Maqubela v South African Graduates Development Association and Others (J285/14) [2014] ZALCJHB 38; [2014] 6 BLLR 582 (LC); (2014) 35 ILJ 2479 (LC) (20 February 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: J285/14

THAMSANQA MAQUBELA

Applicant

and

SOUTH AFRICAN GRADUATES DEVELOPMENT

ASSOCIATION First

Respondent

KOOPEDI BRIAN Second

Respondent

NKABINDE VUKILE Third

Respondent

MONTSHIWHA ELIZABETH Fourth

Respondent

Heard: 13 February 2014

Delivered: 20 February 2014

TLHOTLHALEMAJE, AJ

Introduction:

[1] The Applicant brought this urgent application in terms of sections 77 (3), (4) and 77A of the Basic Conditions of Employment Act (The BCEA), read with sections 157 and 158 of the Labour Relations Act (The LRA), and further with Rule 8 of the Rules of this Court. He sought a rule nisi calling upon the Respondents to show cause why an order in the following terms ought not be made;

1.1 The Resolution by the First Respondent’s Board on 6 February 2014 to suspend the Applicant with immediate effect, is declared invalid, unlawful, null and void and therefore set aside;

1.2 The Respondents are ordered to allow the Applicant to immediately resume his duties as the First Respondent’s Chief Executive Officer.

Alternatively;

1.3 The Respondents are to allow the Applicant to resume his duties as the First Respondent’s Chief Executive Officer with immediate effect pending the final adjudication of the unfair labour practice dispute which the Applicant referred to the Commission for Conciliation Mediation and Arbitration in terms of the relevant provisions of the Labour Relations Act 66 of 1995, read with the relevant provisions of the Protected Disclosures Act 26 of 2000.

[2] In the written heads of argument handed in on behalf of the Applicant, it was submitted that the nature of the relief he sought was in a form of final relief, and that the interim relief was sought in the alternative. These submissions were odd in view of the Applicant’s prayers as contained in the notice of motion, and also what he had contended to be the nature of his case and the relief he sought as per his founding affidavit. It is trite that a party is bound by the nature of the case it brought before court. As Mogoeng J (as he then was) held in Betlane v Shelly Court CC[1], one ought to stand or fall by one’s notice of motion and the averments made in one’s founding affidavit. Inasmuch as a case cannot be made out in the replying affidavit for the first time, it is axiomatic that a case cannot equally be made out in a party’s written heads of argument.

The parties:

[3] The Applicant is currently employed by the First Respondent as its Chief Executive Officer and by virtue of that position, he is also an Executive Director on its board. There is a dispute as to the date of his employment. His contention was that he was employed with effect from 1 November 2010, whilst the First Respondent’s contention was that he was employed orally with effect from 1 November 2011.

[4] The First Respondent is a non-profit organisation which depends solely on donor funding, and it was established in 1997. Its objectives are to assist and develop students and graduates to prepare for their entry into the employment sector and to empower them to actively participate in the economy through high impact programs, viable partnerships and research. The first Respondent’s core operations aim to facilitate the placement of unemployed graduates and students in the workplace. It is registered as a Private Employment Office in terms of Section 24 (3) (a) of the Skills Development Act 97 of 1998. The Second Respondent (Koopedi) is the Chairperson of the First Respondent’s board. The Third Respondent (Nkabinde) is its

Secretary, whilst the Fourth Respondent (Montshiwha) is its Board Director. The Second to Fourth Respondents constitute members of the First Respondent’s Board.

The Applicant’s submissions:

[5] The Applicant’s case is that at the First Respondent’s board meeting held on 6 February 2014, a resolution was adopted in his absence, in terms of which it was decided to suspend him as its Chief Executive Officer with immediate effect. The Applicant submitted that the resolution was invalid in that the issue of his suspension did not form part of the agenda for the Board Meeting which was to be held on 6 February 2014. Furthermore, the suspension was invalid and unlawful, bearing in mind that the resolution also effectively suspended him as a board member. He further contended that the Board failed to adhere to the

audi alteram partem principle, that the resolution to suspend him was a breach of the Companies Act 71 of 2008, and the First Respondent’s Articles of Incorporation and its applicable Policies.

