City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR795/18) [2021] ZALCJHB 394 (15 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 795/18

In the matter between:

CITY OF TSHWANE METROPOLITAN

MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First Respondent

T L MABUSELA N.O Second Respondent

SOUTH AFRICAN MUNICIPAL WORKERS’

UNION obo MOLOISANE AND OTHERS Third

Respondent

Heard: 6 October 2021

Delivered: 15 October 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 on 15 October 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 28 February 2018 and issued under case number PMD061604 wherein the Second Respondent (the arbitrator) found that the Applicant committed an unfair labour practice and was ordered to pay each of the individual respondents an amount of R 7 500, subject to allowable statutory deductions.

[2] The Third Respondent (‘the Respondent’) opposed the application for review.

[3] The matter was heard on 6 October 2021 and in accordance with the provisions of the directive issued in respect of access to the Labour Court and the conduct of proceedings during the Covid-19 pandemic, the parties agreed to present arguments virtually via Zoom.

Background

[4] The individuals represented by SAMWU in this matter (the employees) were employed by the Applicant on a fixed term basis as ‘Volunteer Community Health Workers’ in terms of the ‘Expanded Public Works Programme’ (EPWP). They were so employed over the period February 2014 until January 2016.

[5] The employees’ fixed term contracts came to an end in January 2016. Notwithstanding the expiry of their fixed term contracts, the Applicant continued to pay the employees their salaries until April 2016. On the Applicant’s version, this is explained as an ‘administrative error’, or put differently, poor administration.

[6] Upon realising the ‘administrative error’, the Applicant ceased payment of the employees’ salaries and engaged with the employees to sign new contracts of employment, as their previous contracts had expired at the end of January 2016. The employees however refused to sign the new contracts. On 28 April 2016 the Applicant addressed a letter to the employees, informing them that should their signed contracts not be received by 29 April 2016, their services will be suspended with immediate effect.

[7] On 8 June 2016 SAMWU, acting on behalf of the employees, referred an unfair labour practice dispute to the First Respondent. It is evident from the referral form that SAMWU had referred an unfair labour practice dispute on the basis that the Applicant had suspended the employees unfairly and without pay. The required result was for their suspension to be uplifted and for their salaries to be reinstated retrospectively.

[8] The dispute was conciliated on 10 August 2016, but remained unresolved. SAMWU requested for the dispute to be arbitrated and the issue in dispute was recorded as that the Applicant had suspended the employees without pay for no fair reason. The employees were not paid for May until August 2016.

[9] In September 2016 the employees were called back to work and they were paid backpay for the period May to August 2016. They worked until they were dismissed in January 2017.

[10] The dispute was arbitrated on 10 January 2017, on which occasion the Applicant had raised a point in limine to the effect that the employees were not employed by Applicant and that the First Respondent had no jurisdiction to determine the matter.

[11] The arbitrator issued a jurisdictional ruling on 30 March 2017 wherein he found that the employees were employed by the Applicant and that the First Respondent had jurisdiction to determine the matter. The point in limine was dismissed.

[12] In Part A of this application the Applicant sought to review and set aside the aforesaid jurisdictional ruling. During argument and wisely so, Mr Bekker for the Applicant abandoned the relief sought in Part A of the application.

[13] The dispute was arbitrated and in an award issued on 28 February 2018, the arbitrator found that the Applicant committed an unfair labour practice. In Part B of this application, the Applicant seeks the review and setting aside of the arbitration award.

[14] The Applicant also seeks condonation for the late filing of the review application, which application is not opposed. I have considered the fact that the delay is minimal, with no prejudice to the Respondent and there is no reason to refuse condonation for the late filing of the review application.

The evidence adduced:

[15] The issue to be decided by the arbitrator was whether the Applicant committed an unfair labour practice by suspending the employees from service.

[16] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings.

[17] The Respondent called two witnesses. Ms Mhlala testified that they were initially employed by the Applicant for a period of twelve months (February 2014 until January 2015) on a fixed term contract. When the contract expired, they were issued with a similar contract for the period February 2015 until January 2016. When the period of the second contract expired, they continued to work and were remunerated in accordance with the initial and second contracts of employment. They had not signed contract for the period February until April 2016, when they continued to work and were remunerated accordingly.

