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[2019] ZALCJHB 83
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Fermel (Pty) Ltd v Talane NO and Others (JR2545/14) [2019] ZALCJHB 83 (4 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2545/14
In
the matter between:
FERMEL
(PTY) LTD
Applicant
and
SIPHO
TALANE, N.O. (Cited in his capacity as Commissioner of the Second
Respondent
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
Second
Respondent
NESU
MAROVEKE
Third
Respondent
Heard: 12
July 2018
Delivered:4
April 2019
JUDGMENT
DAMANT.
AJ
Introduction
[1]
This matter has an unfortunate history. Mr Nesu Maroveke (The Third
Respondent) was dismissed on 16
July 2009 and the matter was heard
before me on 12 July 2018 (some 9 years later). The history of
the matter was that the
first arbitration award was handed down on 12
November 2009. The Commissioner concluded that the dismissal was
unfair in that the
procedure was unfair. Reinstatement was
awarded. The matter was brought on review to the Labour Court.
Van Niekerk,
J decided the review application in favour of Fermel
(Pty) Ltd (the Applicant) on the basis that the Commissioner’s
reasoning
was fundamentally flawed. The Court substituted the
finding that the dismissal was both substantively and procedurally
fair.
Judgment was delivered on 20 April 2012. The matter
was then taken on appeal to the Labour Appeal Court. On 1 July
2014 the Labour Appeal Court concluded that the Labour Court had
erred in not remitting the matter back to the CCMA for a hearing
de
novo
and in finding that the Third Respondent’s dismissal
was both procedurally and substantively fair. It found the
record
of the proceeding that was placed before it to be “
in
a deplorable state and not one which could be confidently be relied
upon to decide the issues in this matter
”. The Order
of the Labour Court was set aside and substituted with an order
reviewing and setting aside the Arbitration
Award of 12 November 2009
and remitting the matter back for a hearing
de novo
before a
different Commissioner.
[2]
The matter was then set down and heard on 6 October 2014 and the
Arbitration Award was given on 14 October
2014. That Arbitration
Award is now the subject matter of the review before this Court.
[3]
The issue to be determined by the Commissioner was whether the Third
Respondent was negligent when he
drove a company vehicle into the
water, which caused damage to the engine of the motor vehicle.
The Applicant’s case
for review was premised on an allegation
that the Commissioner failed to properly assess the two conflicting
versions that were
put up by the Appliant’s only witness (“Mr
Setagane”) who testified to the events and the version put up
by the
Third Respondent. The Applicant’s argument was
that the Commissioner failed to undertake a balanced assessment of
the
credibility, reliability and probabilities of the different
versions given. In particular, the allegation is made that the
Commissioner
failed to make credibility findings, which he should
have done in determining the facts.
The
Facts
[4]
The Third Respondent was employed as an artisan by the Applicant in
this
matter. He was attending to a breakdown in a mine.
At the disciplinary enquiry he testified that they had received a
distress signal of someone trapped in a basket at a lift and he was
required to attend to this. He was driving a company
Jeep
underground to attend to the breakdown. He states that on his
way to the breakdown, “
the
tunnel in which the water was had no lighting. I stopped and
checked to see if the water wasn’t too deep.
Due to the
poor lighting in that section it was difficult to see the span of the
water. While I proceeded slowly, there was
a step in the
roadway. When the Jeep went down I put it in neutral and I
tried to reverse. As the engine sound changed
I switched off
the machine and walked out
.”
[1]
[5]
At the arbitration the Applicant only called Mr Setagane as a
witness.
Mr Setagane was in the vehicle with the employee.
His evidence was that while they were travelling they found water in
the
tunnel. He told the Third Respondent that “
there
is a lot of water but do not know whether he heard me or not
.”
[2]
He then told him to “
Go
back. This water is too much
.”
[3]
The Third Respondent drove into the water.
[4]
When he stopped to go back the Jeep stalled.
[5]
When he got out the water was at the level of his hip.
[6]
He did not know the procedure for measuring the water when one is in
a Jeep, only the procedure when one is walking, which
is the gumboot
test.
[7]
The road that
they were travelling on had rocks and was bumpy.
