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[2019] ZALCJHB 116
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Naicker v Commission for Conciliation, Mediation and Arbitration and Others (JR843/17) [2019] ZALCJHB 116 (21 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 843/17
In the matter between:
PRABASHNIE NAICKER
Applicant
And
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
NOMUSA MBHELE
N.
O
Second
Respondent
AFRICA FLIGHT
SERVICES
Third Respondent
Heard: 11 October 2018
& 28 November 2018
Delivered:
21 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
Following her dismissal by the Third Respondent (Africa Flight
Services)
on account of misconduct related to insubordination,
the
Applicant (Ms Naicker) referred a dispute to the Commission for
Conciliation Mediation and Arbitration (CCMA). At the conclusion
of
the arbitration proceedings, the Second Respondent (the Commissioner)
found that Naicker’s dismissal
was procedurally and
substantively fair.
[2]
Naicker approached this Court to seek an order reviewing and setting
aside
the arbitration award dated 12 April 2017. She
further seeks an order that the dispute be remitted to the CCMA for a
hearing
de novo
before another commissioner, and/or in the
alternative, that the Court substitute the Commissioner’s award
with an order that
her dismissal was unfair.
[3]
Africa Flight Services opposed the application, contending that upon
the
proper assessment of the record of arbitration proceedings, the
finding by the Commissioner that Naicker was indeed insubordinate
was
reasonable in view of her own evidence that she was indeed issued
with a lawful instruction which she had failed to comply
with on
numerous occasions. It was further contended that at the arbitration
proceedings, Naicker had specifically mentioned that
she had no
confidence in the abilities and competencies of her superior, and
that to that end, the Commissioner’s arbitration
award was not
susceptible to review.
[4]
The matter initially came before the Court on 11 October 2018.
The Court had expressed its concerns about the nature and structure
of Naicker’s pleadings, which Africa Flight Service in
its
answering affidavit had described as long winded and tedious. She had
drafted her pleadings and appeared in person on 11 October 2018.
By agreement, the matter was removed from the roll. Naicker was
granted leave to approach the Saslaw
Pro Bono
Office and to
file supplementary papers. Africa Flight Services also granted leave
to file supplementary answering affidavits.
[5]
The Court is indebted to Adv Mairéad Edwards who appeared on
behalf
of Naicker in these proceedings, Adv Sarajulie Swartz for
drafting the heads of argument on behalf of Naicker, and the SASLAW
Pro
Bono Office. The Court also appreciates the patience and
indulgence of Mr Biggs from Snyman Attorneys representing Africa
Flight
Services.
Background:
[6]
Africa Flight Services is in the business of providing aviation
(cargo
handling) services at key airport locations across South
Africa. Naicker commenced her employment on 11 March 2013
as
a Customer Service Agent. She reported directly to Ms Mellissa
Fritz (Fritz), the Quality Assurance and Customer Service Manager.
[7]
Naicker was dismissed on 24 November 2016 on allegations of
insubordination, in that she failed to obey an instruction issued to
her by Fritz. Following her dismissal, she referred a dispute
to the
CCMA, and when attempts at conciliation failed, the matter came
before the Commissioner for arbitration. She challenged
both the
substantive and procedural fairness of her dismissal.
The
arbitration proceedings:
[8]
Evidence on behalf of Africa Flight Services was led by its Human
Resources
Officer, Ms Yolandi Silva and Fritz. Naicker led her own
evidence.
[9]
The evidence of Fritz was that;
9.1
Part of
Naicker’s duties was to calculate payments when requested by
agents. As a result of Naicker having provided clients
with incorrect
charges, Fritz sent an email on 3 November 2016 at 12:50 to
Naicker, informing her that she should refrain
from issuing incorrect
charges in instances where she did not possess sufficient information
to formulate the correct pricing
[1]
.
Notwithstanding these specific instructions;
9.1.1
On the same day at about 13h51 and after the email from Fritz,
Naicker forwarded pricing information to
an entity called Procet
Freight, and failed to copy Fritz on the same email.
