Airline Pilots Association of South Africa (ALPA-SA) as represented by the South African Airways Pilots Association (SAAPA), a branch of ALPA-SA obo Members v South African Airways (SOC) Ltd and Others (J398/2021) [2021] ZALCJHB 137 (30 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 398/ 2021

In the matter between:

THE AIRLINE PILOTS’ ASSOCIATION OF

SOUTH AFRICA (ALPA-SA) AS REPRESENTED

BY THE SOUTH AFRICAN AIRWAYS PILOTS’

ASSOCIATION (SAAPA), A BRANCH OF ALPA-SA

OBO MEMBERS

Applicant

and

SOUTH AFRICAN AIRWAYS (SOC) LTD

In business rescue

First Respondent

LES MATUSON N.O

Second Respondent

SIVIWE DONGWANA N.O

Third Respondent

THE MINISTER OF PUBLIC ENTERPRISES

Fourth Respondent

Heard: 15 June 2021

Delivered: 30 June 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 30 June 2021.)

JUDGMENT

PRINSLOO, J

Introduction

[1] This matter has a litigious history. The background to the dispute has been succinctly set out by Van Niekerk J in Airline Pilots Association of SA v SA Airways SOC Ltd and others[1] (APASA) and I do not intend to regurgitate the entire background, other than to point out the facts pertinent to this judgment.

[2] The Applicant represents 96% of the pilots employed by the First Respondent (SAA). In December 2020 the Applicant filed an urgent application, seeking a final order declaring a lock-out implemented by SAA to be unlawful and unprotected as well as other related interdictory relief.

[3] The December 2020 proceedings had their roots in an agreement between the parties, referred to as the ‘regulating agreement’. In essence, the agreement is a collective agreement as defined by the Labour Relations Act[2] (LRA), which recognises the Applicant as the sole bargaining agent of all pilots employed by SAA and regulates their terms and conditions of employment. The agreement is unique in that it is not terminable on notice, not even a period of reasonable notice as contemplated by section 23(4) of the LRA. The regulating agreement terminates only when a new agreement is reached between the parties, a provision upheld in an arbitration award issued in 2002 in respect of a similar provision in the regulating agreement’s predecessor. The SAA has long sought to renegotiate the terms of the regulating agreement, and Applicant has resisted the various attempts made over the years to do so.

[4] Matters came to a head after SAA was placed in business rescue on 5 December 2019. A business rescue plan was adopted on 14 July 2020 and contemplates, amongst other things, the retrenchment of the majority of SAA’s employees and changes to terms and conditions of employment of those who remain employed. The SAA contended that the existing terms and conditions of employment applicable to its employees, particularly the pilots, are more favourable than those that other airlines offer to their employees, with a consequent negative impact on SAA’s profitability. SAA contended further that the rescue of the business was not possible unless an arrangement is implemented which reduces employment costs. SAA acknowledged that it may not unilaterally cancel the regulating agreement, which would continue to apply to any pilots who after any retrenchment, remain employed. For that reason, SAA sought, once more, to secure the Applicant’s agreement to the cancellation of the regulating agreement and a commitment to negotiate new terms and conditions of employment for its members. The specific demands tabled by SAA included the termination of the regulating agreement, its annexures and all other collective agreements concluded between the parties, revised salaries for captains and first officers and revised terms and conditions of employment for pilots within a new organisational structure. The Applicant did not agree to any of the demands, and little progress was made in the negotiations. On 30 October 2020 the SAA referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

[5] On 16 December 2020 SAA issued a notice of lock-out in terms of section 64(1(c) of the LRA. The notice read, in part:

“On 7 September 2020, SAA sent a letter to SAAPA articulating certain demands that SAAPA and its members were required to agree to. The letter contained annexures which fully detail the new terms and conditions of employment and new salary scales for captains and first officers.

Having exhausted the internal dispute-resolution process in respect of those demands, on 30 October 2020, SAA referred a dispute to the Commission for Conciliation, Mediation & Arbitration (CCMA) concerning matters of mutual interest. The parties subsequently engaged in extensive negotiations regarding the termination of the regulating agreement and all other collective agreements concluded between SAA and SAAPA. The parties also engaged on reaching agreement on new terms and conditions of employment for pilots and new salary scales. Unfortunately, the parties were unable to reach an agreement on any of these issues and the statutory 30-day period referred to in s 64(1)(a) of the Labour Relations Act 66 of 1995 (LRA) expired on 30 November 2020.

Accordingly, SAA hereby gives notice that all SAAPA’s members (excluding those members listed in annexure A) will be excluded from SAA’s workplace with effect from 12h00 on Friday, 18 December 2020 until such time that SAAPA accepts the demands made in this lock-out letter on its own behalf and on behalf of its members and agrees to such demands. …

For the duration of the lock-out and the exclusion of SAAPA’s members, SAAPA’s members who are locked out will not be

entitled to be paid any remuneration or benefits in the course of and for the purpose of that exclusion.”

[6] It was not in dispute that the procedural requirements established by section 64 of the LRA for a protected lock-out had been met and the Applicant raised four grounds on which it contended that the lock-out was unprotected and/or unlawful[3].

[7] It is evident from the notice of lock-out, dated 16 December 2020, that the SAA reserved the right to lift, modify, amend, suspend, terminate or supplement the lock-out on written notice to the Applicant.

[8] Judgment in APASA was delivered on 29 December 2020 and after finding that the lock-out was protected, the Court dismissed the application. A subsequent

application for leave to appeal was dismissed and the Applicant did not pursue the matter any further.

[9] In the present instance, the Applicant reiterates throughout that Van Niekerk J never found that the lock-out was indeed protected, but that the application was dismissed on the ground that the Applicant had failed to establish a clear right to the relief it sought. The Applicant’s reading of the judgment is incorrect. In paragraph 24 of the judgment, the Court provided a summary and held that “the lock-out by SAA of the members of the association does not constitute a suspension of their employment contracts. The exclusion from the workplace in the present instance constitutes a breach of contract. Because the lock-out is protected, SAA is indemnified against any legal consequences that would ordinarily flow from a breach of the employment contract.”

