Solidarity obo Radzilani v Eskom Holdings SOC Ltd (JS523/19) [2022] ZALCJHB 179 (6 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No. JS523/19

In the matter between:

SOLIDARITY OBO NV RADZILANI

Applicant

and

ESKOM HOLDINGS SOC LTD

Respondent

Heard: 19 and 20 April 2022

Delivered: 06 July 2022 (This judgment was handed down electronically by emailing a copy to the parties. The [insert date] is deemed to be the date of delivery of this judgment).

Summary: The matter pertained to a salary dispute. The Court has jurisdiction to hear the matter, particularly where there is no dispute that the money is owed.

JUDGMENT

GOVENDER, AJ

Introduction

[1] The trial came before the Court by way of a statement of claim in terms of which the applicant claims, inter alia, an amount of R104 860.35, less all statutory deductions with interest, which amount represents short payment from her employer, following salary adjustments due to income differential adjustments.

[2] The applicant also claims a commensurate adjustment to her pension fund, stemming from what her increased salary should be.

[3] While the amount claimed from the bar is approximately R354 000.00, this is at odds with the pleadings and I accordingly asked the applicant’s representative to address this in her closing written submissions. While the applicant’s representative moved for an amendment to the pleadings from the bar, this was opposed by the respondent and I held over determination of the amendment. I shall return to this later in this judgment.

Background facts

[4] The dispute concerns the respondent’s admitted error emanating from the implementation of the Income Differential Project (“IDP”), which occurred subsequent to a review by the Director General of Labour, where it was found that there were disparities in the remuneration of employees from a gender and race perspective.

[5] The purpose of the IDP was adjusting or minimizing the salary differences at the respondent in line with the provisions of the Employment

Equity Act[1] (EEA).

[6] That the IDP was premised on the EEA is an issue in contention

concerning the Court’s jurisdiction, which has been raised as a special plea by the respondent. This issue was initially raised by the respondent as an exception, which was dismissed by Prinsloo J on 15 November 2019. I shall also return to this later in this judgment.

[7] I now turn to deal with the evidence led at trial.

The applicant’s case

Examination in chief

[8] The applicant testified on her own behalf and largely testified on a number of issues which are common cause. The evidence summarised below is not intended to be a verbatim account of all the evidence led at the trial, and only the salient facts are canvassed below.

[9] Prior to working at Eskom the applicant previously worked at T-Systems, and by virtue of a transfer of business in terms of section 197 of the Labour Relations Act[2] she came to be employed by Eskom, as from 20 August 2007. She is currently a Senior Advisor: Applications Support, with a gross salary of R85 873.74 per month.

[10] The National Union of Mineworkers (NUM), a Union with representation within Eskom, addressed a communique to Eskom, dated 16 November

2017, concerning income differentials (the NUM Communique)[3]. In particular, this contained a comparative ratio for calculating the midpoint of salaries document premised on the relevant years of employment. This became of significant importance and to which I shall return to.

[11] The implementation of the IDP occurred during April 2016, which resulted in a change in her salary from R821 190.00 to R950 220.00.[4] The adjustment was premised on information contained on the SAP System, which incorrectly reflected her years of service as five

years, whereas she had been employed at Eskom alone for approximately 10 and a half years;

[12] She contacted the Human Resources Business Partner (HRBP) Mr David Malatji (Mr Malatji), who, after looking into the matter, confirmed that there was an error concerning the years of service captured on

the SAP System, and he subsequently corrected the information.

[13] On 24 May 2018, the applicant sent an email to Mr Bonginkosi Makuyana, coping Mr Malatji and others, where she in essence escalated the error on the SAP System and requested that her income be adjusted in accordance with the correct years of experience. She also attached a copy of the NUM Communique to her email and makes reference to her having received the Communique “…Last year”.[5]

[14] On 6 June 2018 she received an email from Ms Zodwa Green (Ms Green) confirming that:

14.1 The applicant’s 5 years of related years of experience, referred to as “RE”, had been changed to 13 years by Mr Malatji. The 13 years were calculated with a formula that included the years of service at Eskom, as well as the applicant’s prior experience;

