1
THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
CASE NO: PR 90/24
In the matter between:
MNQUMA LOCAL MUNICIPALITY Applicant
And
MANDLENKOSI MINI N.O. First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
NONTATHU PRETTY MNINI Third Respondent
(1) Reportable: NO
(2) Of interest to other Judges: Yes
Signature Date
2
Heard: 29 January 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ Legal Representatives by email, publication on the Labour Court
website and release to SAFLII. The date and time for handing - down is
deemed to be 12h00 on 27 March 2026.
___________________________________________________________________
JUDGMENT
LALLIE J
[1] Section 151 of the Constitution of the Republic of South Africa, 1996 (the
Constitution) provides that the local sphere of government consists of
municipalities. The objects of local government are set out in section 152 of
the Constitution. They include the provision of accountable government for
local communities and the provision of services in a sustainable manner.
Municipalities discharge their constitutional mandate in various ways including
through its employees. The applicant employed the indivi dual applicant Ms
Mnini (Mnini) in 2015. It dismissed her for misconduct on 17 October 2023 at
a time she was its Supply Chain Manager. The third respondent exercised the
right to challenge the fairness of Mnini’s dismissal by referring an unfair
dismissal dispute to the second respondent (the bargaining council). In an
attempt to reso lve the dispute the bargaining council appointed the first
respondent (the arbitrator) to arbitrate it. In an arbitration award dated 19
March 2024 the arbitrator found Mnini’s dismissal substantively unfair and
ordered the applicant to reinstate her. In this application the applicant seeks
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an order reviewing and setting aside the arbitration award on the grounds that
it has a defect as envisaged in section 145 (1) of the Labour Relations Act 1
(the LRA). The application is opposed by the third respondent.
[2] The third respondent delayed in filing the answering affidavit and sought
condonation for the lateness. The condonation application is opposed by the
applicant. The extent of the delay is about a year . The reason her attorney
proferred for the delay is that the answering affidavit was due within 10 days
of the filing of the supplementary affidavit. Upon receipt of the supplementary
affidavit he took the applicant’s file home with the intention of working on it
over the weekend. He then forgot about it and his attention was brought to it
when he received the notice of set down 17 August 2025. He w orked on the
answering affidavit, delivered it and the application for condonation of its late
filing. The applicant submitted that the excessive delay and its explanation
which it viewed as unreasonable justified the dismissal of the condonation
application. It was further argued that the third respondent should not be
permitted to rely on her attorney’ s negligence. The applicant relied on the
following dictum in Saloojee and A nother NNO v Minister of Community
Development
2:
“…I should point out, however, that it has not at any time been held that
condonation will not in any circumstance be withheld if the blame lies with the
attorney. There is a limit beyond which a litigant cannot escape the result of
his attorney’s lack of diligence or the insufficiency of the explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance of the Rules of this Court. Considerations ad/and mi sericordiam
1 Act 66 of 1995, as amended.
2 1965 (2) SA 135 A at para 141 B – H.
4
should not be allowed to become an invitation to laxity. In fact, this Court has
lately been burdened with an undue and increasing number of applications for
condonation in which the failure to comply with the Rules of this Court was
due to neglect on the part of the attorney. The attorney, after all, is the
representative whom the litigant has chosen for himself, and there is little
reason why, in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal cons equences of such
a relationship, no matter what the circumstances of the failure are…”
[3] The third respondent submitted that she has good prospects of success in
that the decision reached by the arbitrator falls within bounds of
reasonableness. She further submitted that she will suffer serious prejudice
should condonation be refused while the applicant was not prejudiced by the
delay and would also not be prejudiced by the success of her condonation
application. It was argued on her behalf that the interests of justice require
that her application should succeed. She relied on the following dictum in
Grootboom v National Prosecuting Authority and Another
3:
“[23] It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it to the
court’s indulgence. It must show sufficient cause. This requires a
party to give a full explanation for the non-compliance with the rules or
court’s directions. Of great significance, the explanation must be
reasonable enough to excuse the default”.
