About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 181
|
|
Zikhulise Cleaning Maintenance & Transport CC v The Chairman of the Investigating Committee of the Construction Industry Development Board and Others (1112/2018) [2019] ZASCA 181; [2020] 1 All SA 677 (SCA) (2 December 2019)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1112/2018
In
the matter between:
ZIKHULISE
CLEANING MAINTENANCE &
TRANSPORT
CC APPELLANT
and
THE
CHAIRMAN OF THE INVESTIGATING
COMMITTEE
OF THE CONSTRUCTION
INDUSTRY
DEVELOPMENT BOARD FIRST
RESPONDENT
TSELISO
MAKHETHA NO SECOND
RESPONDENT
SIYABULELA
MAGAGA NO THIRD
RESPONDENT
WERNER
BOUWER NO FOURTH
RESPONDENT
Neutral
citation:
Zikhulise
Cleaning Maintenance & Transport CC v The Chairman of the
Investigating Committee of the Construction Industry Development
Board
(1112/2018)
[2019] ZASCA 181
(2 December 2019)
Coram:
Leach,
Saldulker and Mocumie JJA, Koen and Weiner AJJA
Heard:
11
November 2019
Delivered:
2
December 2019
Summary:
Construction
Industry – Regulations promulgated under s 33 of Construction
Development Board Act 38 of 2000 – inquiry
under reg 29 –
whether conduct complained of constituted breach of Code of Conduct
published under s 5(4) of Act –
conduct subject of complaint
not relating to construction procurement process, therefore not
constituting breach of Code of Conduct
–Regulation 28 and 29 –
Failure to comply with investigatory provisions necessary for valid
inquiry under reg 29.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hughes J
sitting
as court of first instance):
1 The appeal
succeeds with costs, including the costs of two counsel.
2 The order of the
court a quo is set aside and substituted with the following:
‘
(a) The
application is upheld with costs, including the costs of two counsel.
(b) The order dated
24 July 2014 of the Investigating Committee appointed under reg 29 to
inquire into conduct of the Applicant,
is set aside and replaced with
the following:
“
The charges
against the applicant are dismissed.”’
JUDGMENT
Leach
JA (Saldulker, Mocumie JJA and Koen, Weiner AJJA
concurring)
[1]
The appellant is a close corporation presently registered as a
contractor under the Construction Industry Development Board
Act 38
of 2000 (the Act). It unsuccessfully applied to the Gauteng Division,
Pretoria to review a decision taken by the first respondent,
an
investigating committee, not to dismiss certain charges brought
against it in an inquiry under reg 29 of the regulations promulgated
under the Act. The appeal to this court against that decision is with
the leave of the court a quo.
[2]
It is necessary to place the dispute between the parties in its
statutory setting. The Construction Industry Development Board
(the
Board) was established under s 2 of the Act, having the objects set
out in s 4. These include the determination and establishment
of best
practice that promotes improved industry stability, improved industry
performance, efficiency and effectiveness.
[1]
Further objectives include promoting best practice and improved
performance of both public and private sector clients, contractors
and other participants in the construction delivery process,
[2]
as well as developing projects that promote best practice.
[3]
[3]
The powers, functions and duties of the Board, set out in s 5 of the
Act, are wide-ranging. In terms of s 5(4) it is obliged
to promote
uniform and ethical standards within the construction industry and,
to that end, to ‘publish a code of conduct
for all construction
related procurement and all participants in the procurement
process’.
[4]
Pursuant to
this, on 31 October 2003 the Board published a code of conduct in the
Government Gazette
[5]
(the
Code).
[4]
Chapter 3 of the Act deals with the registration of contractors.
Under its heading, the stated purposes of the chapter include
the
following:
‘
. . . to
establish a public sector register of contractors that will support
risk management in the tendering process; reduce the
administrative
burden associated with the award of contracts; . . . assess the
performance of contractors in the execution
of contracts and thus
provide a performance record for contractors; regulate the behaviour
and promote minimum standards and best
practice of contractors . . .’
[5]
With such end in view, Chapter 3 contains various provisions relevant
to the registration of contractors. Inter alia, and these
were of
importance in regard to the decision of the court a quo:
(a)
Section
16(1) obliges the Board to establish a national register of
contractors ‘which categorises contractors in a manner
that
facilitates public sector procurement and promotes contractor
development.
(b)
Section
16(6) prescribes that a contractor may apply to the Board for
registration.
