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 455
|
|
NUM obo Namane v Commission for Conciliation, Mediation and Arbitration and Others (JR1090/2015) [2017] ZALCJHB 455 (6 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1090/2015
In
the matter between
:
NUM
obo VINCENT LIPSON NAMANE
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
DONALD KGALAKE
NKADIMENG
N.O
Second Respondent
ANGLO
GOLD ASHANTI TAU TONA MINE
Third
Respondent
Heard:
26
October 2017
Delivered:
6 December 2017
Summary:
Rule 11 application - Explanation for the delay in prosecuting a
review application occasioned
by non-availability of records
reasonable and acceptable thus granted. Condonation application –
Explanation for late filing
of the records reasonable and accepted
occasioned by non-availability of records reasonable and acceptable
thus granted. Review
Application arbitration award reviewed and set
aside.
JUDGEMENT
NTSOANE,
AJ
Introduction:
[1]
There are a number of applications that came before me, which
applications gave rise to this judgment. The first application
pertains to the review application itself which I will determine
after having dealt with the second application brought in terms
of
Rule 11
[1]
seeking to dismiss
the very review application. The applicant then brought a condonation
application to explain the delay in filing
the records in terms of
Rule 7A(6)
[2]
. The third
respondent following its filing of the Rule 11 application did not
see it fit to oppose the review application.
[2]
The only application that was ripe for hearing was the opposed Rule
11 application thus it was the application before me on
20 July 2017,
perhaps the review application on unopposed basis however the latter
was not set down for hearing before me as indicated.
Only after I had
indicated that in view of the reasons and submissions made by the
applicant in support of its lateness to filing
the records, I was
inclined to dismiss the Rule 11 application, only then did the third
respondent seek an opportunity to oppose
the review application and
file its answering affidavit. The parties only came to agree on a
future date of 9 October 2017 for
review arguments after I had
indicated that the Rule 11 application will not be granted. The
review application also came before
me as agreed between the parties
and purely in an attempt to evade another long wait for the set down
of the matter.
Background
:
[3]
It is imperative to mention that the submissions for the condonation
for the late filing of the records cannot be separated
from the Rule
11 application itself as the submissions are exactly the same. I will
therefore determine these two applications
simultaneously.
[4]
It is further important to mention that the applicant’s
attorneys attached all these referred documents to the records,
condonation application as well as the Rule 11 answering affidavit.
The arbitration award which forms the basis for the applicant’s
review application is dated 2 June 2015. The applicant through its
attorneys brought a review application on 18 June 2015, which
is
within the prescribed time limit in terms of section 145(1) of the
Labour Relations Act
[3]
(LRA). The review
application became opposed on 22 June 2015. On the same day, 22
June 2015, the applicant received notice
in terms of Rule 7A(3) from
the first respondent discovering the record of the proceedings. On
closer perusal of the content of
such notice, all that the first
respondent had discovered was the documentary records and not the
electronic recording of the arbitration
proceedings.
[5]
The applicant’s attorneys addressed a letter to the first
respondent on 8 July 2015 to the effect that their Rule
7A(3)
notice did not contain the electronic records. The first respondent
responded the very following day on 9 July 2015
saying that it
could not locate the electronic records of the arbitration. What the
applicant’s attorneys did on 13
July 2015 was to dispatch
a letter to the first respondent requesting the hand written notes of
the second respondent. The third
respondent’s attorneys were
informed on the same day, 13 July 2015 about the dire situation
pertaining to the electronic
records.
[6]
On 22 July 2015, the third respondent then took it upon itself
to avail its own arbitration electronic records as it had
been
recording the entire arbitration. The applicant immediately
instructed its transcribers to transcribe the electronic recordings
furnished by the third respondent. The applicant filed the transcript
on 30 September 2015 however, the said transcript was incomplete
as
the evidence of the applicant’s witnesses was not part of the
recordings. The applicant’s attorneys received the
remainder of
the recording from the third respondent on 9 October 2015 and
the transcriber was instructed on 19 October 2015.
