Motor Industry Staff Association and Another v National Union of Metal Workers of South Africa and Others (JR1305/2020) [2022] ZALCJHB 313 (7 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1305/2020

In the matter between:

MOTOR INDUSTRY STAFF ASSOCIATION

First Applicant

RETAIL MOTOR INDUSTRY ORGANISATION Second Applicant

And

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA

First Respondent

FUEL RETAILERS ASSOCIATION

Second Respondent

NATIONAL EMPLOYERS ASSOCIATION

OF SOUTH AFRICA

Third Respondent

MOTOR INDUSTRY BARGAINING COUNCIL

Fourth Respondent

DARCY DU TOIT N.O.

Fifth Respondent

Heard: 25 August 2022

Delivered: 07 November 2022

This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 07 November 2022

Summary: Interpretation of a main agreement of a bargaining

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This matter involves the interpretation of the constitution of the fourth respondent, the Motor Industry Bargaining Council (MIBCO). The genesis of the dispute that served before the fifth respondent (arbitrator) dates back to 2013 when the authenticity of the membership numbers and allocation of seats to the parties in the MIBCO was contested.

[2] The parties embroiled in this contestation are the first applicant, the Motor Industry Staff Association (MISA); the second applicant, the Retail Motor Industry Organisation (RMI); the first respondent, the National Union of Metal Workers of South Africa (NUMSA); second respondent, the Fuel Retailers Association (RFA); and the third respondent, the National Employers Association of South Africa (NEASA).

[3] The eligibility for admission to the MIBCO as a party is regulated by clause 5.1 of the MIBCO Constitution which provides for a threshold of 5% representivity nationally. Yet, the MIBCO Constitution is reticent on the consequences that would follow should

a party’s representivity fall below 5% admission threshold. Pertinently, the number of representatives in the MIBCO is determined

based on the parties’ membership figures as confirmed by the parties’ respective external auditors and verified by the MIBCO. In terms of clause 6.1.3 of the MIBCO Constitution, the number of representatives on the MIBCO shall be reviewed as at 31 December of each year based on the verified membership figures.

[4] Central to the issues at hand is the determination of the criteria used by the MIBCO to determine the party’s membership figures. Since 2013, the parties have been embroiled in disputes over their representation on the MIBCO. RMI accused FRA of inflating its

membership figures which gained it an extra seat at its expense. The parties resolved to have their membership figures audited by KPMG, MIBCO’s auditors at that time. The audit result confirmed FRA’s membership figures and the allocation of the extra seat. RMI challenged the audit result as it confirmed loss of its seat to FRA.

[5] The contestation over the parties’ membership figures persisted. In November 2017, the MIBCO Annual General Meeting (AGM) mandated its Governing Board to determine a process to resolve the dispute. In February 2018, the Governing Board resolved to appoint an independent audit firm to conduct an audit of the parties’ membership. In August 2018, Ngubane Auditors (Ngubane) was appointed. Ngubane produced an initial report in March 2019. The employer parties challenged the report. In August 2019, Ngubane issued a final outcome report, subsequent to further engagements it had with the employer parties. The Ngubane report revealed that NEASA’s membership figures were below the 5% admission threshold as at 30 June 2018. The Ngubane final report was accepted by FRA but rejected by RMI and NEASA.

[6] The 2019 MIBCO AGM did not proceed as NUMSA and FRA contended that NEASA was no longer a party to the MIBCO on the basis of the findings by Ngubane. Out of this conundrum, three disputes pertaining to the interpretation and application of the MIBCO Constitution were referred to the MIBCO Dispute Resolution Centre (DRC):

6.1. First, the NUMSA dispute pertains to the declaration that NEASA was no longer a party to MIBCO (the NUMSA dispute). The NUMSA dispute was opposed by MISA, RMI and NEASA. NUMSA contended that the MIBCO Constitution contains an implied term and/or a tacit term that if the representivity of a party to the MIBCO falls below the 5% admission threshold, that party’s membership ceases automatically.

6.2. Second, the RMI dispute pertains to the criterion used by the MIBCO to verify the parties’ membership figures. RMI sought to obtain clarity on the said criterion for the purposes of clause 6.1.3 of the MIBCO Constitution.

