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[2018] ZALCJHB 301
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South African Revenue Services v Du Toit and Others (JR2079/2016) [2018] ZALCJHB 301 (27 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR2079/2016
In the matter between:
SOUTH
AFRICAN REVENUE
SERVICES
Applicant
and
JACOBUS
DU
TOIT
First
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
JOHAN
D STAPELBERG
N.O
Third
Respondent
Heard:
13 June 2018
Delivered:
27 September 2018
Summary:
Review application. Reinstatement inappropriate. Compensation
awarded.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
on 18 August 2016 wherein the Third Respondent (the arbitrator)
found
the First Respondent’s dismissal substantively unfair and
ordered his reinstatement.
[2]
The First
Respondent (the Respondent) opposed the review application.
Background
facts
[3]
The
Applicant employed the Respondent for a period of 19 years and his
last position was that of ‘Specialist Auditor’.
The
Respondent was charged with misconduct relating to assault and
fighting whilst on duty. The Respondent was dismissed on 2 February
2016 after he was found guilty of assaulting a co-worker, Casper
Visser (Visser) on 8 October 2015.
[4]
The
Respondent subsequently referred an unfair dismissal dispute to the
Second Respondent the Commission for Conciliation, Mediation
and
Arbitration (CCMA) and the dispute was arbitrated on 11 July 2016 and
1 August 2016.
The
evidence adduced:
[5]
The issue
to be decided by the arbitrator was whether the Respondent’s
dismissal was substantively fair as procedural fairness
was not in
dispute.
[6]
It is
evident from the transcribed record that the Respondent conceded that
a physical altercation took place and that he also conceded
the
extent of the altercation, but that his case was that his conduct was
justified in the form of self-defence. A sanction of
dismissal would
be justified and fair, but in this instance the fairness of the
sanction of dismissal was challenged in view of
the fact that the
Respondent acted in self-defence.
[7]
It appears
that the incident was sparked by a question from Mr Visser as to what
the Respondent wanted from Mr Visser’s wife’s
Facebook
account and what he was doing on her Facebook page. Mr Visser uttered
threats to beat up the Respondent. It was common
cause that following
the threats made by Mr Visser, the Respondent hit him in the face and
he bled as a result of this. A supervisor
intervened and separated
them. Whilst there was still an exchange of words shortly afterwards,
the situation subsequently became
diffused.
[8]
It was also
common cause that Mr Visser’s cheekbone below his right eye was
cut in the altercation and he received stiches
for that injury.
[9]
The
arbitrator identified that the question essentially was whether the
incident of 8 October 2015 amounted to an assault or whether
it was
self-defence.
[10]
Ms Mosoma,
a security officer employed by Protea Coin and stationed at the
Applicant’s premises, testified that she was seated
in such a
position that she was able to observe the Respondent and Mr Visser on
8 October 2015 and she saw that the Respondent
had hit Mr Visser with
a fist on his cheek whilst they were standing next to each other. The
Respondent used his left hand and
swung it to the side and hit Mr
Visser on the right cheekbone. Mr Visser carried two cups of tea and
a flask and he tried to block
the Respondent with it. She testified
that Mr Visser did not hit the Respondent. Ms Mosoma called her
supervisor, Joe, and told
him that people are fighting. Joe came to
the scene and he separated them and stood between them. The
Respondent tried to hit Mr
Visser again. In cross-examination, many
questions were posed to Ms Mosoma in respect of where the altercation
took place.
[11]
Ms Steinman
testified that on 8 October 2015 at around 07:10 she was sitting
outside in the smoking area and playing a game on her
cellular phone.
Mr Visser came out and all of a sudden he slammed the coffee flask on
the table next to her and he uttered swear
words. She did not look up
but got a fright and after she finished the game she was playing, she
stood up and as she stood up,
the Respondent came down the stairs
from the first floor. Mr Visser pointed at the Respondent and he
uttered the same swear words
towards the Respondent. Ms Steinman
testified that she stood up and walked very fast to leave the smoking
area and to go inside.
