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[2017] ZALCJHB 87
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South African Broadcasting Corporation (SOC) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR745/16) [2017] ZALCJHB 87 (8 March 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 745 / 16
In the matter between:
SOUTH AFRICAN BROADCASTING
CORPORATION (SOC) LTD

Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION

First Respondent
ELEANOR HAMBIDGE N.O. (AS
ARBITRATOR)

Second Respondent
SEAN BURKE AND 8
OTHERS

Third and Further Respondents
Heard:
22 September 2016
Delivered:
8 March 2017
Summary:
CCMA
arbitration proceedings – Review of proceedings, decisions and
awards of arbitrators – Test for review –
Review
concerning issue of jurisdiction
as
to whether employment exists
–
Test
of rationally and reasonableness does not apply – issue
considered
de
novo
on the
basis of right or wrong award
Employment
– consideration of nature of relationship – principles
considered – assessment and determination of
evidence –
relationship not one of employment but independent service providers
/ contractors
Unfair
labour practice – no unfair labour practice relating to
benefits as no employment relationship exists –
not
necessary to consider review concerning
arbitrator
making no finding
on benefits – review dismissed
CCMA
arbitration proceedings – award that
employment
relationship
exists
wrong – award reviewed and set aside – substituted with
award dismissing dispute
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award made by the second respondent
in her
capacity as an arbitrator of the
CCMA
(the first
respondent), in terms of which she found that the third and further
respondents were
employees
of the applicant.
This
application has been brought in terms of Section 145 of the Labour
Relations Act
[1]
(‘the LRA’).
Also,
the third and further respondents, in the capacity of applicants,
have brought their own separate review application under
case number
JR 650 / 16, challenging the failure of the second respondent to
award them consequential relief in terms of the unfair
labour
practice dispute they had brought to the CCMA, after having found
them to be employees.  This review application by
the individual
respondents was also brought in terms of Section 145 of the LRA.
Both the review applications are before me.
For the sake of
convenience, in this judgment I will refer to the third and further
respondents as the ‘individual respondents’,
and when
reference is made to a specific individual respondent, such
individual respondent will be mentioned by name.
[2]
This
matter arose from the
referral
of an unfair labour practice dispute by the individual
respondents to the
CCMA, against the applicant, on 26 June 2015.  The individual
respondents contended that they were employees
of the applicant
and
that they were entitled to the same employment benefits as all the
other employees of the applicant, which they were not receiving.
The
applicant contended that the individual respondents were not
employees of the applicant, but independent contractors.
This
dispute came before the second respondent for arbitration
on
12 October and 8
December 2015, and concluded on 17 February 2016. Following
completion of the arbitration proceedings, and in an
arbitration
award dated
7 March
2016
, the
second respondent found in favour of the
individual
respondent
s
,
and decided that the
individual
respondents
were indeed employees of the applicant. However, other than finding
that they were employees, the second respondent
made no award of
consequential relief
in
favour of the individual respondents. As stated above, both parties
were not satisfied with this award, and sought to challenge
the same
on review.
[3]
The
award was handed down by the second respondent on 7 March 2016.
The applicant served and filed its review application
on 20 April
2016, and the individual respondents filed their review application
under case number JR 650 / 16 on 11 April 2016.
Both these
review application were accordingly timeously brought and is properly
before Court.
[4]
In
deciding both these review applications, the proper point of
departure is to first decide the applicant’s review application

which concerns a challenge of the finding that the individual
respondents were employees of the applicant.  If this review

application is decided in favour of the applicant, there will be
simply no need to decide the review application of the individual

respondents, because it would mean that no employment relationship
exists between the parties, and consequently no unfair labour

practice jurisdiction would exist.   I will therefore
proceed in deciding the applicant’s review application,
commencing with first setting out the relevant facts.
The
relevant facts
[5]
Fortunately,
the factual matrix in this instance was either common cause, or
mostly undisputed. The disputed facts related to mostly
irrelevant
issues. I will only set out those facts relevant to deciding whether
the individual respondents were indeed employees
of the applicant.
[6]
The
applicant conducts business as a public broadcaster. It has a large
number of its own employees, but also engages the services
of a
number of individual persons as independent service providers.
All these persons offer the kind of services that entails
a
particular skill attaching to such person, especially where it comes
to technical personnel. Technical personnel include camera
operators,
editors, lighting technicians and similar personnel involved in the
production and editing of broadcasts.
[7]
Where
it came to the individual respondents, they all rendered services as
video editors. They were not employed by the applicant,
but were all
engaged as independent contractors. The applicant does have its own
video editors under its employ, but this did not
include the
individual respondents.
[8]
The
individual respondent had each been engaged by the applicant in terms
of written contracts. Their periods of engagement commenced
between
2005 and 2009, respectively, and consisted of a number of contracts
signed by them styled as ‘independent contracts’.
The
most current contract concluded between the individual respondents
and the applicant commenced on 1 April 2014, and was set
to terminate
on 31 March 2017 (‘the contracts’).
[9]
It is
clear that the contracts specifically describe the individual
respondents as independent contractors, and not employees.
The
nature of services rendered under the contracts are prescribed as
“video editing’, for news. They are paid a contract
fee
per shift in exchange for the services rendered under the contracts,
and would not be paid for any scheduled shift they do
not work for
whatever reason. The contracts specifically record that the
engagement of the individual respondents shall not constitute

appointment as an employee.  Further in terms of the contracts,
the individual respondents were entitled to pursue external

remunerative interests. No provision is made for any form of leave,
sick leave or other kind of employment benefits, in the contracts.
[10]
The
individual respondents were, as stated above, engaged as video
editors.  Video editing is the editing of recorded stories
into
a finished product suitable for the public, for the purposes of
broadcasting same to television viewers as part of news bulletins.

