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[2017] ZALCJHB 367
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South African Police Service v Erasmus and Another (JR2319/2015) [2017] ZALCJHB 367; (2018) 39 ILJ 460 (LC) (28 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR2319/2015
In
the matter between
:
SOUTH
AFRICAN POLICE
SERVICE
Applicant
and
MARINDA
ERASMUS
First Respondent
FRANCOIS
VAN DER MERWE
N.O.
Second Respondent
Heard:
19
July 2017
Delivered:
28 September 2017
Summary:
Review application of private arbitration award i.t.o. the
Arbitration Act 42 of 1965
– limited scope of review of private
arbitration awards – not permitted for an applicant to raise
defence for the first
time on review which defence was neither
pleaded nor fully and properly canvassed before the Arbitrator in an
attempt to establish
a reviewable irregularity i.t.o.
section
33(1)(b)
of the
Arbitration Act.
JUDGMENT
MALAN
AJ:
Introduction
[1]
The matter
before this Court concerns an opposed application in terms of which
the applicant (SAPS) seeks an order premised on section
33(1)(b) of
the Arbitration Act,
[1]
(the
Arbitration Act) to
have the award issued by the second respondent
(
the
Arbitrator
)
on 15 October 2015 (the award) reviewed and set aside.
[2]
The award was issued following a private
arbitration held pursuant to an arbitration agreement (the
arbitration agreement) concluded
between SAPS and the first
respondent (Mrs Erasmus). In terms of the arbitration agreement the
parties agreed
inter alia
on the appointment of the Arbitrator as well as his powers. The
parties also agreed on the Arbitrator’s terms of reference
namely, ‘…
to decide all issues
and disputes as they appear from the pleadings to be filed and as may
be amended from time to time before the
Arbitrator.’
[3]
At the time of conclusion of the arbitration
agreement, the dispute between the parties had in fact already been
referred to this
Court for determination under case number JS793/14
and pleadings had already been exchanged between the parties. (The
reason why
the parties elected to have their dispute removed from
this Court and determined by way of private arbitration is not
clear). However,
this matters not. Consequently, the pleadings before
the Arbitrator were the statement of claim already delivered by Mrs
Erasmus
and SAPS’ reply thereto under case number JS793/14.
There were no amendments to these pleadings either before or during
the
arbitration.
Synopsis
of relevant background
[4]
Mrs Erasmus commenced
employment with SAPS during 1979 and is currently still employed by
SAPS.
[5]
During June 1995, SAPS
embarked upon what was called the ‘Representivity and Equal
Opportunity Program’ (REOP). The
aim of the REOP program was to
enhance employment equity within the fixed establishment of SAPS and
to ensure equal development
opportunities for suitable candidates
from designated groups with the view to achieve the requisite levels
of representivity within
SAPS. This program was to be headed by a
REOP manager. Commissioner Holtzman was appointed as the head of
REOP.
[6]
Mrs Erasmus was accepted into
the REOP program. On 4 March 1996, she was appointed as Senior
Superintendent (the rank of Colonel)
as the Station Commander
Kimberley.
[7]
On 14 May 1996,
the office of the National Commissioner announced that a task team
under Deputy National Commissioner Chetty
was mandated to draft the
REOP policy and then manage the process of evaluation of candidates.
Pursuant to this, 231 candidates
were evaluated by an evaluation
panel in June and July 1996.
[8]
On 1 October 1996, Mrs
Erasmus was appointed as Head of Specific Projects of the National
Crime Prevention Strategy (NCPAS)
at SAPS’ head office.
However, b
y the
end of 1997, of the 227 original REOP candidates, 180 had not yet
been appointed in incumbent positions. Mrs Erasmus was one
of these.
[9]
On 11 December 1997,
Divisional Commissioner Steenkamp issued a directive to facilitate
the outstanding REOP candidate appointments
to be made (Guideline 1).
On 21 January 1998, Divisional Commissioner Steenkamp issued a
second directive again setting out
an evaluation and appointment
process (Guideline 2).
[10]
During February 1998 and March
1998, a number of evaluations were conducted and completed. During
March 1998, Mrs Erasmus was evaluated
as a REOP candidate in terms of
Guidelines 1 and 2. I interpolate to state that the extent of the
evaluation and its effect was
central to the arbitration proceedings
and the award forming the subject matter of this review application.
I deal with this later
in this judgment.
[11]
Of the 180 REOP candidates
evaluated during February and March 1998, 139 of them were
recommended for promotion and appointment.