At this point,
only a period of just 4 months had elapsed but with so much having
been done by the applicant’s attorneys
and the third
respondent’s attorneys being a participant to all these steps.
[7]
The attorney (Ms Sethosa) who was at all times handling the matter
resigned from the applicant’s attorneys and a newly
admitted
attorney of the firm had to take over the matter. The transcribers
were called on 11 December 2015 in order to check
progress of
the transcript but the transcribers stated that they had already
closed their business for the December shut down holidays.
The
applicant’s attorneys also closed for December holidays on 15
December 2015 and re-opened on 13 January 2016.
Following their
re-opening of the firm, the applicant’s attorneys called the
transcribers on 18 January 2016 in order
to enquire on the
progress of the transcript and left a voice message for the
transcriber.
[8]
The applicant’s attorneys addressed an email to the
transcribers on 22 January 2016 enquiring on the progress of the
transcript. The transcriber was reminded again on 12 February 2016
and on 4 March 2016 an email was again sent to the transcribers
placing them on terms and requiring them to state if they are not in
a position to do the work. Only then did the transcriber,
on 7 March
2016, request another copy of the recording stating that the one in
his possession was not properly copied. The transcriber
was furnished
with another copy of the electronic recording on 8 March 2016
and on 29 April 2016 a transcript was ready
for filing.
[9]
What is then interesting is that at all times, the third respondent
had not filed the Rule 11 application but only sought to
do so on
20 May 2016 after they had received the Rule 7A(8) notice on 10 May
2016. It is further not clear why the Rule 11
application was filed
on 10 May 2016 but was in fact served on the applicant’s
attorneys on 20 May 2016 after it was
filed. Be that as it may,
in my opinion, it was unnecessary to even commence filing the Rule 11
application despite having received
the applicant’s Rule 7A(8)
notice. The filing of the Rule 7A(8) notice should have spurred the
third respondent to also file
its answering affidavit to the review
application but instead the third respondent believed in the Rule 11
application so much
that it did not see it fit to do so. The
applicant in the same token brought a condonation application to
explain its delay in
filing the records.
[10]
The submissions made in the applicant’s condonation application
for the late filing of the records, are repeated in the
Rule 11’s
answering affidavit or vice versa, I simultaneously find these
submissions reasonable and acceptable when considering
the sequence
of events. As indicated above, all these documents were attached and
I am thus satisfied that there is absolutely
nothing untoward that
the applicant has done to warrant dismissal of its review
application. The applicant has extensively explained
the unfortunate
circumstances it found itself in commencing hardly five days after
having filed the review application when the
first respondent filed a
discovery notice without the electronic records and have in fact
acted diligently at all times to ensure
progression of the review
application. It would thus be grossly unfair to find otherwise.
[11]
Mr Wissing in fact conceded that there is nothing amiss in the
chronology of events to warrant the granting of the Rule 11
application. I am also agreeable to this concession.
[12]
The general principles applicable to condonation applications were
set out in
the
case of
Melane
v Santam Insurance Co Ltd
[4]
where it was said
:
‘
In deciding whether sufficient
cause has been shown, the basic principle is that the Court has a
discretion, to be exercised judicially
upon a consideration of all
the facts, and in essence it is a matter of fairness to both sides.
Among the facts usually relevant
are the degree of lateness, the
explanation therefor, the prospects of success and the importance of
the case. Ordinarily these
facts are interrelated, they are not
individually decisive, save of course that if there are no prospects
of success there would
be no point in granting condonation.’
[13]
When considering a condonation application for the failure to
timeously and properly prosecute a review application, even if
the
review application was initially timeously brought, these factors
play an important role. The condonation and the Rule 11 applications
are interrelated, they are not individually decisive, save of course
that if there are good prospects of success in the Rule 11
application, there would be no point in granting condonation.
[14]
Having considered the submissions made by the applicant I am thus
inclined to dismiss the Rule 11 application. The explanation
was
provided and I consider the explanation evidently reasonable and
acceptable. It is on these bases that the Rule 11 application
must
fail.
