Tiger Brands (Pty) Ltd v AFADWU obo Mabizela and Others (JR346/20) [2023] ZALCJHB 301 (4 September 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR346/20

In the matter between:

TIGER BRANDS (PTY) LTD Applicant And AFADWU OBO BEN MABIZELA First Respondent COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Second Respondent LANCE CELLIER N.O Third Respondent

Heard: 22 August 2023

Delivered: 4 September 2023

Summary: Review of an award which concluded that dismissal was harsh – Purpose of final written warnings is to deter recurrence of misconduct – Employer dismissing an employee on a final written warning issued after the misconduct for which the employee was dismissed had already been committed – Employers should not delay in disciplining employees.

JUDGMENT

GANDIDZE AJ

Introduction

[1] The applicant, Tiger Brands (Pty) Ltd (Tiger Brands) is an employer that seeks an order in terms of section 145 of the Labour Relations Act[1] (LRA), reviewing and setting aside an award in terms of which the dismissal of an employee, Mr Ben Mabizela (Mabizela) was found to have been unfair. The commissioner found that the sanction of dismissal was too harsh and imposed the sanction of a final written

warning instead, coupled with limited backpay. In the event that the Court reviews the award, Tiger Brands seeks an order substituting the award with an order that the dismissal was substantively fair.

[2] Mabizela, represented by his union, opposes the review application.

Background facts

[3] Mabizela was dismissed in October 2019. He commenced employment with Tiger Brands in 2007, and at the time of dismissal, he was employed as an operator of heavy machinery at the Tiger Brands beverage plant in Germiston. He was also a shop steward.

[4] The events that gave rise to Mabizela’s dismissal are not contentious, and l say this mindful of the fact that Mabizela has not filed a review against the award, with the consequence that the commissioner’s findings against Mabizela’s version on certain aspects stand.

[5] It was not in dispute that Tiger Brands is obliged to provide a safe working environment, hence its disciplinary code regards alcohol or drug-related offences as serious misconduct, and that persons who appear to be under the influence of alcohol are prohibited from entering the plant.

[6] Over and above the disciplinary code, on 1 October 2018, Tiger Brands implemented a zero-tolerance policy for employees testing positive for inter alia alcohol. The policy was implemented following engagement with employees who were made aware of its contents. The company doctor and officials from the South African Council for Alcoholism and Drug Dependence (SANCA) visited the plant to answer queries regarding the policy and its implications. Personnel were also trained to ensure that they were skilled and qualified to operate the relevant testing equipment.

[7] The zero-tolerance policy goes further than the disciplinary code by providing that being under the influence is serious misconduct which will normally result in summary dismissal, and that, only in exceptional cases, will notice or the reduced disciplinary action of a final written warning be applied.

[8] Following the implementation of the zero-tolerance policy, Mabizela was subjected to alcohol testing when he presented himself for work on Monday 7 January 2019. He tested positive and was sent home for the day. He returned the following day and was subjected to daily testing. At the time, the other employees were subjected to random testing only.

[9] On or about April 2019, Mabizela tested positive for alcohol again and as the 7 January incident, Mabizela was sent home, but returned to work the following day and continued working as normal. It is unclear whether Mabizela continued to be subjected to daily alcohol testing following the April 2019 incident.

[10] Two months later in June 2019, Mabizela was called to a disciplinary hearing in respect of the 7 January incident. Apparently, this hearing was delayed due to postponements at the instance of both Tiger Brands and Mabizela. The outcome of that disciplinary process was that Mabizela was issued with a final written warning, which he unsuccessfully appealed against in August 2019.

[11] In October 2019, Mabizela was called to a disciplinary hearing for the April 2019 incident, was found guilty and was dismissed. I note from Mabizela’s own version that this hearing was delayed at his instance, as he wanted the appeal in respect of the January 2019 incident to be finalised first. As recorded above, the appeal in respect of the January 2019 incident was finalised in August 2019.

The arbitration proceedings

[12] The commissioner accepted the existence of the zero-tolerance to alcohol rule, that the rule was reasonable, that it was based on the provisions of the Occupational Health and Safety Act[2], that Mabizela was aware of the rule and that the rule had been consistently applied. These findings are not being on challenged on review.

