About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 89
|
|
Plastics Convertors Association of South Africa (PCASA) and Others v Metal and Engineering Industries Bargaining Council (MEIBC) and Others (JR2282/16) [2017] ZALCJHB 89; (2017) 38 ILJ 2081 (LC) (10 March 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of
interest to other judges
C
ase
no: JR 2282/16
In
the matter between:
PLASTICS
CONVERTERS ASSOCIATION OF
SOUTH AFRICA
NATIONAL
EMPLOYERS’ ASSOCIATION OF SOUTH AFRICA (NEASA)
First
applicant
Second
applicant
and
MEIBC
First
respondent
GENERAL SECRETARY
OF THE MEIBC N.O.
MINISTER OF
LABOUR
NUMSA
Second
respondent
Third
respondent
Fourth
respondent
Heard
:
7 March 2017
Delivered:
10 March 2017
SUMMARY:
Application to review and set aside
decision by Bargaining Council to request Minister to extend
collective agreement to non-parties.
LRA ss 32 and 158(1)(g).
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
dispute – one of many to seek the attention of this Court
involving the same parties – has its genesis in a hostile
history between the second applicant, NEASA, and the employers’
federation, SEIFSA
[1]
,
even though SEIFSA is not a party to this round of litigation.
[2]
NEASA (the National Employers’
Association of South Africa) is an employers’ organisation that
represents a number of
smaller employers in the metal and engineering
industry. It says it is the largest single employers’
organisation in the
Metal and Engineering Industries Bargaining
(MEIBC), the first respondent. (NUMSA disputes this, but has no
evidence to the contrary).
Most of the big employers are affiliated
to regional employers’ organisations that are, in turn, members
of a federation
known as SEIFSA. (SEIFSA is not, on its own an
employers’ organisation and is not eligible to vote at Council
meetings).
The first applicant, PCASA, is also an employers’
organisation. It is aligned with NEASA.
[3]
Employers and representative trade unions
in the metal and engineering industry bargain collectively and strike
agreements in the
MEIBC. Trade unions and employers’
organisations have equal voting rights in the Council. The Council
concludes and enforces
collective agreements in terms of s 28 of the
LRA.
[4]
The
Council took a decision, purportedly in terms of s 32(1) of the LRA,
to request the Minister of Labour (the third respondent)
to extend a
Registration and Administration Expenses Collective Agreement (known
as “the admin agreement”) to non-parties.
The applicants
say that decision is reviewable, either in terms of s 158(1)(g) of
the LRA
[2]
,
or under PAJA
[3]
,
or on the grounds of legality. It wants the Court to set the decision
aside. The Bargaining Council and the National Union of
Metalworkers
of South Africa (NUMSA, the fourth respondent) oppose the
application.
Background
facts
[5]
In December 2015 the parties to the MEIBC –
including NEASA – signed the admin agreement. A number of
parties to the
Council want to have the agreement extended to
non-parties. That is something that only the Minister can do, after a
request by
the Council. NEASA and some other parties to the Council,
such as PCASA, do not want it to be extended. PCASA is a party to the
Council, but not to the admin agreement. Non-parties benefit from
some of the outcomes of collective bargaining, but many of them
don’t
want agreements extended to them and they do not pay Council levies.
[6]
On 29 June 2016 the Management Committee
(Mancom) of the Council resolved, in principle, to request the
Minister to extend the admin
agreement to non-parties. The decision
to so could only be done in a general meeting. A number of parties to
the Council who do
not have seats on Council meetings adopted
resolutions before the Mancom meeting in the following terms:
“
SEIFSA
is duly authorised and mandated to vote at the Special MEIBC
Management Committee Meeting and at any subsequent Meeting [
sic
]
that may be scheduled by the MEIBC, on behalf of the Association, in
favour of the extension to non-parties of the Registration
and
Administrative Expenses Collective Agreement.”
[7]
It should be noted that SEIFSA cannot vote
at any Council meeting. Only its constituent members who are parties
to the Council can.
In any event, a General Meeting was called on 26
July 2016. It was not quorate. It was postponed. Despite short
notice, a Special
General Meeting was held on 28 July 2016. That is
the contentious meeting giving rise to this application.
[8]
Those present at the meeting were asked to
vote in favour of the extension of the admin agreement. The
applicants were not present.
