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[2017] ZALCJHB 192
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Tlali v Commission for Conciliation, Mediation and Arbitration and Others (JR297/12) [2017] ZALCJHB 192 (24 May 2017)
SAFLII
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Certain
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 297/12
In
the matter between:
KHAFETSA
J
TLALI
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
THEMBA R HLATSWAYO
Second Respondent
ABSA
BANK
LIMITED
Third Respondent
Heard:
12 July 2016
Delivered:
24 MAY 2017
JUDGMENT
LANDMAN
AJ
Introduction
[1]
The
applicant, formerly a market risk manager in the employ of the third
respondent (ABSA), seeks
inter
alia
rescission of an order of court issued by Malan AJ on 17 July 2013,
under case number JR 297/12, together with ancillary relief,
including that the dispute be re-enrolled for hearing and/or
adjudication before another Judge; declaring the applicant’s
suspension unfair and unlawful; declaring the applicant’s
dismissal not only automatically unfair but also procedurally and
substantively unfair; reinstating the applicant in ABSA’s
employ. ABSA opposes the application.
[2]
The
parties’ representatives agree that the only issue for
adjudication in this application is whether Malan AJ’s order,
granted in the applicant’s absence, ought to be rescinded.
The background
[3]
On 27
November 2008, ABSA appointed the applicant to the position of market
risk manager, supervising four subordinates (the team).
He reported
to Ms Christine Clark (Ms Clark), ABSA’s Head of Market Risk.
[4]
The
applicant claims that he found ABSA’s market risk system to be
“a complete mess”, faulty and broke down frequently.
The
team was “lowly ranked” largely because of the nature of
the work they did, and, applicant claims, because the
members of his
team were Africans. Realising that the team was generating inaccurate
reports owing to the faulty system, the applicant
approached Ms Clark
for an explanation. She explained that it was the result of years of
neglect, including lack of maintenance
and technical support.
[5]
The
applicant considered that Ms Clark subjected him and his team to
racial bullying; hostility; exclusion and exploitation; the
issuing
of unreasonable and unlawful instructions and that she falsified
market risk reports sent to the South African Reserve
Bank, Barclays
and other entities. Matters between the applicant and Ms Clark
deteriorated from then on.
[6]
In
early February 2009, Ms Clark and ABSA’s human resources
department insisted that the applicant summarily dismissed one
of his
subordinates for unfair reasons. When he refused, ABSA, without
notice to the applicant, issued the team member with a final
warning.
The applicant considered Ms Clark’s actions consistent with her
view that the team consisted of lazy, useless people.
[7]
Ms
Clark and HR attempted to coerce the applicant into signing documents
pertaining to key performance objectives (KPOs) and a performance
accelerator programme (PAP). Feeling that Ms Clark was leading him
into a “trap”, the applicant refused to sign the
documents.
[8]
On 16
February 2009, the applicant requested leave to lodge a formal
grievance in response to Ms Clark conduct, and to make a protected
disclosure against Ms Clark. He asked for HR’s assistance, as
he was unfamiliar with ABSA’s procedures. Much to the
applicant’s surprise, his grievance was logged and Ms Clark and
HR undertook to provide him with feedback. Yet, only a day
later, Ms
Clark summonsed the applicant to her office where she issued him with
a letter of suspension. Security personnel escorted
him out of ABSA’s
premises. The applicant felt shocked and traumatised as he expected
Ms Clark and HR to revert on his grievance
and protected disclosure.
[9]
The
applicant contends that the reason provided for his suspension,
namely to allow HR to investigate allegations of irregularities,
are
false. The true reason for his suspension was that he had lodged an
oral grievance against Ms Clark, and a protected disclosure
against
Ms Clark, arising from her subjecting the applicant’s team to
racial bullying, hostility, exclusion, oppression,
and exploitation;
her falsification of market reports and her unreasonable and unlawful
instruction that the applicant’s
team do the same (the
complaint). This was unfair, says the applicant, as ABSA ought to
have investigated Ms Clark while protecting
him. Nonetheless, the
applicant did not challenge his suspension in the CCMA.
