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[2016] ZALCJHB 19
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South African Police Services v Safety & Security Sectoral Bargaining Council and Others (JR2105/13) [2016] ZALCJHB 19 (27 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case No:
JR 2105/13
In
the matter between:
SOUTH AFRICAN POLICE
SERVICES
Applicant
and
SAFETY & SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
JACKSON
MTHUKWANE
Second Respondent
POPCRU
Third Respondent
CAPTAIN C MOTSOENENG
Fourth Respondent
Heard:
13 January 2016
Delivered:
27 January 2016
JUDGMENT
MADDERN
AJ
Introduction
[1]
This is an application to review and set aside the arbitration award
issued by the Second Respondent (“the Commissioner”)
of
15 July 2015 under Case No. PSSS31/12/30. In issuing the arbitration
award, the Second Respondent acted under the auspices as
a
Commissioner appointed by the First Respondent, the Safety &
Security Sectoral Bargaining Council (“the Bargaining
Council”).
[2]
The application for review is
brought in terms of Section 158(1)(g) of the Labour Relations Act
[1]
(the “LRA”) read together with Section 145 of the LRA
which application was filed before this Court on 3 October 2013.
The
Application is opposed only by the Fourth Respondent.
Preliminary
Matters
[3]
The application was filed twenty one (21) days late and the Applicant
seeks condonation for the late filing. The Fourth Respondent
opposes
condonation for the late filing of the application.
[4]
The Applicant has in a further Notice of Motion applied for the
condonation for the late delivery of the arbitration record
in terms
of Rule 7A(6) (insofar as this may be necessary) and for the
withdrawing of an amended Notice in terms of Rule 7A(8)(a).
[5]
The Fourth Respondent raises issues regarding the late filing of the
record and further contends that there has not been proper
compliance
with Rule 7A(8) in that a supplementary affidavit was filed without a
notice contemplated by Rule 7A(8). It is further
contended by the
Fourth Respondent that the supplementary affidavit was served and
filed before compliance by the Applicant in
terms of Rule 7A(6).
These issues are raised by the Fourth Respondent in his opposing
affidavit in respect of which the Fourth
Respondent applies for
condonation for the late filing of the opposing affidavit insofar as
this may be necessary having regard
to this Court’s
determination of the actions of the Applicant in relation to Rule
7A(6) and Rule 7A(8). The Applicant’s
representative Advocate
Mosam confirmed that the Applicant does not take issue with the late
filing of the Fourth Respondent’s
answering affidavit. The
Fourth Respondent has not filed any affidavit specifically in answer
to the Application for Condonation
and the late delivery of the
arbitration record in terms of Rule 7A(6) nor in relation to the
withdrawing of the Rule 7A(8) notice.
[6]
The Fourth Respondent further contends that the Applicant’s
replying affidavit filed pursuant to the provisions of Rule
7A(10) is
out of time in that it was filed on 5 January 2014.
[7]
Having considered the Application for Condonation for the late filing
of the application which was twenty one (21) days out
of time, the
delay, while significant, is not excessive and given the explanation
tendered, is condoned.
[8]
In relation to the Applicant’s compliance with Rule 7A(6), it
is quite apparent that the record was filed with the Registrar
of the
Court on 7 January 2014 and due to a problem encountered with the
State Attorney’s messenger, was then only filed
on the Fourth
Respondent on 22 January 2014. This delay has been explained
and once again condonation is granted.
[9]
In relation to the Applicant’s compliance with Rule 7A(8), the
Fourth Respondent contends that the supplementary affidavit
filed on
17 January 2014 should have been accompanied by a notice as
stipulated in Rule 7A(8)(a). In this context it is quite apparent
from the Application for Condonation filed by the Applicant, that it
was the Fourth Respondent’s attorneys’ contention
that
the affidavit on its own, without an accompanying notice, did not
satisfy the requirements of Rule 7A(8)(a). The representatives
for
the Applicant, the State Attorney, failed to appreciate the point and
the parties proceeded to litigate by way of correspondence
with each
other in relation to the issue. The omission by the Applicant in
relation to the requirements of Rule 7A(8)(a) is not
material to the
dispute and is condoned
[10]
The Rule 7A(9) opposing and
Rule 7A(10) replying affidavits were both out of time. No condonation
is required in the light of the
provisions of the Practice Manual
[2]
as neither party has filed the Notice of Objection envisaged.
