THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JR853/22
In the matter between:
HARMONY MINING COMPANY
LIMITED Applicant
and
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION OBO PETER MTHEMBU First Respondent
SAFETY AND SECURITY SECTORAL
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISISONER MICHAEL HOWITZ N.O Third Respondent
Heard: 11 November 2025
Delivered: 1 June 2026
Summary: An application to review and set aside an award which found that the
dismissal of an employee for failing to conduct outside inspections after leaving the
(1) Reportable: No
(2) Of interest to other Judges: No
1 June 2026
Signature Date
plant, because he fell ill, was substantively unfair. The outcome falls within a band of
reasonableness.
JUDGMENT
GANDIDZE, J
Introduction
[1] Mr Peter Mthembu (Mthembu), represented herein by his union, the
Association of Mineworkers and Construction Union (AMCU), was dismissed
because, on Friday , 20 November 2020, he and a colleague, Mr Lebohang
Moshoeshoe (Moshoeshoe), obtained authorisation from the Plant Manager,
Mr Nkateko Maluleke (Maluleke), to clock out of the Savuka Plant (Plant) and
conduct inspections outside, but they did not do so. Their employer, Harmony
Gold Mining Company Limited (Harmony or the employer ), and the first
respondent regarded this as dishonest conduct and charged them. They were
both dismissed, and they separately challenged their dismissal s at the
Commission for Conciliation, Mediation and Arbitration (CCMA). A default
award in favour of Moshoeshoe was issued but later rescinded. The award in
respect of Mthembu, dated 17 March 2022 and under case number
GAJB7229-21, found the dismissal to be substantively unfair and ordered his
reinstatement. This review application in terms of section 145 of the Labour
Relations Act
1 (LRA), by the employer , seeks an order reviewing and setting
aside the award, substituting it with an order that the dismissal was
substantively fair, alternatively remitting the dispute to the CCMA for a de
novo hearing before a different commissioner.
[2] AMCU, on behalf of Mthembu, opposed the application.
Background facts
[3] Mthembu was employed by Harmony at the Plant as a Safety Officer. At the
time of his dismissal in March 2021, he had more than 24 years' service.
1 Act No 66 of 1995, as amended.
[4] The events leading up to the dismissal can be briefly summarised as follows.
Harmony appointed Maluleke as Plant Manager in August 2020. Moshoeshoe
was a full -time Health and Safety Representative at the Plant. Mthembu and
Moshoeshoe informed Maluleke of the arrangement they had with the
previous Plant Manager that, after completing outside inspections, they were
not required to return to the Plant. However, authorisation to conduct outside
inspections required completion of a screen clock document, signed by
Maluleke, as proof that they had been clocked out of the Plant, in line with the
Time and Attendance System. This was because there was no clock -in/out
system for outside Plant inspections.
[5] When Maluleke was appointed, one of his tasks was to reduce overtime
claims. Maluleke also realised that Mthembu and Moshoeshoe used their
personal or contractors' vehicles for outside plant inspections. Maluleke
addressed this issue with both Mthembu and Moshoeshoe on 16 November
2020.
[6] On 20 November 2020, Mthembu reported to the Plant. It appears he was not
scheduled to work at the Plant that day. Accordingly, he and Moshoeshoe
completed the screen clock document, which Maluleke signed, authorising
them to leave the Plant and conduct inspections outside it.
[7] Later that day, during a meeting, Maluleke established that Mthembu and
Moshoeshoe had not conducted any outside inspections. During the
arbitration proceedings , the commissioner was informed that this was
common cause.
[8] On Monday, 23 November 2020, Maluleke called a meeting with Mthembu
and Moshoeshoe to discuss Friday’s outside inspections. The employer’s
version, based on notes taken by one of the attendees, was that Mthembu
and Moshoeshoe claimed they had conducted the external inspections with
‘Alex Modau’. Mthembu’s version was that he informed Maluleke that they had
not conducted inspections on 20 November 2020 because he had fallen ill,
not conducted inspections on 20 November 2020 because he had fallen ill,
and that the inspections with Alex were on 13 November 2020. Mthembu
disputed that the notes accurately reflected the discussion on 23 November
2020.
