Basil Read (Pty) Ltd v National Union of Mine Workers and Another; In re: National Union of Mine Workers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1591/2009) [2013] ZALCJHB 352; (2014) 35 ILJ 2153 (LC) (4 December 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

REPORTABLE

CASE NO: JR 1591/2009

DATE: 04 DECEMBER 2013

In the matter between

BASIL READ (PTY) LTD ....................................................................................…APPLICANT

V

NATIONAL UNION OF MINE WORKERS............................................FIRST RESPONDENT

MBUYISENI NKOSI..........................................................................SECOND RESPONDENT

In Re:

NATIONAL UNION OF MINE WORKERS..............................................FIRST APPLICANT

MBUYISENI NKOSI........................................................................SECOND RESPONDENT

AND

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION...................................................................................First Respondent

MOTLATSI PHALA N.O.........................................................................Second Respondent

BASIL READ (PTY) LTD...........................................................................Third Respondent

Heard: 11 July 2013

Delivered: 04 December 2013

Summary: Confirmation of proof of service by registered mail if service is in dispute. Authority from executor of deceased estate is key to proceeding further with review application on behalf of the deceased estate. Unreasonable delays in prosecution of review application call for dismissal of the review application.

BALOYI A.J

Introduction

[1] This is an application filed in terms of Rule 11 of the rules of conduct of proceedings in this court. The application is filed by the Third Respondent in the review application, Basil Read (Pty) Ltd seeking dismissal of review application filed by National Union of Mine Workers (NUM) and its member Mbuyiseni Nkosi, the First and Second Applicants respectively. For the sake of convenience any reference to the “Applicant” shall mean Basil Read (Pty) Ltd, while “Respondents” or “First and Second Respondents” shall mean National Union of Mine Workers and Mbuyiseni Nkosi.

[2] This matter was specifically set down for the hearing of the Rule 11 application on opposed roll. The court was invited to first deal with points in limine raised by the parties. Full details of their objections are set out hereunder. From the outset the court gave direction that arguments on the preliminary points and the merits of application would be heard in full and the determination thereof would come in two stages since the merits of the application would be driven by the ruling(s) on preliminary points.

[3] Without any doubt this case raises important questions of law, details of which are discussed hereunder.

Background facts

[4] On 16 September 2008, the Applicant dismissed the Second Respondent and the reason thereof was related to the Second Respondent‟s conduct. Aggrieved by this decision, the Second Respondent referred the dispute about the fairness of the dismissal to the CCMA which was eventually dealt with by way of arbitration. The relief sought by the Second Respondent during arbitration proceedings was reinstatement.

[5] In the arbitration award dated 03 May 2009 the CCMA Commissioner found that the dismissal is fair and refused Second Respondent‟s unfair dismissal claim. Aggrieved by this decision once again, the First and Second Respondents filed an application for review of the arbitration award on the 19 June 2009. The relief sought in the notice of motion in support of the review application is, namely, an order reviewing and setting aside of the arbitration award, replacing it with an arbitration award finding that the dismissal is unfair and ordering the Applicant to reinstate the Second Respondent from any date not earlier than the date of dismissal.

[6] Pleadings were exchanged between the parties‟ representatives. After close of pleadings the Applicant made efforts to paginate the court file on behalf of the Respondents and approached the Registrar to have the review application set down. The review application was first set down on 3 December 2010 when it came to the court‟s attention that the Second Respondent passed away. The review application was then postponed to 14 March 2011 for purposes of verifying the Second Respondent‟s death.

[7] On 14 March 2011, the death certificate had not made its way into the court records. As a result the matter was once again postponed to 30 June 2011 for the same purpose as well as to establish the identity of the executor of the estate of the Second Respondent. In between the postponement dates, that is on 13 May 2011, the Applicant‟s attorneys sent a letter to the Respondents‟ attorneys enquiring about progress regarding appointment of the executor. On seeing that there was no response to the said letter the Applicant‟s attorneys approached the Department of Home Affairs on 27 June 2011 and obtained confirmation that the Second Respondent was indeed deceased.

[8] On 28 June 2011, a further effort on the part of the Applicant was undertaken to secure a copy of the death certificate. Upon production of the death certificate on 30 June 2011, the court per Francis J made an order postponing the matter sine die and directing that the Second Respondent‟s wife be substituted upon being appointed as executrix of the Second Respondent‟s estate. According to the death certificate, the Second Respondent‟s date of death is recorded as 15 July 2010.