[11]
The Fourth Respondent, as a final preliminary point, raises the delay
by the Applicant in filing its heads of argument in response
to the
directive issued by the Registrar of this Court on 9 June 2014. The
Applicant’s heads of argument were only filed
on 9 July 2015.
In relation to the filing of the heads of argument the Fourth
Respondent proffers a number of factual averments
in the confines of
the Fourth Respondent’s heads of argument filed on 21 July
2015. It is unnecessary to deal with the factual
averments outlined
by the Fourth Respondent save to acknowledge that the Court file
reflects a directive by the Registrar for the
filing of heads of
argument on 12 June 2014. The Court file further reflects filing by
the Applicant and Fourth Respondent of heads
of argument some 12
months later. This issue, coupled with the general conduct of the
parties referred to above, will be dealt
with further in the context
of costs after consideration of the merits of the review application.
Mr du Toit, for the Fourth Respondent,
confirmed that in respect of
the various delays associated with the preliminary matters raised,
any prejudice to the Fourth Respondent
may be addressed by the
appropriate order as to costs.
Background
Facts
[12]
The Fourth Respondent was employed by the Applicant from 10 March
1987 until his dismissal on 23 February 2012 with the rank
of
Captain.
[13]
Following a domestic dispute between the Fourth Respondent and his
wife, representatives of the Applicant attended at the residence
of
the Fourth Respondent to obtain possession of certain firearms which
the Fourth Respondent’s wife had indicated were in
the Fourth
Respondent’s possession. The Fourth Respondent when requested
to do so, handed to the said representatives of
the Applicant a 9mm
firearm and a shotgun with registration number M2129 (“the
rifle”).
[14]
The Fourth Respondent was charged as follows :
“
Charge
1
In
terms of Section 40 of the South African Police Service Act, 1995
(Act No 68 of 1995), read with the South African Police Service
Discipline Regulations, 2006 you are hereby charged with misconduct,
in that you allegedly contravened Regulation 20(Z) of the
said
regulations, at or near Vanderbijlpark during 2011-01-21 at about
16h00 in that you committed common law offence to wit possession
of
unlicensed firearm 7,62 mm rifle with serial number M2129 : Bren
Arms.”
[15]
In respect of the charge the Applicant was found guilty following a
disciplinary enquiry and was dismissed on 23 February 2012.
The
Appeal failed and the Applicant then lodged a claim of unfair
dismissal with the Bargaining Council.
[16]
On 15 July 2013 the Commissioner issued an arbitration award in terms
of which it was determined that the dismissal of the
Fourth
Respondent was substantively unfair and the Commissioner further
ordered :
“
The
South African Police Service is ordered to reinstate the applicant
with effect from 23 February 2012 on the same terms and conditions
as
those that prevailed before his dismissal. The applicant is directed
to report for duty on or before 01 August 2013 at his last
place of
work before he was dismissed.
The
respondent is further ordered to pay to the applicant back pay as
from 23 February 2012 to 31 July 2013 taking into account
all salary
increments.”
[17]
It is in respect of this award that the Applicant has filed this
application for review.
Grounds
for Review
[18]
In substance, the Applicant contends that the Commissioner’s
award is reviewable on the basis that it is unreasonable
in that the
Commissioner committed a reviewable irregularity by failing to
properly apply his mind to certain identified allegedly
relevant
evidence and/or considerations and thereby arrived at a conclusion
which no reasonable decision maker could have reached
in the
circumstances. While the Applicant baldly lists other grounds
of review in its Founding Affidavit, the grounds are
not
substantiated further although the Applicant, in its supplementary
affidavit, contends further that the Commissioner’s
award is
reviewable on the basis that the Commissioner misconceived the nature
of the enquiry.
[19]
The crux of the Applicant’s contention for review is that the
Commissioner “
erred in finding that the Fourth Respondent
was in lawful possession of the rifle,”
and that in doing
so the Commissioner failed to take into account the evidence of
Brigadier Jan Scheepers (“Scheepers”)
in which regard it
is contended that Scheepers testified:
“
1.