Section 32(1) of the LRA reads:
“
32.
Extension of collective agreement concluded in bargaining council
(1)
A bargaining council may ask the Minister in writing to extend a
collective agreement concluded in the bargaining council to
any
non-parties to the collective agreement that are within its
registered scope and are identified in the request, if at a meeting
of the bargaining council -
(a)
one or more registered trade unions whose members constitute the
majority of the members of the trade unions that are party
to the
bargaining council vote in favour of the extension; and
(b)
one or more registered employers’ organisations, whose members
employ the majority of the employees employed by the members
of the
employers’ organisations that are party to the bargaining
council, vote in favour of the extension.
(2)
Within 60 days of receiving the request, the Minister must extend the
collective agreement, as requested, by publishing a notice
in the
Government Gazette declaring that, from a specified date and for a
specified period, the collective agreement will be binding
on the
non-parties specified in the notice.”
[9]
The
trade unions party to the Council voted in favour of the extension.
That is uncontentious. But only two employers’ organisations
[4]
voted through their representatives at the meeting, and another
two
[5]
exercised their votes by proxy. Between them, the employees employed
by those four employer organisations represent, at best, 36%
of the
employees employed by the members of the employers’
organisations that are party to the bargaining council as envisaged
by s 32(1)(b).
[10]
The Bargaining Council and NUMSA say that
the matter does not end there. They say that Mr Lucio Trentini, the
LEIA representative,
presented or submitted a further 19 resolutions
in favour of extension – apparently in the form quoted above.
According to
NUMSA, he “left them on the table” in the
meeting. There is no record in either the minute of the meeting or
the verbatim
transcript of the proceedings of those resolutions being
discussed. Whether such resolutions, if they were submitted,
constitute
a “vote” or votes in terms of s 32(1)(b)
remains to be considered.
[11]
On 30 August 2016 the Council requested the
Minister to extend the admin agreement to non-parties for a period of
12 months. The
Minister published a notice in the Government
Gazette on 7 October 2016, inviting representations from interested
parties
in terms of s 32(5)(c) of the LRA. On 28 October the
applicants launched this review application.
[12]
The applicants launched an urgent
application on 5 January 2017. They asked that the hearing of the
review application be brought
forward; and that the Minister be
interdicted from extending the agreement, pending this review
application. At that stage NUMSA
had not delivered an answering
affidavit in this review application. The urgent application served
before Rabkin-Naicker J on 9
January 2017. She postponed it until 24
January and issued an order in terms of which the Minister would not,
in the interim, extend
the agreement. NUMSA subsequently delivered
its answering affidavit. The urgent application then served before
Prinsloo J on 24
January. After meeting the legal representatives of
the parties in chambers, she issued a further order that the review
application
would be heard on 10 February; setting out dates for the
filing of further affidavits; and ordering the Minister not to take
any
decision on extension pending the finalisation of the review
application. NUMSA applied for leave to appeal that order, and
brought
an application for Prinsloo J to recuse herself. She
dismissed both applications. NUMSA petitioned the LAC. That petition
is still
pending.
[13]
The review application came before me on 7
March 2017. All parties – the applicants, the Bargaining
Council, the Minister
and NUMSA – had filed answering and
replying affidavits in the review application, as well as heads of
argument. But before
dealing with the merits of the review
application, one issue remains. NUMSA delivered its answering
affidavit in the review application
out of time. It seeks
condonation. The applicants oppose it.
Condonation
for late filing of NUMSA’s answering affidavit
[14]
I
shall, firstly, consider the application for condonation at the hand
of the well-known principles in
Melane
v Santam Insurance Co Ltd.
[6]
Degree
of lateness
[15]
NUMSA only filed its answering affidavit on
31 January 2017, after the urgent application had been heard and
about two and a half
months late. It is an excessive delay.
Reason
for delay
[16]
NUMSA says that “initially it was
difficult to establish all the facts relating to this matter”,
despite the fact that
it was present and voting at the 28 July
meeting. Also, Solidarity had applied to appoint a curator for the
Council and this application
“raises related issues”.
Importance
of the matter
[17]
NUMSA simply states that “this is an
important matter” because it is a key component of the MEIBC.