The actual video material to be edited is provided by the applicant’s
news department to the individual respondents, on the
basis
elaborated on hereunder.
[11]
Where
it comes to how the individual respondents are allocated work, this
is done by way of a roster displayed at the entrance of
the
applicant’s building.  This roster is published weekly,
and displays the name of the video editor working that particular

week, and shifts they would be working. Themba Mathonzi (‘Mathonzi’),
who testified for the applicant and who was head
of the department of
News Video Editing, testified as to how shifts are allocated.
According to Mathonzi, shifts are first
allocated to the applicant’s
permanently employed as video editors. When there are, what is called
‘gaps’, the
independent contractors are allocated work,
and that is how the weekly shift rosters are drawn up. In simple
terms, the independent
contractors serve to cover work the
applicant’s employees are unable to deal with. Because there
are more independent contractors
than permanent employees, there
would be regular work for the independent contractors.
[12]
The
editing itself is done in edit suites allocated by the applicant to
the individual respondents. The allocation of the edit suites
is done
by what is called a co-ordinator or supervisor, who also draws up a
roster that reflects which suite the video editor would
be working
in.  If an individual respondent is then so allocated duties,
such individual respondent would proceed directly
to the suite, and
start working. There is also only one video editor per suite, and the
suite contains the equipment necessary
to do the editing. The
co-ordinator or supervisor is not in any way involved in the editing
work, save for allocating what can
be called ‘emergency work’
if needed.
[13]
The
amount of time spent working in the suite is variable.  The
evidence was that it could range from 6 hours to 8 hours.  It

depended on the shift allocated.  The video editor works with a
producer, who is assigned certain news stories.  The
producer
checks the content of the story, hands it to the video editor, who
then edits the story into a package that is saved onto
the server,
and then broadcasted. As it was described in the evidence, the video
editor “packages” the story. In order
to ‘prove’,
for the want of a better description, that the individual respondents
did complete their shift, their rosters
are signed at the completion
of their working shift by the supervisor. However, and as stated, the
supervisor does not in any way
manage or control the work being done
by the individual respondents, who as video editors are left entirely
to their own devices
when producing the end product. Whilst it was
possible for the individual respondents to do the editing using their
own equipment,
this proved problematic, because the applicant has a
‘closed server’ for security purposes.
[14]
When
a shift is allocated to one of the individual respondents, but he or
she were unable to work on that shift, they would ‘lose’

the shift and could not exchange it with someone else.  The
individual respondents could choose if they wanted to take an

allocated shift or not.  They would not be subject to discipline
for absenteeism if they cannot or did not work an allocated
shift,
and they simply would not be paid for the shift.  The individual
respondents also do not apply for or get leave, or
sick leave.
[15]
At
the end of every month, and based on the number of shifts that they
worked, as reflected on the rosters signed off by the supervisor,
the
individual respondent would produce an invoice and submit it to the
applicant for payment. The invoice would thus match the
number of
approved shifts worked, and would reflect the actual number of shifts
worked. The individual respondents were paid per
shift worked, no
matter how many hours the shift was. The number of shifts worked also
varied from month to month.  Without
submitting such an invoice,
the individual respondents would not be paid.  The invoices are
paid via the applicant’s
finance department, with a remittance
advice furnished, and not by way of the employees’ payroll of
the applicant.
Taxation was however deducted from the invoices
rendered, prior to payment, but the individual respondents were
issued with an
IRP5 based on payments made to an ‘independent
contractor’.
[16]
As
stated above, the applicant has video editors in its employ. These
video editors discharged their duties in the same manner as
the
individual respondents. However, the individual respondents only
edited news clips, whilst the employees also edited current
affairs
material. The video editors actually employed by the applicant had
proper employment contracts, received employee benefits,
and were
paid a fixed salary per month irrespective of hours or shifts worked.
[17]
According
to Mathonzi, individual negotiations had taken place with each
individual respondent as to his or her contract, and their
contract
rates, which varied between them.
[18]
The
individual respondents were subject to the applicant’s Standard
Operating Procedure (‘SOP’) when doing their
work. The
applicant’s full time employees were equally subject to the
SOP. However, broadcasting regulation by law, required
that the
product of video editing must adhere to prescribed standards, which
is the reason for the SOP. Where the individual respondent
did not
adhere to the SOP, they were admonished, and could have their
contracts terminated. But the individual respondents were
not in any
way disciplined, as was the case with the applicant’s
employees. The SOP was there to ensure that the product
of the video
editing work of the individual respondents adhered to prescribed
minimum standards.
[19]
The
individual respondents were free to render video editing services to
any third party, despite having a contract with the applicant.

It is so that most of the individual respondents did not work
elsewhere, but they could if they wanted to, without any permission

from the applicant.  External work was thus not prohibited. Two
of the individual respondents, Sean Burke (‘Burke’)
and
Mduduzo Nkosi (‘Nkosi’), did external work for third
parties from which they earned an income.
[20]
The
testimony also revealed that from an organizational perspective,
there was a recognized distinction, which had been existence
for a
long period of time, between what was called ‘freelancers’
and the full time employees of the applicant. Freelancers
were
independent contractors, separate from the applicant’s
employees. The individual respondents conceded this, and in essence

their case was that this state of affairs should be changed and they
had to be ‘converted’ to being employees.
[21]
One
of the individual respondents, Mabiseng Nyandeli (‘Nyandeli’),
in fact testified that he had been an employee of
the applicant in
the past, and explained the employment process how he came to be
appointed as an employee.  Nyandeli actually
terminated this
employment and became what was called a ‘freelancer’
(independent contractor).  Mathonzi confirmed
in evidence that
in order to become an employee of the applicant, a person had to
apply for a vacant position, and go thought the
entire recruitment
and then appointment process of the applicant, which was specifically
regulated and prescribed, which was not
the case where it came to
contracting with the independent contractors.
[22]
In
the case of Nkosi, he testified about training that he had undergone
to use certain equipment, and whilst being trained, he was
not paid.
Mathonzi confirmed this basis of training in his evidence, saying
that the independent contractors would only be trained
where there
was a change in equipment, and were not part of the training
programmes available to the employees of the applicant.
[23]
Finally,
the evidence showed that each of the individual respondents earned in
excess of the threshold as prescribed by the Basic
Conditions of
Employment Act, which issue will be dealt with further, hereunder.
[24]
Based
on the above factual matrix, the second respondent decided that the
individual respondents were not independent contractors,
but
employees of the applicant.  It is this determination of the
second respondent that now forms the subject matter of the

applicant’s review application.
The
test for review
[25]
The
issue as to whether an employment relationship exists is a
jurisdictional fact. If there is no employment relationship between

the two parties to the dispute, then the CCMA would have no
jurisdiction to determine the matter, and consequently there can be