Review
Application
Background
[15]
The applicant was employed by the third respondent in the design
department until he was dismissed for allegations of fraudulent
conducts relating to leave applications during the period July 2013
to September 2014.
[16]
Displeased by the dismissal, the applicant referred an unfair
dismissal dispute, alleging that he was unfairly dismissed.
Consequently, the matter was set down for arbitration which was held
and finalised on 28 May 2015. The determination of the
unfair
dismissal dispute then gave rise to the arbitration award which now
forms the basis for the review application that came
before me for
determination. The procedural aspect of the dismissal was not in
dispute therefore the second respondent was called
upon to determine
only the substantive fairness of the dismissal.
[17]
Dismissal was common cause therefore the applicant had the onus of
proving the fairness of the dismissal.
The
Commissioner’s award
[18]
The second respondent’s arbitration award was very brief, in
fact did not deal with the issues in my opinion. The second
respondent held that the third respondent relied on a change of the
procedures whereby employees were instructed to submit leave
forms
directly to payroll. He then held that the said evidence appears to
be supported by the third respondent’s witnesses.
The second
respondent was then concerned that not even a single original leave
form could be found after the investigation commenced.
In the event
that the applicant had submitted the leave forms as alleged then they
should have been located and the fact that they
could not be found
raised a question mark to the applicant’s version.
[19]
The second respondent further held that since the original leave
forms could not be located then this leads to a reasonable
conclusion
that the applicant failed to submit the original leave forms after
they had been approved by the HOD. It was then on
these bases that
the second respondent found charge 1 to be correctly levelled and
proved against the applicant. The charge thus
warranted a dismissal
sanction on the basis of the applicant’s senior and responsible
position.
[20]
The second respondent seems to be absolving the applicant as far as
the charge of gross negligence is concerned because the
applicant’s
explanation was reasonable when he had consulted the year planner and
Project Wise in order to calculate his
leave entitlement. This cannot
be construed as gross negligence, the second respondent held. The
second respondent found the dismissal
to be substantively fair.
Grounds
for Review
:
[21]
The applicant submitted the grounds of review as that the second
respondent committed a gross irregularity and/or misconduct
in the
following:
21.1 By
finding that the third respondent relied on its change of procedure
and that such appears to be supported
by evidence of its witness is
grossly irregular as none of the witnesses produced such proof;
21.2
Having accepted the evidence that Namane (the applicant) relied and
complied with the procedure he knew to
be in place, it was within his
duties to require proof that indeed such procedure was subsequently
changed;
21.3
The procedure relied upon by Namane was supported by an email that
was presented before the second respondent.
Therefore, in the absence
of a similar documentary proof to the change of procedure, Namane
cannot be said to have ignored and/or
breached any applicable
procedure;
21.4 It
is extremely disturbing that the second respondent, with the issues
before him, found that the sole issue
of concern was the fact that
the original leave forms could not be found;
21.5
Having noted that it was a mystery as to what had happened to the
original leave forms in question since
such were approved by the HOD,
the second respondent committed misconduct by putting the entire
blame for the missing original
leave forms entirely on Namane thereby
disregarding his evidence that he submitted the forms as per the
applicable procedure;
21.6 It
was common cause that when the scanned copies of the leave forms were
sought by Ms Madalyn van der Suy
such were forwarded to her by
Namane;
21.7
The second respondent failed to provide any reasonable explanation
for concluding that because the original
leave forms could not be
located then that meant Namane had not submitted same;
21.8 By
finding Namane not guilty on the second charge, the second respondent
ultimately exonerated Namane from
the first charge;
21.9 By
accepting an explanation on the second charge as reasonable, the
motive for defrauding the third respondent
fell away.
Test
for review
:
[22]
The grounds for review for arbitration awards are stipulated in
Section 145 of the Labour Relations Act
[5]
.
In the case of
Sidumo
and Another v Rustenburg Platinum Mines
[6]
the Constitutional
Court held that section 145 of the LRA is suffused by the
constitutional standard of “reasonableness”.