[9] The Applicant‟s attorneys sent two letters to the Respondents‟ attorneys on 13 July 2011 and 16 August 2011 enquiring about the progress made towards securing the appointment of the executrix. The letter of 16 August 2011 placed the Respondents on terms to respond within seven days, failing which the court would be approached for a suitable order. The Respondents‟ reply dated 21 September 2011 indicated that a letter was sent to the Second Respondent‟s known postal address since all telephonic attempts to reach the deceased family drew blank and they were awaiting a response. On 11 January 2012, the Applicant‟s attorneys through a letter requested proof of any or all efforts taken to locate the Second Respondent‟s wife. The Respondents were once again placed on terms to respond urgently, failing which the court would be approached for relief.

[10] The Respondents‟ attorneys replied on 13 January 2012 by indicating that they were still attempting to locate the Second Respondent‟s wife and were hoping to make a break-through soon. On 19 January 2012, the Applicant‟s attorneys wrote another letter to the Respondents‟ attorneys requesting that issues raised in their letter of 11 January 2012 be addressed accordingly as the response of 13 January 2012 did not deal with them. On the 6 and 20 February 2012, the Applicant‟s attorneys wrote further letters to the Respondents‟ attorneys asking for response to the previous letters.

[11] Faced with lack of satisfactory response from the Respondents, on 22 March 2012, the Applicant resorted to filing this Rule 11 application and served it through registered mail on the same date. On 20 April 2012, the Applicant‟s attorneys approached the Registrar for a date to have this application placed on the unopposed motion Roll due to no opposition filed. A follow-up call to the Respondents‟ attorneys was made and Mr Mabuela confirmed receipt of request for a date to place the matter on the unopposed Roll as well as a letter of 19 April 2012. A service affidavit deposed to by Mr Badenhorst from the Applicant‟s attorneys was filed of record.

[12] The Respondents‟ answering affidavit was filed on 10 May 2012 which stated that the application was received on 24 April 2012. The salient points therein being the difficulties in getting the Second Respondent‟s family in order to have the executor appointed and that the Applicant filed the Rule 11 application with a sole intention of avoiding the hearing of the review application. The dismissal of the Rule 11 application was prayed for coupled with an order for costs against the Applicant.

Applicant‟s point in limine

[13] The Applicant in its replying affidavit and supplementary heads of argument vigorously objected to the Respondents‟ answering affidavit on the basis that it was filed out of time and no condonation application was filed for such late filing. Ms Duvenage for the Applicant submitted that on the date of filing of the answering affidavit the period of seven plus ten days as provided in Rule 4(1)(a)(vii) of the rules of the court had already expired. She further argued that the Respondents‟ averments that the application was received on 24 April 2012 should not be accepted as they were notified on 19 April 2012 about the

Applicant‟s intentions to apply for date by both notice and letter and they did not react to such notifications.

[14] In the answering affidavit, the Respondents state that they received Rule 11 application on 24 April 2012. Mr Tyatya for the Respondents maintained that condonation application was not necessary as 10 May 2012 was the last day when counting the dies from 24 April 2012. He further argued that since there is no confirmatory affidavit from the Applicant confirming that the Respondents received

copy of Rule 11 application before 24 April 2012, it should be accepted that the Respondents have succeeded in the rebuttal of the

presumption placed in Rule 4(1)(a)(vii). The Applicant‟s contention as also pleaded in the replying affidavit is that it is highly unlikely that application was only received by the Respondents through registered mail on 24 April 2012.

Was there any late filing of the answering affidavit?

[15] Rule 4(1)(a)(vii) does not prescribe a time-limit within which a pleading such as answering affidavit must be filed, but deals only with service of documents. It provides that „a document that is required to be served on any person may be served by sending a copy of the document by registered post to the last-known address of the party concerned, and, unless the contrary is proved, it will be presumed that service was effected on the seventh day following the day on which the document was posted‟.