no unfair labour practice as contemplated by Section 186(2) of the
LRA.
[26]
Because
this review application concerns an issue of jurisdiction, the review
test as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
does
not apply. As said in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
:
‘…
.
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise
…. ’ (emphasis added)
[27]
In
cases such as these, where it is about whether the CCMA had
jurisdiction, the Labour Court is entitled to, if not obliged, to

determine the issue of jurisdiction of its own accord, by deciding
de
novo
whether the determination by the arbitrator on jurisdiction is right
or wrong.
[4]
In
Trio
Glass t/a The Glass Group v Molapo NO and Others
[5]
the Court said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[28]
In
the case of a wrong decision by a CCMA arbitrator where it comes to
the issue of jurisdiction, the decision of the arbitrator
would be
reviewable on objectively justiciable grounds.
[6]
It does not matter what the reasoning of the arbitrator may have
been, it is up to the Court to, from an objective perspective,
decide
whether the requisite jurisdictional facts exist.  In
Universal
Church of the Kingdom of God v Myeni and Others
[7]
the Court said:
‘…
the
value judgment of the commissioner in a jurisdictional ruling has no
legal consequence and that it is only a ruling for convenience.

Therefore, the applicable test is simply whether, at the time of
termination of his relationship with the church, there existed
facts
which objectively established that Mr Myeni was indeed the employee
of the church. If, from an objective perspective, such
jurisdictional
facts did not exist, the CCMA did not possess the requisite
jurisdiction to entertain the dispute, regardless of
what the
commissioner may have determined.
’
[29]
In
the end, and as held in
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others
[8]
:
‘
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court…’
[30]
Turning
to the specific instance of the existence or not of an employment
relationship as an issue of a jurisdictional fact needed
to clothe
the CCMA with jurisdiction, the Court in
Sanlam
Life Insurance Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[9]
held:
‘
It
was, therefore, incumbent upon the Labour Court to deal with the
issue whether or not there had been an employment relationship

between the appellant and the third respondent and, therefore,
whether the CCMA had the requisite jurisdiction to deal with the

dispute… The Labour Court was called upon to decide de novo
whether there was an employer-employee relationship between
the
parties. It was not called upon to decide whether the commissioner's
findings were justifiable or rational.’
[31]
Against
the above principles and tests, I will now proceed to consider the
applicant’s application to review and set aside
the arbitration
award of the second respondent, where it comes to the issue of
whether or not the individual respondents were in
fact employees.
Evaluation
[32]
In
casu
,
this is simply a matter of deciding whether the individual
respondents are independent contractors to, or employees of, the
applicant.
I must confess my concerns about what seems to be a
growing trend of persons who had entered into independent service
agreements
with a third party contractor, but then claim the
existence of an employment relationship, purely because it is
considered to be
opportune or in their financial interest to do so.
This would often be the case where the relationship comes to an end,
and
the individual service provider then claims dismissal so as to
extract relief from the other party flowing from a claim for unfair

dismissal
[10]
.
Or, as is the case
in
casu
,
the independent service provider claims employment so as to procure
employment benefits the employees of the third party contractor
would
be entitled to. These situations are often more a case of
opportunism, rather than a genuine attempt to establish the true

nature of a relationship where that is unclear.
[33]
What
makes these kind of claims and cases possible is the fact that the
Labour Court and the CCMA are entitled to go beyond what
is contained
in a contract so as to establish the true nature of the relationship
between the parties.  In
Denel
(Pty) Ltd v Gerber
[11]
the Court held:
‘
When
a court or other tribunal is called upon to decide whether a person
is another's employee or not, it is enjoined to determine
the true
and real position.
Accordingly,
it ought not to decide such a matter exclusively on the basis of what
the parties have chosen to say in their agreement
for it might be
convenient to both parties to leave out of the agreement some
important and material matter or not to reflect the
true position.
’
Therefore,
and despite a contract being labelled and styled as an independent
contract, the Court can still extract an employment
relationship from
it, applying a number of tests and considerations with due regard to
all objective facts.
[12]
[34]
The
concern I have is that in the haste to apply the available tests in
establishing the existence of an employment relationship,

adjudicators often loses sight of the contract itself, how it came
about, and the services provided in terms thereof.  There
are
two parties to the contract, and the basis upon the third party
contractor sought to enter into the relationship
with
the service provider
must
be an important consideration.  Where parties to a service
providing relationship have, with the necessary circumspection
and on
the basis of an informed decision, decided to structure their
relationship in a particular way, an adjudicator should not
readily
interfere with this relationship as enshrined in the contract, after
the fact. After all,
pacta
servanda sunt
in principle equally applies in employment law.
[35]
The
LRA was never intended to banish the genuine independent service
agreement concluded with individual service providers to the
scrap
heap of history, in favour of a default employment relationship.
What the LRA was intended to do
was
to provide protection to unsophisticated and disenfranchised persons,
in an environment where jobs are scarce and unemployment
is rife,
which persons would do and sign anything just to get a job. Further,
the LRA was intended to protect employees against
unscrupulous
employers seeking to abuse the common law of contract to escape
employment law obligations. In these kind of circumstances,
it can
hardly be contradicted that the CCMA and Labour Court would be
entitled to intervene and classify the relationship between
the
parties for what it really was – an employment relationship.
[36]
In this context, the
adoption of Section 200A
[13]
makes sense, and in particular, that its application is limited to
instances where the so-called employee earns less than the threshold

prescribed by the Basic Conditions of Employment Act (‘BCEA’).
[14]
This lesser level of earnings is normally associated with that part
of the employment corps that would be more unsophisticated
and more
likely to be unduly influenced into signing something they never
intended to, so that the envisaged employer can avoid
employment
obligations.
[15]
Section 200A, in order to compensate for such a situation,
creates a presumption of employment, as a default position, with
the
onus on the so-called employer party to rebut that presumption if
employment is truthfully not the case.
[37]
In
cases where Section 200A does not apply, and the parties have
concluded a written agreement establishing the nature of their

relationship, it is this agreement that must be the default position
in establishing the nature of the relationship. The onus would,
in
such case, be on the party seeking to contradict this agreement to
show that the agreement does not reflect the true relationship