As she swiped her card to go inside, the
Respondent was approaching and he walked towards her. They were
almost next to each other
when he turned around and she heard Mr
Visser from behind her asking the Respondent what he was doing on his
wife’s Facebook
page. She just walked on and took the lift to
go up. In cross-examination Ms Steinman explained that from what Mr
Visser said,
she understood that he wanted to fight with or assault
the Respondent and when she saw the Respondent coming down the
stairs, she
wanted to take him away by telling him to go upstairs
with her. When she met the Respondent on her way into the building,
she did
not tell him about what might happen and that he should go
upstairs as there was no time to do so. Ms Steinman testified that
she
did not hear Mr Visser slapping the Respondent on his back.
[12]
Mr
Mhlengane testified that on 8 October 2015 he was called by his
colleagues because there was a fight between employees. He ran
immediately to the ground floor where he found Mr Visser and the
Respondent next to the lift speaking softly. He saw that there
was
some sort of an argument between them and that Mr Visser was bleeding
and was holding a flask and two cups. He explained that
he was
standing between the two and that the Respondent tried to come behind
him to move closer to Mr Visser and he had to separate
them. Mr
Mhlengane asked Mr Visser what was going on and Mr Visser answered
that nothing happened, notwithstanding the fact that
his face was
bleeding. After that, the Respondent went up the stairs and Mr Visser
got into the lift. Mr Mhlengane thereafter reported
the incident to
his manager, Ms Natasha van Niekerk.
[13]
The
Applicant’s last witness was Ms Andrew, a Senior Manager:
Audit. She was the manager of the section where the Respondent
was
employed as a Specialist Auditor. She testified that on 8 October
2015 just after 08:00 the Respondent came to her office and
he was
totally shaken up and indicated the need to tell her what had just
happened. She testified that the Respondent was emotional
and
explained to her that he was in a fight with Mr Visser and it
happened when he went downstairs to meet another person and Mr
Visser
screamed at him and uttered swearing words. The Respondent said that
he felt a push from behind and he felt threatened and
he reacted by
turning around and he punched Mr Visser. The Respondent explained
that Mr Visser asked about him being on his wife’s
Facebook
page and the Respondent explained that he did not even know Mr
Visser’s wife and he had to defend himself by punching
Mr
Visser.
[14]
Ms Andrew
testified that the feedback she received after the disciplinary
hearing was that at the hearing, it was denied that there
was a fight
and that the Respondent’s version was that Mr Visser fell and
that the Respondent helped him up, but that there
was no fight.
[15]
Ms Andrew
was referred to the outcome of the disciplinary hearing where the
‘employee’s version’ was captured
as follows:
“
Casper Visser and Kobus du Toit
alleged that Casper Visser uttered swear words to Kobus du Toit from
the smoking area and also inside
the office building. The two
employees confronted each other inside the office building. Casper
Visser was damaged from a motor
bike accident on that day, Casper
Visser’s knee gave in and that Casper hit himself with the two
mugs that he was carrying
in his hand when he was falling or about to
fall and that Kobus du Toit grabbed Casper Visser to pull him up from
falling. The
employees submitted that they were not involved in a
physical fight and that Kobus never hit Casper with a fist. The
employee’s
further submitted that Casper Visser never
intimidated Kobus du Toit.”
[16]
Ms Andrew
was asked to comment on the two versions presented. On the one hand
the Respondent told her that he was involved in a
fight and on the
other hand the version that there was no fight, but rather assistance
given to Mr Visser so that he did not fall.
Ms Andrew responded by
stating that the events the Respondent reported to her after the
incident, were the true version and he
never informed her that he
assisted Mr Visser when he fell down. Ms Andrew found the two
versions disturbing as the Respondent
is a senior SARS official and
integrity is extremely important. She found it disappointing that
another version of the events was
presented at the disciplinary
hearing.
[17]
The
Respondent did not tell the truth, which is in direct conflict with
the SARS code of conduct and the integrity that is required
of its
employees. The Respondent was not truthful, his integrity is
questionable and it seriously compromised the trust relationship.
Ms
Andrew explained that where an employee cannot be truthful and
trustworthy and where integrity is not intact, it would be very
difficult to have such an employee in the department.