Prejudice
[18]
NUMSA correctly states that there will be
no prejudice to allow its answering affidavit as all the parties are
before Court, the
pleadings have closed and the applicants have
replied.
Prospects
of success
[19]
I deal with the merits – i.e. the
prospects of success – below.
Conclusion
: condonation
[20]
The answering affidavit was filed
excessively late. The explanation is a poor one. Yet I think it is in
the interests of justice
that NUMSA be heard. It is the only party
that has attempted to put a full picture of its version of events,
and the counter arguments
to the application, before court. There is
no prejudice to the applicants. They have considered the answering
affidavit and replied
thereto. All the parties have filed heads of
argument and were given the opportunity to address the Court fully in
legal argument.
Having said that, the union’s lackadaisical
approach and this Court’s condonation in this case should not
be seen as
carte blanche
to behave with the same disregard for the Court’s rules in
future or as a precedent for being granted condonation.
The
impugned decision
[21]
The decision to be reviewed is not the
Minister’s decision to extend the collective agreement. That
has not happened. The
applicants seek to review the decision of the
MEIBC taken at the special general meeting on 28 July 2016 to
request
the Minister to extend the admin agreement. The distinction is
important, not least in addressing the questions of ripeness and
the
nature and method of the decision itself.
Review
grounds and evaluation
[22]
The applicants say, in short, that the
jurisdictional facts required by s 32(1)(b) were not present. The
employer organisations
that voted in favour of the request for
extension did not employ the majority of the employees employed by
members of employer
parties to the Council.
[23]
NUMSA – and to some extent, the
Council – raises the following defences:
23.1
The application is premature (“ripeness”);
23.2
The decision of the Bargaining Council does
not constitute administrative action;
23.3
The application must in any event fail on
the merits; and
23.4
If the Court should find that the decision
is reviewable, it should in any event not exercise its discretion to
set it aside.
Ripeness
[24]
Both the Minister and NUMSA argue that the
application is premature. The premise of that argument appears to be
that the Minister
has not yet extended the agreement. But the
impugned decision is that of the Bargaining Council, not the
Minister. And the Council’s
decision is complete. Should that
decision be reviewable, now is the time to review it. It would lead
to far greater costs and
uncertainty to wait for the Minister to
extend the agreement, and then to seek to review the Minister’s
decision once it
has already taken effect and fees are already levied
from non-parties.
[25]
Prof Cora Hoexter describes the
doctrine of ripeness as follows:
“
The
idea behind the requirement of ripeness is that a complainant should
not go to court before the offending action or decision
is final, or
at least ripe for adjudication. The doctrine of ripeness holds that
there is no point in wasting the court’s
time with half-formed
decisions whose shape may yet change, or indeed decisions that have
not yet been made.”
[26]
In this case, the Council’s decision
has been made. That is the decision that the applicants seek to
review. It is ripe for
hearing.
Administrative
action?
[27]
Both NUMSA and the Council concede that
this application can be brought in terms of s 158(1)(g) of the LRA.
That subsection empowers
this Court to review the performance of any
function provided for in the LRA on any grounds that are permissible
in law. It is
therefore of lesser importance to decide whether the
Council’s decision to request the Minister to extend the admin
agreement
to non-parties constitutes administrative action that is
reviewable under PAJA or on the principle of legality.
[28]
As
Watt-Pringle AJ stated in
NEASA
v Minister of Labour:
[7]
“
An
interesting debate as to whether PAJA applies to the Minister’s
decision need not be resolved. A decision which is not
competent in
terms of the empowering statute is clearly reviewable under 158 (1)
(g) of the LRA, which empowers this Court to review
the performance
or purported performance of any function provided for in the LRA on
any grounds that are permissible in law.”
[29]
In
any event, though, the decision is almost certainly reviewable for
reasonableness or rationality under PAJA; and overall, it
is
constrained by the Constitutional principle of legality. As Murphy J
reasoned in
Free
Market Foundation:
[8]
‘
As
regards the possibly deliberative or quasi-legislative nature of a
bargaining council resolution, there is no textual basis supporting
a
finding that such is not a decision as defined, or is excluded from
the definition of administrative action. There is,
though,
perhaps an argument that it is not one of “an administrative
nature”. Laws made by administrative functionaries
exercising
delegated powers might possibly be classified as administrative, but
laws made by original legislative bodies can seldom
be so described.