between the parties, which is in reality not one of an independent
contractor, but one employment.
[38]
Since
the case
in
casu
is one where, on the evidence, Section 200A does not apply, the point
of departure in deciding the nature of the relationship between
the
applicant and the individual respondents would be the contracts that
they had concluded with one another.  In
LAD
Brokers (Pty) Ltd v Mandla
[16]
the Court said:
‘…
The
legal relationship between the parties is to be determined primarily
from a construction of the contract between them. …
’
[39]
In
simple terms, the best place from which to establish the intention of
the parties is to consider what is contained in the contract.
In
fact, Mathonzi, who testified for the applicant, testified that the
intention in concluding the contracts was that that
the individual
respondents would be independent contractors.  In
Phaka
and Others v Bracks NO and Others
[17]
the Court said:
‘
The
repetitive references in the contract to the nature of the
relationship, and the painstaking effort to define it, leave no doubt

that the intention of the parties was to establish relationships
overtly on a different footing to the previously existing employment

relationships. This is confirmed … by the express wording of
the contract and the purport of its terms …
’
[40]
Considering
the contracts as they stand, it is clear from the terms thereof that
it does not read like an employment contract. It
is in fact
specifically provided that it is not an employment contract. In terms
of the contracts, the individual respondents provide
services as
video editors at a payment rate per shift, and are not paid for work
done
per
se
.
They can also perform whatever external work they want, and decide
themselves whether they want to work a shift or not. Overall,
and if
the contracts are considered as a whole, the most sensible meaning
and underlying purpose that can be extracted therefrom
is that the
relationship between the parties is not one of employment, but that
of independent service providers. A
s
enunciated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[18]
:
‘…
.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known
to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light
of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to insensible
or unbusinesslike
results or undermines the apparent purpose of the document. ….
’
As
aptly described in
Commission
for Conciliation, Mediation and Arbitration v MBS Transport CC and
Others; Commission for Conciliation, Mediation and
Arbitration v
Bheka Management Services (Pty) Ltd and Others
[19]
:
‘
It
is trite that, when interpreting any document, regard must be had to
the language used as well as the context under which the
document saw
the light of the day. …
’
In
this instance, the context under which the contracts saw the light of
day was not to establish employment, but to found a relationship
of
independent service providing, especially considering the above
factual matrix.
[41]
It is
also clear that the contracts contain no references to the kind of
basic conditions of employment one would normally associate
with an
employment relationship.  This includes, in particular, an
absence or providing for leave, sick leave, a salary and
specified
working hours.  In
Dempsey
v Home and Property
[20]
the Court
considered the following factors in a contract as being inconsistent
with an employment relationship:
‘…
The
contract between the parties made no reference to leave, sick leave
or any other terms or conditions customarily forming part
of a
contract of service. The appellant was not even required to tender a
medical certificate in respect of periods of absence
due to illness
or incapacity. …’
[42]
Further,
the individual respondents are simply not those kind of persons as
contemplated by the application of Section 200A, as
discussed above.
They are not unsophisticated and readily susceptible to being
pressurized into agreeing to something they
did not want. They have a
particular skill, and are free and competent to contract as to the
basis upon which this skill can be
made available to anyone who want
it. There was never any case or evidence lead that the individual
respondents were coerced or
misled into concluding the contracts.
Similarly, there is no evidence that the individual respondents did
not understand what the
nature was of that they were concluding. They
were free to contract as they wanted, and choose to pursue their
profession in the
manner as they wanted. Therefore, a consideration
of the contract remains an important criterion in deciding the
matter.
The approach
adopted by the individual respondents is in essence that of
propagating that the contract must be ignored when deciding
the
nature of the relationship between the parties.  That approach
is not correct. In
Reddy
v Siemens Telecommunications (Pty) Ltd
[21]
the Court said:
‘…
Contractual
autonomy is part of freedom informing the constitutional value of
dignity, and it is by entering into contracts that
an individual
takes part in economic life. In this sense freedom to contract
is an integral part of the fundamental right
referred to in section
22. Section 22 of the Constitution guarantees "[e]very citizen
. . . the right to choose
their trade, occupation or
profession freely" reflecting the closeness of the relationship
between the freedom to choose a
vocation and the nature of a society
based on human dignity as contemplated by the Constitution. …
’
There
is no reason why this kind of approach should not equally apply when
considering the contracts, and how they should be applied
in
establishing the relationship between the parties.
[43]
The
above being said, and specifically considering the authorities
analysed above, the enquiry however does not end just with a

consideration of the contracts and what they contain, even though it
may be an important consideration. In
State
Information Technology Agency (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
[22]
,
Davis JA postulated the following test to consider whether an
employment relationship exists, despite what is contained in a
contract:
‘
For
this reason, when a court determines the question of an employment
relationship, it must work with three primary criteria:
1
an
employer's right to supervision and control;
2
whether
the employee forms an integral part of the organization with the
employer; and
3
the
extent to which the employee was economically dependent upon the
employer.’
And
in
Denel
[23]
Zondo JP (as he then was) said:
‘…
whether
or not a person is or was an employee of another is a question that
must be decided on the basis of the realities - on the
basis of
substance and not form or labels - at least not form or labels alone.
In this regard it is important to bear in mind that
an agreement
between any two persons may represent form and not substance or may
not reflect the realities of a relationship…’
[44]
Starting
with the criteria of control and supervision,
an
important consideration is the nature of the services provided in
terms of the contract.  In this respect, it must be asked

whether the services are such that it flows from particular personal
knowledge, skill, expertise and qualification of the individual

service provider. In these kinds of instances, it would normally be
the service provider that decides and dictates how the work
is to be
done. In simple terms, how the services are to be rendered falls
within the realm of the service provider’s own
particular
knowledge and expertise. The only control and supervisory functions
of the recipient of the service would relate to
issues such as making
work available and exercising quality control. In short, the third
party contractor is not interested in
the work of the service
provider
per se
,
but it is interested in the particular skill brought to bear by the
service provider and the outcome arrived at in applying that
skill
set
.  In
Colonial
Mutual Life Assurance v MacDonald
[24]
it was said
‘…
.
one
thing appears to me to be beyond dispute and that is that the
relation of master and servant cannot exist where there is a total

