Weller v ABSA Bank Limited (JS850/20) [2021] ZALCJHB 207 (2 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JS850/20

In the matter between:

CHARLES

WILLIAM JOSEPH

WELLER Applicant

and

ABSA BANK

LIMITED Respondent

Heard: 06 July 2021

Delivered: 02 August 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 02 August 2021).

JUDGMENT

MOFOKENG, AJ

Introduction

[1] There are two issues for determination in this application. The first issue is whether the applicant was required to apply for condonation in respect of his statement of claim. The applicant contends that he was not required to apply for condonation because he referred his dispute to the Labour Court for adjudication within a period of 90 days from the date in which he received a certificate of non-resolution from the Commission for Conciliation, Mediation and Arbitration (the CCMA).

[2] If the answer to the first issue is in the affirmative, the second issue for determination would be whether condonation should be granted to the applicant.

Background

[3] For an appropriate appreciation of this matter, it is prudent that I traverse its relevant factual background just in brief.

[4] During October 2014, and in Nigeria, the applicant and the respondent concluded a written contract of employment in terms of which the applicant was employed as the Head of Financial Institutions Trade, Nigeria. The contract of employment was effective from 01 January 2015, and it was for an indefinite period.

[5] The applicant’s normal place of work was the respondent’s representative office in Lagos, Nigeria.

[6] There is a dispute about whether the applicant was employed to work for the respondent in Nigeria or was seconded to the respondent’s representative office in Nigeria. I am not called upon to determine that dispute.

[7] But what is not in dispute is the fact that on 11 February 2020, the respondent retrenched the applicant for operational reasons. The retrenchment[1] was conducted in terms of the Labour Relations Act 66 of 1995 (the LRA).

[8] Unhappy with his retrenchment, on 10 March 2020, the applicant declared an unfair dismissal dispute at the CCMA.

[9] Conciliation was set down for 02 April 2020. Conciliation did not take place on that day because South Africa went into lockdown from midnight 26 March to 30 April 2020 (Alert level 5).

[10] From 13 March up to August 2020, numerous enquiries were made by the applicant’s attorney to the CCMA regarding conciliation. As stated above, conciliation did not take place but on 03 September 2020, the

CCMA issued the applicant with a certificate of non-resolution.

[11] The certificate stated that the dispute was referred to conciliation on 10 March 2020 and it remained unresolved as of 09 April 2020. The certificate was signed and dated 20 April 2020.

[12] On 18 November 2020, the applicant filed his statement of claim at the Labour Court. In view of the fact that the applicant filed his statement of claim on 18 November 2020 having received the certificate of non-resolution on 03 September 2020, the applicant contends that he filed his statement of claim within a period of 90 days as contemplated in section 191(11) of the LRA.

[13] On the other hand, the respondent contends that the applicant was required to file his statement of claim upon the expiry of the 30-day period from the date in which he referred his dispute to the CCMA for conciliation.

[14] In this regard, the argument was that there was no need for the applicant to wait for a certificate that was issued almost after a period of 6 months had lapsed from the date in which the applicant referred his dispute to the CCMA. For this argument, the respondent relied on the provisions of section 191(5) of the LRA.

Section 191(5)&(11) of the LRA

[15] Section 191 of the LRA deals with disputes about unfair dismissals and unfair labour practices. Section 191(5) of the LRA provides that:

“(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved—

(a) the council or the Commission must arbitrate the dispute at the request of the employee if—

(i) the employee has alleged that the reason for dismissal is related to the employee’s conduct or capacity, unless paragraph (b) (iii) applies;

(ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187;

(iii) the employee does not know the reason for dismissal; or

(iv) the dispute concerns an unfair labour practice; or

(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is—

(i) automatically unfair;

(ii) based on the employer’s operational requirements;

(iii) the employees participation in a strike that does not comply with the provisions of Chapter IV; or

(iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.”

[16] Section 191(11)(a) provides that:

“(11) (a) The referral, in terms of subsection (5) (b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved”.

[17] The applicant contends that section 191(11)(a) makes a certificate of non-resolution a prerequisite for a referral of a dispute to the Labour Court for adjudication.

[18] To support his argument, the applicant placed reliance on NUM v Hernic Exploration (Pty) Ltd (2003) 24 ILJ 787 (LAC) as well as on NUMSA and Another v BMW SA (Pty) Ltd (2019) 40 ILJ 1818 (LC).

