Lekwa Local Municipality v South African Local Government Council (SALGBC) and Others (JR1069/14) [2016] ZALCJHB 359; (2017) 38 ILJ 190 (LC) (31 August 2016)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)

JUDGMENT

Reportable

Case no: JR1069/14

In the matter between:

LEKWA LOCAL MUNICIPALITY

Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL (SALGBC)

First Respondent

JOHN MASHIKA N.O.

Second Respondent

MATILDA XOLISILE NKONYANE

Third Respondent

Heard: 14 December 2015

Delivered: 31 August 2016

Summary: Settlement Agreement made an award – requirements.

Award of compensation exceeding the limitations on the amount imposed in section 194 of the Labour Relations Act, 66 of 1995, reviewable, even when imposed in an award emanating from a settlement agreement.

Gross irregularity – Commissioner commits gross irregularity when failing to act within law, particularly powers and authority set in the LRA.

JUDGEMENT

MOSIME, AJ

Introduction and Background

[1] The third respondent was employed by the applicant on a permanent contract[1] effective from 3 September 2012, to the position of Manager: Income in its Budget and Treasury Office. At the time of this dispute, she was at level 2 in the matrix of the staff hierarchy, and she earned R283 818.31 per annum, excluding benefits. She resigned from her employment with the applicant and claimed constructive dismissal in the referral of this dispute to the first respondent.

[2] In her opposing affidavit, given the nature of this dispute, the third respondent avers that, during the first year of her employment, she “was continually attacked and threatened by the members of the union and the members of the public in the premises of the applicant and was prevented to perform her duties and even when [she] tried, it made performance of her work very difficult or impossible”[2]. The details of the threats and “verbal, threatening attacks” are all given in a letter of compliant addressed by the third respondent to the applicant’s Municipal Manager, dated 10 July 2013[3]. It appears from this letter that they relate to the incidents that occurred on the 4th and 9th July 2013, resulting in the third respondent reporting the matter to South African Police Service (SAPS). In the same letter, in addition, the third respondent complained that she had heard rumours circulating the message that she would allegedly be suspended.

Finally, she put terms in her letter, and demanded that, within 72 hours of its date, the applicant ‘correct the situation by providing safety assurance and enhance [her] working conditions’.

[3] The applicant responded[4] to the demands from the third respondent in a letter dated the 17 July 2013 as follows:

· It is unfortunate that we were not able to respond to your letter as promised. This was mainly because of several consultations that this office had to run through.

· We appreciate that this matter has been raised, and confirm that Mr Dodeni Dhlamini and Sipho Ngwenya were spoken to on the 04th July 2013, and the commitments were received from them on that day;

· The threat to life must be taken seriously, and we accept that this incident of the 09th July was viewed seriously by yourself, hence your visit to the SAPS and the Court;

· Given the environment in the Municipality, as an Accounting Officer and a caring person as well, it is not possible to guarantee your safety now;

· It is therefore our decision that we place you on a special leave, until we get commitments from our structures (organisations) on the matter.

[4] The third respondent was unimpressed and submitted in a replying letter dated 22 July 2012[5], that the ‘failure to guarantee” her safety and ‘failure to create an environment conducive for [her] employment is unacceptable’. She thus found it ‘…unavoidable to hold … and conclude on a view that the Municipality has constructively dismissed [her]’. She again put terms and demanded that the applicant should negotiate her “removal”

with her, within 48 hours. In response[6], dated 26 July 2013, the applicant informed the third respondent that her demand is a subject that must be discussed in and agreed by the Municipal

Council, and undertook to place it on the agenda of the Council meeting scheduled to take place during August 2013.

[5] On the 29 July 2013, ten months into her employment with the applicant, the third respondent submitted a letter entitled ‘Resignation/Constructive Dismissal’, in which she actually resigned from the employ the applicant on notice, with effect from the 31 August 2013. The Municipal Manager of the applicant, in a reply[7] to the third respondent’s letter of resignation, accepted the latter’s resignation and remarked that [the Municipal Manager] was ‘regretfully aware about (sic) the circumstances that contributed or led to [the third respondent’s] decision to resign’.

