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[2017] ZALCCT 24
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Gordon v JP Morgan Equities SA (Pty) and Others (C514/14) [2017] ZALCCT 24; [2018] 1 BLLR 39 (LC); (2018) 39 ILJ 393 (LC) (6 June 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 514/14
In
the matter between:
Deanne
GORDON
Applicant
and
J
P MORGAN EQUITIES SA (PTY) LTD
First respondent
Vicky
SMITH N.O.
CCMA
Second respondent
Third respondent
Heard
:
4-5 May 2017.
Delivered:
6 June 2017
SUMMARY:
Review – dismissal. Arbitrator
found dismissal substantively fair but procedurally unfair and
ordered no compensation. Four
grounds of review: Did commissioner
fall asleep? Was employee’s attorney prevented from adequately
cross-examining main employer
witness? Did commissioner ignore
material facts? And, should commissioner have ordered compensation
for procedural unfairness.
Three of the four grounds of review
dismissed. Applicant successful on merits. Award reviewed and set
aside. Dismissal unfair.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Ms Deanne Gordon, worked for the first respondent, J P
Morgan, as an equity strategist for
more than 20 years. She had a
clean disciplinary record. Her father fell ill, she resigned on 27
June 2013, and from 1 July to
30 September 2013 she was put on
“gardening leave”. She sent certain information to her
husband’s computer in
June 2013. J P Morgan says it was
confidential; she says it was public information. Ten days before she
was to leave JP Morgan’s
employ, she was disciplined and
dismissed.
[2]
She referred an unfair dismissal dispute to the CCMA. Conciliation
failed. The arbitrator, Ms Vicky Smith,
found that the dismissal was
substantively fair but procedurally unfair. She did not order any
compensation. The employee did not
seek reinstatement or compensation
for substantive unfairness. She merely wanted to clear her name.
[3]
The employee seeks to have the award reviewed and set aside. She has
raised four grounds of review. In essence,
she argues that she did
not get a fair hearing. And on the merits, she argues that the
arbitrator’s conclusion was unreasonable.
Background
facts
[4]
The employee emailed 36 spreadsheets and reports from JP Morgan to
her husband’s home email account.
The employer says that her
conduct was in violation of a global code of conduct which forbade
employees from taking proprietary
or confidential information from
their employer. The employee says that the equity reports were not
confidential but were freely
available to JP Morgan’s key local
competitors. And the Excel spreadsheets were available from a public
source on Bloomberg.
[5]
The employee was dismissed for misconduct on the basis that the
information belonged to JP Morgan and was
confidential.
Arbitration
award
[6]
The arbitrator found that the employee did commit misconduct and that
her dismissal was substantively fair.
She found that it was
procedurally unfair but did not award compensation.
Grounds
of review
[7]
The employee raises four grounds of review:
7.1
The Commissioner fell asleep during the arbitration, denying the
employee a fair hearing.
7.2
The employee’s attorney, Mr Haffegee, was prevented from
adequately cross-examining the
employer’s main witness, Mr
Kern.
7.3
The Commissioner ignored material facts sufficient to render the
award reviewable on the merits.
7.4
The Commissioner should have awarded compensation for procedural
unfairness.
Evaluation
[8]
The first
two review grounds are based on the contention that the employee did
not get a fair hearing. If the
audi
alteram partem
principle is violated, the employee was deprived of a fair hearing
and the reasonableness test in
Sidumo
[1]
does not come into play.
[2]
[9]
Should the employee be successful on either of the first two review
grounds, the dispute should be remitted
for a fresh hearing. If not,
the remainder of the award must be decided on the reasonableness
test.
Commissioner
falling asleep
[10]
The employee’s attorney says the Commissioner fell asleep
during a crucial part in the proceedings
when he was cross-examining
J P Morgan’s main witness, Mr Christian Kern. In her award, she
denies it and says that she “momentarily
lost concentration”.
[11]
Unfortunately the attitude of the attorneys for the respective
parties towards each other was fairly acrimonious
throughout the
proceedings, and culminated in them making various allegations and
counter allegations as to their respective conduct
in the affidavits
filed in these review proceedings. But fortunately Messrs
Ackermann
and
Fourie
agreed that it is not necessary for the court
to make any findings in this regard.