[16] What is to be decided in this regard is whether the Rule 11 application was received by the Respondents before 24 April 2012. According to the Applicant, the Rule 11 application was posted and filed on 22 March 2012. On the other hand, the Respondents argued that it was only received on 24 April 2012. Save submitting that it is highly unlikely, the Applicant does not indicate the date of Respondents‟ receipt of the application. This issue calls for the application of Plascon-Evans Paints rule[1] in terms of which where disputes of fact in motion proceedings arose on the affidavits, a final order could be granted only if the facts averred in the Applicant‟s affidavits and admitted by the Respondents, together with the facts alleged by the latter, justify such order.[2]

[17] Rule 4(1) (a) (vii) says that unless the contrary is proved, it will be presumed that service of document was effected on the seventh day following the day on which the document was posted. However, Rule 4(2)(e) provides that service of a document sent by registered post is proved in court by producing a certificate issued by the post office for the posting of the registered letter and an affidavit that the letter posted contained the document concerned.

[18] The Respondents do not deny that Rule 11 application was posted on 22 March 2012. Badenhorst from the Applicant‟s attorneys declared in his affidavit dated 23 March 2012 that the Applicant‟s application to have review application dismissed was served on the First and Second Respondents‟ attorneys by registered post on 22 March 2012 with proof thereof attached to his affidavit. Although Badenhorst does not disclose the name of the person who effected service, the fact that Rule 11 application was posted on 22 March 2012 is not in dispute. To this end the Applicant has proved in an affidavit that “the letter posted contained the document concerned”. However, this does not in itself prove that service of Rule 11 application was effected on the seventh day following the day on which it was posted.

[19] What remains to be decided is whether or not there is a rebuttal that service of Rule 11 application was not effected on the seventh day following the day on which it was posted.

[20] The Respondent argued that there should have been a confirmatory affidavit from the Applicant confirming that the Respondents have indeed received copy of Rule 11 application before 24 April 2012. In accepting this argument without some qualifications would definitely place an unnecessary burden upon a party who effected service of document through registered mail.

[21] It is vital to restate the reasoning of Constitutional Court[3] that the legislation and the Rules of the Labour Court do not demand that the party prove that the document actually came to the attention of the other party since that would ordinarily be impossible. Nor does it demand proof of delivery to an actual address. However, having regard to the fact that the effect of the Rule 11 application may result in such review application dismissed, I am inclined to agree that there must be averments that will satisfy the court that the Applicant‟s Rule 11 application on balance of probabilities did reach the Respondents before 24 April 2012.

[22] Faced with Respondents‟ allegation that they only received copy of Rule 11 application on 24 April 2012, the Applicant, armed with the registered mail slip from the post office should have followed the following practical guidelines from the Constitutional Court[4], most particularly if receipt or date of receipt of the document served by registered post is in dispute:

„[76] In practical terms, this means the credit provider must obtain a post-dispatch “track and trace” print-out from the website of the South African Post Office.

As BASA‟s submission explained, the “track and trace” services enables a dispatcher who has sent a notice by registered mail to identify the post office at which it arrives from the Post Office website. This can be done quickly and easily. The registered item‟s number is entered, the location of the item appears, and it can be printed.

„[77] The credit provider‟s summons or particulars of claim should allege that the notice was delivered to the relevant post office and that the post office would, in the normal course, have secured delivery of a registered item notification slip, informing the consumer that a registered article was available for collection. Coupled with proof that the notice was delivered to the correct post office, it may reasonably be assumed in the absence of contrary indication, and the credit provider may credibly aver, that notification of its arrival reached the consumer and that a reasonable consumer would have ensured retrieval of the item from the post office.‟

[23] In the absence of proof that the Respondents retrieved the registered mail containing the copy of Rule 11 application from the post office before 24 April 2012 as well as an indication in the replying affidavit that the Respondents actually retrieved the said registered mail on a particular date, the Respondents‟ version that Rule 11 application was only received on 24 April 2012 is not so untenable. I am thus constrained to accept the statement in the Respondents‟ answering affidavit that Rule 11 application was received on 24 April 2012. This being my finding, I conclude that there was no need for application for condonation of the late filing of the Respondents‟ answering affidavit.

Respondents‟ points in limine

[24] The Respondents‟ points in limine are that the application was incorrectly brought in terms of Rule 11, instead of Rule 12(2). According to the Respondents the Applicant was supposed to have sought an order compelling the Respondents to comply with the court order of 30 June 2012.

