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[2018] ZALCJHB 433
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Sasol Chemical Operations (Pty) Ltd v CCMA and Others (J2680/16) [2018] ZALCJHB 433; [2019] 1 BLLR 91 (LC); (2019) 40 ILJ 436 (LC) (29 August 2018)
Reportable
Of interest to other
judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 2680/16
In
the matter between:
SASOL
CHEMICAL OPERATIONS (PTY)
LTD Appellant
and
CCMA First
Respondent
COMMISSIONER
SOLLY MASHEGO N.O. Second
Respondent
CEPPWAWU
OBO
TUMELO
MOKOENA Third
Respondent
Heard:
2 August 2018
Delivered
:
29 August 2018
Summary:
Appeal –
unfair discrimination – Employment Equity Act ss 6(1), 6(4),
10(8) and 11 – Labour Court Rule 9. Alleged
unfair
discrimination on grounds of race. Employee not discharging
evidentiary burden to link difference in remuneration to race.
Appeal
upheld.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an
appeal from an arbitration award of the CCMA
[1]
that the applicant, Sasol, had unfairly discriminated against its
employee, Mr Tumelo Mokoena
[2]
,
on the grounds of race.
[2]
The employee initially referred a dispute to the National Bargaining
Council for the Chemical Industry in which he described
his dispute
as follows:
“
The worker was
appointed for Grade 1 in the contract of employment or appointment
but the company paid him the remuneration of Grade
2.”
[3]
The dispute
was transferred to the the CCMA. Conciliation having failed, the
employee, assisted by his trade union, requested arbitration
in terms
of s 186 (2)(a) of the Labour Relations Act.
[3]
He described the dispute as follows:
“
The worker was
given the contract of employment but when he get the salary was lower
than of what he has signed for in the contract
of employment.”
He
described the decision he would like the commissioner to make as
follows:
“
We want the
correction of remuneration to be line of what the contract is giving
him as Grade 1 salary not Grade 2 salary.”
[4]
The
employee made no mention of discrimination based on race or any other
ground. Yet the arbitrator
[4]
considered it to be a dispute about equal pay for work of equal value
-- apparently in terms of s 6(4) of the Employment Equity
Act
[5]
-- culminating in a claim of unfair discrimination based on race. He
found that Sasol had unfairly discriminated against the employee
and
ordered it to pay him compensation and to adjust his salary “to
be the same as that of his white colleague”. Sasol
appeals
against that award in terms of Rule 9 of this Court’s rules.
Background
facts
[5]
Sasol advertised a post for a logistics operator. It employed the
employee, Mr Mokoena, and a Mr Sarel de Lange at the same
time.
Mokoena is black and De Lange is white. Both were employed from
outside. They were both appointed in a position as “process
controller” but De Lange was appointed at a higher salary.
Sasol’s witnesses explained at the arbitration that De Lange
had more experience relevant to the position and that he was
therefore employed at a higher salary within the same salary band.
Mokoena referred a dispute to the CCMA as described above, without
mentioning De Lange or either employee’s race.
The
award
[6]
The Commissioner started off his analysis of the evidence and
arguments before him as follows:
“
Two male
employees, one white and the other black, commenced employment at the
same time but they were earning different salary
amounts. The black
earning about R 2721, 00 below his white counterpart. This disparity,
according to the applicant, is a conclusive
proof proving that there
is some differentiation between himself and his white counterpart. I
am convinced that the applicant has
shown that he has been
discriminated and the discrimination is based on race.”
[7]
The arbitrator found that the two employees perform the same duties.
He further found:
“
It is also not a
justifiable reason to discriminate on the basis that the applicant
was recruited from a labour broker as compared
to his white colleague
who was coming from Arcelor Mittal which is not a labour broker. I
find this ground to be totally unacceptable
and encroaching in
people’s dignity, the people I referred to those persons
employed by labour brokers.”
[8]
The arbitrator accepted that Mokoena had three years of experience
whereas De Lange had 7 to 8 years of experience. However,
he found
that there was no justification for the differentiation in salary
between the two. He then concludes:
“
In the absence of
justified reason for paying the white employee far above the black
applicant, I therefore come to the conclusion
that the conduct
complained of amounts to unfair discrimination and the applicant was
able to show that he is unfairly discriminated
on the ground of race.