[10] The management pilots employed by SAA were excluded from the ambit of the lock-out and have never been locked out by SAA. Van Niekerk J held that there is nothing in the LRA which requires an employer to include all employees within the scope of an intended lock-out.

[11] On 9 March 2021 the Applicant’s erstwhile attorneys addressed a letter to SAA’s attorneys wherein it was stated that the SAA had acted in breach of section 76 of the LRA by requesting external aviation training organisations to provide regulatory required pilot training services. The SAA was reminded that it employs training and instructor pilots, who are qualified and employed to perform the required training services, which the SAA sought to outsource. As the SAA had locked out the aforesaid pilots in an offensive lock-out, section 76 of the LRA prohibited the use of replacement labour. On 10 March 2021 SAA’s attorneys confirmed that the SAA would comply with the provisions of section 76 of the LRA and that the procurement request had been withdrawn.

[12] On 29 March 2021 the SAA issued an amendment to the notice of lock-out dated 16 December 2020, wherein the Applicant was advised of the fact that the terms of the lock-out notice were amended to exclude from the scope of the lock-out seven pilots, specifically named in the notice, with effect from 30 March 2021.

[13] The Applicant took issue with the amended notice of lock-out and responded in a letter to the SAA on 30 March 2021. In the letter it was stated inter alia that the SAA did not have the right to amend the lock-out notice or to exclude any pilot from the lock-out. The Applicant’s view is that should the SAA want any pilot to report for duty, it is obliged to uplift the lock-out in respect of all SAAPA members and the locked-out pilots, alternatively the dispute as per the lock-out notice of 16 December 2020, had to be resolved.

[14] On 30 March 2021 the Applicant gave SAA notice of its intention to embark upon strike action in terms of section 64(1)(b) of the LRA. The strike was to commence on 1 April 2021 and the Applicant listed the strike demands as follows:

“1. That SAA agrees that the regulating agreement, its annexures and all other collective agreements be terminated on the day following the date on which the last SAAPA member leaves the employ of SAA pursuant to the provisions of section 189(3) notice issued by SAA on 18 July 2020;

2. That SAA’s proposed terms and conditions for future pilots relating to dismissal for operational reasons, and the 3 month notice period be applied to the dismissal of existing pilots who are SAAPA members;

3. That all SAAPA members who are to be retrenched pursuant to the provisions of the section 189(3) notice dated 18 July 2020 be retrenched by no later than 15 April 2021; and

4. That SAA pay SAAPA members who are to be retrenched pursuant to the provisions of the section 189(3) notice, 3 months’ remuneration in lieu of notice.”

[15] The Applicant too reserved the right to lift, modify, amend, suspend, terminate or supplement the strike demands on written notice to the SAA and specifically recorded that the lock-out demands had not been accepted and that the lock-out of all SAAPA members, as at 18 December 2020, continues.

[16] The Applicant’s case is that the strike action is in response to the SAA’s lock-out. The seven pilots who were excluded from the inception of the lock-out on 18 December 2020 and the seven pilots in respect of whom the SAA subsequently uplifted the lock-out, are partaking in the strike action. They occupy vital and strategic positions and them withdrawing their labour will exert massive pressure on the SAA. As a result of the fact that they are participating in a strike action which is in response to the lock-out, SAA is not only denied the opportunity to utilise the services of the Applicant’s members, but it could also not act in contravention of section 76 of the LRA.

[17] SAA responded that the lock-out now continues in response to the Applicant’s strike action. This was disputed by the Applicant on 7 April 2021 on the basis that SAA’s lock-out was and remains an offensive lock-out, unless SAA abandoned its demands and the lock-out that was intended to compel the Applicant to accede to SAA’s demands. The Applicant objected to the use of replacement labour and reminded SAA to comply with the provisions of section 76 of the LRA.

[18] Furthermore, SAA’s case is that insofar as the management pilots were never locked out and the lock-out of the training pilots was uplifted in 29 March 2021, SAA is entitled to utilise replacement labour for those categories of pilots, after they joined the strike action. The strike action embarked upon by the aforesaid employees cannot be regarded as a strike in response to the lock-out, as they are not locked out.

[19] On 12 April 2021 the Applicant served and filed an urgent application, to be enrolled for hearing on 15 April 2021. The relief sought by the Applicant (excluding the relief regarding obtaining consent from the business rescue practitioners, as such consent was granted) in the notice of motion, on an urgent basis is as follows:

“4. Declaring that the lock-out instituted by the First Respondent against the Applicant and its members with effect from 18 December 2020, is:

4.1. Unprotected; and/or

4.2. Unlawful

5. Interdicting and restraining the First Respondent from:

5.1. Participating in-

5.1.1. the current lock-out of the Applicant's members; and

5.2.2. any conduct in contemplation or furtherance of the current lock-out of the Applicant's members.

5.2. Prohibiting or restraining any of the Applicant's members from tendering their services to the First Respondent.

6. Ordering the First Respondent to pay the Applicant’s members their remuneration from commencement of lock-out at 12H00 on the 18 December 2020 to date, within three (3) days from the date of this order.

7. Declaring that the First Respondent’s non-payments of the Applicant’s

members’ remuneration for the period 01 December 2020 to 12H00 on the 18 December 2020, was unlawful and ordering the First Respondent to pay same to the Applicant’s members with three (3) days from the date of days from the date of this order.

8. Cost against any party opposing this application.”

[20] It is evident that the relief sought by the Applicant in the notice of motion is threefold: firstly it seeks a declarator to the effect that the lock-out instituted with effect from 18 December 2020 is unprotected and/or unlawful. Secondly, it seeks to interdict the SAA from participating in the lock-out and any conduct in contemplation or furtherance of the lock-out. The essence of this relief is that the SAA is precluded from utilising replacement labour in terms of section 76 of the LRA. Thirdly it seeks the payment of remuneration to the Applicant’s members.

[21] The matter was enrolled for hearing on 15 April 2021, on which date it was postponed to 15 June 2021.