6.3. Third, the MISA dispute arose as a result the failure by NUMSA and FRA to submit their 2019 audited membership figures to the MIBCO which would ultimately

be used to determine representivity and seat allocation. MISA, RMI and NEASA submitted their audited membership figures as at 31

December 2019 to the MIBCO.

[7] The disputes were consolidated and dealt with by the arbitrator. He rendered two rulings, dated 3 July 2020 and 8 July 2020; and the award, dated 27 August 2020, all of which were initially impugned by the applicants. However, the applicants have since abandoned the challenge in respect of the ruling of 8 July 2020. The parties accept that, if the interpretation of clause 5.2.1, upon which the NUMSA dispute turns, is found to be incorrect, it would impact the remainder of the award, in particular the findings on the consequence of the Ngubane report and the MIBCO figures, if at all, for NEASA.

The NUMSA dispute

[8] The admission of new parties is dealt with in terms of clause 5 of the MIBCO Constitution. Clause 5.2 provides that any employers’

organisation or any trade union applying for admission shall meet the following criteria:[1]

8.1. “The applicant must represent at least 5% of all employers or employees engaged or employer in the sector and area as defined in 2.12 hereto” [2]; (Own emphasis)

8.2. “The applicant must be a national organisation with representation in all the provinces of the Republic of South Africa”; and

8.3. “Details of the applicant’s membership figures shall be in the form of a certified statement signed by an auditor, registered to practice as a public accountant or auditor”.

[9] Clause 5.3 outlines what would follow once an applicant is admitted as a party and provides:

‘Once admitted, the Council shall determine the number of representatives on the Council and its structures, in respect of the new Party of Council, provided that in the case of an employers’ organization, the Council shall allocate at least one seat to each business sector per employer organization, and allocate additional seats according to the proportionate representativeness (size) of each employer association in relation to the total number of individual registered members of all employer organization parties to the Council, and shall amend the Constitution accordingly.’ (Own emphasis)

[10] Pertinently, clause 5.4 deals with termination of membership and provides that a party may voluntarily withdraw from MIBCO by giving three months’ notice. It is common cause that the MIBCO Constitution does not expressly deal with the consequences that would

follow should a party’s representivity fall below the 5% admission threshold.

[11] It was NUMSA’s contention that the MIBCO Constitution contains an implied term or a tacit term to the effect that should a party’s representivity fall below the 5% admission threshold, that party ceases immediately to be a party to the MIBCO. This contention was upheld by the arbitrator.

[12] In preferring NUMSA’s construction, the arbitrator found that it accords with the objectives of the Labour Relations Act[3] (LRA) to promote orderly collective bargaining at the sectoral level. He observed further that, by the espousal of the principle of majoritarianism, by implication, the LRA limits the rights of minority parties. As such, the MIBCO party whose membership falls

below the 5% admission threshold would contribute insignificantly to orderly collective bargaining.

[13] The first difficulty with the above construction is that it is based on an assumption that the 5% admission threshold is a sine qua non for the orderly collective bargaining. Yet, as correctly contended by the applicants, the minimum threshold for admission as a party to the bargaining council is not an absolute requirement. Section 56 of the LRA provides:

‘(1) Any registered trade union or registered employers’ organisation may apply in writing to a council for admission as a party to that council.

(2) The application must be accompanied by a certified copy of the applicant’s registered constitution and certificate of registration and must include –

(a) details of the applicant’s membership within the registered scope of the council and, if the applicant is a registered employers’ organisation, the number of employees that its members employ within that registered scope;

(b) the reasons why the applicant ought to be admitted as a party to the council; and

(c) any other information on which the applicant relies in support of the application.

(3) A council, within 90 days of receiving an application for admission, must decide whether to grant or refuse an applicant admission, and must advise the applicant of its decision, failing which the council is deemed to have refused the applicant admission.

(4) If the council refuses to admit an applicant it must within 30 days of the date of the refusal, advise the applicant in writing of its decision and the reasons for that decision.

(5) The applicant may apply to the Labour Court for an order admitting it as a party to the council.