[4] I have considered the submissions made on behalf of the parties before me
on condonation and the authorities they referred to. Some judgments the
parties sought to rely on were handed down before the promulgation of the
3 [2014] 1 BLLR 1 (CC) at para 23.
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LRA. There is therefore a material factor that could not have been taken into
account when the decisions were taken. That factor is provided for in section
3 (a) and (b) of the LRA which enjoins a person applying the LRA to interpret
its provisions to give effect to its objectives and in compliance with the
Constitution. The purpose of the LRA as stated in its section 1 includes the
effective resolution of labour disputes. In Grootboom v NPA
4 (supra) the
Constitutional Court reaffirmed the factors that must be taken into account
when condonation applications are determined. It also added that ‘T he
particular circumstances of each case will determine which of these factors
are relevant’.
[5] I agree with the applicant that a year’s delay is excessive and the explanation
given supports the conclusion that the third respondent’s attorney was at fault.
Having considered all the submissions on condonation I am of the view that
the circumstances of this case require that more weight be given to the nature
of the relief sought, the respondent’s prospects of success, prejudice, the right
to be heard and the effective resolution of labour disputes. In filing the
condonation application the third respondent seeks the relief of being granted
leave to oppose the review. She therefore wishes to assert the right to access
to courts that is ent renched in section 34 of the Constitution. The
Constitutional Court has highlighted the importance of the other party’s right to
have a case finalised without undue delay. The applicant conceded that it
suffered no prejudice as a result of the third respondent's delay in filing the
answering affidavit. Further, the third respondent showed her prospects of
success in the review application. The effective resolution of the dispute
4 at para 22
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between the parties requires that each party be afforded an opportunity to
present its case. The delay and its consequences on the applicant does not
justify denying the third respondent the right to be heard. The totali ty of the
submissions on condonation point to the conclusion that it is in the interests of
justice that the applicant’s non-compliance with Rule 7A( 9) be condoned as
she has shown good cause. The late filing of the answering affidavit is
therefore condoned.
[6] The applicant’s main grounds for review are that in the course of conducting
the arbitration the arbitrator committed gross irregularities which resulted in
him reaching an unreasonable decision. The irregularities included errors of
fact and law and overlooking admissible evidence the applicant tendered in
proving the substantive fairness of the third respondent’s dismissal. It was the
applicant’s case that had the gross irregularities not been committed the
arbitrator would have reached the reasonable decision that Mnini’s dismissal
was substantively fair.
[7] The test for review in cases based on gross irregularities committed by an
arbitrator in the conduct of an arbitration is reaffirmed as follows in Head of
Department of Education v Mofokeng and Others
5:
“…Mere errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning of the
arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc. must be assessed with
the purpose of establishing whether the arbitrator has undertaken the wrong
enquiry, undertaken the enquiry in the wrong manner or arrived at an
5 [2015] 1 BLLR 50 (LAC) at para 32.
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unreasonable result. Lapses in lawfulness, latent or patent irregularities and
instances of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the material that was
before him or her.”
[8] In the reasons the arbitrator provided for his decision he noted that the
disciplinary enquiry that culminated in M nini’s dismissal was triggered by an
instruction she received form Mr Motamane (Matomane) , the applicant’s
Municipal Manager. The evidence tendered at arbitration was that in February
2022 the Constitutional Court issued its judgment in Minister of Finance v
Afribusiness NPC
6. In the judgment it declared the preferential procurement
regulations promulgated in terms of the Preferential Procurement Policy
Framework Act 5 of 2000 invalid. The declaration of invalidity was suspended
until 16 January 2023 in order to afford the M inister an opportunity to
introduce new regulations consistent with the judgment. The effect of the
judgment on municipalities was that they had to amend their Supply Chain
Management (SCM) policies which were based on the regulations that had
been declared invalid. On 4 November 2022 the M inster of F inance (the
Minister) promulgated new regulations which were consistent with the
judgment. The new regulations had, in compliance with the judgment, to come
into effect on 16 January 2023.