There is no rationality on paying the white employee a salary which
is above the applicant’s salary.”
[9]
Finally, the arbitrator made the following award:
“
1. The applicant
is unfairly discriminated against.
2. The respondent (Sasol
Chemical Operations (Pty) Ltd) is ordered to adjust the applicant’s
salary to be the same as that
of his white colleague.
3. The respondent is
further ordered to pay the applicant (Tumelo Mokoena) compensation
being the equivalent of the difference between
his salary and that of
his white colleague which is what he would have received from the 1st
August 2014 to date of this award.
4. The CCMA is directed
to set down the matter for the calculation of the precise amount of
compensation awarded in paragraph 3
above.”
Evaluation / Analysis
[10]
The appeal in terms of s 10(8) of the EEA rests on two grounds:
10.1 Mr
Itkin
argued
that the employee failed to discharge the evidentiary burden in
section 11 of the EEA of establishing a
prima facie
case of
discrimination based on race so as to trigger an onus on Sasol’s
part to establish a defence in terms of the section.
10.2 The second ground of
appeal relates to the Commissioner’s interventionist approach
in the arbitration which, Mr
Itkin
argued, was not even-handed
and gave rise to a reasonable apprehension of bias.
[11]
I will deal with each ground in turn.
The
employee’s evidentiary burden in the test for unfair
discrimination
[12]
Section 6 of the EEA provides:
“
Prohibition of
unfair discrimination
(1) No person may
unfairly discriminate, directly or indirectly, against an employee,
in any employment policy or practice, on one
or more grounds,
including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour,
sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth, or
on any other arbitrary ground.
...
(4) a difference in terms
and conditions of employment between employees of the same employer
performing the same or substantially
the same work or work of equal
value that is directly or indirectly based on any one or more of the
grounds listed in subsection
(1), is unfair discrimination.”
[13]
Section 11 then deals with the burden of proof:
(1) If unfair
discrimination is alleged on a ground listed in section 6(1), the
employer against whom the allegation is made must
prove, on a balance
of probabilities, that such discrimination –
(a) did not take place as
alleged; or
(b) is rational and not
unfair, or is otherwise justifiable.”
[14]
Mr
Itkin
submitted that a key question in this appeal is
whether a bare contention by an employee that he has been racially
discriminated
against – without more – is sufficient to
constitute an allegation of racial discrimination as contemplated in
section
11 and thus trigger the employer’s onus to establish a
defence in terms of subsections (a) or (b), or whether there is an
evidentiary burden on the employee to at least put up a
prima
facie
case of discrimination.
[15]
He referred
in this regard to the commentary on s 11 of the EEA in
Labour
Law through the Cases
:
[6]
“
No definitive
meaning has thus far been given to the words ‘alleged’
and ‘allegation’, used to describe
the evidentiary burden
placed on the applicant in bringing a claim of unfair discrimination.
An unsupported allegation of unfair
discrimination clearly cannot
succeed. Even if the burden of proving fairness rest on the employer,
it has been held that an employee
should provide sufficient evidence
in support of her/his claim ‘to cast doubt on’ the
employer’s explanation
or ‘to show that there is a more
likely reason than that of the employer”.
[16]
This summary is consistent with the jurisprudence both before and
after the amendment of section 11 which took effect in August
2014.
[17]
In
Janda
v First National Bank
[7]
-- a case dealing with an alleged automatically unfair dismissal in
terms of s 187(1)(f) of the LRA
[8]
– the court held:
‘
As stated earlier,
there is a single issue with the burden on the employer. This
essential point is obscured if one speaks of “the
employee must
prove” or a “shifting” of the onus or a duty “to
establish a
prima facie
case that the reason for the dismissal
was an automatically unfair one” (For example Dupper et al
Essential Employment Discrimination Law
at page 130). The
evidentiary burden placed upon an employee creates the need for there
to be sufficient evidence to cast doubt
on the reason for the
dismissal put forward by the employer or, to put it differently, to
show that there is a more likely reason
than that of the employer. A
failure to present such evidence creates the risk of the employee
losing his or her case. The essential
question however remains, after
the court has heard all the evidence, whether the employer upon whom
the onus rests of proving
the issue, has discharged it. (
Zeffertt
(supra)
at page 132 to 134.)”
