substantively unfair because
there was no
further disciplinary hearing other than that of 18 February 2010 to
substantiate the dismissal. For reasons that remain
unclear, NUM
chose to deal with this issue as part of its attack on the procedural
fairness of the dismissals.
[24]
NUM’s contention was that when it was decided not to re-employ
the individual applicants, they were not afforded an opportunity
to
counter any additional allegations of misconduct which the respondent
might have had against them. This argument has already
been dealt
with. To however reiterate, it could not have been expected of the
respondent to have proffered new charges or held
further disciplinary
hearings to justify the individual applicant’s non
re-employment simply on the basis that they remained
dismissed in
accordance with the agreement of 4 March 2010. Those dismissals
emanated from the events of 18 February 2010, and
it was up to NUM to
pursue and challenge the fairness thereof.
(ii)
Procedural unfairness:
[25]
NUM’s main contention in this regard was that the respondent
had failed to notify it of the disciplinary proceedings
to be held on
18 February 2010. In this regard, it was submitted that the
individual applicants were not afforded a fair hearing
as they had
demonstrated unequivocally that they no longer wished to be
associated with FMU (referred to as the ‘enemy’)
hence
the very
cause
of
the strike action.
[26]
The respondent’s response to allegations of procedural
unfairness was that as at February 2010 NUM was not a recognized
union and that at the time, the respondent still had a closed shop
agreement with FMU. Furthermore, it was submitted that the FMU
and
the individual applicants were notified of the disciplinary
proceedings. The individual applicants had elected not to attend
those proceedings where they could have raised the issue of their
representation.
[27]
In terms of Item 4 (2) of Schedule 8 – Code of Good Practice:
Dismissal, an employer is required to inform a trade union
of
discipline to be instituted against a trade union representative or
an employee who is an office bearer or official of a trade
union. It
was common cause that FMU, which enjoyed recognition and the
individual employees themselves were notified of the disciplinary
proceedings scheduled for 18 February 2010. I am in agreement with
the respondent’s contentions that there was no obligation
on it
to inform NUM as it did not have a recognition agreement with it.
Since clearly the provisions of Item 4 (2) as indicated
above would
not have been applicable to NUM, there would have been no basis for
it to demand to be notified of the disciplinary
proceedings.
[28]
A further difficulty with NUM’s arguments in regards to
procedural unfairness is that it is not uncommon for applicants
to
allege that their dismissals were unfair in circumstances where they
have failed to respond to a call to attend disciplinary
enquiries. It
is trite that employees who refuse to attend disciplinary enquiries
having been properly notified do so at their
own peril
[8]
.
This principle was re-emphasized in
The
Foschini Group v Maidi and Others
[9]
where the Labour Appeal Court held as follows;
“
On
the evidence accepted by the arbitrator, the respondents’
refusal to attend the disciplinary hearing was unreasonable.
Assuming
the objection to a material witness, being the enquiry initiator, to
be a valid one, the respondents should nonetheless
have participated
in the hearing and placed their objections on record. It is a trite
principle in our law that a party, who chooses
not to attend a
hearing, does so at his or her own peril, and is precluded from later
complaining about the outcome of the hearing”
[29]
From the above principles, it is apparent that an employee once
properly notified of disciplinary proceedings, must attend
those
proceedings, and lodge whatever objections he or she may have
formally at those proceedings. The employee must however participate
in those proceedings even if they may be construed to be unfair and a
farce. This does not imply that the farce would be condoned
or given
legitimacy. However, a noting of an objection on record in such
proceedings and participation under protest is important
for a future
determination of the fairness of that process at a later stage.
An employee cannot claim a hearing to be procedurally
unfair where he
or she had failed to attend that enquiry. An allegation of procedural
unfairness cannot be made in a vacuum. In
effect, one may even go as
far as concluding that an employee who refuses to attend a formal
disciplinary enquiry waives his or
her rights in that regard.
[30]
In this case, there is no evidence to indicate that NUM had in fact
made a request to represent the employees. Secondly, there
is further
no evidence to indicate that the individual applicants had themselves
made a request to be represented by NUM in the
disciplinary enquiry.
In any event they could not have since they had failed to attend that
enquiry. The respondent
cannot
be
accused of procedural unfairness in circumstances where the
individual employees out of a total of 112 other employees had
attended
the enquiry and were represented by a FMU shop steward whom
NUM regarded as an enemy.
[31]
It being accepted that the 112 employees were disciplined and
dismissed for their participation in the unprotected strike action
in
furtherance of NUM’s demands, it should equally be accepted
that these employees, despite being aligned to NUM, had acquiesced
to
being represented by FMU in the disciplinary enquiry. The reason that
the individual applicants however declined to even attend
that
disciplinary enquiry remains unknown.
[32]
Nothing further can be read into the fact that the respondent had
ultimately held discussions with NUM and partly resolved
the matter.
It may have been convenient for the respondent to hold these
discussions with NUM even if it was not recognized at
the time. It
cannot however be read from this that the respondent was therefore
obliged to invite NUM to the disciplinary hearings.
In the light of
these factors, there is no basis for a finding of procedural
unfairness to be made.
[33]
I have had regard to the question of costs. However, given the
history of this matter, I can find no basis in law or fairness
to
make a cost order.
Order:
i. The applicants’
claim is dismissed.
ii. There is no
order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
ATTORNEYS OF
RECORD:
On
behalf of the Applicants: Finger Phukubje Inc Attorneys
On
behalf of the Respondent: Snyman Attorneys
[1]
“
dismissal”
means that -…… an employer who dismissed a number of
employees for the same or similar reasons
has offered to re-employ
one or more of them but has refused to re-employ another’
[2]
Section 190 (2) (c) of the Labour Relations Act
[3]
Food
& General Workers Union & others v Design Contract Cleaners
(Pty) Ltd
(1996)
17 ILJ 1157 (LAC) at p1167
[4]
Which provides that: “
The
following people in addendum “A” will remain dismissed
and will not be allowed back on the mine at Marikana site
pending
outcome of litigation which will be accepted by both parties and MCC
will provide relevant information regarding charges,
minutes of
hearings etc.”
[5]
at
para 1166
[6]
See
Larbi-Odam
v MEC for Education (North West Province)
(1998)
3 LDD 102 (CC) (See also
J
anse
van Vuuren v South African Airways (Pty) Ltd and Another
(2013) 34 ILJ 1749 (LC), where this Court held that a collective
agreement is subject to the Constitution and the Employment
Equity
Act and is not exempt from its provisions. Parties may not contract
out of the fundamental rights and protections set
out in the Bill of
Rights
[7]
(2013) 34 ILJ 2024 (LC)
[8]
See
CEPPWAWU
and others v Metrolife
(Pty) Ltd (2000) 25 ILJ 231 (LAC);
Fidelity
Cash Management Service v CCMA and others
(2008) 29 ILJ 964 (LAC)
[9]
(2010)
31 ILJ 1787 (LAC) at para 58