That no member was allowed to go home with a rifle and that a member
of the SAPS was only allowed to
be in possession of a firearm if the
said firearm was recorded on the SAP108.
2.
That every six months, an inspection is held to determine the SAPS
equipment a member is
in possession of in terms of the SAP108; and
3.
That he conducted several inspections with the Fourth Respondent and
the Fourth Respondent
never produced the rifle for inspection.”
[20]
The Applicant further contends that the Commissioner failed to take
into consideration the
Firearms Control Act, No.60 of 2000
in terms
of which the contention is that the Fourth Respondent was in
possession of a State owned firearm without a permit authorizing
such
possession. The Applicant further contends that in aggravation, the
Commissioner failed to take into account that the Fourth
Respondent,
as an Officer, should be aware of the provisions of the
Firearms
Control Act as
he exercises certain duties in relation thereto in
respect of his subordinates.
Evaluation
[21]
The Commissioner correctly
determined the onus in terms of
Section 192(2)
of the LRA
[3]
required the employer, the Applicant to prove that the dismissal is
fair. After considering the evidence, the Commissioner concluded
that
the Applicant had failed to prove, on a balance of probabilities,
that the Fourth Respondent was guilty of the misconduct
for which he
was dismissed.
[22]
The Commissioner summarized the
Fourth Respondent’s version as follows:
[4]
The rifle had been issued to him on 10 March 1987 at Koeberg Training
College in Cape Town after he had successfully completed
his
training.
[5]
In May 1987 the Fourth Respondent was then deployed with the Riot and
Stability Unit in Vanderbijlpark and utilized the rifle during
his
normal duties in this Unit. He further stated that members of this
Unit were allowed to go home with the rifle issued to them.
He
further indicated that at this time salaries were paid in cash and an
inspection of the rifle was done before a member could
receive his
salary. It was his further evidence that his rifle had been inspected
by an Inspector Potgieter in 2003.
[23]
The Applicant introduced the
evidence of three witnesses. The first two witnesses did not advance
the case of the Applicant in the
context of whether the Fourth
Respondent’s possession of the rifle was unlawful or not.
Lieutenant Colonel Khasuli (“Khasuli”)
specifically
conceded that she was not in the position to “
say
whether this firearm that we are talking about was unlawfully in the
possession of the Applicant or not.”
[6]
Sector Commander Marius
Verwey (“Verwey”) also indicated, in a question directed
specifically to him as to whether the
shotgun M2129 was unlawfully in
the possession of the Applicant that - “
I
could not testify about because I do not have the access to the
ownership of the firearm and to whether it was in the Captain’s
name or not.”
[7]
Verwey further when questioned about the Fourth Respondent’s
version that the rifle had been given to the Fourth Respondent
at
Koeberg, confirmed that he had never questioned the Fourth Respondent
about such version, however he confirmed that the Fourth
Respondent
had proffered this as an explanation for his possession of the
firearm.
[8]
[24]
For the Applicant it is contended that :
“
The evidence demonstrates
that the Fourth Respondent was in possession of an unlicensed firearm
and reference is made to the evidence
of Khasuli and Verwey in
support of the contention.”
[9]
In
support the Applicant refers to the record of the evidence of Khasuli
and Verwey.
[10]
This is misplaced. The evidence referred to in this context relates
solely to the possession of the firearm which the Fourth Respondent
does not deny. This evidence did not advance the enquiry before the
Commissioner as to whether such possession was lawful or not.
[25]
In respect of the third and final witness introduced by the
Applicant, the Commissioner confirms in his award that the evidence
of Scheepers was,
inter alia
, that :
“
1
.
He, Scheepers
inspected the Fourth Respondent’s SAP 108 file a document in
which all state issued equipment is recorded and
had found that the
rifle was never recorded on the Applicant’s SAP 108.
2.
That no member was allowed to go home with a rifle.
3.
Once the firearm was recorded on SAP 108 then the member had
permission to possess it.
4.
Every six months an inspection is held on all the equipment in a
member’s possession and
this is then compared with the
equipment listed on the SAP 108.
5.
He had conducted several inspections and the Fourth Respondent had
never produced the rifle for
inspection.”