(c)
Section
16(4) obliges every organ of state to ‘apply the register of
contractors to its procurement process.'
(d)
Section
17 obliges the Board to keep and maintain a register of those
contractors who have been registered with it.
(e)
Section
20 prescribes that registration by the Board will be valid for a
period of three years.
[6]
Section 18 of the Act goes on to provide, inter alia:
‘
(1) A
contractor may not undertake, carry out or complete any construction
works or portion thereof for public sector contracts,
awarded in
terms of competitive tender or quotation, unless he or she is
registered with the Board and holds a valid registration
certificate
issued by the Board.
(2) Any contractor
who carries out or attempts to carry out any construction works or
portion thereof under a public sector contract
and who is not a
registered contractor of the Board in terms of this Act, is guilty of
an offence and liable, on conviction, to
a fine not exceeding ten per
cent of the value of the contract so carried out.
(3) A contractor
referred to in subsection (2) must, upon receipt of a written notice
by the Board served on him or her in the prescribed
manner, cease to
continue any public sector construction work.’
[7]
As appears from all of this, contractors are not obliged to be
registered with the Board. However, organs of state may only
apply
their procurement processes to registered contractors; and
unregistered contractors may not carry out or attempt to carry
out
construction works under public service contracts. This is a very
real inducement for contractors to have themselves registered
under s
16.
[8]
On 9 June 2004, the Minister of Public Works promulgated the
Construction Industry Development Regulations under s 33 of the
Act
[6]
(the Regulations). Inter
alia, they provide for procedures relating to investigations into
complaints concerning contractors and
the holding of a formal inquiry
into such a complaint if, following such investigations, the Board is
satisfied that sufficient
grounds exist to do so. I shall deal with
these in more detail in due course.
[9]
Pursuant to the provisions of s 16 described above, the appellant was
registered as a contractor for a period of three years
from 1
December 2005 to 30 November 2008 whereupon such registration
lapsed under s 20. It was again registered from 31 March
2009 until
the end of March 2012 and thereafter again for a further three year
period with effect from 19 September 2012.
[10]
Shortly after this last registration, the Board served a notice dated
25 April 2013 on the appellant. Signed by the Acting
Chief Executive
Officer of the Board, it informed the appellant that it had been the
subject of an investigation conducted under
the Regulations in which
evidence had been obtained indicating that it had contravened the Act
or the Regulations or the Code.
In this regard it particularised 20
charges. It concluded with a statement that the Board would be
instituting a formal inquiry
into these charges before an
investigating committee, and called on the appellant to indicate in
writing within 21 days whether
it admitted or denied the charges.
[11]
The investigating committee the Board appointed to carry out this
inquiry consisted of the first respondent as its Chair and
two
additional members, the second and third respondents (for convenience
I shall refer to them simply as the Committee). The fourth
respondent, an advocate, was appointed by the Board to act as
prosecutor or evidence leader at this inquiry. I should mention that
only he appeared on appeal, and the other respondents abide the
decision of this court.
[12]
Prior to the inquiry before the Committee, the appellant’s
attorneys formally objected to the charges, contending that
they did
not disclose any offence, that they were vague and embarrassing and
that, in any event, there were no provisions in the
Code that could
be offended by the conduct allegedly perpetrated. At the outset of
the inquiry, the appellant argued its objections
before the Committee
and asked for the charges to be dismissed. The Committee, however,
refused to do so and dismissed the objections.
This led to the review
proceedings which are the subject of this appeal.
[13]
In the court a quo, the appellant’s challenge to the ruling of
the Committee was based on four separate grounds. First,
it alleged
the Committee lacked jurisdiction as the conduct which was the
subject of the charges allegedly occurred at a time when
it was not
registered as a contractor in terms of the Act. Second, it contended
that the charges did not amount to conduct envisaged
by the Code
(specifically it was alleged that the Code governed conduct between
the parties to the Code and not between contractors
such as the
appellant and the Board). Third, it alleged the Committee had failed
to comply with the requirements of reg 28 (to
which I shall return in
due course) which, so it was argued, was necessary before a valid
inquiry could be held. Finally, it was
alleged there had been an
undue lapse of time before the inquiry had been instituted and this,
coupled with the fact that the inquiry
related to conduct which it
averred had been condoned by the Committee, rendered the inquiry
unfair.
