MTN (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR 1758/2021) [2024] ZALCJHB 548 (9 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Not Reportable

CASE NO: JR1758/2021

In the matter between:

MTN (PROPRIETARY) LIMITED

Applicant

And

THE COMMISSIONER FOR CONCILIATION

MEDIATION AND ARBITRATION

1st Respondent

XOLANI NYAMEZELE N.O.

2nd Respondent

HERBERT SEETISO MONADIRA

3rd Respondent

Heard: 12 March 2024

Delivered: 09 September 2024

This judgment was handed down electronically by consent of the parties’ legal representatives by circulation to them via email. The date for hand-down is deemed to be 09 September 2024.

JUDGMENT

MOKOSE AJ

Introduction

[1] Before this court is an application in terms of Section 145 alternatively Section 158 (1)(g) of the Labour Relations Act 66 of 1995 (“the LRA”) wherein the applicant seeks an order reviewing and setting aside four rulings issued by the second respondent under the auspices of the first respondent under Case Number GAJB25161. This court is requested to either remit the matter back to arbitration or step in and determine the fairness of the third respondent’s dismissal.

[2] The first award was a default judgment award in terms of which the applicant’s request for a postponement at the arbitration proceedings held on 9 April 2021 was declined; the second award being the finding that the third respondent was constructively dismissed and awarded compensation in the sum of R648 000,00; the third is a rescission ruling issued on 18 June 2021 in which the application for a rescission of the default award was dismissed; the fourth is another rescission application in terms of which a rescission was sought of the rescission ruling of 18 June 2021. That ruling is dated 21 July 2021.

[3] The application is opposed by the third respondent.

Brief Facts

[4] The third respondent was employed by MTN on 1 September 2012 as a Regional Manager until his resignation on 28 September 2019 allegedly due to the applicant having unilaterally changed the terms and conditions of his employment which terms were intolerable. The third respondent contends that in or about 2018 there was a change in management resulting in him being responsible for 14 stores. He had previously been responsible for 25 stores. Furthermore, his title was changed to that or Area Manager without consultation. He sought an explanation to this change to no avail.

[5] The third respondent contends further that he sought a meeting with Mr Mkhize, the General Manager. This was not acceded to until he was called into a meeting with Mr Mkhize and Ms Manuku Mabeko on 16 May 2019 where he was informed that he would receive R25 000 less in respect of commission than what he would ordinarily receive. He requested confirmation of same in writing from the HR department, but it was not forthcoming. On payday and on receipt of his salary less the R25 000 commission we normally received, he enquired with the HR department who merely apologised and explained that this was the result of the change in his responsibilities. It was for this reason that he referred a dispute to the CCMA. The third respondent contends that his resignation from the employ of the applicant was because of such intolerable working conditions. The referral of the case to the CCMA on the grounds of unfair dismissal was predicated upon Section 186 (1)(e) of the LRA.

[6] Attempts to resolve the dispute by conciliation failed and the matter was referred to arbitration which was held in default on 21 August 2020. The award was issued on 1 September 2020. which culminated in the issuance of a default award. The commissioner found that the third respondent had been unfairly dismissed and ordered that the applicant pay him compensation in the sum of R648 000,00.

[6] On 4 November 2020 the applicant applied for and was granted an order for the rescission of the arbitration award of 1 September 2020. It was further ordered that the matter be set down for arbitration. This rescission was not opposed by the third respondent.

[7] The matter was again set down for hearing on 21 April 2021 at which time the applicant was not in attendance. An application for a postponement of the matter was sought by Mr Jacques Naude, an official from the Guardian Employers Organisation. He explained the reasons for the non-appearance of a representative of the applicant at the proceedings. The application was declined, and the

commissioner stood the matter down until 12H00 to enable a representative of the applicant and its witnesses to appear at the proceedings. There was subsequently no appearance on the part of the applicant.

[8] Mr Naude indicated to the commissioner that the person assigned to the matter could not appear as he had fallen ill and that a sick note would be furnished as soon as it became available.