[26]
In evaluating the evidence of
the Applicant’s witnesses against the version proffered by the
Fourth Respondent, the Commissioner
found that the Respondent’s
witnesses could not “
dispute
the Applicant’s version.”
[11]
[27]
The Commissioner specifically
found that the Applicant’s witnesses could not deny “
the
fact that during the 80’s Police officials were allowed to take
their rifles home.”
[12]
[28]
The Commissioner further made
reference to the evidence of Scheepers who had confirmed that the
Riot and Stability Unit had operated
differently from other police
units and that he, Scheepers, was not involved in the Riot and
Stability Unit.
[13]
[29]
After considering the
probabilities, the Commissioner then concluded that the Fourth
Respondent was placed in lawful possession
when the rifle had been
issued to him in Koeberg and the Commissioner posed the question as
to when the Fourth Respondent ceased
to be in lawful possession of
the rifle. In answer to this, the Commissioner concluded that the
Applicant’s witnesses did
not dispute that the rifle had been
lawfully issued in Koeberg and, consequently, the Applicant had
failed to establish that what
amounted to lawful possession of the
rifle had at some stage become unlawful. In this context, the
Commissioner specifically dealt
with the current policy as testified
by Scheepers. The Commissioner found that there was no evidence that
possession of the rifle
had been lawfully revoked by the
Applicant.
[14]
[30]
Insofar as the contention by
the Applicant that the Commissioner failed to take into account the
Firearms Control Act, it
bears mention that the Applicant was not
charged for an offence relating to possession of a firearm without a
permit. Quite apart
from this, at no stage did the provisions of the
Act
[15]
form part of the Applicant’s case before the First Respondent
either in evidence or in closing argument. On review this Court
is
not inclined to consider facts or argument not introduced before the
Commissioner.
[16]
[31]
Advocate Mosam, for the
Applicant, argued that the Applicant was in effect the custodian of
the
Firearms Control Act and
bore responsibility to ensure that
firearms were controlled pursuant to its provisions. As indicated,
this was not the case presented
to the Commissioner and quite apart
from this, whatever obligations the Applicant may or may not have
pursuant to the provisions
of the
Firearms Control Act, there
appears
to be no reason why these obligations may not be discharged
independently of the obligations of the Applicant as an employer
to
comply with the provisions of the Labour Relations Act. In a similar
vein, the Applicant contends that the Commissioner ignored
the
evidence of Scheepers who had testified that the rifle had gone
missing from the Evaton Police Station a few years before the
rifle
was found in the possession of the Fourth Respondent and that he,
Scheepers, had given instructions that a docket be opened
against the
Fourth Respondent for the illegal possession of a firearm and had
instructed that the Fourth Respondent be arrested
on that charge.
Scheepers further testified that this was done.
[17]
Consequently, whatever actions or processes were obliged to be
implemented or followed pursuant to the provisions of the
Firearms
Control Act these
are and were independent of the Applicant’s
obligations pursuant to the Labour Relations Act.
[32]
It is so that the firearm was
not disputed as a State owned firearm and it was further common cause
that the firearm did not appear
on the SAPS 108.
[18]
Advocate Mosam argued that it is the SAPS 108 which extends the right
to the SAPS member to possess the firearm. In other
words if the
firearm is not reflected on the SAPS 108 then,
ipso
facto
, the possession is
unlawful and in support of this Advocate Mosam made reference to the
evidence of Scheepers.
[19]
It appears from the evidence of Khasuli
[20]
and from Verwey’s evidence
[21]
that the 108 refers to an internal SAPS inventory/register system. I
say “appears” as the origin and the precise provisions
of
the “SAPS108” were not canvassed in the evidence before
the Commissioner. The regulation or Standing Order, if it
exists in
documentary form, was also not introduced by the Applicant into
evidence. Given the onus resting upon the Applicant,
the Applicant
was obliged, in my view, to establish clearly in evidence what the
provisions of the SAP108 were. Do the provisions
of SAP108 provide
for the extension of the right to possess the equipment referred to
in the Section 108 register or is the register
solely an inventory
system? Allied to this is the timing. When did the regulation or
Standing Order in relation to SAP108 come
into being? The
Commissioner concluded that the Applicant’s witnesses had only
testified in relation to the “current”
policy and the
Commissioner reflects his finding as follows :
“
23.
