Islam v Public Health and Social Development Sectoral Bargaining Council and Others (PR216/2014) [2019] ZALCPE 9 (27 March 2019)

THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not reportable

Case no: PR 216 /2014

In the matter between:

SIRAJUL ISLAM Applicant

and

THE PUBLIC HEALTH AND SOCIAL

DEVELOPMENT SECTORAL BARGAINING COUNCIL First Respondent

J N MATSHEKGA N.O Second Respondent

T MALGAS N.O

Third

Respondent

DEPARTMENT OF HEALTH: EASTERN CAPE

Fourth Respondent

THE SUPERINTENDANT-GENERAL OF THE

DEPARTMENT OF HEALTH

Fifth

Respondent

THE ACTING CEO OF KOMANI HOSPITAL

Sixth Respondent

Heard: 31 January 2019

Delivered: 27 March 2019

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant was employed by the Fourth Respondent (the Department) in May 2008 as chief medical officer at the Komani Hospital in Queenstown.

[2] The Applicant fell ill during August 2012 and reported for duty until 17 August 2012. He consulted a specialised psychiatrist, Dr Crafford, on 21 August and he was diagnosed as suffering from ‘bipolar type II mood disorder major depression’. Dr Crafford issued a sick note wherein he recorded that the Applicant “is due to be hospitalised on 3/9/12 and will not be fit for work before 20/9/12.”

[3] The Applicant’s version is that he had sent a copy of the aforesaid sick note to the Komani Hospital soon thereafter and that he had discussed the matter with the acting CEO, Ms Toni. The Applicant made it clear that he would resume duty on 21 September 2012.

[4] After he reported back for duty, the Applicant was issued with a letter, signed by Ms Toni and dated 27 September 2012 wherein he was informed that his absence from work from 17 August 2012 until 23 September 2012 constituted abscondment. He was referred to provisions of the Public Service Act, 1994 (the PSA) that provides for a deemed discharge on account of misconduct in the event of absence without permission for a period exceeding one calendar month.

[5] The Applicant’s services were terminated on 27 September 2012 and he subsequently referred a dispute to the First Respondent (PHSDSBC). On 12 March 2013 the Second Respondent issued a jurisdictional ruling in respect of the unfair dismissal dispute that the Applicant had referred to the PHSDSBC wherein it was found that where an employee is discharged in terms of the provisions of section 17(3)(a) of the PSA, the discharge is deemed to be on account of misconduct and when the employee who is deemed to be so discharged, reports for duty and shows good cause, such employee may be reinstated into his / her former position, subject to conditions. The arbitrator found that the PHSDSBC lacked jurisdiction to determine the dispute referred by the Applicant and held that the Applicant could approach the relevant executing authority for approval to be reinstated in accordance with the provisions of section 17(3)(b) of the PSA. The PHSDSBC closed the file.

[6] Acting on the content of the Second Respondent’s ruling, the Applicant made representations to the Fifth Respondent on 22 October 2012. The Applicant received no response to his submissions and on 7 May 2013, his attorney at the time requested the Fifth Respondent to provide the Applicant with a reply to his submissions. Another attorney representing the Applicant wrote another letter on 21 August 2013 requesting an outcome from the Fifth Respondent. The Applicant never received a response to these letters and on 27 September 2013, he referred a fresh dispute to the PHSDCBC, claiming that he was dismissed.

[7] When the matter was enrolled for arbitration, the Department raised a point in limine namely that the PHSDCBC lacked jurisdiction to arbitrate the dispute as the Applicant’s services were terminated in terms of section 17 of the PSA, thus there was no dismissal. The Third Respondent dismissed the Applicant’s case after she found that the PHSDCBC lacked jurisdiction to arbitrate the dispute. A jurisdictional ruling was issued on 25 April 2014.

[8] The Applicant filed a review application on 6 October 2014 wherein he sought condonation for the late filing of the review application and in the main, he sought the review and setting aside of the jurisdictional rulings by the Second and Third Respondents.

[9] There are effectively two applications before me, a review application, with an application for condonation for the late filing of the review application and an application to re-instate the Applicant’s review application.