14.2 The corrections were done on SAP after the implementation of the IDP and would be used in the second phase of the IDP; and

14.3 There would be no further adjustments to the applicant’s salary accordingly.

[15] Ms Green’s email did not sit well with the applicant, since she was being punished for an error on the system premised on incorrect information. She decided to lodge a grievance. There are two stages to the grievance process at Eskom

[16] Stage 1 of the grievance was heard on 19 July 2019 and was chaired by Ms Varsha Pillay (Ms Pillay) who recommended that the applicant be paid the correct amount due to her based on the correct calculation from the date of implementation of the IDP. However, Ms Pillay also copied and pasted the email received from the HR Department into her finding, which in turn recorded that funds for the IDP were exhausted. Ultimately, she concluded her finding by recording that

based on the Exco decision, the applicant would have to wait for phase two of the IDP to be reimbursed the difference that she is entitled to.

[17] The applicant was again not satisfied with the outcome since there was no indication of when phase two of the IDP would be implemented. She was fortified in her view since this had occurred in 2018 and as she sat in Court testifying in 2022, phase two had yet to be implemented. She testified that if she had accepted the outcome of the stage 1 grievance, she would still be waiting.

[18] The applicant then proceeded to stage 2 of the grievance process, which was heard on 26 September 2018 and was chaired by Mr Grasswell Mabudusha (Mr Mabudusha). Mr Mabudusha made the following recommendation:

“Ndivho should be paid the correct amount based on the correct related years’ experience. The objective of the Salary Differential Initiative was to correct an anomaly that existed in as far as salaries were concerned. However, this can happen if and only if Eskom can afford it. Affordability also comes into the equation My recommendation is for line management together with HR to investigate the financial impact of this with a view of preparing a motivation for approval by Exco or any other party delegated by Exco to can approve this”.

[19] Following the outcome of the stage 2 grievance, she was dissatisfied because the outcome of an investigation could be positive or negative, and the respondent could come back and say there were still no funds, just as Exco had responded previously that she had to wait until phase 2 to be implemented, which had yet to be done. There was

no evidence led regarding whether an investigation of this nature was actually conducted.

[20] The incorrect salary had a bearing on the calculation of her pension fund contribution, which was based on what she earned. This had the effect that her pension had not accumulated commensurately.

[21] Concerning the calculation of the short payment as per her statement of claim, she testified that the amount of R104 860.35 did not represent the present day value, since the statement of claim was filed during about 2019 and did not take account of subsequent salary increases implemented over the years since then.

[22] To date, she had not been given any indication of when phase 2 would be implemented; and she felt seriously aggrieved by the situation since she was an excellent performer, but she kept the dispute to herself, while giving her best to the organisation and lending her skill and knowledge whenever needed. She also testified that if there was a phase 2, she would not be at Court and would have dropped the case.

Cross-examination

[23] During cross-examination, Eskom put to the applicant, concerning the NUM Communique, that she was not a member of NUM and the Communique had nothing to do with her, to which she agreed. Further, they put to her that implementation was subject to certain principles, to which she agreed.[6]

[24] It was put to the applicant that in paragraph 2.10.1 of the pre-trial minute it stated that: “employee information that was already stored on its electronic data system (the SAP system) would be utilised as the basis for implementation”. Therefore, premised on this, even if five years related experience was captured on the SAP System erroneously, by virtue of there being an agreement concerning this issue in the pre-trial minute, that was, in essence, the end of the matter. The applicant responded that there was no agreement and that Eskom had made a decision.

[25] The respondent’s representative took the line that by virtue of the pre-trial minute recording that the information on SAP would be used as the basis for implementation, in isolation, this meant that even if information was incorrect, this was permissible. The applicant responded that there was no prohibition on adjustments being made if there was incorrect information.

[26] She was asked how many employees there were at Eskom, to which she responded that there were approximately 40 000. It was put to her that she must accept that the obligation to check information on SAP was that of the employees. She responded that she would accept that on condition that it was understood that the information concerned was not part of the everyday information that is visible to employees.

[27] The applicant emphasised that the related experience was not easily attainable and is not “in your face”. The applicant gave the example that once you had obtained 10 years of service, you are invited for a celebration. She had reached 10 years of service the year before the implementation of the IDP (2017) and if she was not invited, she would have realised there was a problem on the system, but she had been invited.