The
Constitutional Court in
Sidumo
subsequently confirmed that the standard of review is whether the
decision reached by the commissioner is one that a reasonable
decision maker could not reach. The Court in the case of
Shoprite
Checkers vs Ramdaw NO
[7]
held that public
power must be exercised rationally and therefore a decision made by a
public agency must be rationally related
to the purpose the decision
making power was given. In addition thereof
,
and in
CUSA
v Tao Ying Metal Industries and Others,
[8]
O'Regan J held:
‘
It is
clear…. that a commissioner is obliged to apply his or her
mind to the issues in a case. Commissioners who do not do
so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative justice.’
[23]
What
the Constitutional Court meant in
Sidumo
and
Tao
Ying Metal Industries
[9]
was
a review test based on a comparison by a review court of the totality
of the evidence that was before the arbitrator as well
as the issues
that the arbitrator was required to determine, to the outcome the
arbitrator arrived at, in order to ascertain if
the outcome the
arbitrator came to was reasonable. This review test was considered
and applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[10]
where the Court said the following:
‘
The
Constitutional Court has decided in
Sidumo
that the grounds of review set out in s 145 of the Act are suffused
by reasonableness because a CCMA arbitration award, as an
administrative action, is required by the Constitution to be lawful,
reasonable and procedurally fair. The court further held that
such an
award must be reasonable and if it is not reasonable, it can be
reviewed and set aside.’
[24]
As to what would be considered to be unreasonable, the Court in
Fidelity
Cash Management Service
held as follows:
[11]
‘
The
Constitutional Court further held that to determine whether a CCMA
commissioner's arbitration award is reasonable or unreasonable,
the
question that must be asked is whether or not the decision or finding
reached by the commissioner 'is one that a reasonable
decision maker
could not reach' (para 110 of the
Sidumo
case). If it is an award or decision that a reasonable decision maker
could not reach, then the decision or award of the CCMA is
unreasonable, and, therefore, reviewable and could be set aside. If
it is a decision that a reasonable decision maker could reach,
the
decision or award is reasonable and must stand. It is important to
bear in mind that the question is not whether the arbitration
award
or decision of the commissioner is one that a reasonable decision
maker
would
not reach but one that a reasonable decision maker
could
not reach….
[25]
The Court in
Fidelity
Cash Management Service
then went further and formulated this outcome based review test which
the Court considered the
Sidumo
review
test envisaged, where the Court said:
[12]
‘
It seems to
me that there can be no doubt now under
Sidumo
that the
reasonableness
or
otherwise of a commissioner's decision does not depend - at least not
solely - upon the reasons that the commissioner gives for
the
decision. In many cases the reasons which the commissioner gives for
his decision, finding or award will play a role in the
subsequent
assessment of whether or not such decision or finding is one that a
reasonable decision maker could or could not reach.
However, other
reasons upon which the commissioner did not rely to support his or
her decision or finding but which can render
the decision reasonable
or unreasonable can be taken into account. This would clearly be the
case where the commissioner gives
reasons A, B and C in his or her
award but, when one looks at the evidence and other material that was
legitimately before him
or her, one finds that there were reasons D,
E and F upon which he did not rely but could have relied which are
enough to sustain
the decision.
’
[26]
The Court in
Fidelity
Cash Management Service
then
concluded:
[13]
‘…
.
Whether or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively
with due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. There
is no reason why
an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of the
decision or finding or arbitration award.
’
[27]
What
the judgment of
Herholdt
v Nedbank Ltd and Another
[14]
means is simply that if the commissioner ignored material evidence,
and the review court in considering this material evidence
so ignored
together with the case as a whole, believes that the arbitration
award outcome cannot still be reasonably sustained
on any basis, then
the award would be reviewable. The Court again in this case
specifically considered the
Sidumo
test,
and concluded as follows:
[15]
‘
In summary
the position regarding the review of CCMA award is this: A review of
a CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.