[10] Logic dictates that the reinstatement application should be considered first.

The re-instatement application

[11] In casu, the Applicant’s services were terminated in September 2012, the jurisdictional rulings that are the subject of the review

application, were issued in March 2013 and April 2014 and the review application was filed in October 2014. Only in July 2017, did the Applicant file the record of the arbitration proceedings and a notice in terms of Rule 7A(8) of the Labour Court Rules (the Rules).

[12] Rule 7A(6) provides that the applicant in a review application must furnish the Registrar and each of the other parties with a copy of the record or portion of the record, as the case may be.

[13] The serving and filing of the record in a review application is provided for in clause 11.2 of the 2013 Practice Manual of the Labour Court (Practice Manual) as follows:

‘11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record’.

[14] This Court and the Labour Appeal Court have considered the status of the Practice Manual[1] and held that in essence, the manual promotes uniformity and consistency in practice and procedure and sets guidelines on standards of conduct expected of those who practise and litigate in the Labour Court and it promotes the statutory imperative of expeditious dispute resolution. The provisions of the Practice Manual are binding and should be adhered to and it is not to be adhered to or ignored by parties at their convenience.

[15] A proper interpretation of clause 11.2.3 shows that there are three possibilities if the record is not filed within 60 days of the date on which the applicant is advised by the Registrar that the record has been received. The first possibility is the easy and obvious one namely; for the applicant to request the respondent’s consent for an extension of time and such consent has been given.

[16] The second possible scenario arises only in the event that consent was sought from the respondent but is refused. In such event the applicant may, on notice of motion supported by affidavit, apply to the Judge President for an extension of time. The application must comply with Rule 7 and affidavits are be filed within the time limits prescribed by Rule 7.

[17] The third possible scenario arises when the applicant in a review application failed to file the record within the prescribed 60 days’ period and failed to obtain the respondent’s or Court’s consent for the extension of time. In such a case the review application is deemed to be withdrawn.

[18] In casu the Applicant has not filed the record within the prescribed 60-day period, he has not approached the Respondents to seek consent to an extension of time nor has he approached the Judge President for an extension. It follows that the review application is deemed to be withdrawn.

[19] In Ralo v Transnet Port Terminals and Others[2] (Ralo) the Court accepted the legal definition of ‘deemed’ as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 2 March 2010) where the Court held that the word ‘deemed’ is considered to have a conclusive effect[3]. This Court concluded by stating the following:

‘…The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.’

[20] In casu, the same fate meets the Applicant and the status of the review application is ‘withdrawn’. There is however no bar, either in the Rules of this Court or the Practice Manual to the Applicant filing an application in which it seeks to have the review application reinstated.

[21] In terms of clause 11.2.7 of the Practice Manual, an applicant in a review application is required to ensure that all the necessary papers in the review application are filed within 12 months of the date of the launch of the application and the Registrar is informed in writing that the application is ready for allocation for a hearing date. Where the time limits are not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not be archived or be removed from the archives.

[22] The Applicant filed an amended notice of motion and a supplementary affidavit in July 2017 seeking condonation for the non-compliance with the provisions of clauses 11.2.2 and 11.2.7 of the Practice Manual and for this application to be retrieved from the archives. What the Applicant in fact effectively seeks is an order to re-instate the review application.

[23] The Applicant provided a detailed explanation in his supplementary affidavit of the events that transpired since October 2012, when he first made submissions to the Fifth Respondent in terms of the provisions of section 17(3)(b) of the PSA. I do not intend to record in detail what the Applicant set out in his affidavit. In summary, the Applicant had consulted an attorney at the end of October 2012 and correspondence was despatched to the Respondents and disputes were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the bargaining council. The first attorney that assisted the Applicant left practice in May 2013 and he was referred to another attorney. The Applicant’s file was with the second attorney for two and a half months, during which time the Applicant made numerous phone calls to the attorney, but never got to consult with the attorney. After two and a half months, the Applicant was requested to collect his file from the second attorney.

[24] The Applicant was then referred to another attorney in Port Elizabeth. The Applicant’s file was delivered to the office of the attorney and he was in email contact with the third attorney from as early as 3 July 2013, wherein he issued the attorney with instructions. During the period 12 June 2013 to 28 March 2014 the Applicant left South Africa and went to Bangladesh.