[28] It was again put to her that she had to accept that the obligation was on her to have checked whether her information was correct, to which she responded that it was not public knowledge that one had to check whether one’s information was correct for purposes of the IDP.

[29] She was then taken to the NUM Communique, to demonstrate that she knew about the IDP as early as November 2017, to which she responded that she did not receive the Communique at that time, but somewhere towards the end of 2017.

[30] The thrust of the cross-examination in this regard was that the applicant knew about the IDP since about the end of 2017 by virtue of the NUM Communique and ought reasonably to have checked her information at that juncture, prior to implementation of the IDP in April 2018. The applicant responded that if she knew that there was an obligation on her to have checked that information, she would have done so.

[31] The timeline of events was then put to the applicant, in essence that she only escalated her issue regarding the incorrect information after she received a minor adjustment to her salary during April 2018. The applicant responded that the trigger to her escalating the issue was the incorrect information on the SAP System.

[32] She was taken through her grievances and it was put to her that she was dissatisfied with the error, which she agreed with.

[33] It was also put to her that she referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) based on the same facts before the Court, but that she had decided to withdraw the dispute. She responded that she did not decide to withdraw the dispute, but rather that the CCMA Commissioner informed her that this was a matter for the Labour Court.

[34] It was also put to her that the alleged unfairness of the IDP was a matter for the CCMA to which she responded that the CCMA had referred her to the Labour Court.

[35] It was further put to her that her dispute was not contractual but a matter of right, which she did not seem to understand. In any event this was a matter for legal argument.

[36] She responded that there should have been an integrity check of the data on SAP. For example: a list should have been sent to management to check the information on the system. If this were done it would

have been noticed that the applicant had 10 years of service and there would be an obvious anomaly since SAP recorded 5 years of

related experience. It would have been realised that the data was not correct.

[37] Much of the cross-examination was argumentative and a repetition of what was perceived as earlier concessions concerning who bore the onus of checking the information, the alleged concession in the pre-trial minute and the applicant having only checked her information after the horse was alleged to have bolted. (I must pause to mention that the obligation to check information on the SAP system being on the employees was not part of the respondents pleaded case.

I asked the respondent’s representative to address this in the heads of argument. While the purpose of pleadings was reiterated, the respondent’s representative failed to identify where in the pleadings the obligation on employees was pleaded. In any event, this obligation as put to the applicant, was contested by the respondent’s own witnesses).

[38] It was also put to her that Eskom did not have the money to pay her, to which she responded “…that’s what Eskom says”.

[39] It was put to her that stage 2 of the IDP was dependant on Eskom having a budget, to which she also responded “…thats what Eskom says”. She also testified that she found it difficult to accept that Eskom did not have a budget, because since 2019 there were so many positions advertised and many voluntary severance packages given. In her department alone so many people had resigned which means that there was a budget. It was then put to her that Eskom’s budget had not been requested, which she agreed with. It was further put to her that her saying that Eskom did have a budget was merely her opinion, which she agreed with.

[40] It was put to her that Eskom had done nothing wrong when considering paragraph 2.10.1 of the pre-trial minute, by paying her in terms of the five years of related experience, which she agreed with but stated that the information was incorrectly captured. It was also put to her that an Eskom expert would testify that it takes less than six weeks to fix information on the SAP System, which she agreed with.

Re-examination

[41] In re-examination the applicant confirmed that she formed part of the first phase of the IDP since she was part of management. There was never a dispute about Eskom owing her the correct increase.

[42] She was asked why she did not approach HR sooner than 14 May 2018 to which she responded that it never occurred to her to check her information, but had she known, she would have checked earlier to ensured that the error was corrected.

[43] Concerning the timeline, during April 2018 she received a revised salary, but prior to that there had been rumours concerning income differentials and she understood that this would impact her by taking her salary to over R1 million per annum, but when she received her salary, she knew that there was a mistake.

[44] Further she averred that the reason that the matter was at the Labour Court was the implementation of the IDP was incorrect. Following the applicant’s testimony, she closed her case.

