National Union of Metalworkers SA and Others v Metal and Engineering Industries Bargaining Council and Others (JR 467/2020) [2022] ZALCJHB 240 (19 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 467/2020

In the matter between:

NATIONAL UNION OF METALWORKERS SA First Applicant

LEGODI TSHEPISO AND 8 OTHERS

Second to further Applicants

and

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL

First Respondent

ZUKO MACINGWANE N.O.

Second Respondent

NEON LIGHTS ELECTRICAL (PTY) LTD

Third Respondent

Heard: 04 August 2022

Delivered: 19 August 2022

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicants seek to review and set aside only a portion of an arbitration award issued on 11 December 2019 wherein the Second Respondent (arbitrator) found the Second Applicants’ (employees) dismissal unfair and ordered the Third Respondent (Respondent) to pay them each compensation, equivalent to four months’ remuneration.

[2] The Applicants do not challenge the arbitrator’s findings on fairness, as they effectively seek to only review the relief awarded by the arbitrator.

[3] The Respondent opposed the application.

Background facts

[4] The Respondent’s business is the assembling of electrical equipment and lighting equipment in the process of manufacturing switches. The employees were employed as assemblers and a stock controller, on different dates varying from October 2013 to April 2016.

[5] The employees’ contracts of employment were terminated on 28 February 2019. The Applicants subsequently referred an unfair dismissal dispute to the First Respondent (MEIBC) and their case was premised on the doctrine of legitimate expectation. The dispute was arbitrated and the issue to be decided was whether the employees’ dismissal was fair and if not, the appropriate remedy to be awarded to them.

The test on review

[6] This Court must deal with the grounds for review within the context of the test to be applied in deciding whether the arbitrator's decision is reviewable. The test has been set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] (Sidumo) as whether the decision reached by the commissioner is one that a reasonable decision maker could not reach. The Constitutional Court held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[7] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others[2] (Gold Fields) affirmed the test to be applied in review proceedings and held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[8] The review Court is not required to consider every factor individually, consider how the arbitrator treated and dealt with each of those factors and determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence adduced[3].

[9] In Herholdt v Nedbank Limited (Congress of South African Trade Unions as amicus curiae),[4] the Supreme Court of Appeal held that:

‘…the test “is a stringent [one] that will ensure that…awards are not being lightly interfered with”…the Sidumo test will, however, justify setting aside an award on review if the decision is “entirely disconnected with the evidence” or is “unsupported by any evidence” and involves speculation by the Commissioner.’

[10] The review test to be applied is a stringent and conservative test of reasonableness. The Applicants must show that the arbitrator ultimately arrived at an unreasonable result.

[11] It is within the context of this test that this application for review is to be decided.

The evidence

[12] It is evident from the transcribed record that the Applicants’ first witness, Ms Hlatswayo, testified that at the time they were dismissed, the volume of work was very high and the employees had to work overtime. They expected their contracts to be renewed as the work they were doing, remained consistent and they signed the same contracts every month. There were no complaints about Ms Hlatswayo’s work performance, which also led her to expect that her contract would be renewed. Instead, the Respondent informed them on 28 February 2019 that “it was the end of the road” and that their contracts would not be renewed again.

[13] The Applicants’ second witness, Ms Maseko, testified that she was working for the Respondent since 2014 and she was expecting another contract. She explained that in February 2019, just before the contracts were terminated, there was a lot of work to do and the employees had to work overtime. It was common cause that, at the time of the termination of the employees’ contracts, no reason was provided to them and they were merely told that it was due to “unforeseen circumstances”. In cross-examination, it was put to Ms Maseko that the Respondent was unable to renew the employees’ contracts due to unforeseen circumstances, which were that no orders were coming in from the Respondent’s customer and it was not possible to continue working with the employees if there was no work to be done and when the Respondent would not be able to pay them. Ms Maseko disputed that and testified that the Respondent never told them that there was no work.

[14] The Respondent’s witness, Ms Metsing, testified that when Siemens took over Crabtree they indicated that they wanted a single assembly point in Likra, Lesotho. By February 2019, the Respondent was very busy, finishing the orders for Crabtree but in March 2019 the Respondent did not have enough work for “everybody and that is something that has always happened. I work as I get the work per month”. She explained that when there was not enough work, the employees would stay at home. Regarding the issue of overtime, Ms Metsing explained that the employees worked overtime when there was a deadline to meet.

[15] Ms Metsing referred to a letter, dated 30 October 2013, in terms of which Crabtree terminated the Respondent’s services. This letter had no bearing on the events that transpired during 2018 and 2019 and which led to the termination of the employees’ contracts.

[16] Ms Metsing explained that when Siemens took over, they indicated that they wanted a single assembly point in Likra, and by February 2019, she was still waiting for an agreement and was told to wait until November 2019, by then she would know whether she would have enough work to take on 30 or 20 employees or whether her contract would be terminated altogether. By February 2019, the work had started to slack.

[17] Ms Metsing testified that the Respondent only received work from Crabtree or Siemens and without that, the Respondent had to introduce short time or layoff employees for the period that there was no work.

[18] It is evident from the transcribed record that after Ms Metsing’s evidence-in-chief was completed on 10 October 2019, the arbitration was adjourned and continued on 15 November 2019. On this occasion, the Respondent sought to introduce a document with the subject line relating to the reduction of volumes. Ms Metsing did not adduce any evidence on the said document, which was a letter dated 1 November 2019, and the transcribed record shows that the Applicants’ representative took a stance that the

letter was not to be introduced when the author of the letter is not called as a witness. Only in re-examination did Ms Metsing testify about the letter of 1 November 2019, which terminated the Respondent’s services. The Applicants’ representative

pointed out that what is stated in the letter contradicted Ms Metsing’s testimony, as it stated that “[w]e thank you for your valued service and looking forward to continue doing business with you.”

[19] Ms Metsing testified that the Respondent was closing on 31 January 2020.

The arbitrator’s findings

[20] In the opening statement, the Applicants’ case was that they were unfairly dismissed due to the Respondent’s failure to renew their contracts without a valid reason. They were given monthly contracts, which they throughout their employment, signed on a month-to-month basis. The employees were employed for a long time and they expected their contracts to be renewed. The Respondent’s case on the other hand was that there was no dismissal as the employees’ contracts had a non-renewal clause and the contracts merely came to an end.

[21] In his analysis of the evidence, the arbitrator accepted that it was common cause that the employees’ contracts were terminated,

that there were multiple past renewals and that the employees were told that their contracts were terminated due to unforeseen reasons. There was no mention of termination due to operational requirements. It is evident from his analysis that the arbitrator was alive to the fact that the dispute he had to adjudicate was not one in terms of section 198B of the Labour Relations Act (LRA)[5] and he focused the award on the question of whether the employees had a reasonable expectation of renewal of their contracts, as

contemplated in section 186(1)(i).

[22] The arbitrator found that the employees’ expectation of renewal of their contracts of employment, was reasonable and that there was no plausible justification for the non-renewal of their fixed term contracts. The employees’ dismissal was found to be unfair. The Applicants do not take issue with these findings.

[23] On the issue of relief, the arbitrator held that it was not reasonably practicable for the Respondent to reinstate or re-employ the employees and he awarded compensation instead. The Applicants took issue with the aforesaid finding and the grounds for review raised by the Applicants, are limited to the relief awarded.

The grounds for review

[24] In respect of the issue of remedy, the arbitrator recorded that he had considered the ‘letters’ presented by the Respondent, which suggested that the Respondent’s future contract with its main contractor seems to be bleak. He further accepted the Respondent’s version that the volume of work had dropped as the whole assembly was moving to Likra in Lesotho and that the Respondent’s contract with its main contractor would be terminated with effect on 31 January 2020. The Respondent was only tidying up and finalising the work remaining.

[25] The arbitrator accepted the aforesaid and found that the Applicants did not present a concrete version to the contrary. Considering the remedies provided for in section 193 of the LRA, the arbitrator found that it was not reasonably practicable for the Respondent to reinstate or re-employ the employees and he awarded compensation instead, considering several factors.

[26] The gist of the Applicants’ review is that the arbitrator’s conclusion that it was not reasonably practicable for the Respondent to reinstate or re-employ the employees, is not one which a reasonable commissioner would have reached in view of the evidence before him. They seek the setting aside of the relief granted by the arbitrator and for it to be substituted with an award of retrospective reinstatement.

[27] It is evident from the supplementary affidavit that the Applicants are essentially attacking the evidence adduced and the arbitrator’s findings, based on the evidence before him.

The letter dated 30 October 2013

[28] The Applicants’ case is firstly that, although the arbitrator recorded that ‘letters’ were presented by the Respondent, which suggested that future contracts with the main contractor seemed bleak, no such ‘letters’ were presented by the Respondent. The only letter provided by the Respondent emanated from Crabtree and was dated 30 October 2013, which pre-dates the employees’ dismissal by seven years.

[29] It was clarified during cross-examination that the purpose of the letter was relative to the termination of certain employees’ services, prior to 2014, and for no other reason. The employees’ contracts were terminated in 2019. In the answering affidavit, the Respondent did not dispute that the letter from Crabtree related to the termination of services of employees prior to 2014.

[30] The Applicants’ case is that it is grossly irregular for the arbitrator to draw inferences from such a letter, which led to an unreasonable finding.

[31] In my view, a letter that relates to circumstances which predated the employees’ dismissal, had no bearing on the matter and could not have been considered by the arbitrator. Put differently: it could not have informed any finding in respect of the Respondent’s future and the appropriate remedy for the Applicants’ unfair dismissal.

The letter dated 1 November 2019

[32] The Applicant’s second attack is that the only evidence led by the Respondent regarding the continued existence of the Respondent’s business and the possibility of future work was that there was a possibility that the main contractor was moving their assembly line to Likra, but that the decision had not yet been concluded. Until the decision was made, the Respondent would continue to service the main contractor.

[33] The Respondent’s witness testified that the agreement with the main contractor will end on 31 January 2020 and that was when the Respondent would be closing. The Respondent presented a letter, dated 1 November 2019, on the last day of the arbitration proceedings, allegedly received from the main contractor with the purpose of informing the Respondent of the termination of its services.

[34] The Applicants’ case is that the author of the letter was not called to confirm the contents of the letter and that despite the contradiction in the Respondent’s interpretation of the letter and the actual wording of the letter, the arbitrator accepted the letter as sufficient proof that any future contracts with the main contractor appeared ‘bleak.’

[35] In opposition, the Respondent stated that the letter dated 1 November 2019, was submitted and accepted as evidence. In the replying affidavit, the Applicants’ averred that the said letter was submitted for the first time on the last day of the arbitration proceedings after the Respondent’s evidence-in-chief had been concluded. It was never led into evidence by the Respondent, and it was raised and recorded for the first time during the re-examination of the Respondent’s witness, therefore denying the Applicants an opportunity to raise any objections to it or to cross-examine the Respondent’s witness on it.

[36] The Applicants further submitted that their representative raised an objection about the letter, after the Respondent’s re-examination, but the arbitrator insisted that it be raised in closing argument. The arbitrator ought to have refused the submission of the letter during the re-examination of the Respondent’s witness and ought to have disregarded the letter altogether.

Analysis

Reinstatement

[37] Section 193(1) of the LRA provides for the remedies of reinstatement, re-employment, or compensation in the event that a dismissal is found to be unfair. Section 193(2) provides that the Labour Court or the arbitrator “must require the employer to reinstate or re-employ the employee unless one or more of the situations set out in paragraphs (a)-(d) of section 193(2) exists.

[38] Section 193 makes provision for a number of remedies and allows the decision maker to exercise a discretion in respect of which would be the appropriate remedy, taking into consideration all the facts.

[39] The said section reflects that reinstatement or re-employment is the primary statutory remedy in unfair dismissal disputes. It is cast in peremptory terms unless one or more of the circumstances specified in paragraphs (a)-(d) of section 193(2) exists. If none of the exceptions to reinstatement or re-employment exists, the arbitrator has no discretion regarding reinstatement or re-employment, it must be ordered[6].

[40] The converse is however also true. If a case falls under one or other of the situations listed in paragraphs (a)-(d) of section 193(2) it is not competent for the Labour Court or an arbitrator to order reinstatement or re-employment.

[41] In South African Commercial, Catering and Allied Workers Union and others v Woolworths (Pty) Ltd[7] (SACCAWU), the Constitutional Court considered the provisions of section 193(2)(c) of the LRA and held that:

‘[48] At this stage, I deem it appropriate to focus particularly on the exception provided for in s 193(2)(c), namely instances wherein reinstatement is not “reasonably practicable”.

[49] The LRA does not define the term “reasonably practicable”. However, guidance can be sought from various authoritative court decisions. The Labour Appeal Court in Xstrata held:

“The object of [section] 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the job no longer exists, or the employer is facing liquidation or relocation or the like. The term “not reasonably practicable” in [section] 193(2)(c) does not equate with the term ‘practical’, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile.”

It is thus evident that the term “not reasonably practicable” means more than mere inconvenience and requires evidence of a compelling operational burden.’

[42] The Applicants submitted that their dismissal was unfair and therefore they should have been reinstated retrospectively. There was no conclusive evidence before the arbitrator to show that it would not be reasonably practicable for the Respondent to reinstate the employees and the arbitrator’s finding to that effect, without evidence, is an unreasonable finding which has led to an unreasonable result.

[43] The Applicants’ main issue is that arbitrator’s conclusion is not one which a reasonable commissioner would have reached in view of the evidence before him, as he relied on letters that were either irrelevant or not properly introduced as evidence. Even if this Court were to accept that the arbitrator had regard to a letter that was not properly introduced as evidence, the question is whether his decision not to reinstate the employees is an unreasonable one that must be interfered with on review.

[44] In my view, it is not. The review Court is not required to consider every factor individually, consider how the arbitrator treated and dealt with each of those factors and determine whether it is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper. This Court must consider the totality of the evidence and decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence adduced[8]. The fact that the Respondent’s business was slack and that there was uncertainty about the future after Siemens took over was testified to by the Respondent’s witness and these facts were not solely introduced by the letter of 1 November 2019. Ms Metsing also testified that the Respondent was closing down in January 2020. A version of this sort was also put to Ms Maseko in cross-examination. The arbitrator’s findings in this regard are not disconnected from the evidence Ms Metsing adduced and are not based solely on the letter of 1 November 2019.

[45] Considering the dicta of the Constitutional Court in SACCAWU, I am satisfied that there was sufficient evidence before the arbitrator to support a finding that reinstatement was not reasonably practicable.

[46] Furthermore, reinstatement is not a competent remedy, even if this Court were to find that the arbitrator’s finding that reinstatement was not reasonably practicable, was reviewable.

[47] The real issue is whether the employees are entitled to retrospective reinstatement. It is common cause that the employees were employed on one-month fixed term contracts, which had already expired by the time the matter was arbitrated. During argument, I raised this issue with the Applicants’ representative as the obvious question is how the employees are to be reinstated, given the fact that they were employed on one-month fixed term contracts. Ms Mashishi for the Applicants submitted that this Court should reinstate the employees and not concern itself with the consequences of such an order. I cannot agree.

[48] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[9] (Equity Aviation), the Court specifically dealt with the meaning of ‘reinstatement’ awarded in terms of section 193 of the LRA:[10]

‘The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions... It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal. The ordinary meaning of the word “reinstate” means that the reinstatement will not run a date from after the arbitration award. Ordinarily then, if a commissioner of the CCMA order the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the commissioner decides to render the reinstatement retrospective.’

[49] The Court in Nel v Oudtshoorn Municipality and another,[11] referred with approval to the following:

‘…In Jackson v Fisher's Foils Ltd [1944] 1 All ER 421 Humpreys J quoted with approval the following dictum in Dixon (William) Ltd v Patterson 1943 SC (J) 78 as to the meaning of “reinstatement”:

“The natural and primary meaning of ‘to reinstate’ as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal”.’

[50] The Court concluded:[12]

‘From the provisions of the LRA and the cases I have cited it is clear that by reinstating a dismissed employee the employer does not purport to conclude a fresh contract of employment. The employer merely restores the position to what it was before the dismissal...’

[51] In Myers v National Commissioner of the SA Police Service and Another,[13] the Court held:

‘The Constitutional Court in Equity Aviation interpreted the word “reinstate” to mean that the employee must be put back into the same job or position that he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is aimed at placing the employee in the position he or she would have been, but for the unfair dismissal …’

[52] The ratio in Equity Aviation is clear: reinstatement means the restoration of the status quo ante. It is as if the employee was never dismissed. The employer will take the reinstated employee back into its service on the same terms and conditions of employment, as it existed at the time of the dismissal of the employee. Also, and as a necessary consequence, the original starting date of employment of the employee will remain the same and applicable, if such reinstatement is awarded.

[53] Once a dismissal is found to be procedurally and substantively unfair, reinstatement does not follow automatically and as a matter of fact. In Toyota SA Motors (Pty) Ltd v CCMA,[14] the Constitutional Court confirmed that:

‘[135] Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in section 193(1) is appropriate, having regard to the meaning of section 193(2). Considering both the provisions of section 193(1) and section 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in section 193(1) as well as the effect of the provisions of section 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of section 193(1) and (2) may lead to the Court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by section 193(2).

[136] I wish to highlight paragraph (c) of section 193(2). Paragraph (c) is to the effect that reinstatement may not be granted in a case where it would not be “reasonably practicable for the employer to re-instate or re-employ the employee”.’

[54] The Constitutional Court held that the Labour Court or an arbitrator should carefully consider the options of remedies in section 193(1) as well as the effect of the provisions of section 193(2), before deciding on an appropriate remedy. In casu, the arbitrator held that reinstatement was not reasonably practicable and thus not an appropriate remedy since the Respondent’s volume of work has dropped and it was only tidying up and finalising the work remaining.

[55] Reinstatement means the restoration of the status quo ante. The reinstated employee will be back into the service of its employer on the same terms and conditions of employment, as it existed at the time of dismissal of the employee. In casu, the employees were employed on one-month fixed term contracts, which had expired. The evidence was further that the Respondent was closing down in January 2020.

[56] In Tshongweni v Ekurhuleni Metropolitan Municipality,[15] the applicant was employed on a fixed term contract. He approached the Labour Court for an order of reinstatement of his employment

contract following his dismissal. However, the order he sought was not reinstatement in the ordinary sense but rather reinstatement into a new contract on the basis of a reasonable expectation that his contract would have been renewed for a further five-year period. At the time of his dismissal, the applicant’s fixed term contract had 9 months remaining. The Court held that:

‘If (as in the present instance) the dismissed employee was engaged in terms of a fixed-term contract, and the date on which that contract would ordinarily have expired by the effluxion of time precedes the date on which the unfair dismissal proceedings are concluded, the question arises whether it is competent for this Court to place the employee in the position that he or she occupied, and further, whether it is competent to place the employee into a position established by a new contract, on the basis that the employee expected that the initial contract would have been renewed for a further fixed term.’

[57] And further that[16]:

‘All of the authorities referred to suggest that the remedy of reinstatement is confined to reinstatement into the contract of employment in existence on the date of dismissal. In my view, if the duration of that contract was limited, and the expiry of the contract

precedes the date on which a finding of unfair dismissal is made, reinstatement is not a competent remedy. Even less can an employee

claim reinstatement into a contract that he or she asks the court to create, and nor can the employee claim that the court should

recognise that the contract would have been prematurely terminated.’

[58] In Cash Paymaster Services Northwest (Pty) Ltd v CCMA and others,[17] the respondent employee was employed on a fixed-term contract and was dismissed by the applicant. At arbitration, the commissioner found that the sanction of dismissal was inappropriate and ordered the reinstatement of the employee. The Court noted that the contract of employment was set to expire a month after the award was issued and therefore the award had the effect of extending the employee’s contract. The Court held that the commissioner had committed a gross irregularity by ordering reinstatement which had the effect of extending the contract of employment beyond the terms agreed by the parties, accordingly the Court held that the commissioner had exercised powers it did not have.

[59] The nature of the contract of employment and its terms are relevant in considering an appropriate remedy. In ordering reinstatement, this Court cannot extend the contract of employment beyond the terms agreed to between the parties and even if a reasonable expectation for renewal was established, such expectation in casu could not exceed an expectation of renewal on any other basis than that of a one-month fixed term contract.

[60] If the employees were to be reinstated, they will be reinstated to a one-month fixed term contract, which would effectively prejudice them, considering that they were awarded four months’ compensation.

[61] It seems to me that in the circumstances such as the present, it cannot be said that reinstatement is a reasonably practicable remedy and that the arbitrator’s finding to that effect is not unreasonable. In fact, reinstatement is an incompetent remedy.

[62] Considering the facts of this case, the grounds for the review raised, the applicable principles and the test to be applied in a review application, I am not persuaded that this Court should interfere with the discretion exercised by the arbitrator and the award is not to be reviewed for want of reasonableness.

Costs

[63] This Court has a discretion in making a cost order, considering the requirements of law and fairness. In my view, this is a matter where the interests of justice will be best served by making no order as to costs.

[64] In the premises I make the following order:

Order

1. The application for review is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

Applicants:

Advocate Mashishi

Instructed by:

Serena Chetty Attorneys

Third Respondent: Ms K Letsholo of Letsholo Manasoe Attorneys

[1] (2007) 28 ILJ 2405 (CC) at para 110.

[2] (2014) 35 ILJ 943 (LAC) at para 16.

[3] Gold Fields supra at paras 18 - 19.

[4] [2013] 11 BLLR 1074 (SCA) at para 13.

[5] Act 66 of 1995, as amended.

[6] A Myburgh and C Bosch, “Reviews in the Labour Court”, LexisNexis, 2016, pp 337 – 350.

[7] 2019 (3) SA 362 (CC) at paras 48 and 49.

[8] Gold Fields supra at paras 18 and 19.

[9] (2008) 29 ILJ 2507 (CC).

[10] Id at para 36.

[11] (2013) 34 ILJ 1737 (SCA) at para 8.

[12] Id at para 10.

[13] (2014) 35 ILJ 1340 (LC) at para 14.

[14] (2016) 37 ILJ 313 (CC) at paras 134 – 136.

[15] [2010] 10 BLLR 1105 (LC) at para 22.

[16] Id at para 26.

[17] [2009] 5 BLLR 415 (LC).