[18]
In
cross-examination, Ms Andrew testified that she believed the
Respondent’s version as he conveyed it to her on the day of
the
incident, but she expected him to be truthful and keep to his version
and to show remorse. If he had done that, she could have
supported
him, but in a case where he changed his version to something
different, she was disappointed and the trust relationship
had been
compromised. Ms Andrew explained that she expected the Respondent to
tell the truth and to show remorse for the way he
reacted as he is a
senior official and had to show maturity in dealing with matters in a
way that is acceptable in workplace standards.
[19]
It was put
to Ms Andrew that in the disciplinary hearing, the Respondent and Mr
Visser were represented by a PSA representative
and they were
informed that as the employer did not have video footage of the
incident and had no witnesses who could testify as
to what
transpired, they tried to keep their jobs by saying that there was no
incident and by not adducing any testimony in the
disciplinary
hearing. Ms Andrew explained that the disciplinary hearing is part of
the process where facts could be listened to
and a determination
could be made.
[20]
The
Respondent testified that on 8 October 2015 at about 07:15 he was
walking down the stairs towards the lobby when he saw Ms Steinman
in
the smoking area and he wanted to greet her. As he was walking toward
the door of the smoking area, she stood up and came through
the door
and he greeted her and said that he would walk with her towards the
lift. He turned around to walk to the lift and as
they were about to
walk, he heard swearing behind him and felt a push from behind and he
reacted. He saw Mr Visser stumble towards
the window and he collided
with the window and his spectacles fell. Mr Visser went on his knees
to pick them up and when he stood
up, he tried to hit the Respondent
with the flask he was carrying. They approached the lift and at the
time had a discussion about
Mr Visser’s allegations that the
Respondent was on his wife’s Facebook page. Mr Mhlengane came
to the scene and he
asked Mr Visser what was going on and Mr Visser
responded by saying that nothing had happened and Mr Mhlengane asked
him as to
why he was bleeding. The Respondent testified that he told
Mr Mhlengane that they had an altercation and at that point Mr Visser
made further threats towards him and Mr Mhlengane took him to the
other side and pushed him away from the Respondent. The Respondent
walked closer to Mr Visser and said that he should execute his threat
there and then. Mr Mhlengane then separated them and told
them that
they are grown-ups and that they should stop this behaviour. The
Respondent went up the stairs looking for his supervisor
but could
not find him, where after he reported the incident to Ms Andrew. Ms
Andrew told him to calm down as the employer would
investigate the
incident.
[21]
In respect
of the disciplinary enquiry, the Respondent testified that he was
represented by Mr Herman Ras (Ras), a PSA representative,
and he told
Mr Ras his version of events. On the morning of the disciplinary
hearing Mr Ras told him that it was an assault case
and that the onus
of proof was on the employer. Mr Ras said that the employer has not
reported the matter to the police, did not
provide medical evidence
and that there was nothing on the video footage. Mr Ras said that the
Respondent has the right to remain
silent and that he would not
testify. The Respondent’s version is that he told Mr Ras that
he wanted to testify, but Mr Ras
indicated that he would damage his
own case as the onus was on the employer and the employer had no
video footage that showed the
incident. At the commencement of the
disciplinary hearing, Mr Ras made a statement and on advice of the
PSA, the Respondent remained
silent.
[22]
In respect
of Ms Andrew’s testimony, the Respondent stated that he is not
a dishonest person because he made a full disclosure
to her shortly
after the incident and if he had a disciplinary hearing, separate
from Mr Visser, he would have testified what he
testified in the
arbitration and he would have called Ms Andrew as his witness. He
testified that the fact that the two cases (his
and Mr Visser’s)
were heard together, changed everything.
[23]
The
Respondent explained his understanding of self-defence and testified
that in this instance it was not really an issue of self-defence,
but
rather a case of impulsive reaction.
[24]
On his
version the trust relationship is not broken for the reason that the
employer has not called any taxpayer or any other person
to testify
that there was havoc in the lobby. This testimony is indicative of
the fact that the Respondent did not grasp the reasons
why the
Applicant stated that the trust relationship was compromised. It was
not because of the events in the lobby, but because
of what
transpired in the subsequent disciplinary hearing.
[25]
In
cross-examination, the Respondent confirmed that he elected Mr Ras to
act on his behalf and that he gave him a mandate to represent
him at
the disciplinary hearing. He testified that he trusted Mr Ras with
his life and accepted that he would act in good faith.