(6) The Labour Court may admit the applicant as a party to the council, adapt the constitution of the council and make any other appropriate order.’ (Own emphasis)

[14] Obviously, the object of section 56 is to regulate the admission of parties to the bargaining council and, within the context of self-governance, prefers a situation where the bargaining council decides its own criteria. In the event that the application for admission as a party is unsuccessful, the aggrieved applicant may apply to the Labour Court for admission as a party. In Fuel Retailers Association of SA v Motor Industry Bargaining Council[4] (Fuel Retailers), confronted with the application for admission in terms of section 56(5), the Labour Court held that:

[24] Section 56(5) of the LRA must be interpreted to give effect to the primary purposes of the Act. See s 3. One of the primary objects of the LRA, in s 1(d) is the promotion of orderly collective bargaining. Collective bargaining through the medium of a bargaining council envisages a measure of self-government. It is one of the few instances where corporate bodies also have a franchise. This self-government, because of the ability to have collective agreements extended and made binding on employers and employees who are not parties to the council, permits the council to impose obligations, confer rights and levy fees on non-parties. It is understandable and in keeping with the legislative intent that those who are subject to the jurisdiction of a bargaining council should be elevated to the position of lawmaker or contracting party. The applicant should conform to the requirements of the council for admission but where admission is refused this court applies a slightly different test.

[25] It has been suggested that, in determining whether a new party should be admitted to a bargaining council, the Labour Court should, inter alia, consider the attitude of the parties on the council, the extent to which a new party may disrupt the working of the council and the fact that the council should represent the organizational diversity within its sector and area... To this one may add that the court must consider the council’s reason for refusing to admit the applicant. This flows from s 56(4) of the LRA. The constitution of the bargaining council should also be considered. Its provisions would not necessarily be decisive…

[26] To sum up a court considering an application for admission to a bargaining council should take into account the following:

1. Whether the party seeking admission falls within the registered scope of the council.

2. The representativity of the council.

3. Whether the applicant is sufficiently representative to be an effective member of the council.

4. Stability in the industry.

5. The reasons advanced by the existing parties to the council for agreeing to or objecting to the admission of the applicant.

6. Other advantages to the industry, the council or the parties to the council.

7. Whether the admission of the applicant would contribute to the promotion of orderly collective bargaining.

8. The extent to which the applicant may disrupt the working of the council.

9. The contribution which the applicant could make to the organisational diversity of the council within its sector and area; and

10. The threshold for admission and other requirements set out in the constitution of the bargaining council.’ (Own emphasis)

[15] In the above authority, the Labour Court admitted FRA as a party to MIBCO despite the fact that it did not meet the threshold. It follows that the admission threshold is one of the factors to be taken into consideration when the Labour Court determines whether the admission of a new party would enhance or affect orderly collective bargaining. By parity of reasoning, the admission threshold could never be a sole factor to be considered in order to determine the termination of a party’s membership to MIBCO as contended by NUMSA.

[16] That takes me to the second hurdle, which is the ‘tacit term’ argument. Absent an express provision dealing with the effect of a decline in a party’s membership figures to a level below the 5% admission threshold, the arbitrator inferred the existence of a tacit term to the effect that membership would terminate automatically.

[17] In Homsek (Pty) Limited v JW Muller & Seun[5], the bystander test was succinctly expounded as follows:

‘[15] As explained by Corbett, AJA in Alfred McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 531H - 532A, a tacit term is an unexpressed provision of a contract, inferred by the court from the express terms of the contract and the surrounding circumstances. In our law the test for establishing the existence of a tacit term is the so-called “bystander” or “officious bystander” test. (See: Botha v Coopers and Lybrand 2002 (5) SA 347 (SCA) para 22-25; Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another 2005 (6) SA 1 (SCA) para 50-51).

[16] The bystander test was described as follows in the frequently quoted case of Reigate v Union Manufacturing Co 1918 (1) KB 592 at 605:

“A term can only be implied if it is necessary in the business sense to give efficacy to the contract; i.e. if it is such a term that it can confidently be said that if at the time the contract was negotiated someone had said to the parties: “What will happen in such a case?” they would both have replied: ‘Of course so and so will happen; we did not trouble to say that; it is too clear’”.