9.1.2
At 13h58 on the same day, Naicker forwarded another pricing
information to another entity, Reliable Freight
and again did not
copy Fritz on that email.
9.1.3
At 15h12, Naicker further forwarded pricing information to SekogIn
without coping Fritz on the email.
9.1.4
At 15:14, Naicker forwarded a further email to Barloworld Logistics
with pricing information without copying
Fritz.
9.2
According to Fritz, there were further emails that were sent on
4 November 2016
by Naicker without copying her.
9.3
A meeting was held on 7 November 2016 with the customer
services team
where objectives were set for the team. At that meeting
Naicker was again instructed by Fritz to copy her in all her emails
to
customers.
9.4
Subsequent to the instruction, Naicker copied Fritz in some of the
emails communication
but failed to do so in others. Naicker had not
at any stage given any indication that she was unable to follow the
instruction
and she had in fact agreed in writing that she would
comply with the instructions.
9.5
On subsequent dates of 8, 14 -16 November 2016, Naicker
again failed
to copy Fritz on her emails to customers.
9.6
In a notice dated 16 November 2016, Naicker was notified of
the charges
against her. In the internal disciplinary hearing held on
21 November 2016, Naicker pleaded guilty to the charge of
insubordination.
9.7
On the issue of sanction, the chairperson of the hearing had
according to Fritz,
found that;
9.7.1
The instruction disobeyed by Naicker was important on account
that an inaccurate pricing charge may
negatively affect the
relationship between Africa Flight Services and its clientele.
9.7.2
Naicker had a final written warning on her record valid until
31 August 2017 having been found
guilty of insubordination
on a previous occasion.
9.7.3
Naicker has proven that she was unable to obey reasonable
instructions and thus the continued employment
relations were
intolerable.
9.7.4
Having considered Naicker’s personal circumstances and
disciplinary record for similar offences, the
misconduct was so
serious that it rendered the employment relationship intolerable and
a dismissal was the appropriate sanction.
9.8
Under cross examination by Naicker, Fritz testified that she had
further held
a meeting with Naicker and another employee, wherein
Naicker had undertaken to copy Fritz in subsequent pricing email
communication
with the clients.
9.9
She denied that Naicker’s workload could have been a factor
that could
have prevented her from complying with the instruction,
and that to the extent that she may have complained of being
overloaded,
this was resolved by taking away some of her work to
lighten her duties.
9.10
Under cross-examination, Naicker put to Fritz that she lacked the
prerequisite experience in
logistics and customer services, and thus
making her incapable of giving the instructions. Fritz maintained
that the instruction
was unambiguous and capable of being obeyed,
and
that the same instruction had not been given to other employees on
basis that Naicker was the only employee who had communicated
inaccurate pricing information to clients.
9.11
Fritz further testified that her relationship with
Naicker was professional and denied that there was any animosity
between the
two of them.
[10]
Ms Yolanda da Silva’s evidence was that;
10.1.
In terms of the company’s disciplinary code and procedures, a
first infringement in respect of a charge
of insubordination would
generally attract a sanction of a final written warning, and any
further infringements would be met with
a dismissal.
10.2.
Naicker was previously found guilty on a charge of insubordination,
which offence the employer viewed
in serious light, but had failed to
correct her conduct.
10.3.
Da Silva denied the allegations by Naicker that Africa Flight
Services had influenced the Chairperson of
the disciplinary hearing
to dismiss her, and contended that any interaction with the
Chairperson of the disciplinary enquiry was
limited to offering him
refreshments.
[11]
Naicker in disputing the substantive and procedural fairness of her
dismissal testified
that;
11.1.
When Fritz arrived at the company
on 1 April 2016,
she gave her a ‘hard time’ owing to a personal
disagreement between the two.
11.2.
She conceded that on 3 November 2016, Fritz sent her an
email instructing that she be included
in future communication with
clients in respect of pricing.
11.3.
Her failure to include Fritz in the email communications did not
constitute insubordination, as she
lacked the element of intention
and further since her conduct was a mere honest mistake.
11.4.