[13] However, the commissioner expressed concerns, which l summarise below:

13.1 Dismissal was meted out in October 2019 for the April 2019 offence in circumstances where Mabizela had not been informed of the standard required of him through a disciplinary procedure and without being given an opportunity to correct his behaviour. This approach finds support in both Tiger Brands’s Disciplinary Code, as well as item 3(2) of Schedule 8 Code of Good Practice: Dismissals.

13.2 The sanction of dismissal was meted out because Mabizela was already on a final written warning in respect of the January 2019 offence, ignoring the fact that Mabizela was sanctioned for the January 2019 offence after the commission of the April 2019 offence. It was assumed that the second offenders who had been dismissed were first issued with final written warnings, a courtesy that was not extended to Mabizela.

13.3 National Union of Mineworkers and another v East Rand Proprietary Mines Ltd[3] (NUM) and Cotton and Woolworths[4] (Woolworths) decisions are authority for the proposition that an employer may not rely on a final written warning issued after the commission of the offence for which the employee was dismissed.

13.4 It was astonishing that the employer took 7 months to conclude the matter in respect of the January 2019 incident, and some 6 months to conclude the matter in respect of the April 2019 incident, therefore gross mismanagement of the disciplinary process by those involved.

13.5 Continued employment was possible given that even after the April 2019 incident, Mabizela was allowed to continue working for another six months before his dismissal.

13.6 Mabizela can be labelled a repeat offender, justifying disciplinary action, but management had stacked up charges against him in circumstances where it did not first issue a final written warning in respect of the January 2019 incident.

13.7 Mabizela lacked contrition for his conduct given his attempts to deny knowledge of the rule, and therefore deserved to be punished.

[14] The commissioner ordered Mabizela’s reinstatement with one month’s salary as backpay, coupled with a final written warning. As recorded above, Tiger Brands seeks an order reviewing and setting aside the award and substituting it with an order that the dismissal was fair. Before dealing with the grounds for review, l set out the relevant legal principles.

Legal principles

[15] Pre Sidumo and another v Rustenburg Platinum Mines Ltd and others[5] (Sidumo), there was a debate on how sanction should be approached when determining the fairness of a dismissal. Whilst some case authorities

found that an arbitrator is not at large to substitute what she or he considers to be a fair sanction, other authorities stated that an arbitrator ought to independently consider what sanction they would have imposed. Sidumo finally resolved that debate, and the relevant portions of the judgment are reproduced below.

[16] The court in Sidumo commenced by looking at the position under the Labour Relations Act 28 of 1956, and the relevant case authorities decided in terms of that Act. For present purposes, the relevant principles can be summarised thus:[6]

16.1 The court’s (or commissioner’s) view as to what is fair is the essential determinant in determining the ultimate question.

16.2 The court passes a moral judgment of a combination of facts and opinion.

16.3 The court is called upon as an impartial adjudicator to determine fairness.

16.4 Fairness comprehends that regard must be had not only to the position and interests of the worker but also those of the employer, in order to make a balanced and equitable assessment.

16.5 Determining the fairness of a dismissal requires that an objective approach is followed.

16.6 The reasonable employer test must not be applied.

16.7 The decision to dismiss belongs to the employer but the determination of fairness does not. Ultimately the commissioner’s sense of fairness must prevail, and this approach promotes labour peace.

16.8 There must be no deference to the employer.

[17] After setting out the above general principles, among others, the court stated as follows:[7]

‘[78] In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal...

[79] To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.’

[18] In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others[8] (Fidelity Cash), the court stated as follows:

‘Once the commissioner has considered all the above factors and others not mentioned herein, he or she would then have to answer the question whether dismissal was in all of the circumstances a fair sanction in such a case. In answering that question he or she would have to use this or her own sense of fairness. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.’ [Own emphasis]

[19] The court went further and said the following:[9]

‘The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision-maker could not have made but I also do not think that it will be rare that an arbitration award of the CCMA is found to be one that a reasonable decision maker could not, in all the circumstances, have reached.’