I understand Mrs Erasmus’
pleaded case before the Arbitrator to be that she was one of the 139
candidates recommended for
promotion. Accordingly, so Mrs Erasmus
claims, on 24 March 1998 she was found to be a suitable candidate for
placement by the evaluation
panel chaired by Divisional Commissioner
Eloff. Consequently, she was recommended for promotion to the rank of
Brigadier. On 1 August
1998, she was appointed to the position
of Head of NCPAS, which is a position for someone at the rank of
Brigadier. On 17 August
1998 she accepted this position. On
29 October 1998, a final information bulletin was sent by the
Chairperson of the REOP
National Evaluation Panel to the National
Commissioner, setting out the conclusion of the REOP process and the
placement of the
candidates. In particular, it was recorded that the
139 successful candidates would be placed in available posts as soon
as possible,
but effective 1 April 1999. The National
Commissioner was asked for his approval of these placements, which he
did on 18 November
1998.
[12]
I understand SAPS’
pleaded case before the Arbitrator to deny the above on the basis
that follows. SAPS contended that Mrs
Erasmus was not evaluated in
accordance with the Guidelines because she was not evaluated by her
Commander at the time. SAPS denied
further that Mrs Erasmus was found
to be a suitable candidate to be promoted to the rank of Brigadier or
that she was in fact promoted.
SAPS pleaded that following an
evaluation of Mrs Erasmus during October 1998 a recommendation was
made that she be re-evaluated
a year later, in other words during
October 1999. Lastly, SAPS pleaded that the signatures and comments
of the moderating committee
were not completed and agreed to by SAPS
and accordingly constituted irregularities.
[13]
The aforesaid dispute between
the parties was central to the issues before the Arbitrator and
accordingly his terms of reference
as provided for in the arbitration
agreement.
[14]
On 13 August 1998, a
third directive was issued in respect of those evaluations and
appointments not yet completed (Guideline
3). There were no
evaluations done after 28 August 1998.
[15]
On 31 March 1999,
SAPS dismissed Mrs Erasmus
contending that
she was
medically unfit to
fulfil her duties. Aggrieved by the aforesaid, Mrs Erasmus challenged
her dismissal in this Court under case
number JR112/09 contending
that her dismissal was unlawful and constituted an unfair dismissal.
On 23 October 2013, Lagrange
J issued an order in terms of which
Mrs Erasmus’ discharge was declared to be unlawful and set
aside.
[16]
On 1 April 2014, SAPS
required Mrs Erasmus to resume her duties at the rank of Colonel. Mr
Erasmus argued that her reinstatement
by SAPS at the rank of Colonel,
following the order by Lagrange J, did not take into account the fact
that at the time of her dismissal
she had already been promoted and
appointed to the rank of Brigadier pursuant to the REOP program as
set out above. Simply put,
Mrs Erasmus claimed that SAPS had to
reinstate her at the rank of Brigadier. SAPS disagreed and contended
that Mrs Erasmus had
never been appointed to the rank of Brigadier.
As mentioned earlier in this judgment, it is this dispute that Mrs
Erasmus initially
referred to
this Court
for determination under case number JS793/14 which the parties in
turn referred to private arbitration before the Arbitrator
in terms
of the arbitration agreement.
Issues
which the Arbitrator was called upon to determine
[17]
In terms of clause 4 of the arbitration agreement
the parties agreed that the Arbitrator was called upon to determine
the following
issues:
17.1.
Whether Erasmus has a legal right to be
appointed/promoted to the rank of Brigadier; and
17.2.
If so, to determine the date of
appointment/promotion to the rank of Brigadier and the date from
which Erasmus is to be remunerated
as Brigadier.
The
Arbitrator’s findings
[18]
Following the arbitration proceedings, the
Arbitrator found that:
18.1.
Erasmus was promoted to the rank and level of
Director/Brigadier;
18.2.
There was nothing improper, invalid or unlawful
concerning the promotion; and
18.3.
The effective date of the promotion to be the
same date that applied to other REOPs namely, 1 April 1999.
[19]
It is these findings that SAPS is challenging by
way of this review application.
Grounds
of review
[20]
SAPS claims that it was denied a full and fair
determination of the issues before the Arbitrator because, so it
contends, the Arbitrator:
20.1.
committed a
gross irregularity in the conduct of the arbitration proceedings by
failing to have regard to the South African Police
Service Act
[2]
,
(‘SAPS Act’); and
20.2.
exceeded his powers by ordering the appointment
of Erasmus in breach of the SAPS Act.