[22] Instead of waiting for the hearing date of 15 June 2021 or instead of moving the hearing date forward, the Applicant on 25 May 2021 once again approached this Court, also on an urgent basis, for interim relief pending the hearing of the main application on 15 June 2021. The relief sought in that application was inter alia an order to declare that the SAA’s lock-out instituted on 18 December 2020 was not in response to a strike action and that the SAA was not permitted to take into employment any person to perform the duties of the Applicant’s members who are currently

participating in the Applicant’s strike action.

[23] The Court (per Tlhotlhalemaje J) handed down judgment on 23 May 2021. The Court found that:

“Applying the legal principles alluded to elsewhere in this judgment to the facts of the case, it ought to be concluded that the replacement labour that SAA seeks to utilise will perform the duties of four individuals, who for all intents and purposes, were not locked-out, but had however since joined cause with the protected strike, as they had refused to tender their services.”

[24] The Court found that SAA was permitted to employ replacement labour even though it had initially instituted a lock-out. This is so, the Court found, because the individuals who would ordinarily have performed the work in question, were not initially locked-out, but had subsequently refused to perform their duties. When the Applicant commenced its strike action and SAA confirmed the continuation of its lock-out in response to that strike, it significantly diminished the Applicant’s protection under section 76(1)(b) of the LRA, thus entitling SAA to engage replacement labour. The Court ultimately found that the Applicant had failed to make out a case for the relief sought and the application was dismissed.

[25] The Applicant filed an application for leave to appeal against the judgment by Tlhotlhalemaje J and submitted in its application that the said judgment rendered the issue of replacement labour res iudicata.

[26] On 6 June 2021 the Applicant filed an amended notice of motion in respect of the application enrolled for hearing on 15 June 2021 (the present application) as well as a supplementary affidavit.

The amended notice of motion and supplementary affidavit

[27] In the amended notice of motion the Applicant seeks to introduce and to be admitted, the following relief is sought:

“1. That the matter be entertained on an urgent basis in terms of Rule 8 and that the Applicant's

non-compliance with the Rules of Court be condoned;

2. Declaring that the lock-out instituted by the First Respondent

against the Applicant and its members with effect from 18 December 2020, is:

2.1. Unprotected; and/or

2.2. Unlawful

3. Interdicting and restraining the First Respondent from:

3.1 Participating in-

3.1.1 the current lock-out of the Applicant's members; and

3.1.2 any conduct in contemplation or furtherance of the current lock-out of the Applicant's members.

3.2 Prohibiting or restraining any of the Applicant's members from tendering their services to the First Respondent.

4. Declaring that-

4.1 The First Respondent's lock-out instituted on 18 December 2020 has not been in response to any industrial action on the part of the Applicant; and

4.1.1 The First Respondent is accordingly not permitted in law to take into employment any person to perform the duties of those of the Applicant's members who are currently not rendering services due to the industrial action the parties are engaged in; and

4.1.2 The First Respondent's re-employment of pilots whose services with the First Respondent previously terminated, constitutes a transgression of Section 76 of the Labour Relations Act, 66 of 1995, or to the extent that such pilots have not as yet been so re-employed, that the First Respondent will act in contravention of Section 76 of the Labour Relations Act, 66 of 1995, should it give effect to its intention to do so; and/or

5. Interdicting and restraining the First Respondent from-

5.1 Taking into employment any person, inclusive of pilots previously employed by it, to perform the duties of those of the Applicant's members who are engaged in the current industrial action between the parties; and

5.2 Utilising the services of any person, inclusive of pilots previously employed by it, who have already been employed/re-employed to perform the duties of those of the Applicant's members who are engaged in the

current industrial action between the parties.

6. Ordering the First Respondent to pay the Applicant's members their remuneration from commencement of the lock-out at 12h00 on 18 December 2020 to date, within three (3) days from the date of this Order.

7. Declaring as unlawful the First Respondent's non-payment of the Applicant's members' remuneration:

7.1 for the period 01 June 2020 to 30 November 2020; and

7.2 for the period 01 December 2020 to 12hOO on 18 December 2020; and

7.3 in respect of the 13th cheque for 2019,

8. Ordering the First Respondent to pay the Applicant's members the remuneration referred to in 7 above, within three (3) days from the date of this Order.

9. Costs against any party opposing this application.”

[28] It is evident from the amended notice of motion that the relief sought in prayers 2, 3 and 6 accords with the relief sought in the original notice of motion, filed in April 2021. The relief sought in prayers 4, 5 and 7 of the amended notice of motion, is in addition to the prayers initially sought by the Applicant and that is the focus of this part of the judgment.

[29] The SAA opposed the admission of the supplementary affidavit as well as the attempted amendment of the notice of motion and submitted that the Applicant’s approach in this regard amounts to an abuse of the process of this Court.

[30] The Applicant has not filed an application for leave to amend its notice of motion, nor was an application for leave to admit the supplementary affidavit filed and not surprisingly, SAA took issue with the aforesaid. The Applicant filed a replying affidavit to SAA’s ‘answer to the supplementary affidavit’ wherein it was explained that the Applicant acted under the mistaken belief that formal leave to file a supplementary affidavit and further process, such as an amendment of the notice of motion, was granted by the Court (per Nkutha-Nkontwana J) on 15 April 2021 and had it not been for the misunderstanding, the Applicant would have formally sought the Court’s indulgence and leave to file the supplementary affidavit and the amended notice of

motion. In the aforesaid affidavit, the Applicant sought the Court’s indulgence to file the supplementary affidavit and amended notice of motion.

[31] The first issue to be decided is whether the supplementary affidavit and amended notice of motion should be admitted.

The general principles

[32] The ordinary rule is that in motion proceedings three sets of affidavits are allowed namely a founding, answering and replying affidavit. The Court may in its discretion permit the filing of further affidavits and the relevant authorities indicate that leave will be granted for filing further affidavits only in ‘exceptional circumstances’[4] or in ‘special circumstances’[5] or if the Court considers it advisable[6].