[6] The Applicant had also submitted that at a Board meeting held on 7 November 2013, he had made a protected disclosure as envisaged in the Protected Disclosures Act 27 of 2000 (The PDA). That disclosure concerned certain financial improprieties within the administration of the First Respondent and he had implicated inter alia the Second Respondent. On 3 February 2014, the Applicant had authorised the First Respondent’s COO, Madika, to effect payment of the outstanding remuneration of four employees, including him. The outstanding remuneration dated as far as 2010, and some of the employees, including him, had not received full remuneration in the past years as a result of the First Respondent’s financial difficulties.

[7] The Applicant was suspended on 6 February 2014 on the grounds that he had authorized payment to himself from the First Respondent’s account unlawfully; that he had made the authorisation whilst being aware that this was without authorisation of the First Respondent’s

Board; and for allowing his relationship with the First Respondent’s Board to have deteriorated to the extent that it had become impossible to have meaningful meetings with him. Following his suspension, he had on 10 February 2014, referred an alleged unfair labour practice dispute to the CCMA. He submitted that his suspension was effected with ulterior motives, and that any intended

disciplinary proceedings constituted unfair conduct by the First Respondent. The suspension also constituted an occupational detriment

in contravention of the PDA on account of him having made a protected disclosure as defined in the PDA, and consequently, constituted an unfair labour practice.

The Respondents’ submissions:

[8] Koopedi, the Chairperson of the First Respondent had in his answering affidavit, averred that in his capacity, he had never signed any employment contract with the Applicant. The applicant was orally appointed as the CEO of the First Respondent on 1 November 2011. There existed therefore no written employment contract between the Applicant and the First Respondent in this regard. Since there was no matter that arose out of the contract of employment, it was submitted that this Court lacked jurisdiction under section 77 (3) of the Basic Conditions of Employment.

[9] Koopedi disputed the contention that the Applicant had authorisation to pay himself. Payment to oneself without authorisation was a serious transgression which entitled the board to suspend the Applicant and investigate the matter. Koopedi further submitted that he did not understand the connection between the alleged disclosure made in November 2013 and the suspension which was triggered by the allegations of serious misconduct. He had denied that the Applicant had made any protected disclosure in November 2013, and contended that if there was any basis to suspend the Applicant due to the alleged protected disclosure, the suspension would have taken place in November 2013.

[10] In further response to the applicant’s allegations, Koopedi contended that the Applicant took a decision to authorise payment to himself on 3 February 2014, some three days before the scheduled board meeting. At a time when the board members became aware of the unlawful decision, the agenda was already out. It was for that reason that the item of the Applicant’s suspension was not on the circulated draft agenda. In Koopedi’s view, if there was a pressing need to discuss an item that was not on the agenda, it would have been under the “General” item. The Applicant, according to Koopedi, was suspended in his capacity as the CEO, and there was no resolution passed to suspend him as a board member. The provisions of the Companies Act and the Memorandum did not therefore find application in this case as the Applicant was not removed from the board. Koopedi further averred that when he enquired privately from the Applicant when they were outside of the board meeting as to what had happened,

the Applicant had responded to him in an insolent manner and was disrespectful towards him. The Applicant’s conduct had persisted when they went back into the board meeting. Koopedi contended that the suspension was with full pay, was legitimate since

there were allegations of serious misconduct, and that there was no ulterior motive behind the suspension.

Evaluation:

[11] It is trite that for an applicant to be successful in an application for an interim interdict he/she must establish the following:

(i) A prima facie right, even though open to some doubt;

(ii) a well-grounded apprehension of irreparable harm if the interim relief is not granted;

(iii) absence of an alternative remedy;

(iv) a balance of convenience in favour of granting the interim relief.