[9] On 14 December 2020, Mthembu was called to a meeting with Loyo Malatjie
(Malatjie), a security officer tasked with investigating what Mthembu and
Moshoeshoe had done after leaving the Plant on 20 November 2020.
Mthembu informed Malatjie that he could not remember what had happened
that day. Mthembu claims that he was not briefed on the purpose of the
meeting with Malatjie, a contention which appears not to be disputed by the
employer.
[10] It was decided to charge Mthembu and Moshoeshoe as follows:
‘Left the Plant to go do legal inspections at the outside sections with the use
of screen clocking for Time and Attendance in which no legal inspections
were never conducted (sic).’
[11] While Maluleke testified that, for the first time, Mthembu alleged during closing
arguments that he left the Plant because he had flu symptoms and thought he
had COVID-19, Mthembu testified that he informed Maluleke at the meeting
on 23 November 2020 that they had not conducted inspections on 20
November 2020 because he had fallen ill.
[12] Mthembu was found guilty and dismissed. He appealed.
[13] During the appeal, Mthembu presented a note dated 8 March 2021 from Dr
Adel Steyn, which read as follows:
‘RE: Mr PS Mthembu
ID: xxxxxx
Abovementioned well known to me. He is a diabetic. I initiated insulin
management. I requested the My Star Care Sister to consult and educate Mr
Mthembu on his use of his insulin. He was seen by the educator on
20/11/2020.’
[14] He also presented a short messaging service (SMS) dated Friday , 20
November 2020, which read as follows:
‘Hello, Mr. Mthembu. You recently had a discussion with M yStarCare
diabetes educator. Out of 5 stars, where 5 is the best, how many stars would
you give the educator for the discussion? Please reply with just a number
from 1 to 5. Thanks! The MyStarCare Administrators.’
[15] This was the first time Mthembu had presented these documents to the
employer.
[16] The appeal was dismissed, hence, the dispute was referred to the CCMA.
The arbitration proceedings and the award
[17] Both Maluleke and Malatjie gave evidence for the employer, while Mthembu
gave evidence in his own defence.
[18] The commissioner summarised the employer’s case as follows. Mthembu
completed the screen clock document, indicating that he would conduct
outside inspections. He did not conduct them. When asked about it on 23
November 2020, he did not come clean or admit that he had not conducted
the site inspections, which the employer regarded as dishonest. This is why
he was charged.
[19] Regarding Mthembu’s version, he testified that he intended to conduct the
external inspections but felt ill after submitting the screen clock document. He
decided to consult a doctor and conduct the site inspections later that day, but
did not do so. He did not intend to be dishonest about what happened and
was confused by his diabetes. He was treated for diabetes that day and forgot
about it. His wife went through his phone and discovered the SMS about a
MyStarCare sister's visit.
[20] The commissioner recorded the issues for determination as whether Mthembu
was dismissed for a fair reason and whether dismissal was an appropriate
sanction.
[21] He found that the employer’s case was that Mthembu had failed to conduct
the required outside Plant inspections and that the employer was justified in
charging Mthembu. He also accepted that the employer’s concerns about
employees claiming for overtime not worked were valid. However, he found
that Mthembu had provided evidence that he had consulted the doctor, who
arranged for a MyStarCare sister to visit him at home and show him how to
inject himself with insulin. Therefore, Mthembu had a valid reason for not
conducting the outside Plant inspections on 20 November 2020. At the same
time, the commissioner found that Mthembu ought to have contacted
Maluleke to inform him that he was going to the doctor and would not conduct
the outside Plant inspections.
[22] Regarding the delay in Mthembu providing the version that he had consulted
with a doctor on 20 November 2020, the commissioner accepted Mthembu’s
explanation that he was confused, as he provided proof that he had in fact
consulted a doctor and seen a MyStarCare sister on the day in question.
However, the commissioner also found that the employer was justified in
believing that Mthembu had been dishonest.
[23] The commissioner also took into account that Mthembu had 24 years’ service
and a clean disciplinary record.
[24] Taking all of the above into account, he determined that dismissal was harsh
and therefore ordered reinstatement with effect from 1 April 2022, rather than
retrospectively to 30 March 2021, the date of dismissal. This was intended to
express his disapproval of Mthembu’s conduct.