[18] The Applicant subsequently issued them with new contracts, with different terms and conditions, which they refused to sign. Because the employees refused to sign the new contracts, they were informed that they had been suspended from work. The employees were not paid their salaries during the period of suspension (May to August 2016). In September 2016 their suspension was uplifted and the employees were paid in full for the period for which they were suspended. They reported for work and were fully paid until their dismissal in January 2017.

[19] The Respondent’s second witness, Ms Malete’s testimony was similar to the evidence adduced by Ms Mhlala.

[20] The Applicant called no witnesses and adduced no evidence at the arbitration proceedings. The Applicant made oral submissions and presented closing arguments, which cannot be regarded as evidence.

The arbitrator’s findings

[21] The arbitrator recorded specifically that his only mandate was to determine the issue of an unfair labour practice relating to suspension.

[22] The arbitrator accepted it to be common cause that the employees were paid all the monies due to them. The Applicant’s case was that the employees were not entitled to receive payment for the period that they were not on duty.

[23] The arbitrator recorded that it was the Applicant’s case that if it was found that the employees were indeed suspended, it should be found that their suspension was not unfair.

[24] The employees asked for maximum compensation in respect of their unfair suspension.

[25] The arbitrator concluded that the Applicant indeed committed an unfair labour practice and that the employees were entitled to compensation. Three months compensation was found to be reasonable and the Applicant was ordered to pay the employees each the sum of R 7 500.

Analysis of the arbitrator’s findings and the grounds for review

The test on review

[26] I have to deal with the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's

decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[27] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[2] affirmed the test to be applied in review proceedings and held that:

In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.

[28] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. A piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make[3].

[29] It is within the context of this test that I have to decide this application for review.

[30] The Applicant raised a number of issues as grounds for review and I will deal with the topics covered by the grounds for review in turn.

The definition of suspension

[31] The Applicant submitted that the arbitrator failed to properly apply his mind to the evidence presented and the arguments advanced in respect of the challenge to the First Respondent’s jurisdiction. The Applicant’s case is that the arbitrator should have found that the employees were not unfairly suspended and for that reason the First Respondent lacked jurisdiction.

[32] I already alluded to the fact that the review in respect of the jurisdictional ruling is not persisted with and what the Applicant is challenging under this ground for review, is a different challenge, relating to another aspect of jurisdiction.

[33] The challenge on this score is twofold. Firstly, the Applicant’s case is that the employees were not suspended in accordance with the definition of section 186(2)(b) of the Labour Relations Act[4] (LRA) and as such the First Respondent lacked jurisdiction.

[34] The argument is that the Applicant did not suspend the employees in accordance with the definition contained in section 186(2)(b) of the LRA which relates to precautionary suspensions pending disciplinary proceedings or suspension in the form of a disciplinary sanction. The Applicant submitted that it is settled case law that there are two types of suspension namely; precautionary and as a sanction. None of these applied in casu and accordingly the arbitrator’s finding that the bargaining council had jurisdiction to entertain the dispute, was incorrect in law.

[35] In my view there is no merit in the argument advanced by the Applicant.

[36] The relevant part of Section 186(2)(b) of the LRA defines an unfair labour practice as any unfair act or omission that arises between an employer and employee involving the unfair suspension of an employee. The restrictive definition the Applicant seeks to accord to section 186(2)(b) is not to be found in the provisions of the LRA.

[37] It is so that the Courts have considered the meaning of suspension and that there are numerous authorities that held that suspension could be precautionary or punitive. However, those cases were decided within the context of disciplinary action and it is not surprising that the definition accorded to ‘suspension’ would be fitting to that context.

[38] There is however nothing in the LRA that states that the definition is limited to the extent that any suspension that takes place outside the realm of disciplinary action, is to fall outside the ambit of the LRA. If this Court were to accept the Applicant’s argument, it will lead to an absurdity that was certainly not the intention of the legislature – that is that an employer is free to suspend employees for any reason, without protection for the employee, as the protection afforded by the LRA will only be available if the employee is suspended as a precautionary measure or as a sanction in a disciplinary process.

[39] This Court has to endorse a less restrictive interpretation of the definition of ‘suspension’ to ensure that the protection

afforded in section 23 of the Constitution[5] and the provisions of the LRA, is extended to employees who are unfairly suspended, irrespective of the reason for the unfair suspension.

[40] In casu the employees were suspended because they refused to sign a new contract. The fact of the matter is that they were suspended and

because of that, their dispute regarding the fairness of their suspension falls within the ambit of the LRA and thus the jurisdiction of the bargaining council. To hold that the bargaining council does not have jurisdiction because the employees were not suspended as a precautionary measure or as a sanction, would be to adopt an interpretation that is far too restrictive and superficial.

[41] Secondly, so the Applicant argues, the matter did not pertain to an unfair labour practice dispute relating to suspension, but instead the real dispute was a claim for salaries and a claim for remuneration falls outside the First Respondent’s jurisdiction. The Respondent should have pursued a claim in terms of section 77 of the Basic Conditions of Employment Act.[6]

[42] In my view there is no merit in this ground for review.

[43] It is evident from the referral form that SAMWU had referred an unfair labour practice dispute on the basis that the Applicant had suspended the employees unfairly and without pay. The required result was for their suspension to be uplifted and for their salaries to be reinstated retrospectively.

[44] After conciliation failed, SAMWU requested for the dispute to be arbitrated and the issue in dispute was recorded as that the Applicant had suspended the employees without pay for no fair reason.

[45] It is common cause that the employees were not paid for May until August 2016, the period during which they were suspended. They were called back to work in September 2016 and were paid backpay for the period May to August 2016. The arbitrator recorded specifically that his only mandate was to determine the issue of an unfair labour practice relating to suspension.

[46] In the arbitration award the arbitrator accepted it to be common cause that the employees were paid all the monies due to them.

[47] None of the aforesaid supports the Applicant’s case that the matter did not pertain to an unfair labour practice dispute relating to suspension, but instead the real dispute was a claim for salaries.

[48] In my view this ground for review is informed by the Applicant’s argument during the arbitration proceedings that the employees were not entitled to receive payment for the period that they were not on duty. This argument is without merit and is ill-conceived.

[49] In HOSPERSA and another v MEC for Health, Gauteng Provincial Government[7] the Court confirmed that:

An employee has a common-law right to be paid her salary. If through default on the part of the employee his or her services are not rendered, the wage must be diminished in proportion to the time during which the services where not rendered (see Boyd v Stuttaford 1910 AD 101 at 104-5). The position is, however, different where the employee's inability to perform her duties is her employer's doing. See in this regard Myers v SA Railways & Harbours 1924 AD 85 where the court held as follows at 90C:

'If however, it was due to his employer that he had been unable to perform his work, then he would be entitled to be paid notwithstanding that no service had been rendered by him.'

In terms of the common law, the unilateral suspension of an employee also does not relieve the employer of the duty to pay the employee.

It is also accepted in our labour law that an employer may not suspend an employee without pay and may only do so if they have contracted to that effect, either when the contract was first entered into or if a collective agreement provides for such penalty, or when the employee is faced with dismissal and agrees to unpaid suspension as an alternative penalty (see Grogan Workplace Law (2007) at 103).

[50] It is trite that the unilateral suspension of an employee does not relieve the employer of the duty to pay the employee, unless there is an agreement inter partes or a collective agreement to that effect or where unpaid suspension is imposed as a disciplinary penalty.

[51] The fact that the Respondent referred an unfair suspension dispute and sought not only the upliftment of the suspension, but also the reinstatement of the employees’ salaries, did not change the dispute to be one for the payment of salaries. The Applicant should not have suspended the employees without pay in the first place. The reinstatement of the employees’ salaries, was an obvious consequence to follow on the upliftment of their suspension.

Arbitrator exceeded his powers

[52] The Applicant submitted that in the event that this Court finds that the Applicant had committed an unfair labour practice and that arbitration award is not reviewable, the arbitration award stands to be set aside in respect of the relief that was granted to the employees.

[53] The case law indicates that for a suspension to be fair, certain conditions must be met, inter alia that the suspension must not be used to punish an employee (unless it is imposed as a sanction in a disciplinary process), the employee should be informed of the reason for the suspension and duration of the suspension, which should not be unreasonable and the employee should be paid in full for the period of the suspension[8].