He later
realised that Mr Ras did not act in his best interest.
[26]
The
Respondent conceded that he accepted the advice not to testify and
that he did not dispute or counter an untrue version that
was put on
his behalf. He conceded that he had a choice to tell his side of the
story, but elected to remain silent and accept
the false version that
was put forward. He testified that he acted on good advice when he
remained silent.
[27]
The
Respondent testified that if he had known the law at that point, he
would have represented himself. He was confronted with the
proposition that he did not need to know the law to tell the
chairperson of a disciplinary hearing his version of events and only
now that the outcome did not favour him, he wanted to change his
version. The Respondent explained that when he told his version
to
his employer, they did not believe him, when he went to the
prosecutor, he was told that there is only one sanction for assault
and that is dismissal and the employer wanted to get rid of him,
regardless and at no point has the Applicant indicated that if
he had
come forward and testified honestly, he would be forgiven. The
Respondent said that everyone would remain silent knowing
the
Applicant’s agenda and he kept quiet at the disciplinary
hearing to protect himself against the said agenda.
The
arbitrator’s findings
[28]
The
arbitrator found the Respondent’s dismissal substantively
unfair. He found that the only witness to the incident of the
assault, Ms Mosoma, presented a version that was not supported by the
video footage or the evidence of Mr Mhlengane. The arbitrator
found
Ms Mosoma to be an incredible witness who tried to portray the
Respondent as an aggressor who kept trying to punch Mr Visser.
[29]
The
arbitrator found the Respondent to be a more credible witness whose
testimony about the primary incident and the further interactions
at
the lift was not in conflict with the video footage or the evidence
of Mr Mhlengane. He found that Ms Steinman’s evidence
corroborated the Respondent’s version that he had his back
turned to Mr Visser when Mr Visser swore at him. The arbitrator
accepted the Respondent’s version of events and accepted that
the Respondent’s reaction during the incident on 8 October
2015
was an instinctive response to being attacked and that he did not go
beyond defending himself.
[30]
The
arbitrator recorded that the incident where Mr Visser pushed the
Respondent and where he responded in self-defence happened
so quickly
that no one had actually seen what had happened. The Respondent’s
actions in the incident could not be said to
have prejudiced the
Applicant’s or the Respondent’s image in any manner. The
arbitrator found that the Respondent acted
in self-defence and that
he did not commit any misconduct, did not breach any rule relating to
assault and therefore dismissal
was not an appropriate sanction.
[31]
In respect
of the trust relationship, the arbitrator found that the Applicant’s
claim of a breach in the trust relationship,
is misplaced and he
could find no reason not to re-instate the Respondent
retrospectively.
The
grounds for review
[32]
It is trite
that a party who seeks to review an arbitration award is bound by the
grounds for review contained in the review application,
subject to
one qualification namely that the Court is obliged to deal with a
point of law apparent from the papers
[1]
.
[33]
In
Northam
Platinum Ltd v Fganyago NO and Others
[2]
it was held that:
'In my view, the
law is very clear that a ground for review raised for the first time
in argument cannot be sustained. The basic
principle is that a
litigant is required to set out all the material facts on which he or
she relies in challenging the reasonableness
or otherwise of the
commissioner's award in his or her founding affidavit.
[34]
In casu,
the
Applicant raised one main ground for review.
[35]
The ground
for review as set out in the Applicant’s founding affidavit and
repeated in the supplementary affidavit is that
the arbitrator
misconducted himself and committed a gross irregularity in
reinstating the Respondent. It is evident from a perusal
of the
Applicant’s papers that the review is directed at the
unreasonableness of the remedy of reinstatement.
[36]
The
Applicant’s complaints in this regard all relate to the fact
that a continued employment relationship was intolerable
due to the
Respondent’s dishonest conduct in the disciplinary hearing and
the arbitrator’s findings in this regard.
Issue is taken with
the arbitrator’s finding that the Respondent exercised his
right to remain silent when in fact he allowed
a false version to be
put on his behalf to the chairperson of the disciplinary hearing and
in allowing this, he actively participated
in the dishonest conduct.