In
Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
the Constitutional Court held that legislative bodies exercising
original, deliberative law making powers are not engaged
in
administrative action. The negotiation of a collective agreement
coupled with a request to the Minister to promulgate it, however,
might be regarded, like the making of regulations, not as original
legislation but as delegated rulemaking. Under section 32 of
the LRA
it is ultimately the Minister who legislates by the act of
promulgation; and the preceding request to the Minister by the
bargaining council is strictly speaking not legislative in nature
because that action does not result in law-making. The bargaining
council request might thus better be seen as an antecedent
administrative part of a delegated law-making process. In
Minister
of Health v New Clicks SA (Pty) Ltd and others
Chaskalson CJ held that the making of regulations fell within the
scope of administrative action. This was not however the
view of the
majority of the court and there remains uncertainty about whether the
making of regulations by a functionary will always
be administrative
action.
From
the foregoing discussion it is evident that any determination of
whether a bargaining council resolution is administrative
action in
terms of PAJA will depend in the final analysis on the peculiar
facts. I incline to agree with COSATU, NUMSA, the Minister
and the
bargaining councils that PAJA ordinarily will apply and thus that the
decision of the bargaining council will be subject
to PAJA review. …
If the decision is administrative action then it will be reviewable
on grounds of reasonableness (at least
rationality), legality and due
process. If, on the other hand, the bargaining council resolution is
not administrative action under
PAJA, it still will be subject to
rationality and legality review under the rule of law provision in
section 1 of the Constitution.”
[30]
This
view is bolstered by that of the SCA in
Motor
Industry Staff Association v Macun
N.O
.
[9]
:
‘
In
adjudicating any matter properly within its province the Labour Court
would, in any event, be astute to ensure that its decision
was one
that complied with the principle of legality, which is all-embracing
and which permeates our entire constitutional scheme.
…
Section
32 of the LRA is located in Part C of Chapter 3, which deals with
collective bargaining. It sets certain preconditions for
the
extension of a collective agreement concluded in a bargaining
council. The question whether there has been compliance with
the
provisions of s 32 of the LRA is one that pre-eminently arises out of
the LRA.
…
The
provisions of s 158(1)(g) on their own are not decisive. In the
present case the question that should rightly be asked is whether
the
basis of the challenge to the decision to extend the collective
agreement is one that arises out of the LRA. The obvious answer
is
that it does.”
The
legal framework : s 32(1)(b)
[31]
Section 32 stipulates a number of
jurisdictional facts before the Council may ask the Minister to
extend a collective agreement
to non-parties. In this case, the one
in s 32(1)(a) – that, at a meeting of the Council, one or more
registered trade unions
whose members constitute the majority of the
members of the trade unions that are party to the Council voted in
favour of the extension
– is met. But the applicants contend
that the Council did not comply with s 32(1)(b).
[32]
Section 32(1)(b) requires that,
at
a meeting
of the Council, one or more
registered
employers’
organisations
whose members employ the
majority of the employees employed by the members of the employers’
organisations that are party
to the bargaining council,
vote
in favour
of the extension.
[33]
Although
the section itself is quite clear, insofar as it needs any further
authority, Mr
Redding
referred
to the following description of the prescribed process by a full
bench of the High Court:
[10]
“
Section
32(1) of the LRA stipulates a number of legal prerequisites to the
bargaining council’s action. The collective agreement
in
question must be concluded in the bargaining council. The decision to
ask the Minister to extend it to non-parties must be by
way of a
resolution taken at a bargaining council meeting. The resolution must
be supported by one or more trade unions whose members
constitute the
majority of members of all the trade union parties to the council.
Likewise, the resolution must be supported by
one or more employer’s
organisations which employ the majority of employees employed by the
employer organisation members
who are party to the council. The
request to the Minister must be in writing. The non-parties sought to
be bound must be identified
in the written request to the Minister
and they must fall within the registered scope of the council.”
[34]
If
these jurisdictional facts are not present, the Council cannot
validly ask the Minister to extend a collective agreement. As
Watt-Pringle AJ held in a matter involving the same applicants in
this Court:
[11]
“
Without
a valid collective agreement … and without a valid decision to
request the extension, the Minister is simply in no
position to
consider the merits of the submission purportedly made in terms of
section 32.”