The Respondents‟ further contention is that the Applicant was supposed to have sought directive from court because the delays were not of the Respondents‟ own making and that the First Respondent‟s interest in the matter is still alive as it is looking at bringing a claim for damages.

[25] The Applicant in response contended that Rule 12(2) is not applicable to Rule 11 application because it deals with extension of time limits and condonation, whereas Rule 11 deals with interlocutory applications and procedures not specifically provided for in the rules. The Applicant further argued that it was as a result of the delays compelled to become a driving force in setting the review application down and obtaining a death certificate.

Is rule 11 process a correct approach?

[26] It is of paramount importance to note that Rule 12 (2) is written in plain language and does not deserve repetition herein. The long history of this matter is something requiring full attention from the court. It is not in dispute that Francis J‟s order required action to be taken by the Respondents and was never complied with.

[27] It is still difficult for the court to understand the Respondents‟ submissions calling upon the Applicant to go out and seek directive over and above what was on number of occasions done by the Applicant on their behalf. The Applicant correctly viewed the filing of this application as a last resort in the light of the Respondents‟ “sloppy litigant” approach. To me there is no merit in the Respondents‟ points in limine. In essence this Rule 11 application is properly before this court and there is nothing precluding the Court from determining it. Therefore I proceed to deal with the final stage for determination, which is the merit of the application.

The Rule 11 Application

[28] The legal principle that the late filing of a notice of appeal particularly affects the

Respondent‟s interest in the finality of his judgement[5] and that the time for noting an appeal having lapsed, he is prima facie entitled to adjust his affairs on the footing that his judgment is safe[6] also applies in the present matter. Failure by a litigant to prosecute its claim diligently results in prejudice, not only financially but may go to an extent of failure in justice.

[29] I also subscribe to a notion that an employee‟s job is a major asset and deserves protection by all available legal means[7]. In this instant case an employee and his trade union are the Applicants in the review application. They were ordinarily expected

to reclaim and protect the said major asset by expeditiously prosecuting their review application. They did not do so in that since the Second Respondent‟s death on 15 July 2010 until when this matter was argued an executrix had not been appointed. In the light of unreasonable delays, the Applicant‟s available avenue was the filing of an application of this nature in terms of Rule 11.

[30] When looking at the facts of this matter it is acceptable that the Second Respondent‟s death is not as a result of the parties‟

making. It is however, undeniable that the element of unreasonable delays on the part of the Respondents is traced back from the time when the Second Respondent was still alive. This is noted from actions taken by the Applicant in assisting to have the review

application prepared and made ready for hearing. After the Second Respondent's death, lack of interest on the Respondents‟ side accelerated.

[31] Our Courts have repeatedly expressed concerns at unreasonable delays in Labour proceedings.8 Guidance is also taken from Meintjies v New Tyre Manufacturers Bargaining Council and Others9 where Molahlehi J had this to say;

„[30] It is trite that the court has a discretion to bar an Applicant who fails to provide a reasonable and satisfactory explanation for the delay in timeous prosecution of his or her review application. The approach to be adopted when dealing with the issue of unreasonable delay has received attention in a number of both Labour Court and Labour Appeal Court cases. The courts in considering whether to uphold an application for the dismissal of a review on the ground of want of prosecution take into account the following:

(a) Is the delay in the prosecution of the matter excessive?

(b) Is there a reasonable explanation for the delay?

(c) What prejudice will the other party suffer if the dismissal is not granted?

(d) Are there prospects of success in the main case?‟

[32] I have also given consideration to another decision of the Labour Court by La Grange J in Maraka v National Bargaining Council for the Chemical Industry and Others10 who said the following in paragraph 20:

„A party defending itself against an application to dismiss a review application on account of undue delay is effectively asking the court to condone its dilatoriness and similar considerations which apply to the evaluation of applications for condonation ought to be relevant in the evaluation of these applications. In this instance, the long delay of nearly two years between the incorrect filing of the transcript and the filing of the supplementary affidavit which added nothing to the merits of the review, is unexplained...‟ 8 See, for example, Equity Aviation Services (Pty) Ltd v SA Transport and Allied Workers Union and Others

(2009) 30 ILJ 2912 (LC); BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical

Industry and Others (2010) 31 ILJ 1337 (LC); A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC); Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 829 (SCA); Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and Others (2009) 30 ILJ 1521 (CC); Strategic Liquor Services v Mvumbi NO and Others (2009) 30 ILJ 1526 (CC). 9 (2012) 33 ILJ 1725 LC. 10 (2011) 32 ILJ 667 LC at para 20.