[12] In view of the discretionary nature of an interim interdict, these requisites are not judged in isolation, but in interaction with each other[2]. Harms explained this discretion in the following manner[3]:

“A court always has a wide discretion to refuse an interim interdict even if the requisites have been established. This means that the court is entitled to have regard to a number of disparate and incommensurable features in coming to a decision, and not that the court has a free and unfettered discretion. The discretion is a judicial one, which must be exercised according to law and upon facts. On the other hand, a court has no discretion to grant an interim interdict if the requirements have not been established.”

Prima facie right:

[13] In respect of the merits, the Applicant bears the onus of showing that he has a clear right to the relief he seeks. Thus, it is necessary to assess whether the Applicant has, prima facie, established a right capable of protection. The first factor for consideration is whether the Applicant has made a protected disclosure as he had alleged. Whether the information allegedly disclosed prima facie qualifies as a protected disclosure and thus deserving protection is a matter for enquiry on its own. The Applicant had alleged that the protected disclosure was made on 7 and 19 November 2013 at a Board meeting. Koopedi had denied that any such disclosure was made.

[14] It is trite that where factual disputes arise in motion proceedings, the matter should be resolved in accordance with the principles laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints[4]. Thus in proceedings such as in casu, where disputes of fact have arisen on the affidavits, a final order, whether it be an interdict

or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the

respondent, together with the facts alleged by the respondent, justify such an order.

[15] It is further trite that in motion proceedings, the facts are set out in the affidavits constitute pleadings and evidence. To this end, a case is made in the applicant’s founding affidavit, whilst the respondent’s made out in its answering affidavit. In this case, the Applicant merely made an allegation that a protected disclosure was made without reference to any minutes to substantiate the allegation. If indeed he was able to attach minutes of other board meetings to his founding affidavit in order substantiate his other allegations, I fail to appreciate the reason he could not have done the same in respect of the alleged protected disclosure, which appears to be a crucial factor to his case. At most, an explanation was necessary in his founding affidavit in regard to the reason those minutes could not be attached. In the light of the denials by the Koopedi, and further in the light of the unsubstantiated allegation as can be gleaned from the founding affidavit, there is no basis to conclude that any such disclosure was made.

[16] Furthermore, as Koopedi had pointed out, there does not seem to be a correlation between the alleged protected disclosure that took place on 7 or 19 November 2013, the Applicant’s payment to himself on 3 February 2014, and his subsequent suspension on 6 February 2014. To this end, the Applicant has failed, or at most, has not put sufficient information at the disposal of this Court to enable it to determine that he has shown a prima facie right to entitlement to the protection afforded by the PDA.

[17] The Applicant further challenged his suspension on the grounds that it was invalid, unlawful, null and void. He had contended that the invalidity emanate from the fact that the item of his suspension did not form part of the agenda for the Board Meeting held on 6 February 2014. Furthermore, he had submitted that by virtue of his position as CEO, the suspension also translated into his suspension as Executive Director of the First Respondent’s Board. To this end, it was argued that the resolution taken to suspend him was contrary to section 71 of the Companies Act 71 of 2008 in that he was not given notice of the meeting or the intended resolution, and secondly, he was not afforded an opportunity to make representations.

[18] Koopedi’s response was that no resolution was taken to remove the Applicant from the Board, and therefore, the provisions of the Companies Act would not find application. As far as the Applicant’s pleadings are concerned, there is again, no substantiation that the First

Respondent’s Board had indeed taken a resolution to remove him from that board. It appears that the Applicant assumed incorrectly,

that by virtue of his suspension, it also meant that he was removed as a member of the board. To this end, the First Respondent’s

contention that the provisions of the Companies Act have no application in this matter is sustainable.