[20] In Phalaborwa Mining Co Ltd v Cheetam and others[10] (Cheetam), the court stated thus:

‘[4] …The standard is –

“the one in Bato Star: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”

…Despite the fact that decision-makers, acting reasonably, may reach different conclusions, the LRA has given the decision-making power to the commissioner and there it rests, unless it be concluded that a reasonable decision maker could not reach such a conclusion. Indeed, read together with Bato Star, upon which the majority decision in Sidumo v Rustenburg Platinum Mines so strongly relies, the judgment has the clear effect that the courts, and, in particular, the Labour Courts, must defer (but not in an absolute sense) to the decision of the commissioner. In the minority judgment of Ngcobo J, it is noted that the intention of the LRA is that –

“as far as is possible arbitration awards would be final and would only be interfered with in very limited circumstances.”

It needs to be emphasised that, although different paths of reasoning were followed in the differing judgments of the Constitutional Court dealing with this particular case, the court was unanimous as to the order which should be made. Lest there be any doubt, it is this: “the Commissioner’s award is restored.”

[5] …. Despite robust criticisms of the commissioner’s reasoning, the Constitutional Court restored the commissioner’s award.’

[21] Finally the court in Cheetam concluded as follows:[11]

‘Sidumo enjoins a court to remind itself that the task to determine fairness or otherwise of a dismissal falls primarily within the domain of the commissioner. This was the legislative intent and as much as decisions of different commissioners may lead to different results, it is unfortunately a situation which has to be endured with fortitude despite the uncertainty it may create. I have to remind myself that the test ultimately is whether the decision reached by the third respondent is one that a reasonable decision maker could reach at all in the circumstance. On this test I cannot gainsay the decision of the third respondent. I therefore concur with the conclusion and order by Willis JA.’

[22] I now turn to the grounds for review.

Grounds for review

The commissioner ignored material evidence

[23] Tiger Brands submitted that there was no proper basis to conclude that, absent the final written warning, Mabizela did not know what standard was expected of him and the consequences of a further breach of the zero-tolerance to alcohol rule. The submission is further that the commissioner ignored his own findings that Mabizela had full knowledge of the policy, that the policy made it clear that breach would normally attract a summary dismissal sanction, that Mabizela was subjected to daily testing after the January 2019 incident as an indication that a repeat would not be tolerated, and the fact that Mabizela was a shop steward meant that he ought to have known of the consequences of a breach.

[24] In my view, this criticism of the commissioner is based on a misinterpretation of the findings in the award. Viewed in its proper context, the concern for the commissioner was not that Mabizela did not know the rule. Rather, the concern was that the final written warning in respect of the January 2019 incident was issued after the April 2019 incident had already occurred. In other words, when the April 2019 incident occurred, Mabizela did not know that he was on the verge of a dismissal due to the January 2019 incident as he had not been sanctioned for that incident. The commissioner drew a distinction between Mabizela and the other employees, whereas the latter had been dismissed for a second transgression while on a final written warning, Mabizela was not on a final written warning when the April incident occurred. He committed the first act and did not face any consequences. Then he committed a second offence and only then was he called to a disciplinary hearing, and only in respect of the first but not both offences. That is the standard that the commissioner referred to in the award, which relates to an opportunity to rectify one’s behaviour following the issue of a final written warning, before being dismissed.

[25] It will be recalled that, following the January 2019 incident, Mabizela was sent home, and was allowed to return to work the following day, albeit that he was now subjected to daily testing whereas other employees were being subjected to random testing only. That situation subsisted until April 2019 when Mabizela was tested again, and the alcohol test result was positive. The concern for the commissioner was Tiger Brands’s failure to act promptly against Mabizela following the January 2019 incident. The commissioner labelled this gross mismanagement of the disciplinary process, which must mean he found the explanation given for the delays wanting.