[33] What catches the court‟s attention in so far as the Respondents‟ case, is the argument that the Applicant had not played a clean game on reasons that this application was solely filed with intentions of avoiding the hearing of the review application. I respectably find this argument to be meritless. Surely, if that was the case, the Applicant would not have taken steps to ensure that the review application was set down and to enquire constantly regarding the issuing of the death certificate and appointment of the executrix.

[34] According to the court records nothing was done from the Respondents‟ side until only on 10 May 2012 when they filed an answering affidavit opposing this application. The whole period in excess of two years of lack of action on the part of the Respondents despite reminders is not satisfactorily accounted for. The Respondents did not comply with the order of Francis J of 30 June 2011. Since they failed to comply with the court order, in fact they are the ones who are approaching the court with “dirty hands”.[8]

[35] The Applicant had as a party with interest in the finality of the review application, correctly exercised an option of Rule 11 which was available to avoid further prejudice by filing this application seeking dismissal of the review application. To this point there is no reason why this application should not be granted on account of unreasonable delays caused by the Respondents in carrying out the review application to completion coupled with Respondents‟ failure to give satisfactory explanation for such unreasonable period of delay.

[36] Furthermore, the review application still falls to be dismissed for the trade union‟s lack of locus standi to persist with the review application without authority from an executrix of the deceased estate. Even if there was an appointment of the executrix, the First Respondent is not competent to persist with the review without authorization from the executrix.

[37] Although the First Respondent was cited in the review papers as the First Applicant, an analysis of the situation clearly shows that the First Respondent is in fact a union party acting in its representative capacity as it had no quarrel of its own with the employer party. It appears only as representative of its deceased member seeking nothing for itself. Consequently, on the facts of this case there is no aspect which the union can pursue this matter in its personal capacity in this court. Any granting of an order of reinstatement in terms of notice of motion in support of the review application in its personal capacity would amount to a hypothetical, abstract and academic order which no Court would entertain.[9]

[38] If one of the parties in High Court litigation dies, the case is not automatically stayed until an executor has been appointed[10] except as otherwise provided by statute or the Rules of the Court. From the Court‟s point of view, the case would continue even though the party is deceased on condition that the affected party secures the appointment of an executor to pursue the interests of the deceased employee‟s estate under the LRA.[11]

[39] Since 30 June 2011, the Respondents have not secured an appointment of an executrix of the deceased employee‟s estate. In this regard, given the absence of any authority from the executrix, it follows that the review application as it is now is not properly before court. I am therefore not prepared to dismiss Rule 11 application and to postpone the case sine die pending substitution of Second Respondent‟s wife as contended on behalf of the Respondents. I am also not prepared to order that parties should present their argument on the review in which the First

Respondent has no authority from an executrix of the deceased employee‟s estate. I am thus constrained to echo what was held in the TGWU & Others v Coin Security Group (Pty) Ltd15 per Basson J in paragraph 166 as follows:

„In regard to applicants numbers 30 and 88 (in Annexure A to the applicants‟ statement of case) the Respondent contended that, as they are deceased and no authority was obtained from the executors of their estates to persist with the referral on their behalf, they were not properly before court as parties in this matter. See inter alia, Du Toit v Bornman & Another (1992) (4) SA 257 (C) at 261 F-G, Nycul v Minister of Bantu Administration & Others 1978 (3) SA 224 (E) at 226F-227B; and Pentz v Gross & Others (1996) (2) SA 518 (C) at 523 A-E. I agree with this contention and this was also conceded in argument by the Applicants‟ legal representative‟

[40] Due to death of the second Respondent on 15 July 2010 and failure to have an executrix appointed, the review application is undoubtedly stagnant. The situation did not subsequently change since 30 June 2011 when Francis J made an order calling for the Respondents to secure the appointment of an executrix to substitute the deceased Second Respondent. The only available remedy is as sought by the Applicant and that is to have the indefinite hanging review application dismissed.