[9] To ensure proper implementation of the new regulations Mnini and other staff
members in her section attended 2 training sessions conducted by treasur y
and the Department of Cooperative Governance and Traditional Affairs
6 2022 (4) SA 362.
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(COGTA). The arbitrator noted Matomane’s evidence that on 30 November
2022 the employees that had attended the training gave him feedback. They
discussed the new regulations and realized that they needed clarity f rom
treasury on their functionality. Matomane asked Mnini to request the clarity
from treasury. On 1 December 2022 the clarity was provided via email.
Matomane then asked Minini to effect the necessary changes to the SCM
policies and do gap analysis which had to be presented to the Mayoral
committee and council for approval on 9 December 2022. He also asked her
to send him the revised supply chain management policy and the gap analysis
indicating which parts were added and those that had been removed.
[10] As Mnini had expressed an intention to take leave on 2 December 2022
Matomane told her that her leave depended on her finishing the task he had
given her. He further requested her to send hi m the updated SCM policy and
gap analysis by 2 December 2022 so that he could review it. It was the
applicant’s case at arbitration that Mnini failed to carryout M atomane’s
instructions. She was then charged with and dismissed for gross negligence
for her failure to carryout the instructions and failure to submit the correct
updated SCM policy conduct which, in the applicant’s view, was wrongful,
unlawful and intended to undermine and disrespect the applicant’s authority. It
is the fairness of Mnini’s dismissal for committing those acts of misconduct the
arbitrator had to determine.
[11] The arbitrator found that the document Mini failed to submit would not have
been the final one to be present to council as Matomane had to first review it.
He expressed the view that Mnini was of the view that she had to obtain input
from her team before presenting the documents to Matomane while the latter
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held the opposite view. The arbitrator noted Mnini’s evidence that she did not
submit the reviewed policy on 2 December 2022 and conceded that she did
not request an extension to submit it on 6 December 2022. He found that the
late submission of the reviewed policy without prior communication di d not
amount to gross negligence considering that Mnini was still seeking input from
her team. He rejected Matomane’s evidence that the input was unnecessary
because the applicant had failed to lead evidence from Mnini’s team members
corroborating his version. He concluded that Mnini’s conduct did not constitute
gross negligence as he did not believe that it was inexcusable. A further
reason for the conclusion was that the arbitrator accepted Mnini’s version of
what she did after the session of 30 November 2022.
[12] The arbitrator found that Mnini did not make herself guilty of the second
charge. The finding is based on his rejection of the applicant’s evidence owing
to the inconsistency, inter alia , of the date on which Matomane and Mr
Magadla (Magadla), a senior accountant , effected the amendments on the
policy. One said it was on 6 December 2022 and the other said it was a day
later. Another reason the arbitrator gave for rejecting the applicant’s version
was that it led no evidence to prove that it had taken disciplinary action or
corrective measures when Mnini had submitted substandard work in the past.
He rejected Matomane’s evidence of the actual instructions he gave Mnini
because it was uncorroborated and inconsistent with Magadla’ s evidence on
when the rework on the document Mnini had submitted was done. It is mainly
for these reasons that the arbitrator found Mnini’s dismissal substantively
unfair and ordered the applicant to reinstate her.