[10]
On 24
February 2009, ABSA delivered a charge sheet to the applicant. The
charges, which the applicant characterises as malicious,
trumped up
and false, were that the applicant disregarded a reasonable and
lawful instruction from a competent authority; insubordination;
bringing the company’s name into disrepute and gross negligence
of duties as conditions of employment. The applicant viewed
the
charges as an attempt to suppress the complaint.
[11]
On 29
March 2009, ABSA summonsed the applicant to a meeting. He avers that
ABSA instructed him to agree to a separation package
or face a
disciplinary hearing where ABSA would dismiss him. The applicant
presented ABSA with a counterproposal. ABSA rejected
his
counterproposal and convened a disciplinary hearing on 6 May 2009.
[12]
On 18
June 2009, the applicant lodged a formal grievance and made a
protected disclosure pertaining to Ms Clark to Mr John Vitalo,
the
CEO of ABSA Capital. The applicant felt he had no choice as he had
waited more than 130 days since lodging the complaint. During
the
intervening period, Ms Clark’s behaviour had worsened in
that she had
inter
alia
suspended
and charged him. When Mr Vitalo ignored the applicant’s
grievance and disclosure, the applicant perceived that to
be a form
of victimisation in retaliation for the steps he took against Ms
Clark.
[13]
In
July 2009, ABSA again proposed that the applicant accept a separation
package or face dismissal. ABSA rejected the applicant’s
counterproposal, in which the applicant requested that ABSA provide
him with a reference. ABSA countered that it would rather provide
a
reference on a confidential basis when requested by prospective
employers.
[14]
On 12
November 2009, the applicant noted that ABSA failed to deposit his
monthly salary into his bank account. In response to a
letter
demanding payment, ABSA informed the applicant that he was dismissed
with effect from 31 August 2009.
[15]
The
applicant contends that the motive behind informing him that he was
dismissed on 31 August 2009 was to prejudice him and in
retaliation
for raising the complaint.
[16]
On 23
November 2009, the applicant lodged a formal grievance regarding Ms
Clark’s conduct with ABSA Group CEO, Ms Ramos. Ms
Ramos failed
to respond.
[17]
On 1
December 2009, the applicant lodged a grievance and protected
disclosure against Ms Clark with the ABSA Group Interim Chairperson,
Mr Dave Brink. Once again, the applicant received no response save
for an acknowledgement that Mr Brink was in receipt of his grievance.
[18]
The
applicant contends that both Ms Ramos and Mr Brink approached his
grievance in an unnecessarily formalistic manner.
[19]
Finally,
on 8 December 2009, the applicant referred an unfair dismissal
dispute to the CCMA, having exhausted all internal remedies.
[20]
The
applicant accuses ABSA of acting with malice, to cause confusion,
complicate the dispute and hide the true date of dismissal
by
informing him that he was dismissed with effect from 31 August 2009.
[21]
On
the applicant’s version, the true reason for his dismissal was
not his guilt on the charges of misconduct but that he raised
the
complaint.
[22]
Returning
to the applicant’s referral of the unfair dismissal dispute,
the applicant simultaneously filed an application to
condone the
lateness of the referral. An official of the CCMA had advised him
that he should do so as the referral was some 92
days late, based on
the assumption that the date of dismissal was 31 August 2009. The
applicant later recognised that it was an
error to state in his Form
7.11 that his date of dismissal was 31 August 2009. Indeed,
the applicant contends that he
was not obliged or required to apply
for condonation.
[23]
ABSA
opposed the condonation application and filed an affidavit in support
of its opposition.
[24]
The
CCMA set down the condonation application for hearing on
12 November 2009. The applicant failed to attend as neither
he nor his attorney (whose fax number and address he used as an
address for service) received the notice of set down. ABSA, on
the
other hand, having received the notice of set down, dispatched two
employees to attend the hearing. In the absence of the applicant,
ABSA’s representatives submitted to the Commissioner that the
application lacked prospects of success and requested the
Commissioner to dismiss the application for condonation.
[25]
On 18
January 2009, the Commissioner issued a ruling dismissing the
condonation application. The Commissioner ruled that the applicant
had no prospects of success and that the applicant received poor
advice.