[18]
And in
Kroukam
v SA Airlink (Pty) Ltd
[9]
Davis
JA held:
“
In my view,
section 187 imposes an evidential burden upon the employee to produce
evidence which is sufficient to raise a credible
possibility that an
automatically unfair dismissal has taken place. It then behoves the
employer to prove to the contrary, that
is to produce evidence to
show that the reason for the dismissal did not fall within the
circumstance envisaged in s 187 for constituting
an automatically
unfair dismissal.”
[19]
More
recently, after the amendment of s 11, the court held in
Sethole
& others v Dr Kenneth Kaunda District Municipality
:
[10]
“
I then expressed
my concerns to Mr Vuza about the fact that the discrimination case of
the applicants was not properly pleaded or
identified, despite the
supplementary pre-trial. I enquired from Mr Vuza if he could indicate
to me what exactly the unlisted arbitrary
ground was that the
applicants would rely on in establishing their claim, especially in
the context of the judgment in
Harksen
v Lane NO and Others
[11]
.
I was informed by Mr Vuza that he could not provide me with a
definitive answer, but that the ground relied on would become
‘apparent’
during evidence. As unsatisfactory as such a
mystery ground of discrimination may be to the proper conducting of a
discrimination
case, I nonetheless allowed Mr Vuza to continue to
lead the evidence of his first witness so as to establish where all
of this
could possibly be going.
One of the applicants,
Mirriam Sethole (‘Sethole’) was then called to testify. I
will deal fully with her evidence later
in this judgment. Suffice it
to say, after Sethole had been cross examined and concluded her
evidence, it was still not apparent
to me what the unlisted arbitrary
ground was that the applicants were relying upon. In short, the
mystery ground of discrimination
did not come to the fore in the
evidence. I pointed out to Mr Vuza that I remained concerned that
even after the conclusion of
the testimony of Sethole, the
applicants, even on a prima facie basis, had made out no case of
discrimination. I then adjourned
the proceedings to 26 June 2017, so
as to afford the applicants an opportunity to consider their options
and whether they in fact
should proceed with the case.”
…
“
[15] In terms of
the
dictum
in
Gordon
Lloyd
referred
to above, I thus need to consider if the applicants have produced
sufficient evidence to at least, on their own case, reasonably
establish the
prima
facie
existence
of discrimination on an unlisted arbitrary ground. Therefore,
considering the case as pleaded and the evidence of the
two witnesses
for the applicants together with the documentary evidence, did the
applicants do enough to even substantiate the
claim in the absence of
anything presented by the respondent? In
Motaung
v Wits University (School of Education)
[12]
the
Court said the following in this respect:
‘
In view of the
nature of the applicant's claim, it has to be established whether the
applicant has adduced sufficient evidence supporting
the facts
required to back up her claim, and upon which this court might give
judgment against the respondent. …’
…
“
[25] …
[E]ven if Section 11 of the EEA after its amendment is considered,
there is a clear distinction, where it comes to
the issue of who
bears the onus, between a case of discrimination based on one of the
listed grounds in Section 6(1) of the EEA,
and a case based on any
other unlisted arbitrary ground. In the case of a claim of
discrimination based on a listed ground, an
allegation of such kind
of discrimination by a complainant suffices, and the onus is then on
the respondent party to prove it does
not exist. But in the case of a
discrimination claim based on any other unlisted arbitrary ground,
the onus is on the complainant
to prove that discrimination based on
that ground exists. Considering that the applicants’ claim is
squarely based on such
an unlisted arbitrary ground, they would in
any event bear the onus to prove the existence of discrimination, in
terms of Section
11(2) of the EEA, as it stands after amendment.”
[20]
In the case
before me, the allegation of discrimination is based on a listed
ground, i.e. race. But is a mere allegation enough?
I think not. It
seems to me that the position in terms of the amended section 11 must
be that set out by the learned authors in
Labour
Relations Law: A Comprehensive Guide
:
[13]
“
Section 11(1),
like its predecessor, states that the respondent employer must
disprove the unfair discrimination ‘alleged’
by an
employee in order to avoid liability. The term ‘alleged’
has not been consistently interpreted by the courts.
