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[2018] ZALCCT 41
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Schenker South Africa (Pty) Ltd v Robineau and Others (C455/16; C790/16) [2018] ZALCCT 41; (2019) 40 ILJ 213 (LC); [2019] 4 BLLR 409 (LC) (28 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: C455/16 & C790/16
In
the matters between:
SCHENKER
SOUTH AFRICA (PTY)
LTD Applicant
and
LAURENCE
JEANNE
ROBINEAU First
Respondent
D.
DU PLESSIS
N.O
. Second
Respondent
H.
MOSCOWITZ
N.O
. Third
Respondent
Heard:
25 April 2018;
Delivered:
28 August 2018
Summary
:
Review of a jurisdictional ruling made subsequent to referral from
CCMA to a Bargaining Council in terms of section 147 of the
LRA and
the reversion of the dispute to the CCMA in terms of section 51 (4)
of the LRA; on a reading of LAC judgments in
Qibe
v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration
& others
(2015) 36 ILJ 1283 (LAC)
and
National
Education
Health
&
Allied
Workers
Union
on
behalf
of
Kgekwane
v
Department
of Development Planning & Local
Government, Gauteng (2015) 36 ILJ 1247 (LAC)
the
decision to refer a matter to a bargaining council in terms of
section 147 amounts to a ruling which cannot be simply overturned
by
referral back to the CCMA in terms of section 51(4) of the LRA; the
jurisdictional ruling and subsequent award by the CCMA therefore
stand to be set aside; the Court also finding that this order would
apply in any event, should its reading of the LAC judgments
be
incorrect based on the incorrect application of the law to the
question of extra-territorial jurisdiction in this case.
JUDGMENT
RABKIN-NAICKER
J
[1]
In this judgment, I will
first deal with the opposed review application of a jurisdictional
ruling under case number C455/16. That
matter was consolidated with
case number C790/16, being a review of an arbitration award issued
once the jurisdictional ruling
confirmed that the CCMA had
jurisdiction over the dispute. The latter review will be considered
should I find that the CCMA had
jurisdiction to hear the dispute
between the parties. In deciding whether the Commissioner
seized
with
the
jurisdictional
issue
(the
second
respondent)
was correct
[1]
in his finding, I will have regard to all the pleadings placed before
me in this consolidated application, as well as the documents
and
submissions filed of record.
[2]
In addition to the submissions and documents that were before
me when the matter was argued in this Court, I asked for further
submissions
from the parties on 9 July 2018. I took this step given
that neither party had addressed a jurisdictional question evident
from
some of the documents filed of record. These documents reflected
that the dispute was first referred to a Bargaining Council, the
CCMA
having found it did not have jurisdiction. At the Bargaining Council,
a ruling was issued stating that it did not have jurisdiction
to hear
the dispute. The matter was then referred back to the CCMA in terms
of section 51(4) of the Labour Relations Act (LRA)
and an arbitration
was set down where a jurisdictional question raised by the applicant
was dealt with by Second Respondent (turning
on the CCMA’s
extra-territorial jurisdiction) and was decided in first respondent’s
favour.
[3]
The material part of my directive was as follows:
“
1. Judge
Rabkin-Naicker has requested that the parties to clarify the issue
that the CCMA originally found it lacked jurisdiction
in this matter
on 8 December 2015 and the matter was then referred to the Bargaining
Council.
2. The parties are
requested to file short submissions in this regard and in particular
on the status of the decisions made at the
CCMA on 8 December 2015,
and that made by the National Bargaining Council for the Road Freight
Industry. Such submissions may attach
any relevant documentation not
in the records before me or refer to documents in those records.”
[4]
The parties duly filed submissions to assist the Court. On
behalf of the first respondent (who was
dominus litus
at the
CCMA and the Bargaining Council), it was submitted that the telefax
informing the parties that the dispute had been referred
to the
Bargaining Council by the CCMA on 8 December 2015, which advised that
“we do not have jurisdiction to conciliate this
dispute”:
4.1 Did not amount to a jurisdictional
ruling by a competent decision maker of the CCMA in that Ms Wanza,
who signed the letter
is a staff member employed in the CCMA’s
Case Management office and not a Commissioner who is empowered to
make a ruling
on jurisdiction.