[26]
The
applicant now contends that had the Commissioner been aware that the
date of dismissal per ABSA’s communication was false;
that the
applicant was notified of his dismissal on 19 November 2009; and that
the dismissal was for the “true” reasons
recorded above,
the Commissioner would not have issued the ruling. In fact, the
Commissioner would not have issued a ruling at
all – save to
strike the condonation ruling off the roll as being unnecessary.
[27]
ABSA
contends that the true date of dismissal was 31 August 2009; that the
applicant was aware that was the date of his dismissal;
ABSA notified
the applicant accordingly at that time of his dismissal and that his
dismissal was due to acts of misconduct recorded
in the charge sheet.
In brief, ABSA contends that the applicant was obliged to seek
condonation for the lateness of the referral
and that the
Commissioner corrected refused to grant condonation as the applicant
had no prospects of success.
[28]
The
applicant contends that he became aware of the Commissioner’s
ruling on 18 February 2010 upon enquiring from the CCMA
about
progress in setting down the condonation application. Although ABSA
expressed doubts about the veracity of the applicant’s
version,
ABSA was not in a positon to dispute that the applicant’s
contention that he became aware of the ruling on 18 February
2010.
[29]
The
applicant served an application to rescind the ruling on ABSA on
1 March 2010 and filed same with the CCMA on 4 March
2010.
The applicant contends that he filed the rescission application
timeously. ABSA opposed the rescission application on the
grounds set
out in its answering affidavit.
[30]
The
rescission application was finally set down and argued on
25 January 2011. The applicant explained the delay saying
that he took various steps, including complaining to the Commissioner
of the CCMA as well as the Public Protector, when the CCMA
failed to
set the application down for hearing. Apparently, the CCMA, at some
stage, was adamant that the applicant had not filed
a rescission
application.
[31]
On 25
January 2011, the parties appeared before the Commissioner. The
applicant believed that he was there to advance reasons why
the
ruling should be rescinded. Instead, the Commissioner informed the
parties that both he and the CCMA was
functus
officio
as in January 2010 he had dismissed the applicant’s application
for condonation “on the merits”. As I understand
it, the
Commissioner’s reasoning was that the CCMA lacks jurisdiction
to review or rescind rulings decided on the merits,
for example, as
in this instance, having found that the application lacks prospects
of success. The Commissioner advised the applicant
that the only
option was to review the ruling in the Labour Court.
[32]
The
applicant accepted the Commissioner’s advice and lodged a
review application – in terms of section 145 of the Labour
Relations Act
[1]
–
on
16 March 2012. The applicant sough to review and set aside
the condonation ruling dated 18 January 2010 and the rescission
directive/ruling dated 25 January 2011.
[33]
The
applicant filed the review application approximately 13 months after
the rescission ruling/directive and, self-evidently, even
longer
after the condonation ruling. The applicant once again applied for
condonation.
[34]
I
must point out that ABSA contends that the review application was
filed some two years late. ABSA computes the delay from the
time that
the Commissioner issued his condonation ruling to the time that the
condonation application was filed in this Court.
[35]
Conceding
that the delay was a “lengthy one”, the applicant stated
that he had good explanation for the delay, namely
that he did not
have funds to instruct an attorney to assist him to draft the review
application. The applicant recorded the steps
he took to secure the
services of a legal representative. The applicant also addressed the
prospects of success.
[36]
ABSA
opposed the review application as well as the condonation
application.
[37]
On 17
July 2013, when the application was called before Malan AJ, the
learned Judge dismissed the condonation application in the
applicant’s absence.
[38]
On 24
July 2013, when making enquiries at the Registrar’s Office, the
applicant became aware of Malan AJ’s order.
[39]
The
applicant immediately uplifted the order together with the notice of
set down and a fax transmission slip. The applicant noticed
that the
notice of set down was faxed to two numbers, none of which was the
applicant’s number, being [...] and [...], (one
of which is
that of ABSA’s attorneys of record).
[40]
The
applicant noted that the notice of set down records his fax number as
“UNIT [...] IRELAND GARDENS”, and ABSA’s
legal
representative as “[...]”. The applicant pointed out,
correctly, that “UNIT [...] IRELAND GARDENS”
is not and
cannot be a fax number, and that he did not consent to address to be
used as his fax number. The second fax number,
to which the notice of
set down was sent, namely “[...]”, is unknown to the
applicant.