[8]
He confirmed that when going through the water in a vehicle they used
the wheel test
[9]
however, he
only learned about the wheel test after the accident happened.
[10]
It was only when the water was above the wheels that he made the
comment about turning back.
[11]
In other words, the vehicle had already entered the water. According
to him the water should be tested before they drive
in.
[12]
He accepted that there was an unexpected decline in the road.
[13]
The unexpected decline caused the vehicle to be suddenly immersed
deeper in the water.
[14]
He accepted that the employee did not drive the vehicle at
speed.
[15]
He conceded
that the accident could have happened to anyone.
[16]
He stated a lot of the company vehicles get damaged in this
manner.
[17]
[6]
The Third Respondent’s testimony in material respects was that
on
his way to the breakdown they encountered pools of water.
[18]
It is a slow Jeep which travels at 8km an hour.
[19]
The road is rough, there are rocks, small holes and “graters”
(which I understand to mean craters).
[20]
The vehicles are designed for these conditions. They used the half
tyre method to check the depth of water for all the pools of
water.
He stopped the vehicle before entering the water and entered slowly.
Evaluation
of the Evidence
[7]
The Applicant’s complaint was that there were additional
aspects
to the Third Respondent’s version on which the
Commissioner made no finding. These aspects go to the Third
Respondent’s
credibility. Those aspects of the Third
Respondent’s version are the following:
7.1
He contended that Mr Setagane was asleep.
7.2
After the vehicle stalled Mr Setagane tried to start the vehicle and
this caused
the damage. Mr Setagane tried to start the vehicle
three times.
[8]
It is correct that the version that Mr Setagane was sleeping was
never
put to Mr Setagane when he testified. It is also correct
that the version that Mr Setagane tried to start the vehicle and
caused the damage to the vehicle was not put to Mr Setagane.
[9]
It is also correct that these conflicts of fact should have been
resolved
by the Commissioner. If Mr Setagane was asleep, then
it impacts on the Applicant’s entire case as it was based on Mr
Setagane’s evidence of the conditions in the mine and the two
warnings that he apparently gave.
[10]
In my view both of these versions of the Third Respondent fall to be
rejected.
They were not put up as a defence at the disciplinary
enquiry and they were not put to Mr Setagane when he testified.
The
Commissioner should correctly have rejected these versions.
However, the question is whether the error on the part of the
Commissioner
resulted in the Commissioner coming to a conclusion that
was unreasonable.
[11]
The Applicant had to discharge the onus of proving that the Third
Respondent was
grossly negligent. In doing so it relied exclusively
on the version of Mr Setagane. It is essential, therefore, that the
evidence
of Mr Setagane be assessed to establish whether the
Applicant has discharged the onus of proving the employee’s
gross negligence.
[12]
Mr Setagane conceded that the only way to test the depth of the water
when driving
a vehicle is to enter the water. He could not
dispute that the gumboot method is used for someone walking, while
the half
wheel method of testing the water is used for driving.
Accordingly, to suggest that the driver should test the water before
entering makes no sense as he has to drive the vehicle into the water
to apply the half wheel test. Accordingly, entering
the water
could not be regarded as negligent.
[13]
Mr Setagane did not state that the vehicle was being driven at
speed. In fact,
he conceded that the vehicle was not being
driven at speed. Accordingly, entering the water in the manner
in which the employee
did cannot be described as negligent.
[14]
Mr Setagane’s warning to turn back was when the vehicle was
already in the
water. It appears from his evidence that the
vehicle hit an unexpected dip. He concedes that the accident
could have
happened to anyone. He stated that many of the
vehicles are damaged in this way. Based on this version alone,
it would
not have been unreasonable for the Commissioner to conclude
that the Applicant had not discharged the onus of establishing that
the Third Respondent had been negligent in this manner.
[15]
Accordingly, even if the Third Respondent’s evidence falls to
be rejected in
respect of two aspects of his evidence, I am of the
view that the Applicant did not discharge the onus of proving that
the Third
Respondent was grossly negligent. The conclusions
that the Commissioner came to were accordingly not an unreasonable
conclusion
despite the error that he may have made in failing to
weigh up the credibility of the witnesses and the probabilities of
each version.