[14]
In dismissing the review, the learned judge a quo dealt with the
first of these grounds. She concluded that the fact that the
appellant may not have been registered as a contractor at the time of
the conduct that was the subject of the charges, was no impediment
to
the inquiry being held. On the strength of this finding alone, she
dismissed the review, ignoring the second, third and fourth
points,
any one of which would in itself, if upheld, have allowed the review
to succeed. Why she did so, or whether she merely
overlooked these
other grounds, is known only unto her. It was raised as a ground of
appeal in the appellant’s application
for leave to appeal to
this court, but the learned judge avoided the issue in her judgment
on that application, stating that she
had dealt with ‘as much
as that which was relevant’ in her judgment. Unfortunately, she
had not. Her failure to deal
with certain of the grounds of review
remains a mystery. Although this cuts across the appellant’s
constitutional rights
of access to the courts,
[7]
it can be cured by this court considering the other grounds advanced
in the court a quo.
[15]
Although, as I have said, the court a quo decided the matter merely
by finding against the appellant on the first of the grounds
challenging the Committee’s decision, counsel for the appellant
did not seek to impugn the correctness of that decision.
Instead he
argued that both the second and third points were themselves
determinative of the matter, so that even if the court
a quo had been
correct on the first ground, they would, if upheld, dispose of the
appeal in the appellant’s favour. Thus,
whether the court a quo
was correct or not in regard to the first ground, need not detain us.
[16]
I therefore turn to consider the argument that the charges did not
relate to conduct which was susceptible to an inquiry. As
a starting
point, it is necessary to remember that s 29(1) of the Act prescribes
that the Board may ‘for the purposes of
enforcing the [Code]
convene an inquiry into any breach of the [Code] and must conduct the
inquiry in the prescribed manner’.
Any conduct that does not
constitute a breach of the Code therefore falls beyond the aegis of
such an inquiry.
[17]
The Code was published by the Board under s 5(4) of the Act to
operate as ‘a code of conduct for all construction related
procurement and all participants in the procurement process’.
This clearly limits the Code’s operation to such participants
and construction related procurement processes. That is also obvious
from the terms of the Code itself. It states in its preamble
that a
code of conduct for all ‘participants in the construction
procurement process’ is a necessary condition for
the
development of the construction industry. Further stating that it is
intentionally widely cast so as to avoid what it refers
to as ‘the
pitfall of detail’, it records that it ‘applies to the
various parties involved in public and private
procurement relating
to the development, extension, installation, repair, maintenance,
renewal, removal, renovation, alteration,
dismantling or demolition
of a fixed asset including building and engineering infrastructure’.
Thereafter, after having described
what is meant by an agent,
contractor, employee, representative, subcontractor and tenderer, it
goes on to prescribe how those
parties should deal with each other in
construction related procurements (eg by behaving equitably, honestly
and transparently
and to comply with all applicable legislation and
associated regulations), before stating:
‘
The [Code]
serves to establish the broad framework within which an action, or
default, by
any
party to the procurement process
may be judged. Any action, or default, which conflicts with the Code,
is unacceptable.’ (My emphasis.)
[18]
The remainder of the Code, save in conclusion for a brief exhortation
to those working in the construction industry to toe
the line upon
pain of proceedings under s 29, consists of examples of what
constitutes acceptable conduct on the part of various
parties in the
construction industry. In respect of a contractor it reads:
‘
Conduct of
the contractor
The contractor or
his employees should:
Undertake the
contract with the objective of satisfying the requirements of the
employer by observing the spirit as well as complying
with the letter
of the contract and, in pursuit of this objective, co- operate with
all other parties in the procurement process.
Aim to meet all
statutory and contractual obligations fully and timeously in regard
to conditions of employment, occupational health
and safety,
training, fiscal matters etc.
Not attempt to
influence the judgement, or actions, of agents, employees, or
representatives by inducements of any sort.
Employ
subcontractors only on the basis of fair, unbiased, written
subcontracts.
Not engage in unfair
or unethical practices in dealings with subcontractors.
Not make spurious
claims for additional payment or time.
Not approach any
representative directly in connection with a contract, save for a
legitimate purpose.
Not undermine the
development objectives of the employer through tokenism or fronting.
Not engage in
collusive practices that have direct or indirect adverse impacts on
the cost of the project to the employer.’
[19]
These examples clearly illustrate what had been set out in writing,
namely, that the Code relates to acceptable conduct on
the part of
various parties in the procurement process in the construction
industry. Any doubt about this is expunged by reg 27A.