[33] This was confirmed in MISA / SAMWU obo Members v Madikor Drie (Pty) Ltd[7] where the Court held that:

“As a general rule, there are three sets of affidavits in motion court proceedings, namely the founding affidavit, the answering affidavit and the replying affidavit. Rule 7 of the Labour Court Rules incorporates this general rule. Under certain circumstances the filing of further affidavits are permitted. The principles followed and developed the High Court authorities are basically that a court has a discretion as to whether further affidavits will be permitted. This discretion must be exercised judicially, having considered whether a proper explanation for its belated filing exists, whether the material contained in the affidavits are relevant and whether the filing of such affidavits would be prejudicial to the other party (See: Transvaal Racing Club v Jockey Club of South Africa 1958(3) SA 599 (w) at 604 A-E.) Rule 6(5)(e) of the High Court Rules also provides for the filing of further affidavits subject to the Court’s discretion.”

[34] In James Brown and Hamer (Pty) Ltd (previously named Gilbert Hamer and Co Ltd) v Simmons[8] the Appellate Division held as follows:

“It is in the interests of the administration of justice that the well-known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted.”

[35] In Bafokeng Rasimone Platinum Mine (Pty) Ltd v CCMA and Others[9] (Bafokeng) the Court considered an application to permit an additional affidavit after the close of pleadings and held that:

“When the matter was argued it became apparent that the issues that the applicant wished to raise in the additional affidavit had come to light after counsel had perused the application. All the material on which the additional affidavit was based was already before the applicant's attorneys by the time the supplementary affidavit was filed. Review applications by their nature give the applicant party ample time to consider the merits of its case before filing a supplementary affidavit. No reasons were advanced why the matters raised in the additional affidavit could not have been raised in the supplementary affidavit. The fact that an applicant subjects the record to more careful scrutiny after pleadings have closed and discovers further points it could have raised previously but did not, does not amount to exceptional circumstances justifying the reopening of the pleadings. The applicant argued that there would be no prejudice to the third respondent, because the court would obviously grant him an opportunity to respond if the additional affidavit was admitted. On this principle, an applicant could keep adding to its case ad nauseam and a respondent party would have to keep incurring further costs for each additional perusal of the record required to consider the new points raised as and when the applicant deigned to reconsider its case. Insofar as the admission of additional affidavits is a matter of fairness to both parties, there is nothing fair about allowing a party to add to its case in the absence of a very satisfactory explanation for the earlier omission.

Pleadings are intended, amongst other things, to identify the nature and parameters of a dispute. Care must be taken at the time of drafting to ensure that the full ambit of a party's case is canvassed.

[36] Although the aforesaid judgment was given in the context of a review application, the application of the principles identified in respect of exceptional circumstances and prejudice is not limited only to review applications. In Bafokeng the Court concluded that:

“… There may be exceptional circumstances where issues come to light that a party exercising reasonable diligence in the preparation of its case could not have been aware of, or where there is some other justifiable reason why a material issue is omitted. In this case no such reason has been provided to excuse omissions from the applicant's founding papers. I see no justification for the third respondent to be burdened months later with having to consider answering further matters that should have been raised at the time the supplementary affidavit was filed.”[10]

[37] In summary: there must be a proper and satisfactory explanation as to why the facts or information contained in the additional affidavit

were not placed before the Court earlier and the Court must be satisfied that no prejudice is caused to the other party that cannot

be remedied by an appropriate order as to costs[11].

The application to admit further affidavits

[38] In an application such as the present, there are two main considerations namely exceptional circumstances and prejudice.

[39] The deponent to the Applicant’s founding and replying affidavits, Mr Back, deposed to a supplementary affidavit and an affidavit in reply to SAA’s ‘answer to the supplementary affidavit’. The Applicant seeks to amend its notice of motion and to admit a further affidavit and in support of the indulgence sought to file the supplementary affidavit and amended notice of motion, Mr Back set out the relevant considerations, which I will deal with in turn.

[40] The supplementary affidavit deposed to by Mr Back addressed three issues to wit:1) that the SAA’s lock-out is unlawful, 2) to show the Applicant’s entitlement to the relief sought (in the amended notice of motion) in respect of the non-payment of remuneration for an additional period and 3) to respond to SAA’s reliance on the defence of res judicata / estoppel.

Unlawfulness of the lock-out

[41] In the supplementary affidavit more than five pages are dedicated to detailed submissions relating to the reasons why the lock-out is unlawful, which constitutes a material portion of the affidavit.

[42] In respect of this aspect Mr Back explained that the supplementary affidavit should be admitted as the Applicant was compelled to draft its papers in an extremely short space of time and in the supplementary affidavit it seeks to articulate its case more concisely and to bring to the Court’s attention ‘vital additional facts’ necessary for the proper consideration of the matter and which will ultimately serve the interests of justice. The Applicant’s primary contention based upon section 189A(11)(a)(ii) of the LRA, is in fact the statutory encapsulation of what the trite position in law is.

The non-payment of remuneration

[43] Mr Back made submissions as to the non-payment of remuneration due and payable. This aspect was addressed in the Applicant’s founding papers and was limited to payment for the period 1 – 18 December 2020, yet in the supplementary affidavit a claim is included for the payment of the 2019 13th cheque as well as payment of remuneration for the period 1 June until 30 November 2020.

[44] To the extent that the Applicant seeks relief relevant to the non-payment of remuneration for an additional period, Mr Back submitted that the SAA does not dispute that it is obligated to pay the Applicant’s members these monies, the liability to pay the outstanding remuneration has been confirmed, the parties concluded a collective agreement in March 2018 and the SAA’s ability to pay the Applicant’s members their outstanding remuneration was obtained through the process envisaged by the terms of the collective agreement, which process concluded on 2 June 2021.

[45] The Applicant submitted that the additional information and issues contained in the amended notice of motion and supplementary affidavit, essentially constitutes an updating of the facts as it were on 15 April 2021 to present, and relevant information and facts only became apparent after the proceedings of 15 April 2021. The Applicant’s case is that it will be practical, sensible and will avoid piecemeal litigation to include all outstanding remuneration issues in one application in circumstances where the exact same purported justification for non-payment is being relied on.