absence of the right of supervising and controlling the workman under
the contract; in other words, unless the master not only
has the
right to prescribe to the workman what work has to be done, but also
the manner in which such work has to be done…’
[45]
A pertinent example of
this kind of situation, in a related industry to the one
in
casu
, can be found in
Kambule v
Commission for Conciliation, Mediation and Arbitration and Others
[25]
where the Court
dealt with a radio presenter that concluded an independent contract
with the radio station.  As part of the
reasons for accepting
that the presenter was an independent contractor, the Court
considered the following:
‘
The
fact that the station's contract with Kambule as a radio personality
was clearly because it wanted to harness his unique style
of
presentation and edgy programme content to its station profile. …
’
[46]
In casu
,
the individual respondents
in
reality do not work under the control and supervision of the
applicant
,
save for the
applicant
allocating
editing
work and
shifts when available
.
It is then up to the individual respondents to bring their own skills
and experience to bear to produce an end product, being
an edited
clip that can be broadcasted. The further control and supervision
then exercised by the applicant is only to conduct
quality control of
this end product.  This kind of situation is inconsistent with
control and supervision normally associated
with a true employment
relationship. Also, and in this context, the nature of the contracts
and what they contain make sense.
[47]
Further considerations
are that the individual respondents
were
not subject to the discipline of the
applicant
,
only reported for work when they wanted
or
were required,
and
were not managed or controlled like the full time employees of the
applicant. In fact, and if an individual respondent could
not make a
shift, they would ‘lose it’, and this would not attract
any kind of discipline for not being available.
In short, this kind
of control exercised by the applicant was in the form of the proper
deployment of available resources, and
again not the kind of control
and supervision normally associated with an employment relationship
.
In
SA
Broadcasting Corporation v McKenzie
[26]
the Court
held as follows:
‘
The
employee is subordinate to the will of the employer. He is obliged to
obey the lawful commands, orders or instructions of the
employer who
has the right of supervising and controlling him by prescribing to
him what work he has to do as well as the manner
in which it has to
be done. The independent contractor, however, is notionally on a
footing of equality with the employer. He is
bound to produce in
terms of his contract of work, not by the orders of the employer. He
is not under the supervision or control
of the employer. Nor is he
under any obligation to obey any orders of the employer in regard to
the manner in which the work is
to be performed. The independent
contractor is his own master.’
The
application of the aforesaid
dictum
to the facts
in casu
points towards the existence of an independent contracting
relationship, and not one of employment.
[48]
In
LAD
Brokers
[27]
the Court
applied the above
ratio
in
McKenzie
as follows:
‘…
It
is not unusual for independent contractors to be subject to some
measure of contractual control in respect of standards, employees,

working hours and the like. That is not the type of control referred
to by this court in the quoted portion of the judgment. The
control
envisaged … is immediate and recurring. It is incorrect to
describe contractual terms which are of a limiting nature
or
introduce some sort of supervision in respect of set standards as
derogating from the notional footing of equality between the

contracting parties in an independent contractual relationship. Such
limitations upon conduct or standard do not bring about the

supervision or control envisaged by this court…’
I
am of the view that this
dictum
would comfortably equally apply
to
the current matter. There is no immediate and recurring control of
the individual respondents. Any control exercised is just
to ensure
that an end product (a clip that can be broadcast) is produced, and
properly allocating available resources. These
considerations
does not
derogate from the independent nature of the relationship and services
provided by the individual respondents to the applicant.
This
was recognized in
Kambule
[28]
where the Court said:
‘
The
extent to which he worked in the organisational context of the
station was limited to what was strictly necessary for the purposes

of producing and broadcasting his programme. …
’
[49]
Insofar
as it may be
said that
the applicant prescribes certain guidelines and standards applicable
to the rendering of services by the individual respondents,
this is,
in this matter, once again not the kind of control sufficient to
establish an employment relationship. There is always
some measure of
control and supervision, even in independent contracting situations,
normally to ensure that the services provided
are of the required
standard and the outcome of the work is what was contracted for.
Surely it can never be said that the services
rendered must be left
to the absolute discretion of the service provider, in order to
qualify as being part and parcel of an independent
contract.  In
Phaka
[29]
the Court held:
‘
The
levels of control and direction reserved to the company by the
contract in relation to the routes, hours of performance, vehicle

maintenance, branding etc, are all essential requirements of the
contract intrinsic to the nature of the services to be performed
by
the company to its clients. The company transports sensitive
financial information and does so in accordance with the needs
of its
clients. It is obliged to delegate those requirements to its
subcontractors. By virtue of its character, the business of

couriering financial documents must be done efficiently during
business hours on conditions that cannot be left to the discretion
of
the subcontractors. These constraints do not in the operational
circumstances of these peculiar contracts alter the relationship
to
one of employment …
’
The
same sentiment was echoed in
Beya
and Others v General Public Service Sectoral Bargaining Council and
Others
[30]
where the Court
said:
‘
There
is no immediate and recurring control of the applicants. Any control
exercised is just to ensure a standard and properly allocate

available resources. It does not derogate from the independent nature
of the relationship and services provided by the applicants
to the
third respondent on this basis.
’
[50]
Overall, I am satisfied
that in this instance, the criteria of control and supervision, being
the first criteria envisaged by the
judgment in
State
Information Technology Agency
,
is insufficient to establish the existence of an employment
relationship, especially considering the nature of the services
provided,
the absence of direct control and supervision, and the fact
that the real interest of the applicant has in the relationship is a