[54] In casu the employees were suspended because they refused to sign a new contract. It is questionable if that could be regarded as a fair

reason for suspension. In any event, no evidence was adduced to show that it was indeed a fair reason. The employees were not informed

about the duration of their suspension, they were not paid during the period of suspension and evidently no process was followed prior to their suspension. These facts left no room for any finding that the Applicant’s conduct was fair in relation to the employees’ suspension.

[55] Section 193 of the LRA provides for remedies in the event that an arbitrator finds that an unfair labour practice was committed. An arbitrator may determine the unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation[9]. Section 194 provides for an arbitrator to award compensation in respect of an unfair labour practice and for such compensation to be just and equitable in all the circumstances and not to exceed 12 months’ remuneration.

[56] The compensation to be paid to an employee, where unfairness is found, had received attention in Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union[10] where the LAC held that:

‘The compensation for the wrong in failing to give effect to an employee's right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another. So too, in this instance.’

[57] In casu the employees sought maximum compensation of 12 months’ remuneration. The arbitrator concluded that the Applicant had committed an unfair labour practice and that as a result the employees were entitled to compensation. He awarded three months’ compensation.

[58] The Applicant’s case is that the employees were paid their outstanding remuneration in September 2016 and they were not entitled to any further relief. This argument lost sight of the fact that there is a difference between an entitlement to remuneration in terms of a contract of employment and compensation to be awarded as a solatium in the event of unfairness.

[59] The ground for review is that the arbitrator acted grossly irregular or exceeded his powers by awarding the employees three months’ compensation.

[60] There is no merit in this ground for review for a number of reasons fully dealt with infra.

[61] I will first consider the allegation that the arbitrator acted grossly irregular in awarding compensation.

[62] It is trite that an arbitrator has a discretion in awarding compensation, which is just and equitable, taking into consideration all the circumstances and this discretion is a discretion in the strict sense, also known as a true discretion.

[63] In Fouldien and others v House of Trucks (Pty) Ltd[11] it was held that:

'The right to compensation is a contingent right which rests on the finding regarding the substantive and procedural fairness of a dismissal. It is a discretionary remedy, although it is hedged by limitations on the quantum which can be ordered. It is, of course, a discretion which must be exercised judicially.'

[64] The question is when can this Court interfere with the true discretion the arbitrator exercised when she determined the quantum of compensation awarded.

[65] In Dr DC Kemp t/a Centralmed v Rawlins[12] Waglay JA (as he then was) held that:

‘The importance if the distinction between a discretion that is exercised in terms of section 193(1)(c) and a discretion that is exercised in terms of section 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of section 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether or not the decision maker adopted an incorrect approach.’

[66] In MEC for Environmental Affairs and Development Planning v Clairison’s CC[13] the Supreme Court of Appeal described the test that applies to the review of a discretion as follows:

‘When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.

……. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.’

[67] In short, provided the decision-maker acted in good faith, the threshold for interference is substantive unreasonableness[14], as per the test set out in Sidumo v Rustenburg Platinum Mines Ltd and others[15].

[68] In its review application the Applicant did no more than to make a bold and unsubstantiated allegation that the arbitrator failed to take into account relevant factors and that the employees were not entitled to further relief as they were paid their outstanding remuneration.

[69] In short the Applicant’s case is nothing but a suggestion that the employees were not entitled to relief, without stating why that is to be the case. I already alluded to the fact that their outstanding remuneration and the payment thereof is different and not to be confused with the entitlement to be paid a solatium. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised his discretion judicially.

[70] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.

[71] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicant’s unhappiness that it was ordered to pay three months’ remuneration as compensation.

[72] The Applicant further alleged that the arbitrator exceeded his powers by awarding three months’ compensation.

[73] There are two broad categories of excess of power – absence of jurisdiction and excess of powers within jurisdiction. The first is where an arbitrator acts in the absence of jurisdiction, that is where the necessary jurisdictional facts are not in existence, such as the existence of an employment relationship or a dismissal. The second category is where an arbitrator, having jurisdiction, exceeds the limits of his / her powers, for example where an arbitrator orders reinstatement of an employee whose dismissal was found only to be procedurally unfair, grants more than the maximum permissible compensation or decided an issue which the parties have not placed in dispute[16].