The respondent’s witnesses claimed that the current policy is
that police officials are not allowed to take
any rifle or long shot
gun home. Scheepers testified that the rifle was not on the
list of equipment recorded on his SAP
108. The applicant had the
rifle since 1987 and this supports Scheeper’s evidence that
members of the Riot and Stability
Unit had their own regulation.”
[22]
[33]
However, Scheepers also testified that :
“
There
is no member in the SAPS that can have a long firearm on the SAPS108
because that, all the long firearms, that is including
your R, the
old times, the R1s, your R5s and the shotguns. All those firearms is
on the SER, it is a state account. So it does
not belong to a member.
It is a station police, a police station’s property. It cannot
be taken home by a member.”
[23]
It
is quite apparent from this testimony that the current policy of the
SAPS may well differ from whatever the previous policy may
or may not
have been.
[34]
Scheepers concedes in cross examination :
“
Mr
Mokoena: So the Applicant will then be
correct to say that the Mossberg firearm was given to him in 1987.
That you cannot deny.
Mr
Scheepers: I cannot testify on the correctness of
that statement. I was not in SAPS even.
Mr
Mokoena: So my say is, with
regard to the applicant, applicant say that in 1987, that was
when
this firearm was handed to him. In that time, you were not in the
South African Police.
Mr
Scheepers: That is correct, yes.
Mr
Mokoena: So you cannot dispute
that.
Mr
Scheepers: I cannot, I cannot dispute that.
Mr
Mokoena: Okay. So I am
putting it to you that the applicant was given this firearm
while in
Koeberg in 1987. What is your response?
Mr
Scheepers: cannot respond on that. Like I said, it
might be true, it might not be true. I cannot, because I
was not even
in the organization at that stage.”
[24]
[35]
Whilst not specifically outlined by the Commissioner in his
award, Scheepers also testified that :
“…
I
never investigated the purpose why this member had this firearm, but
I will not recommend from my side a dismissal maybe just
a fine.
Maybe a suspended dismissal is another option.”
[25]
[36]
In determining whether the
decision reached by the Commissioner is one that a reasonable
decision maker could not reach
[26]
the appropriate approach to be adopted by this Court is one which
avoids a fragmented or piecemeal analysis of each of the arbitrator’s
findings.
[27]
[37]
There is, on the totality of all the evidence before the
Commissioner, in my view, no merit in the application for a review
of
the Commissioner’s award. It is quite apparent from the
Commissioner’s award that he considered the evidence of
Scheepers which the Applicant contends he ignored.
The
Commissioner, in concluding that the Applicant’s witnesses
could not dispute the Fourth Respondent’s version as
to how he
came to be issued with and be in possession of the rifle, is a
conclusion which is entirely reasonable.
[38]
If regard is had to the Fourth Respondent’s award, there is
also no merit in the contention that he “
misconceived the
nature of the enquiry
”.
[39]
In the premises the application is dismissed.
[40]
Insofar as costs are concerned,
as alluded to in the context of the preliminary matters, the Fourth
Respondent contended that the
award of costs on the attorney and
client scale is warranted on the basis that the Applicant has acted
“unreasonably”
and in gross disregard of the Rules and
Practice Directives of the above Honourable Court and has acted in
“bad faith”.
While the Applicant disputes this, what is
evident from the conduct of this matter is that the Applicant has
introduced two applications
for condonation in relation to various of
its aspects of non-compliance with the Rules of this Court. The
Applicant also took in
excess of a year to file its heads of argument
and has not in its general conduct of the review, given that it is
dominus litis,
respected
the fact that a review application is by its nature an urgent
application.
[28]
[41]
It also bears mention that the record is incomplete. The evidence of
the Fourth Respondent has not been transcribed, presumably
as the
evidence was given in Sotho
.
Were it not for the fact that all
three of the Applicant’s witnesses do not dispute the Fourth
Respondent’s version
that he was issued with the rifle in 1987
and the circumstances relating thereto, it may well have been
necessary to postpone the
review application to secure that portion
of the record.
Consequently,
I make the following Order:
Order:
1.
The Application is dismissed.
2.
The Applicant, the South African Police Services, is ordered to
reinstate the
Fourth Respondent with effect from 23 February 2012 on
the same terms and conditions as those which prevailed before his
dismissal.