It must be
presumed to mean something less than making out a
prima facie
case, as would be required in the ordinary course with the burden
of proof is not reversed. However, the weight of authority indicates
that it means more than an unsupported contention or mere accusation.
At the very least, as in the case of automatically unfair
dismissal,
it is suggested that the employee must produce ‘sufficient
evidence to cast doubt on the reason’ put forward
by the
employer for its action; that is to say, If the employee succeeds in
discharging this evidential burden, ‘[i]t then
behoves the
employer to prove the contrary’.”
[21]
In this case, though, the arbitrator started off on the wrong
premise. Right at the start of the arbitration, while explaining
the
process to the parties, he addressed the employee as follows:
“
Sir, what will
happen is you will have to start and tell us that you have been
discriminated, once you told us you have been discriminated
the
employer will have to justify… [Indistinct] justified as
discrimination there is no discrimination or there is
discrimination.”
[22]
The arbitrator thus proceeded from the premise that a mere allegation
was enough. This presumption permeated the rest of his
reasoning. He
failed to have regard to the fact that the employee did not, in his
evidence, establish any link between the difference
in pay and his
race.
[23]
Right at the start of Mokoena’s evidence in chief, without his
representative having asked any questions, the Commissioner
asked
him:
“
Ja, you can tell
us why you feel that you have been discriminated, why you say it is
job of equal value but you are not paid the
same salary as the other
one?”
Mokoena
replied:
“
As I stated
earlier that I was employed in 2012 together with Mr Sarel de Lange.
So on the day in question we were working on rail
loading. We did the
same job. I was employed as a process controlling [
sic
] grade
1 as Mr De Lange was also appointed as a processor controller grade
1. When we got employed when I saw my contract I saw
that it stated
that I would be earning 8000 Rand and there was a difference been my
contract and Mr de Lange. Mr de Lange’s
contract was going to
earn more than what I was going to earn.”
[24]
Mokoena did not ascribe the differentiation to race. Throughout his
testimony, he complained about the difference in salary,
but did not
describe it to race. He proved differentiation, but not
discrimination. It is only when the commissioner prompted him
to
bring race into the picture, that he did so:
“
Commissioner: so
it is based on race?
Mr Mokoena: Yes.
Commissioner: Mr de Lange
is white, he is a white male?
Mr Mokoena: He is a white
male.”
[25]
Under cross-examination, Sasol’s representative [Ms Lebasa]
tried to elicit from Mokoena the reason for his allegation
of
discrimination. He failed to mention race.
“
Ms Lebasa: So now
if you do not know what his terms of employment are, how do you know
that you are being discriminated against
because now if you are
having to contracts sitting here, same one and the same thing and
then maybe we could talk something but
you do not know what his
contract is saying.
Mr Mokoena: The first
thing I will say is we are doing the same job but the money is
different. And we were employed the same time
for the same position
different salary that is the reason I referred the matter. All I want
from the company is to prove to me
why is the same person that is
doing the same job as me same grade and same appointment date and why
is he earning more than myself.
…
Ms Lebasa: You did not…
[Indistinct] because he is white? Mr Mokoena: Because he is white?
Ms Lebasa: Yes.
Mr Mokoena: no, I never
said that.”
[26]
After Ms Lebasa had explained to the employee at length that the
reason for the differentiation was de Lange’s experience,
he
did not complain about discrimination based on race. Again, though,
the Commissioner placed his own gloss on the evidence and
pre-empted
the outcome:
“
Commissioner: Let
me just cut short things to simplify for the parties. Look there is
discrimination in this, the applicant is saying
that the
discrimination is unfair.
…
Now we have already
established that there is discrimination at the discrimination is
based on race.
…
Because the two persons
have been employed at the same time doing the same work, then the
employer has to justify as to why it says
that the discrimination is
not unfair.”
[27]
Even after that intervention by the Commissioner, Mokoena did not
allege that he was discriminated against based on race, nor
did it
provide evidence of any necklace between his and De Lange’s
race and the difference in pay. The high water mark of
his complaint
was the following:
“
I feel I was
discriminated because Sasol has hired me for the very same position
and if the first look at my CV they should not
take me at all that is
why I feel I was discriminated.”