[6] Following the resignation, which she alleged to be a constructive dismissal, third respondent duly referred[8] a dispute in that regard to the first respondent during September 2012. The first respondent scheduled a conciliation meeting and this took place on the 18 October 2013. At the conclusion of the conciliation, the commissioner facilitating the dispute, Commissioner

Raphela, then issued a certificate[9] (of outcome) indicating that the dispute remained unresolved. The third respondent thereafter referred[10] the dispute back to the first respondent for arbitration and indicated in the arbitration form that the relief she sought was compensation.

[7] The arbitration hearing was conducted on the 10 December 2013 and was presided over by Commissioner John Mashika, the second respondent herein. At the hearing, the applicant was represented by a Mr Yandisa Marongo (“Marongo”), its Legal Services Manager. There is nothing in the papers indicating that the third respondent was represented by any other person than herself at the arbitration hearing.

The Settlement Agreement

[8] It is common course that the parties reached a settlement of the dispute at the arbitration hearing converted into conciliation[11], in the following terms, inter alia:

‘1. The Applicant (third respondent herein) alleges that she was constructively dismissed by the respondent, and seeks compensation;

2. The respondent agrees that the applicant was unfairly dismissed both substantively and procedural (sic);

3. The respondent admits full liability for the unfair treatment to the applicant and to also accepts (sic) to pay as prayed for. The agreed formula is guided by the salary package of the applicant whilst she was employed by the respondent;

4. The compensation to the applicant by the respondent is R1 674 149.49 (one million six hundred and seventy four thousand, one hundred and forty nine rand and forty nine cents) in full and final settlement and the payment shall be made in full on or before 31 January 2014.

5. Both parties shall not disclose the details or contents of this agreement in any way to any other person and this agreement shall be confidential.’

[9] It is the applicant’s version that Marongo was never given any mandate to settle the dispute as the applicant had held a view that it did not dismiss the third respondent, the latter having resigned on own volition, and the former accepting the resignation as formally and legally terminating the employment contract.

[10] The applicant submits that the first and second respondents ought to have declared the settlement agreement above invalid and unenforceable,

and set it aside. It lays the basis[12] of its case in the founding affidavit, as follows:

a) Marongo was not authorised to enter into any settlement agreement with the third respondent on the basis that applicant maintained that she voluntarily resigned and thus there was no dismissal taking place[13];

b) The settlement agreement is invalid and unenforceable against the applicant due to the fact that Marongo was not authorised to conclude

it. He was only authorised to defend the applicant at the arbitration hearing and had not obtained any mandate from any one to settle the dispute in any terms[14].

c) The terms of the settlement agreement are absurd. The amount agreed to far exceeds the formulation that should been agreed to, based on the fact that applicant earned less than R300 000.00 per annum[15].

d) The applicant submits furthermore that the settlement agreement was concluded with an ulterior motive to siphon money out of the Municipality, and that Marongo, in agreeing to this amount, failed to protect the interests of the applicant. Marongo was an attorney and should have known the permissible maximum amount that would have been allowed in labour matters for compensation in the event the third respondent would have been successful in her claim for unfair dismissal.

[11] The third respondent, on the other hand, submits that Marongo was the applicant’s representative in most interactions between herself and the Municipal Manager and therefore a reasonable inference can be drawn that he had been instructed by the municipal manager to settle the dispute in the manner he did. She submits further that there is no confirmatory affidavit from Marongo, who was still employed by the respondent at the time of the filing of the pleadings. Lastly, she submits that the deponent to the Founding

Affidavit was not present at the proceedings and thus cannot confirm or deny any of the alleged activities that took place during the negotiations that led to the conclusion of the settlement agreement.

[12] The respondent had still not performed in terms of the disputed agreement on the 17 March 2014, the date on which the applicant launched an application at the SALGBC in terms of section 142A of the Labour Relations Act, 66 of 1995 (as amended) (“the LRA”).

The Settlement Agreement made an Arbitration Award

[13] In terms of section 142A of the LRA, the Commission (or council) may, by agreement between the parties or on application by a party, make any settlement agreement[16] in respect of any dispute that has been referred to the Commission, an arbitration award.

[14] In this case, the council received an application from the third respondent on the 17 March 2014, in which the third respondent sought an order from the council to make the settlement agreement an award as envisaged in s142A. The applicant denies that they received the third respondent’s application before or on that date. The applicant avers in the Founding Affidavit that the third respondent’s application was served on them on the 8 April 2014. The applicants contends therefore that, reckoned from that date, it only had to file an answering affidavit on or before the 24 April 2014, given that there were Easter Holidays falling on the 18 and 21 April 2014. The applicant submits therefore that the first and second respondents had no jurisdiction to entertain the third respondent’s application in terms of s142A of the LRA before the 24 April 2014.