Respondent’s case

Ms Green

[45] The respondent then commenced with its case by leading its first witness, Ms Green. Ms Green testified that she was responsible for short-term incentive schemes in the Rewards and Benefits Department, and was the project leader for the IDP. The IDP originated from the DG’s findings that Eskom was not adhering to equal pay for

equal work and certain steps were taken to resolve this, including an assessment by Deloitte and engagement with trade unions.

[46] The initial proposal to remedy the situation equated to some R2.9 billion, which was not implemented due to affordability concerns. The rationale of the IDP was explained as against relative experience with the aim of raising the individual salary to the midpoint of the salary scale.

[47] She testified that she was familiar with the facts of the matter. The applicant’s experience was recorded on the SAP system as five to 10 years, instead of 10 years and over resulting in an incorrect calculation. The date that was used was as at December 2017, when the information was loaded and not updated and corrected.

[48] When she was asked who should have updated the information, Ms Green responded that it was the responsibility of both the employer and the employee and that if the employer had captured it incorrectly, it was

up to the employee to check that it was correct. However, from the questions put to Ms Green, there was an emphasis on the responsibility having been with the applicant to have checked the information.

[49] She further testified that during the 2017/2018 financial years, the respondent had more than 43,000 employees. Given the number of employees, the practicalities of checking each of the related years of service proved to be a challenge. Importantly, while the information was checked by the Respondent’s Shared Services Department, the applicant’s matter had “fallen into the cracks”.

[50] While the applicant’s information had been subsequently corrected, there were no funds at that stage to make payment by the time that the correction was done. The project was not closed and every year the IDP would be raised with the executive to assess whether there were finances to proceed with the project, but to date there weren’t sufficient funds to proceed.

[51] Had the applicant taken the initiative to check that the information was correct prior to payment, she would have received the correct amount. The fault was not on Eskom, since it was assumed that the information was correct. Importantly, she conceded that the applicant is entitled to the full amount, but only when the second phase of the

IDP is implemented.

[52] During cross-examination Ms Green testified that equal work for equal pay has still not been achieved at the respondent. The applicant was part of management and there was no communication with management to check the information prior to the implementation of the project.

[53] Further, she did not know when the respondent was planning to implement the second phase of the IDP. A new employee at Eskom would not be able to check the years of experience on SAP and would have to request this from an HR Business Partner.

[54] During re-examination the communique from NUM was put to her, in order to draw the link that the applicant was informed, even though it was put to the applicant during cross-examination that the NUM communique had nothing to do with her. Ms Green didn’t really follow the line of re-examination.

[55] She also confirmed during re-examination that there was no malice in not paying the applicant the correct amount, but funds were simply depleted and that there we other employees who had the same issue.

Mr Malatji

[56] The respondent’s last witness was Mr Malatji, who testified that he is employed by the respondent as the HRBP. He confirmed that changes on the SAP System happen immediately because it is a live system. If an employer wanted to change the years of experience she would submit her CV and the HR Department would do a calculation, which would take around 72 hours. An employee would not be able to change the related years of services.

[57] The IDP started around 2017. The purpose was to calculate the percentage of earnings towards the mid-point of the salary scale. At that time there were approximately 42,000 employees at the respondent.

[58] When asked whose responsibility it was to ensure that the years of experience were correctly captured on the system: Mr Malatji confirmed that this information was not normally in an employee’s face but once information comes to the fore that would affect the years of service, the employees should check this because it would

impact them. In essence, what Mr Malatji was conveying is that once the IDP came to the applicant’s attention, she ought reasonably to have checked this information, since it would impact her.

[59] He was taken through the correspondence exchanged and he testified about the steps taken by the applicant to correct the years of service by engaging with him. He subsequently requested her CV and the corrections to the related years of service were done.

[60] He testified that he was unaware of how managers were informed about the IDP. He confirmed that the information was communicated with organised labour and the information should then flow from there. The Unions concerned where NUM, NUMSA and Solidarity.

[61] During cross-examination he confirmed that the process of placing information on the SAP System, would be that the employee would provide their CV to the HR Department and HR personnel would insert the information onto the system.