The
remedy
[16]
The evidence was that the Third Respondent successfully obtained
employment elsewhere
two months after his dismissal. At the hearing,
when asked about retrospective reinstatement, the Third Respondent
stated it was
not about the money, it was about the principle.
He, however, insisted that he wanted reinstatement.
[21]
[17]
The Commissioner determined that the Third Respondent was entitled to
the primary
remedy of reinstatement and did so by relying on the
requisite sections in the Labour Relations Act
[22]
(the LRA).
[23]
[18]
Section 193(1) of the LRA provides:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair,
the Court or the arbitrator may-
(a)
order the employer to re-instate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee was employed
before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal;
or
(c)
order that the employer pay compensation to the employee.”
[19]
Further, section 193(2) of the LRA provides:
“
(2)
The Labour Court or the arbitrator must require the employer to
re-instate or re-employ the employee
unless –
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship
would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee;
or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
[20]
Accordingly, the Commissioner cannot be faulted in this regard
insofar as his finding
that, the Applicant’s failure to prove
the misconduct on the part of the Third Respondent rendered the Third
Respondent’s
dismissal substantively unfair and that in the
circumstances reinstatement is the appropriate remedy in the absence
of any of the
factors in section 193(2) of the LRA.
[21]
In determining the extent of
retrospectivity, the Commissioner concluded that:
“
It is now settled
law that a reinstatement order can be given retrospective operation
for longer than 12 months.”
[24]
The Commissioner then went on further to state that, “the
Constitutional Court in Equity Aviation supra at para 43 reiterated
that I have a discretion to determine the extent of the
retrospectivity of the order of reinstatement. In exercising
the
discretion I may, among other things, consider the fact that the
dismissed employee was without income. In the present case the
employee has not been without income: He has been working
except for two months. His marriage fell apart. While
I
must ensure that the employer is not unjustly financially burdened by
an order of retrospective reinstatement, I must also ensure
that the
employee does not benefit from the mishap that has befallen him. If
reinstatement is ordered from the date of dismissal,
the employee
will benefit from the mishap, and he will not have been placed in the
position he would have been had there been no
dismissal. I am
also alive to the sentiment expressed by the learned Grogan when he
wrote: “The concern expressed in
the minority judgment in
Kroukam that employees may be tempted to obtain greater compensation
than that permitted by the Act by
seeking orders of full
retrospective reinstatement then immediately resigning, remains a
consideration” (dismissal, Juta
2010 page 525).”
[25]
[22]
It was for this reason that the reinstatement was ordered to be
retrospective for
a period of 12 months.
[23]
The Commissioner is correct in
that a competent commissioner or court can award reinstatement
in
excess of a 12 month period for a finding of an unfair dismissal
[26]
and that he, as a commissioner, has the discretion to determine the
extent of the retrospectivity, which is clear from cases such
as
Equity
Aviation Services (Pty) Ltd v CCMA & Others
[27]
and
Xstrata
South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of
Mineworkers obo Masha and Others
[28]
in
which the Court held:
“…
reinstatement
is the primary remedy under the LRA and involves placing an employee
back in employment as if the dismissal had never
occurred. If the
exceptions to the remedy of reinstatement do not apply, the Labour
Court and arbitrators only have a discretion
with regard to the
extent to which reinstatement should be made retrospective.”
[29]
[24]
A commissioner is however required to exercise this discretion
reasonably and to
consider the circumstances of the matter before
him/her to ascertain the extent of retrospectivity that is
appropriate in the circumstances.
[25]
In
Equity Aviation
(
supra
)
the Constitutional Court held that the purposes of reinstatement was
to place an employee in the position in which he or she would
have
been had the dismissal not occurred. Nkabinde J as follows:
“
The
ordinary meaning of the word ‘reinstate’ is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the positon he or she would have been but for
the unfair dismissal. It safeguards workers’
employment by
restoring the employment contract. Differently put, if employees are
reinstated they resume employment on the same
terms and conditions
that prevailed at the time of their dismissal. As the language of
section 193(1)(a) indicates, the extent
of retrospectivity is
dependent upon the exercise of a discretion by the court or
arbitrator. The only limitation in this regard
is that the
reinstatement cannot be fixed at a date earlier than the actual date
of the dismissal. The court or arbitrator may
thus decide the date
from which the reinstatement will run, but may not order
reinstatement from a date earlier than the date of
dismissal …
The fact that the dismissed employee has been without income during
the period since his or her dismissal must,
amongst other things, be
taken into account in the exercise of the discretion, given that the
employee’s having been without
income for that period was a
direct result of the employer’s conduct in dismissing him or
her unfairly.”