[26] The commissioner’s observation that the disciplinary process in respect of Mabizela was grossly managed is a reasonable conclusion. It is trite that such proceedings must be instituted as soon as the misconduct complained of comes to light, failing which consequences may flow from such a delay, including a conclusion that an employer had waived its right to discipline an employee.[12] In this matter, the issue of waiver did not arise but the commissioner, correctly in my view, found that continued employment was therefore not intolerable given that Mabizela was permitted to continue working for months after the misconduct had been committed.

[27] That Mabizela deserved to be dismissed because the policy calls for summary dismissal for being under the influence of alcohol whether or not there was a final written warning is another submission that must fail. On Tiger Brand’s own version, all first cases of being under the influence were met with a sanction short of dismissal, and dismissal was meted out only for a second offence, and very importantly, a second offence committed whilst an employee was already on a final written warning. In other words, the practice that had developed at the time of the arbitration proceedings was not to dismiss for a first offence notwithstanding the provisions of the policy. No case was made before the commissioner that Mabizela’s case required a departure from how the policy had been applied since its inception until the arbitration proceedings.

[28] In any event, Tiger Brands’ conduct in waiting months to institute disciplinary proceedings against Mabizela was inconsistent with the submission that the misconduct was regarded as serious misconduct which attracted the sanction of a summary dismissal.

[29] The fact that Mabizela had been subjected to daily tests following the January 2019 incident did not have the effect that Mabizela knew that he would be dismissed if another test came back positive. How would he have known this in circumstances where three months after the January 2019 incident he was not charged or sanctioned? The fact that he was a shop steward did not change this state of play. There is no merit to this ground of review.

Material error of law committed

[30] The submission is two-pronged. The first is that the commissioner misinterpreted the courts’ finding in NUM, and the second is that the Woolworths case, as well as Gud Holdings (Pty) Ltd v Dispute Resolution Centre and Others[13] (Gud Holdings) were wrongly decided.

[31] As l understand the facts in NUM, the employee faced charges in respect of incidents which occurred on 5 and 6 June 1986. The hearing in respect of those charges convened on 11 June 1986, and the employee was found guilty. The proceedings were postponed to allow management to deliberate on an appropriate sanction. At the time, the employee had a formal warning from the previous year.

[32] Before the employer could impose a sanction, the employee was again called to a disciplinary hearing on 13 June, to answer a charge similar to that in respect of the 6 June incident, for misconduct committed on 11 June. The employee was issued with a formal warning.

[33] When the proceedings which had been postponed reconvened, the employee was informed that he would be dismissed on a month’s notice. The factors considered to arrive at that conclusion included the formal warning from the previous year, as well as the formal warning issued on 13 June for the 11 June offence. The employee challenged his dismissal and one of the issues for determination was whether the sanction of dismissal was harsh. The court stated as follows:

‘The second warning was issued on 13 June 1986 after the second applicant had been found guilty of an offence committed on 11 June 1986. When the first disciplinary committee met on 11 June 1986 to consider the offences committed on 5 and 6 June 1986 the second warning had not yet materialised. The hearing of 11 June 1986 was adjourned to consider the penalty which should be imposed. When the hearing was resumed on 16 June 1986, the committee had before it not only the old warning of October 1985 but also the most recent warning issued only three days before. Had the first committee completed its work on 11 June 1986, it would not have had the second warning before it at all. In the court’s view it was both improper and unfair to take cognisance of a warning issued on 13 June 1986 when imposing a penalty for offences committed before that date.’ [Own emphasis]

[34] Mr Bosch submitted that the commissioner misunderstood NUM, which found that it is impermissible for the employer to take into account a warning issued for misconduct which occurred after that currently under consideration. Mr Bosch argued that the NUM approach is fair and sensible, but that the approach adopted by the commissioner that an employer cannot rely on a final written warning for earlier misconduct issued only after the second act of misconduct had occurred was wrong.

[35] I disagree that the commissioner misunderstood NUM. What the court found unfair in that matter was for an employer to issue a warning on date x, and then take that warning into account in considering a sanction in respect of misconduct committed before the warning was issued. The court in NUM found this to be unfair, and this is precisely what Tiger Brands did in this case. It issued Mabizela with a warning in June 2019, but then sought to rely on that same warning for misconduct committed in April 2019. It is also evident from the underlined portion of that judgment that the court took issue with the employer’s failure to act and sanction an employee promptly following the commission of misconduct.