[17] The court a quo referred to Rapp and Maister v Aronovksy 1943 WLD 68 at 74 to 75 where Millin J stated the following:

“It has often been pointed out that it is not sufficient to show that the term would be highly reasonable or convenient to one or other or even both of the parties. The cases show that the court has to be continually on its guard against being persuaded to introduce a term which, on analysis of the argument, appears to be no more than a term which would make the carrying out of the contract more convenient to one of the parties or to both of the parties and might have been included if the parties had thought of it and if they had both been reasonable. You are not to imply the term merely because if one of the parties or a bystander had suggested it, you think only an unreasonable person would have disagreed. You have to be satisfied that both parties did agree. It is quite a different proposition, if in the hypothetical case Scrutton Lord Justice puts in, you feel the parties might say: “You have called our minds to something we have not thought of and what you say is not unreasonable, let us discuss it.” If that is all that the Court feels might have happened, then the Court is not entitled to imply the term”.’ (Own emphasis)

[18] The arbitrator obviously misconstrued the bystander test. As stated in the above authority, “[a] tacit term is derived from an inference as to what both parties must have intended if they had applied their minds to the issue, and the inference will be drawn only if the court is satisfied that it is a necessary one. Any difficulty and doubt as to how the term should be formulated will negate the inference that the parties clearly intended the proposed term to be part of their agreement”[6].

[19] The third hurdle is that, even if the bystander test was correctly construed, its application is nonetheless misplaced as the instrument that was being interpreted is the collective agreement as opposed to a commercial contract. In North East Cape Forests v SA Agricultural Plantation and Allied Workers Union & others[7], the Labour Appeal Court held that the primary objects of the LRA would be better served by adopting a practical approach to the interpretation and application of a collective agreement as the context within which a collective agreement operates under the LRA is vastly different from that of an ordinary commercial contract. Unlike commercial contracts, collective agreements bind people who are not parties to them. The starting point for the interpretation of a collective agreement is the ordinary meaning of the words, read as a whole and in context and not in a vacuum, divorced from business realities.[8] So, a purposive approach to interpretation is appropriate and a narrow or pedantic approach is accordingly misplaced.

[20] This matter ultimately turns on a constructional choice that had to be resolved by reference to the text and context of the collective agreement at the time it was concluded or amended. In the present instance, it must be recalled that the MIBCO Constitution had been amended following the Labour Court judgment in Fuel Retailers[9] that ordered that FRA be admitted even though it did not meet the 5% admission threshold. The Labour Court opined that:

‘It is appropriate that FRA should be able to participate in the negotiations which take place in MIBCO and in the structures established by MIBCO as its members are bound by collective agreements entered into in MIBCO. FRA members pay various dues and contributions to the council. The admission of FRA as a party to the council would lend legitimacy to the council as it would make it more representative of the employers in the sector. A multiplicity of employers’ organizations, that would result from the admission of FRA, would be compatible with the general thrust of the LRA.’[10]

[21] In my view, by the same token, the above considerations should, inter alia, inform the decision whether to terminate a party’s membership to MIBCO. Moreover, at the time when the termination of a party’s membership may be contemplated, the MIBCO would be in a better position to review the effectiveness of that party’s

membership and its role moving forward because of the persisting relationship. In essence, it is the MIBCO that should decide the fate of a party whose membership fell to the level below the 5% admission threshold. If the MIBCO resolves to terminate that party’s

membership then it ought to do so on reasonable notice, which may include an opportunity to address the cause of the complaint that led to the decision to terminate the membership. In fact, this is a well accepted practice in the labour market; which, in my view, accords well with the objects of the LRA.

[22] In sum, the arbitrator misdirected himself in adopting a narrow construction of clause 5.2.1. The above circumstances obviously show that wider construction should to be preferred as it accords with commercial reality.

[23] It follows that the ruling of 3 June 2020 is vitiated by this misdirection. It accordingly stands to be reviewed and set aside and substituted with a ruling that NUMSA failed to prove the existence of the tacit term for which it contended and that the construction it accords to clause 5.2.1 is untenable.

[24] As stated above, the parties were ad idem that, if the interpretation of clause 5.2.1 is found to be incorrect, the finding would impact the remainder of the award. In essence, it would render superfluous the determination of the balance of the issues, particularly, the effect of the Ngubane report and the effect and consequence of the MIBCO figures for NEASA.