[30]
[26]
Zondo J in
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[31]
stated:
“
A
reinstatement order is not intended to put the employee in a position
in which he would not have been had he not been dismissed.
That means
neither a less disadvantageous position nor a more advantageous
position than the one in which he was or would have
been in had he
not been dismissed.”
[32]
[27]
In
National
Union of Metalworkers of South Africa obo Fohlisa and others v Hendor
Mining Supplies
[33]
the
Court held:
“
What
is the legal context in this matter? What Equity Aviation tells us is
certainly central to that context, Reinstatement may
be, but is not
always, retrospective. To state the axiomatic, reinstatement means
the resuscitation of the employment agreement
with all the attendant
reciprocal rights and obligations. Again to state the obvious, the
element of retrospectivity in the reinstatement
does not entail the
rendering of services for the back-dated period of reinstatement.
That is an impossibility. Perhaps that makes
the very notion of
“retrospective reinstatement” a bit of a misnomer, if not
a legal fiction. What then is the practical
value of retrospective
reinstatement? It is the reinstatement of all the employee’s
benefits in terms of the contract of
employment from the date
specified in the order so as to “plac[e] an employee in the
position he or she would have been but
for the unfair dismissal”.
Obviously, if the employer may be able to demonstrate that –
for one reason or another –
an
employee would not have been able to render services, the employee
concerned would not be entitled to retrospective remuneration
.
That much is illustrated by the total obliteration or reduction of
benefits in respect of employees who died either before 1 January
2007 or on or after that date but before the date of
reinstatement.”
[34]
(My
underlining)
[28]
The Commissioner is therefore required to award retrospective
reinstatement in a
manner that places the employee in the position
he/she would have been had it not been for the dismissal. An employee
is not to
be placed in a more advantageous position which results in
the dismissal being beneficial to the employee and the reinstatement
ordered is not meant to place the employer in an unnecessarily
burdensome financial position. The Commissioner stated in his award
that the Third Respondent had only been unemployed for 2 months. The
purpose of the back-pay awarded to the employee is to restore
the
status quo. If an employee is dismissed and is only unemployed for 2
months and not earning an income for that period and then
commences
work at a new employer, awarding this employee 12 months back-pay
places the employee in a better position than he would
have been had
he not been dismissed.
[29]
Further, an employee can only be remunerated by his/her employer if
he/she is able
to render services. If the Third Respondent commenced
employment with another employer subsequent to his dismissal than he
cannot
be said to have been in a position to render services for the
Applicant and the Third Respondent would not be entitled to
retrospective
remuneration for that period.
[30]
The Third Respondent relied on the case of
Palace
Engineering Services (Pty) Ltd v Phasa
[35]
in
order to put forward the argument that the Commissioner was correct
in awarding 12 months back-pay to him and that there was
no legal
obligation for the Commissioner to deduct the income the Third
Respondent earned rendering services for another employer
after his
dismissal. The Third Respondent quoted the following paragraphs from
the judgement:
“
Mr
Vuyo submitted that the respondent was not unfairly advantaged by the
order of reinstatement. The respondent testified on the
challenges he
had to endure after being unfairly retrenched. It could not have been
expected of the respondent to simply wait for
the outcome of this
particular case. He had to secure employment to make ends meet. It is
submitted that this complaint is devoid
of substance. Mr Jackson did
not develop his submission that the respondent was under a duty to
mitigate his loss or to reduce
the appellant’s burden, by
seeking employment. His submission is that something less than full
reinstatement should be ordered
and that the degree of reinstatement
should be reduced by an amount or a rebate taking into account what
the respondent has earned
in the interim. The common law concept of
specific performance approximates to the concept of statutory
reinstatement. In
Toerien
v University of Stellenbosch
(1996)
17 ILJ 56 (C), followed in
Davids
v Boland Rugby (Pty) Ltd
(C12/10)
[2011] ZALCCT 35 (5 September 2011), it was held by Traverso J (as
she then was) that where an employee claimed specific
performance for
his unlawful termination of employment the employer was not entitled
to deduct amounts the employee earned from
other sources. I am of the
view that the common law position referred to in the Toerien judgment
applies to statutory reinstatement.”
