SAMWU obo Sethunya v Maluti-A-Phofung Local Municipality and Others (JR 708/2020) [2023] ZALCJHB 61 (15 March 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 708/2020

In the matter between:

SAMWU obo MAMOKETE SETHUNYA

Applicant

And

MALUTI-A-PHOFUNG LOCAL MUNICIPALITY

First Respondent

GERHARD VAN DER BERG N.O

Second Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

Third Respondent

Heard: 8 February 2023

Delivered: 15 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 15 March 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award dated 7 March 2020 and issued under case number FSD091912 wherein the Second Respondent (arbitrator) found that Ms Sethunya’s dismissal was substantively and procedurally fair and her case was dismissed.

[2] The First Respondent (Respondent or Municipality) opposed the application for review.

[3] The review application was filed outside of the prescribed 6-week period and for this, the Applicant applied for condonation, which is not opposed by the Respondent. Having considered the application for

condonation and the applicable principles, I am inclined to grant condonation as applied for.

The evidence adduced

[4] Ms Sethunya was employed by the Respondent as an intern in September 2014 and on her version, she was subsequently promoted to human resource administrator in January 2018. She was dismissed on 28 August 2018 after four charges of misconduct were levelled against her and she was found guilty. The Applicant referred an unfair dismissal dispute to the Third Respondent (SALGBC). An arbitration award was issued on 7 March 2020 and Ms Sethunya’s dismissal was found to be fair. The said arbitration award is the subject of this review application.

[5] In order to assess the arbitrator’s findings and the grounds for review raised by the Applicant, it is necessary to consider the evidence adduced at the arbitration proceedings, as well as the

charges that Ms Sethunya was found guilty of and dismissed for.

[6] The charges Ms Sethunya was found guilty of and dismissed for were as follows:

‘Charge 1: Fraud

Serious misconduct in that on or about the 1st of September 2018 at or near the Maluti-A-Phofung Local Municipality main building, you together with Mr T K Khoabane unlawfully and intentionally defrauded the Municipality of money by increasing your salaries for the month of September 2018.

Charge 2: Theft

Serious misconduct in that on or about the 1st of September 2018 at or near the Maluti-A-Phofung Local Municipality main building, you together with Mr T K Khoabane unlawfully and intentionally electronically manipulated the pay day system and stole R 20 372,66 being the difference between your actual salary and the fraudulent amount. This was done by yourself without any authorization.

Charge 3: Dishonesty

Serious misconduct in that on or about the 1st of September 2018 at or near the Maluti-A-Phofung Local Municipality main building, you together with Mr T K Khoabane intentionally breached your fiduciary duties towards your employer by abusing your position of power and trust by electronically manipulating the pay day system to increase your salaries by 259.58% then deceitfully restoring your correct salary after pay day.

Charge 4: Abuse of power

Serious misconduct in that on or about the 1st of September 2018 at or near the Maluti-A-Phofung Local Municipality main building, you together with Mr T K Khoabane unlawfully and intentionally abused your positions of power by increasing your salaries by 259%. This in gross violation of the Municipal Finance Management Act 56 of 2003, as amended.’

The Respondent’s case

[7] The Respondent’s witness, Mr Shale, testified that he is employed as an accountant: expenditure and payroll and he referred to the payslips of Ms Sethunya. According to her payslip of 31 August

2018, she was employed as an assistant general worker, earning R 7 848,33 per month. The payslip of Ms Sethunya for September

2018 indicated that her occupation was that of human resource administrator, earning a monthly salary of R 28 220,99. The

payslip for October 2018 indicated that Ms Sethunya was employed as an assistant general worker, earning R 7 848,33 per month. Mr Shale testified that it was impossible for an employee to hold two different positions within the space of three months, being a lower position, going to a higher position and back to the lower position. This indicated some irregularity.

[8] Mr Shale explained that normally a recruitment and selection process is followed when employees are appointed. He testified about the Respondent’s payroll system, ‘payday payroll’, and

explained that certain employees in specific roles are assigned a password through which they have access to the payroll system. It is possible that the information on the payroll can be manipulated and information can be changed. If such is done by a person in the human resources department, it will constitute gross misconduct which would warrant dismissal.