The failure to copy emails to Fritz was on account of her busy
schedule and further on basis that
the instruction constituted a new
procedure which she was not used to.
11.5.
Her conduct was
bona fide,
and could have been corrected
without the necessity of disciplinary processes, especially since the
gravity of the allegations
against her was minimal. She contended
that her conduct did not result in a financial loss for Africa Flight
Services.
[12]
At the conclusion of the arbitration proceedings, the Commissioner
found that the dismissal
of Naicker was substantively and
procedurally fair, on the grounds that:
12.1.
It was common cause between the parties that Naicker was given an
instruction which she failed to comply
with.
12.2.
It was improbable that she had mistakenly omitted to copy Fritz on
the communication to clients as she was
able to copy her emails to
another colleague.
12.3.
Naicker’s testimony that her gruelling work-schedule hindered
her ability to comply with the instruction
ought to be rejected, as
to copy emails to Fritz would have taken at least two seconds to do.
12.4.
The documentary evidence adduced by Africa Flight Services revealed
that Naicker repeatedly ignored the
instruction and was thus guilty
of undermining her superiors.
12.5.
Africa Flight Services had applied progressive discipline against
Naicker, and it was clear that she was
incorrigible.
12.6.
Naicker had failed to challenge the final written warning issued to
her for a similar misconduct, which
warning remained valid.
12.7.
In regard to the allegations of procedural unfairness, and the
specific allegation that there were attempts
to influence the
chairperson of the disciplinary hearing, the Commissioner found that
Naicker failed to rebut Africa Flight Service’s
version that
the interaction with the chairperson was limited to the serving of
refreshments.
Grounds of review and
submissions:
[13]
In the heads of argument in support of the grounds of review, it was
submitted that the
award was reviewable since;
13.1
The Commissioner failed to apply her mind to the fact that the charge
of not following the instruction
to copy to her manager the emails
could not on the facts and the law be interpreted as insubordination,
in the light of established
authority which requires the presence of
wilful and serious challenge to, or defiance of the authority of the
employer.
13.2
Had the
Commissioner applied her mind to the material before her, she would
have reached a conclusion that the misconduct of insubordination
could not be sustained absent
mens
rea
on
her part. That failure to properly assess the evidence constituted a
reviewable irregularity as contemplated by the provisions
of section
145(2) of the Labour Relations Act (LRA).
[2]
13.3
There is a distinction between the act of insubordination and
insolence which the Commissioner
failed to appreciate The
Commissioner further failed to apply the relevant legal principles,
resulting in her misconstruing the
whole nature of the enquiry.
13.4
Insubordination is more severe than insolence and further that where
insubordination is proved,
there may be a presumption that the
disobedience was intended to breach the employee’s duty of good
faith towards the employer.
13.5
Naicker had persistently stated that her failure to copy Fritz on her
emails was an honest mistake.
The conduct in question was more an
issue of performance rather than insubordination, and the outcome
reached by the Commissioner
was unreasonable having been polluted by
her failure to properly consider the evidence and/or having
misconstrued the evidence
placed before her.
[14]
In opposing the review application, it was submitted on behalf of
Africa Flight Services
that
14.1
On
the authority of
NUPSAW
on behalf of Mani and others v National Lotteries Board
[3]
,
a
simple disregard of an employer’s authority or of an employer’s
lawful, and reasonable instruction would constitute
insubordination.
14.2
On the totality of the evidence before the Commissioner, it was
apparent that Naicker had within
an hour of the instruction being
issued, failed to obey it, and that in 20 hours, she had disregarded
the instruction on no less
than five times.
14.3
Naicker’s view was that Fritz did not have the necessary
knowledge and experience to issue
her with instructions, and that she
could not be expected to comply with instructions when she was under
pressure.
14.4
It was highly improbable that Naicker could have forgotten to obey
the instruction as she alleged,
and the probabilities were that once
she was under pressure, she made an informed decision not to comply
with the instruction,
as she did not view it as valid.
14.5
The Commissioner’s decision fell within a band of
reasonableness as she had found that
Naicker was not overburdened
with work; that copying Fritz on an email was an easy instruction to
follow, and that it was taken
into account that Naicker was already
on a final written warning for the same conduct.