[36]
[31]
I have considered the
Palace
Engineering
case as well as
Toerien
v University of Stellenbosch
[37]
and
Davids
v Boland Rugby (Pty) Ltd
[38]
,
the
cases referred to in the quote above, in order to understand whether
these cases interfere with the principle enunciated by
the
Constitutional Court that reinstatement is intended to put the
employee back in the position they would have been in but for
the
dismissal. I have also considered whether they in any way deal
with the principle that an employer is not obliged to
pay an employee
who is unwilling or incapable for any reason of tendering their
services. I have also considered how the case reconciles
with the
statement made by court the in the
Hendor
case (supra) that if an employee would not have been able to render
services, the employee concerned would not be entitled to
retrospective remuneration.
[32]
The
University
of Stellenbosch
case dealt with the common law position and a pure contractual claim.
The position was that the contract of employment had not
been validly
terminated. It was common cause “
that
the Applicant tendered his services and put them at the disposal of
the Respondent at all material times
”.
[39]
He had, however, procured some consultancy work as an independent
contractor and earned some income. The employer sought
to deduct the
amount earned based on the principles applicable to set off in
contract.
[33]
The Court found that dealing with a contract of employment, ie. a
locatio conductio operarum
, all the Applicant has to do is put
his labour at the employer’s disposal in accordance with the
employer’s reasonable
instructions. Once he does so he is
entitled to be paid. As it was common cause that the Applicant
in that matter had tendered
to work therefore he was entitled to be
paid.
[34]
The material issue was that the employee had tendered to work and
there was never any suggestion
that the consultancy work he had
obtained had interfered with that tender. This was not argued
in that case.
[35]
The
Boland Rugby
case was also a case regarding a contractual
claim. The court at paragraph 13 of the judgment distinguished
the
University of Stellenbosch
judgment on the basis that the
employee in that matter had not at the time of his suspension or
thereafter tendered his services.
In that case it was concluded
that the employee, by securing alternative employment, had mitigated
his damages and that his claim
for compensation should be dismissed.
[36]
That then brings me to the
Palace Engineering
case. In
that case the employee had been unemployed for a period of 5 months.
He had secured employment at half the
salary. The argument by
the employer was that the degree of reinstatement should be reduced
by an amount or rebate taking
into account what the employee had
earned in the interim. Applying the
University of
Stellenbosch
decision, the Court held that there was no
entitlement to deduct amounts the employee earned from other sources.
[37]
It was not argued and it was not found in this matter that the
employee had not tendered his
services. The Court did not deal with
the issue of tender and dealt only with the ability to deduct amounts
earned from other sources.
Had the Court had to deal with an
argument that the employee had not tendered his services or was
unable to do so, and had it applied
the
University of Stellenbosch
judgment (as it was applied in the
Boland Rugby
case) it would
have been constrained to find that both these judgments were premised
on the tender of service. The tender of services
was common cause in
the
University of Stellenbosch
case which entitled him to
remuneration, whereas in the
Boland Rugby
case the employee
was not able to tender their services and accordingly was not
entitled to be paid.
[38]
The court in
Palace Engineering
was accordingly dealing with
the issue of mitigation of damages and the ability to factor that
into a reinstatement order.
It was not dealing with an argument
pertaining to the tender of services. The issue of an employee being
unable to tender their
services because they are employed elsewhere
was accordingly not dealt with in the
Palace Engineering
judgment.
[39]
The analysis of the above authorities accordingly reveals that for an
employee to claim reinstatement,
they are required to tender their
services. They are under no obligation to seek to mitigate damages by
seeking alternative employment.
Earnings from engagements that
do not preclude them tendering their services cannot be factored in
and cannot be set off.