[62] It was put to him that it was not the applicant’s fault that the information was captured incorrectly which he agreed with and he confirmed that it was the responsibility of HR to capture the information correctly. He further confirmed that the information must be provided by the employee concerned and as soon as she provides information to the relevant HRBP, then the responsibility shifts to the HRBP or relevant official in the HR Department to capture the information correctly.

[63] He further confirmed that employees were not told to check their information on SAP prior to the implementation of the IDP, but rather this information was conveyed to the Trade Unions. (It follows that the applicant was not told, because she was part of management).

[64] It was put to him that while he testified that information was conveyed to organised labour concerning the IDP, how did he expect the rest of the employees to know about the IDP, he responded that he couldn’t recall any information on that. When he was asked when phase 2 of the IDP would be implemented he responded that as soon as Eskom was in a financial position to do so.

[65] During re-examination he confirmed that an HR administrator populates the information onto SAP, and that the applicant’s CV would include what is on the SAP System. He confirmed that a particular formula was used to calculate related years of experience, and further he was unable to confirm a reason why management did not get official communication from Eskom regarding the IDP.

[66] He confirmed that non-managerial employees are represented by the Trade Unions who speak on their behalf, whereas for managerial employees, Unions were not engaged because these are people at a higher level with higher qualifications and were able to stand on their own two feet and represent themselves.

Analysis

[67] By all accounts, there is no dispute that the disparity in the applicant’s pay emanating from the incorrect information captured on SAP by the respondent, is due and payable to her. There is similarly no dispute that Management, which the applicant forms part of, was not engaged about the implementation of the IDP and was not told to check the information on the SAP system, nor were they told that a failure to do so would be at their peril.

[68] The applicant fortuitously came across the NUM Communique, is not a NUM member and in any event, NUM, like the other unions, engaged with Eskom on behalf of non-managerial employees, consequently, there is no dispute that a debt is due and payable.

[69] The respondent’s attempt to selectively interpret clause 2.10.1 of the pre-trial minute so as to avoid liability is without merit.

[70] The pre-trial minute cannot be interpreted in the opportunistic and selective fashion as suggested by the respondent, particularly when clause 2.8 of the pre-trial minute provides that the purpose of the IDP is to adjust and minimise the salary differences that existed at the respondent, in line with the provisions of the EEA.

[71] Moreover, clause 2.10.2 of the pre-trial minute provides that the target position was to move employee’s salaries towards the midpoint of the salary scale based on a comparative ratio.

[72] Clause 2.10.3 of the pre-trial minute further provides that employee’s related experience (a calculation of an employee’s working history relating to their current position) would be used in determining the level of adjustment based on a tabulated scale.

[73] As such, reading paragraph 2.10.1 of the pre-trial minute in isolation, where managerial staff were not told to check their information on SAP, and when contextualising the pre-trial minute, is not the silver bullet that the respondent had hoped for.

[74] It could never be the case that the managerial staff had waived their rights in this regard, premised on incorrect information, where they were not even forewarned.

[75] Since liability is not in dispute and the respondent contends that the issue is one of affordability, it must be considered that the respondent has opposed this matter, presumably at significant expense, for some three years instead of making payment.

[76] While I accept that different cost centres might be at play, the reality is that the funds at the disposal of the respondent come from the public purse, regardless of subsequent compartmentalisation.

Jurisdiction

[77] Concerning the issue of jurisdiction, as stated, this was raised as a special plea before Prinsloo J, who dismissed the special plea. The issue of jurisdiction was raised again during the trial and the submission in support of this was that jurisdiction can be raised at any time.

[78] While I had raised the issue of res judicata, this was not substantively addressed during the trial nor in the respondents closing heads of argument.

[79] This matter does not concern the implementation of the IDP, but rather is a salary dispute because at all material times, the respondent conceded liability and raised a lack of funds to avoid making payment of what is owed to the applicant.

[80] While the underlying cause has its roots in the IDP, and an error emanating from the implementation thereof, I am satisfied on the common cause facts that the applicant is claiming what she is owed as part of her salary. There is no dispute on how the IDP should have been implemented and how the implementation or interpretation thereof

should deprive the applicant of the relief sought. This is really a civil claim for a money judgment regarding outstanding and admitted IDP payments emanating from the employment relationship, properly considered, since the debt has been admitted.