[21]
Central to the aforesaid grounds of review is
SAPS’ attack on the following finding by the Arbitrator:
‘
[52] The defence that the
promotion had to be approved by the National Commissioner [him]self
(sic) I do not accept because it was
neither pleaded nor was I
directed to any provision that states or implies that no REOP
promotion could occur without the National
Commissioner’s
approval. In any event, the REOP was a unique exercise, by all
indications not regulated by the usual
policies and practices for
promotion (for example that the National Commissioner had to approve
all promotions to rank of brigadier),
and run somewhat haphazardly.’
Relevant
legal framework
[22]
The award
sought to be reviewed in this instance is an award by a private
arbitrator pursuant to an arbitration agreement concluded
between the
parties. As such, the legal principles applicable to review
applications in terms of sections 145 and 158(1)(g) of
the LRA, (as
enunciated in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[3]
and some of the other cases since
Sidumo
[4]
do not find application in this review
.
[23]
The
Constitutional Court in
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and another
[5]
(
per
O'Regan J), writing for the majority, set out the policy basis for
the limited scope of intervention by the Courts when dealing
with
private arbitrations:
'Courts should be respectful of the
intention of the parties in relation to procedure. In so doing, they
should bear in mind the
purposes of private arbitration which include
the fast and cost-effective resolution of disputes. If courts are too
quick to find
fault with the manner in which arbitration has been
conducted, and too willing to conclude that the faulty procedure is
unfair
or constitutes a gross irregularity within the meaning of
section 33(1), the goals of private arbitration may well be
defeated.'
[24]
This
cautionary sentiment is reflected in the conclusion reached by Van
Dijkhorst AJA in
Stocks
Civil Engineering (Pty) Ltd v Rip NO and another
:
[6]
'A court is entitled on review to
determine whether an arbitrator in fact functioned as arbitrator in
the way that he upon his appointment
impliedly undertook to do,
namely by acting honestly, duly considering all the evidence before
him and having due regard to the
applicable legal principles. If he
does this, but reaches the wrong conclusion, so be it. But if he does
not and shirks his task,
he does not function as an arbitrator and
reneges on the agreement under which he was appointed. His award will
then be tainted
and reviewable.... An error of law or fact may be
evidence of the above in given circumstances, but may in others
merely be part
of the incorrect reasoning leading to an incorrect
result. In short, material malfunctioning is reviewable, a wrong
result per
se not (unless it evidences malfunctioning). If the
malfunctioning is in relation to his duties, that would be misconduct
by the
arbitrator as it would be a breach of the implied terms of his
appointment.'
[25]
Since it is
a review of a private arbitration award, it can only be reviewed on
the grounds set out in
section 33
of the
Arbitration Act.
[7
]
SAPS’s review application is premised on
section 33(1)(b)
of
the
Arbitration Act.
[26
]
Section 33(1)(b)
of the
Arbitration Act reads
as
follows:
‘
(1) Where-
(a)
…
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the
arbitration proceedings or has exceeded its powers; or
(c)
…
the court may, on the application of
any party to the reference after due notice to the other party or
parties, make an order setting
the award aside.’
[27]
In
Commercial
Catering and Allied Workers Union and others v Pick ‘n Pay
Retailers (Pty) Ltd and others
[8]
the Court stated the following in respect of the meaning of ‘gross
irregularity’ in general:
‘…
In order for there to
be a gross irregularity warranting interference on review, two
conditions must be met: firstly, the omission
on the part of the
arbitrator must involve his or her having misconceived the nature of
the enquiry or his or her duties in connection
with the enquiry, and
thus result in his preventing a fair trial of the matter. Secondly,
there must not exist material that would
serve to justify the
arbitrator's decision, because 'if there was material before the
[arbitrator], justifying the action taken,
the court would not be
entitled to interfere even if an irregularity had been committed'.
Put differently, if an arbitrator was
caused by inappropriate means
to reach one conclusion whereas if he had adopted appropriate means
he might have reached another
conclusion favourable to the applicant,
then the award is reviewable.’