[37]
It is
evident that in the Applicant’s founding and supplementary
affidavits no issue is taken with the arbitrator’s
findings on
the substantive fairness of the Respondent’s dismissal. In its
heads of argument however, the Applicant raised
and introduced
arguments on the assessment of conflicting versions and the
arbitrator’s conduct in this regard and the fact
that the
misconduct in question constituted a dismissible offence and that the
requirements of self-defence had not been met. These
issues were not
raised as grounds for review and the Applicant cannot be allowed to
introduce those in argument. Even if there
were merit in these
issues, they were not raised and cannot be considered by this Court
sitting as a review Court.
[38]
The
Applicant is bound by the ground for review as raised in its papers
before Court.
[39]
I have to
deal with the merits of the review application within the context of
the test that this Court must apply in deciding whether
the
arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[40]
The test is
thus whether the decision reached by the arbitrator is one that a
reasonable decision maker could have reached based
on the material
and evidence placed before him or her during the arbitration
proceedings.
[41]
The gist of
the Applicant’s case is that the arbitrator disregarded
material facts placed before him and if he had assessed
the facts
placed before him, the only reasonable conclusion he could have come
to was that a continued employment relationship
is intolerable. The
arbitrator failed to properly consider whether reinstatement was an
appropriate remedy, given the Applicant’s
evidence on the trust
relationship.
[42]
The issue
about the false version put forward during the disciplinary hearing
is not relevant to the question whether the Respondent’s
dismissal was fair, it is only relevant to the issue of relief
[4]
,
which is
in
casu
in
any event the only issue challenged on review.
[43]
In my view
there is merit in the Applicant’s ground for review.
[44]
I say so
for a number of reasons: The evidence before the arbitrator was that
the Respondent’s representative put forward
a false version on
his behalf during the disciplinary hearing, that the Respondent
mandated the representative to act on his behalf,
that he accepted
the advice he received and that he was present and kept quiet when
the false version was put forward. In fact,
it was put on the
Respondent’s behalf that they were informed that the employer
did not have video footage of the incident
and had no witnesses who
could testify as to what transpired and that the Respondent and Mr
Visser tried to keep their jobs by
saying that there was no incident.
[45]
In response
to this, the Applicant’s case was that it found the two
versions disturbing as the Respondent is a senior SARS
official and
integrity is extremely important. The Respondent did not tell the
truth at his disciplinary hearing, which is in direct
conflict with
the SARS code of conduct and the integrity that is required of its
employees. The Respondent was not truthful, his
integrity is
questionable and it seriously compromised the trust relationship. The
Applicant was clear that it would be difficult
to have such an
individual in its employ.
[46]
In
considering this issue, the arbitrator found that the Applicant’s
claim of a breach in the trust relationship, is misplaced.
This is so
because the Respondent was never charged for being dishonest and to
bring up his dishonesty after the fact, is inappropriate.
The
Respondent did not testify in his disciplinary hearing and he had no
part in the concocted story that was relayed by a representative
in
an opening statement in an attempt to save his job. The Respondent
exercised his right to remain silent on instruction from
his
representative, whom he trusted and obeyed. The arbitrator disagreed
with the Applicant’s position that the Respondent’s
failure to step in and correct the misconception created at the
hearing, should be placed on his shoulders and should be judged
as
dishonest and untrustworthy because the representative spoke
untruthfully on his behalf.
[47]
The
arbitrator could find no reason not to re-instate the Respondent
retrospectively.
[48]
The
arbitrator indeed committed a gross irregularity when he failed to
consider the facts presented to him in respect of the trust
relationship and the continuation of an employment relationship.
[49]
The
Respondent was not an innocent bystander when the concocted story was
presented at his disciplinary hearing in order to save
his job. The
Respondent is a well-educated adult who mandated his representative
to act on his behalf, he accepted the advice he
received and he was
present and kept quiet when the false version was put forward and the
conduct of his representative, must be
attributed to him
[5]
.
This conduct clearly indicates a planned and premeditated stratagem
akin to a ‘catch me if you can’ approach and showed
the
intention to mislead the employer. The arbitrator’s finding
that the Respondent had no part in the false version that
was put
forward, is not supported by the evidence and is wrong in law.