[41] Since it is now settled in our law that the appearance of a trade union in the matter is of representative capacity, what follows is that a trade union may proceed with the review proceedings provided it has a mandate, express or implied by the employee.16 In casu, the Second Respondent cannot give mandate to the First Respondent because of death and no executrix has been appointed in his place. An executor or executrix testamentary has no locus standi as a representative of an estate unless and until he or she actually receives letters of administration in terms of the empowering

legislation.17 Therefore, the issues are of such a nature that the judgment or order sought in the review will have no practical effect or result and accordingly the review application is to be dismissed on this ground, too.18

[42] With regard to costs, the court has a discretion to be exercised judicially and on consideration of the facts of the matter. I am of a strong view that the award of costs must not follow the result in view of the importance of the case. Furthermore, the Applicant should be deprived of its costs to serve the court‟s disapproval of the Applicant‟s inclusion of a total of 133 pages in the Rule 11 application consisting of

16 Commercial Catering and Allied Workers Union of SA (SA Commercial Catering and Allied Workers Union) v Game Discount World (Pty) Ltd supra

17 Klempman, NO v Law Union and Rock Insurance Co Ltd 1957 (1) SA 506 (W)

18 Executor of the late Madlala v Commission for Conciliation Mediation and Arbitration and others (47220/2009, A555/2011) [2013] ZAGPPHC 9 (23 January 2013)

unnecessary and/or duplicate documents, that is, answering affidavit in the review application (71 pages), record of disciplinary hearing (12 pages), Respondents‟ review application (23 pages), 2x copies of arbitration award (14 pages), Respondents‟ heads of argument inside the paginated bundle (13 pages). It is worth mentioning that the bulk of these documents making approximately half of the Rule 11 application are already part of the record as they appear in the paginated bundle of the review application. The bundle was unnecessarily bulky and cumbersome. The Applicant did not identify relevant portions on which its reliance was placed and the indication of the case which was sought to be made out on the strength thereof.[12]

Order

[43] In the premises, the following order is made:

1 The review application filed by the Respondents under case number JR 1591/09 is dismissed.

2 There is no order as to costs.

Baloyi AJ

Acting Judge of the Labour Court

Appearances:

For the Applicant: Ms M E Duvenage of Duvenage Attorneys

For the Respondent: Advocate. L Tyatya

Instructed by: MES Makinta Attorneys

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 - 635.

[2] National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA).

[3] Sebola and Another v Standard Bank of South Africa Limited and Others (Case No.CCT98/11) at para 74.

[4] Sebola and Another v Standard Bank of South Africa Limited & Others ( Case No.CCT98/11) at paras 76 and 77.

[5] See Cairn’s Executors v Gaarn 1912 181 AD at 193

[6] Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A) at 363A; Meinjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 264A; Kgobane and Another v Minister of Justice 1969 (3) SA 365 (A) at 369E; Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 686F-687A; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281I

[6] Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A) at 363A; Meinjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 264A; Kgobane and Another v Minister of Justice 1969 (3) SA 365 (A) at 369E; Mbutuma v Xhosa Development Corporation Ltd 1978 (1) SA 681

(A) at 686F-687A; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281I

[7] Law Society of the Northern Provinces v Minister of Labour and Others [2013] 1 BLLR 105 (GNP) at para30; although overruled on appeal (see Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (005/13) [2013] ZASCA 118 (20 September 2013), the Supreme Court of Appeal did not overrule the reasoning that an employee‟s job is a major asset and deserves protection by all available legal means.

[8] Associated Newspapers of Zimbabwe (PVT) Ltd v Minister for Information and Publicity in the President’s office and Others 2004 (2) SA 602 (ZSA)

[9] Commercial Catering and Allied Workers Union of SA (SA Commercial Catering and Allied Workers Union) v Game Discount World (Pty) Ltd (1991) 12 ILJ126 (LAC) at 130A-B

[10] Parekh v Shah Jehan Cinemas (Pty) Ltd and Others [1982] 3 All SA 697 (D), see also Rule 15(3) of High Court

[11] Estate late WG Jansen Van Rensburg v Pedrino (Pty) Ltd (2000) 21 ILJ 494 (LAC). 15 (2001) 4 BLLR 458 LC.

[12] Swissborough Diamond Mines (Pty) Ltd and Others v Government of the RSA and Others 1999 (2) SA 279 (TPD) at 324-325