[28]
In
Telcordia
Technologies Inc v Telkom SA Ltd
,
[9]
the Supreme Court
of Appeal stated as follows:
‘
[85] The
fact that the arbitrator may have either misinterpreted the
agreement, failed to apply South African
law correctly, or had regard
to inadmissible evidence does not mean that he misconceived the
nature of the inquiry or his duties
in connection therewith. It only
means that he erred in the performance of his duties. An arbitrator
'has the right to be wrong'
on the merits of the case, and it is a
perversion of language and logic to label mistakes of this kind as a
misconception of the
nature of the inquiry - they may be
misconceptions about meaning, law or the admissibility of evidence
but that is a far cry from
saying that they constitute a
misconception of the nature of the inquiry. To adapt the quoted words
of Hoexter JA: it cannot be
said that the wrong interpretation of the
Integrated Agreement prevented the arbitrator from fulfilling his
agreed function or
from considering the matter left to him for
decision. On the contrary, in interpreting the Integrated Agreement
the arbitrator
was actually fulfilling the function assigned to him
by the parties, and it follows that the wrong interpretation of the
Integrated
Agreement could not afford any ground for review by a
court.
[86] Likewise, it is a
fallacy to label a wrong interpretation of a contract, a wrong
perception or application of
South African law, or an incorrect
reliance on inadmissible evidence by the arbitrator as a
transgression of the limits of his
power. The power given to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly
or wrongly; and to determine
what evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do
with him exceeding his powers; they are
errors committed within the scope of his mandate. To illustrate, an
arbitrator in a 'normal'
local arbitration has to apply South African
law but if he errs in his understanding or application of local law
the parties have
to live with it. If such an error amounted to a
transgression of his powers it would mean that all errors of law are
reviewable,
which is absurd.
[87] In
support of this I revert to
Doyle v Shenker
, a case that dealt
with a review on the ground of a gross irregularity in the
proceedings. Innes CJ said in a passage that speaks
for itself:
'Now a mere mistake of law in
adjudicating upon a suit which the magistrate has jurisdiction to try
cannot be called an irregularity
in the proceedings. Otherwise a
review would lie in every case in which the decision depends upon a
legal issue, and the distinction
between procedure by appeal and
procedure by review, so carefully drawn by statute and observed in
practice, would largely disappear.
Yet in this case it is a mistake
of law alone which is relied upon as constituting gross irregularity.
There is neither allegation
nor suggestion that the magistrate, his
attention having been drawn to
sec. 37
, deliberately refused to apply
his mind to it, or to consider it. The position, if the section means
what the applicant contends,
is that the magistrate either honestly
misinterpreted or completely overlooked it. In either event it would
not, I am afraid, be
the first occasion on which a court of law has
misread a statutory provision or overlooked one not brought to its
notice at the
trial. Whichever supposition were the correct one, the
result would be (still assuming the correctness of the applicant's
interpretation)
an unfortunate error of law which, but for the
special prohibition of the statute would afford good ground for an
appeal. But there
would be no gross irregularity in the proceedings,
and therefore no justification for a review.'
Application
of the legal principles to the facts
[29]
In essence, the dispute before the Arbitrator
concerned the question whether or not Mrs Erasmus was promoted and
appointed to the
rank of Brigadier. The Arbitrator considered this
dispute in the context of the REOP program, as he was required to do,
given the
material evidence and documents the parties placed before
him.
[30]
The defence raised by SAPS on review is not the
same as the defences it pleaded before the Arbitrator. Before the
Arbitrator,
SAPS denied that
Mrs Erasmus was evaluated in accordance with the Guidelines
applicable to the REOP Program. It also denied that
she was found to
be a suitable candidate to be promoted and appointed to the rank of
Brigadier or that she was in fact promoted
and appointed as such. It
contended that a recommendation was made that she be re-evaluated a
year later. On review, SAPS elected
to raise a completely different
defence. SAPS no longer challenges the evidence that Mrs Erasmus was
recommended to be promoted
and appointed to the rank of Brigadier in
terms of the REOP Program. SAPS now contends, in contradiction to its
defence during
the arbitration, that in terms of the SAPS Act only
the National Commissioner had the authority to promote and appoint
Mrs Erasmus
to the rank of Brigadier and he did not promote or
appoint her as such. SAPS contends further that the National
Commissioner did
not delegate his authority to anyone in the REOP
Program. Consequently, SAPS now denies that there was any valid
promotion or appointment
of Mr
Erasmus
to the rank of Brigadier.
[31]
SAPS, in its review
application, initially claimed that the aforegoing defence was
pleaded and therefore an issue properly before
the Arbitrator.
Mr Bruinders, counsel for SAPS
did
not pursue this line of argument, wisely so in my view, at the
hearing of this matter.
[32]
The
fundamental purpose of pleadings is to draw the proverbial battle
lines for the dispute between the parties. In other words,
to
identify definitely the nature and parameters of the issues in
dispute and to be determined. This is not only for the benefit
of the
parties but also the decision-maker.