Inserted into
the Regulations
[8]
on 14
November 2008, it provides as follows:
‘
27A
Application of code of conduct
– The code of conduct applies to all construction-related
procurement and all participants involved in the procurement process,
from the application for registration as a contractor, through to the
tender process and the registration and completion of a project,
including participation in the best practice project assessment
scheme and the best practice contractor recognition scheme.’
[20]
The relationship between participants in the procurement process and
the Board, on the other hand, is governed by the Act and
Regulations,
and is enforced by way of criminal sanction. Thus:
(a)
Section18(2)
makes it an offence for a contractor who carries out out construction
work under a public sector contract, or attempts
to do so, if it is
not a registered contractor of the Board.
(b)
Regulation
28(b) prescribes that a contractor whose registration is downgraded
by an investigating committee after an inquiry under
reg 29, and who
applies thereafter for its original grading or another higher grading
but fails to disclose the grade from which
it was downgraded, is
guilty of an offence.
(c)
Regulation
30(1) provides:
‘
Any person or
organ of State who
(a) supplies the
Board with false information to mislead the Board;
(b) fails to
register a project in terms of these Regulations;
(c) awards a
construction works contract contrary to these Regulations; or
(d) fails to comply
with these Regulations,
is guilty of an
offence and is liable to a fine not exceeding R100 000.00.’
[21]
From this analysis, it is clear that relations between the Board and
parties to the construction procurement process are solely
governed
by the Act and the Regulations. On the other hand, good practices
between parties to the construction procurement process
are governed
by the Code.
[22]
This is where things start to go wrong for the respondents. As
mentioned, the charges in respect of which the inquiry was convened,
were contained in the notice of 23 April 2013 addressed to the
appellant by the Board. They were the following:
Charges 1 and 2
These related to tax
clearance certificates, it being alleged that invalid or false or
forged tax clearance certificates were submitted
to the Board on
behalf of the appellant.
Charges 3 to 5
These related to
deficiencies and differing financial figures reflected in various
annual financial statements submitted by the
appellant to the Board
which were either incorrect or did not reflect the true financial
position of the appellant.
Charges 6 to 11
These related to the
alleged submission of false or inaccurate or forged documentation or
information relating to the appellant’s
qualified professionals
which had been submitted on behalf of the appellant to the Board.
Charge 12
It was alleged that
the appellant had submitted false or inaccurate information to the
Board in regard to construction works performed
during a specific
contract.
Charges 13 to 17
These related to the
failure to disclose to the Board that a particular person involved
with the appellant had been convicted on
charges of fraud.
Charges 18 to 20
These alleged that
the appellant had failed to disclose the criminal conviction of the
person mentioned in charges 13 to 17 in three
compulsory enterprise
questionnaires submitted to the KwaZulu-Natal Department of Public
Works.
[23]
These charges, if established, may possibly have constituted an
offence under the Act or the Regulations (about which I express
no
views). But, save for the last three, they do not deal with breaches
of the Code which governs the management of procurement
processes.
Rather they relate to dealings between the appellant, as a
contractor, and the Board. Only the three last charges can
be seen as
in any way involving the appellant and another party to the
procurement process (in those cases the Department of Public
Works as
an employer).
[24]
This was glossed over in argument, with both parties seemingly
accepting that none of the charges related to conduct falling
within
the ambit of a procurement process. However, it was incumbent upon
the appellant, as applicant in the court a quo, to establish
that to
have indeed been the case and it really did not help its cause by
merely submitting, as it did in its heads of argument
(which I should
immediately record were not prepared by leading counsel who appeared
on its behalf in this court) that charges
18 to 20 are not covered by
the Code of Conduct as they ‘involve the interaction between
the appellant and another department
of State’. I see no reason
why if a department of State is an employer, as was stated in charges
18 to 20 to have been the
case, the relationship between such
department and contractor should not be regarded as part of the
procurement process in respect
of which the Code applies. I am
therefore of the view that although the first 17 charges, even if
established, do not involve breaches
of the Code, the same cannot be
said of counts 18 to 20.
[25]
Insofar as the first 17 charges are concerned, however, in the light
of my conclusion that the conduct to which they refer
cannot be
construed as breaches of the Code, both the Committee and the court a
quo erred in not concluding that they fell beyond
the ambit of any
conduct into which an inquiry under reg 29 could be held. They ought
to have reached the contrary conclusion,
and on that basis alone,
dismissed those charges for lack of jurisdiction.