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[13] Ms Ah Shene, counsel for the third respondent , submitted that the applicant’s
arguments were inconsistent with its pleaded case and argued that they
should be disregarded. Kroon SC for the applicant denied and submitted that
the arguments were permissible. I have considered the submission tendered
on the issue and agree with the third respondent that the correct legal position
is that argument must be foreshadowed in the papers. Argument must
therefore be based on the pleaded case. I noted some arguments whose
basis could not be found in the applicant’s papers. In determining this review
application I will consider those arguments that are based on the applicant’s
pleaded case. The applicant’s pleaded case is premised on the grounds that
the arbitrator committed gross irregularities and errors that resulted in him
reaching an unreasonable decision which stands to be reviewed and set
aside. In Mofekeng (supra) it was held that in making the determination
whether errors constitute valid grounds from review ‘they must be assessed
with the purpose of establishing whether the arbitrator has undertaken the
wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an
unreasonable result’. It is common cause that the arbitrator conducted the
correct enquiry in that he enquired into the substantive and procedural
fairness of Mnini’s dismissal for the acts of misconduct which formed the basis
of the charges against her. What needs to be determined therefore is whether
he undertook the enquiry in the wrong manner.
[14] The guidelines for the enquiry the arbitrator was required to undertake are
contained in item 7 of schedule 8 to the LRA which was in operation when the
impugned arbitration award was issued. The guidelines require any person
determining whether a dismissal for misconduct is fair to consider whether an
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employee has contravened a workplace rule of conduct, if the rule was
contravened to consider whether the rule was valid or reasonable. The person
is further required to consider whether the employee was aware of the rule,
whether the rule has been applied consistently and whether dismissal was an
appropriate sanction for the contravention. Section 138(1) of the LRA requires
arbitrators to determine disputes fairly. Fairness must therefore permeate the
entire arbitration proceedings including its outcome. The arbitrator’s obligation
to apply the guidelines in item 7 of schedule 8 to the LRA requires the
arbitrator to apply his or her mind in determining whether an employee has
contravened a rule of conduct. It is the applica nt’s case that the arbitrator
erred and acted irregularly in determining whether Mnini contravened the
workplace rules on which the charges which resulted in her dismissal were
based. In respect of charge 1, the arbitrator found that Mnini’s conduct fell
short of the gross negligence the applicant had found her guilty of.
[15] In substantiating its submission that the arbitrator erred in finding that Mnini’s
negligence was not gross the applicant submitted that it led admissible
evidence proving that the negligence was gross but the arbitrator
misconstrued and disregarded admissible evidence. The applicant submitted
that the arbitrator disregarded the common cause evidence that Mnini and a
few other employees had undergone training by treasure and COGTA on the
new regulations. After she had briefed M atomane on the training the only
outstanding problem was functionality which the treasury solved in an email
on 1 December 2022. In light of that common cause evidence the arbitrator
had no legal basis for preferring Mnini version on the instructions Matomane
gave her. The instructions on the applicant’s version were for Mnini to submit
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the updated SCM policy and the gap analysis to Matomane before going on
leave. Further material evidence that the arbitrator disregarded was that Mnini
failed to do the gap analysis. At arbitration the parties testified that the gap
analysis is the document that explains the changes which had been effected
to the new SCM policy to make it complaint with the new regulations. Mnini
therefore had to complete effecting the amendments on the SCM policy
before she could prepare the gap analysis. According to comm on cause
evidence presented at arbitration the document Mnini submitted to Matomane
late was incomplete in that it was not a reviewed SCM policy and it contained
notes based on the input of her juniors on the amendments that had to be
effected. The infrastructure and roads policy was not reviewed and the gap
analysis report was not submitted.
[16] I have considered the argument on behalf of the third respondent that the
reasonableness of the arbitrator’s finding that Matomane and Mnini were not
on the same page of what needed to be done on 2 December 2022. It was
further argued that the arbitrator reasonably preferred Mnini’s version in the
absence of evidence of the other employees who were present when the
instruction was given. The argument overlooks the arbitrator’s omission to
give reasons for the need to have Matomane’s evidence corroborat ed. It also
fails to consider other relevant evidence. The argument in support of the
arbitrator’s finding that Mnini complied with the instructions Matomane gave
her overlooks the arbitrator’s omission to consider all the relevant evidence
which includes Mnini’s failure to submit the reviewed policy on infrastructure
and roads and the gap analysis document. The argument that the arbitrator
did not err in accepting that Mnini did not deliberately exclude Matomane from
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the addressees of the email of 2 December 2022 in which she sought input
form her juniors. It was also argued that the arbitrator reasonably accepted
Mnini’s evidence that she handed over to Ms Vava (Vava) as she had to
attend to a family crisis.