The Hernic judgment

[19] In Hernic, the Labour Appeal Court dealt with a matter whereby members of NUM were retrenched by Hernic. On about 16 December 1998, NUM referred a dispute to the CCMA for conciliation. Hernic did not attend the conciliation. The 30-day period within which the CCMA was required to conciliate the dispute lapsed on 15 January 1999. By the expiry of the 30 days, the certificate of outcome had not been issued by the commissioner. The commissioner issued the certificate of non-resolution on 18 February 1999. No agreement had been reached between the parties to extend the period of 30 days.

[20] At the Labour Court, Hernic took a point in limine to the effect that the CCMA was required by statute to attempt to conciliate a dismissal dispute within 30 days from the date in which the dispute was referred to it unless that period was extended by agreement between the parties.

[21] In this regard, Hernic contended that a commissioner is required to issue a certificate of non-resolution on or before the expiry of the 30-day period (or on or before the last day of the extended period where there has been an extension). Hernic’s point was that if the commissioner issues the certificate of non-resolution after the expiry of the 30-day period or the extended period, the 90-day period contemplated in section 191(11) starts to run from the expiry of the 30-day period and not from the date of the certification.

[22] Hernic’s point was dismissed by the Labour Court. When Hernic cross-appealed the dismissal of its point, the Labour Appeal Court agreed with the Labour Court. In agreeing with the Labour Court, the Labour Appeal Court stated that:

‘[45] … Section 191(11)(a) is clear in its provision that the referral of a dismissal dispute to the Labour Court for adjudication in terms of section 191(5)(b) must be made within 90 days after the council or the commissioner ‘has certified that the dispute remains unresolved.’ In any event section 191 which deals with the referral of dismissal disputes to conciliation, arbitration and adjudication does not anywhere provide for such disputes to be referred to the Labour Court for adjudication within 90 days from the expiry of the 30-day period or any extended period.

[46] If the legal position is that, once the 30-day period or the extended period, if there has been an extension, has expired, the commissioner has no power to certify that the dispute remains unresolved, but a commissioner certifies after the expiry of that period, then the position would be that, until the certificate has been set aside by a Court of competent jurisdiction, it stands and must be treated as valid and all concerned can act upon it. (Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ 2382 (LAC). The provisions of section 191(11)(a) would apply as soon as the commissioner has certified that the dispute remains unresolved.’

[23] In between the Hernic judgment and NUMSA v BMW, there was SAMWU obo Manentza v Ngwathe Local Municipality and Others (2015) 36 ILJ 2581 (LAC) which advanced a contrary interpretation from Hernic.

The Manentza judgment

[24] On 10 February 2003, Manentza referred an unfair dismissal dispute to the Bargaining Council. The conciliation process was set down on 03 April 2004. However, it was extended for a period of 7 days. The agreement for an extension indicated that depending on the outcome of the municipality’s consultation with its principals, the Bargaining Council would be approached for issuing the certificate of outcome.

[25] After the expiry of 7 days, Manentza requested the Bargaining Council to issue a certificate of outcome. Instead of issuing a certificate of outcome, the Bargaining Council erroneously enrolled the matter for arbitration on 01 December 2003. A certificate of outcome was eventually issued on 15 April 2004.

[26] On 24 June 2004, Manentza referred the dispute to arbitration. The arbitration was set down for hearing on 29 July 2004. At the arbitration, the municipality raised 3 points in limine. The relevant point for the purposes of this judgment is the one that contended that the Bargaining Council lacked jurisdiction to arbitrate the dispute because the referral to arbitration was late as a result of the late issuing of the certificate of non-resolution.

[27] In the appeal, the jurisdictional question turned on the interpretation of section 191(5) of the LRA.

[28] Manentza argued that in terms of section 191(5) read in the context of the LRA as a whole, an employee is entitled to wait for a certificate to be issued before referring a dispute to arbitration because the 90 days only starts to run from the date on which the certificate of non-resolution is issued. Manentza went further and contended that an employee has a choice to speed up the process by referring the dispute to arbitration after the expiry of the 30-day period contemplated in section 191(5) of the LRA but is not obliged to do so.

[29] The Labour Appeal Court disagreed with Manentza. The Court stated that:

“[28] I am unable to agree with the interpretation of section 191(5) of the LRA which the appellant contends for. Although the presence of the conjunctive “or” in section 191(5) of the LRA calls for a disjunctive reading of the provision, I disagree that it gives an employee an election to speed up the process by referring the dispute to arbitration on the expiry of the 30-day period contemplated in the subsection, or wait for conciliation to take place and for a certificate to be issued. On a proper interpretation, section 191(5) of the LRA entitles an employee to refer an unresolved unfair dismissal or unfair labour practice dispute to the CCMA or a bargaining council, in terms of subsection (a) thereof, or for adjudication to the Labour Court, in terms of subsection (b) thereof, upon the occurrence of either of two events: the issue of a certificate of non-resolution of the dispute or the expiry of the 30-day period from either the CCMA’s or the bargaining council’s receipt of the referral. The effect of this interpretation is that the occurrence of either of these two events entitles an employee to request the bargaining council concerned or the CCMA to arbitrate the dispute in terms of section 191(5)(a) of the LRA or to refer the dispute to the Labour Court for adjudication in terms of section 191(5)(b) thereof.