[41]
The
applicant accordingly established that his physical address was
recorded (albeit incorrectly in part) on the notice of set down
but
that the fax numbers show that the notice of set down was purportedly
sent to him as applicant at one of the two fax numbers.
As stated
before none of them is his fax number.
[42]
I
should point out that ABSA accepts that the fax numbers on the notice
of set down, and in the fax transmission report, are not
the
applicant’s fax numbers. Thus, based on the only proof of
service that was before Malan AJ at the time of his order,
the
notice of set down was neither sent to nor received by the applicant
albeit that the inscriptions made on notice of set down
might have
been, at best, ambiguous.
[43]
ABSA
contended that the notice of set down was sent to the applicant’s
physical address – UNIT [...] IRELAND GARDENS.
ABSA’s
attorneys pointed out that they served documents on the applicant at
that address. I shall revert to this issue later.
[44]
The
applicant concedes that he gave the Registrar his physical
residential address as his address for service, namely UNIT [...]
IRELAND GARDENS.
[45]
The
applicant contends that he has good prospects of success in his
unfair dismissal dispute as well as in his review application
before
this Court.
[46]
As to
his claim for unfair dismissal, the applicant contends that his
referral to the CCMA was timeous for the reasons stated above.
[47]
The
applicant says that he was subjected to occupational detriment in
order to prevent him from lodging the complaint, for refusing
to
accept ABSA’s two offers of financial settlement, and for
putting forward two counter proposals. In substantiation, the
applicant points to ABSA’s decision on 17 February 2009 to
finally suspend him without good grounds and without affording
him an
opportunity to be heard; ABSA’s decision to bring what the
applicant describes as “malicious, trumped up and
false
charges” against him; ABSA’s decision to revive those
charges after the applicant declined its settlement proposal;
ABSA’s
decision on 27 March 2009 to reject the applicant’s
first counter proposal and his request for a formal
reference; ABSA’s
actions in subjecting him to a sham disciplinary hearing on 6 May
2009; ABSA’s rejection of the applicant’s
second counter
proposal on July 2009; ABSA’s decision to again refuse to give
the applicant a formal reference in July 2009;
ABSA’s failure
to pay the applicant’s salary in October
2009;
ABSA’s decision on 19 November 2009 to dismiss the applicant
for unfair reasons; ABSA’s failure to pay the applicant’s
salary for the days in November 2009 preceding his dismissal on 19
November 2009.
[48]
The
applicant addresses the charges in the charge sheet. The applicant
contended that he has good prospects of success in showing
that the
charges were unsubstantiated. As to the charge of refusing to obey
reasonable and lawful instructions, the applicant denies
that he was
issued with instructions to attend meetings and that he failed to
attend a meeting on 30 January 2009 without tendering
an apology. The
applicant denies that he was requested to agree to the contract
performance objectives at meetings held on 9, 12
and 16 February
2009; the applicant denies that the team missing deadlines, that
there were errors in the team’s reports,
or that the
applicant’s attitude hampered efforts in the department. The
applicant denies that he refused to sign off the
performance
objectives.
[49]
The
applicant addressed his prospects of success in the review
application. The applicant explained that the review application
was
not filed late. According to his explanation, he uplifted the
Commissioner’s ruling only on 18 February 2010. Before
then he
was not aware of the ruling and thus the six-week period without
which to lodge a review application commenced on 18 February
2010.
Accordingly, it is argued, the applicant filed review application
timeously.
[50]
The
applicant also addressed the grounds for review of the Commissioner’s
condonation ruling. The applicant contends that
the Commissioner was
at the time unaware of a fact that, if known to him, would have
precluded him from making the condonation
ruling. This fact, the
applicant contends, is that he incorrectly recorded his date of
dismissal on Form 7.11 as 30 August 2009
whereas the true date of his
dismissal was 19 November 2009.
[51]
The
applicant also addressed the grounds of review of the Commissioner’s
rescission directive/ruling. The applicant contends
that the
Commissioner committed a serious error in law by finding that he and
the CCMA was
functus
officio.
The
applicant contends that on a proper reading of section 144 of the
LRA, the Commissioner was empowered to revisit and rescind
his
condonation ruling.