[81] In Rand Water v Stoop[7] the Labour Appeal Court rejected the contention that section 77(3) of the Basic Conditions of Employment Act[8] (BCEA) only permits the Labour Court to interpret the terms of an employment contract and interpret it, holding that this was unreasonable in view of the remedies the Labour Court may grant in terms of section 77A (e). Secondly, it was acknowledged that the word “concerning” in section 77(3)[9] conveyed cause and effect but, it was held, this does not imply that there was to be a direct or indirect link between the contract of employment and the claim.

[82] It follows that the Labour Court does have jurisdiction to determine the matter. The special plea was properly dismissed by Prinsloo J.

The amendment

[83] An amendment will not be allowed if the application to amend is made mala fide or if the amendment will cause the other party such prejudice as cannot be cured by an order for costs and, where appropriate, a postponement[10]. The following statement by Watermeyer J in Moolman v Estate, which matter is frequently relied upon when considering amendments[11]:

“[T]he practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purpose of justice in the same position as they were when the pleading which it is sought to amend was filed.”

[84] It follows that the applicant’s salary would have increased over the years following the initiation of the litigation. While the applicant ought reasonably to have amended the amount claimed in line

with the increase to her salary, this cannot be said to be mala fide. The respondent is well aware of this increase and the consequences thereof, as her employer. There is accordingly no prejudice flowing from allowing an amendment to the quantum claimed. There was also no postponement sought, nor any basis in these circumstances to make a costs order against the applicant.

[85] This amendment would in any event form part and parcel of the Court’s

inherent discretion to order further and alternative relief from the evidence presented.

Costs

[86] It is trite that in labour matters, costs do not follow the result[12]. In order for costs to be granted the Court’s judicial exercise of its discretion to award costs must be engaged, there must be a justification from the departure of the ordinary rule that costs should not be ordered and the dictates of fairness in terms of section 162 of the LRA and the constitutional and statutory imperatives that underpin it, must be considered[13].

[87] Since there is an ongoing employment relationship, and since the applicant has been successful, including with her amended claim, I am satisfied that fairness would not dictate costs being granted.

[88] Accordingly, the following order is made:

Order

1. The respondent is ordered to pay the applicant an amount of R389,893.97 (three hundred and eighty nine thousand eight hundred and ninety three rand and ninety seven cents) with interest at the prevailing interest rate, less all statutory deductions;

2. The respondent is ordered to immediately adjust the applicant’s

flexible benefits package to R1,113,524.90 (one million one hundred and thirteen thousand five hundred and twenty four rand and ninety cents) per annum;

3. The respondent is ordered to retrospectively contribute to the applicant’s pension fund as from April 2018 to date of correction of the income adjustment, in the amount that the respondent would have contributed had the salary adjustment been implemented correctly;

4. There is no order as to costs.

T. Govender

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Ms A Nel

Instructed by: Solidarity

For the respondent: Adv. Nyangiwe

Instructed by: Madhlopa & Thenga Inc

[1] No. 55 of 1998, as amended.

[2] No. 66 of 1995, as amended.

[3] See: Bundle A at p. 25

[4] See: Bundle A at p. 26.

[5] See: Bundle A at p. 27.

[6] See: para 2.10 of the pre-trial minute.

[7] [2013] 2 BLLR 162 (LAC)

[8] No. 75 of 1997.

[9] “77. Jurisdiction of Labour Court - … (3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.”

[9] “77. Jurisdiction of Labour Court - …

(3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.”

[10] See: Union Bank of South Africa Ltd v Woolf 1939 WLD 222 at 225.

[11] See for example: Fish Hoek Village Management Board v Romain 1932 CPD 304 at 307, read with Superior Court Practice.

[12] See: MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another [2008] 6 BLLR 540 (LAC) and Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC).

[13] Union For Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC), specifically at paragraph 35, read with Goba v Rand West City Local Municipality and Others [2021] JOL 51406 (LC); [2021] ZALCJHB at 301 (20 September 2021), specifically at paragraph 30 and 31.