Res iudicata / estoppel

[46] The last aspect addressed is the issue of res iudicata / estoppel and detailed submissions are made on this aspect as well.

[47] On the issue of res iudicata / estoppel the Applicant submitted that it seeks to do no more than to take the Court into its confidence relevant to the reasons why the primary argument in respect of section 189A(11)(a)(ii) was not raised at the time of the December 2020 application.

Analysis

[48] There are many difficulties with the explanation tendered by Mr Back.

[49] As a point of departure, there must be a proper and satisfactory explanation as to why the facts or information contained in the supplementary affidavit were not placed before the Court earlier. This Court will only exercise its discretion to permit the filing of further affidavits where there is a good reason for doing so.

[50] It is evident that the facts the Applicant now seeks to place before this Court in a supplementary affidavit, existed and were known to them either at the time of the filing of the present application or when the replying affidavit was filed. The content of the supplementary affidavit does not merely constitute “an updating of the facts as it were on 15 April 2021 to present”, as stated by the Applicant. In fact, no new facts are placed before this Court.

[51] In the founding affidavit, the issue of the unlawfulness of the lock-out is raised as the main issue. In the supplementary affidavit there is no relevant information or facts relating to that, which only became apparent after the proceedings of 15 April 2021. Mr Back submitted that the supplementary affidavit should be admitted as the Applicant was compelled to draft its papers in an extremely short space of time and in the supplementary affidavit it seeks to articulate its case more concisely.

[52] I accept that where papers are prepared on an urgent basis, there may be exceptional circumstances where issues come to light that a party exercising reasonable diligence in the preparation of its case could not have been aware of, or where there is some other justifiable reason why a material issue is omitted.

[53] This is however not such a case. The Applicant, quite obviously, seeks an opportunity to better articulate its case and to put forward a revised and better version of the case that ought to have been pleaded in the founding affidavit. To put up a better version of a case, is certainly not the purpose of a supplementary affidavit.

[54] The Applicant did not bring to the Court’s attention any ‘vital additional facts’ necessary for the proper consideration of the matter. The same facts are presented, just upcycled and in an improved format. This is not what is to be achieved by way of a supplementary affidavit.

[55] In respect of the additional claim for outstanding remuneration, the same difficulty arises. The Applicant has been acutely aware of the claim for outstanding remuneration, since April 2020, yet it was not included in the application. These are not new facts placed before this Court in the supplementary affidavit that were not known to the Applicant when this application was filed.

[56] Mr Back explained that the supplementary affidavit and amended notice of motion should be admitted because it will be practical, sensible and will avoid piecemeal litigation to include all outstanding remuneration issues in one application, in circumstances where the exact same purported justification for non-payment is being relied on.

[57] The SAA objected to this amendment on the basis that it introduces a new cause of action relating to the non-payment of wages and that no grounds have been laid for introducing a new cause of action at this late stage. Furthermore, the wages claim dates back to June 2020 and the 13th cheque is in respect of 2019, which are not claims that should be decided in this urgent application. The SAA argued that it is

prejudiced or potentially prejudiced by this amendment.

[58] The Applicant argued that this is not the introduction of a new cause of action, but merely an updating of the facts since April 2021. I cannot agree. The application sought remuneration for the period 1 – 18 December 2020, as the period prior to the commencement of the lock-out. When this application was filed, the Applicant was aware that the remuneration of its members for the period June to November 2020 as well as the 2019 13th cheque were outstanding. The cause of action relating to the payment of wages and the 2019 13th cheque, as well as the underlying facts in respect of these issues were known to the Applicant at the time it launched this urgent

application on 12 April 2021. In fact, it was known to the Applicant when it had launched its urgent application in December 2020.

[59] There is no convincing explanation why it was not included in the urgent application.

[60] There is however a far greater difficulty facing the Applicant in respect of these claims. Upon perusal of the Applicant’s founding affidavit and the annexures appended thereto, I noticed that in Annexure “GB 6” to the Applicant’s founding

affidavit, it was recorded that SAAPA has instituted an application in the High Court of South Africa, Gauteng Local Division, under case number 11078/2021 for payment of its members’ 2019 13th cheque and June 2020 salaries.

[61] The possibility that another case was pending in another court in respect of the same issues raised serious concerns and I instructed my associate to direct a letter to the parties, requesting them to indicate whether a claim in respect of the 2019 13th cheque and June 2020 salaries was indeed pending before the High Court.

[62] My associate received the following response from the SAA’s attorneys of record:

“The matter is pending before the High Court. Please see attached the application launched by SAAPA in the High Court under case number 11078/2021 on 5 March 2021. In that application, SAAPA seeks payment of its members’ 2019 13th cheque and their members’ remuneration for June 2020. The matter is set down for hearing on 4 August 2021.”

[63] I was surprised to learn that not only is the same relief sought in the High Court and in this Court, but that the matter has been set down for hearing in the High Court on 4 August 2021.

[64] This information caused me to ask for an explanation from the Applicant as to why the same relief was sought in two different Courts at the same time. One would expect a response to the effect that either the Applicant is abandoning that portion of the relief in this urgent application, or that the High Court application has since been withdrawn. One way or the other, the relief could not be persisted with in two Courts. Instead, the following response was received from the Applicant’s attorney of record:

2. The JHB High Court application which pertains to SAAPA’s members’ 2019 13th cheque and their June 2020 remuneration was instituted in March 2021 before the facts which precipitated the Labour Court application came to light. SAA did not file an answering affidavit in the JHB High Court application and as such did not put up any defence. Consequently, the JHB High Court application was set down for hearing on the unopposed roll for 4 August 2021.

3. SAAPA decided to supplement the Labour Court application to claim remuneration for SAAPA’s members’ 2019 13th cheque and remuneration for July to November 2020 for the following reasons:-

3.1 As already stated, there was no defence raised in the High Court application.

3.2 It was only in May 2021 that:-

3.2.1 SAA appeared to concede liability for remuneration, as referred to in annexure “D” to the supplementary affidavit;

3.2.2 SAA advanced the defence that it was excused from payment of the 2019 13th cheque and remuneration for June to November 2020 in terms of Section 67 of the LRA, , as referred to in annexures “E” and “F” to the supplementary founding affidavit, which defence had already been raised in respect of the urgent claim for remuneration for the period 1 to 18 December 2020 and which defence is more appropriately to be dealt with in the Labour Court;

3.2.3 it came to SAAPA’s attention that SAA had the funds already prior to the commencement of the lock-out to pay SAAPA’s members their 2019 13th cheque, as referred to in paragraphs 25 and 26 of the supplementary affidavit.