[9] A monthly audit trial is done on the payroll to check for discrepancies and to ensure that what is on the payroll, is indeed correct. The audit is done to check whether the previous month’s salaries were correctly paid. It was apparent from the audit trial done on the payroll that Ms Sethunya and Mr Khoabane both earned R 7 843,33 in August 2018 and in September 2018 their salaries increased by 259,5% to R 28 220,99. On the payroll system, the employment category code for Ms Sethunya as assistant general worker was changed to the code of human resource administrator and this change was effected by Mr Khoabane. The evidence was that the change in category code was made a few times during September 2018 –

the change was made, then reversed and then made again. There was a back-and-forth changing of the category code, remuneration and benefits of Ms Sethunya and Mr Khoabane during September 2018 and all these changes were effected by Mr Khoabane, using the computer of one Thabo M or Ms Sethunya.

[10] Ms Sethunya was paid the remuneration of human resource administrator in September 2018 and on 1 October 2018, after the pay date, Mr Khoabane changed the category code back to assistant general worker, which was regarded as a ‘cover-up’.

[11] The Respondent’s case was that Ms Sethunya and Mr Khoabane acted with a common purpose to defraud the Municipality, at all material times they were acting in concert together, although Mr Khoabane was the one who used his password to make the changes, he made the changes in respect of both of them and the changes so made would benefit both of them and as such, they acted with a common purpose, also as her computer was used to make the changes.

[12] In cross-examination, irrelevant questions were posed to Mr Shale and his evidence was not disputed in any respect. Mr Shale conceded that Ms Sethunya did not use her password to effect the changes to the payroll system.

The Applicant’s case

[13] Ms Sethunya testified that she was employed as a human resource administrator. She was appointed in this position on 30 November 2017 by the acting municipal manager, Mr Nyembe. She accepted the appointment in November 2017, which took effect on 1 January 2018.

[14] Ms Sethunya testified that she was not paid the salary of a human resource administrator with effect from January 2018 and she was only paid as such in September 2018. She did not know why her position and salary were reversed to that of assistant general worker in October 2018 and she wrote a letter to the municipal manager, the director and the senior payroll administrator to enquire as to why her salary was reduced in October 2018. She did not receive a response, but

instead, she was suspended.

[15] Ms Sethunya explained that whilst she was employed, she was allocated a password and a computer. Employees did not share passwords, but they shared computers and the ‘owner’ of the computer would give another employee access to use his or her computer, but using their own password. She conceded that she gave Mr Khoabane access to use her computer, but she did not know what he was doing on her computer and she did not know about the changes he had made to the payroll system. She was only authorised to capture leave on the system and she was not able to adjust any salary.

[16] Ms Sethunya testified that she did not attend an interview for the position of human resource administrator but explained that she received the appointment letter by virtue of her being absorbed into the municipality as a human resource administrator.

[17] In cross-examination, it was put to Ms Sethumya that the appointment letter she provided was indeed forged as the letter indicated ‘recommended/not recommended’ and it was not indicated on the letter whether her appointment as human resource administrator was indeed recommended and the signatures on the documents did not appear to be the same. It was put to her that the letter was an attempt to cover their tracks and that the mistakes that appeared from the letter, are glaring. Ms Sethunya insisted that she signed the letter in the office and in the presence of Mr Nyembe.

[18] As to the reasons why she waited from January until September 2018 for a substantial increase in her remuneration to be implemented, Ms Sethunya testified that in the municipality things took a long time before they are implemented, so she had to wait and see if anything would happen, further Mr Nyembe said that it would be implemented and her union representative said that he would lodge a grievance.

[19] It was put to Ms Sethunya that the only reason why she earned R 28 000 in September 2018 was because she, together with Mr Khoabane, manipulated the payday payroll system to be paid the increase in September 2018, which was reversed in October 2018, with the hope that it would not be discovered by the Respondent. Ms Sethunya insisted that she was entitled to the amount she was paid, but could not adequately explain, if she was indeed entitled to it, why she waited 9 months to be paid what she believed she was entitled to. It was put to her that she and Mr Khoabane adjusted their salaries for September 2018, as they believed that they were entitled to it. Ms Sethunya disputed that she had adjusted her salary or that she had colluded with Mr Khoabane to do so, this notwithstanding the fact that she gave him access to her computer.

[20] It was put to Ms Sethunya that it was bizarre to claim that she did not know what Mr Khoabane was doing when she gave him access to her computer and whilst having such access, he changed her level and remuneration, using her employee code number. She could not explain why Mr Khoabane would suddenly intervene in September 2018 to adjust her salary to a level she claims she was entitled to since January 2018. It was put to her that she knew all along what was going on, as she gave Mr Khoabane access to her computer and on the very same date he was given access, he increased her salary.