4.2 Was not adjudicatory in nature and
was simply a clerical function, “apparently based on her
(erroneous) reading of the
7.11 referral document”.
4.3 That ‘Ms Wanza’s
decision’ did not amount to an administrative act since inter
alia it did not have a direct,
external, legal effect on the parties.
[5]
The transfer of matters from the CCMA to a Bargaining Council
is governed by section 147 of the LRA. For the purposes of this
judgment
it is useful to set out the section in full:
“
147 Performance of
dispute resolution functions by Commission in exceptional
circumstances
(1) (a) If at any stage after a
dispute has been referred to the Commission, it becomes apparent that
the dispute is about the interpretation
or application of a
collective agreement, the Commission may-
(i)
refer the dispute for resolution in terms of the procedures provided
for in that collective agreement; or
(ii)
appoint a commissioner or, if one has been appointed, confirm the
appointment of the commissioner, to resolve the dispute in
terms of
this Act.
(b) The Commission may charge the
parties to a collective agreement a fee for performing the dispute
resolution functions if-
(i)
their collective agreement does not provide a procedure as required
by section 24 (1); 38 or
(ii)
the procedure provided in the collective agreement is not operative.
(c) The Commission may charge a party
to a collective agreement a fee if that party has frustrated the
resolution of the dispute.
(2) (a) If at any stage after a
dispute has been referred to the Commission, it becomes apparent that
the parties to the dispute
are parties to a council, the Commission
may-
(i)
refer the dispute to the council for resolution; or
(ii)
appoint a commissioner or, if one has been appointed, confirm the
appointment of the commissioner, to resolve the dispute in
terms of
this Act.
(b) The Commission may
charge the parties to a council a fee for performing the dispute
resolution functions if the council's dispute
resolution procedures
are not operative.
(3) (a) If at any stage after a
dispute has been referred to the Commission, it becomes apparent that
the parties to the dispute
fall within the registered scope of a
council and that one or more parties to the dispute are not parties
to the council, the Commission
may-
(i)
refer the dispute to the council for resolution; or
(ii)
appoint a commissioner or, if one has been appointed, confirm the
appointment of the commissioner, to resolve the dispute in
terms of
this Act.
(b) The Commission may
charge the parties to a council a fee for performing the dispute
resolution functions if the council's dispute
resolution procedures
are not operative.”
(4) (a) If a dispute has been referred
to the Commission and not all the parties to the dispute fall within
the registered scope
of a council or fall within the registered scope
of two or more councils, the Commission must resolve the dispute in
terms of this
Act.
(b) In the circumstances contemplated
in paragraph (a), the Commission has exclusive jurisdiction to
resolve that dispute.
(5) (a) If at any stage after a
dispute has been referred to the Commission, it becomes apparent that
the dispute ought to have
been referred to an accredited agency, the
Commission may-
(i)
refer the dispute to the accredited agency for resolution; or
(ii)
appoint a commissioner to resolve the dispute in terms of this Act.
(b) The Commission may-
(i) charge the accredited agency a fee
for performing the dispute resolution functions if the accredited
agency's dispute resolution
procedures are not operative; and
(ii) review the continued
accreditation of that agency.
(6) If at any stage after a dispute
has been referred to the Commission, it becomes apparent that the
dispute ought to have been
resolved through private dispute
resolution in terms of a private agreement between the parties to the
dispute, the Commission
may-
(a) refer the dispute to the
appropriate person or body for resolution through private dispute
resolution procedures; or
(b) appoint a commissioner to resolve
the dispute in terms of this Act.
(6A) For the purpose of
making a decision in terms of subsection (6), the Commission must
appoint a commissioner to resolve the
dispute-
(a) if an employee earning less than
the threshold prescribed by the Minister, in terms of section 6 (3)
of the Basic Conditions
of Employment Act, is required to pay any
part of the cost of the private dispute resolution procedures; or
(b) if the person or body appointed to
resolve the dispute is not independent of the employer.
(7) Where the Commission refers the
dispute in terms of this section to a person or body other than a
commissioner the date of the
Commission's initial receipt of the
dispute will be deemed to be the date on which the Commission
referred the dispute elsewhere.
(8) The Commission may perform any of
the dispute resolution functions of a council or an accredited agency
appointed by the council
if the council or accredited agency fails to
perform its dispute resolution functions in circumstances where, in
law, there is
an obligation to perform them.