[12]
Mr Haffegee, who appeared for the employee in arbitration, states
that the Commissioner fell asleep during
the proceedings. In his
answering affidavit, Mr Gwaunza, for the employer, said: “Save
to deny the merits of the two review
grounds, the contents hereof are
admitted”. In the condonation application heard before these
proceedings commenced, I took
that as an admission from Mr Gwaunza
that the Commissioner did fall asleep, although he denied that that
merited the reviewing
and setting aside of the award. And at the
arbitration, when Mr Haffegee asked for the Commissioner’s
recusal, Mr Gwaunza
responded by arguing that “falling asleep
at what I think is a limited point of arbitration that has run for a
day and a
half [does not result] in such a reasonable apprehension of
bias such as to conclude there will not be impartiality in the
adjudication
of the matter.… That issue of a Commissioner
falling asleep, the facts establish that there are more possibly
grounds for
possible not for recusal [
sic
]… So in the
circumstances Commissioner the submissions are simply that given the
totality of facts the limited variance
[
sic
] of commissioner
having fallen asleep at a particular point during the proceedings,
existence of record and transcript…”
[13]
What Mr Gwaunza did not say -- and as Mr Haffegee pointed out in his
application for recusal – is that
the Commissioner did
not
fall asleep.
[14]
As Mr
Ackermann
pointed
out in his heads of argument, it has been held by this court in
Value
Logistics (Personnel) Services v Letsoalo
[3]
that
falling asleep at arbitration was a reviewable irregularity that made
the entire award reviewable.
[15]
Commissioner Smith filed an affidavit some two years after the review
application had been served on her,
and after Mr Gwaunza had written
to the Senior Convening Commissioner (after the condonation
application had been granted, and
without copying the employee’s
attorney in):
“
Our
client kindly requests that Senior Commissioner Smith deposes to an
affidavit addressing the allegation that she fell asleep
during the
arbitration in light of the findings in paragraph 28 of the judgment
and, in addition, in light of the findings in
Value Logistics
(Personnel Services) Ltd v Letsoalo
[2014] 10 BLLR 1018
(LC)
where the Court pointed out that an allegation that an arbitrator was
sleeping during the arbitration is serious, and would
normally
require a response from the arbitrator and bargaining council
concerned.
…
“
In
the review application, the applicant persists that Commissioner
Smith fell asleep. In due course, once the record has been
supplemented and/or reconstructed, our client intends filing an
affidavit in which the allegation will be denied.”
[16]
In her award, the Commissioner said that she had momentarily lost
concentration. In her ruling on the recusal
application, she said
that her eyes were closed but she was listening. In the affidavit,
she says that she had eyes closed and
was concentrating. Both in her
award and in her affidavit she says that there was no prejudice to
the employee because she “could
have listened” to the
recordings. What she does not say, is that she did listen to the
recordings.
[17]
Having
regard to the transcript and the affidavits, it appears to me on a
balance of probabilities that the Commissioner did fall
asleep. Even
though the rule in
Plascon-Evans
[4]
applies, the Court must sometimes take a robust approach, as Mr
Ackermann
submitted
with reference to
Mahala
v Mkombonini
[5]
:
“
That
approach [in
Plascon-Evans
] is possibly not entirely
satisfactory for a matter such as the present. As was pointed out in
Trollip v Du Plessis en ‘n Ander
2002 (2) SA 242
(W) at
245 E-F, a more robust approach is sometimes required, and the court
should then ground the order if it is satisfied that
there is
sufficient clarity regarding the issues to be resolved for the court
to make the order prayed for.”
[18]
And, in
Dhladhla
v Erasmus
[6]
the court said:
“
if,
on the papers before the court, the probabilities overwhelmingly
favour a specific factual finding, the court should take a
robust
approach and make that finding. The same applies when the denial by a
respondent of the fact alleged by the applicant is
insufficient to
give rise to a real, genuine and bona fides dispute of fact. This
approach should, however, be followed with some
circumspection.”
[19]
In
Wightman
[7]
the court noted:
“
A
real, genuine and bona fides dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the facts
it to be disputed.”
[20]
In this case, the employer and the Commissioner have not, in their
affidavits, “seriously and unambiguously”
taken issue
with the allegation by the employee and her attorney that the
Commissioner fell asleep. As Mr
Ackermann
pointed out, the
Commissioner’s version is contradictory and that of the
employer is contradictory and ambiguous. In his
answering affidavit
in the condonation application and in his response to the recusal
application the employer’s attorney
did not deny the factual
allegation that the Commissioner had fallen asleep; in the answering
affidavit in this application, he
says that he “did not see
her” falling asleep. And the Commissioner says that she had her
eyes closed.