[21] It was put to Ms Sethunya that she acted with Mr Khoabane, with a common purpose to defraud the Municipality and that she benefitted from this conduct.

Analysis of the arbitrator’s findings and the grounds for review

The test on review

[22] I have to deal with the grounds for review within the context of the test this Court must apply 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 that 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.

[23] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[2] 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.’

[24] The applicant in a review application is not to take a microscopic view and dissect every finding of the arbitrator but has to show that holistically, the award is unreasonable or that the arbitrator’s findings led to an unreasonable outcome.

[25] In considering the Applicant’s grounds for review, this Court should not lose sight of the limited scope within which a review application is to be decided.

[26] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then 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 then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make.[3]

[27] It is within the context of this test that I must decide this application for review.

The arbitrator’s findings and the grounds for review

[28] The arbitrator had to determine whether Ms Sethunya’s dismissal was substantively fair and he ultimately found that the Respondent discharged the onus to show that her dismissal was indeed fair.

[29] In deciding the issue, the arbitrator recorded that the knowledge, validity and fairness and consistent application of the rules and procedures were not in dispute, but that the dispute related to Ms Sethunya’s contravention of the rules and procedures and whether the dismissal was an appropriate sanction. The arbitrator comprehensively dealt with the two issues he had to consider.

[30] Firstly he considered whether Ms Sethunya contravened the rule and the arbitrator dealt extensively with the submissions made by the respective parties on the doctrine of common purpose. The arbitrator found that the Respondent’s witness was reliable and he found it probable that Ms Sethunya was indeed involved in the manipulation of her salary for September 2018 and that it was done with her knowledge and consensus. He found that, on a balance of probabilities, she indeed contravened the rules and procedures with Mr Khoabane in September 2018.

[31] Secondly, the arbitrator considered whether dismissal was an appropriate sanction and he recorded the arguments submitted by the parties. The arbitrator found that trust is one of the fundamentals of an employment relationship and a breach of trust, in the form of conduct involving dishonesty, goes to the heart of the employment relationship and is destructive of it and as such, warrants dismissal. Ms Sethunya showed no remorse and he ultimately found that the misconduct Ms Sethunya was found guilty of, warranted dismissal due to the seriousness thereof and that dismissal was an appropriate sanction.

[32] The gist of the grounds for review raised by the Applicant is that the arbitrator failed to consider the evidence, failed to consider the requirements of the common purpose doctrine and failed to embark on a balanced assessment of the material facts. In her supplementary affidavit, the Applicant stated that the arbitrator failed to consider the evidence in that he ignored the evidence of Ms Sethunya that she believed that she was paid in accordance with her appointment letter and that she made enquiries about the reduction of her salary after it was increased, which is indicative of the fact that she did not act fraudulently or dishonestly.

[33] In the heads of argument, the Applicant submitted that the crux of this application lies at paragraphs 45 and 46 of the arbitrator’s award as there was no evidence presented which could reasonably justify the conclusion that Ms Sethunya and Mr Khoabane conspired to commit fraud and theft. The Applicant submitted that the arbitrator preferred the Respondent’s version over the Applicant’s version, based on the credibility of the Respondent’s witness, but the problem with this approach is that the witness testified about factual events and the conduct of Mr Khoabane which were never

in dispute to begin with.

[34] In my view, there is no merit in the Applicant’s grounds for review.

[35] The first difficulty in the Applicant’s case relates to the averment that the arbitrator preferred the Respondent’s version over the Applicant’s version, based on the credibility of the Respondent’s witness. It is evident that the arbitrator accepted the Respondent’s version, not only on the basis that its witness was credible, but also because the version was more probable.

[36] The Applicant’s case is that the Respondent’s witness testified about factual events and the conduct of Mr Khoabane which were never in dispute to begin with. Ms Sethunya’s evidence was that she had no knowledge that Mr Khoabane effected the changes in September 2018 and her explanation as to why she accepted the increased payment, was that she was promoted by the acting municipal manager. The Applicant submitted that the Respondent’s failure to call the acting municipal manager is fatal to the Municipality’s case and the Respondent’s witness could not refute Ms Sethunya’s contention that she, on various occasions between January and September 2018, questioned why her increase was not effected and that she was assured that the issue would be resolved internally. The Respondent’s witness could also not dispute Ms Sethunya’s version that she questioned the decrease in her salary in October 2018. These averments are without merit, as I will illustrate infra.