[9] The commissioner indicated in his award that he was not convinced that there was an emergency which had prevented the applicant from attending the proceedings and that the applicant, being a large company, had the resources to make contingency arrangements in the event of an emergency such as had befallen the company. He drew an inference that the applicant was in wilful default and continued with the proceedings. The commissioner came to a conclusion that the third respondent had been constructively dismissed by the applicant and further ordered the applicant to pay the third respondent the sum of R648 000 no later than 15 May 2021.

[10] The applicant subsequently applied for the order to be rescinded for the reason that it had attempted to postpone the matter on the day of the hearing but to no avail. The person who had been assigned to the matter and who was supposed to appear at the CCMA, Mr Pieter Lotter, had taken ill and that his medical certificate confirming same which was received by the CCMA at approximately 12H24 had not been considered in the application for a postponement.

[11] This application for rescission was opposed by the third respondent.

[12] The application for rescission was declined by the commissioner. The applicant filed an application to rescind the rescission ruling rendered. The commissioner found that the matter was res judicata and therefore dismissed the application. It is as a result of these awards that this matter serves before this court.

Condonation

[13] The applicant instituted this review application on 16 April 2021. The applicant’s notice in terms of Rule 7A(6) is dated 6 January 2022 at which time 5 months had passed since the commencement of the review application. In terms of Clause 11.2.3 of the Practice Manual the record had to be filed within 60 days of the date upon which the applicant is advised by the Registrar of its receipt. The applicant delayed in delivering the record which was only received by the third respondent’s attorneys of record on 21 February 2022. No extension of time was sought.

[14] In terms of Rule 12(3), this court may on good cause shown, condone non-compliance with any prescribed time period in the rules. Furthermore, Rule 158(1)(f) of the LRA the court has the discretion to condone the late filing of any document.

[15] The applicant contends that the degree of lateness was not excessive, and that the respondent would not be prejudiced by the delay. The delay was caused, in part, by the fact that the record of proceedings which was filed by the applicant was voluminous and his attorneys who were not on record during the arbitration, had to spend a considerable amount of time familiarising themselves with the documents. Accordingly, it could not prepare the documents within ten days as is required.

[16] It is trite that if condonation is not granted, then this court will lack the jurisdiction to determine the review application which application will stand to be dismissed. If condonation is granted, then the merits of the review application will be considered. In determining a condonation application, it is necessary for the Court to consider the relevant facts as are recorded in the papers before it. Significant of such applications is that condonation cannot be had for the mere asking, and that a party is required to make out a case entitling it to the court’s indulgence by giving a detailed and accurate account of the causes of the delay. The explanation must be such that it is reasonable enough to excuse the default.

[17] The applicable legal principles associated with condonation applications is that there must be good cause shown for the delay, the length of the delay, an explanation for the delay, prospects of success in the review and the application must also deal with prejudice.

[18] Section 145(1A) of the LRA provides that the Labour Court may on good cause shown condone the late filing of an application in terms of Section 145(1) of the LRA. The approach which the Labour Court and the Labour Appeal Court have followed in determining whether good cause has been shown, is the often referred to passage as enunciated by Holmes JA in the matter of Melane v Santam Insurance Co Limited[1] as follows:

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting the condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is n objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality may be overlooked.”

[19] The Constitutional Court in Brummer v Gorfil Brothers Investments (Pty) Ltd has since pointed out that an application for condonation should be granted if it is in interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors, including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or the defect.[2]

[20] Having considered the submissions of the parties and the prejudice to the respondents in particular in the granting of this condonation, I am of the view that it is I the interests of justice that condonation should be granted for the late filing of the application. The condonation application is duly granted.

Grounds for Review

[21] The applicant seeks the decisions of the Commissioner to be reviewed on the following grounds:

(i) that the second respondent failed to appropriately apply his mind to the matter in that despite being presented with a valid sick note on the date of the scheduled arbitration, he opted to continue with the arbitration and failed to consider these merits in the consideration of the recission application further accusing the applicant of ‘blackmail’ without any foundation for making such a remark, thus demonstrating a lack of objectivity in consideration of the matter;

(ii) the second respondent committed a gross irregularity in failing to consider the above aspects;

(iii) the second respondent reach an unreasonable decision due to the absence of appropriate analysis of the mentioned prospects of success and issues of prejudice.

(iv) the second respondent reached a decision that no reasonable commissioner given the same set of circumstances would have reached.

Test on review

[22] Section 145(1) provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. The defect referred to in Section 145(1) is one where the commissioner has committed a misconduct in relation to his duties of a commissioner or arbitrator or he has committed a gross irregularity in the conduct of the arbitration proceedings or even where he has exceeded his powers.

[23] The test on review was espoused by the court in the matter of Sidumo & Another v Rustenburg Platinum Mines Limited and Others[3] where it was held as follows:

“In light of the Constitutional requirement (in Section 33(1) of the Constitution) that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, the ‘reasonableness standard’ should now suffuse Section 145 of the LRA”.

[24] A commissioner is obliged to apply his or her mind to the issues in the case.[4] The review court is therefore required to determine whether the decision of the arbitrator is reasonable considering the totality of the evidence that was before him together with the issues he was required to determine.

[25] The Labour Appeal Court (“LAC”) in the matter of Fidelity Cash Management Service v CCMA and Others[5] considered what unreasonableness is and held as follows:

“[97] The Constitutional Court further held that to determine whether a CCMA commissioner’s arbitration award is reasonable or unreasonable, the question that must be asked is whether or not the decision or finding reached by the commissioner is ‘one that a reasonable decision maker could not reach’ (para 110 of the Sidumo case). If it is an award or decision that a reasonable decision maker could not reach, then the decision or award of the CCMA is unreasonable, and there, reviewable and could be set aside. If it is a decision that a reasonable decision maker could reach, the decision or award is reasonable and must stand. It is important to bear in mind that the question is not whether the arbitration award or decision of the commissioner is one that a reasonable decision maker would not reach but one that a reasonable decision maker could not reach….”

[26] In a more recent case of Gold Fields Mining South Africa (Pty) Limited (Kloof Gold Mine) v CCMA and Others[6] the court interpreted the test set out in the Sidumo case as follows:

“Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator…….In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of proceedings, but extends to whether the decision that the arbitrator arrived at is one that falls in the band of decisions a reasonable decision maker could come to on the available material.”

[27] The court went on to say:[7]

“……. What is required is first to consider the gross irregularity that the arbitrator is said to have committed and then to apply the

reasonableness test established in Sidumo. The gross irregularity is not a self-standing ground insulated from or standing independent of the Sidumo test.”

[28] The court then concluded that[8]-

“In short: A review must ascertain whether the arbitrator considered the principal issue before him/her, evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decision he or she arrived at.”

[29] It is also convenient and necessary for this court to consider Section 158(1)(g) of the LRA which provides that the Labour Court may, subject to Section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law. It is trite that Section 158(1)(g) of the LRA has jurisdiction to review interlocutory rulings on postponements.

[30] In the matter of Building Industry Bargaining Council v CCMA[9] the court held that the basis for review is dependent on the nature of the decision taken. It held further that Section 158(1)(g) gives the court the power to:

(i) review the exercise of public power under the LRA on the basis of the principle of legality;

(ii) review the exercise of administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA); and

(iii) perform common law reviews in appropriate circumstances.

[31] Albeit in the context of Section 158(1)(h) of the LRA, the LAC came to a finding in the case of Hendricks v Overstrand Municipality and Another[10] where it held as follows:

“In sum therefore, the Labour Court has the power under Section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on (i) grounds listed in PAJA, provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds “permissible in law”.

Applicant’s view

[32] Firstly, it must be noted that the two rulings being the postponement ruling and the rescission ruling are interlinked with the default award. A determination on the main issue whether a postponement ruling was reviewable or not would be dispositive of the other applications.

[33] The applicant contends that it has an absolute defence for not attending the arbitration proceedings and that it has no objective reason to fear litigation. Accordingly, it was non-sensical to penalise it for a request to postpone the matter at arbitration and to come to a conclusion that it attempted to delay the matter to actively avoid arbitration of the matter. The applicant further contends that it provided a valid and reasonable explanation for its non-attendance at the proceedings, which reason was bona fide. The applicant further contends that the sick note was rejected without any regard to the COVID-19 pandemic. It is notable that the sick note did not mention that the applicant’s representative had contracted COVID-19.

Evaluation

[34] Commissioners have a useful guide in the form of the CCMA Practice and Procedure Manual, in terms of which, inter alia, the commissioner has a discretion to be exercised judicially, whether an application for a postponement should be granted or refused. Factors to be considered in this regard include the explanation for not seeking consent from the other party timeously, whether the other party was given notice of the intended application, the prejudice to the other party, whether the application is bona fide and not merely being used as a delaying tactic and whether if the request is granted a costs order can fairly compensate the prejudice

of the other party.[11]

[35] Other factors which may be considered include whether the explanation given is full and satisfactory, whether the application is opposed, the history of previous postponements, the importance of the case to the parties, prospects of success of the party applying for the postponement and public interest and the quest for expeditious resolution of disputes. Ultimately, the commissioner’s

discretion must be exercised judicially and for substantial reasons and not capriciously or on any wrong principle.[12]

[36] In the matter in casu, the applicant received a notice of the matter having been set down for hearing on 9 April 2021. Its representative attended court to request an indulgence for a postponement which indulgence was denied. The matter was adjourned to 12H00 at which time the arbitration proceeded in the absence of the applicant. The second respondent further found that the applicant adopted delaying tactics. The commissioner was of the view that the applicant had concluded that the postponement would be granted in that he failed to appear at the proceedings together with his witnesses, they having been informed that the matter would not proceed on the appointed day. The commissioner was further of the view that the applicant had failed to find a plausible explanation in the application for the non-attendance of any other person to represent the applicant. He relied on the judgment in the matter of Free State Gambling and Liquor Authority v Phehelo Motane & Others (supra) where it was held as follows:

“Postponements at arbitration hearings are not to be readily granted. Postponements in arbitrations should be granted on “less generous basis”. This approach is informed by the recognition that the LRA requires that labour disputes need to be resolved expeditiously and thus arbitrators have a wide discretion in granting or refusing to grant a postponement. Where fundamental fairness and justice warrant a postponement, the arbitrator may in appropriate cases, allow such an application even if it was not timeously made.”

[37] The applicant is of the view that the second respondent easily rejected caselaw cited by it in support of its application for postponement. Furthermore, the applicant submits that the sick note presented to the second respondent in support of an application for a postponement was rejected without the cognition of the COVID-19 pandemic. These are all instances which show the unreasonableness of the decision to refuse the postponement application and as such, are an indication of the second applicant not having taken into account relevant factors in the exercise of the judicial decision taken.

[38] I disagree with this view. From the record it is apparent that the commissioner was not persuaded that there was an emergency as submitted by the applicant. He was of the view that in such a big establishment, contingency plans could have been easily made.

Furthermore, he was of the view that sick notes do not automatically qualify a party to a postponement. They are only proof of incapacity where necessary. Furthermore, a postponement is not granted as a right but an indulgence by the arbitrator. Lastly, he found that the matter was one which had long been referred to the CCMA and that it was in the interest of both the parties that it be finalised as expeditiously as possible. Accordingly, the commissioner found that the applicant was in wilful default and refused to grant the postponement as sought.

[39] The factors mentioned by the commissioner as stated above are all factors to be taken into account in deciding whether to reject such an application or not. I do not find that the commissioner erred in any way in his refusal to grant the postponement and reach a decision which could not have been reached by a commissioner in his position. I do not doubt that the decision of the second respondent not to allow a postponement is a reasonable decision taking into account the facts which were before him. The decision arrived at was a decision that a reasonable decision maker could have arrived at on the facts before him. Accordingly, I conclude that this decision does not warrant interference on the part of this court.

Rescission

[40] The court in the matter of Northern Training Trust v Maake & Others[13] dealt with the test for rescission in terms of Section 144(a) of the LRA. It was held as follows:

“The enquiry in an application for rescission on an arbitration award is consequently bipartite. The first leg is one which is concerned with whether or not the notice of set down was sent, a probability then created that the notice sent was received. The second leg to the enquiry is one which concerns itself with the reasons proffered by the applicant who failed to attend the arbitration proceedings. Such applicant needs to prove that he or she was not wilful in defaulting, that he or she has reasonable prospects of being successful with his or her case, should the award be set aside. However, the applicant need not deal with the merits of the case.”

[41] In utilising the test espoused above, I am satisfied that the applicant did receive the notice of set down and its representative

attended the arbitration on 9 April 2021, albeit to seek a postponement which was denied. The arbitration then proceeded in the

absence of the applicant.

[42] The second leg of the enquiry concerns itself with the reasons proffered by the applicant for failing to attend the arbitration

proceedings. As stated above, the applicant needs to prove that he or she was not in wilful default and that he or she has reasonable

prospects of success in its matter and that the award should be set aside.

[43] I have dealt with the reasons proffered by the applicant in not attending the arbitration proceedings above. The applicant contends that it seems that the commissioner adopted some frustration towards the applicant as the applicant deemed the postponement a foregone conclusion and not a humble request. I disagree with this view. The commissioner in his determination of the application needs to take note of, inter alia, the history of previous postponements as stated in the Free State Gambling Authority case when faced with an application for a postponement.

[44] I agree with the third respondent that the failure to file a confirmatory affidavit is fatal to the applicant’s case. I also take note of the fact that no confirmatory affidavit by Mr Naude confirming that he was ill on the day in question was filed by the applicant. Such affidavit would have added weight to the medical certificate which was handed up on the day. Furthermore, no confirmatory affidavit by Mr Lotter was filed which affidavit would confirm that it was impossible for him to appear before the CCMA as he had been booked off ill.

[45] I am satisfied that the commissioner considered both the requirements of fairness and the expedition of labour matters. He found that the matter had been pending since 2019 and that it would not have been fair in the circumstances to postpone it yet again for the reasons provided by the applicant. It is also noted that an award had previously been granted on default but was subsequently rescinded. In the rescission application, a similar reason had been proffered for the non-appearance at the proceedings.

Constructive Dismissal

[46] In its papers, the applicant confirms that it embarked on a restructuring process. However, it confirmed further that the third respondent’s terms and conditions of employment were amended after due consultations had been held. The applicant contends, in the alternative, that the third respondent was not consulted because of his own risk and decision not to attend consultative meetings. However, his salary remained unchanged.

[47] The applicant further conceded that a unilateral change in terms and conditions of employment may justify a resignation but denies that the third respondent’s resignation was justified. The applicant contends that the third respondent resigned as soon as he noted that he had not been paid commission following his new appointment.

[48] Section 186(e) of the LRA provides that dismissal means that an employee terminated the employment with or without notice because an employer made the continued employment intolerable. It is the third respondent’s case that the applicant committed a material breach and/or repudiated the contract of employment.

[49] The onus to prove that the contract of employment was terminated with or without notice because the applicant made continued employment intolerable rests on the third respondent. Such onus is discharged by leading evidence on a balance of probabilities.

[50] An applicant seeking to review a finding of constructive dismissal must show that the decision was objectively wrong. The review standard is correctness and not reasonableness as the issue is one going to jurisdiction.[14]

[51] The applicant is of the view that the third respondent misled the commissioner in his submissions pertaining to the constructive

dismissal in that he did not cooperate with the consultation procedures. The consultation did not result in a change to the payment structure therefore, the third respondent was not disadvantaged in any way. The applicant further contends that it is not true that the third respondent resigned due to the intolerable working conditions and that the resignation was a last resort. Accordingly, the third respondent has failed to establish a constructive dismissal.

[52] The third respondent testified at the arbitration proceedings that he had been employed by the applicant since1 September 2012 as a regional manager. On or about 3 October 2018 he was informed by the applicant that their positions would be rendered redundant and a new structure introduced which would see the region being divided into sub-regions. The effect of that would be that more positions would be created but that those people who were affected by this implementation would be allowed to choose their preferred sub-regions.

[53] The third respondent was subsequent given a list of the sub-regions and requested to furnish HR with his updated CV. On 19 October 2018 he was notified by the applicant of his appointment as an area manager of Johannesburg South. The letter of employment contained the terms and conditions of his employment which essentially remained the same as those previously granted when contracted in 2012. He was informed during the interview process that the structure was due to ‘operational requirements’ and that it was not embarking on a Section 189 process. He contends that he raised certain issues during the interview including that of commission to which he received no response.

[54] The third respondent contends further that subsequently and on 31 January 2019 he followed up his concerns via email to one Mr Mkhize about his operational responsibilities and commission in particular. He testified that he was informed that commission would no longer form part of his salary. This was determined by the applicant without proper consultation. When he was not paid the commission at the end of that month, he referred a dispute to the CCMA and on 7 August 2019 a settlement agreement was concluded wherein the applicant agreed to pay the third respondent commission for the months of May and June. He was however informed that commission would not be paid for August to September 2019.

[55] The third respondent consistently maintained that his employment had become intolerable due to the applicant unilaterally changing the terms and conditions of his employment without a proper consultative process, he was demoted in that his responsibilities were reduced and that as a result of the restructuring, his salary was reduced significantly without proper consultation. He felt that he was no longer required in the organisation when he engaged with management pertaining to his grievances as stated above. These issues were escalated to the HR manager and the CEO of the company without resolution.

[56] It is the duty of the applicant to demonstrate the fairness in the decision to restructure the company. In the matter in casu the applicant fails to justify the decision taken to restructure its business operations where such decision had what is perceived as an adverse effect to their existing contracts of employment. I am of the view that the applicant had to do more that informing the employees of a change in structure of the company. Whilst it is understood that the applicant’s restructuring process was aimed at amending the terms and conditions of employment to suit the operational requirements of the company, it was incumbent on the company to engage meaningfully with its employees about the change in structure. There is no evidence of same having occurred.

Costs

[57] The general rule in litigation pertaining to an award of costs is that costs should follow the result. However, this does not find application in labour disputes due to the power imbalance between an employer and an employee. This court has a wide discretion in respect of the award of costs, considering fairness and the principles of law and further considering the power relationship between the employer and employee.[15] This principle was confirmed in the matter of Zungu v Premier of KZN and Others[16] where the Constitutional Court stressed that the court should seek a balance between unduly discouraging litigants from approaching the Labour Court to have their disputes dealt with and allowing those litigants to bring their matters to the court which should not have been brought in the first place. Accordingly, I am of the view that no order as to costs should be made in this matter.

Order

[58] In light of the above, I am of the view that the applicant’s case does not meet the requirements as set out in Section 145 of the LRA and accordingly the following order is granted:

1. The application is dismissed.

2. No order is made as to costs.

For the Applicant: Mr D.Q Berry

Instructed by: Guardians Employer Organisation

For the 3rd Respondent:

Instructed by Msikinya Attorneys &Associates

[1] 1962 (4) SA 531 (A) at 532B - E

[2] [2000] ZACC 3; 2000 (2) SA 837 (CC) at para 3

[3] [2007] 28 ILJ 2405 (CC)

[4] CUSA v Tao Ying Metal Industries [2008] 29 ILJ 2461 (CC) at para 134

[5] [2008] 29 ILJ 964 at para 97

[6] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at paragraph 14

[7] Gold Fields Mining (supra) at para 15

[8] Gold Fields Mining (supra) at para 16

[9] [2011] 4 BLLR 330 (LC)

[10] [2014] 12 BLLR 1170 (LAC) at para 29

[11] Free State Gambling and Liquor Authority v Phehelo Motane and Others [2017] ZALCJHB 88 at para [13]

[12] Free State Gambling and Liquor Authority v Phehelo Motane and Others (supra) at para [14]

[13] (2006) 27 ILJ 828 (LC)

[14] Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 (LAC) at para 19 read with para 35

[15] Union for Police Security and Corrections Organisation v South African Custodial management (Pty) Ltd [2021] ZACC 41

[16] 2018 ZACC 1