[15] Meanwhile, on the 13 April 2013, the first respondent had scheduled an arbitration hearing wherein the second respondent considered the third respondent’s application, in the absence of the applicant, and proceeded to make the “settlement agreement

entered into by the parties on 10 December 2013 an arbitration award”[17] (“the award”). The applicant states that it received the arbitration award on the 25 April 2013.

[16] As it turned out, the applicant’s Municipal Manager had, on 24 April 2013, deposed to an affidavit opposing the third respondent’s application in terms of s142A. Subsequent to that, the applicant’s attorneys (respondents in the s142A application) addressed a letter to the first respondent,

dated 29 April 2014, requesting that the award rendered on the 13 April 2014 (making a settlement agreement entered into by the parties on 10 December 2013 an arbitration award) be rescinded.

[17] The Second Respondent issued a ruling[18] on the 26 May 2014, in which he held that he had no jurisdiction to rescind the award that he made on the 13 April 2013, as he had become functus officio and ordered the first respondent to close the file. This signified the end of this matter under the auspices of the first respondent.

The applicant then approached this court with the application for the review and setting aside of the award.

The grounds for review

[18] The first ground raised by the applicant for the review of the award is, as submitted by the applicant, that the settlement agreement that forms the basis of the award was invalid and unenforceable, as Marongo (the employee of the applicant present at the arbitration hearing and purportedly “mandated” to represent the interests of the applicant therein) was not authorised to settle or conclude any agreement on behalf of the applicant regarding the dispute, but to defend the applicant against any claim of unfair dismissal.

[19] It is clear from the papers before this court[19], that the third respondent had resigned on own volition from employment by the applicant, and that therefore, there was no dismissal. The applicant denies that the third respondent’s resignation was caused by any conduct on the part of the applicant. It denies specifically that the third respondent’s resignation could have been actuated by any intolerable environment caused by itself. The applicant accepted the resignation by the third respondent, but denies that such acceptance amounts to admission of allegations made in the reasons given by the third respondent for her resignation. The applicant denies furthermore that it “pushed”

the third respondent to resign. As a result, the applicant could not have mandated Marongo to settle the dispute by making admissions and concluding an agreement as contained in the purported settlement agreement.

[20] The deponent to the founding and the replying affidavits, Mr Linda Bernard Tshabalala, is the Municipal Manager of the applicant. He deposes that the Council (Municipal) of the applicant is the only structure that has the power to authorise the making of payments as in circumstances where amounts of this nature could be involved. If such a decision was taken, he, as the accounting officer of the applicant, is the only official that could have given such mandate to Marongo. In this instance, neither he nor the Council have taken any decision to authorise or make payment of the amount involved, or any amount, to the third respondent[20]. No such mandate was given to Marongo, over and above the mandate to defend the applicant at the arbitration hearing. Tshabalala sits in the meetings of the municipal Council of the applicant, and has deposed that there has never been any meeting in which a decision was made by the Council to authorise such payment to, or settle any unfair dismissal claim by, the third respondent.

[21] The third respondent submits that Marongo was part of many “interactions” that took place between herself and the municipal manager in an effort to resolve the dispute and therefore there is a foundation for a reasonable belief that Marongo received instructions from the applicant to settle the dispute at the arbitration proceedings. Third respondent alleges further that there would have been a meeting during August 2013 wherein her matter was tabled for discussion around amicable resolution and possible settlement agreement. Tshabalala denies there ever been such discussions in the meeting of the Council in August 2013, which he attended. He denies further even giving instructions to Marongo to settle any dispute regarding the third respondent’s claim at the arbitration proceedings. In the absence of any evidence from the third respondent showing that such discussions did take place in that meeting, and that Marongo had been as authorised as alleged, this particular allegation cannot be taken any further and should be dismissed.