3.3 As SAAPA’s members had not been paid any remuneration for some 15 months since April 2020 (or been retrenched – leaving SAAPA’s members in limbo), there was a need for urgent relief.

4. SAA in response to the supplementary affidavit seeking payment of the 2019 13th cheque and remuneration for 1 June 2020 to 30 November 2020 did not take issue with the fact that the JHB High Court application is pending. SAA still does not take issue with this as is apparent from ENS’ correspondence in response to the Judge’s query.

5. As stated in paragraph 12 of SAAPA’s reply to SAA’s response to the supplementary affidavit (page 335), all outstanding remuneration issues ought to be dealt with in one application rather than on a piecemeal basis.

In the circumstances, the High Court application may well become moot.”

[65] It is evident that the claim for outstanding remuneration and the 2019 13th cheque was instituted in the High Court on 5 March 2021, under case number 11078/2021. This was not only prior to the filing of the urgent application in this Court, but subsequently the matter had been allocated a hearing date in the High Court. This fact was not disclosed by the Applicant, when there was clearly a duty to inform this Court about the matter pending before the High Court in respect of the same claim. When this issue was raised by this Court, a shocking attempt was made to justify the fact that the same relief was sought from this Court and a lame explanation that SAA did not take issue with the fact that an application is pending in the High Court.

[66] This is a classic case of lis alibi pendens. To allow the Applicant to introduce these claims and to amend its notice of motion accordingly, would be condoning a gross abuse of this Court’s process, and that too on an urgent basis, would be to ignore the substantive law and the consequences of lis alibi pendens, would be to disregard the obvious prejudice to the SAA and would not be in the interest of justice.

[67] This is nothing but an opportunistic attempt to get urgent relief in the Labour Court, whilst keeping the back door to High Court open, just in case.

[68] Finally, the supplementary affidavit purports to “respond further to the Respondent’s reliance on the defence of res iudicata / estoppel”. This is equally opportunistic as the defence of res iudicata / issue estoppel was raised by the SAA in its answering affidavit to the Applicant’s founding affidavit. The Applicant filed a replying affidavit, responding to the issues raised by SAA in the answering affidavit. The replying affidavit was the Applicant’s

opportunity to deal with SAA’s defences and a supplementary affidavit is not to be used to ‘further respond’ to the defences raised by the SAA. The Applicant had that opportunity in the replying affidavit, no new defences were subsequently raised by SAA and to seek an opportunity to ‘further respond’, is effectively an attempt to obtain a second bite at the cherry. No good reason whatsoever has been provided as to why the Applicant should be permitted to revisit the same issue it has had the opportunity to deal with earlier.

[69] The Applicant, in prayers 4 and 5 of the amended notice of motion, seeks relief relating to the provisions of section 76 of the LRA and the transgression of the said section.

[70] The sequence of events show that between the date the present application was launched and the hearing of this matter on 15 June 2021, the Applicant has filed a further application for urgent interim relief on the basis that it was alleged that SAA intended to employ or engage persons to perform the work of employees who were on strike. It was alleged that this was a breach of section 76(1)(b) of the LRA.

[71] I already alluded to the judgment (per Tlhotlhalemaje J) handed down on 23 May 2021, wherein the Court recorded that central to the Applicant’s case is whether the provisions of section 76(1)(b) of the LRA are being contravened. The Court found inter alia that “it ought to be concluded that the replacement labour that SAA seeks to utilise will perform the duties of four individuals, who for all intents and purposes, were not locked out, but had however since joined cause with the protected strike, as they had refused to tender their services.” The Court concluded that SAA was permitted to use replacement labour, even if it had initially instituted the lock-out, as the replacement labour would perform the duties of the persons who were not locked out, but who had joined the strike. The application was dismissed as the Applicant failed to satisfy the requirements of the relief it sought.

[72] In its application for leave to appeal against the judgment by Tlhotlhalemaje J the Applicant submitted that the said judgment rendered the issue of replacement labour res iudicata. Considering that submission made by the Applicant, this Court cannot and should not grant urgent relief in respect of the replacement labour issue, as the correctness of Tlhotlhalemaje J’s judgment will be determined by the Labour Appeal Court in due course, if the matter is to proceed on appeal.

[73] The Applicant’s case is that it is in the interest of justice to admit the supplementary affidavit, considering the fact that SAA was afforded the opportunity and indeed filed a response to the supplementary affidavit.

[74] This aspect was considered in Bafokeng where the applicant also argued that there would be no prejudice to the respondent, because he would obviously be granted an opportunity to respond if the additional affidavit was admitted. The Court rejected the argument because on this principle, an applicant could keep adding to its case ad nauseam and a respondent party would have to keep incurring further costs for each occasion when the applicant deigned to reconsider its case

[75] In summary: I am not satisfied that the Applicant has provided a satisfactory explanation for the omission to place the facts and versions it now seeks to introduce by way of a supplementary affidavit before Court earlier. There is also no exceptional circumstance present that justifies the admission of further affidavits.

[76] For these reasons it will not be in the interest of justice to permit the Applicant to file a supplementary affidavit or to amend its notice of motion.

The main application

[77] Having decided not to allow the supplementary affidavit or the amended notice of motion, the Applicant’s application has to be considered on the basis of the relief sought in the initial notice of motion, as supported by the founding affidavit.

[78] As already alluded to, the relief sought in the initial notice of motion is threefold: firstly it seeks a declarator to the effect that the lock-out instituted with effect from 18 December 2020 is unprotected and/or unlawful, secondly, it seeks to interdict the SAA from participating in the lock-out and any conduct in contemplation or furtherance of the lock-out and thirdly it seeks the payment of remuneration to the Applicant’s members for the period 1 – 18 December 2020.