[17] Mnini’s conduct supports the applicant’s version in that it proves that she had
reason to hide f rom Matomane her invitation for input f rom her juniors. The
reason is that the input was not necessary. By her own admission, Minin did
not tell Vava of her obligation to submit the reviewed SCM policy and the gap
analysis document when she handed over to her. She therefore retained the
obligation to carryout the instructions Matomane gave her . The purpose of
reviewing the SCM policy and the procedural step that it had to be presented
to the last council meeting scheduled for 8 December 2022 before it come into
effect does not support the third respondent’s argument that the arbitrator
reasonably preferred Mnini’s version. The applicant’s version is supported by
the totality of the evidence and the inherent probabilities . The absence of
corroborating evidence was not fatal.
[18] I have considered the authorities the third respondent relied on in support of
the arbitrator’s finding that the negligence was not gross. Mnini ’s conduct is
similar to the conduct which falls within the definition of gross negligence in
Transnet Ltd t/a Postnet v Owners of the MV Stella Tingas
7. In that case the
court pointed out that serious errors, poor judgment or incompetence do not
automatically constitute gross negligence unless accompanied by
recklessness, indifference or a conscious disregard of duty. Mnini was aware
that she had to send the reviewed SCM policy and the gap analysis to
7 2003 (2) SA 473 (SCA).
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Matomane for him to consider it and ensure that it was ready for presentation
to the council at its last meeting before the implementation date of the new
SCM policy. Her failure to perform her duties exposed the applicant to the risk
of being unable to procure goods and services. When she decided to go on
leave disregarding the undertaking that she would go on leave after
presenting the documents to Matomane she did not ask Vava to ensure that
Matomane’s instructions were complied with. She further did not tell Magadla
who was acting for Matomane of the undertaking when requesting leave.
Even the incomplete document she submitted excluded the review in respect
of infrastructure and roads . Evidence properly placed before the arbitrator
proved that her failure to present the documents was accompanied by
recklessness and disregard for duty. Her negligence was, in terms of the
evidence, gross.
[19] It is common case that Mnini apologized for submitting the review of the SCM
policy late. The arbitrator’s view that Mnini needed input from her team whose
members did not attend training on the new regulations is inconsistent with
the evidence placed before him particularly because treasur y had already
solved the only problem that had been identified. The reason the arbitrator
found that Mnini’s negligence was not gross was that the late submission of
the document without prior communication does not amount to gross
negligence. The finding and his view that the applicant had failed to prove that
the input of Mnini’s juniors was unnecessary influenced the arbitrator’s
decision on charge 1. They also prove that the arbitrator had no
understanding of the misconduct charge 1 entailed. He found that Mnini had
committed negligence. Had the arbitrator considered all the evidence led in
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respect of charge 1 he would have accepted the applicant’s version that Mnini
had made herself guilty of the charge. By disregarding relevant and material
evidence the arbitrator conduct ed the enquiry into the fairness of the
applicant’s conduct in respect of charge 1 in the wrong manner. The result of
his error was that his finding on charge 1 is unreasonable.
[20] The main reason the arbitrator found that Mnini did not make herself guilty of
the second charge was that no specific standard of the expected standard of
performance was placed before him to compare. He also rejected the
applicant’s version that Matomane and Magadla had to re do and complete
the work Mnini had submitted because they contradicted themselves on the
date on which they did the remedial work. The third respondent’s efforts to
disprove the applicant’s contention that the finding is unreasonable cannot
succeed. The evidence that the arbitrator erred in reaching the finding is
overwhelming. Mnini conceded that she failed to submit the correct updated
SCM policy as she testified that she did not submit the reviewed SCM policy
on infrastructure and roads. As the arbitrator had to determine the fairness of
Mnini’s dismissal for misconduct, her record of not performing her duties
properly should not have formed a vital part of her enquiry . He erred in
rejecting the applicant’s evidence that Matomane and Magadla had to do
remedial work only because they gave different dates on which the work was
done. He had no reasons for rejecting their unrefuted evidence that they had
to complete the document particularly in view of Mnini’s evidence that she did
not review the portion on infrastructure and roads. A decision that is
disconnected from the evidence tendered at arbitration is unreasonable. The
applicant proved at arbitration that Mnini had made herself guilty of charge 2.