[10]
[33]
The
following
dictum
in
Knox
D'Arcy AG and another v Land and Agricultural Development Bank of
SA
[11]
is directly applicable
in
casu
:
'It is trite that litigants must plead
material facts relied upon as a basis for the relief sought and
define the issues in their
pleadings to enable the parties to the
action to know what case they have to meet. And a party may not plead
one issue and then
at the trial, ... attempt to canvass another which
was not put in issue and fully investigated.'
[34]
Having regard to the
Arbitrator’s terms of reference contained in the arbitration
agreement, the Arbitrator was bound by the
pleadings. The defence set
out by SAPS in its reply to Mrs Erasmus’ statement of claim is
the case which she came to meet
at the arbitration. One does not have
to go far to appreciate that had Mrs Erasmus been made aware that she
will face a different
defence during the arbitration, she, being
represented by counsel during the arbitration, would have given due
consideration to
the facts and legal principles concerning the SAPS
Act, as well as the issue of SAPS denying delegation of the National
Commissioner’s
authority (perhaps even raise estoppel to the
aforesaid), especially given the fact that the REOP Program was a
unique process
with its own guidelines, policies and procedures. In
the circumstances, I am of the view that it is not now open for SAPS
to rely
on this defence, let alone dress up this defence as a
question of law in order to cross dress it as a gross irregularity
committed
by the Arbitrator. his should not be permitted.
[35]
SAPS
also argued that there was in any event a duty on the Arbitrator to
familiarise and equip himself with a full understanding
and
appreciation of the legal framework within which he had to determine
the dispute between the parties. For this argument, Mr
Bruiders
relied on
National
Commissioner of the SAPS and another v Cohen NO and others.
[12]
In
Cohen
,
the facts related to the arbitrator’s failure to take into
account new regulations in a promotion dispute concerning rank
translation entailing promotion of an employee and falling within the
scope of definition of “unfair labour practice. The
facts in
Cohen
are
distinguishable from the facts in this case. In
Cohen
the
interpretation and application of the regulations were the focal
point of the issues placed in dispute between the parties.
The
regulations were the legal framework raised by the parties and
consequently within which the arbitrator had to determine the
issues
placed in dispute between the parties. In the present matter, the
Arbitrator’s terms of reference were very specific.
Simply put,
consider and determine the issues raised in the pleadings. SAPS did
not, in its pleadings, raise non-compliance with
the SAPS Act or the
absence of a delegation of authority as its defence. Consequently,
the parties did not specifically require
the Arbitrator to consider
the SAPS Act as the legal framework within which to determine the
dispute. On the contrary, the framework
in which the Arbitrator was
called upon to determine the dispute, given the documentary and oral
evidence properly before him,
was the unique REOP Program with its
own guidelines, policies and procedures. It cannot reasonably be
expected of the Arbitrator
to mine through all legislation that might
possibly be applicable to the dispute. Or, more particularly, each
one of the many sections
in the SAPS Act and then unilaterally decide
which section or sections might possibly have an influence, either
way, on the dispute
between the parties, without his attention having
specifically been drawn thereto.
[36]
It
would not only have been grossly irregular had the Arbitrator
regarded himself unconstrained by the pleadings but also resulted
in
him exceeding his powers in terms of
section 33(1)(b)
of the
Arbitration Act.
[13
]
I
am of the considered view that in the circumstances of this case it
was not open for the Arbitrator to
mero
motu
raise
a defence not pleaded by SAPS. Had the Arbitrator done so, this might
have denied Mrs Erasmus a fair hearing in contrast to
the complaint
by SAPS in this review that the Arbitrator denied it a fair hearing.
[37]
It was open for SAPS during
the arbitration to apply for an amendment to its pleadings to include
the defence it now raises on review.
It elected not to do so.
[38]
SAPS
has also contended, as a basis for its review application, that it
raised the issue of the application of the SAPS Act and
delegation of
authority in the course of the arbitration through evidence, and as
such, the Arbitrator should have considered and
pronounced on this
issue in any event.
In
the absence of SAPS having pleaded non-compliance with the SAPS Act
and the lack of a delegation of authority as its defence,
it could
still have placed reliance on this defence, had this defence been
fully canvassed by both parties in the evidence before
the
Arbitrator.
[14]
Save
for a brief mention of the SAPS Act and the absence of a delegation
of authority by the National Commissioner,
SAPS
did not place sufficient evidence before the Arbitrator for me to
conclude
that
this defence was fully canvassed at the arbitration by both parties.