[52]
The
applicant contends that his dismissal was not only automatically
unfair but also procedurally and substantively unfair. The
applicant
advances the reasons described above.
[53]
Finally,
the applicant contends that Malan AJ’s order was issued
erroneously in his absence, and that the applicant is entitled
to
rescission of that order as he has shown good cause.
[54]
ABSA
responded to the applicant’s allegations in an answering
affidavit deposed to by one Verna Douman.
[55]
Absa
contends that the rescission application was brought some 2 years
late (taking the ruling dismissing the applicant’s
condonation
application as the starting point). ABSA points to applicant’s
habit of late filing as indicative of the applicant’s
lack of
respect for court rules and time periods. In essence, ABSA argues
that the applicant abused the processes of the Court.
[56]
As to
the applicant’s explanation for his failure to attend on the
date that Malan AJ issued his order, ABSA contends
that the
notice of set down shows, at least
prima
facie
,
that the Registrar sent the notice of set down to the applicant’s
residential address, namely UNIT [...] IRELAND GARDENS.
Absa points
out that that is a physical address and not a fax number. The
Registrar obviously recorded the address to which the
Registrar sent
the notice of set down on the notice of set down albeit in the space
where a fax number should be recorded. Moreover,
that is the same
address where ABSA’s attorneys had successfully served its
heads of argument on the applicant. ABSA contends
that the applicant
has not proven that his failure to attend Court was not due to his
negligence. Accordingly, ABSA argues that
he has failed to show that
his non-attendance was not wilful.
[57]
ABSA
argues that the applicant’s prospects of success in both the
condonation and the review applications are weak. The applicant
changed tack on the condonation ruling. Whereas he originally
objected to the Commissioner not granting condonation, the applicant
now argues that condonation was unnecessary as he referred the
dispute timeously. Absa contends that the Commissioner’s
refusal of the condonation application was reasonable and not
reviewable. The condonation hearing was set down for hearing on 18
January 2012. Absa’s representatives attended. The applicant
was absent. In the applicant’s absence, ABSA argued that
the
referral was 99 days late; the applicant did not provide a reasonable
explanation for the lateness of the referral; the applicant
had no
prospects of success in his unfair dismissal referral and ABSA will
be prejudiced should condonation be granted as it had
complied with
its legal obligations before dismissing the applicant. After hearing
argument, the Commissioner dismissed the condonation
application.
Evaluation
[58]
This
application is brought in terms of section 165(a) of the provisions
of the LRA read with rule 16A of the Rules of the Labour
Court.
The
law
[59]
Section
165 of the LRA which empowers the Labour Court to vary or rescind
orders, provides that:
‘
The
Labour Court, acting of its own accord or on the application of any
affected party may vary or rescind a decision, judgment,
or order—
(a)
erroneously sought or erroneously granted in the absence of any party
affected by
that judgment or order; ...’
(b)
in which there is ambiguity, or an obvious error or omission, but
only to the extent
of the omission’ or
(c)
granted as a result of a mistake common to the parties to the
proceedings.’
Rule
16A(1)(a)
[2]
of the Rules of the
Labour Court mirrors section 165(a) of the LRA.
Our
courts have held that if an order was erroneously made in the absence
of any affected party, the court should on the application
of that
party rescind the order without further enquiry.
[3]
In
Lodhi
2 Properties Investments CC and Another v Bondev Developments
the
Court held:
[4]
“
Where
notice of proceedings to a party is required and judgment is granted
against such party in his absence without notice of the
proceedings
having given to him such judgment is granted erroneously. That is so
not only if the absence of proper notice appears
from the record of
the proceedings as it exists when judgment is granted but also if,
contrary to what appears from such record,
proper notice of the
proceedings has in fact not been given. That would be the case
if the sheriff’s return of service
wrongly indicates that the
relevant document has been served as required by the Rules whereas
there has for some or other reason
not been service of the document.
In such a case, the party in whose favour the judgment is given is
not entitled to judgment because
of an error in the proceedings. If,
in these circumstances, judgment is granted in the absence of the
party concerned the judgment
is granted erroneously.”
(Footnotes omitted.)