[19] In regards to the issue of his suspension not being an item on the agenda for the meeting of 6 February 2014, it was common cause that the agenda, was long drawn up prior to that date. Secondly, there is no indication that the suspension was discussed at any time prior to the meeting, and to this end, it could not have been placed as an item on the agenda prior to then. Thirdly, as it was correctly pointed out on behalf of the Respondents, nothing prevented the board from discussing the issue of the suspension under the “General” items. In fact, on the Applicant’s own version, no other matter was discussed in earnest prior to his suspension being announced. To the extent that the application of the Companies Act has been found to have no application in this matter, it follows that it was not necessary for the Applicant to have received prior notice in respect of the board’s intention to suspend him.

[20] In regards to the validity of the suspension, it was further common cause that at the time that the decision to suspend the Applicant was taken, the First Respondent’s board consisted of four members instead of seven. This had been the position for some time, and any decision the board had taken in the past, and also for the purposes of that suspension, could not suddenly have become invalid on account of the Board being three members less. There is thus in the light of the above, no merit in the contention that the suspension was either invalid or unlawful for the reasons alleged by the Applicant.

[21] The Applicant had also lamented the fact that he was not afforded an opportunity make representations before the suspension in breach of his contract. He complained that his contractual and constitutional rights were seriously being infringed. He had further contended that his suspension and any intended disciplinary proceedings constituted unfair conduct by the First Respondent, and also an occupational detriment.

[22] The issue of the alleged protected disclosure has been dealt with. It is trite that there is no implied right to fairness incorporated into the employment contract which can form the basis of such a right[5] . The Supreme Court of Appeal emphasised the principle in the following terms[6].

“ …. insofar as employees who are subject to and protected by the LRA are concerned, their contracts are not subject to an implied term that they will not be unfairly dismissed or subjected to unfair labour practices. Those are statutory rights for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights. The present is yet another case in which there is an attempt to circumvent those rights and to obtain, by reference to, but not in reliance upon, the provisions of the LRA an advantage that it does not confer.”

[23] The contract of employment upon which the Applicant had relied in respect of any rights that may have been encroached upon was placed in dispute by Koopedi. To that end, it was submitted that the Court lacked jurisdiction under section 77(3) of the BCEA. In the light of these disputes of fact, the Plascon-Evans principle will again find application. In his founding affidavit, the Applicant had averred that he was employed since 1 November 2010 subject to the terms and conditions as set out in his contract of employment[7]. The existence of that contract of employment was disputed by Koopedi who further only confirmed the oral appointment of the Applicant as of 1 November 2011. Koopedi had drawn attention to an obvious anomaly in that the contract is purported to have been entered into on 30 August 2011, some two months before the commencement date. It was signed by the Applicant in two places as having accepted the terms and conditions laid down in the contract on the date that it was signed. It must be said that having had regard to the copy of the contract relied upon by the Applicant, the fact that it only bears the Applicant’s signature, and further in the light of Koopedi’s denials and submissions in that regard, it is doubted that the contract relied upon by the Applicant exist. If it does exist, it is equally strange that Koopedi or the board would not have been aware of it.

[24] Even if the Applicant were to be given the benefit of the doubt, clause 16 of the alleged contract upon which he relied in respect of the right not to be unfairly suspended is not of assistance as it merely refers to the organisation’s Grievance Procedure, Disciplinary Code and procedure which form part of the employment contract. These documents are however not made available by the Applicant. The “Guidelines” attached to the disputed contract of employment only makes reference to the LRA, and Code of Good Practice in Schedule 8 in regards to procedures for termination of employment. Inasmuch as the right to some form of pre-suspension procedures have been acknowledged, in this case, it cannot be said that such a right is based on the contract even if it had existed. The only conclusion to be reached is that the Applicant’s right not to be unfairly suspended is covered fully under the provisions of section 186 (2) of the LRA. Moreso, in view of the conclusions made in regards to the existence of a contract of employment, I fail to appreciate how it can be said that the provisions of section 77 (3) of the BCEA find application.