[28]
Even during re-examination, the employee’s representative, Mr
Seloane, failed to elicit an allegation of discrimination
based on
race from Mr Mokoena:
“
Mr Seloane: Now
the question is why when they are supposed to pay you you start
differently?
Mr Mokoena: I do not know
why they paid me differently that is why I’m saying there is
discrimination myself and Sarel.”
[29]
The
employee simply failed to present ‘evidence which is sufficient
to raise a credible possibility’ that unfair discrimination
based on race had taken place. The Commissioner’s finding to
the contrary is based on the wrong premise and is not connected
to
the evidence before him. It cannot stand on appeal. His conduct was
akin to that of the Commissioner in
Bester
[14]
,
where the Constitutional Court found that the LAC (and thus the
Commissioner his finding was upheld by the LAC) had misdirected
itself by upholding a case not advanced by the employee. The
Constitutional Court set the award aside. It commented:
‘
The Labour Appeal
Court unfortunately misdirected itself by finding in favour of Mr
Bester, on the basis of an unarticulated defence
not supported by the
evidence. It was never Mr Bester’s defence that he used the
words “swart man” as a descriptor
or that he did not mean
to “demean” any person. He denied using the words and
conceded that if he had done so, it could
be a dismissible offence.
There was no evidence in the record justifying a finding for Mr
Bester on the basis that the Labour Appeal
Court did.
In applying the test,
namely, whether a reasonable, objective and informed person would, on
the correct facts perceive it to be
racist or derogatory, the Labour
Appeal Court made a fundamental error, like the commissioner, as it
failed to identify the correct
facts and relied on evidence that had
not been placed before it. The Labour Appeal Court erred by relying
on a defence which was
not raised by Mr Bester.’
[30]
Similarly, in this case, the Commissioner based his conclusion on an
unarticulated complaint. It cannot be sustained and must
be
overturned on appeal.
The
Commissioner’s interventionist approach: a reasonable
apprehension of bias?
[31]
Despite the fact that the employee was represented by a trade union
representative, the Commissioner took over his evidence
in chief and
led him throughout, in the process articulating his complaint and
putting words in his mouth. As Mr
Itkin
pointed out in his
argument, the Commissioner did not do the same with Sasol’s
witnesses.
[32]
Even though
an arbitration process is conducted with less formality than a trial
in a court of law, the Commissioner has strayed
beyond the boundaries
articulated by the SCA in
Take
and Save Trading:
[15]
“
The question is
whether the trial judge’s questioning of [the litigant] strayed
outside of these guidelines at all and if
so, could reasonably create
the appearance, not at some passing stage in the course of the trial
but in making and overall assessment,
that his approach to the
defence evidence was not objective and impartial.”
[33]
The conduct
of the Commissioner is open to the same criticism levelled by the LAC
against Commissioner Bella Goldman in
Satani:
[16]
“
It is accepted
that commissioners are not expected to merely sit back and allow the
parties to present their cases and not guide
them to the real issues
that are to be determined. There will be instances where intervention
on the part of the commissioner would
be necessary, whether an
adversarial or inquisitorial has been adopted. However, commissioners
must guard against an intervention
that is likely to suggest bias or
a perception of bias in favour of a particular party to the dispute.
He/she must refrain
from
assisting a party to the detriment of the other
,
cross-examining witnesses by inter alia, challenging the consistency
of a witness, expressing doubt about the credibility and
reliability
of a witness;
putting
leading questions to witnesses
;
answering questions for witnesses; showing disrespect to the parties’
representatives; not allowing representatives to present
their cases
without undue interference; doubting the capacity of a party’s
chosen representative to represent a party and
appearing to be an
expert who knows everything and evincing a mind not open to
persuasion. The list is not exhaustive.”
[34]
It also
harks back to the comments by Lagrange J in
Raswiswi
[17]
‘
This line of
questioning directed by the commissioner continues in the same vein,
with the applicant's union representative scarcely
getting a word in.
Apart from the fact that the applicant's representative had only
asked one question before the arbitrator launched
into his own line
of cross- examination, it is clear that the character of his
questions to the applicant was very different to
the character of the
questions he asked the company witnesses. The entire thrust of his
questioning was not aimed at elucidating
or clarifying the
applicant's defence, but at challenging it. Moreover, the
arbitrator's questions to the applicant did not follow
naturally from
an incomplete line of cross-examination initiated by the employer:
the arbitrator took the initiative by directly
attacking the
applicant's defence, while he was still giving evidence in chief.’