Evidence and cross-examination

[37] After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is to inter alia reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.

[38] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him.

[39] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[4] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[5] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[6]

[40] A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for

cross-examination[7]. A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.

[41] In Masilela v Leonard Dingler (Pty) Ltd[8] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:

‘The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit. In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”’

[42] In casu, it is evident from the transcript that in cross-examination irrelevant questions were posed to Mr Shale and his evidence was not disputed in any respect. The only relevant aspect, which Mr Shale conceded, was that Ms Sethunya did not use her password to effect the changes to the payroll system. It was however never the Municipality’s case that Ms Sethunya had used her password to effect the changes, the case throughout was that she, together with Mr Khoabane, acted to commit the misconduct which she was charged and dismissed for.

[43] The Respondent’s version, that Ms Sethunya and Mr Khoabane acted with a common purpose to defraud the Municipality, that at all material times they were acting in concert together, that although Mr Khoabane was the one who used his password to make the changes, he made the changes in respect of both of them and the changes so made would benefit both of them and as such, they acted with a common purpose and that her computer was used to make the changes, was never disputed or challenged in the cross-examination of Mr Shale.

[44] The Applicant, in cross-examination was duty bound to put her defence or version on each and every aspect she wishes to place in issue to the Respondent’s witness, Mr Shale. It is evident from the transcript that during cross-examination no version was put to Mr Shale and he was never afforded an opportunity to respond to Ms Sethunya’s version as to why she believed she was entitled to the increase or what steps she allegedly took to make enquiries between January and September 2018. It is ill-considered and opportunistic of the Applicant to state in argument that the Respondent’s failure to call the acting municipal manager is fatal to its case, that the Respondent’s witness could not refute Ms Sethunya’s contention that she, on various occasions between January and September 2018 questioned why her increase was not effected or that she questioned the decrease of her salary in October 2018. Those versions were never put to Mr Shale and how he could be accused of being unable to refute a version he was not aware of or not afforded an opportunity to dispute or refute, is astonishing.

[45] The version that the acting municipal manager promoted Ms Sethunya, was never put to the Respondent’s witness and it cannot be fatal to the Respondent’s case not to call a witness when there was no need to do so. The version about the promotion only came out in Ms Sethunya’s evidence-in-chief and when that version was disputed by the Respondent, it was incumbent on her to call the acting municipal manager to corroborate her version. In casu, the failure to call the acting municipal manager was fatal to Ms Sethunya’s case, rather than to the Respondent’s case.

[46] The Applicant’s case is further that the arbitrator did not take the totality of the evidence into consideration because if he had done so, he would have considered that Ms Sethunya was not present when the changes on the payroll system were made, that she was in possession of an appointment letter for the position of human resource administrator and that the Respondent was unable to rebut any of the aforesaid. I already dealt with the fact that this version was not put to the Respondent’s witness and could not have been rebutted, wherefore the consequences that follow when a version is not put in cross-examination, have to follow.

[47] In my view, this ground for review loses sight of what Ms Sethunya was charged and dismissed for and what the evidence adduced before the arbitrator was. Ms Sethunya was allegedly promoted in November 2017, which promotion took effect in January 2018, but until September 2018, her salary was not adjusted and she continued to receive her pre-promotion salary in the region of R 7 000, instead of her post-promotion salary in the region of R 28 000. It is highly improbable that any employee would wait patiently for nine months for the increased salary to be implemented and paid and that no dispute would have been referred or steps would have been initiated to compel the employer to pay her the higher salary, if that was indeed due to her.

[48] The doctrine of common purpose applies when there is evidence, direct or circumstantial, that an employee or employees associated themselves with the conduct of the principal offender and the person concerned must have manifested his or her sharing of a common purpose with the perpetrator by performing some act of association with the conduct of the other(s).[9] Presence at the scene is not necessarily a requirement to attract a holding of complicity.