The
legal framework
:
[15]
The test on
review is trite as restated in
Duncanmec
(Pty) Limited v Gaylard NO and Others
[4]
.
It
is whether the award itself meets the requirement of reasonableness.
An award would meet this requirement if there are reasons
supporting
it. Furthermore, in determining whether the impugned award was
vitiated by unreasonableness, the Court is required to
examine the
award for the reasons motivating the decision reached. If the reasons
advanced rationally support the outcome arrived
at, interference with
the award on the basis of unreasonableness would not be justified.
This would be the position even
if the Court does not agree with the
reasons furnished
[5]
.
[16]
Naicker’s case is that the Commissioner committed an
irregularity in the proceedings
by failing to take into consideration
that her conduct did not constitute insubordination, as she lacked
the prerequisite intention
to consciously disobey the instruction
from Fritz. To that end, the principal submissions are that the
Commissioner failed to take
into account, or ignored or failed to
properly assess the material before her, and thus arrived at an
outcome that does not fall
within a band of reasonableness.
[17]
To the
extent that this was her case, in
Herholdt
v Nedbank Ltd and Another
[6]
the Supreme Court of Appeal held:
“
In summary, the
position regarding the review of CCMA award is this: A review of a
CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2) (a) (ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.”
[18]
It is
therefore apparent from the above
dictum
that it is not sufficient for an applicant to simply allege an
irregularity in terms of the provisions of section 145(2)(a) of
the
LRA. Thus, the irregularity complained of must be so gross that it
results in an unreasonable outcome as postulated in
Duncanmed
and
Sidumo
.
[7]
[19]
Naicker was charged and dismissed for insubordination. Thus, if this
Court is persuaded
that the reasons advanced by the Commissioner
rationally support the decision arrived at, there would be no basis
for interfering
with the award.
[20]
The
Labour Appeal Court in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[8]
has
held that a refusal to carry out an instruction is not the only basis
upon which to found a charge of insubordination. The offence
of
insubordination in the workplace entails a wilful and serious refusal
by an employee to obey a lawful and reasonable instruction
or where
the conduct of an employee poses a deliberate (wilful) and serious
challenge to the employer’s authority. Insubordination
may also
be found to be present where disrespectful conduct poses a deliberate
(wilful) and serious challenge to, or defiance of
the employer's
authority, even where there is no indication of the giving of an
instruction or defiance of an instruction.
[9]
.
[21]
Kathree-Setiloane
AJA in
Palluci
proceeded to demonstrate the fine line between insolence and
insubordination, and held that acts of mere insolence and
insubordination
do not justify dismissal unless they are serious and
wilful. Furthermore, a failure of an employee to comply with a
reasonable
and lawful instruction of an employer or an employee’s
challenge to, or defiance of the authority of the employer may
justify
a dismissal, provided that it is wilful and serious. It was
further accepted in
Palluci
that the sanction of dismissal should be reserved for instances of
gross insolence and gross insubordination as respect and obedience
are implied duties of an employee under contract law, and any
repudiation thereof will constitute a fundamental and calculated
breach by the employee to obey and respect the employer’s
lawful authority over him or her. Thus, unless the insolence or
insubordination is of a particularly gross nature, an employer must
issue a prior warning before having recourse to the final act
of
dismissal
[10]
[22]
In similar
vein,
Dambuza
AJ
in
a dissenting judgment
National
Union of Public Service & Allied Workers obo Mani and Others v
National Lotteries Board
[11]
held that as a basic principle, insubordination occurs when an
employee refuses to accept the authority of a person in a position
of
authority over him or her, and that insubordination is misconduct
because it assumes a calculated breach, by the employee, of
the duty
to obey the employer’s lawful authority.
Evaluation:
[23]
It is common cause that Naicker pleaded guilty to the charge of
insubordination at the
internal disciplinary enquiry. Naicker only
denied the allegations when the dispute came before the Commissioner
at the arbitration
proceedings. Her principal contention was
essentially that she lacked the necessary intention for a charge of
insubordination to
be sustainable, and further that her failure to
copy the emails to Fritz was a genuine lapse not deserving of a
disciplinary enquiry.