proper outcome of the services provided by the individual
respondents, and not the services themselves.
[51]
The
next consideration
in
terms of the judgment of
State
Information Technology Agency
is
whether the individual respondents can be considered to be an
integral part of the
applicant’s
undertaking.  A number of factual considerations are pertinent.
The first
of
these considerations is that the applicant in fact has a large number
of employees, which include video editors as employees
as well. This
is therefore not a situation where the applicant is trying to avoid
the obligations associated with an employment
relationship by
concluding independent contracts. The evidence showed that the video
editors actually employed by the applicant
did their work in the same
way the individual respondents did, but yet they were employees.
There accordingly has to be a reason
why the individual respondents
are treated differently, and this reason is found in the evidence
which showed that there had been,
for some time, a deliberate design
perpetrated by all parties to the relationship, of having employees,
side by side with contractors,
in the applicant.  All this, in
my view, makes it likely that both the contracting parties
purposefully decided not to integrate
the individual respondents into
the applicant’s normal employment environment, which in fact
could have been the case if
this is what they wanted. This choice is
clearly enshrined in the unequivocal terms of the contracts, and the
individual respondents
must be held bound to such kind of
choices.
[31]
[52]
Although it is so that
the individual respondents pursued an unfair labour practice claiming
the benefits applicable to the applicant’s
employee corps, the
fact remains that in terms of the contracts, none of the benefits
applicable to employees of the applicant
have been bestowed upon the
individual respondents. Further, and throughout the service period of
the individual respondents even
up to the point where they pursued an
unfair labour practice, spanning a number of years, they never
received any of the benefits
associated with the applicant’s
employees, which is again a situation inconsistent with integrating
the individual respondents
into the applicant as employees.
[32]
[53]
As to
the work done in terms of the relationship between the parties, it is
in my view not about the personal services of the applicants
to the
third respondent
per
se
,
but is only about specified work in the form of
video
editing
services
lending to a usable clip that can be broadcasted as part of the news.
The Court in
Smit
v Workmen's Compensation Commissioner
[33]
said:
‘
the
object of the contract of service is the rendering of personal
services by the employee... to the employer... The services or
the
labour as such is the object of the contract. The object of the
contract of work is the performance of a certain, specified
work or
the production of a certain specified result. It is the product or
the result of the labour which is the object of the
contract.’
As
I have
dealt with above
,
it the product of the labour, being the video editing services and
the end product ready for broadcast, that is the only
real
purpose of
the relationship between the parties.
[54]
It is
true that the individual respondents would utilize the applicant’s
infrastructure and equipment in discharging their
services. But this
does not detract from the fact that this is only done in order for
the applicant to receive an acceptable outcome
where it comes to the
services provided by the individual respondents, and cannot serve to
establish that the individual respondents
are therefore integrated
into the organization. This was aptly illustrated in
Kambule
[34]
as follows:
‘
Similarly,
the fact that the station provided the technical infrastructure
necessary for production of the programme, is little
different in my
view from an airline using freelance pilots providing the aircraft
which they fly. It is true that if Kambule had
produced the programme
in his own studios, that would have been a clear indication of his
organisational independence, but the
absence of that does not mean
that Kambule's economic activities were all an integral part of the
station's business. …
’
[55]
A
further issue to consider in determining whether the individual
respondents are a part of the applicant’s organization is
the
fact that deductions were made from the invoice payments to the
individual respondents, for taxation, and that IRP5’s
are
provided to the individual respondents reflecting this.  Whilst
it is so that this may point in the direction of the existence
of an
employment relationship, it is not decisive
per
se
.
In
Total
SA (Pty) Ltd v National Bargaining Council for the Chemical Industry
and Others
[35]
the Court said:
‘
Whilst
I agree with the third respondent that the use of payslips, PAYE and
UIF deductions are factors that may point towards an
employment
relationship, that does not constitute conclusive evidence of the
true nature of the relationship. Similarly, as has
been stated in a
number of decisions of the court, non-usage of payslip or PAYE and
UIF deductions are not indicative of the true
nature of the
relationship.’
The
fact is that even if the relationship is that of independent
contracting, the applicant is compelled to deduct tax, unless there

is a tax directive that indicates otherwise. This deduction of
taxation is indeed required by taxation law, and its deduction does

not translate into employment.
[36]
What is also important to consider is the fluctuating nature of the
remuneration reflected on the invoices and remittance advices

introduced into evidence, as well as the fact that there are no other
deductions of any kind other than taxation. My view is that
the
deduction of taxation in this cannot serve to establish integration
of sufficient impetus to establish an employment relationship.
[56]
Another
aspect is that the individual respondents simply do not work at the
beck and call of the applicant. They work when they
want, and it was
their decision to take an allocated shift or not. And added to that,
the applicant would only allocate work on
the basis of being
available and when needed. The individual respondents are not
monitored or managed in the
course
of
rendering
of their work. The individual respondents could also provide the same
work to other parties, and from the evidence it
appeared that some of
them did
so
.
And even if the individual respondents did not render their services
to someone else, this did not detract from the fact that
they were
always free to do so.  In
Kambule
[37]
it was held as follows:
‘
It
may well be that the applicant did not pursue other remunerative
opportunities with any enthusiasm and relied on his income from
the
contract with the station, but he never claimed he was prevented from
doing so. I am satisfied that he retained sufficient
independence to
do other work in the media field or elsewhere.
’
These
aforesaid considerations therefore indicate the existence of an
independent service arrangement, and is consistent with the
existence
of an employment relationship.
[57]
There
is no indication or evidence that any of the individual respondents
applied for paid leave or was ever given approved paid
leave. The
same consideration applies to the issue of sick leave. In comparison
,
I refer to
Dempsey
[38]
where the Court
referred to the following
considerations
in deciding that no employment relationship existed:
‘…
.
The appellant had no set business hours, provided only that he
attended to the needs of the estate agents. The appellant was further

entitled to leave as and when he desired. His only obligation being
to advise the respondent in advance so that alternative arrangements

could be made.
...
.
These factors, not specifically relevant to the appellant's
management function, indicate an absence of control, or to put it

another way, a large degree of autonomy of the appellant.’
[58]
Where it came to the
remuneration of the individual respondents, they submitted
invoices
for
work done, at a prescribed rate, and were paid on approval of these
invoices through the
applicant’s normal creditor payment system. In simple terms,
they were not part of the applicant’s
payroll.
They
did not receive pay slips, but were given remittance advices upon
payment of the invoices concerned. The invoices also varied.
By
comparison, and in
Total,
[39]
the Court said:
‘
The
third respondent does not deny that he was paid on the basis of
invoices submitted for the French lessons provided and this

fluctuated from month to month. …
It
seems to me strange that the third respondent who, on his own version
was employed on a flexitime basis, was entitled to
receive payment
from the applicant as and when he did French translations, would say
he was an employee. …’
[59]
All
of the above considerations lead me to the conclusion that the
individual respondents were not part of the organization of the

applicant. They were, for the want of a better description, and as
they are actually called, freelancers. They tendered services
of
their own volition, and were allocated work when available and
needed. They did not form part of the normal employee administration,

and were paid for actual work done on the basis of invoices
submitted. This criterion therefore also points to the existence of