[26]
In the light of the finding that the final three charges survived the
jurisdictional requirement that they constitute breaches
of the Code,
it becomes necessary to consider the second ground relied upon by the
appellant in this appeal, namely, the failure
to comply with the
prescribed procedures relating to an inquiry. As indicated, s 29(1)
of the Act provides that for the purposes
of enforcing the Code, the
Board may convene an inquiry into any breach of the Code and ‘must
conduct the inquiry in the
prescribed manner’. The manner so
prescribed is that set out in the Regulations, to which I now turn.
[27]
Regulation 28 provides for a preliminary investigation pursuant to a
complaint having been received by the Board, and the latter
having
reasonable grounds to suspect that there has been a breach of the
Code which requires it to appoint an investigating officer
to
investigate the complaint or suspicion. Under reg 28(3) the
investigating officer is obliged to verify whether the Board
has
jurisdiction to investigate the complaint or suspicion and that
reasonable grounds exist for the complaint or suspicion, before
commencing with the preliminary investigation. If satisfied that the
necessary criteria have been met, the investigating officer
is
obliged under reg 28(6) to investigate the matter, and obtain
evidence to determine whether the Board may take any action against
the implicated person. After the conclusion of such investigation,
the investigating officer is obliged under reg 28(8) to
submit a
report to the Board containing the evidence obtained, his or her
conclusions and the reasons therefore; whether in the
investigating
officer’s opinion the person implicated by the complaint or
suspicion has breached the Code of Conduct; and,
finally, a
recommendation regarding the action that the Board should take. After
considering this report, reg 28(9) requires
the Board to ‘act
in accordance with the recommendation of the investigating officer if
. . . satisfied that sufficient grounds
exist for such action’.
It is only pursuant to this that a formal inquiry can be held under
reg 29(1) if the Board, after
due consideration of the report of the
investigating officer, is satisfied that one should be held.
[28]
Finally, I must mention that if an organ of state other than the
Board undertakes an investigation and finds that a person
acted
contrary to or has omitted to act in terms of the Code, the procedure
is somewhat truncated. In that event, under reg 28(10)
the relevant
organ of state is to provide the Board with its findings and all
other documentation relevant to its investigation.
Upon receipt
thereof, the Board under reg 28(11) must refer the matter to the
investigating officer appointed by the Board under
reg 28(1).
Thereafter, the investigating officer is obliged under reg 28(12) to
submit a report to the Board, containing a statement
of whether in
his opinion the person implicated has acted contrary to the Code, and
a recommendation regarding the action the Board
should take.
[29]
Bearing these requirements in mind, I turn to the facts of this
matter. On 27 August 2010, acting in terms of s 2(1) of the
Special
Investigating Units and Special Tribunals Act 74 of 1996 (the SIU
Act), the State President referred various allegations
relating to
the affairs of the Department of Public Works in the KwaZulu-Natal
Province for investigation.
[9]
Pursuant to this, a special investigating unit (SIU) approached Mr
Moola, a programme manager at the Board, who on 28 June 2012
and 27
September 2012, respectively, provided affidavits in relation to the
registration of the applicant as a contractor. In addition
to this, a
private forensic investigator, Mr Allan Nixon, was engaged by the SIU
to conduct an investigation on its behalf into
the appellant’s
dealings with the Board and the KwaZulu-Natal Department of Public
Works. A full report was issued by Mr
Nixon to the SIU at the
conclusion of its investigation. The Board obtained this report and
then instructed the fourth respondent
to peruse it and draft a notice
to the appellant. This he did. The notice he drafted was the document
dated 25 April 2013, informing
the appellant of the inquiry, setting
out the 20 charges and calling on the appellant to indicate whether
it admitted or denied
such charges.
[30]
Mr Nixon, who conducted the investigation at the request of the SIU
and prepared the report which was provided to the Board,
was not
appointed by the SIU as required by s 3(2) of the SIU Act. Instead
his relationship was stated in his letter of appointment
as remaining
‘that of a company and an independent contractor’. The
investigation was thus not conducted by an organ
of state, other than
the Board, and the provisions of reg 28(10) to reg 28(12) are
therefore of no application.
[31]
In these circumstances, at best for the respondents, on receipt of
the report the Board was obliged under reg 28(1) to appoint
an
investigating officer to investigate any complaint against the
appellant or suspicion involving it – whereafter the procedure
that I have already outlined above in reg 28(2) to reg (28)(8)
had to be followed – involving the steps the investigating
officer was obliged to take. The investigating officer in the present
matter, Mr Makhubu, took no such steps. Instead he merely
passed
Mr Nixon’s report onto the fourth respondent. Moreover he
did not submit a report to the Board as required in
reg 28(8).