[22] Although my finding on this aspect does not determine this matter entirely, I accept that on the facts alone, and on a balance of probabilities, it does not seem that Marongo had the authority to conclude the agreement making payment of an amount equal to five years remuneration, to an employee who had on her own volition resigned from the employment of the applicant, after been so employed for a period of less than twelve months. This conclusion is borne by the following facts:

a) The third respondent asserts, without any support whatsoever for this assertion, that the issue concerning ‘[her] matter was to be tabled for a settlement agreement or amicable resolution of the dispute’[21] at the applicant’s Council meeting that took place during August 2013. This was categorically denied[22] by the applicant’s Municipal Manager, who was at attendance in that Council’s meeting. There was no resolution to the effect that Council had authorised the Municipal Manager to settle that dispute in those terms.

b) There is ample facts to support an assertion by the applicants that the latter never regarded itself at fault for the reasons that gave rise to the third respondent’s resignation. The applicant had consistently denied that they had created an intolerable environment for the third respondent. The facts show that the applicant had, actually, taken precautionary

steps to manage the situation, address the concern raised by the third respondent and to act on those. None of these actions give rise to any admission of liability on the part of the applicant, so much so that it could settle the dispute with the third respondent in such “absurd” terms.

c) In her letter of resignation, the third respondent had categorically stated that she experienced harassment by members of the union and the public, and not by the applicant. She states: “I was continually attacked and threatened by the members of the union and the members of the public in the premises of the applicant and was prevented to perform her duties and even when [she] tried, it made performance of her work very difficult or impossible”[23]. It is therefore not clear how this court can accept an assertion that the applicant had admitted ‘full liability for the unfair treatment to the applicant and to also accepts (sic) to pay as prayed for’.

d) The absurdity of the terms of the settlement agreement.

[23] It is in the second ground for the review of the award as sought by the applicant that, given the nature of the agreement as described above, the resolution of the dispute and the terms settlement, are absurd in the extreme. Before dealing with this issue, I need first to confirm that the settlement agreement made an award must be seen in the same light akin to settlement agreement made orders of court. This rule was articulated clearly by the Constitutional Court in Eke v Parsons[24] and can be adapted with ease for applicability to settlements agreements made awards of the CCMA or councils to be observed by

commissioners.

[24] Commissioners cannot accept just about anything agreed to by the parties and make it an arbitration award. The award can only be one that is competent and proper. The Commission must thus not be mechanical in its adoption of the terms of a settlement agreement. An agreement made an award of the Commission or council will be competent and proper if it complies with the following requirements:[25]

a) First, the award must relate directly or indirectly to the issues arising out of the employment relationship between the parties or to the subject matter of the lis between them;

b) Secondly, the award must not be objectionable, that is, its terms must be capable both from the legal and practical point of view, of being included in an award, ‘… that means, its terms must accord with both the Constitution and the law. Also, they must not be at odds with public policy’.[26]

c) Thirdly, the award must ‘hold some practical and legitimate advantage’.[27] And most importantly,

d) The order may not be framed in a manner that affords the person on whom it applies, the discretion to comply or disregard it.[28]

[25] The Constitutional Court confirms finally also that ‘… [o]nce a settlement agreement has been made an order of court, it is an order like any other. It will be interpreted like all court

orders’[29]. So should be settlement agreements made arbitration awards.

[26] In casu, the terms of the settlement agreement made an award are that the applicant agrees that the third respondent was unfairly dismissed

both substantively and procedurally, and admits full liability for the unfair treatment to the third respondent and also accepts to pay as prayed for.

[27] The award records further that the agreed formula ‘is guided by the salary package of the applicant whilst she was employed by the respondent’. The compensation to the applicant by the respondent is an amount of R1 674 149.49 (one million six hundred and seventy four thousand, one hundred and forty nine rand and forty nine cents) in full and final settlement and the payment shall be made on or before 31 January 2014. Both parties shall not disclose the details or contents of this agreement in any way to any other person and this agreement shall be confidential.

[28] The award does meet the requirement that it relates directly to the issues arising out of the employment relationship between the parties and to the subject matter of the lis between them. Section 186(1)(e) of the Labour Relations Act does permit an employee who has resigned to refer a dispute concerning an alleged unfair dismissal to the CCMA or bargaining council. It is not disputed that the third respondent was an employee of the applicant.

[29] The award however, in my view, contains terms of the agreement that are objectionable and not capable both from the legal and practical point of view, of being included in an award, in that its terms do not accord with both the Constitution and the law, and are also, at odds with public policy. These are crucial factors that the commissioner ought to have taken into account when considering material available for his making a decision.

[30] It is trite that commissioners are creatures of statute and that, sitting at processes constituted in terms of the LRA, are only possessed of powers confined in that statute. The LRA provides as follows in section 194:

‘194 Limits on compensation

(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee's conduct or capacity or the employer's operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.’