[21]
On the probabilities, and taking a robust approach, it seems clear to
me that the Commissioner did fall asleep.
But that is not the end of
the enquiry. If she only momentarily lost concentration, the employee
may not have been prejudiced.
[22]
Unlike
Value
Logistics
,
where the arbitrator “appeared drowsy and at times fell fast
asleep during the course of the arbitration proceedings”
the
Commissioner in this case appears to have nodded off on a single
occasion. Apart from
Value
Logistics
there
is – perhaps happily – little case law on this issue in
our law. Mr
Fourie
cited
an obiter remark by the SCA
[8]
where the following was said:
“
Although
it is not necessary to decide the matter it is interesting to note
briefly how the problem has been dealt with in other
jurisdictions.
In
(1997) 71
Australian Law Journal
745
, a case note was
published which said that the English Court of Appeal had held that
when a judge fell asleep, it was the duty
of counsel to wake him or
her up, not just to note an appeal point for later. The same result
was reached in
Queensland in Stathooles v Mt Isa Mines Ltd
[1997]
2 Qd R 106
at 113. See (2001) 75
Australian Law Journal
at
4-5.”
[23]
In this case, Mr Haffegee asked the Commissioner to recuse herself
after she had fallen asleep. She refused.
Clearly, she had woken up
and it was not necessary for him to do so.
[24]
It does not appear from the record that Commissioner Smith had nodded
off for more than a few seconds or
perhaps minutes of evidence. As Mr
Fourie
pointed out in his oral argument, a comparison of the
Commissioner’s handwritten notes and the transcript of evidence
indicate
that she probably missed two lines or so of the recorded
evidence. And despite Mr Ackermann’s “frog in boiling
water”
analogy, I do not think this momentary lapse deprived
the employee of a fair hearing.
[25]
This incident is not, in my view, sufficient to have the entire award
reviewed and set aside.
Cross-examination
of Kern
[26]
Mr Haffegee
did not complete his cross-examination of one of the employer’s
key witnesses, Mr Kern. As this court explained
in its ruling in the
condonation application
[9]
, this
arose from an odd set of circumstances. Mr Haffegee had started
cross-examining Mr Kern on 12 February 2014. The arbitration
was
postponed to 13 March. On that day, neither Mr Kern nor Mr Gwaunza
was initially available. JP Morgan was represented by a
junior
attorney from the same firm, Edward Nathan Sonnenbergs. The CCMA
refused another postponement. Mr Gwaunza flew from Johannesburg
to
Cape Town. In the meantime, the Commissioner instructed Mr Haffegee
to commence with the employee’s case, despite him
not having
completed his cross-examination of Kern. He led the evidence of Ms
Gordon in chief; and when Mr Gwaunza arrived, he
cross-examined her
until 20:00. The matter was then postponed to continue for another
three days in April 2014. It was set down
on short notice and was
again postponed to two days in May 2014. Mr Gwaunza completed Ms
Gordon’s cross-examination and both
parties closed their
respective cases and made arrangements to file written argument.
Kern’s cross-examination was never
completed.
[27]
As this
court pointed out in the ruling on condonation, if Mr Haffegee’s
cross-examination of Mr Kern was curtailed by the
commissioner, the
applicant may well have been deprived of a fair hearing. For example,
in
Lippert
v CCMA
[10]
Rabkin-Naicker J pointed out that the commissioner having interrupted
the employee’s cross-examination of a witness
deprived him of a
fair trial of the issues. A similar point was made in
Ngwathe
Local Municipality v SALGBC
[11]
:
“
By
disallowing the employer’s witness to complete his evidence in
chief and also disallowing cross- and re-examination, the
arbitrator
infringed on the employer's right to natural justice and specifically
the employer’s right to have its case fully
and fairly
determined. In the words of the LAC, the process that the arbitrator
employed did not give the employer ‘a full
opportunity to have
their say in respect of the dispute’.
The
right of a party to give and adduce evidence is regarded as a
fundamental right to a fair trial. This right cannot be dispensed
with lightly. It is true that this right is not absolute but it can
only be departed from in exceptional circumstances.”
[28]
Mr
Ackermann
also referred to
Dairybelle
[12]
,
where the court reviewed an award because the Commissioner had
pressurised one of the parties into completing its case by applying
undue and unfair pressure. He submitted that, in this case, the
Commissioner had pressurised Mr Haffegee to commence with the
employees case, despite vigorous protest, without having finished his
cross-examination of Kern, and stated that the case had to
finish
“today”.