The Retail Motor Industry Organisation’s (RMI) dispute

[25] As stated above, the source of all the disputes between the parties is the criterion used by the MIBCO to determine the parties’ membership figures. The nub of the RMI dispute pertains to the interpretation of 6.1.3 of the MIBCO Constitution. RMI contended that the verification of the parties’ membership figures as contemplated by clause 6.1.3 of the MIBCO Constitution should be attended to in accordance with principles and criteria agreed to by the parties to the MIBCO on 6 August 2013 and adopted by the MIBCO. The applicants contend that in terms of the said criteria the MIBCO is enjoins to into account the actual membership figures of members in good standing as opposed to membership figures that are allocated by MIBCO based on the parties’ submitted returns.

[26] It is also common cause that the MIBCO did not use the aforesaid criteria and principles when it verified the audited membership figures that the parties presented to it. In fact, NUMSA denied that MIIBCO had to apply the aforesaid criteria. Despite having found that the resolution of the RMI dispute was crucial, the arbitrator found that there was no sufficient evidence to enable him to deal with it. Instead of dismissing the dispute, the arbitrator referred the issue back to the parties to attempt to resolve it internally within the confines of the MIBCO.

[27] The challenge with the arbitrator’s approach is that he seemed oblivious to the fact that the parties had reached an impasse over the years on this issue hence they needed clarity. Moreover, the arbitrator readily used his powers, mero motu, to request additional evidence when it came to the NUMSA dispute. That evidence pertained to NAESA’s membership figures post 30 June 2018. Notwithstanding the fact that those figures that had not been verified by Ngubane, the arbitrator accepted that evidence and placed reliance it to conclude that NAESA’s membership declined below the 5% admission threshold and thus terminated automatically. The fallacy of that conclusion is that those figures were contested and mainly on the basis of the criteria that was used by the MIBCO. To my mind, it must follow that up until the issue of the criteria used to verify membership is resolved, the integrity of the verified figures would remain questionable.

[28] Obviously, the arbitrator renounced his duty to adjudicate the dispute before him and to resolving it. As stated in Commercial Workers Union of SA v Tao Ying Metal Industries & Others:[11]

‘Consistent with the objectives of the LRA, commissioners are required to 'deal with the substantial merits of the dispute with the minimum of legal formalities'. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter–claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to 'conduct the arbitration in a manner that the commissioner considers appropriate'. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do.’ (Own emphasis)

[29] I, therefore, agree with the applicants that the arbitrator committed a reviewable irregularity. Since the issue seems to be the adequacy of the evidence, I deem it expedient that the matter be remitted back to the MIBCO for a de novo arbitration before a different arbitrator.

The MISA dispute

[30] The MISA dispute pertains to the interpretation of clause 6.1.3 of the MIBCO Constitution which provides that the MIBCO:

‘Shall review the number of representatives on the Council as at 31 December each year based on the verified membership of the employer organisations and trade unions in the Regions respectively and as confirmed by the individual Parties to the Council via their external auditors.’[12]

[31] The applicants contend that clause 6.1.3 enjoins the parties to the MIBCO to submit their audited membership figures as at 31 December each year. Thus it must be inferred that the audited membership figures must be submitted to the MIBCO within a reasonable time period, calculated from 31 December. Since NUMSA and FRA had not submitted their 2019 audited membership figures to the MIBCO by March 2020 (the time when MISA declared its dispute) they were in breach of the MIBCO Constitution.

[32] The arbitrator found as follows:

‘125. I accordingly interpret clause 6.1.3 to mean the following.

125.1. Party organisations must determine their membership numbers annually

and have the numbers audited.

125.2. The audited numbers must be submitted to MIBCO for verification. The

purpose of verification is to ensure that the numbers match those in MIBCO’s database.

125.3. Verification implies using objective criteria for determining which entities qualify as members and applying those criteria consistently to different organisations. This aspect is developed under the next sub-heading.

125.4. The review of representation on the council among different organisations on the employers’ and union sides, as well as membership of the council, takes place on the basis of the membership figures submitted by party organisations after verification by MIBCO.