[35]
And in
Innovation
Maven (Pty) Ltd
[18]
the
following observation was made by Van Niekerk J:
‘
In the present
instance, in my view, and after a careful perusal of the record, the
commissioner’s conduct was such that she
overstepped the mark.
It is difficult to convey the magnitude of the extent to which the
commissioner actively engaged in the proceedings,
but read as a
whole, the transcribed record reflects that the commissioner failed
to respect the roles of the parties’ respective
representatives
and assumed to herself the role of leading evidence and conducting
cross-examination.’
[36]
The same considerations apply in this case. The Commissioner
prejudged the issue and led the employee to bolster that premise,
putting words in his mouth and creating a perception of bias in the
sense of an adjudicator that had already formed a view on the
merits.
That is a further reason why the award must be set aside on appeal.
Conclusion
[37]
The appeal must succeed on both of the grounds set out above.
[38]
The Court has had the full transcript of proceedings before it. On
the evidence, the employee has not passed the hurdle in
s 11(1) of
the EEA to discharge the evidential burden relating to discrimination
on the ground of race. The award must be set aside
and replaced with
an award that Sasol did not unfairly discriminate against Mr Mokoena.
[39]
With regard to costs, I take into account that there is an ongoing
relationship between CEPPWAWU (the nominal third respondent)
and
Sasol, and that Mr Mokoena is also still employed by Sasol. And Mr
Mokoena had an award in his favour that he and is trade
union had to
defend, not unreasonably. In law and fairness, I do not consider a
costs award to be appropriate.
Order
[40]
I therefore make the following order:
40.1 The appeal is
upheld.
40.2 The unfair
discrimination dispute that the employee, Mr Mokoena, referred to the
CCMA under case no CHEM 587-14/15 is dismissed.
40.3 The award of 17
November 2016 is replaced with one that the employer, Sasol Chemical
Operations (Pty) Ltd, did not unfairly
discriminate against the
employee, Mr Tumelo Mokoena.
40.4 There is no order as
to costs.
____________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Riaz Itkin
Instructed
by Johanette Theeder Inc.
THIRD
RESPONDENT Yanga Ndamase of Majang Inc.
[1]
The Commission for Conciliation, Mediation and Arbitration (the
first respondent).
[2]
The third respondent, represented by his trade union, CEPPWAWU.
[3]
Act 66 of 1995 (LRA).
[4]
Mr Solly Mashego, the second respondent.
[5]
Act 55 of 1998 (EEA).
[6]
Du Toit et al, Labour Law through the Cases (LexisNexis, Issue 21,
2018) at EEA-37 s.v. “alleged” (footnotes excluded).
[7]
[2006] 12 BLLR 1156
(LC) par [18].
[8]
Labour Relations Act 66 of 1995
.
[9]
[2005] 12 BLLR 1172
(LAC) par [28].
[10]
[2018] 1 BLLR 74
(LC) paras [8] – [9] and [15].
[11]
1998 (1) SA 300 (CC).
[12]
(2014) 35 ILJ 1329 (LC) at para 13.
[13]
Du Toit et al, Labour Relations Law: A Comprehensive Guide (6ed
2015) at 696 (footnotes omitted). (Published after the amendment
to
s 11).
[14]
Rustenburg Platinum Mine v SAEWA obo Bester and Others (2018) 39 ILJ
1503 (CC);
2018 (8) BCLR 951
(CC);
[2018] 8 BLLR 735
(CC) par [46] –
[47].
[15]
Take and Save Trading cc & Ors v Standard bank of SA Ltd
2004
(4) SA 1
(SCA), citing S v Rall
1982 (1) SA 828
(A) with approval.
[16]
Satani v Department of Education, Western Cape and Others (2016) 37
ILJ 2298 (LAC) par [17] (my underlining).
[17]
Raswiswi v CCMA and Others (2011) 32 ILJ 2186 (LC) par [18], cited
with approval in Satani.
[18]
(2016) 37 ILJ 465 (LC) par [17].