Once again, SAPS did not apply for an amendment of its
pleadings
during the arbitration to incorporate this defence.
[15]
[39]
In the result, I am not convinced that SAPS’
criticism directed at the Arbitrator’s finding that he does not
accept
the defence that the promotion had to be approved by the
National Commissioner because it was neither pleaded nor was he
directed
to any provision that states or implies that no REOP
promotion could occur without the National Commissioner’s
approval,
is justified, let alone a basis to sustain its grounds of
review and for this Court to conclude that the Arbitrator failed to
apply
his mind, committed a gross irregularity and exceeded his
powers.
Costs
[40]
The parties were
ad idem
that given the ongoing employment
relationship between them, each party should pay their own costs.
[41]
In the premises, I make the following order:
Order
1.
The application is dismissed.
2.
Each party to pay their own costs.
___________________
L
Malan
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate V Bruinders
Instructed
by:
The State Attorney.
For
the respondent:
Mr S Snyman of Snyman attorneys
[1]
Act 42 of 1965.
[2]
Act
68
of 1995
[3]
2008 (2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and
also at [2007] 12 BLLR 1097 (CC).
[4]
See:
Health
and
Other
Service Personnel Trade Union of SA and
others
v Member of the Executive Council for Health, Eastern Cape and
others
(2017) 38 ILJ 890 (LAC);
Democratic
Nursing Organisation of SA on behalf of Du Toit and
another
v Western Cape Department of Health and
others
(2016) 37 ILJ 1819 (LAC);
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction
Union and
others
(2016)
37 ILJ 2593 (LAC);
Head
of Department of Education v Mofokeng and others
(2015) 36 ILJ 2802 (LAC);
Gold
Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC);
Herholdt
v Nedbank Ltd
(2013)
34 ILJ 2795 (SCA);
Sidumo
and
Another
v Rustenburg Platinum Mines Ltd and
Others
2008 (2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and
also at [2007] 12 BLLR 1097 (CC).
[5]
2009 (4) SA 529
(CC).
[6]
(2002) 23 ILJ 358 (LAC).
[7]
NUM
obo Employees v Grogan NO and another
(2010)
31 ILJ 1618 (LAC) at 33
.
Also see
Volkswagen
SA (Pty) Ltd v Koorts NO
and
others
(2011)
32 ILJ 1892 (LAC);
Member
of the Executive Council: Department of Health (Eastern Cape) v Van
der Walt NO
and
another
(2011)
32 ILJ 944 (LC);
Clear
Channel Independent (Pty) Ltd v Savage NO
and
another
(2009)
30 ILJ 1593 (LC).
[8]
(2012) 33 ILJ 279 (LC) at para 8. See also the oft quoted
Goldfields
Investment Ltd and another v City Council of Johannesburg and
another
1938 TPD 551.
[9]
Commercial
Catering and Allied Workers Union and others v Pick ‘n Pay
Retailers (Pty) Ltd and others
(2012)
33 ILJ 279 (LC) at para 7. See also
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) at para 69 and pars 85 – 87;
Tao
Ying Metal Industry (Pty) Ltd v Pooe NO and others
2007 (5) SA 146
(SCA); (2007) 28 ILJ 1949 (SCA).
[10]
Prince
v President, Cape Law Society and others
[2000]
ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at para 22;
Albany
Bakeries Ltd v Van Wyk and others
(2005)
26 ILJ 2142 (LAC) at para 25;
Bafokeng
Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and others
(2015)
36 ILJ 3045 (LC);
Imprefed
(Pty) Ltd v National Transport Commission
(1993) 3 SA 94
(A) at 107;
[1993] 2 All SA 179
(A) at 188;
Rumanal
(Pty) Ltd v Hubner
1976
(1) SA 643
(E). See
Nieuwoudt
v Joubert
1988
(3) SA 84
(SE) at 90H-I where the court said that the ‘purpose
of pleadings is to define the issues, and to enable the other party
to know what case he has to meet’.
[11]
[2013] 3 All SA 404
(SCA) at para 35. See also
Smith
v Kit Kat Group (Pty) Ltd
(2017) 38 ILJ 483 (LC) at para 67;
Naidoo
v Minister of Police and others
[2015] 4 All SA 609
(SCA) at para 30;
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para 11.
[12]
[2009] 3 BLLR 239 (LC).
[13]
Lufuno
supra
at
[175].
[14]
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976
(1) SA 708
(A) at 714G;
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
(SCA) at para 12.
[15]
Imprefed
supra
at
191.