Nor did the Board on receipt of such a report (as none was made)
decide to act under reg 28(9) in accordance of
the recommendation of
the investigating officer – as there was no such
recommendation. Instead the fourth respondent decided
to go ahead and
drafted the notice containing the charges on behalf of the Board.
And even if the report of Mr Nixon on behalf
of the SIU could be
regarded as that of an organ of state (which for the reasons I have
given it was not), the provisions of reg
28(12) – which
required the investigating officer to submit a report to the Board
containing a statement and recommendation
which the Board was to
consider before deciding to hold an inquiry under reg 29 – were
in any event not complied with.
[32]
It was argued on behalf of the respondents that although the strict
procedures outlined in the Regulations were not followed,
there had
been substantial compliance. In a case such as this, it is necessary
to ‘follow a common sense approach by asking
the question
whether the steps taken by [the respondents] were effective to bring
about the exigibility of the claim measured against
the intention of
the Legislature as ascertained from the language, scope and purpose
of the enactment as a whole and the statutory
requirement in
particular’. See
Weenen
Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA) para 13 approved by the Constitutional Court in
African
Christian Democratic Party v The Electoral Commission & others
[2006] ZACC 1
;
2006 (3) SA 305
(CC) para 25 in which O’Regan J also stated
that the issue is whether what was done ‘constituted compliance
with the
statutory provisions viewed in the light of their purpose’.
As Froneman J subsequently remarked in
Allpay
‘[t]his
is not the same as asking whether compliance with the provisions will
lead to a different result’.
[10]
[33]
Adopting such a common sense approach, it seems to me to be clear
that the decision to bring the charges in the inquiry was
not
preceded by the statutory requirements of investigation. The answer
to the respondent’s contention of substantial compliance
is
that there had been no compliance at all. The prescribed processes
had just not been followed, and it does not help for the
fourth
respondent to argue, as essentially he did, that if they had, been
the charges would in any event have been laid.
[34]
The result is that the validity of the reg 29 inquiry fails at the
hurdle of legality. In these circumstances, all the charges
fail by
reason of the procedural irregularity just mentioned, and the
first 17 charges fail further by reason of their not
amounting to
breaches of the Code. For these reasons, all the charges against the
appellant should have been dismissed. The Committee
erred in not
doing so, and the court a quo erred in not upholding the appellant’s
application for review of the Committee’s
decision not to do
so. The appeal must therefore succeed.
[35]
It is therefore ordered:
1 The appeal
succeeds with costs, including the costs of two counsel.
2 The order of the
court a quo is set aside and substituted with the following:
‘
(a) The
application is upheld with costs, including the costs of two counsel.
(b) The order dated
24 July 2014 of the Investigating Committee appointed under reg 29 to
inquire into conduct of the Applicant,
is set aside and replaced with
the following:
“
The charges
against the applicant are dismissed.”’
__________________
L
E Leach
Judge
of Appeal
Appearances
For
the Appellant: J Gauntlett SC QC (with him J E Howse)
Instructed
by: Garlicke & Bousfield c/o VDT Attorneys, Pretoria
Symington
De Kok, Bloemfontein
For
the Respondent: D B du Preez SC
Instructed
by: Werner Kruger Attorneys c/o Lombard & Partners, Pretoria
Hill
McHardy & Herbst Inc, Bloemfontein
[1]
Section 4
(c)
of the Act
.
[2]
Section 4
(d)
of the Act.
[3]
Section 4
(h)
of the Act.
[4]
Section 5(4)
(a)
of the Act.
[5]
Board Notice 127,
GG
25656, 31 October 2003.
[6]
Published under GN R692,
GG
26427, 9 June 2004 as amended from time to time.
[7]
Strategic Liquor Services v
Mvumbi NO & others
2010
(2) SA 92
(CC) paras 16-18; [2002] ZASCA 17.
[8]
By r 23, GN R1224.
[9]
Proclamation R 43,
GG
33506, 27 August 2010.
[10]
Allpay Consolidated
Investment Holdings (Pty) Ltd & others v Chief Executive
Officer, South African Social Security Agency
& others
2014
(1) SA 604
(CC) para 29;
[2013] ZACC 42.