an independent contracting relationship, rather than an employment
relationship.
[60]
This
only leaves the criteria of economic dependency. It can be
legitimately argued
that
the individual respondents are indeed economically dependent on the
work they receive from the applicant. It does not take
much insight
to appreciate the harm that the individual respondents would suffer
should they be deprived of such work. But this
kind of dependency and
possible harm in itself is not sufficient to establish the existence
of an employment relationship, and
would be a situation experienced
by most independent service providers who dedicate most of their
services to one customer. In
Beya
[40]
the Court said:
‘…
In
fact, and in my view, an independent contract service provider who
dedicates most of its services to one customer would equally
be
dependent, from an economic perspective, on such customer. Similarly,
where this customer terminates the service relationship
with such
service provider, it would be economically prejudicial to the service
provider. But the service provider still remains
economically active
and can seek work elsewhere. …
’
[61]
Even
if the individual respondents lose their work with the applicant, and
then experience the prejudice following on such loss,
the particular
skill and ability to render the service still remains attached to the
individual respondents as service providers,
who still remain
economically active and can seek other work elsewhere. In the case of
the individual respondents, as dealt with
above, their particular
skill and ability to do the work they were contracted for by the
applicant remain attached to them, and
they remain able to provide
these services to any third party, without having to utilize any of
the applicant’s infrastructure,
equipment or facilities.
In
State
Information Technology Agency
[41]
Davis JA referred
with approval to an article by Paul Benjamin
[42]
where the learned author said:
'A
starting-point is to distinguish personal dependence from economic
dependence. A genuinely self-employed person is not economically

dependent on their employer because he or she retains the capacity to
contract with others. Economic dependence therefore relates
to the
entrepreneurial position of the person in the marketplace. An
important indicator that a person is not dependent economically
is
that he or she is entitled to offer skills or services to persons
other than his or her employer. The fact that a person is
required by
contract to only provide services for a single ''client' is a very
strong indication of economic dependence. Likewise,
depending upon an
employer for the supply of work is a significant indicator of
economic dependence.'
[62]
Even
if the individual respondents did not offer their services to other
third parties, the fact is that this was their choice.
They could
offer these services to third parties, and their work remained in
demand elsewhere other than in the applicant. And
as touched on
above, some of them did do work elsewhere. A comparative example can
be found in the judgment of
Miskey
and Others v Maritz NO and Others,
[43]
where the Court
said:
‘…
Furthermore
there is no prohibition against taking other employment or
undertaking business operations by the members of the board
in the
Act under which they were appointed. The fact that they concentrated
on the duties as members of the board was their own
choice…’
[63]
The
economic dependency of the individual respondents on the work they
received from the applicant, although clearly not insignificant,
is
still in my view insufficient in order to establish the existence of
an employment relationship between the parties. It must
also be
remembered that all the criteria must be considered together, and
whatever impetus the issue of economic dependency may
have, it
substantially diminishes when thrown into the pot with all the other
considerations as set out above.
Economic
dependency,
in
casu
,
cannot on its own, change the reality of the relationship. As was
said in
Kambule
:
[44]
‘
Reason
dictates that the test is qualitative rather than quantitative. Even
if it is useful to list factual indicators by category,
the nature of
the relationship cannot be determined simply by comparing the number
of indicators for and against the existence
of an employment
relationship. This is because some indicators necessarily tell us far
more about the substance of the relationship
than others…’
[64]
I
thus conclude that the individual respondents are not employees of
the applicant. In summary, my reasons for so concluding are
based on
what the written contracts between the parties specifically provide
for and contain, the lack of existence of any direct
control and
supervision normally associated with an employment relationship, the
fact that the individual respondents are not integrated
into the
organization of the applicant as is the case with all the applicant’s
other employees, and finally the absence of
sufficient economic
dependency.  Overall, the dominant impression created by the
contracts and the real relationship between
the parties is that of
independent contractors.
[45]
[65]
Because
the individual respondents are not employees of the applicant, but
independent contractors, they could not have pursued
an unfair labour
practice dispute as contemplated by Section 186(2) of the LRA against
the applicant.  The CCMA, and with
it the second respondent,
accordingly had no jurisdiction to entertain the dispute of the
individual respondents.  Their claim
should have been dismissed
on this basis, and the second respondent was wrong in not doing so.
Therefore, the award of the
second respondent falls to be reviewed
and set aside.
Conclusion
[66]
In
all of the circumstances as discussed above, the second respondent’s
conclusion that the individual respondents were employees
of the
applicant is wrong.  It is hereby reviewed and set aside.
[67]
With
the second respondent’s award having been reviewed and set
aside, where to now?  As stated above, it is up to this
Court to
finally determine the issue of jurisdiction. I have all the facts
before me to decide this issue of jurisdiction,
de
novo
,
and for myself.  For all the reasons elaborated on above, I am
satisfied that the CCMA, and consequently also the second
respondent,
had no jurisdiction to entertain the individual respondents’
unfair labour practice dispute, as they were not
employees of the
applicant. Accordingly, the award of the second respondent must be
substituted with an award to the effect that
the CCMA had no
jurisdiction to entertain such dispute, and the dispute referral of
the individual respondents be dismissed.
[68]
This
then only leaves the review application brought by the individual
respondents themselves under case number JR 650 / 16.

Considering that I have found that they were not employees of the
applicant, this review application simply serves no further purpose,

and has become moot.  It must therefore be dismissed.
[69]
This
then only leaves the question of costs.  In terms of Section
162(1) and (2) of the LRA, I have a wide discretion where
it comes to
the issue of costs. The individual respondents did oppose the matter,
but I do not think the opposition was unreasonable.
Each of the
parties, in my view, had an arguable case. I am also mindful of the
fact that there still exists a continuing working
relationship,
albeit
not in the context the individual respondents believed it existed,
between the applicant and the individual respondents. In all
these
circumstances, the appropriate order where it comes to costs, is to
make no order as to costs.
Order
[70]
In
the premises, I make the following order:
1.
The
applicant’s review application under case number JR 745 / 16 is
upheld.
2.
The
arbitration award of the second respondent dated 7 March 2016 and
issued under case number GAJB 13298 – 15 is reviewed
and set
aside.
3.
The
arbitration award of the second respondent dated 7 March 2016 and
issued under case number GAJB 13298 – 15 is substituted
with a
determination that the CCMA has no jurisdiction to entertain the
dispute and the referral is dismissed.
4.
The
individual respondents’ review application under case number JR
650 / 16 is dismissed.
5.
There
is no order as to costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:

Mr P Maserumule of Maserumule Attorneys
For the Third to Further
Respondents:

Adv R S Beaton SC
Instructed
by:

Erasmus Scheepers Attorneys
[1]
Act 66 of 1995.
[2]
(2007) 28
ILJ
2405 (CC).
[3]
(2008) 29 ILJ 964 (LAC) at para 101.
[4]
See
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012)
33
ILJ
363 (LC) at para 23;
Hickman
v Tsatsimpe NO and Others
(2012)
33
ILJ
1179 (LC) at para 10;
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others
(2013)
34
ILJ
392 (LC) at paras 5–6;
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others Gubevu Security
Group (Pty) Ltd v Ruggiero NO and Others
(2012)
33
ILJ
1171 (LC) at para 14;
Workforce
Group (Pty) Ltd v CCMA and Others
(2012)
33
ILJ
738
(LC)
at para 2;
Stars Away
International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee NO
and Others
(2013) 34
ILJ
1272 (LC) at para 21.
[5]
(2013) 34
ILJ
2662 (LC) at para 22.  See also
Kukard
v GKD Delkor (Pty) Ltd
(2015)
36 ILJ 640 (LAC) at para 12;
Phaka
and Others v Bracks NO and Others
(2015) 36 ILJ 1541 (LAC) at para 31.
[6]
See
SA
Commercial Catering and Allied Workers Union v Speciality Stores Ltd
(1998)
19
ILJ
557 (LAC)
at
para
24
;
Zeuna-Starker
Bop (Pty) Ltd v National Union of Metalworkers of SA
(1999)
20 ILJ 108 (LAC) at para 6.
[7]
(2015) 36 ILJ 2832 (LAC) at para 27.
[8]
(2008)
29
ILJ
2218
(LAC) at para
40.
[9]
(2009)
30
ILJ
2903 (LAC) at para 17.  See also
Melomed
Hospital Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2013)
34
ILJ
920 (LC) at para 44;
Beya
and Others v General Public Service Sectoral Bargaining Council and
Others
(2015)
36 ILJ 1553 (LC) at para 20.
[10]
This would be
reinstatement, re-employment or compensation- see Sections 193 and
194 of the LRA.
[11]
(2005)
26
ILJ
1256 (LAC)
at para
19.  See also para 22 of the judgment.
[12]
LAD Brokers (Pty) Ltd v Mandla
(2001) 22 ILJ 1813 (LAC) at para 18;
SABC
v McKenzie
(1999)
20
ILJ
585 (LAC)
at para
10.
[13]
Section 200A
reads:
‘
Until
the contrary is proved, a person who works for, or renders services
to, any other person is presumed, regardless of the
form of the
contract, to be an employee, if any one or more of the following
factors are present…’, with this Section
then setting
out all these factors.
[14]
Act 75 of 1997.
The threshold is determined in terms of Section 6(3) of the BCEA and
currently stands at R205 433.00.
[15]
See
Denel
(
supra
)
at para 99.
[16]
(2001) 22 ILJ 1813 (LAC) at para 15.
See also
Niselow v Liberty
Life Association of Africa Ltd
(1998) 19 ILJ 752 (SCA) at 754C-D;
Linda
Erasmus Properties Enterprise (Pty) Ltd v Mhlongo and Others
(2007) 28 ILJ 1100 (LC) at para 16.
[17]
(2015) 36 ILJ 1541 (LAC) at para 32
[18]
2012
(4) SA 593
(SCA)
at
para 18.  See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[19]
(2016) 37 ILJ 2793 (LAC) at para 15.
[20]
(1995) 16
ILJ
378 (LAC) at 384F-G.
[21]
2007 (2) SA 486
(SCA) at para 15.
[22]
(2008) 29
ILJ
2234 (LAC) at para 12.
[23]
(
supra
)
at para 22.
[24]
1931 AD 412
at 434.
[25]
(2013) 34 ILJ 2234 (LC) at para 31.
[26]
(1999) 20
ILJ
585 (LAC) at para 9.
[27]
(2001) 22
ILJ
1813 (LAC) at paras 23–24.
[28]
(
supra
)
at para 38.
[29]
(
supra
)
at para 33.
[30]
(2015) 36 ILJ 1553 (LC) at para 37.
See also
AVBOB Mutual
Assurance Society v Commission for Conciliation, Mediation and
Arbitration, Bloemfontein and Others
(2003)
24
ILJ
535 (LC) at 538E-H;
Kambule
(
supra
)
at para 30.
[31]
See
Phaka
(
supra
)
at para 32.
[32]
See
Beya
(
supra
)
at para 40.
[33]
1979 (1) SA 51
(A) at 61A B.
[34]
(
supra
)
at para 34.
[35]
(2013) 34
ILJ
1006 (LC) at para 20.
[36]
See
LSRC
and Associates v Blom
(2011)
32
ILJ
2685
(LC) at para 27;
Phaka
(
supra
)
at para 33;
Beya
(
supra
)
at para 41.
[37]
(
supra
)
at para 37.  See also
Beya
(
supra
)
at para 42;
Total
(
supra
)
at para 22.
[38]
(
supra
)
at 384G-J.
[39]
(
supra
)
at paras 22 – 23.  See also
Kambule
(
supra
)
at para 35;
Miskey
and Others v Maritz NO and Others
(2007)
28
ILJ
661
(LC) at paras 26 – 27.
[40]
(
supra
)
at para 46.
[41]
(
supra
)
at para 11.
[42]
Appearing in
(2004)
25 ILJ 787
at
803.
[43]
(2007) 28
ILJ
661 (LC) at para 27.
See also
Kambule
(
supra
)
at para 38.
[44]
(
supra
)
at para 7.
[45]
See
See
Ongevallekommissaris v
Onderlinge Versekerings Genootskap AVBOB
1976
(4) SA 446
(A)
at
457A;
Liberty Life
Association of Africa Ltd v Niselow
(1996)
17
ILJ
673 (LAC)
at
682G-I.