Grounds for review
[25] The founding affidavit raises two grounds for review. The first concerns the
commissioner’s finding that Mthembu had no intention of being dishonest, and
the second concerns the sanction imposed by the commissioner.
[26] In respect of the first ground, it was submitted that the commissioner
committed a gross irregularity by failing to attach appropriate weight to the
evidence before him and to have regard to the probabilities of the parties’
versions. It is said that the commissioner ought to have drawn a negative
inference against Mthembu, found him not a credible witness, and held that
his versions were improbable. This is because he advanced conflicting
versions as follows:
26.1 regarding his whereabouts on 20 November 2020, in that on 23
November 2020, he claimed that they met with ‘Alex’, yet on 14
December 2020, he informed Malatjie that he could not remember
where he was.
26.2 he claimed that he felt ill after leaving the Plant, but also claimed that
he felt ill before leaving the Plant.
26.3 during the disciplinary hearing, Mthembu claimed that he did not return
to work because the doctor advised against it, but he also said he felt
weak after a visit from a MyStarCare sister and decided to rest.
[27] The improbable versions are said to be that Mthembu did not inform Maluleke
of his severe illness on 20 November 2020 and did not follow the leave
procedure; that Mthembu and Moshoeshoe left the Plant in their private
vehicles instead of a Harmony -owned vehicle, as per protocol; that on 23
November 2020 Mthembu was deceitful in stating that they conducted outside
inspections on 20 November 2020 rather than stating that he was ill; that on
14 December 2020 Mthembu claimed not to remember where he was on 20
November 2020; that at no point did Mthembu inform Maluleke to stop the
salary payment for 20 November 2020; that Mthembu’s wife ought to have
reminded him about the events of 20 November 2020 for the purposes of the
disciplinary hearing, since he risked losing his job, and only reminded him
during the appeal stage.
[28] It was also submitted that the doctor's note did not assist Mthembu because it
did not record that he was ill and unfit for work, and that during the arbitration
proceedings, Mthembu reverted to the initial version, namely that he did not
return to work on 20 November 2020 because he had symptoms of COVID -
19.
[29] Therefore, the commissioner ought to have concluded that Mthembu left the
Plant knowing he would not conduct outside inspections but would run
personal errands. Hence, he intended to be dishonest and was, in fact,
dishonest. The submission is that the commissioner’s finding that Mthembu
did not intend to be dishonest is one no reasonable decision- maker could
reach.
[30] Regarding the sanction, it is submitted that Mthembu committed gross
dishonesty by submitting a screen clock document stating that he would
dishonesty by submitting a screen clock document stating that he would
conduct outside inspections, failing to do so, claiming remuneration for the
shift, and withholding information about his whereabouts after he left the
Plant. The misconduct is said to have damaged the relationship of trust, that
only dismissal was the appropriate sanction, and that the commissioner’s
failure to find as such is a conclusion no reasonable decision- maker could
have reached.
[31] Rather than merely supplementing the grounds of review, the supplementary
affidavit repeats what was already set out in the founding affidavit and then
adds a few other issues. Only the new issues raised in the supplementary
affidavit will be addressed.
[32] In respect of the first ground, it is submitted that the commissioner
misconceived the nature of the inquiry and reached a conclusion that was
disconnected from the evidence. It is further submitted that the commissioner
was required to resolve the factual disputes by considering the credibility,
reliability and probabilities of the evidence.
[33] It was improbable that Mthembu fell ill 30 minutes after handing in the screen
clock document. The version that he could not inform Maluleke because
Maluleke was unavailable was never put to Maluleke. Mthembu had no
intention of conducting the outside inspections after leaving the Plant on 20
November 2020.
[34] Reference was made to the notes of the meeting on 23 November 2020,
which Mthembu is said to have challenged for the first time during the
arbitration proceedings. Mthembu did not inform Maluleke during this meeting
that he was ill on 20 November 2020, but said they had met with Alex Modau
during the outside inspections.
[35] If Mthembu was sick, policy required him to submit a sick note within 7 days.
The doctor's note does not record that Mthembu consulted the doctor on 20
November 2020 or that he had flu symptoms. Therefore, contrary to the
commissioner's finding, which distorted the outcome, Mthembu did not prove
that he consulted the doctor on 20 November 2020. The consultation with the
sister from MyStarCare to be educated about insulin was not an emergency
and ought to have occurred after Mthembu had knocked off.
[36] The commissioner’s conclusion that Mthembu was confused is disconnected
from the evidence, and the conclusion that he did not intend to be dishonest is
one no reasonable decision-maker could reach.
[37] Regarding sanction, it was submitted that neither length of service nor a clean
disciplinary record could mitigate Mthembu’s dishonest conduct. It was also
submitted that Maluleke stated that dishonest people put Harmony’s business
at risk and that Maluleke took Mthembu’s misconduct seriously.
[38] In the replying affidavit , it was submitted that Maluleke testified that Mthembu
was required to submit a medical certificate for a Shift Adjustment to be
signed, and that it was not necessary to lead evidence of a breakdown in the
trust relationship where dishonesty was concerned.
AMCU’s contentions
[39] Not all of AMCU’s contentions are set out herein, but only those considered
pertinent to the grounds for review.
[40] It was undisputed that on 20 November 2020 Maluleke was on a conference
call and therefore unavailable.
[41] At no point did Mthembu claim to have COVID -19. He thought he had it, but
the doctor said he did not.
[42] During the arbitration proceedings, Mthembu disputed the notes of the 23
November 2020 meeting. At the meeting, he told Maluleke that he had not
conducted any outside inspections because he fell ill.
[43] Mthembu testified that he did not submit the doctor's note because he
believed it was not required, as he had attended work on 20 November 2020.
In any event, Mthembu was not charged with a policy breach for failing to
submit a medical certificate.
[44] It is understandable that, on 14 December 2020, Mthembu informed Malatjie
that he could not remember where he had been on 20 November 2020, as it
was several weeks earlier.
[45] The employer did not lead any evidence that the trust relationship had broken
down.
[46] Ultimately, Mthembu was dismissed for having high blood sugar and for
attending a medical practitioner. Hence, the dismissal was unfair. He was
punished by not being awarded back pay. The award is reasonable, and the
review application is a disguised appeal.
Evaluation
[47] Both parties correctly identified the trite test for review in matters such as the
present, namely whether the outcome was one that no reasonable decision -
maker could reach. In deciding that question, the review court takes into
account all material placed before the commissioner, even if the
commissioner did not refer to it in the award.
[48] As the commissioner pointed out to the parties, he was required to decide the
matter afresh on the evidence before him, not on what occurred during the
disciplinary hearing. That approach was correct.
[49] At the commencement of the arbitration proceedings, Mthembu’s
representative informed the commissioner that Mthembu and Moshoeshoe did
not conduct any outside inspections on 20 November 2020.
[50] The employer’s case was that Mthembu submitted the screen clock
document, knowing he would not attend to outside inspections. The case was
further that he had been dishonest about where he went on 20 November
2020, and that only at a later stage did he provide a version stating that he
had consulted with a doctor and the sister from MyStarCare.
[51] The commissioner held that Mthembu had a valid reason for not conducting
the outside inspections on 20 November 2020, namely that he fell ill and had
to consult a doctor. The employer submits that it never accepted that
Mthembu had consulted a doctor or had been seen by a sister from
MyStarCare, and that the commissioner erred in accepting a version disputed
by the employer.
[52] Maluleke testified as follows:
‘Mr. Maluleke: Commissioner, I mean, Im not in a position to dispute the fact
that Mr Mthembu might have consulted the doctor on the 20 th. However,
what’s not evident on this information that is before us is the time at which
the consultation took place.’
[53] Therefore, according to Maluleke, the issue concerned the time at which
Mthembu consulted a doctor on 20 November 2020, and not that Mthembu
had not consulted a doctor on that day.
[54] Malatjie’s version was that, since it was not an emergency, Mthembu ought to
have consulted the doctor and the sister from MyStarCare after work. He had
no difficulty with the version that Mthembu consulted the doctor and was later
seen by the nurse on 20 November 2020.
[55] Therefore, in circumstances where Harmony’s own witnesses did not dispute
that Mthembu had consulted the doctor and the sister from MyStarCare on 20
November 2020, the commissioner had no basis to reject Mthembu’s version.
[56] In addition, there was no objection to admitting the doctor’s note and SMS on
the ground that they were hearsay. Maluleke and Malatjie were cross -
examined on the doctor's note and SMS without any objection that they were
hearsay. Similarly, Mthembu led evidence regarding the doctor’s note and
SMS without objection. It was only during Mthembu’s cross -examination that
Harmony’s representative put it to Mthembu that the doctor’s note was
hearsay and asked whether the doctor and the sister would testify. This w as
too late.
[57] It was never put to Mthembu that he had not seen a doctor or a sister from
MyStarCare on 20 November 2020. Therefore, the commissioner was correct
to admit the doctor’s note and the SMS into evidence.
[58] It is also noteworthy that the admission of the doctor’s note and the SMS by
the commissioner was not raised as grounds for review. This shows that the
employer is nitpicking, which is not permitted.
[59] What Mthembu is alleged to have testified to in Moshoeshoe’s matter did not
alter the fact that, before the commissioner, he gave evidence, which the
employer could not dispute, that he had consulted a doctor and had been
seen by a sister from MyStarCare on 20 November 2020. Similarly, whether
at some point he said he had COVID -19 and had not referred to diabetes is
immaterial. The version that he thought he had COVID-19, and that the doctor
said it was his diabetes, which required management, is probable.
[60] In Harmony’s heads of argument, it is submitted that no version was put to
Maluleke as to whether Mthembu fell ill before or after leaving the plant. Either
way, Maluleke could not comment on the issue, as the information was
outside his knowledge. The fact is that Mthembu did not tell Maluleke on 20
November 2020 that he had fallen ill. He conceded that he ought to have told
Maluleke but testified that Maluleke was not available. The commissioner held
that Mthembu ought to have told Maluleke that he had fallen ill. Implicit in that
finding is that the commissioner rejected Mthembu’s version that Maluleke
was unavailable. This is reasonable.
[61] The contention that the commissioner misconceived the nature of the inquiry
because he accepted the doctor's note and the SMS as proof that Mthembu
had consulted a doctor and had been seen by a sister on 20 November 2020
is misguided. Accepting a version does not amount to misconceiving the
inquiry.
[62] Acceptance of that version was in line with the evidence presented. It was not
a finding disconnected from the evidence submitted by the employer.
[63] The doctor’s note was not a sick note, but even this does not assist the
employer’s case. The issue was whether Mthembu had attended the doctor
and had been seen by a sister from MyStarCare on 20 November 2020. The
note and the SMS were sufficient to prove this. It was not suggested that the
note and the SMS were fabricated. If the employer genuinely believed that the
note and the SMS were fabricated. If the employer genuinely believed that the
doctor’s note and the SMS were fabricated, it had more than sufficient time
between the appeal and the arbitration proceedings to fact -check them. It did
not do so. The authenticity of the doctor's note and the SMS was not
challenged, and the commissioner was duty-bound to accept them as proof of
Mthembu’s whereabouts after he left the Plant on 20 November 2020.
[64] The employer’s contention that Mthembu was required to submit the sick note
was answered. Mthembu testified that if one attended work and consulted a
doctor later that day, a sick note or medical certificate was not required. He
was not challenged on that version. Nor was he charged with contravening
policy for failing to submit a sick note.
[65] The employer places considerable emphasis on the notes, which show that
Mthembu made no mention of having fallen ill on 23 November 2020. Apart
from Maluleke, three other employees were present, yet none were called to
give evidence about what Mthembu and Moshoeshoe said at the meeting. At
best, the document was a contemporaneous note by Eicker, who could have
been called as a witness but was not. No weight could be placed on an
undated, unsigned document.
[66] Even if the award does not use the terms ‘credibility’, ‘reliability’ and
‘probabilities’, the reasons for the decision make it clear that the
commissioner engaged in that exercise. To recapitulate, he found that the
employer was justified in charging Mthembu for failing to conduct outside
inspections on 20 November 2020. He also held that Mthembu had a valid
reason for not conducting the outside inspections, as he had fallen ill and
consulted a doctor, and later a sister from MyStarCare. He further held th at
Mthembu delayed informing the employer that he had consulted a doctor and
a sister and that had he done so, he would not have been charged. This is
what Maluleke stated during the arbitration proceedings. The commissioner
accepted Mthembu’s version that he was confused at the time and that it was
his wife who reminded him of his whereabouts after reviewing his phone, a
version that was not disputed. Therefore, it was unnecessary to lead expert
evidence on Mthembu’s psychological state, as submitted by Mr Itzkin.
evidence on Mthembu’s psychological state, as submitted by Mr Itzkin.