However, if an employee does secure
employment elsewhere the employee then needs to accept that he/she is
precluded from tendering
their services for the period they are
employed elsewhere. If this evidence is led and placed before a
Commissioner, the
Commissioner is obliged to take cognisance of this
and fashion the reinstatement award according to the period that the
employee
was able to tender their services. Applying this principle
gives recognition to the Constitutional Court statement that an
employee
should be put back into the position they would have been in
had they remained employed. They should not be better off.
It also accords with the statement in the
Hendor
case that an
employee who is unable to tender their services is not entitled to
retrospective remuneration.
[40]
Accordingly, the Commissioner did not make a
decision that a reasonable commissioner would make in awarding
12
months back-pay. Retrospective reinstatement should have been limited
to 2 months.
[41]
I do not deal with the consequences of the reinstatement order from
the date of the arbitration
award to the date of this judgment as it
is not before this Court. The parties will need to deal with
the ability of the
Third Respondent to tender his services during
this period and the consequences of any inability to do so.
[42]
On the question of costs, both parties have been partially
successful. The reinstatement order
is upheld but the period of
retrospective reinstatement falls to be set aside. On this
basis, I do not intend to award costs
and both parties will bear
their own costs.
[43]
In the circumstances the following order is made:
Order
1.
The decision of the Commissioner that the dismissal of the Third
Respondent was
substantively unfair is upheld.
2.
The decision of the Commissioner to reinstate the Third Respondent
retrospective
to 1 November 2013 and to award the Third Respondent
back pay for 12 months is set aside.
3.
The Third Respondent’s award is replaced with the following:
“
The Third
Respondent is to be reinstated with effect from the date of the
Arbitration Award, being 14 October 2014. Third
Respondent is
entitled to be reinstated from 14 August 2014. For the
avoidance of doubt, the employer shall pay the
employee back pay
equivalent to 2 months’ wages (R11,294.69 x 2 = R22,589.38) on
or before 30 April 2019.
4.
There is no order as to costs.
_____________________________
G.
Damant
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Adv. Paul Kirstein
Instructed
by: Weavind
& Weavind Inc. (Sean van der Merwe)
For
the respondent: Ms FC Sithole
Instructed
by: Nesu
Maroveke
[1]
Record, pages 8 and 9.
[2]
Record page 74, lines 4 and 5.
[3]
Record page 74, line 7.
[4]
Record page 74, line 21.
[5]
Record page 74, line 16.
[6]
Record page 76, lines 5 to 8.
[7]
Record page 77, lines 1 to 4.
[8]
Record page 82, lines 1 to 3.
[9]
Record page 83, line 19.
[10]
Record page 87, line 15.
[11]
Record page 87, line 15.
[12]
Record page 90, line 9.
[13]
Record page 91, lines 12 to 16.
[14]
Record page 91, lines 19 to 23.
[15]
Record page 99, lines 10 to 14.
[16]
Record page 101, line 24 to page 102, line 4.
[17]
Record page 102, lines 8 to 16.
[18]
Record page 128, line 20.
[19]
Record page 129, line 6.
[20]
Record page 129, lines 14 to 17.
[21]
Record page 166, lines 7 to 9.
[22]
66 of 1995, as amended.
[23]
Record page 18, paragraph 36.
[24]
Pleading page 19, paragraph 37.
[25]
Pleading page 19, paragraph 38.
[26]
SACCAWU
& others v Primserv ABC Recruitment (Pty) Ltd t/a Primserv Out
Sourcing Incorporating
(2007)
1 BLLR 78
(LC) at paragraphs 18-21.
[27]
(2009) (1) SA 390 (CC)
[28]
(2017) 4 BLLR 384
(LAC)
[29]
Id fn 28 at para 8.
[30]
Ibid fn 27 at para 36.
[31]
(2016)
37 ILJ 313 (CC)
[32]
Id
fn 31 at para 155.
[33]
[2017] 6 BLLR 539
(CC).
[34]
Id fn
33 at
para
13.
[35]
[2013] ZALAC 5
[36]
Id fn
35 at
paras
28 to 30.
[37]
(1996) 17 ILJ 56 (C),
[38]
(C12/10) [2011] ZALCCT 35 (5 September 2011).
[39]
Id fn 37 at p 202 para (H).