[29]
It is so that even the employer concedes that the events of 13 March
2014 took “absurd and bizarre
twists”, were “dramatic
and farcical” and that the Commissioner had “clearly lost
control of the process”.
It was unusual and inadvisable of the
Commissioner to instruct Mr Haffegee to start leading Ms Gordon’s
evidence before he
had concluded his cross-examination of Kern. But
was he in fact prevented from completing the cross-examination of
Kern? I think
not.
[30]
Kern was
present when the arbitration continued in May (and in April, when it
was postponed). In May, Mr Gwaunza completed his cross-examination
of
Ms Gordon. Then both parties closed their cases and made arrangements
to file written heads of argument. What is glaringly absent
is any
indication from the employee’s representative that he still
needed to complete his cross-examination of Mr Kern. In
those
circumstances, the Commissioner cannot be blamed for the fact that
Kern’s cross-examination had not been completed.
She did not
refuse; the employee’s representative did not ask. Neither did
he remind her that he still needed to complete
the cross-examination
of Kern. This is despite the fact that an arbitrator – perhaps
even more so than a court of law –
has a discretion to allow a
witness to be recalled for further examination or
cross-examination.
[13]
[31]
This ground of review must fail.
The
merits: equity reports and spreadsheets
[32]
JP Morgan dismissed the employee on the basis that the documents she
sent out were confidential. Mr Kern
deposed to a comprehensive
“confirmatory affidavit” comprising some 200 pages in
which he elaborated at great length
on his evidence at arbitration.
The employee has asked for this affidavit to be struck out in its
entirety.
Striking
out
[33]
Kern’s “confirmatory affidavit” was filed on 24
November 2016, more than a month after
J P Morgan had delivered its
answering affidavit and on the day that the employee’s attorney
deposed to a replying affidavit.
Kern attaches reams of Excel
spreadsheets that did not serve before the arbitrator. He attempts to
lead new evidence, presenting
“a detailed explanation of the
concept of spreadsheets and, in particular, how it is that the
spreadsheets can… embody
significant confidential information,
such as the financial models”. And he goes so far as to
“reserve the first respondent’s
rights to undertake such
an exercise, at any stage, should it be considered necessary or
advisable”.
[34]
This is an
extraordinary step. An additional affidavit will only be allowed in
exceptional circumstances, and the applicant in this
case objected to
Kern’s unilaterally doing so. As this Court held in
Bafokeng
Rasimone Platinum Mine (Pty) Ltd v CCMA
[14]
:
“
Review
applications by their nature give the applicant party ample time to
consider the merits of its case before filing a supplementary
affidavit. No reasons were advanced why the matters raised in the
additional affidavit could not have been raised in the supplementary
affidavit. The fact that an applicant subjects the record to more
careful scrutiny after pleadings have closed and discovers a
further
point it could have raised previously but did not, does not amount
exceptional circumstances justifying the reopening of
the pleadings.…
Insofar as the admission of additional affidavit is a matter of
fairness to both parties, there is nothing
fair about allowing a
party to add to its case in the absence of a very satisfactory
explanation for the earlier omission.”
[35]
The same holds true for a respondent. JP Morgan had ample opportunity
to respond to the applicant’s
founding affidavit. It does not
set out any exceptional circumstances why Kern should be allowed to
file a further affidavit, moreso
where he attempts to place evidence
before this court that was not before the arbitrator.
[36]
Mr Kern’s “confirmatory affidavit” is struck out in
its entirety.
The
equity reports
[37]
The employee was dismissed on the basis that the information she sent
out, including the equity research
reports (in pdf form), were
confidential. The arbitrator found that they were. But Kern himself
admitted that they were not. He
went so far as to “set the
record straight” in this regard, as appears from the
transcript:
“
Mr
Haffegee: know your evidence was that only qualified clients of JP
Morgan who are subscribers of Bloomberg can have access to
the
reports.
Christian
Kern: I just want to mention.
Mr
Haffegee: You set the record straight. So what is in your affidavit
is no longer an accurate reflection of the reality?
Christian
Kern: I learnt things last night pointed out by your bundle.
Mr
Haffegee: yes.
Christian
Kern: which we referred to earlier this morning, which triggered
further investigation from my side which put the record
right this
morning.
[38]
In his evidence in chief, Kern made a distinction between publicly
available documents and those that are
proprietary to JP Morgan. But
under cross examination, he “set the record straight”.