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The arbitrator’s finding that she was not guilty of the charge is therefore
unreasonable.
[21] The validity of the rule of conduct Mnini breached was not in dispute. So was
her knowledge of the rule. The consistent application of the rule was not
challenged. In support of the submission that the award is unreasonable the
applicant submitted that the arbitrator erred in finding that the sanction of
dismissal was inappropriate. The arbitrator’s finding is based on his rejection
of the applicant’s submission that the employment relationship had broken
down irretrievably. I have considered the argument on behalf of the third
respondent that the arbitrator did not commit any error in respect of the finding
on sanction. It was argued that the finding is correct and based on evidence
the applicant tendered at arbitration. The evidence in the third respondent’s
view, was based on dishonesty, insubordination and dereliction of duty. The
evidence is relevant when regard is had to the nature of the applicant and the
position Mninis held. I accept the applicant’s submission that the arbitrator
failed to consider that Mnini was the Head of Supply Chain Management. The
significance of her duties is aptly put as follows in Baffalo City Metro
Municipality v Tembelani Sali & Others
8:
[15] The Supply Chain Management Policy of a Municipality is an
important policy within the overall financial management scheme of
the applicant. It finds its genesis in the constitution which provides
that:
8 an unreported judgment of this court delivered on 26 August 2024 under case number PR159/22 at
para [15]
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[N]ational, provincial and municipal budgets and budgetary processes
must promote transparency, accountability and the effective financial
management of the economy, debt and the public sector”.
[22] The arbitrator failed to consider that the applicant is a municipality which his a
sphere of government that is required in section 195 of the Constitution to be
accountable. The gravity of the misconduct Mnini made herself guilty of was
unreasonably down played by the arbitrator. She took leave in breach of an
undertaking she had made and left the applicant open to the risk of being
without an SCM policy. The inability of a municipality to procure goods and
services lawfully or at all has dire consequences on service delivery. Mnini
showed no remorse for her misconduct. It is trite that lack of remorse is an
indicator that the employment relationship has irretrievably broken down. Had
the arbitrator conducted the enquiry in the correct manner he would have
concluded that the applicant had proved that the sanction of dismissal was
appropriate.
[23] The gross irregularities the arbitrator committed resulted in the unreasonable
decision that Mnini’s dismissal was substantively unfair. The arbitration award
is reviewed and set aside as it has a defect as envisaged in section 145(1) of
the LRA.
[24] The parties filed a complete set of papers which placed me in a position to
invoke the provisions of section 145(4) of the LRA and determine the dispute.
For the reasons already given, Mnini made herself guilty of the charges which
had been preferred against her. The applicant’s decision to dismiss her for the
misconduct is fair.
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[25] I could find no reason in fairness to grant a costs order against the third
respondent.
[26] In the premises, the following order is made:
1. The application for condonation of the late filing of the answering affidavit is
granted.
2. The arbitration award issued by the first respondent under case number
ECD112302 dated 19 March 2024 is reviewed and set aside and substituted
with the following:
2.1 The dismissal of Nontathu Mnini by the Mnquma Local Municipality
was substantively fair.
3. There is no order as to costs.
MZN Lallie
Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Advocate P. Kroon SC
Instructed by Wesley Pretorius & Associates Inc
For the Third Respondent: Advocate Ah Shene
Instructed by Kaplan Blumberg Attorneys