[79] SAA raised two points in limine. The first is that the application is not urgent and the second is the special plea of res iudicata. The issue of urgency is to be decided first.

Urgency

Applicable legal principles

[80] The relevant portion of Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provides that:

“(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

a) the reasons for urgency and why urgent relief is necessary;

b) the reasons why the requirements of the rules were not complied with, if that is the case.”

[81] An applicant that approaches the Court on an urgent basis essentially seeks an indulgence and to be afforded preference, in order to prevent the prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which

render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary[12].

[82] What would an applicant who seeks to make out a case of urgency then have to show? In Mojaki v Ngaka Modiri Molema District Municipality and others[13] the Court referred with approval to the following dictum from East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others[14]:

“An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant

must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of

whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.”

[83] In deciding whether a matter is urgent, two considerations are involved. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the Court that indeed the application is urgent.

[84] In Vermaak v Taung Local Municipality[15] this Court has held that:

“The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.”

[85] The principles around urgency had been developed and considered by the courts and on numerous occasions the courts have made it clear that self-created urgency is not to be entertained by an urgent Court.

[86] In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and others[16] held that:

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.”

[87] In National Union of Metalworkers of SA v Bumatech Calcium Aluminates[17] the Court held that:

“Urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first

available opportunity. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency. In Collins t/a Waterkloof Farm v Bernickow NO & another the court held that:

'if the applicants seeks this court to come to its assistance it must come to the court at the very first opportunity, it cannot stand back and do nothing and some days later seek the court's assistance as a matter of urgency'.”

[88] In National Police Services Union and others v National Negotiating Forum and others[18] this Court held the view that the latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely to seek relief.

[89] Emanating from the provisions of Rule 8 and the principles set out in the authorities referred to, it is evident that urgency is not there merely for the taking, and an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons the matter before the court should be treated with urgency.

[90] In order for any arguments on urgency to be sustained, the applicant must have acted with due haste, when knowledge of the respondent's

prejudicial behaviour or actions is gained. It is trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules[19].

[91] The explanation for urgency tendered by the Applicant has to be considered with due consideration of the SAA’s challenge to urgency.

Grounds for urgency

[92] In the founding affidavit the Applicant addressed the three main grounds for relief and the reasons why this application should be entertained urgently.

[93] The Applicant’s case is that it would serve little purpose and will be inimical to the rule of law to challenge the SAA’s transgression of section 76 of the LRA without challenging in the first instance the fact that the lock-out is in its entirety unlawful. On the Applicant’s own version, the relief sought is intertwined.

[94] The Applicant seeks a declarator to the effect that the lock-out instituted with effect from 18 December 2020 is unprotected and/or unlawful. As already alluded to, the same relief was sought in December 2020, shortly after the commencement of the lock-out and a judgment was handed down on 29 December 2020, wherein the Court found the lock-out to be a protected one and the application was dismissed.

[95] The Applicant effectively seeks the same relief in this application, which obviously led to the special plea of res iudicata. The Applicant however submitted that it is not pursuing any of the previous contentions (pursued in the December 2020 application) as to why the lock-out is unprotected or unlawful but is now attacking the lawfulness of the lock-out for a different reason. That being that it is impermissible in law for any party to resort to industrial action during the course of a section 189 or 189A process and more specifically because section 189A(11)(a)(ii) of the LRA prohibits any lock-out during the course of a section 189A process, other than in respect of a dispute in which a strike notice has been issued. This contention was not raised in December 2020 and was not considered by Van Niekerk J in his judgment, therefore the Applicant is entitled to approach this Court on an urgent basis for the declarator it seeks.

[96] In support for urgency and explaining why this relief was only sought in April 2021, the Applicant explained that it “only became aware of the grounds on which it now challenges the lawfulness of SAA’s lock-out during a consultation held with its current legal representative on Friday, 9 April 2021.”

[97] In opposition the SAA submitted that the lawfulness and protected nature of the lock-out is not only res iudicata, but it is not urgent as the lock-out was initiated on 18 December 2020 and the new grounds upon which the Applicant relies to challenge the lawfulness and protected nature of the lock-out, were only raised on 12 April 2021, almost four months later.

[98] This Court has to consider the reason why the relief was not sought earlier in exercising its discretion whether to deal with the matter on an urgent basis or not. The explanation tendered is no more than a new legal representative coming up with a new angle and argument to challenge the lawfulness of the lock-out. The Applicant submitted that the lock-out is unlawful for reasons other than the grounds it had previously and unsuccessfully raised in the December 2020 urgent application.

[99] This cannot constitute urgency. The reality is that the relief sought pertains to a lock-out that commenced on 18 December 2020 and by the time this application was launched (April 2021) and argued (June 2021), the lock-out has been in operation for more than six months. Urgency had long passed.

[100] The Applicant cannot be permitted to have a second bite at the cherry and approach the urgent Court on every occasion and in circumstances where its legal representatives had not contemplated these new grounds to challenge the lawfulness of the lock-out, prior to launching the December 2020 urgent application. The relief sought to declare the lock-out unlawful is therefore not urgent.

[101] The Applicant further seeks to interdict the SAA from participating in the lock-out and any conduct in contemplation or furtherance of the lock-out. More

specifically the Applicant’s case is that the SAA is acting in contravention of section 76 of the LRA by taking active steps to utilise replacement labour in order to commence with cargo flights in the week of 19 April 2021. Further, the Applicant submitted that once the re-training of pilots has occurred, SAA can operate sufficiently to prolong the current industrial action, whilst it would be more willing to entertain the Applicant’s compromise position should it be placed under pressure in respect of its immediate operational plans.

[102] The SAA disputed that it was acting in breach of the provisions of section 76 of the LRA. SAA submitted that the Applicant embarked on strike action, withdrawing its labour, under which circumstances the SAA is entitled to make use of replacement labour. In any event, the loss of powerplay advantage is no justification of urgency.