[74] In terms of the provisions of the LRA the arbitrator, having found that an unfair labour practice was committed, could award compensation not exceeding 12 months’ remuneration. The arbitrator awarded three months, which was within his powers to grant. There is no merit in the allegation that the arbitrator exceeded his powers.

[75] In argument Mr Bekker submitted further reasons why the compensation awarded was not reasonable. However, those submissions were not covered by the Applicant’s affidavits or even the heads of argument.

[76] It is trite that the Applicant’s case has to be made out in its founding and affidavit. In those there are no averments to support a case that the arbitrator exceeded his powers.

[77] In Northam Platinum Ltd v Fganyago NO and others[17] it was held that:

‘In my view, the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit.’

Conclusion

[78] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's

decision is reviewable. The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him.

[79] The review test to be applied in casu is a stringent and conservative test.

[80] The arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before him and there is no basis for this Court to interfere with it on review.

Costs

[81] This Court has a wide discretion in respect of costs.

[82] Mr Bekker submitted that it would not be appropriate to award costs as there is an ongoing relationship between the Applicant and SAMWU. Mr Feni for the Respondent submitted that there is no ongoing relationship as SAMWU is no longer involved in the matter and the individuals are funding the litigation themselves. Mr Bekker responded that there was no notice of withdrawal filed by SAMWU and that the Court should accept that SAMWU is still a party to the dispute.

[83] In Zungu v Premier of Kwa Zulu-Natal and Others[18] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[84] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[85] In Public Servants Association of SA on behalf of Khan v Tsabadi N.O and Others[19] it was emphasized that:‘…unless there are sound reasons which dictate a different approach, it is fair that the successful

party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

[86] This is a case where the Court has to strike a balance.

[87] In my view this is a case where it is appropriate to make a cost order.

[88] The Applicants filed a review application which had no merit and of which there was no consideration of the grounds for review or the prospects of success, which compelled the Respondent to oppose it. The Respondent is entitled to the cost incurred in doing so. It is irrelevant whether SAMWU is party to the dispute or not and whether there is an ongoing relationship between the parties, because this Court has previously awarded costs against SAMWU in favour of the Applicant and there was no argument that such a cost order had any detrimental effect on the ongoing bargaining relationship between the parties. In fact, this application was a waste of ratepayer’s money.

[89] In the premises I make the following order:

Order

1. The late filing of the application for review of the arbitration award issued on 28 February 2018 is condoned;

2. The application for review is dismissed;

3. The Applicant is to pay the Third Respondent’s costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Representatives:

For the Applicant: Advocate

W Bekker

Instructed by: Gildenhuys

Malatji Inc Attorneys

For the Third Respondent: Advocate Z Feni

Instructed by: Qhali

Attorneys

[1] 2007 28 ILJ 2405 (CC) at para 110.

[2] (2014) 35 ILJ 943 (LAC).

[3] (2014) 35 ILJ 943 (LAC) at paras 18 and 19.

[4] Act 66 of 1995, as amended.

[5] The Constitution of the Republic of South Africa, 1996.

[6] Act 75 of 1997, as amended.

[7] (2008) 29 ILJ 2769 (LC) at par 17.

[8] Law @ Work, Lexis Nexis 4th edition, 2018, p 216 – 217.

[9] Section 193(4) of the LRA.

[10] (1999) 20 ILJ 89 (LAC) at para 41.

[11] (2002) 23 ILJ 2259 (LC) at para 16.

[12] [2009] 11 BLLR 1027 (LAC)

[13] 2013 (6) SA 235 (SCA) paras 18 and 20.

[14] Reviews in the Labour Court, A Myburg and C Bosch, 2016 page 349 – 350.

[15] [15] 2007 28 ILJ 2405 (CC) at para 110.

[16] Reviews in the Labour Court, Myburgh and Bosch, Lexis Nexis 2015, Chapter 6, p107 – 117.

[17] (2010) 31 ILJ 713 (LC) at para 27.

[18] (2018) 39 ILJ 523 (CC) at para 24.

[19] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.