[25] The applicant had also complained about his constitutional rights having been infringed, and it is assumed that he was making reference to the constitutional right to fair labour practices (Section 23 (1) of the Constitution Act 108 0f 1996), and by implication, not to be unfairly suspended. It is trite that direct reliance on the fundamental rights as contained in the Constitution is impermissible

when the right in contention is regulated by legislation[8]. In regards to the merits of the Applicant’s case, the relevant legislation would be the LRA, and more particularly, its section 186 (2) (b) pertaining to unfair labour practices. In North West Provincial Government v Gradwell[9], the Labour Appeal Court stressed the point in the following terms;

“Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of s 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings.”

[26] As already indicated, the Applicant has already exercised the right to refer an unfair labour practice pertaining to his suspension and also in respect of the alleged protected disclosure made to the CCMA. The Applicant has not shown any extraordinary or compellingly urgent circumstances that would necessitate the circumvention of the provisions of section 191 (1) (a) and (b), and (5) of the LRA. Whether there is any basis for a conclusion to made that the suspension carried with it a reasonable apprehension of irreparable

harm is discussed below.

A well-grounded apprehension of irreparable harm?

[27] In the written arguments submitted on behalf of the Applicant, under the heading of “Harm”, the same arguments pertaining to his constitutional and contractual rights being infringed were raised. If however regard is had to his founding affidavit, he had submitted that it was imperative that he attended the AGM. Conclusions have been made in regard to the AGM that was scheduled for 27 February 2013 and it is not worth repeating what was said earlier in this judgment. Secondly, the Applicant had submitted that all the hard work he had put into the First Respondent stood at risk as a result of his suspension, and that this may result in long term damage to the First Respondent. It does not appear that the First Respondent is concerned with the Applicant’s absence as Koopedi’s contention was that for the First Respondent, “it was business as usual”. In any event, the harm that the Applicant is making reference to appears to be that he apprehends might befall the First Respondent, and not him. Further contentions made in regard to the issue of irreparable harm were that he had a right to work; that the suspension affected his public image and his reputation, and further that it had resulted in a loss of certain benefits. He had also lamented the fact that his self-esteem and sense of self-worth have been affected.

[28] I have taken regard of the authorities referred to in the Applicant’s of arguments insofar as he had raised the above-mentioned issues. It is acknowledged that the consequences of a suspension are numerous, and in some instances immeasurable. It is expected that parties will advance arguments in regards to the consequences of a suspension. These may range from those that are indeed genuine, to those that might clearly be exaggerated, or self-serving, or in some instances, imagined. Ultimately however, as factors or requisites in such motion proceedings are to be judged in interaction with each, the issue of irreparable harm, no matter how well argued, may never on its own be determinative.

[29] In this case, the Applicant was placed on suspension with pay. Some of the arguments he had advanced do not in any manner lay a basis for a conclusion to be made that the suspension carried with it a reasonable apprehension of irreparable harm. It cannot be doubted that the suspension might affect his self esteem or self-worth. However, where a dispute in this regard is to be arbitrated, as shall be the case, a finding that the suspension was unfair together with the appropriate remedy, even if it would be small comfort, will go a long way in redeeming diminished self-esteem and self worth. Similarly, the adjudication in the normal course of the dispute pertaining to the PDA, and assuming that it would be in his favour, and an appropriate remedy, will also go a long way in redeeming diminished self-worth or self esteem. To that end, there is no basis to conclude that any harm, as a consequence of the suspension, will be irreparable. Even if I may be incorrect in this conclusion, irreparable harm on its own is not a consideration for the granting of relief sought in this case.

Other considerations:

[30] In regard to the Applicant’s contentions in respect of the balance of convenience and the absence of an alternative remedies, again, reference was again made to his constitutional and contractual rights, which it was alleged had been infringed. These issues have been dealt with somewhere in this judgment and it is not worth repeating my conclusions in that regard.