[24]
There are several difficulties with Naicker’s case, from which
it can be deduced
that there is no basis for an interference with the
Commissioner’s award. My conclusions in this regard are based
on the
following;
24.1.
After the instruction was issued, Naicker failed to comply with it on
no less than 8 occasions between 3
and 15 November 2016.
It is accepted that mistakes do happen. In this case however, it
cannot be an honest mistake
when the failure to comply with the
instruction was persistent and over prolonged periods.
24.2.
The failures to comply further followed upon Naicker being again
instructed on 7 November 2016
in a meeting, and after she
had signed minutes and confirming that she would comply with the
instruction.
24.3.
The Court is obliged to take judicial notice that copying an email to
another person, especially if the
latter’s email address is
easily accessible and on one’s email contacts, does not take
less than a minute to do so,
even if one is overworked and under
pressure.
24.4.
It is therefore improbable as the Commissioner had correctly
established, that Naicker could have forgotten
to copy the emails, or
that she was under pressures of work or that a simple request like
the one in question could have been a
new procedural or operational
requirement. Even if her computer had crushed as she had alleged, I
did not understand her version
to be that the computer was not
repaired for her to perform her tasks, and comply with the simple
request.
24.5.
The instruction was clearly lawful and reasonable, as on Fritz’
version, Naicker was prone to providing
inaccurate pricing to
customers, which had the potential to cause reputational and/or
financial damage to Africa Flight Services.
I did not understand from
Naicker’s version that the instruction to copy Fritz emails to
those customers under those circumstances
and concerns was an
unreasonable or unlawful instruction. On the contrary, it was common
cause that on certain occasions, she had
copied her other colleagues
emails sent to customers, and had also on the odd occasion, copied
Fritz. Given the context and reasons
advanced why Naicker should as a
matter of course copy her Fritz her emails to customers, nothing
clearly prevented her from doing
so.
24.6.
It is
apparent from the evidence that Naicker had her own problems with the
authority of Fritz. In the heads of argument, reference
is made by
Africa Flight Services to the transcribed record of Naicker’s
evidence, where she questions Fritz’s knowledge
and experience
to issue her with instructions
[12]
.
She had openly questioned her abilities and competencies, stating
that she had no clue and could not instruct her
[13]
;
and contended that copying emails to Fritz was not a priority when
she was under pressure.
24.7.
Based on the above, an inference can easily be drawn that Naicker
not only disrespected the authority
of Fritz, but also challenged it,
and in my view and based on the authorities referred to, there was a
basis for a finding to be
made that indeed Naicker was guilty of
gross insubordination.
[25]
In summary, it is apparent from the overall material before the
Commissioner that
the failure to obey Fritz’s instructions for
emails to customers to be copied to her was not attributable to mere
lapses,
or a mistake, or being overworked or was unintentional as
Naicker had alleged. In the light of a final written warning
for
the same offence; a clear, simple, lawful and reasonable
instruction to copy the emails, which was followed by meetings and an
undertaking that the instruction would be followed, I have
difficulties in appreciating how it can be said that
the
reasons advanced by the Commissioner do not rationally support the
outcome she arrived at, or that
the award does not fall within
a band of reasonableness.
[26]
It was further argued that Naicker had shown contrition and had
pleaded guilty at the internal
disciplinary enquiry, and that the
sanction of dismissal was harsh under the circumstances. Item 3(2) of
Schedule 8, Codes of Good
Practice places emphasis on the need for
corrective or progressive discipline. That concept however is not
elastic, and there are
limits to which it can be stretched.
[27]
It is something else to show contrition at the disciplinary enquiry,
and yet approach the
arbitration proceedings with a different
attitude that negates the contrition allegedly shown, including
a blatant demonstration
of disregard and disrespect of one’s
manager’s authority, let alone question one’s manager’s
competencies
and authority to issue instructions. The contradiction
is glaring.