’
[28] I am now, in view of
all these cases laying the test for review, inclined to intensively
conduct a review enquiry in order
for me to be in a better position
to determine if irregularity, which warrants the award to be set
aside, occurred. I will then
interrogate the evidence holistically
presented before the second respondent in order to establish if there
is an irregularity.
If, in conducting this enquiry, I find that there
is no irregularity in the first place, the matter is at an end, no
further determinations
need to be made, and the review must fail.
However, should I find that a material irregularity indeed exists,
then the second step
in the review test follows, which is a
determination as to whether if this irregularity did not exist, this
could reasonably lead
to a different outcome in the arbitration
proceedings. If I were to put it differently, could another
reasonable decision-maker,
in conducting the arbitration and arriving
at a determination, in the absence of the irregularity and
considering the evidence
and issues as a whole, still reasonably
arrive at the same outcome? In conducting this second step of the
review enquiry, the review
court needs not concern itself with the
reasons the arbitrator has given for the outcome he or she has
arrived at, because the
issue of the arbitrator’s own reasoning
was already considered in deciding whether an irregularity existed in
the first part
of the test.
Analysis of the
evidence
[29]
I have already indicated my concerns about the brevity of the second
respondent’s award which does not properly deal
with the
issues, if at all. The second respondent determined the substantive
fairness of the dismissal and found that the dismissal
was fair
especially on charge 1. In considering the
award
of the second respondent, it is clear that when determining the
evidence, all he does is to spit every other testimony by
the
applicant and mainly concentrated on the originality of the forms.
There is simply no consideration or any kind of analysis
as to what
testimony must be accepted, what must be rejected, and why. The
conduct of the second respondent in this respect
is comparable to
the
following
dictum
from the judgment in
Sasol
Mining
(
Pty
)
Ltd v
Ngqeleni NO and Others
[16]
,
where the Court said:
‘
Regrettably, the commissioner's
logic (or, more accurately, the lack of it) permeates many of the
awards that are the subject of
review proceedings in this court. Some
commissioners appear wholly incapable of dealing with disputes of
fact - their awards comprise
an often detailed summary of the
evidence, followed by an 'analysis' that is little more than a
truncated regurgitation of that
summary accompanied by a few
gratuitous remarks on the evidence, followed by a conclusion that
bears no logical or legal relationship
to what precedes it. What is
missing from these awards (the award under review in these
proceedings is one of them) are the essential
ingredients of an
assessment of the credibility of the witnesses, a consideration of
the inherent probability or improbability
of the version that is
proffered by the witnesses, and an assessment of the probabilities of
the irreconcilable versions before
the commissioner…
[30] The second
respondent’s reasoning is simply that because the
original
leave forms could not be found then the applicant was guilty as
charged and the dismissal was fair and upheld. I fail to comprehend
this reasoning for simple reasoning that will follow herein under. I
hereby wish to emphasise that the determination of the second
respondent was purely whether the leave forms were not the originals.
He confined his determination of the fairness of the dismissal
on the
original leave forms in that because they could not be located
therefore the applicant was guilty, misconstruing facts and
misplacing his reasoning in the process.
[31] I am not going to
deal with each and every ground of review raised by the applicant but
only those that will lead to a reasonable
conclusion to set aside the
award or dismiss the review application. I should admit that the
determination of the second respondent
is very strange indeed. This
is also one of the grounds for review raised by the applicant in its
founding papers and I find this
ground of review to be reasonable
thus should be upheld. The second respondent in his award found that
“
what concerns me about the applicant’s version is
that not a single original leave form could be found, after the
investigation
commenced. If applicant had submitted these leave
forms, then surely they should be located. The fact that they cannot
be found,
with respect, raise a question mark over applicant’s
version
”. Mr Molotsi representing the applicant argued that
and referred me to pages 58 and 59 of the disciplinary hearing
transcript
and it is apposite to quote Cindy Somers who testified at
the disciplinary hearing as follows:
‘
Comp
:
Please explain to the panel what prompted you to request leave forms
for Vincent.
Wit1
:
It was actually not for Vincent only, when I came back from leave I
had no leave forms, sick and any form of leave or documents.