The Applicant is directed to report for duty within
fourteen (14) days of date of this Judgment at his place of work
prior to his
dismissal (“date of reinstatement”).
3.
The Applicant is ordered to pay the Fourth Respondent back pay from
23 February
2012 to date of reinstatement taking into account all
salary increments.
4.
The Applicant is ordered to pay the Fourth Respondent’s costs
on the attorney
and own client scale.
_______________________
MADDERN AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For
the Applicant:
Mr Du Toit
of Chantell Timm Attorneys
For
the Respondent:
Adv Mosam
Instructed
by:
The State Attorney, Johannesburg
[1]
Act 66 of
1995 as amended
[2]
Paragraph
11.4
[3]
Section
192(2) provides : “
If
the existence of the dismissal is established, the employer must
prove that the dismissal is unfair.”
[4]
Indexed bundle pages 21 and 22, paragraphs 18 to 24 of Arbitration
Award.
[5]
Indexed bundle page 20, paragraph 14 of Arbitration Award.
[6]
Record page
21 (indexed 24) lines 21 – 25 and page 22 (indexed 25) line 1
[7]
Record page
40 (indexed 43) lines 20 - 22
[8]
Record page
41 (indexed 44) lines 1 - 8
[9]
Applicant’s
Heads of Argument paragraph 22.2.
[10]
Record page
9 (indexed 12) lines 20 – 24, page 11 (indexed 14) lines 8 –
12, lines 21 to 22; evidence of Verwey page
34 (indexed 37) lines 24
to 25; page 35 (indexed 38) lines 1 - 10
[11]
Paragraph
18 of the award “
the
Applicant testified that the rifle was issued to him in March 1987
at Koeberg during his training and that when he later worked
with
the rifle during riots in Vanderbijlpark he was allowed as were
other members to take their rifles home for protection.”
[12]
Indexed
bundle page 22 paragraph 19
[13]
Indexed
bundle page 22 paragraph 19
[14]
Indexed bundle page 22 paragraphs 22 and 24
[15]
Firearms
Control Act No.60 of 2000
[16]
The Court
in
Albany
Bakeries Ltd v Van Wyk and Others
(2005)
26 ILJ 2142 (LAC) made it clear that it was prohibited for a review
application to raise on review a case never placed
before the
arbitrator.
And
in
Rambar Construction (Pty) Ltd t/a Rixi Taxi v Commissioner for
Conciliation, Mediation and Arbitration and Others (2012)
33 ILJ
1911 (LC) the Court held:
“
From
this it is clear that the Commissioner was not presented with the
evidence that would support the Applicant’s case
at the
arbitration. Having looked at Cromhout’s concessions
above, it really baffles my mind how the Commissioner
can be
criticized for failing to take into account any of the material
evidence when that was not presented before her by Cromhout
as he
himself acknowledged. The Applicant sought to introduce new
evidence via a rescission application. By doing
so it is clear
to me that the Applicant sought to have a ‘second bite of the
cherry…’”
See
also in this regard
Xorile v CCMA & Others
(JR 2345/2011)
[2014] ZALCJHB 512 (8 December 2014)
[17]
Record page
52 line 25 to page 53 line 8
[18]
Record
(evidence of Scheepers) page 49 (indexed 52) lines 4 - 18
[19]
Record
(evidence of Scheepers) page 51 (indexed 54) lines 15 - 21
[20]
Record page
29 (indexed 32) lines 7 to 8 and lines 19 to 23
[21]
Record page
37 (indexed 40) lines 15 to 21
[22]
Indexed
pleading bundle page 22 paragraph 23
[23]
Record,
evidence of Scheepers page 53 (paginated 56) lines 17 to 22
[24]
Record,
Scheepers evidence page 59 (indexed page 61) lines 20 to page 59
(paginated 62) line 10
[25]
Record page
80 lines 7 - 11
[26]
Sidumo v
Rustenburg Mines Limited & Others
2007 (12)
BLLR 1097
CC (at para 110)
[27]
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
2014 (1)
BLLR 20
(LAC) and
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer
2015(4) BLLR 394 (LAC)
[28]
Practice
Manual, paragraph 11.2.7