[39]
The arbitrator also took into account that the employee sent two
files from Alexander Forbes to herself and
that she “could not
in did not explain why she has them.” Yet Kern concedes in his
evidence in chief that there is
“no harm with that. That is a
publicly available document.”
[40]
Kern was surprised to learn that key competitors had access to these
reports:
“
However
our key global competitors do not and I was surprised and that is
what I learned last night that SBG as a local competitor
has access
to our research.”
[41]
The reference to SBG is to Standard Bank Global Securities. These
concessions put pay to the one crucial
leg of JP Morgan’s
decision to dismiss the employee, and of the arbitrator’s award
that the dismissal was fair, i.e.
that the reports were confidential.
They were not. The arbitrator’s finding to the contrary could
not be based on the evidence
before her. And her consequential
finding that the dismissal was fair is so unreasonable that no other
arbitrator could have reached
the same conclusion.
The
Excel spreadsheets
[42]
The employee’s case with regard to the Excel spreadsheets –
essentially financial models -- rest
on three legs:
42.1
The data for spreadsheets were available from a public source, and
the spreadsheets did not contain complicated
formulas that were
proprietary to JP Morgan.
42.2
The employee had no access to live links necessary to use the
spreadsheets.
42.3
The demonstration by Mr Kern at the arbitration hard to use the
spreadsheets was irrelevant – he was using
different Excel
spreadsheets, and not the ones that the employee sent to her husband.
[43]
The data from the spreadsheets was taken from public sources such as
Bloomberg. Yet the Commissioner found
that it was proprietary to JP
Morgan. There is no indication in the award that the Commissioner had
regard to the evidence that
it was taken from public sources. Nor is
there any indication in the award that she had regard to the
employee’s evidence
that there was nothing about the formulas
that was proprietary; and that they were in fact “bog
standard”, taught at
university, or could be obtained from
Google.
[44]
It is common cause that one needed a live link to activate the Excel
spreadsheets. Without this they were
useless. Gordon never had access
to live links. Her evidence that “none of the links to the
formula have ever been available
to me” was not disputed. When
she explained that one had to have XLink, which she didn’t
have, under cross examination,
Mr Gwaunza responded: “Okay,
accepted.” And it is common cause that she never opened either
the reports or the spreadsheets.
It was therefore entirely
unreasonable for the Commissioner to have come to the conclusion that
it is more probable that, as the
spreadsheets have live links and are
“interactive”, they “would be very useful for an
experienced analyst such
as the applicant who is changing jobs in the
same field”.
[45]
At the arbitration, Kern used Excel spreadsheets to demonstrate how
they work. However, the ones he used
were not the same ones that the
employee had sent to herself or to her husband. They were examples.
The onus was on JP Morgan to
prove that the spreadsheets that the
employee sent out were proprietary and capable of exploitation by
her. It could not do so
by using different spreadsheets. Having
regard to this evidence, the Commissioner could not reasonably have
come to the conclusion
that she did.
Procedural
unfairness and compensation
[46]
The Commissioner found that the employee’s dismissal was
procedurally unfair. Despite this she did
not award compensation.
[Inexplicably, she now says in her affidavit that she did award
compensation for procedural unfairness].
[47]
The employee says that she deserves compensation. The Commissioner
did not take into account that the disciplinary
hearing proceeded
despite the fact that the employee informed the employer of the
public availability of the documents in question.
They did not bother
to verify this. And she was not granted her right to be represented
by a colleague of her choice.
[48]
The difficulty with this argument is, firstly, that Ms Gordon stated
at arbitration that she did not seek
any compensation. She does so
now for the first time. The Commissioner cannot be faulted for not
awarding compensation when the
employee did not ask for any in the
first place. In fact, Mr Haffegee stated that upfront at the
beginning of the arbitration:
“
Madam
Commissioner, what we do wish to put on record is that our proposal
for the resolution of this dispute and why I want to place
it on
record is because at the end of these proceedings are will ask that
this be taken into account in your considering costs.
We will and we
have held before, we will retain that this case is one of a classic
example of both being frivolous and vexatious.
What we seek and we
are putting on record as a resolution would be either the
reinstatement of the employee or a retraction of
the dismissal. So we
do not seek any monetary gain from them, we do not seek any monetary
compensation. We are talking about a
period of less than a week or
so, 10 days.”