[103] I have alluded to the fact that the same or similar relief in respect of replacement labour was sought in yet another urgent application and Tlhotlhalemaje J found that SAA has not breached section 76 of the LRA. That judgment is now subject to appeal, and pending the outcome of the appeal process, the relief sought in this application cannot be regarded as urgent. In any event, this Court is not inclined to deal with matters on a piecemeal basis, which is a strategy the Applicant has adopted in its litigation since December 2020.

[104] Lastly the Applicant seeks the payment of remuneration to its members for the period 1 – 18 December 2020. In support for urgency the Applicant stated that SAA has not paid its members since April 2020, which is ‘patently discriminatory’, justifying the Court’s immediate intervention, but it also constitutes an attempt by SAA to gain an unfair and unlawful

advantage in the current industrial action, which too warrants the Court’s immediate intervention as to safeguard the integrity of the industrial action.

[105] The Applicant further submitted that the undue and extraordinary financial hardship its members had to endure as a consequence of not receiving remuneration since April 2020, constitutes sufficient exceptional circumstances warranting this Court’s urgent intervention.

[106] There are numerous difficulties with the explanation tendered. Firstly, the Applicant stated that its members have not been paid their remuneration since April 2020, yet it is not explained at all why relief in respect of the payment of remuneration was not sought much earlier, but is only raised in April 2021, one year later. Secondly, the remuneration sought is limited to the period 1 – 18 December 2020, yet it is not explained why this relief was not sought in December 2020, when the Applicant approached

this Court on an urgent basis and this fact was no doubt existing and known to the Applicant. It is not explained why it became urgent only four months later. Thirdly, the Applicant has approached the High Court for the payment of outstanding remuneration, which application could be amended to include the entire period of non-payment. There is no reason to entertain this claim on an urgent basis, in circumstances where the Applicant did not seek the relief in December 2020, notwithstanding the fact that this Court was approached on an urgent basis on 29 December 2020 and did not explain why the relief is only sought four months later. Finally, this Court is slow to entertain wage claims on an urgent basis, although it is not an inflexible or immutable rule. In casu no exceptional circumstances were placed before this Court to entertain the claim for outstanding remuneration on an urgent basis.

[107] It is not sufficient for a party when approaching a court on an urgent basis to adopt the approach that it is of right entitled to preferential treatment, failing which it would suffer prejudice in the event that its urgent application is not granted. A party needs to demonstrate that it had also in asserting its rights, acted diligently and with the urgency that the matter it seeks to pursue requires. The Applicant has failed in this regard.

[108] The application thus falls to be struck from the roll for the lack of urgency.

Costs

[109] The last issue to be decided is the issue of costs. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

[110] Mr Hollander for the Applicant submitted that there is an ongoing relationship between the Applicant and SAA and for that reason no cost order should be granted against any of the parties, irrespective of the outcome of this application. Mr Hollander however sought a cost order against the Fourth Respondent, who had nothing to say in the papers before Court and whose opposition of the application was unnecessary.

[111] Mr Redding for SAA submitted that the SAA is only seeking a cost order in respect of the supplementary affidavit that was filed by the Applicant and the costs associated with that. No other cost order is sought.

[112] In my view this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success, more so where an application is filed on an urgent basis. However, I cannot ignore the fact that the cost order sought by SAA is limited to the supplementary affidavit only.

[113] I have fully dealt with the supplementary affidavit supra and confirm that the filing of a supplementary affidavit was indeed an abuse of process. It should not have been filed in the first place, as its only goal was to put up an improved case.

[114] Fairness dictates that the SAA, and ultimately the taxpayers of this country, cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before the supplementary affidavit was filed.

[115] In the present circumstances, the interests of justice require that the Applicant be ordered to pay the First Respondent’s costs associated with the filing of the supplementary affidavit.

[116] The Fourth Respondent opposed the application, but did no more than confirm his support for the SAA’s opposition. The Fourth Respondent filed heads of argument, which was, as the opposition of this application, not helpful to this Court. The Fourth Respondent effectively echoed what was already presented by the SAA. The Fourth Respondent is not entitled to costs.

[117] In the premises, I make the following order:

Order

1. The filing of further affidavits Is not permitted and the Applicant’s supplementary affidavit is struck out;

2. The application is struck from the roll for lack of urgency;

3. The Applicant is to pay the First Respondent’s costs associated with the filing of the supplementary affidavit only, such costs to be limited to the cost of one counsel.

__________________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate L Hollander

Instructed by:

Minnaar Niehaus Attorneys

For the First Respondent:

Advocate A Redding SC with Advocate V Mndebele

Instructed by:

Edward Nathan Sonnenbergs Inc Attorneys

For the Fourth Respondent:

Advocate B S Tshauke

Instructed by:

The State Attorney

[1] (2021) 42 ILJ 1087 (LC).

[2] Act 66 of 1995 (as amended).

[3] These background facts appear from paras 1 – 6 of APASA.

[4] Kasiyambhuru v Minister of Home Affairs [1998] 3 All SA 166 (W); 1991(1)SA 643 (W) at 649-650 applying Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604.

[5] Joseph and Jeans v Spitz 1931 WLD 48.

[6] Riesenberg v Riesenberg 1926 WLD 59.

[7] (2005) 26 ILJ 2374 (LC) at par 18.

[8] 1963 (4) SA 656 (A) at 660 D-F.

[9] (2015) 36 ILJ 3045 (LC) at para 4.

[10] Ibid at para 5.

[11] Herbstein & Van Winsen, “The Civil Practice of the High Courts of South Africa’, Fifth Edition, Volume 1, page 433 – 444.

[12]Transport and Allied Workers Union of SA vs Algoa Bus Company (Pty) Ltd (2015) 36 ILJ 2148 (LC).

[13] (2015) 36 ILJ 1331 (LC) at para 17.

[14] [2011] ZAGPJHC 196; [2012] JOL 28244 (GSJ) at para 6.

[15] (JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para 12.

[16] (2010) 31 ILJ 112 (LC) at para 18.

[17] (2016) 37 ILJ 2862 (LC) at para 26.

[18] (1999) 20 ILJ 1081 (LC).

[19] Id fn 16.