[28]
It was further submitted that the Commissioner misconstrued the
evidence in that the previous
final written warning was in relation
to a “training” matter and did not constitute a similar
offense in determining
the appropriateness of the sanction of
dismissal.
[29]
That final written warning was issued on 31 August 2016 in
circumstances where Naicker
had failed to follow an instruction to
assist a trainee. The fact of the matter is that she was found guilty
of insubordination,
and the context and the facts that led to that
warning being issued are irrelevant, as it remained valid.
[30]
Naicker’s conduct of consistently disobeying a simple, lawful
and reasonable instruction
was on the whole, wilful and serious.
Given her attitude towards Fritz as can be gleaned from her evidence,
her refusal clearly
posed a deliberate (wilful) and serious challenge
to the her (Fritz’s) authority as her manager. The contention
that the
Commissioner failed to appreciate the distinction between
insolence and insubordination is clearly without merit, especially in
circumstances where it was found that all the excuses that Naicker
had proffered were lame. This was not just a case of poor performance
or an employee being forgetful or being under pressure. The refusal
to obey the instruction in question was indeed serious and
wilful to
justify a dismissal.
[31]
The Commissioner had further concluded that any employment
relationship with Naicker was
unsustainable. In line with the
principle that respect and obedience are implied duties of an
employee under contract law, and
any repudiation thereof would
constitute a fundamental and calculated breach, I fail to appreciate
how given the facts of this
case, it can possibly be expected of
Naicker and Fritz to have had any normalised working relationship.
[32]
In regards to procedural fairness, any allegations of bias on the
part of the chairperson
of the enquiry were not pursued and there is
no basis for a finding that the dismissal was procedurally unfair.
[33]
In the end, I am satisfied that on the whole, there is no basis
for any conclusion
to be reached that the Commissioner misconstrued
the issues that she was called upon to determine or the nature of the
enquiry.
The Commissioner considered the principal issues before her;
afforded the parties a fair opportunity to state their respective
cases; took regard of all pertinent material which she had properly
assessed; and gave reasons that rationally supported her decision
that the dismissal was procedurally and substantively fair.
Ultimately, there is no basis to interfere with the award.
[34]
I have had regard to the issue of costs. In the light of the
circumstances under which
Naicker was represented in these
proceedings, there is clearly no basis for any costs order.
[35]
Accordingly, the following order is made;
Order:
1. The Applicant’s
application to review and set aside the arbitration award issued by
the Second Respondent under case
number GAEK 11771-16
dated
12 April 2017
is dismissed.
2. There is no
order is to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: M
Edwards (Pro bono),
instructed by: SASLaw
pro
bono
Law Clinic
For
the Third Respondent: Johan Biggs of Snyman Attorneys
[1]
The
email read:
‘
As
per our discussions earlier, NO incorrect charges will be given
knowing that you do not have all the information i.e. EDI charges.
Just to reiterate that as you are aware, you are not allowed to give
charges telephonically without following up with an email
for
traceability. Going forward please cc. me in all charges. If you
need more training please let me know’
[2]
Act 66 of 1996 (as amended)
[3]
[2014]
ZACC 10
;
2014 (3) SA 544
(CC);
2014 (6) BCLR 663
(CC);
[2014] 7 BLLR
621
(CC); (2014) 35 ILJ 1885 (CC)
at
para
[57],
where it was held that;
‘
Insubordination
in the workplace context generally refers to the disregard of an
employer’s authority or lawful and
reasonable instructions…’
[4]
[2018]
ZACC 29
;
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018
(6) SA 335
(CC); (2018) 39 ILJ 2633 (CC)
[5]
at
paras 43 and 50
[6]
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA);
(2013) 34 ILJ 2795 (SCA)
[7]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC);
(2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC)
[8]
[2014] ZALAC 81
;
[2015] 5 BLLR 484
(LAC) ; (2015) 36 ILJ 1511 (LAC)
[9]
At
para 19
[10]
At
para 22
[11]
At para 213
[12]
Page
34, 44 of the Transcribed record;
[13]
Pages
44 and 45 of the Transcribed Record