[31] The LRA is categorical, and so are Commissioner Guidelines[30] that any amount of compensation awarded in terms of the Act ‘must be just and equitable taking into account all the relevant

circumstances of the case, and may not exceed 12 months of the employee's remuneration at the rate applicable at the time of the

dismissal’. A Commissioner, therefore, cannot award any compensation outside the limits imposed by the statute. The compensation awarded to the third respondent in this case, is objectionable on the basis that, despite the contention that its sum supposedly results from the calculation of the third respondent’s salary package whilst she was employed by the applicant, it far exceeds that limit of twelve months prescribed by the legislature. The commissioner had no powers to permit that excess to pass. In that

regard, he disregarded his duties and acted irregularly by not ensuring that his award accords with the law. There is no indication

of the circumstances that the commissioner took into account in allowing a settlement agreement couched in such far-reaching terms to clothe itself in the legalities endowed in section 194.

[32] What the commissioner clearly failed to do in this case before rendering an award, was to look at the remuneration package of the third respondent and ascertain whether or not the quantum he would sanction did not vault the limits set by s194 of the LRA. Had he done that, the commissioner would have immediately realised the obvious unreasonableness of awarding to an employee who had only been employed for less than 10 months, compensation that amounts to five years her annual package. There was no plausible rationale, even in the papers before this court, justifying a public body (a municipality) ploughing from its fiscus, and appropriating R1 674 149.49 without the Council’s resolution, for the benefit of an employee that resigned voluntarily from employment, who worked only for the employer for only 10 months, and earned a little more than R300 000.00 per annum. In effect, the commissioner’s award amounts to five times the maximum limit imposed by the legislature. He exceeded his mandate.

[33] LAC held in Herholdt v Nedbank Ltd:[31]

‘Where a commissioner fails to have regard to material facts, this will constitute a gross irregularity in the conduct of the arbitration

proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby prevented the aggrieved

party from having its case fully and fairly determined. Proper consideration of all relevant and material facts and issues is indispensable to a reasonable decision and if a decision-maker fails to take account of a relevant factor which he or she is bound to consider, the resulting decision will not be reasonable in the dialectical sense. Likewise, where a commissioner does not apply his or her mind to the issues in a case the decision will not be reasonable.’[32](My emphasis)

[34] In my view, when making an agreement an arbitration award, a commissioner should be criticised if, when determining the matter before him or her, fails to ensure, before reaching a conclusion on a decision that he or she is about to make, that the award will be legitimised by reasonableness, justifiability (in the light of the material that he took into account), and freedom from prejudice.

Deviation should result generally in gross unreasonableness. In Southern Sun Hotel Interests (Pty) Ltd v CCMA[33] Van Niekerk J observed that it may be inferred from the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd[34] that section 145 also invites scrutiny of the process by which arbitrators reach their conclusions. In summary, the LC in Southern Sun concluded:

‘… Section 145 requires that the outcome of CCMA arbitration proceedings (as represented by the commissioner’s decision) must fall within a band of reasonableness, but this does not preclude this Court from scrutinising the process in terms of which the decision was made. If a commissioner … commits some other misconduct or a gross irregularity during the proceedings under review and a party is likely to be prejudiced as a consequence, the commissioner’s decision is liable to be set aside regardless of the result of the proceedings or whether on the basis of the record of the proceedings, that result is nonetheless capable of justification’.[35]

[35] And, in Herhold v Nedbank Ltd the Labour Appeal Court endorsed[36] the approach by the Labour Court (a quo) which the latter had accepted that an award is reviewable if it suffers from either dialectical unreasonableness or substantive

unreasonableness. Substantive Unreasonableness exists where a proposition is not supported by facts, the law (it might be added)

the argument, and considerations recognised as valid. The Commissioner in this case has clearly overstepped the boundaries when, in founding the basis of his decision, he ignored legal limitations imposed on his authority by the enabling statute. In this sense, it is my view that he has rendered his actions to be both unreasonable and wrong. Following the Constitutional Court’s decision in Sidumo, the Courts have further outlined the test for reviews as whether the commissioner failed to apply his or her mind to the material facts or issues and, if not, whether the outcome would have been different had the commissioner done so. If not, the commissioner has committed a gross irregularity, reviewable under section 145 of the LRA. in this case, had the Commissioner taken the law into account, which is a material factor, he would have come to a different decision, and not made it an award of the bargaining council, a settlement agreement that far exceeds the limitations imposed in section 194 of the LRA.

[36] It is also not clear from the papers whether the commissioner applied his mind into the reasons for the applicant’s absence during the section 142A proceedings, or not. In this regard, I am inclined to agree with the applicant that the commissioner had irregularly entertained the third respondent’s application and made a settlement agreement an award in default without considering all the requisite jurisdictional factors and satisfying himself that the application is validly ripe for resolution, without any evidence showing that the absent party was in wilful default. The award was therefore improperly made and stands to be reviewed also on this ground, and set aside.

[37] I have considered the issue of costs and have concluded that this is the case where an award of costs against the losing party would be an injustice. There is a cogent rationale for the applicant seeking the relief as she did in the Bargaining Council, and in her opposing this matter before this court. I therefore find no reason to sanction her with a cost order.

The Order

I therefore make the following order:

[38] The order by Commissioner John Mashika, sitting as a panellist in the Southern African Local Government Bargaining Council under case number MPD 091309, making a settlement agreement an arbitration award as contemplated in section 142A of the LRA, is hereby set aside.

[39] The arbitration dispute between the third respondent and the applicant is hereby referred back to the First Respondent for arbitration before a senior commissioner, other than Commissioner John Mashika, the second respondent.

[40] I make no order as to costs.

______________________

Mosime, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: Advocate Tsatsawane,

Instructed by:

Gildenhuys Malatji Attorneys

For the Respondent: Mr Ramathe Ramathe

Instructed by:

MJ Attorneys

[1] Court’s Bundle at 20, Letter of Appointment.

[2] Paragraph 4.4 of the Opposing Affidavit, page 66 of the court’s bundle.

[3] Court’s Bundle at 76..

[4] Court’s Bundle at 78.

[5] Court’s Bundle at 80.

[6] Court’s Bundle at 81.

[7] Court’s Bundle at 84, letter dated 12 September 2012.

[8] Court’s Bundle at 80, at 25 – 30.

[9] Court’s Bundle at 33.

[10] Court’s Bundle at 34ff.

[11] Court’s Bundle at 69, para 13.1 of the Opposing Affidavit.

[12] This is also set out in paragraph 14 of the applicant’s belated answering affidavit to the application by the third respondent in terms of section 142A of the LRA.

[13] Court’s Bundle at 11, para 4.2 of the FA.

[14] Paragraph 4.3, ibid. Also from the submission of Mr Tsatsawane arguing before this court on behalf of the applicants.

[15] Paragraph 4.4, ibid.

[16] For the purposes of this section, a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is entitled to refer to arbitration in terms of either section 74 (4) or 75 (7) - (Disputes in Essential Services).

[17] Court’s Bundle, at page 47, paragraph 8, The Arbitration Award in Pages 46 - 47 of the

[18] Court’s Bundle at Pages 91 – 92.

[19] See generally paragraph 3 of the Replying Affidavit, page 99 of the court’s bundle.

[20] Paragraph 4 of the Replying Affidavit, pages 99 – 101 of the court’s bundle.

[21] Opposing Affidavit at paragraph 12.2.

[22] Replying Affidavit at sub-paragraphs 4.8 to 4.14 of the.

[23] Opposing Affidavit at paragraph 4.4..

[24] Eke v Parsons 2015 (11) BLCR 1310 (CC).

[25] Id, per Madlanga J, at paragraphs 25 and 26.

[26] On what to measure public policy against, the CC referred to: Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at paras 28-9; Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 56; Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC) at para 110; and Brisley v Drotsky [2002] ZASCA 35; 2002 (4) SA 1 (SCA) at para 91.

[27] Ex Parte Le Grange and Another In re: Le Grange v Le Grange [2013] ECGHC 75, at paragraph 15.

[28] Eke, supra, per Japhta J, at paragraph 74.

[29] Id, at paragraph 29.

[30] Issued in terms of the Government Gazette No. 38573, dated 17 March 2015, at Item 131.

[31] [2012] 9 BLLR 857 (LAC)

[32] at para 36.

[33] [2009] 11 BLLR 1128 (LC)

[34] [2007] 12 BLLR 1097 (CC)

[35] At paragraphs 13 – 17.

[36] At para 41.