125.5. Membership as determined on this basis takes effect on 31 December of the year in question and remains effective until 31 December of the following year.

125.6. Although no dates are stipulated for any of the steps referred to above, a reasonable interpretation is that past practice should continue until MIBCO decides to change it. This means:

125.6.1. Party organisations should determine their membership numbers as at 30 June; and

125.6.2. The AGM should conduct the review. This allows sufficient time for membership figures to be audited and verified before the AGM.

125.7. The parties are at liberty to regulate the process in more detail or

to alter it, subject only to the requirement of clause 6.1.3 that membership numbers must be audited and the representation of parties determined based on the review must take effect on 31 December.

126. I do not find it reasonable to regard 31 December as the date when membership numbers must be determined. This implies the submission of audited membership numbers in or around March, which is some nine months prior to the AGM which, presumably, should conduct or approve the review. If so, the effect would be that representation based on the review would take effect a full year rather than six months after the initial determination of membership. Given that much can change in six months, let alone 12 months, it is reasonable to shorten rather than prolong the process as much as possible. Alternatively, a special meeting would be needed. This, again, would introduce a needless complication.’

[33] I agree with the respondents that the arbitrator’s construction 6.1.3 cannot be faulted as it is informed by the parties’ past conduct and the business realities. The applicants clearly conflate the submission of membership figures by the respective parties, which is subject to verification, and the allocation of seats which is based on the verified membership figures as at 31 December.

[34] However, the converse is true when it comes to the arbitrator’s finding that NUMSA and FRA were absolved from submitting their membership figures for the year 2019 because the MIBCO was were not properly constituted given that fact that NAESA’s membership had automatically terminated. Likewise, this finding cannot stand in light of my finding that NAESA’s membership did not terminate automatically when its figures fell below the 5% admission threshold.

[35] In light of the findings above, the arbitrator’s cost order is equally untenable and stands to be set aside.

Conclusion

[36] In all the circumstances, the ruling of 3 June 2020 and the award dated 27 August 2020 are vitiated by various irregularities which rendered them incorrect and/or unreasonable.[13] Accordingly, they stand to be reviewed and set aside.

Costs

[37] It is trite that costs do not follow the result in this Court, especially if the parties have a persisting collective bargaining relationship as typified in the present matter. Moreover, the applicants’ flagrant disregard for the Rules of the Labour Court and the directive to file heads of argument is another consideration for not granting costs.

[38] In the circumstances, I make the following order:

Order

1. The ruling of 3 June 2020 is reviewed and set aside and substituted with the following order –

“NAESA’s membership as a party to the MIBCO did not terminate automatically when its membership figures were below the 5% admission threshold”.

2. The award dated 27 August 2020 is reviewed and set aside; save for the MISA dispute that relates to the interpretation of clause 6.1.3 of the MIBCO Constitution.

2.1. The RMI dispute is remitted back to the MIBCO for a hearing de novo before a different arbitrator.

2.2. The finding that NUMSA and FRA were absolved from submitting their membership figures because the MIBCO was not properly constituted is reviewed and set aside and substituted with the following order –

“By failing to submit the 2019 membership figures, NUMSA and FRA acted in breach of the MIBCO Constitution”.

2.3 The cost order is set aside.

3. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicants:

Advocate N Cassim SC

Instructed by:

Gerrie Ebersohn Attorneys Inc

Third Respondent: Advocate C Orr SC

Instructed by:

Haffegee Roskam Savage Attorneys

[1] See sub-clauses 5.2.1-5.2.5 of the MIBCO Constitution, part 2 of the index to record bundle, p23.

[2] Clause 5.2.1 of the MIBCO Constitution.

[3] Act 66 of 1995, as amended.

[4] 2001 22 ILJ 1164 (LC) at paras [24] - [26].

[5] 2015 JDR 1848 (WCC) at paras [15] - [19].

[6] Id at para [24].

[7] (1997) 18 ILJ 971 (LAC).

[8] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para [18].

[9] Supra n 4 at para [31].

[10] Id.

[11] (2008) 29 ILJ 2461 (CC) at para [65].

[12] See Index record part 2, p 25.

[13] See: Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC); Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC); Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others (2014) 35 ILJ 943 (LAC); Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA).