SAMWU obo Bookholoana v South African Local Government Bargaining Council and Others (JR 115/18) [2020] ZALCJHB 248 (27 November 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 115/18

In the matter between:

SAMWU obo M.Z. BOOKHOLOANA Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

THABISO DAVID MATHEE N.O.

Second Respondent

EKURHULENI METROPOLITAN MUNICIPALITY Third Respondent

Heard:

12 August 2020 (via Microsoft Teams)

Delivered: 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 14h00 on 27 November 2020

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In this opposed application, the applicant (SAMWU), acting on behalf of its member Mr MZ Bookholoana (Bookholoana), seeks an order reviewing and setting aside the arbitration award issued by the second respondent (Arbitrator) acting under the auspices of the first respondent, the South African Local Government Bargaining Council (SALGBC). The Arbitrator had found that the dismissal of Bookholoana by the third respondent (Municipality) on account of misconduct was fair.

Background:

[2] Bookholoana commenced his employment in the Municipality’s Ekurhuleni Metro Police Department (EMPD) in 2008. At the time of his dismissal on 20 September 2020 he occupied the position of Accident Reconstructor. He was dismissed on allegations of misconduct emanating from a robbery and hijacking incident which had occurred in the early hours of 13 November 2015 in or near Delmas[1]. Aggrieved with his dismissal, Bookholoana as assisted by SAMWU referred a dismissal dispute to the SALGBC. When attempts at conciliation failed, the dispute came before the Arbitrator for determination.

The arbitration proceedings:

[3] Bookholoana was dismissed on account of three main allegations of misconduct, viz. gross dishonesty, putting the name of the employer into disrepute, and misuse of Council property.

[4] The allegations against Bookholoana came about following an incident that took place in the early morning of 13 November 2015 involving the hijacking of a RAM Courier company truck. The said truck was traveling on the N12 freeway around Crystal Park near Delmas with a back-up vehicle (Monitoring vehicle) belonging to RAM following it. The driver of the RAM truck Mr Khaulane Kenneth Mkhonza was with an assistant driver when they were overtaken by a marked EMPD vehicle (A Ford Ranger), with its police lights on. Mkhonza was instructed to pull off the road and to stop the truck.

[5] As Mkhonza pulled off the road and stopped as instructed, three other private vehicles approached the stationary truck, and the occupants from one of the vehicle approached him pointing a firearm at him, and instructed him and his co-driver to get out of the truck. Mkhonza and his co-driver were then forced into one of the vehicle and some of the occupants in the other vehicle had

then taken over the Ram truck and drove off in it. Mkhonza and his co-driver were taken away in the other vehicle and dropped off

somewhere at a dumping site.

[6] The monitoring vehicle which was following the truck had at some point stopped to find out what was going on. A shoot-out between the two drivers in the monitoring vehicle and the hijackers had ensued, resulting in injuries to one of the hijackers who was still in one of the other three vehicles. The two drivers who were following in the monitoring vehicle had then called for help from RAM head office, resulting in members of the South African Police Services (SAPS) arriving promptly at the scene.

[7] Members of the SAPS had upon receiving information, pursued the RAM truck and caught up with it on the same N12 road in Delmas, and had managed to stop it in Benoni. A shoot-out between the hijackers and members of the SAPS had also ensued, resulting in the hijackers being apprehended after attempting to flee, and with one of the hijackers being fatally wounded.

[8] Because of prevalent incidents of hijackings on the N12 road, the EMPD had established a Cluster Task team, comprising also of members of the SAPS. The purpose of the Task team was to also investigate and deal with serious crimes in and around Benoni. One of the Task Team members, Superintendent Pamela Buthelezi from Benoni was called upon by Captain Anne van der Merwe to go to the crime scene in Crystal Park to give back-up to members of the SAPS, and to conduct investigations. Her testimony before the Arbitrator was that;

8.1 Upon her arrival at the scene, she had found one of the suspected hijackers who was injured following the shoot-out with the members of the SAPS still at the scene and under arrest. Two of the SAPS members were also wounded.

8.2 After being briefed by the members of the SAPS who were the first on scene, and upon further interrogating the suspect that was apprehended, she had recognised the latter as a friend of Bookholoana, as she had seen the two of them together on more than one occasion in a EMPD vehicle driven by Bookholoana in Benoni. The suspect had however denied knowing Bookholoana.

8.3 Buthelezi had also questioned with Mkhonza, the driver of the hijacked RAM truck over the telephone. Mkhonza was found by another police officer, after being left at the dump site by the hijackers who had stated that prior to the hijacking, a marked EMPD vehicle (Ford Ranger), which was driven by a short, light skinned and a soft-spoken individual, had flagged him down, causing him to get off the road and to stop. Mkhonza had also provided Buthelezi with the registration details of the EMPD vehicle. The EMPD officer driving the Ford Ranger as described by Mkhonza according to Buthelezi fitted the description of Bookholoana.

8.4 While Buthelezi was still busy with the interrogations of the suspects, she had also realised that one of the suspects was familiar to her, as he was a member of the Directorate for Priority Crime Investigations (the Hawks) who was on suspension for allegations related to truck hijackings in Gauteng Province.

8.5 This suspect upon being questioned had confessed that he had paid the EMPD vehicle driver R5000 (Five Thousand Rand) in advanced for the purposes of interception the truck in order for the hijacking to be executed. The suspect however did not identify the driver of the EMPD by name.

8.6 As part of the investigations, a tracking of all the Ford Rangers belonging to the EMPD was done on what is known as the AVL Tool. The results from the system had excluded all other vehicles but for the Ford Ranger which had been assigned to Bookholoana. That vehicle was then traced back to the scene of the crime in Delmas, and was observed to have travelled at high speed from Springs to the scene of the crime before the hijacking took place.

8.7 Investigations having been concluded and criminal charges having been laid, a disciplinary enquiry was then convened where Bookholoana was charged. On the date of disciplinary enquiry, and whilst waiting for the enquiry to commence, Buthelezi had by coincidence, met Mkhonza who was also due to testify at the enquiry. Upon Mkhonza seeing Bookholoana who was in the company of his trade union representative, he had identified him as the driver of the marked EMPD Ford Ranger which had flagged him down immediately prior to the hijacking incident.

8.8 Buthelezi further testified that he had again met Mkhonza at the Gauteng High Court where criminal proceedings involving the hijackers and Bookholoana, who had informed her that he had since left the service of RAM Courier Company, after he had received death threats.

8.9 Buthelezi had conceded that Bookholoana was placed at the scene of the crime mainly through AVL Tool, which had traced the vehicle allocated to him at both scenes of the crime. She denied that Bookholoana was targeted for ulterior motives, and further testified that his involvement in the hijacking incident was also investigated by members of the Hawks, and not solely by members of the EMPD.

[9] Mr Eugene van Niekerk (van Niekerk), the National Business Development Manager of C-Track Fleet Management company, with 20 years’ experience in the industry also testified before the Arbitrator. The company has a contract of service with the Municipality to supply all its vehicles with tracker devices. He testified in regards to the geographic location of the Ford Ranger assigned to Bookholoana at the time that the hijacking took place.

9.1 He testified in regard to a what is referred to as C Track Vehicle Replay, which is a historical tracking report of the movement of a marked EMPD Ford Ranger Double-Cab with the registration number DP 13 RD GP during the period from midnight on 1 November 2015 to midnight on 13 November 2015.

9.2 The vehicle allocated to Bookholoana like all other vehicles of the Municipality were fitted with a C-Track, which is an electronic tracking devices, which recorded the exact geographic position and movements of the vehicles at all times, from the moment that the vehicle’s engines were started and up to when they were switched off.

9.3 The tracking device records the GPS coordinates of the vehicles and can further determine the velocity and the direction of the vehicle from those satellite coordinates. The installed device is programmed to record the geographic location of a specific vehicle on a two minutes’ interval.

9.4 The information from the tracking device was then transmitted through a sim-card installed in the device and via the mobile phone network, and stored into a computer local hard-drive. From this stored data, the tracker company could then generate a report in relation to the geographic movements of the specific vehicle. According to van Niekerk, the generated report indicated

that;

9.4.1 At 02:18 in the morning of 13 November 2015, the engine of Ford Ranger allocated to Bookholoana was switched on at Exit 3, Hobook Street, Pollok Park near Springs. At about 02:20 the installed device displayed a ‘GPS unlocked’ status at about the same location. This meant that the installed device was unable to transmit or receive data from the satellite system about the movements of the vehicle.

9.4.2 The vehicle remained on the GPS unlocked status until its engine was switched off at around 03:08. At about 03:11 the engine was ignited again and the installed device remained on GPS unlocked status. The engine of the vehicle was switched off again at about 03:12. At about 05:53, the device appeared to be functioning normally and the vehicles position and velocity could from that point be recorded.

9.4.3 The device had between the period 1 November 2017 and 13 November 2017, recorded the vehicle’s movement for a distance amounting to approximately 2700 kilometres, and had functioned properly until 02:22 on 13 November 2017, when it could not be monitored for a period of one hour.

9.5 On 14 November 2017, the tracking company undertook an inspection to determine whether the installed device was tampered with. No evidence could be found in that regard. Further inspections that were conducted in the following months to determine whether the installed device had malfunctioned had also produced negative results.

9.6 According to van Niekerk, in his experience and knowledge of these devices, the malfunctions of the nature as had occurred in the vehicle allocated to Bookholoana were usually caused by the use of jamming technology and devices, to block the installed device from transmitting or receiving a frequency. These jamming devices were effective in preventing other electronic devices such as

mobile phones or any other electronic equipment from functioning properly.

9.7 Van Niekerk could however not state definitely that a jamming device was used in this instance at the time that the hijacking incident took place, since there was no evidence of detectable or physical tampering with the tracking device. He however contended that there must have been something that had interfered with the normal function of the device.

9.8 Under cross-examination, van Niekerk stated that the Municipality had a fleet of approximately 4500 vehicles, and that there were instances where the installed devices would have malfunctioned. These problems were however speedily addressed and repaired by his company.

9.9 The tracking system required at least four satellites out of the 24 global satellites in order to establish what is referred to as the ‘Three Dimensional Lock’, which ensures that the installed device can pinpoint the accurate location of a particular vehicle within a 10 metres radius.

9.10 In circumstances where the installed device could not lock onto at least four satellites, then it would go into the ‘unlocked status’, and may in those circumstances, provide an inaccurate geographic location of the vehicle.

9.11 In circumstances where there was no cell phone network coverage, and the recorded data could not be transmitted, the data would be stored on the installed device until such that time that a secure connection was established, to enable the data to be transmitted.

[10] Bookholoana’s evidence before the Arbitrator was that:

10.1. On 13 November 2015 he was scheduled to be on stand-by duty. He however had problems with a geyser at his house and had request leave from his supervisor to arrive late for duty as he had to attend to the repair of the geyser.

10.2. As part of his duties on 13 November 2015, he was allocated a Ford Ranger with the registration number GP 13 RD GP, which was in his possession at the time as he was on standby duty.

10.3. In the morning he used the vehicle drop off his wife at her workplace. He then proceeded from his home in Benoni to go to Tembisa to meet a person who was to repair his geyser. After spending time in Tembisa he then proceeded to go back home to Benoni. On his way home he went to buy food, and then decided to visit his friend at Lindelani Squatter Camp.

10.4. At about 17h00 and after spending time with his friend he then decided to go home. As he was about to leave, he was stopped by a police vehicle and requested to step out of his vehicle, which was then searched. Two firearms, one a work issued and the other a licenced personal firearm were found in the vehicle. Other items found in his vehicle included two cell phones, a camera and two-way radio.

10.5. He was subsequently taken to his house where a search was conducted and was thereafter detained at Benoni Police Station. On 16 November 2015, he was then criminally charged with attempted murder, kidnapping, robbery and hijacking. These charges have since been dropped by the National Prosecuting Authority in May 2016.

10.6. Under cross examination he testified that he had two firearms in his possession because he had recently moved into his residence and he had not considered it safe to leave them behind particularly since his safe had not been mounted to the wall as per statutory prescripts. He had further denied that he was in any way involved in the hijacking incident.

The arbitration award:

[11] To the extent that the Court may make sense of the analysis and reasoning of the Arbitrator, the dismissal of Bookholoane was deemed to be substantially fair taking into account the following;

11.1 The uncontroverted evidence of Buthelezi that Bookholoane was amongst the persons who executed the hijacking of the Ram Courier truck.

11.2 The evidence presented on behalf of the Municipality by its witnesses which was consistent, and was not denied or refuted by Bookholoane, whilst the latter’s evidence was ‘fraught, frivolous and far-fetched’ and not consistent.

11.3 The vehicle assigned to Bookholoane was through the AVL search tool, placed at the scene of the hijacking.

Grounds of review:

[12] The review and setting aside of the arbitration is sought on a number of grounds including that;

12.1Arbitrator misconstrued the evidential material before him and in particular, the evidence that purportedly placed Bookholoane at the crime scene. The arbitration award and Arbitrator’s reasoning was confusing, and that no inferences could be drawn on a balance of probabilities, as to whether Bookholoana had committed the alleged misconduct in question to justify his dismissal.

12.2At the arbitration proceedings, no evidence of the AVL Tool was adduced to prove that Bookholoana was linked to the crime in question. In this regard, it was submitted that since van Niekerk’s evidence was that the tracking device was not working at some stage, it was thus unable to locate the vehicle at the time of the incident.

12.3Since there was no evidence that the device was tampered with, there was no basis for reliance to be placed on the AVL Tool report, as the only evidence that emerged was speculation and suspicion that a jamming device was utilised.

12.4The evidence of Buthelezi was based on hearsay as Mkhonza was not called upon to confirm it;

12.5No items were found in Bookholoane’s possession linking him to any involvement in commission of the crime, and there was therefore no basis to link him to the hijacking incident, and that his dismissal ought to have found to be substantively unfair.

The Legal framework and evaluation:

[13] The test on review is trite. The threshold is fairly high because the applicant for a review must show that the outcome reached by the arbitrator was not one which could reasonably be reached on the evidence and other material placed before the arbitrator[2]. The review test was summarised in Herholdt v Nedbank Limited[3] as follows;

“In summary, the position regarding the review of CCMA awards is this : A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145 (2) (a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145 (2) (a) (ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.”

[14] It was submitted on behalf of Bookholoana that the Arbitrator’s award is confusing. To a large extent, I agree. The award is hardly a model of clarity, and it needs to be stated that it was indeed at times difficult to make sense or follow the sequence of thought adopted by the Arbitrator. Be that as it may, the question that arises is whether the award is reviewable, in the light of the stringent approach to be adopted by the reviewing court, which will ensure that awards will not be lightly interfered with, as the emphasis is in the result rather than a meticulous analysis of the reasons[4]. In Ellerine Holdings Ltd v CCMA & others, [5] a similar point was made where it was held’

“[A] court must be careful to parse an award by [an arbitrator] in the same fashion as one would an elegant judgment of the Supreme Court of Appeal or the Constitutional Court. These awards must be read for what they are, awards made by arbitrators who are not judges. When all of the evidence is taken into account, when there is no irregularity of a material kind in that evidence was ignored, or improperly rejected, or where there was not a full opportunity for an examination of all aspects of the case, then there is no gross irregularity...”

[15] In opposing the review application, whilst it was readily conceded on behalf of the Municipality that there was no direct evidence linking Bookholoana to the commission of the offence, it was correctly pointed out that what was before the Arbitrator was circumstantial evidence, to demonstrate whether the Municipality had discharged the onus placed on it that Bookholoana had committed misconduct.

[16] It has been held that circumstantial evidence is an appropriate and “powerful tool in proving the existence of an issue in

dispute”.[6] In S v Reddy and Others[7] it was held that;

“In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piecemeal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. “The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such ‘that they exclude every reasonable inference from them save the one sought to be drawn’…”

[17] In assessing circumstantial evidence, and flowing from the authorities relied upon in Komape v Spoornet (Pty) Ltd and Others[8], it is required of the arbitrator to always consider the cumulative effect of all the items of the evidence before him or her, look at the totality of the evidence and weigh it on a balance of probabilities. Thus, the inference must be drawn through a careful

survey of the connection between the facts and their relationship to the offence alleged to have been committed by the employee, with care being taken to ensure that a distinction is maintained between permissible inference and a mere conjuncture or speculation.

[18] Applying the above principles to the facts of this case, and notwithstanding the limitations in the analysis of the evidence and the reasoning of the Arbitrator, it is my view that the conclusions reached in the arbitration award nonetheless falls within a band of reasonableness for the following reasons;

18.1 Despite Buthelezi’s evidence being viewed by Bookholoana as being hearsay, her evidence however in regard to having identified one of the suspects who was apprehended at the first scene of the crime as Bookholoana’s friend as she had seen them together cannot be deemed to be hearsay.

18.2Even in the absence of evidence from Mkhonza to corroborate Buthelezi’s version, there is a basis for drawing inferences from the totality of the evidence presented, which connects the facts and their relationship to the offence alleged to have been committed by Bookholoana.

18.3It was submitted on behalf of Bookholoana that the AVL Tool relied upon by the Municipality did not place the vehicle allocated to him at the time to the scene of the crime. The above proposition is however unsustainable in that it was common cause that the EMPD Ford Ranger suspected to have been involved in the initial stages of the hijacking incident was allocated to Bookholoana during the period in question.

18.4The hijacking incident in question took place between 02h00 – 03h00 in the morning of 13 November 2015. The only basis of attacking the evidence of van Niekerk in regards to the tracking report was that it could not be established as to how the tracking device was jammed between the period in question. Van Niekerk’s testimony was nonetheless that the jamming of the tracking device could have happened in a number of ways. What van Niekerk had however excluded was the possibility that the tracking device had malfunctioned, and this was supported by his evidence that an examination of the device was done immediately after the incident and subsequent thereto.

18.5To the extent that van Niekerk could not establish how the jamming was effected, from the tracking report, it was not placed in dispute that the vehicle allocated to Bookholoana was recorded as having been switched on at 02h18 on the date in question. At some point the vehicle system had indicated GPS unlocked status, meaning in essence that the movements of the vehicle could not be monitored from 02h24 when its last position in Springs was recorded.

18.6The tracker device had remained on the GPS unlocked status until its engine was switched off at around 03:08. At about 03:11 the engine was ignited again and the installed device remained on GPS unlocked status. The engine of the vehicle was switched off again at about 03:12. During that time between 02h00 and 03h00, the hijacking incident had taken place.

18.7At about 05:53, the device appeared to be functioning normally and the vehicle’s position and velocity could from that point be recorded. On van Niekerk’s uncontested evidence, the tracking device had up until 02h22 on 13 November 2017, functioned properly.

18.8Bookholoana’s evidence on the other hand was merely to narrate the events of 13 November 2015 from 07h30 when he woke up to drop off his wife at her place of work using the vehicle in question, and to deny any involvement in the hijacking that took place between 02h00 and 03h00.

18.9The undisputed evidence of van Niekerk in reliance on the AVL Tool/Report on the other hand indicated that the vehicle in question was in the vicinity of the hijacking incident at the time in question.

18.10 Other than the fact that van Niekerk had readily conceded that he could not with certainty explain how the tracking device was jammed for a whole hour during which coincidentally the hijacking took place, the most probable inference, which is consistent with all the proved facts, inclusive of the fact that the tracking device had not malfunctioned until the timing of the hijacking incident, is that indeed Bookholoana was involved in the hijacking incident whilst using the Municipality’s vehicle.

18.11 The above conclusions therefore meant that the evidentiary burden shifted to Bookholoana to provide a reasonable explanation for his conduct. Bookholoana however failed to provide a reasonable and credible explanation, in respect of the events that took place, other than to make bare denials and to launch a lame attack on the reliability of the AVL tool, and poking holes on the fact that there was no evidence to suggest how the tracking was jammed.

18.12 Whilst the AVL Tool demonstrated that the vehicle allocated to Bookholoana at the time of the incident was either in motion or near the scene of the crime, or at most, that its tracker system was disabled, he could not proffer any explanation as to how that could have happened when the vehicle was clearly under his control and care.