[25] It is evident that the Applicant made several attempts to communicate with the third attorney by way of electronic mail (email) and he also made telephone calls to follow-up on his matter. He received advice on 9 August 2013 and responded to that. On 27 September 2013, an unfair dismissal dispute was referred to the PHSDCBC and on 7 October 2013 the bargaining council informed the attorney that the referral was defective. After further correspondence between the attorney and the bargaining council, the dispute was set down for conciliation on 21 November 2013 and a certificate of outcome was issued, referring the matter to arbitration. The attorney requested that the matter be arbitrated on 11 December 2013. A notice of set down was initially issued for 27 February 2014, but was postponed and was eventually set down for arbitration on 4 April 2014. At the arbitration proceedings the Department raised the jurisdictional point and the ruling, which is the subject of the review application, was issued on 25 April 2014.

[26] What followed between May and July 2014, is a trail of correspondence from the Applicant to the attorney, asking for feedback and complaining about the lack of communication from the attorney’s office. The Applicant was desperate to know when something would be done about his matter. On 2 July 2014, the Applicant instructed the attorney to proceed with a review application to the Labour Court. It is evident that further delays occurred in the drafting, finalisation and filing of the review application. The application for review was filed with this Court only in October 2014, four weeks after it was signed by the Applicant. The Applicant constantly followed up with the attorney, but was told that a hearing date for the matter had not yet been allocated. In January 2015, the Applicant expressed his concerns about the poor service he received from the attorney.

[27] In February 2015, the State Attorney acting on behalf of the Department, wrote a letter to the Applicant’s attorney indicating that the record and transcript had not been filed in compliance with the Labour Court Rules and that the attorney should advise when he intended to file same. On 19 February 2015 the Applicant wrote to the attorney that his case had been delayed because there was no compliance with the Rules.

[28] On 12 March 2015, the Applicant approached another attorney. The Applicant was told that he had to pay R 50 000. The fourth attorney obtained an opinion from counsel and on 25 March 2015 counsel advised that the correct approach was to apply for review but the delay in the matter was concerning and that the matter should be pursued diligently in future. The fourth attorney made some attempts to obtain the record from the Department and there is also a trail of correspondence between the Applicant and the fourth attorney. On 17 November 2015, the Applicant requested the attorney to forward his file to another attorney, which was indeed done on 20 November 2015.

[29] For the period from 23 November 2015 until June 2016 the Applicant instructed a fifth attorney to assist him with his matter. In March 2016 the Applicant had met with the attorney, who admitted that he had not read the Applicant’s entire file. The Applicant received a draft supplementary affidavit from the attorney on 16 March 2016, but much of the information in the affidavit was incorrect. The Applicant made significant corrections and anticipated that the affidavit would be finalised. The Applicant expressed his dissatisfaction and in May 2016 the attorney indicated that he would need a complete record, as the one he had was incomplete and incomprehensible.

[30] During June / July 2016, the Applicant instructed another attorney to handle his matter and the sixth attorney confirmed that he had received the Applicant’s file on 8 July 2016. The attorney indicated that no work had been done on the file since the review application was filed. The new attorney undertook to read the file and to revert to the Applicant. On 20 July 2016, the Applicant requested to consult with the attorney regarding his labour matter. In August 2016 the Applicant discovered that the file that was sent to his attorney, was not the complete file and he attempted to obtain the complete file from his previous attorney. The former attorney provided the complete file on 6 September 2016.

[31] The Applicant was once again dissatisfied with the lack of assistance and progress he received from his attorney and he requested his file in order to seek assistance elsewhere.

[32] On 1 September 2016 the Applicant consulted with his current attorneys of record, the seventh attorney instructed by the Applicant to deal with his matter. He consulted counsel in November 2016 and a draft affidavit was completed on 18 December 2016. The affidavit was settled and finalised in March 2017.

[33] The Applicant’s case is that he will be greatly prejudiced if he is not granted relief as he had been persistent in seeking to vindicate his rights and in the process he was poorly served by his legal representatives.