[50]
The
arbitrator’s finding that as the Respondent was never charged
for being dishonest, and therefore that it was inappropriate
to bring
it up after the fact, is disconnected with the evidence. The
Respondent’s dishonesty only occurred at the disciplinary
hearing and to criticize the employer for not charging him for being
dishonest, is in the circumstances, inappropriate and in total
disregard of the evidence presented.
[51]
The
arbitrator misconstrued the issue he had to determine in this regard.
The issue was not whether the Respondent was charged with
dishonesty
but rather whether the employer could reasonably be expected to
employ a dishonest person. The fact that the Respondent
was not
charged for being dishonest, cannot exempt him from any consequences
flowing from his dishonest conduct at the disciplinary
hearing. I
already alluded to the fact that the false version put forward during
the disciplinary hearing is not relevant to the
question whether the
Respondent’s dismissal was fair, but it is certainly relevant
to the issue of relief.
[52]
This was a
factor to be considered by the arbitrator in deciding the appropriate
relief and in applying section 193 of the Labour
Relations Act
[6]
(LRA), which he ignored and failed to consider on the basis that the
Respondent was not charged with dishonesty.
[53]
The
arbitrator further found that Ms Andrew was not in a position to make
a judgment call on the Respondent’s trustworthiness
solely on
the basis of what she read about the disciplinary hearing, having not
been present there at all and unaware of what was
said. This finding
is also disconnected from the facts placed before the arbitrator. Ms
Andrew testified about the version the
Respondent gave her shortly
after the incident and she read from the outcome of the disciplinary
hearing what the version at the
disciplinary hearing was. The version
presented at the hearing was not disputed and it is not clear why the
arbitrator found that
Ms Andrew was unable to express her view on the
trustworthiness of the Respondent merely because she was not present
at the disciplinary
hearing in circumstances where it was not denied
that the version she read, was the version presented at the hearing.
[54]
There were
indeed valid reasons presented to the arbitrator that militated
against the reinstatement of the Respondent and his finding
that
there were no reasons not to reinstate, is unreasonable.
[55]
The
arbitrator found that the Respondent’s dismissal was
substantively unfair as he acted in self-defence and that dismissal
was not appropriate. I have already alluded to the fact that there is
no challenge to these findings in the application for review.
In view
of the unchallenged finding of substantive unfairness and the
inappropriateness of the remedy of reinstatement, the Respondent
should have been awarded compensation.
[56]
The
Applicant prayed for the substitution of the arbitration award,
alternatively for the matter to be remitted for a hearing
de
novo.
The
Respondent’s dismissal dates back to February 2016 and in my
view the interest of the parties and the expeditious resolution
of
this dispute would be best served by substituting the remedy of
reinstatement with compensation.
Costs
[57]
The Court
has a broad discretion to make orders for costs according to the
requirements of the law and fairness.
[58]
In
my view this is a matter where the interest of justice would be best
served by making no order as to costs.
[59]
In the
premises I make the following order:
Order:
1.
That
part of the arbitration award issued by the Third Respondent which
ordered the retrospective reinstatement of the First Respondent
is
hereby reviewed and set aside;
2.
The
part of the arbitration award referred to in paragraph 1
supra
is
replaced with the following order:
'The Applicant is ordered to pay the
First Respondent compensation equivalent to 12 months' remuneration
calculated at his rate
of pay at the time of his dismissal within 14
calendar days.’
3.
There
is no order as to costs.
__________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms J Ewang of Hogan Lovells (South Africa) Inc
Attorneys
For
the First Respondent: Advocate J Campanella
Instructed
by: T C Hitge Inc Attorneys
[1]
CUSA v Tao Ying
Metal Industries and Others
(2008)
29 ILJ 2461 (CC) at paras 67 and 68.
[2]
(2010)
31
ILJ
713 (LC)
at
para
27
.
[3]
2007 28 ILJ 2405 (CC) at para 110.
[4]
Maepe v CCMA
and Another
(2008)
29 ILJ 2189 (LAC) at para 6.
[5]
Old Mutual Life
Assurance Co SA Ltd v Gumbi
[2007]
4 All SA 866
(SCA) at para 20.
[6]
Act 66 of 1995 as amended.
a