Nothing
from the West Wits office. It is impossible that no one took off for
seven months. Everyone takes off at some point, whether
sick or
whatever. So I went to the pay point administrator Yvonne and asked
for leave history and asked how to pull data. Then
I looked into that
then I saw there was a problem. I then asked each person for their
copies.
…
.
Comp
:
If I am correct they send you copies
Wit1
:
Yes after I requested
Comp
:
so you can confirm that is all the copies you received through email
Wit1
:
yes’
[32] If this piece of
evidence is anything to go by then I am agreeable to the argument
made by Mr Molotsi that it is illogical
for the second respondent to
confine his reasoning only to original leave forms when their
originality was never an issue in the
first place. It is therefore my
finding that the second respondent has not considered the evidence
presented before him concerning
the actual issues. It is further my
determination that the originality of the forms should not have been
a determining factor whether
the applicant has indeed committed
misconduct or not. In fact, in terms of the evidence led, it is clear
that the leave forms were
requested from a number of employees after
it became apparent that the system did not balance as far as leaves
are concerned. It
is therefore unfair to limit his determination to
the applicant when the applicant was not the only employee who had
submitted
copies of the leave forms. The second respondent thus drew
an unreasonable inference and probability that any reasonable
decision
maker could have made and failed to properly apply the law.
The second respondent made an unreasonable finding that the dismissal
of the applicant was fair and dismissed his application. I am
inclined to interfere with this determination.
[33] One question that
comes to mind is whether it is even necessary to entertain other
grounds for review when I have already found
that the only reason
that the second respondent relied upon for finding against the
applicant was unreasonable. In my opinion it
is not necessary to deal
with every other ground for review as the one determined settles the
entire issue.
[34]
In applying the reasonable decision maker test there seem to be no
doubt that there is a need to interfere with the second
respondent’s
arbitration award in this matter. The second respondent has failed to
execute the judicial duties he conformed
to and failed to reach a
decision which could have been reached by a reasonable decision
maker, which decision is reasonable. The
analysis of the reasoning
and the conclusion reached in this matter indicates that the second
respondent did misconceive the task
that was before him and has
committed fundamental mistakes of law. Based on the considerations I
have set out above, I am inclined
to interfere with the second
respondent’s decision. Such award is certainly inconsistent
with the evidence and exercise of
his judicial discretion.
[36]
The applicant submitted that he does not wish to be reinstated to his
position and that the Labour Court has powers to make
an appropriate
remuneration order in the event that the award is reviewed and set
aside. I am agreeable to this notion. It has
been a long period that
has passed since the dismissal of the applicant therefore remitting
the matter back to the firs respondent
would not be an ideal
situation under the circumstances.
[37]
In the premises, I make the following order:
Order
1.
The arbitration award issued by the second respondent is hereby
reviewed and
set aside.
2.
The second respondent’s award is replaced with an order that
the dismissal
of the applicant was substantively unfair.
3.
The third respondent is ordered to pay the applicant compensation
equivalent
to six (6) months’ salary.
4.
There is no order as to costs.
_______________________
MM
Ntsoane
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr Molotsi
Instructed
by:
M. S. Molebaloa Attorneys
For
the Respondent:
Mr H. Wissing of Henk Wissing Inc.
[1]
Rule 11 of
the Labour Court Rules.
[2]
Rule 7A(6)
of the Labour Court Rules.
[3]
Act 66 of
1995 as amended.
[4]
1962 (4) SA
531
(A) at 532C-E.
[5]
No 66 of 1995.
[6]
[2007] 12
BLLR 1097 (CC).
[7]
[2001] BLLR
1011 (LAC).
[8]
(2008)
29
ILJ
2461
(CC)
at
para 134.
[9]
Supra.
[10]
(2008)
29 ILJ 964 (LAC) at para 96.
[11]
Id at para 97.
[12]
Id at para 102.
[13]
Id at para 103.
[14]
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA) per
Cachalia and Wallis JJA.
[15]
Id at para 25.
[16]
(2011) 32
ILJ 723 (LC)
.