[49]
Secondly,
an arbitrator has a broad discretion whether to grant any
compensation, and if so, for what amount. The court will not
readily
interfere in that discretion, especially not on review. That much has
been stated by this court, by the SCA
[15]
and recently by the Constitutional Court:
[16]
““
To
compensate or not to compensate, and, if compensation is to be
awarded, for what period, is a function of the judicious exercise
of
the discretionary power that an arbitrator or the court has in terms
of section 194(1) of the LRA.”
Conclusion
[50]
The award is not reviewable on the first two review grounds, i.e.
that the employee was deprived of a fair
hearing; or on the fourth
ground, i.e. her refusal to award any compensation for procedural
unfairness.
[51]
On the merits concerning the substantive fairness of the dismissal,
though, the arbitrator reached a conclusion
that no reasonable
arbitrator could reach on the evidence before her. The documentation
that the employee sent out was simply not
confidential nor
proprietary to JP Morgan. The dismissal was unfair.
[52]
In
Gold
Fields
[17]
the LAC refined the
Sidumo
[18]
test by introducing a two-stage enquiry. In short, this requires the
Labour Court to consider two issues: The first is whether
the
applicant has established an irregularity. This irregularity could be
a material error of fact or law, the failure to apply
one’s
mind to relevant evidence, or misconceiving of the enquiry or
assessing factual disputes in an arbitrary fashion. The
second is
whether the applicant has established that the irregularity is
material to the outcome by demonstrating that the outcome
would have
been different having regard to the evidence before the arbitrator.
An arbitration award will, therefore, be considered
to be reasonable
when there is a material connection between the evidence and the
result.
[53]
In this
case, the arbitrator did not apply her mind to relevant evidence
concerning the confidentiality and proprietary nature of
the records
and spreadsheets. That failure was material to the outcome. Had she
considered the evidence properly, she could not
have found that the
dismissal was fair. As the LAC recently stated in
SAB
v Hansen
[19]
:
“But for these irregularities, the Commissioner would have
arrived at a different conclusion.”
[54]
On this basis, the award must be reviewed and set aside. The
dismissal was substantively unfair.
Costs
[55]
I take into consideration that the employee was successful on three
of the four grounds of review raised. She did not ask for
any
compensation for the substantive unfairness of her dismissal and will
receive none. In law and fairness, though, she should
be entitled to
the costs of this application.
Order
[56]
I therefore make the following order:
56.1
The confirmatory affidavit of Christian Kern is struck out in its
entirety.
56.2
The arbitration award of the second respondent, Ms Vicky Smith, is
reviewed and set aside. It is replaced with
a finding that the
dismissal of the employee, Ms Deanne Gordon, was substantively and
procedurally unfair. The employee is not
awarded any compensation.
56.3
The first respondent, JP Morgan, is ordered to pay the costs of the
review application, including the costs related
to the application to
strike out and to Kern’s affidavit.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Lourens W Ackermann
Instructed
by
Haffegee Roskam Savage.
FIRST
RESPONDENT: Greg A Fourie
Instructed
by
Edward Nathan Sonnenbergs.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC).
[2]
Portnet
v Finimore
[1999]
2 BLLR 151
(LC) [per Landman J].
[3]
[2014]
10 BLLR 1018 (LC).
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 620
at 634 H-I.
[5]
2006
(5) SA 524
(SE) at 528 par 9.
[6]
1999
(1) SA 1065
(LCC) par 13.
[7]
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) par 13.
[8]
Sager
v Smith
2001
(3) SA 1004
(SCA) par 19.
[9]
Gordon
v J P Morgan Equities (Pty) Ltd
[2016]
ZALCCT 11.
[10]
[2014] ZALCCT 42 para [16].
[11]
[2015] ZALCJHB 55 paras [19] – [20] (footnote omitted).
[12]
Dairybelle
(Pty) Ltd v CCMA
[1999]
10 BLLR 1033
(LC) par 15.
[13]
Hladhla
v President Insurance Co Ltd
1965
(1) SA 615
(A);
Johannesburg
Metropolitan Council v Ngobeni
[2012]
ZASCA 55
at par 37.
[14]
(2015)
36
ILJ
3045
(LC) par 4.
[15]
Cf
Kemp
t/a Centralmed v Rawlins
(2009)
30
ILJ
2677
(LAC);
Rawlins
v Kemp t/a Centralmed
(2010)
31
ILJ
2325
(SCA).
[16]
SARS v
CCMA
[2016] ZACC 38
at para 50.
[17]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
[2014]
1 BLLR 20 (LAC).
[18]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC).
[19]
South
African Breweries (Pty) Ltd v Hansen
[2017]
ZALAC 29
(25 May 2017).