[35]
Similarly,
Van Niekerk J has held
[12]
:
“
Section
32 (1) of the LRA provides that a bargaining council may ask the
minister, in writing, to extend a collective agreement
concluded in the council to any non-parties to the agreement that are
in the council’s registered scope and are identified
in the
request. The request must be preceded by a meeting of the bargaining
council at which one or more registered trade unions
whose members
constitute the majority of the members of the members of the trade
unions that are party to the council vote in favour
of the extension,
and one or more employers’ associations, whose members employ
the majority of the employees employed by
members of the employers’
organisations that are party to the council, vote in favour of the
extension.”
[36]
And
the LAC
[13]
has confirmed that:
“
It
is clear from section 32 that the Minister does not have a wide
discretion concerning the extension of collective agreements
concluded in bargaining councils.
If the
requirements stipulated in that section have been complied with
,
the Minister, effectively, has to act upon the request for the
extension of the agreement. Section 32(2) of the LRA provides that
within 60 days of receiving the request, the Minister “must”
extend the collective agreement if the requirements stipulated
in
sub-section (3) have been met.”
[37]
The Council can only validly request an
extension of a collective agreement if the legal requirements of s 32
are met. Did this
happen in this case? It appears not.
The
Council’s constitution
[38]
The
Council’s constitution specifies that its members are
registered employers’ organisations and registered trade
unions. Those members are listed. SEIFSA is not a member. One half of
the representatives to the Council are elected by employers’
organisations and the other half by trade unions. If any
representative is absent from any meeting and is not represented by
its
alternate, the voting power of employers or employees, as the
case may be, must be reduced as necessary to preserve equality of
voting power. And, as the Council points out in its heads of
argument, it may not perform any act other than in accordance with
its constitution.
[14]
A decision of a bargaining council that does not comply with its
constitution is a nullity.
[15]
Events
of 28 July 2016
[39]
At the meeting of 28 July 2016, only two
employers’ organisations voted in favour of extension at the
meeting, and a further
two by proxy. Together, they represented no
more than 36% of the employees employed by members of the employers’
organisations
that are party to the council. They did not meet the
majoritarian requirement stipulated by s 32(1)(b).
[40]
Even if the 19 resolutions purportedly left
on the table were to be taken into account – dubious as it is,
since it is clear
from the verbatim of the transcript that these
resolutions were never discussed – that does not constitute a
“vote”
“at a meeting” of the Council. The
organisations who adopted resolutions did not, on the evidence before
me, and especially
not having regard to the transcript or the minute
of the special general meeting, either vote at the meeting or provide
any of
those present with a proxy to do so. At best, they had
resolved in June 2016 to authorise SEIFSA to vote at the Mancom
meeting
“and at any subsequent meeting”; but SEIFSA is
neither a party to the Council, nor does it have a seat or carry a
vote
at Council meetings. And Mr Trentini attended the meeting as a
representative of LEIA, not of SEIFSA – an entity that cannot
confer proxies in any event, as it is not entitled to vote. (That
much is admitted by the MEIBC in its answering affidavit).
[41]
This
Court found in
NEASA
v MEIBC
[16]
that an employer’s organisation may exercise a vote by proxy at
a Council meeting. Mr
Redding
invited
the Court to hold that that judgment is clearly wrong; but I need
express no such opinion. Even if the two proxy votes exercised
by
CEFA and KNEIA at the 28 July 2016 meeting are taken into account,
the jurisdictional prerequisite of a majority as stipulated
in s
32(1)(b) is not met. That judgment does not hold that submitting
“resolutions” in the way that the Council and
NUMSA
allege Mr Trentini did, would constitute a valid vote or votes.
Conclusion:
the award is reviewable
[42]
It is clear from this discussion that the
decision of the Council on 28 July 2016 did not meet the
jurisdictional prerequisites
stipulated by s 32(1)(b) of the LRA. It
is reviewable in terms of s 158(1)(g) of the LRA; whether it is also
reviewable under PAJA
and under the Constitutional principle of
legality, becomes moot.
Relief
[43]
Mr
Van der
Riet
urged the Court, even if it should
find that the decision is reviewable, not to set it aside. That is
because the Court has a discretion
whether or not to set a decision
aside, even if a defect has been shown to exist.