18.13 In the light of the above conclusions, it follows that the permissible inferences drawn are not mere conjuncture or speculation, as they are supported by the irrefutable evidence drawn from the AVL Tool/Report which contrary to the submissions made on behalf of Bookholoana, was properly placed before the Arbitrator and duly considered.

18.14 In the end, proof on a balance of probabilities that Bookholoana had committed the misconduct in question was discharged. The misconduct in question, given Bookholoana’s position as a law enforcement officer was egregious in the extreme. It follows that a sanction of dismissal was indeed appropriate in the circumstances.

[19] In the light of the above conclusions, it is therefore of little relevance whether the National Prosecuting Authority had withdrawn the criminal charges against Bookholoana, it being trite that internal disciplinary proceedings have no bearing on pending or withdrawn criminal charges against an employee and vice-versa, in view of the differences in the standard of proof required in either proceedings.

[20] In the end, I am satisfied that the outcome reached by the Arbitrator falls within a band of reasonableness based on the evidence and other material before him. The alleged defects in the Arbitrator’s analysis and manner of expressing his reasoning processes cannot be of such a nature or sufficient for his award to be set aside, nor are the effect of the alleged shortcomings sufficient to render the outcome arrived at unreasonable. It follows that the review application should fail.

[21] I have further had regard to the requirements of law and fairness, and I am of the view that a costs order is not appropriate in the case.

[22] Accordingly, the following order is made;

Order:

1. The Applicant’s application to review and set aside the arbitration award issued by the Second Respondent is dismissed.

2. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants:

Adv. Z. Feni, Instructed by Qhali Attorneys

For the Third Respondent:

A.F. van Wyk of A.F. van Wyk Attorneys

[1] On the 13th of November 2015 at about 13/11/2015, 19h40 [the] above mentioned employee allegedly failed to comply with Annexure A –

Standard of Conduct – of the Disciplinary Procedure and Code Collective Agreement, in contravening Clause 1, sub-clause(s) 1.1 and/or 1.2.5 and/or 1.2.9 of said Standard of Conduct by: 1.1 Employees are Expected to comply with every respect with the conditions of employment and collective agreements and any related regulations, order, policy and practice and to refrain from any conduct which give just cause for discipline. And/or 1.2.3 Perform their tasks and job responsibilities diligently, carefully and to the best of their ability. And/or 1.2.5 Conduct themselves with honesty and integrity. And/or 1.2.9 Refrain from any rude, abuse, insolvent, provocative, intimidatory (sic) or aggressive behaviour to fellow employee or member of the public.

[1] On the 13th of November 2015 at about 13/11/2015, 19h40 [the] above mentioned employee allegedly failed to comply with Annexure A –

Standard of Conduct – of the Disciplinary Procedure and Code Collective Agreement, in contravening Clause 1, sub-clause(s) 1.1 and/or 1.2.5 and/or 1.2.9 of said Standard of Conduct by:

1.1 Employees are Expected to comply with every respect with the conditions of employment and collective agreements and any related regulations, order, policy and practice and to refrain from any conduct which give just cause for discipline.

And/or

1.2.3 Perform their tasks and job responsibilities diligently, carefully and to the best of their ability.

1.2.5 Conduct themselves with honesty and integrity.

1.2.9 Refrain from any rude, abuse, insolvent, provocative, intimidatory (sic) or aggressive behaviour to fellow employee or member of the public.

[2] Sidumo & Another v Rustenburg Platinum Mines 2008 (2) SA 24 (CC) at paras [105] – [110])

[3] 2013 (6) SA 224 (SCA) at para [25]

[4] See Fidelity Cash Management Services v CCMA & Others (2008) 29 ILJ 964 (LAC) at para [100]);

[5] [2008] JOL 2287 (LAC) p 13

[6] Distell Limited v CCMA & others (2014) 35 ILJ 2176 (LC)

[7] 1996 (2) SACR

[8] [2008] ZALC 72; (2008) 29 ILJ 2967 (LC) at paras 26 - 31