(9) For the purposes of subsections
(2) and (3), a party to a council includes the members of a
registered trade union or registered
employers' organisation that is
a party to the council.”
[6]
The characterisation of
the function performed by the CCMA in section 147 was considered by
the Labour Appeal Court in
Qibe
v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and
Others
[2]
The Court stated that:
“
[6] Section 147 of
the LRA provides a statutory exception to the rule that the CCMA may
not pronounce upon its own jurisdiction.
Where the disputing parties
fall under the jurisdiction of a bargaining council, the CCMA will
not have jurisdiction unless jurisdiction
has been conferred on the
CCMA in terms of the provisions of s 147 of the LRA……
[7] As recently held by this court in
Kgekwane
:
'Section 147 of the LRA
makes provision for the performance of dispute- resolution functions
by the CCMA in exceptional circumstances,
in order to avoid delays
that might otherwise be caused by jurisdictional disputes. The
section, accordingly, confers a choice
on the CCMA whether to resolve
a dispute that has been erroneously referred to it or whether to
redirect it to the proper forum.'
In terms of subsections
(2) and (3) of s 147 of the LRA respectively, if at any stage after a
dispute has been referred to the CCMA,
it becomes apparent (or
evident) that the parties to the dispute are parties to a bargaining
council or that the parties to a dispute
fall within the registered
scope of a bargaining council but one or more of the parties are not
parties to that council, the CCMA
may either refer the dispute to
that bargaining council for resolution or appoint a commissioner, or
if one has already been appointed,
confirm the appointment of such
commissioner to resolve the dispute.”
[7]
The Labour Appeal Court (LAC) in
Qibe
found that the court
a
quo
had erred in its interpretation of section 147(2)(a)(i) of
the LRA in the following dictum:
“
[9] I am, however,
of the view, that the Labour Court erred in interpreting subsection
(2)(a)(i) of s 147 of the LRA as empowering
a commissioner to refer a
dispute to a bargaining council, once it becomes apparent to him or
her that the parties to the dispute
are parties to a bargaining
council. To reiterate, s 147(2) and (3) of the LRA properly
interpreted mean that if, at any stage
after a dispute is referred to
the CCMA, it becomes apparent to the CCMA or its delegate (or the
commissioner hearing the matter)
that the parties to the dispute are
parties to a bargaining council or fall within the registered scope
of a bargaining council,
but one or more of them are not parties to
the council, it is then for the CCMA or its delegate (and not the
commissioner hearing
the matter when this is ascertained) to
determine whether to refer the matter to the bargaining council or to
appoint a commissioner
to determine the dispute or, if one has
already been appointed, to confirm his or her appointment. Thus, in
the current matter,
once the respondent had placed its founding
affidavit before the commissioner, in the rescission application,
contending that it
was a member of the MEIBC and that the appellant
fell within its registered scope, he was required in terms of s
147(3)(a) of the
LRA to request the CCMA management to make a ruling
on whether to refer the dispute to the MEIBC for resolution, or
whether he
could continue to determine the dispute. This was not a
decision for the commissioner to make.”
[8]
In
National
Education Health and Allied Workers Union on behalf of Kgekwane v
Department of Development Planning and Local Government,
Gauteng
[3]
the LAC dealt with the
election made by the CCMA in terms of section 147(3)(a)(i) and (ii)
of the LRA:
“
[19] ….
where the CCMA elects to appoint a commissioner to arbitrate the
dispute or to confirm the appointment of one who
has already been
appointed, the matter may then proceed as the CCMA has jurisdiction
to determine that dispute.
However, where the
CCMA elects to refer the matter to the bargaining council, it ceases
to have jurisdiction over the matter and
the dispute which is before
it therefore lapses
.” (own emphasis)
[9]
The applicant argued in its additional submissions that the CCMA was
functus officio
in that it had made a decision that was final
when it referred the dispute to the Bargaining Council. The first
respondent submits
that the decision referring the matter to the
Bargaining Council did not adversely affect any rights and had no
direct legal, external
effect and the doctrine of
functus officio
did not apply.
[10]
However, the doctrine is not
confined to the definition of administrative action as suggested on
behalf of the first respondent.
In
PT
Operational Services (Pty) Ltd v Retail and Allied Workers Union on
behalf of Ngweletsana
[4]
the Labour Appeal Court
referred with approval to an article by D M Pretorius entitled
'The
Origin of the Functus Officio Doctrine, with Specific Reference to
Its Application in Administrative Law'
,
[5]
as follows:
“
[24] Pretorius
explains the
functus officio
doctrine
as follows:
'The
functus officio
doctrine is one of the mechanisms by means of which the law gives
expression to the principle of finality. According to this doctrine,
a person who is vested with adjudicative or decision-making powers
may, as a general rule, exercise those powers only once in relation
to the same matter. This rule applies with particular force, but not
only, in circumstances where the exercise of such adjudicative
or
decision-making powers has the effect of determining a person's legal
rights or of conferring rights or benefits of a legally
cognisable
nature on a person. The result is that once such a decision has been
given, it is (subject to any right of appeal to
a superior body or
functionary) final and conclusive. Such a decision cannot be revoked
or varied by the decision- maker. However,
this is not an absolute
rule. The instrument from which the decision-maker derives his
adjudicative powers may empower him to interfere
with his own
decision. Furthermore, it is permitted to make variations necessary
to explain ambiguities or to correct errors of
expression in an
order, or to deal with accessory matters which were inadvertently
overlooked when the order was made, or to correct
costs orders made
without having heard argument on costs. This list of exceptions might
not be exhaustive and a court might have
discretionary power to vary
its orders in other cases. However, this power is exercised very
sparingly, for public policy demands
that the principle of finality
in litigation should generally be preserved rather than eroded.
The same considerations
that require finality for the decisions of courts of law apply to the
decisions of administrative authorities.
Consequently, the
functus
officio
doctrine applies in administrative
law as it does in relation to curial proceedings. In elementary
terms, the effect of the
functus officio
doctrine in administrative law is that an
administrative agency which has finally performed all its statutory
functions or duties
in relation to a particular matter subject to its
decision-making jurisdiction has exhausted its powers and has
discharged its
mandate in relation to that matter. Consequently, such
an agency is without further authority as far as that matter is
concerned
because its duties and functions have been fully
accomplished. Thus, an administrative agency which is
functus
officio
is unable to retract or change its
own earlier decision, unless it is authorised by its enabling
legislation to do so.”
[11]
The first respondent referred to section 51(4) of the LRA in its
submissions, arguing that this section is peremptory. Section
51
provides in material part as follows:
“
51 Dispute
resolution functions of council
(1)
In this section, dispute means any dispute about
a matter of mutual interest between-
(a)
on the one side-
(i)
one or more trade unions;
(ii)
one or more employees; or
(iii)
one or more trade unions and one or more employees; and
(b) on the other side-
(i)
one or more employers' organisations;
(ii)
one or more employers; or
(iii)
one or more employers' organisations and one or more employers.
(2) (a) (i) The parties to a council
must attempt to resolve any dispute between themselves in accordance
with the constitution
of the council.
(ii) For the purposes of
subparagraph (i), a party to a council includes the members of any
registered trade union or registered
employers' organisation that is
a party to the council.
(b) Any party to a dispute who is not
a party to a council but who falls within the registered scope of the
council may refer the
dispute to the council in writing.
(c) The party who refers the dispute
to the council must satisfy it that a copy of the referral has been
served on all the other
parties to the dispute.
(3) If a dispute is referred to a
council in terms of this Act and any party to that dispute is not a
party to that council, the
council must attempt to resolve the
dispute-
(a) through conciliation; and
(b) if the dispute remains unresolved
after conciliation, the council must arbitrate the dispute if-
(i)
this Act requires arbitration and any party to the dispute has
requested that it be resolved through arbitration; or
(ii)
all the parties to the dispute consent to arbitration under the
auspices of the council.
(4)
If one or more of the parties
to a dispute that has been referred to the council do not fall within
the registered scope of that
council, it must refer the dispute to
the Commission.
(
emphasis mine
)
(5) The date on which the referral in
terms of subsection (4) was received by a council is, for all
purposes, the date on which
the council referred the dispute to the
Commission.”
[12]
Can section 51 (4) of the LRA be read to encompass a situation in
which the CCMA has already referred the matter to a Bargaining
Council in terms of section
147 of the LRA? The LAC
jurisprudence referred to above, which binds this Court, does not
support such an interpretation. According
to the LAC authority, the
referral to the Bargaining Council by the CCMA involves an election
not to assume jurisdiction by the
CCMA in terms of section 147 of the
LRA, which has the
consequence
that
its
jurisdiction
over
the
dispute
lapses.
The
election
is
a “ruling” made by the CCMA in the
performance of one of its functions. It cannot be the case that
section 51(4) of
the LRA reinstates the CCMA jurisdiction. Rather, it
has to be read as a provision dealing with a referral which was made
to a
Bargaining Council at first instance, and not received from the
CCMA in terms of section 147.
[13]
In view of the above, it is the Court’s view that the CCMA was
functus officio
when the matter was remitted to it as it had
ruled that it had no jurisdiction to hear the dispute. However, if my
reading of the
LAC judgments cited above is incorrect, this Court’s
order will not be affected thereby. This is because even on the
assumption
that the CCMA’s jurisdiction had been resuscitated,
Second Respondent’s ruling on the issue of extra-territorial
jurisdiction
stands to be set aside in any event.
Background
to the jurisdictional ruling review
[14]
The applicant is an affiliated company of Schenker AG (the German
Company). It operates its business through various branches
in South
Africa. Until August 2013, the business mainly involved general
logistics comprising a range of global transportation
and logistics
solutions inclusive of ocean freight, air freight, land distribution,
contract logistics and warehousing.
[15]
With the discovery of oil and gas reserves in the northern regions of
Mozambique, the applicant proposed to the German Company
that it
should consider opening a Schenker operation in Mozambique.
[16]
Prior to September 2013, the applicant was involved in general
logistics in Mozambique through a “partner”, Imago,
but
had no involvement or skills and/or expertise in relation to the
provisioning of logistics and/or clearing and forwarding in
the oil
and gas industry.
[17]
In March/April 2013, the applicant consequently approached the first
respondent (Robineau), an expert skilled in logistics
in the oil and
gas industry, with the intention of appointing her as general manager
to establish Schenker’s Mozambique operation.
Prior to her
appointment, she was asked to prepare a business plan and there were
negotiations between the applicant and Ms Robineau
regarding the
terms of her employment.
[18]
On 21 June 2013, the applicant and Ms Robineau entered into a written
fixed- term contract in terms of which Ms Robineau’s
employment
commenced on 1 September 2013 and terminated on 30 June 2016. This
was referred to as the ‘South African contract’
in
submission before me. The applicant relied on the South African
contract to terminate its relationship with Ms Robineau.
[19]
The parties had also entered into a second contract on 23 June 2013,
referred to as “the Mozambique contract” which
on first
respondent’s version, was entered into, in order for Ms
Robineau to obtain a work permit in Mozambique. That contract
provides in clear terms that the labour law of Mozambique applies to
all issues arising from its application or interpretation.
It also
contains a clause that its terms are:
“the entire agreement
between the Parties on the subject matter and supersedes all previous
arrangements herein.”
This contract provides for employment
of Ms Robineau as general manager in Mozambique from 1 December 2014
to 30 July 2016.
[20]
There was also an addendum to the South African contract signed by
the parties which appears to have been prepared in December
2014 and
signed in February 2015. This addendum is not contained in the
‘jurisdictional’ record which served before
the second
respondent and in the records filed before me. It is however to be
found in the record of the arbitration before the
third respondent.
The addendum reads as follows in material part:
“
1. This addendum
in reference to the primary agreement dated 19 June 2013
[6]
between the parties that are named therein and as amended here.
2. The undersigned
parties do hereby agree to make the following changes and/or
additions as outlined below.
3. It is agreed that the
employee is employed by Schneker South Africa (Pty) Ltd in Mozambique
and the employment relationship and
all matters pertaining thereto
will be governed by and be subject to all laws in Mozambique
including labour, immigration and taxation
laws.
4. The employee’s
agreed place of residence (home and office) will be Pemba,
Mozambique, the cost of which will be borne by
Schenker
SA.”
[21]
It was undisputed that Ms Robineau is a French citizen and had not
paid any taxes in South Africa as a result of her appointment.
She
was paid in US Dollars by the applicant into an overseas bank
account. She has not been resident in South Africa.