[34] The question is whether the Applicant has shown good cause to have his application re-instated.

[35] It has taken since October 2014 to bring this matter closer to finality. The apparent lack of prosecution and the delay in finalising this matter is of grave concern to this Court, given the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes. The Practice Manual for the Labour Court expressly states that a review application is by its nature an urgent application. It goes without saying that litigants should treat review applications as urgent applications and that they should act accordingly.

[36] In Superb Meat Supplies CC v Maritz[4] the Labour Appeal Court (LAC) held that:

‘In this court and the Supreme Court of Appeal there have been frequently repeated judicial warnings that there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. It has never been the law that invariably a litigant will be excused if the blame lies with the attorney. To hold otherwise might have a disastrous effect upon the observance of the rules of this court and set a dangerous precedent. It would invite or encourage laxity on the part of practitioners. The courts have emphasized that the attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’

[37] It is trite that each case has to be decided on its own merits and although I am in full agreement with the dicta in Superb Meat[5], this case is different. It is evident from the facts placed before me that the Applicant sought legal advice shortly after the termination of his services and as far back as October 2013. For the period from October 2013 to September 2016 the Applicant constantly instructed attorneys to deal with his matter and during the said period he had engaged the services of seven different attorneys. It is apparent that the Applicant was not satisfied with the advice and service he received from the attorneys, which constantly caused him to instruct another attorney. The attorneys who are accused and blamed for the delay in this matter, have not been afforded an opportunity to respond to the Applicant’s allegations against them and I have little doubt that had they been afforded such opportunity, another version of events may transpire.

[38] Be that as it may, for purposes of this application, I have the Applicant’s version before me and his version paints a picture of a litigant who engaged the services of attorneys and the moment that he was not satisfied with the service he received, he instructed another attorney. The correspondence attached to his affidavit, shows that the Applicant persisted with his case, that he followed up on the progress and in general, that he was almost desperate for legal assistance. The Applicant did not stick with an attorney when he was not satisfied but he instructed other attorneys with the hope of getting better advice and better service and that his matter will be attended to and finalised.

[39] The Applicant did not turn a blind eye when the attorney he instructed did not act according to his expectations and he did not adopt a ‘wait and see’ approach in dealing with his litigation. In my view the Applicant acted diligently and in the absence of any response by any of the attorneys to his allegations, I have to accept that he was poorly served by a number of different attorneys and this Court is reluctant to prejudice the Applicant for the conduct of his legal representatives.

[40] In casu, I am satisfied that there are exceptional circumstances to justify the reinstatement of the Applicant’s review application. The decision regarding the reinstatement of the Applicant’s review, is based on the exceptional circumstances and the specific facts of this matter and is by no means a precedent to be applied in all and any re-instatement application where the delay is as excessive as it is in this matter.

[41] The delay in finalising this matter was mostly caused by the Applicant (or his legal representatives) and should this matter be adjudicated by another tribunal in future, this fact should be taken into consideration and the Department should not be unduly prejudiced by the consequences of the delay.

The review application

[42] I have considered the application for condonation for the late filing of the review application. I have no intention to repeat the submissions made. Suffice to say that the delay is no doubt excessive, but the explanation tendered is convincing and acceptable. I have to exercise my discretion judicially upon a consideration of all the facts and to ensure fairness to both sides. On an objective conspectus of all the facts, I am satisfied that a case had been made out for condonation to be granted for the late filing of the review application and that the interest of justice will be best served by granting condonation.

[43] In his founding affidavit the Applicant submitted that the jurisdictional rulings issued were wrong and should be set aside. This is so because section 17(3)(a)(i) of the PSA did not apply and the termination of the Applicant’s employment constituted a

dismissal, as contemplated in section 186(1)(a) of the Labour Relations Act[6] (LRA). The arbitrators were thus wrong in finding that the PHSDCBC lacked jurisdiction to arbitrate his unfair dismissal dispute. In the event that the jurisdictional rulings were not set aside on review, the Applicant sought the review of the Fifth Respondent’s conduct in failing to consider the Applicant’s representations made, as he was bound to do by section 17(3)(b) of the PSA.