[49] The evidence before the arbitrator, direct and circumstantial indicated that Ms Sethunya’s salary was increased in September 2018, after Mr Khoabane made changes on the system, which resulted in a substantial salary increase for both of them. Just after their payday, Mr Khoabane attempted to reverse the position on the payroll system to their old positions of assistant general workers. It is highly improbable that Ms Sethunya would have been ‘promoted’ to such a higher position, which resulted in a 259% increase in her salary, without any selection and recruitment process being followed or that she would be content to wait for 9 months for her promotion to be implemented, if she was indeed so promoted. The evidence was that she was of the view that she was entitled to the higher remuneration and that she expressly gave Mr Khoabane access to her

computer, on which occasion he changed her job title and remuneration. It is improbable that Ms Sethunya was not aware of what

Mr Khoabane did while using her computer and that she did not associate herself with his conduct, which resulted in a substantial

monetary benefit for both of them.

[50] The uncontested evidence of Mr Shale, as well as the facts conceded by Ms Sethunya, allow for an inference that it is highly improbable that the Municipality would give her a generous promotion in November 2017, provide an undertaking to start paying the increased salary from January 2018, fail to do so until September 2018 and then it is all of a sudden corrected and implemented by making one adjusted payment to Ms Sethunya and thereafter revert back to a lesser salary and all this without the Applicant challenging it or objecting to the fact that Ms Sethunya’s promotion was not implemented with effect from January 2018.

[51] The evidence showed, through the uncontested audit trail, highly suspicious conduct and activity on the payroll system in relation to Ms Sethunya’s job category and remuneration. To make matters worse for the Applicant, this evidence was not contested and no version was put to Mr Shale during his testimony on how it came about that Ms Sethunya was granted such a material and substantial increase, which was allegedly only implemented in September 2018.

[52] The arbitrator’s findings that it was probable that Ms Sethunya was involved in the manipulation of her salary for September 2018 and that it was done with her knowledge and consensus, are not unreasonable but are reasonable inferences and conclusions to be drawn from the evidence that was placed before him.

[53] It has to be emphasized that the review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result. In fact, the Applicant must show that the decision is one that a reasonable decision maker could not make, based on the evidence presented. The test is not whether the arbitrator came to the best decision or a decision acceptable to the Applicant. A review is not an appeal.

Conclusion

[54] In Bestel v Astral Operations Ltd and others,[10] the LAC considered the limited scope possessed by this Court to review an arbitration award and accepted that an arbitrator’s

finding will be unreasonable if the finding is unsupported by any evidence if it is based on speculation by the arbitrator, if it is disconnected from the evidence, if it is supported by evidence that is insufficiently reasonable to justify the decision or if it was made in ignorance of evidence that was not contradicted.

[55] I have to consider the grounds for review within the context of the test this Court must apply in deciding whether the arbitrator's decision is reviewable. The ultimate question is whether holistically viewed, the decision taken by the arbitrator was reasonable based on the evidence placed before him. Ultimately this is a review and not an appeal.

[56] Considering the evidence before the arbitrator holistically, the arbitrator’s findings are not disconnected from the evidence, but in fact, it is based on the evidence presented. The arbitrator’s findings fall within a band of reasonableness based on the evidence that was placed before him and there is no basis for this Court to interfere with it on review. The arbitrator did not misconceive the enquiry but indeed determined

the principal issue he was required to determine.

[57] The review test to be applied in casu is a stringent and conservative test of reasonableness. The Applicant must show that the arbitrator arrived at an unreasonable result. In casu, the Applicant was unable to make out a case for review, applying the test of reasonableness.

[58] None of the parties sought a cost order and therefore the issue of cost requires no further consideration.

[59] In the premises, I make the following order:

Order

1. The late filing of the application for review is condoned;

2. The review application is dismissed;

3. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

Applicant: Advocate S Grobler S C Instructed by: Kramer Weihmann and Joubert Inc Attorneys First Respondent: Advocate R Schmidt Instructed by: Noge Attorneys

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

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

[3] Ibid at paras 18 - 19.

[4] Small v Smith 1954 (3) SA 434 (SWA), Barry v Mxaisa 1977 (4) SA 786 (O).

[5] S v Boesak 2000 (3) SA 381 (SCA).

[6] CWH Schmidt and H Rademeyer, Law of Evidence, (LexisNexis South Africa), 9-54 – 9-72.

[7] See President of the Republic of South Africa and others v South African Rugby Football Union and others 2000 (1) SA 1 (CC).

[8] (2004) 25 ILJ 544 (LC) at para 28.

[9] National Union of Metalworkers of South Africa obo Dhludhlu and others v Marley Pipe Systems (SA)(Pty) Ltd (2022) 43 ILJ 2269 (CC).

[10] [2011] 2 BLLR 129 (LAC) at para 18.