[36] In Gud Holdings, the employee was issued with a final written warning in June 2018 for misconduct which took place on 8 February 2018. Subsequently, the employee was dismissed for conduct which took place in the period before 8 February 2018. The court reasoned as follows:[14]

‘The commissioner was here called upon to conduct a proper enquiry, to evaluate the evidence properly and to reach a decision, which a reasonable decision maker could reach. The commissioner correctly assessed the overriding reason for dismissal as being pegged on previous convictions and therefore the existence of a final written warning. If it were not for the final written warning, the misconduct in charges 3, 4 and 5 would not attract a sanction of dismissal. The third respondent would be entitled to progressive discipline. Very importantly, the commissioner found that the final written warning was issued on 8 February 2018. Necessarily therefore, the charges for which the third respondent should be dismissed, must have been committed after 8 February 2018. The charges in count 3 and 4 are dated 06 February 2018 and 05 February 2018 respectively. The final written warning was issued after the charges were committed. The final written warning is accordingly not a previous conviction to these charges. The warning has a purpose of deterring the employee from re-offending. As he had committed the misconducts, assuming he was guilty of the 3rd and 4th charges, when the warning was issued, the warning could not stop him from committing these charges. Put differently, after the issue of the final written warning, the third respondent did not commit any misconduct for which he was charged and dismissed.’ [Own emphasis]

[37] Mr Bosch criticised this approach as one which elevates form over substance by requiring an employer to ignore and forgive conduct which warrants dismissal. The submission was further that fairness required balancing the employer and employee interests, and that an employer should not be saddled with an undesirable employee who is a second offender for technical reasons. This was a material error of law, so it was submitted.

[38] Again l disagree that Gud Holdings was wrongly decided. On my reading, Gud Holdings confirms the approach in NUM, that a warning issued after the misconduct has already been committed does not have the effect of deterring an employee from committing the misconduct. A warning serves the important purpose of warning an employee that they are on the brink of dismissal should they misconduct themselves again, pursuant to the issue of the final written warning. A warning issued after the misconduct has already been committed cannot deter the employee from re-offending as that “ship has sailed”. Such a warning cannot be used to justify dismissal for misconduct already committed. Stated differently, for purposes of determining a sanction, a final written warning has relevance only in respect of future misconduct, and not misconduct that has already been committed.

[39] As for the argument that requiring an employer to ignore the final written warning has the effect that such employer is saddled with an employee who is a repeat offender, the answer is that Tiger Brands ought to have acted promptly in respect of the January 2019 incident. Both in NUM and Gud Holding the court was concerned that the employer had delayed in sanctioning an employee. Furthermore, above l referred to case authority to the effect that an employer who fails to discipline an employee promptly may well be faced with an argument that they waived the right to discipline that employee. Therefore, an employer saddles itself with an employee who is a repeat offender if such employer fails to take prompt action against such employee. Balancing the employer and employee interests require that employers institute disciplinary proceedings as soon as they become aware of the misconduct, and where they fail to do this, and do not advance good reasons for that failure, they cannot be heard to complain that form has been elevated over substance.

[40] While it is correct that Mabizela now has two final written warnings for the same misconduct, Tiger Brands has only itself to blame for that state of affairs. Had it acted promptly against Mabizela following the January 2019 incident, a final written warning in respect of that incident would have served as a warning to Mabizela that a repeat of the conduct in question would result in dismissal. The commissioner’s concern was that when the April incident occurred, there was no final written warning on Mabizela’s file, and that approach is correct if one has regard to NUM and Gud Holdings discussed above.

[41] Mr Bosch further submitted that Mabizela was not dismissed because of the final written warning per se, that Mabizela was a second offender, and that the commissioner ought to have taken these factors into account. In my views Mr Bosch’s submission ignores the fact that the written warning was the only reason the chairperson of the hearing imposed the sanction of dismissal in respect of the April 2019 incident. In Fidelity Cash[15], the court stated as follows:

‘[32] It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal…

[33] …In the light of the above, the appeal falls to be dismissed on this ground alone, namely, that the reasons for dismissal which the appellant relies upon to justify the dismissal are not the reasons for which the third respondent was dismissed at the time.’