Urgency:

[31] Notwithstanding the fact that the Applicant has clearly failed to satisfy the requisites for the relief he seeks as analysed above, I will for the sake of completeness, deal with the question of urgency. An applicant instituting an urgent application must justify the necessity to circumvent the ordinary time periods set out in the rules of this Court. This much can be gleaned from Rule 8 of the Rules of this Court which provides that:

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

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

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

[32] Whether a matter is urgent involves two considerations. The first is whether the reasons that makes the matter urgent, have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the Court that indeed the application is urgent. Thus, it is required of the applicant to adequately set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. As Moshoana AJ aptly put it in Vermaak v Taung Local Municipality[10];

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

In further dealing with the question of urgency, the Court in National Union of Mineworkers v Black Mountain-A Division of Anglo Operations Ltd[11] held;

“…Only once an applicant has persuaded the court that sufficient grounds exist which necessitate a relaxation of the rules and ordinary

practice, will the court proceed to consider the matter as one of urgency. The extent to which the court will allow parties to dispense with the rules relating to time periods will depend on the degree of urgency in the matter.”

[33] In regards to urgency, the Applicant’s contention was that following upon his suspension he had immediately scheduled to an appointment with his attorneys of record and was able to consult with them on 7 February 2014. This application was launched on 11 February 2014, some five days after the suspension of the Applicant. The delay between 7 February 2014 when the Applicant consulted with his attorneys of record and 11 February 2014 is unexplained. The explanation for the haste with which an application is brought before the Court is but one factor for consideration. Even if it could be said that the Applicant and his attorneys of record had acted in due haste, that fact on its own does not necessarily make a matter urgent or entitle the applicant to relief. More than merely launching an application with due haste is required.

[34] The Applicant had further argued that the matter was urgent as the First Respondent’s AGM was scheduled to take place on 27 February 2014. This event according to the Applicant required a lot of planning on his behalf, which fell within the scope of his responsibilities. Koopedi’s response was that the holding of the AGM, which has since been postponed, did not render the matter urgent, and that the First Respondent had already appointed an acting CEO, who will be able to perform the tasks ordinarily performed by the Applicant. The acting CEO was the First Respondents’ COO, who was appointed in the same meeting of 6 February 2014 in the presence of the Applicant.

[35] The difficulty with the Applicants’ reasoning is that on Koopedi’s version, the holding of the AGM does not need the Applicant as any tasks in that regard can be performed by the acting CEO. I did not understand the Applicant’s case to be that in his absence, the AGM, assuming that it was still scheduled, could not go on because of his importance. Koopedi’s contention on the other hand was that it was business as usual without the Applicant, and the acting COO was capable of performing the Applicant’s tasks. In these circumstances, it is my view that the Applicant exaggerated his importance to the First Respondent and in relation to the AGM. Furthermore, whether the AGM is to proceed or not cannot in any manner, make the application urgent. The Applicant has not persuaded the Court that sufficient grounds exist which necessitates a relaxation of the rules and ordinary practice. In my view, as a result of the Applicant’s sense of self-importance, he created the urgency. Having referred a dispute to the CCMA, he is in a position to obtain substantial relief at a later stage as already indicated. Obviously any substantial relief would be dependent on the merits of his case.

[36] In conclusion, having considered this application and the circumstances under which it was brought before the Court, it is further my view that considerations of law and fairness dictate that the application should be dismissed with costs.

Order:

The Applicant’s application is dismissed with costs.

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Mr. WP Schӧltz of Schöltz Attorneys

For the Respondent: Mr. C Mogane of Mohlaba & Moshoana INC

[1] 2011 (3) BCLR 264 (CC) at para 29

[2] See Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A)

[3] Civil Procedure in the Supreme Court (page A-43)

[4] (Pty) Ltd 1984 (3) 623 (A) at 634 H-I

[5] See SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA)

[6] At para 56

[7] Annexure “MF2” to the founding affidavit

[8] See SANDU v Minister of Defence and Others (2007) 28 ILJ 1909 at para 51

[9] [2012] 8 BLLR 747 (LAC) at para 46

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

[11] (2007) 28 ILJ 2796 (LC) at para 12