[44] It became apparent from the answering affidavit that the Applicant’s representations for reinstatement were submitted to an appeals committee, that rejected his submissions and that the MEC for Health approved the outcome on 23 March 2014. The MEC signed a letter to the Applicant on the same date informing him of the fact that his representations failed and that the termination of his services was upheld. The Applicant disputed that he had received the outcome from the MEC, but he no longer seeks relief directed at having the Fifth Respondent decide his appeal in terms of section 17(3)(b) of the PSA. The relief sought has been amended and in the alternative to the review and setting aside of the jurisdictional rulings, the Applicant seeks the review and setting aside of the Fourth Respondent’s decision refusing to reinstate the Applicant in terms of section 17(3)(b) of the PSA.

[45] In short, the main relief sought by the Applicant is the review and setting aside of the jurisdictional rulings and for the matter to be remitted to the PHSDCBC for a hearing de novo, alternatively the review and setting aside of the Department’s decision refusing to reinstate the Applicant in terms of section 17(3)(b) of the PSA.

Review of the jurisdictional rulings

[46] A jurisdictional ruling was issued by the Second Respondent on 12 March 2013, wherein it was held that the PHSDCBC lacked jurisdiction to determine the Applicant’s unfair dismissal dispute because he was deemed to be discharged in terms of the provisions of section 17(3)(a)(i) of the PSA.

[47] A second jurisdictional ruling was issued on 25 April 2014 wherein the Third Respondent held that as the Applicant’s services were terminated in terms of section 17(3)(a)(i) of the PSA, he was deemed to be discharged by operation of law and therefore there was no dismissal and thus the PHSDCBC lacked jurisdiction to adjudicate the dispute.

[48] The Applicant’s case is that the jurisdictional rulings are reviewable on the ground that the Second and Third Respondents (the arbitrators) committed gross irregularities or misconduct in failing to consider whether the provisions of section 17(3)(a)(i) of the PSA applied in his case.

[49] In my view there is merit in this ground for review.

[50] It has been confirmed in a number of authorities that all the jurisdictional prerequisites for proceeding with a ‘deemed dismissal’ as provided for in section 17(3)(a)(i) of the PSA must be present before it is invoked.

[51] In Grootboom v National Prosecuting Authority and Another[7] the LAC dealt with the now revoked section 17(5)(a) of the PSA and held that:

‘…The provision applies, by operation of law, once the circumstances set out in s 17(5)(a)(i) exist, namely, an officer who absents himself/ herself from official duties without permission of his/her head of the institution

for a period exceeding one calendar month’.

[52] In Department of Health v Public Health and Social Development Sectoral Bargaining Council and Others[8] this Court held that:

‘The arbitrator had to engage in a factual enquiry to determine whether the requirements of section 17 of the PSA had been met, and if so, the bargaining council would have no jurisdiction to arbitrate the dispute. The arbitrator found that the requirements of section 17 of the PSA have not been met and therefore he had jurisdiction to arbitrate the dispute. I am satisfied that the arbitrator correctly found that the bargaining council had jurisdiction to adjudicate the dispute and he has not committed any reviewable irregularity’.

[53] In Public Servants Association of SA obo Mohlala v Minister of Home Affairs and Others[9] it was held that:

‘A discharge in terms of the provisions of section 17(3)(a)(i) of the PSA constitutes a termination of employment by operation of law and therefore no dismissal exists that could be challenged on the basis of unfairness.

Before the provisions of section 17(3)(a)(i) of the PSA could be relied upon, an employee must be absent for a period exceeding one calendar month and the employer has to show that the employee was absent without permission and once it is shown, section 17(3)(a)(i) of the PSA operates without any act on the part of the employer. The question as to whether the requirements of section 17(3)(a)(i) of the PSA have been met or not, is a factual enquiry.

Whether the GPSSBC has jurisdiction or not, is a factual question in the form of a conditional syllogism, “if X, then Y”, where X is the condition and Y the consequent. If the condition is present, the consequent must necessarily also be present. In a section 17(3) discharge, the condition is that all the requirements of section 17(3) must be met, and if this condition exists, the consequence is that the GPSSBC would not have jurisdiction to adjudicate the dispute.