[42] There is also no merit to the contention that in determining a fair sanction, the commissioner failed to have regard to the ‘totality of circumstances’ as per Sidumo.[16] On the contrary, the commissioner considered the totality of circumstances and came to the conclusion that dismissal was too harsh

a sanction. That finding is not one that a reasonable decision maker could not reach on the facts.

[43] The case authorities of Exxaro Coal (Pty) Ltd v AMCU obo Baloyi and Others[17] and Transnet Freight Rail v Transnet Bargaining Council and Others[18] relied upon for the proposition that employees on a final written warning must be dealt with decisively so as not to compromise safety in the workplace are distinguishable. In those cases, the employees had been issued with a final written and then committed misconduct after having been so warned. Mabizela’s situation is different in that when he committed the misconduct in April 2019, there was no final written warning hanging over his head.

[44] This ground of review has no merit and must fail.

Decision is one that no reasonable decision maker could reach

[45] Tiger Brands submitted that dismissal was an appropriate sanction given General Safety Regulation 2A issued in terms of the Occupational Health and Safety Act; the reasons for the policy; that Mabizela operated heavy machinery; the message that leniency sends to other employees; a lack of contrition on the part of Mabizela; and the fact that this was the second infraction. The submission is further that the dismissal was meted out because Mabizela had previously committed similar serious misconduct, not the fact of a final written warning per se.

[46] These submissions were dealt with above, the only issues remaining being the leniency message sent to other employees, and the lack of contrition on the part of Mabizela. The award does not set a precedent that leniency will be shown to all second offenders. The outcome was based on the peculiar facts before the commissioner. As for Mabizela’s lack of contrition, the commissioner addressed this by limiting Mabizela’s backpay to only one month backpay, coupled with a final written warning. In other words, the commissioner accepted that Mabizela deserved to be sanctioned, but not with the penalty of dismissal. That approach is reasonable, bearing in mind the case authorities cited above where the courts made it clear that a commissioner must decide a fair sanction according to their own sense of fairness and must consider whether what the employer did was fair. Where a commissioner does this, as happened in this case, the reviewing court should not readily interfere with such a decision except in limited circumstances. There are no limited circumstances justifying interference with the commissioner’s award.

Conclusion

[47] There is no merit to all the grounds for review raised by Tiger Brands, and l would dismiss the review application for the reasons set out in the judgment.

[48] In the premise, I make the following order:

Order

1. The review application is dismissed.

2. There is no order as to costs.

T Gandidze

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate Craig Bosch

Instructed by:

Ms Katelijne Wademan of Gavin Weiner & Associates

For the Respondent:

Clement Zulu, AFADWU Provincial Organiser

[1] Act 66 of 1995, as amended.

[2] Act 85 of 1993.

[3] (1987) 8 ILJ 315 (IC).

[4] (2004) 25 ILJ 2059 (CCMA).

[5] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC).

[6] Para 63 onwards.

[7] Sidumo supra at paras 78 – 79.

[8] [2007] ZALAC 12; (2008) 29 ILJ 964 (LAC) at para 95.

[9] Ibid at para 100.

[10] [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC) at paras 4 -5.

[11] Ibid at para 13.

[12] See Stokwe v Member of the Executive Council, Department of Education, Eastern Cape and Others [2019] ZACC 3; (2019) 40 ILJ 773 (CC) and Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark [2016] ZALCJHB 330; [2016] JOL 36595 (LC).

[13] [2020] ZALCD 8; [2020] JOL 48379 (LC).

[14] Gud Holdings at para 6.

[15] Fidelity Cash supra at paras 32 - 33.

[16] Sidumo supra at para 79.

[17] [2020] ZALCJHB 182; [2020] JOL 48562 (LC).

[18] [2011] ZALCCT 11; [2011] 6 BLLR 594 (LC) at para 64.2.