[22]
According to the approach taken by Ms Robineau’s
representatives in this Court and in the CCMA, the contractual terms
I have highlighted above are not relevant to a determination as to
whether the CCMA had jurisdiction to hear Ms Robineau’s
alleged
unfair dismissal dispute. As the Second Respondent wrote in the
Jurisdictional Ruling:
“
14. Advocate
Leslie referred me to various ways in which the question as to
whether the CCMA has jurisdiction could be approached.
It is not
necessary to approach it by way of an international contract and thus
in terms of Private International Law.”
[23]
The case law referred to at the jurisdictional hearing and the
approach reflected above, was also relied on before this Court.
Mr
Leslie, appearing for Ms Robineau cited the cases of
Astral
Operations Ltd v Parry
[7]
and
Monare
v SA Tourism and Others
[8]
in particular. It was submitted that the “locality of the
undertaking test” must be applied to establish that the CCMA
had jurisdiction to hear the dispute. The Second Respondent heeded
this advice. This Court needs to consider whether the locality
of the
undertaking test applies notwithstanding the fact that the contracts
entered into between the parties expressly recorded
that the laws of
Mozambique will govern the employment relationship between them.
[24]
It must be stated at the outset that the judgments in
Monare
and
Astral
matters fall to be
distinguished. The said cases did not concern an employment contract
that specifically provided for a foreign
law, (in
casu
Mozambique law) to apply.
Nor as in this matter, did the employees in those cases approach a
tribunal in another country (in
casu
in Mozambique) after the
termination of the
employment
relationship, and before approaching the CCMA with an unfair
dismissal claim
[9]
.
In addition, the LAC in those matters did not deal with a CCMA
decision on jurisdiction. In
Monare
the question of
jurisdiction was not in issue at the CCMA. In
Astral
,
the LAC per Zondo JP (as he then was), recorded that it was common
cause between the parties that the contract between them made
no
reference to the employment relationship being governed by a legal
system other that South African law.
[10]
[25]
Mr Leslie cautioned against an excursus into the principles of
private international law in this matter on the premise that
the
application of the “locality of the undertaking test”
applies to matters in which the extra-territorial jurisdiction
of the
CCMA is at issue, and on first respondent’s submission the
undertaking was located in South Africa. However, I find
no authority
for the proposition that the test is applicable to every matter in
which the issue of extra-territorial arises, whatever
the facts and
circumstances. The contracts of employment in this case brooked no
ambiguity as to what law applied to the employment
relationship
between the parties i.e. the law of Mozambique. The parties
explicitly agreed this in the various employment contracts
they
entered into. In such circumstances, private international law
principles do not arise. It is well established that effect
must be
given, if the terms of a contract permit, to the obvious intention
and agreement of the parties. That applies no less to
choice of law
and chosen forum clauses in contracts.
[11]
[26]
In all the circumstances, both the ruling and award must be set
aside. Given the first respondent is an individual and sought
to
defend a ruling and award in this Court which had been made in her
favour, I exercise my discretion not to make a costs order
in this
matter. My order is as follows:
Order
1.
The Jurisdictional Ruling and Arbitration Award under case number
WECT 18509/15 are reviewed and set aside.
____________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: GL Van Der Westhuizen instructed by Prinsloo Inc
For
Third Respondent: GA Leslie instructed by Bernadt Vucik Potash &
Getz
[1]
See Uber SA Technology Services (Pty) Ltd v National Union of Public
Service & Allied Workers & others (2018) 39 ILJ
903 (LC) in
which the LAC jurisprudence on the applicable review test is
succinctly set out in paragraphs 62 -64
[2]
(2015) 36 ILJ 1283 (LAC)
[3]
(2015) 36 ILJ 1247 (LAC).
[4]
(2013) 34 ILJ 1138 (LAC).
[5]
(2005) 122 SALJ 832
at 832-3.
[6]
The date of Robineau’s letter of appointment to which the
first contract was attached.
[7]
(2008) 29 ILJ 2668 (LAC).
[8]
[2016] 2 BLLR 15
(LAC); (2016) 37 ILJ 394 (LAC).
[9]
The determination of that dispute was dated 12 November 2015.
[10]
This is recorded in paragraph 6 of the judgment.
[11]
See: Iran Dastghayb, MV Islamic Republic of Iran Shipping Lines v
Terra-Marine SA
2010 (6) SA 493
(SCA) at 34.