[44]
But
this is not a situation such as that in
Oudekraal
,
[17]
or in a case where a SASSA tender has already been awarded and
payments are being made
[18]
.
The egg that would otherwise need to be unscrambled is still intact.
The Minister has not yet extended the agreement. The time
to set it
aside is now: in that way, no further steps can be taken that may be
costly and administratively burdensome to undo at
a later stage.
[45]
Mr
Van
der Riet
quoted in support of his argument
Chairperson,
Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd
[19]
,
where the SCA held that the award of certain tenders was
unlawful, yet decided not to set it aside since most of the work
had
already been done and that it would be disruptive and impractical to
start the whole process all over again. This is not such
a case. On
the contrary, it would be disruptive and impractical to allow the
decision to stand, only for the Minister to extend
the agreement and
for that action to be subject to judicial review.
Costs
[46]
Mr
Redding
argued that costs should follow the
result. I agree with him that there was little need for the Minister
to brief counsel to appear
in these proceedings. Nevertheless, there
is an ongoing relationship between all the parties to this
litigation. There will be
ongoing negotiations between them. A costs
order at this stage may have a chilling effect on an already fraught
relationship. I
do not consider a costs award to be appropriate,
taking into account both law and fairness.
Order
The
decision of the MEIBC (the first respondent) to request the Minister
of Labour (the third respondent) to extend the Registration
and
Administration Expenses Collective Agreement to non-parties,
submitted to the Minister on 30 August 2016, is reviewed and set
aside.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Andrew Redding SC
Instructed
by
Anton Bakker.
FIRST
AND SECOND RESPONDENTS:
K P Nchaupe (MEIBC official).
THIRD
RESPONDENT (MINISTER):
S B Nhlapo
Instructed
by
The State Attorney.
FOURTH
RESPONDENT (NUMSA):
Hans van der Riet SC
(with
him Mmakgomo Maenetje)
Instructed
by
Haffegee Roskam Savage.
[1]
The Steel and Engineering Industries Federation of South Africa.
[2]
Labour Relations Act 66 of 1995
.
[3]
Promotion of Administrative Justice Act 3 of 2000
.
[4]
The South African Engineers and Founders Association (SAEFA) and the
Light Engineering Industries Association of South Africa
(LEIA).
[5]
Cape Engineers and Founders (CEFA) and KwaZulu-Natal Engineering
Industries Association (KZNEIA).
[6]
1962 (4) SA 531 (A).
[7]
[2014]
ZALCJHB 524 (12 December 2014) par [4].
[8]
Free
Market Foundation v Minister of Labour
(2016) 37
ILJ
1638 (GP);
2016 (4) SA 496
(GP);
[2016] 8 BLLR 805
(LC) par [80] –
[81].
[9]
(2016) 37
ILJ
625 (SCA);
[2016] 3 BLLR 284
(SCA); 2016 (5) 76 (SCA) par [21] – [23].
[10]
Free Market
Foundation v Minister of Labour
(2016) 37
ILJ
1638 (GP);
2016 (4) SA 496
(GP);
[2016] 8 BLLR 805
(LC) par [19]
[per Murphy, Matojane and Basson JJ].
[11]
NEASA v
Minister of Labour
[2014}
ZALCJHB 524 (12 December 2014) par [3].
[12]
NEASA v
Minister of Labour
[2012] 2 BLLR 198
(LC); (2012) 33
ILJ
929 (LC) par
[14].
[13]
AMCU v Chamber
of Mines of South Africa
(2016)
37
ILJ
1333 (LAC);
[2016] 9 BLLR 872
(LAC) par [121] (my underlining).
[14]
University of
the North v Franks
[2002]
8 BLLR 701
(LAC) par [35].
[15]
SALGA v IMATU
[2014] 6 BLLR
569
(LAC) paras [30]-[31].
[16]
[2015] 2 BLLR 157
(LC); (2015) 36
ILJ
732 (LC) [per
Rabkin-Naicker J].
[17]
Oudekraal
Estate
s
(Pty)
Ltd v City of Cape Town
2004 (6) SA 222 (SCA).
[18]
Cf
Allpay
Consolidated Investment Holdings (Pty) Ltd v CEO, South African
Social Security Agency
2014 (4) SA 1179
(CC).
[19]
2008 (2) SA 638
(SCA).