[67] Mr Itzkin also submitted that the evidence of excessive overtime, together with
the fact that Mthembu and Moshoeshoe tended to use contractors' vehicles
for outside inspections, provided relevant context. The commissioner
accepted that the evidence of excessive overtime was relevant. Evidence
regarding the use of contractors' vehicles was irrelevant because the
employer’s version was that, on 20 November 2020, Mthembu and
Moshoeshoe left the Plant in their private vehicles. Mthembu was not charged
with claiming excessive overtime or with ignoring the discussion on 16
November 2020 not to use contractors' transport for outside inspections.
Therefore, Mthembu cannot be criticised for failing to challenge this evidence
when it was led.
[68] The fact that Mthembu was paid for the full shift despite not completing the
outside inspections pales into insignificance when one considers the
undisputed evidence that employees worked half a day on Fridays, and
Maluleke’s own evidence that employees were expected to leave after 10H00
because cleaning of the work areas starts at 12H00. Maluleke also did not
deny that the outside inspection would have taken Mthembu and Moshoeshoe
less than an hour. Therefore, the time lost by Harmony Gold is less than an
hour’s work.
[69] The commissioner made no express finding on Mthembu’s guilt or otherwise.
On a proper reading of the award, the commissioner found Mthembu not
guilty of misconduct because he had a valid reason for not conducting outside
inspections on 20 November 2020 and no intention of being dishonest about
what happened on that date. Mr Itzkin supported the interpretation of the
award that the commissioner found Mthembu not guilty. If that is the case, the
issue of sanction fell away.
[70] But even if it could be argued that a finding of guilt is implicit, given that the
commissioner did not grant retrospective reinstatement, Maluleke’s own
version was that, had Mthembu disclosed that he had gone to the doctor and
seen a sister on 20 November 2020, he would not have been charged but
would have been counselled. Therefore, Mthembu’s failure to conduct outside
inspections on 20 November 2020, after completing the screen clocking
inspections on 20 November 2020, after completing the screen clocking
document, and to consult with a doctor and a nurse, was not serious
misconduct warranting dismissal. Maluleke’s evidence that dishonest people
put Harmony’s business at risk could not outweigh his evidence that Mthembu
would have been counselled.
[71] As Mr Cook correctly pointed out in oral argument, Harmony did not lead any
evidence on the breakdown of the trust relationship. Therefore, it is not open
to it, in the review, to argue that case. It follows that the decisions in Autozone
v Dispute Resolution Centre of Motor Industry and Others 2, and Toyota South
Africa Motors (Pty) Ltd v Radebe and Others 3, which the employer relied
upon, do not advance its case on sanction any further.
[72] The commissioner did not allow Mthembu to get off scot -free. He was not
blind to the fact that Mthembu was the author of his own misfortune, which is
why he did not order retrospective reinstatement. He balanced the employer's
interests with those of Mthembu, a reasonable approach.
[73] The award is not perfect, and it is not expected to be. On review, the correct
test is whether, taking into account the totality of the circumstances, it can be
said that no reasonable decision- maker could find that Mthembu’s dismissal
was substantively unfair and reinstate him. Nitpicking a few imperfections in
an award does not suffice. To do so would be to allow a party to appeal an
award, which is not permissible. The court has struggled to identify any
material imperfections in the award that distorted the outcome, rendering it
reviewable. In fact, the court would have reached the same conclusion as the
commissioner. As a result, Harmony has not met the review test, and the
award will not be interfered with.
[74] As regards costs, an order in accordance with the requirements of law and
fairness is that each party pay its own costs.
[75] In the premise, the following order is made:
Order
1. The review application is dismissed.
2 [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC).
3 [2000] 3 BLLR 243 (LAC).
2. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Advocate R Itzkin
Instructed by: Webber Wentzel
For the Respondent: Advocate A Cook
Instructed by: LDA Inc Attorneys