Whether or not there was a dismissal as contemplated by section 186 of the LRA or whether there was a deemed dismissal in terms of the provisions of section 17(3) of the PSA, is the first issue to be determined.’

[54] In casu, it is apparent from the jurisdictional rulings that the arbitrators misconceived the nature of the enquiry in that they made no

assessment whatsoever of whether section 17(3)(a)(i) of the PSA applied in the circumstances of the case and whether the requirements

for its application had indeed been met. Effectively, the approach they adopted was that once section 17 of the PSA is raised as reason for termination, it is the end of the matter as the bargaining council has no jurisdiction to determine an ex lege termination where no dismissal occurred.

[55] The arbitrators were indeed duty bound to engage in a factual enquiry to determine whether section 17(3)(a)(i) of the PSA applied and whether the requirements were met for the deeming provision to be triggered in the first place before coming to the conclusion that the PHSDCBC lacked jurisdiction to determine the Applicant’s unfair dismissal dispute.

[56] The Applicant has made out a case for the primary relief he seeks and the interest of justice will be best served by remitting the Applicant’s unfair dismissal dispute to the PHSDCBC for a hearing de novo.

[57] In view of the fact that the Applicant has made out a case for the primary relief sought, I deem it unnecessary to deal with the relief sought in the alternative.

[58] This Court has a wide discretion in respect of costs and in my view this is a matter where the interest of justice will be best served by making no order as to cost.

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

Order

1. The review application is reinstated;

2. The late filing of the review application is condoned;

3. The late filing of the Applicant’s supplementary affidavit is condoned;

4. The Applicant’s non-compliance with the provisions of clause 11.2.2 of the Practice Manual of the Labour Court and the late filing of the record are condoned;

5. The jurisdictional rulings issued on 12 March 2013 under case number PSHS911-12/13 and on 25 April 2014 under case number PSHS 611-13 are reviewed and set aside;

6. The Applicant’s unfair dismissal dispute is remitted to the First Respondent for a hearing de novo before a commissioner other that the Second or the Third Respondents;

7. There is no order as to costs.

______________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

Applicant:

Advocate S C Kirk-Cohen SC with Advocate C Bosch

Instructed by:

M Z Barday & Associates Attorneys

Fourth, Fifth and

Sixth Respondents:

Advocate C T S Cossie

Instructed by:

State Attorney, East London

[1] See: Ralo v Transnet Port Terminals and Others 2015] 12 BLLR 1239 (LC); (2015) 36 ILJ 265 (LC). , Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others [2014] 5 BLLR 516 (LC), (2014) 35 ILJ 1672 (LC), Rumba Samuels v Old Mutual Bank Case no DA30/15 handed down on 25 January 2017.

[1] See: Ralo v Transnet Port Terminals and Others 2015] 12 BLLR 1239 (LC); (2015) 36 ILJ 265 (LC).

, Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others [2014] 5 BLLR 516 (LC), (2014) 35 ILJ 1672 (LC), Rumba Samuels v Old Mutual Bank Case no DA30/15 handed down on 25 January 2017.

[2] Ralo v Transnet Port Terminals and Others [2015] 12 BLLR 1239 (LC), (2015) 36 ILJ 2653 (LC).

[3] Ralo n 2 at para 10.

[4] (2004) 25 ILJ 96 (LAC) at para 16.

[5] Ibid n 4.

[6] Act 66 of 1995 as amended. [7] (2013) 34 ILJ 282 (LAC); [2013] 5 BLLR 452 (LAC) at para 38. The LAC judgment was upheld by the Constitutional Court in 2014 (2) SA 68 (CC). [8] (2014) 35 ILJ 2166 (LC) at para 48.

[6] Act 66 of 1995 as amended.

[7] (2013) 34 ILJ 282 (LAC); [2013] 5 BLLR 452 (LAC) at para 38. The LAC judgment was upheld by the Constitutional Court in 2014 (2) SA 68 (CC).

[8] (2014) 35 ILJ 2166 (LC) at para 48.

[9] (2019) 40 ILJ 415 (LC) at paras 27 -30.