[60]
The
principal ground advanced in support of the application is that this
Court’s order was “erroneously sought”
within the
meaning of section 165(a) of the LRA, read with rule
16A(1)(a)(i), in that Malan AJ was under the erroneous
impression that the applicant had received the notice of set down.
[61]
Snider
AJ said in
Starfish
Greathearts Foundation v Lekalakala
:
[5]
‘
Similarly,
it would be impossible, given that it is the registrar who serves the
notice of set down by fax, for a party who has
attracted the onus to
prove on a balance of probability that another party, who denies
same, has in fact received a particular
fax. The party seeking to
prove such receipt would have to obtain any evidence that it could
from the registrar which would inevitably
prove a hindrance both to
the registrar and to that party.’
[62]
Where
there was no proof of posting and the applicant said he did not
receive the notice of set down, can it not be said that the
judgment
was made erroneously.
[63]
Acting
on the assumption that the notice of set down was indeed faxed to the
numbers recorded on the notice of set down, I am constrained
to find
that the notice of set down would not have come to the applicant’s
attention as neither of the fax numbers recorded
on the notice of set
down are those of the applicant. As I stated earlier, one of those
numbers is that of ABSA’s attorneys
of record. Where and how
the second fax number came to be used remains a complete mystery.
What is not a mystery is that that fax
number is not that of the
applicant.
[64]
Assuming
that ABSA is correct to argue that the Registrar meant to record that
the notice of set down was posted to the applicant’s
address, I
find that there are three insurmountable problems with that
submission. First, there is no proof that the notice of
set down was
indeed posted to the address recorded on the notice of set down,
second, the address is incomplete and gives one no
confidence that,
even had it been posted, it would necessarily have arrived at the
applicant’s address, being 23 Ireland
Gardens, Ireland
Street, Eldoraigne, in other words, “23 Ireland Gardens”
may not have been enough to ensure that the
post office delivered the
notice of set down to 23 Ireland Gardens, Ireland Street, Eldoraigne;
third, the applicant is adamant
that he did not receive the notice of
set down.
[65]
I am
alive to ABSA’s point that it served documents on the applicant
at the said address. I have no reason to doubt that the
applicant
lives at that address – the applicant admits as much.
Nevertheless, I am not convinced that the fact that applicant
took
delivery of documents later at that address establishes that the
notice of set down was similarly delivered to that address
and
received by the applicant.
[66]
In
the circumstances, I am of the view that the applicant has succeeded
in establishing that Malan AJ’s order was made erroneously
in
his absence and that the order must accordingly be rescinded.
Conversely, I am satisfied that ABSA failed, in the face of
applicant’s
denial, to prove that the notice of set down was
delivered to and received by the applicant.
[67]
It is
not without significance that ABSA failed to obtain an explanation
from the Registrar as to the anomalies appearing on the
notice of set
down.
[68]
In
the exercise of my discretion, I consider that each party should pay
its own costs.
Order
[69]
I
accordingly make the following order:
1.
The
order granted by Malan AJ on 17 July 2013 under case number JR 297/12
is rescinded and set aside.
2.
Each
party is to pay its own costs.
____________________
A. Landman
Acting Judge of the Labour Court of
South Africa
Appearances:
For
the Applicant:
In Person
For
the Third Respondent:
A Patel of Cliffe Dekker Hofmeyer
Inc.
[1]
66 of 1995, as
amended. (LRA)
[2]
Rule 16A (1)(a)
provides:
“
(1)
The court may in addition to any other powers it may have—
(a)
of
its own motion or on application of any party affected, rescind or
vary any order or judgment—
(i)
erroneously
sought or erroneously granted in the absence of any party affected
by it;
(ii)
in which there is an ambiguity or a patent error or omission, but
only to
the extent of such ambiguity, error or omission;
(iii)
granted as the result of a mistake common to the parties.”
[3]
See
Superb
Meat Supplies CC v Maritz
(2004) 25 ILJ 96 (LAC) at para 15 and
Lumka
and Associates v Maqubela
(2004) 25 ILJ 2326 (LAC) at para 26.
[4]
2007 (6) SA 87
(SCA) at para 24.
[5]
[2015] ZALCJHB 381; (2016) 37 ILJ 501
(LC) at para 25.