[29] Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employee’s right to proceed to arbitration or adjudication. The employee’s entitlement to refer the matter to arbitration or adjudication as contemplated in section 191(5)(a) and (b) of the LRA respectively, does not arise from any election on the employee’s part as contended for by the appellant, but rather from whichever of the two jurisdictional events occurs first in sequence of time. Thus, where conciliation takes place under the auspices of the CCMA or a bargaining council within the 30-day period contemplated in section 191(5) of the LRA, and a certificate of non-resolution is issued within that period, the employee’s right to refer the dispute to arbitration or adjudication will be triggered by the issue of the certificate as the jurisdictional event conferring this right. In this case, the subsequent expiry of the 30-day period will play no role in founding the employee’s right to refer the dispute to arbitration or adjudication.

[30] Similarly, where the 30-day period contemplated in the subsection lapses without the holding of a conciliation proceeding and the

CCMA or a bargaining council certifying that the dispute remains unresolved, the lapse of the 30-day period will form the jurisdictional trigger entitling the employee to refer the dispute to arbitration. This right having accrued to the employee upon the lapse of the 30-day period contemplated in section 191(5) of the LRA will not be affected by the convening of any subsequent conciliation proceedings or the issue of a certificate of outcome consequent thereupon. As correctly pointed out by the municipality, in the latter scenario, the issue of the certificate would have no effect in law as it would be superfluous to the employee’s right to refer the unfair dismissal or unfair labour practice dispute to arbitration since this right would have already accrued to the employee on the lapse of the 30 days from the date that the CCMA or the bargaining council had received the referral.” (Emphasis added)

[30] In the light of the Labour Appeal Court judgment in Manentza, it is clear that for purposes of section 191(5) of the LRA, a certificate of non-resolution is not a sine qua non for referral of a dispute to the Labour Court for adjudication.

[31] If a certificate of non-resolution was a prerequisite for a referral to arbitration or adjudication, the legislature would not have made provision for two jurisdictional events in section 191(5) of the LRA.

[32] It is implicit from section 191(5) of the LRA that conciliation must take place prior to the lapse of 30 days from the date of receipt of the referral by the CCMA or the Bargaining Council.[2] It is also implicit from section 191(5) that the council or the commissioner must issue a certificate of non-resolution prior to the lapse of the 30-day period so as for the certificate to open the jurisdictional door for a referral to arbitration or adjudication of a dispute.

[33] For purposes of section 191(5) of the LRA, once the 30-day period or the extended period has expired, there is absolutely nothing for the council or the commissioner to certify. This must be so because of what I refer to as the “certification validity period” which is a period of 30 days from receipt of the referral for conciliation by the Bargaining Council or the CCMA.

[34] A certificate of non-resolution issued by the council or the commissioner outside the certification validity period serves no purpose in respect of the employee’s right to refer the dispute for adjudication to the Labour Court.[3]

[35] This is so due to the fact that immediately after the expiry of the 30-day period or the extended period, contemplated in section 191(5) of the LRA, and without the council or the commissioner having issued a certificate of non-resolution, the employee acquires the right to refer a dispute for adjudication.

[36] The Labour Appeal Court in Manentza put the point across in this manner:

“[42] I repeat, that upon the 30-day period expiring prior to the issue of a certificate of outcome, the issue of a certificate is not required to found the employee’s right of referral of the dispute to arbitration or adjudication. As alluded to above, the issue of a certificate of non-resolution is not a prerequisite for a referral to arbitration or adjudication in these circumstances since the right of referral would have already accrued to the employee on expiry of the 30-day period contemplated in the subsection. To my mind, the issue of a certificate of outcome following such accrual, would be superfluous to the employee’s right of referral to arbitration, as would be the holding of conciliation proceedings, pursuant to which such certificate is issued, since section 191 of the LRA does not envisage that on the lapse of the 30-day period contemplated in subsection (5), a further attempt at conciliation should be made. Thus, the subsequent holding of conciliation proceedings will have no impact upon the employee’s right to refer his or her dispute to arbitration or adjudication on the lapse of the 30-day period contemplated in section 191(5) of the LRA.”

[37] On a proper interpretation of the Manentza judgment, it seems to me that the applicant was not entitled to elect to wait for a certificate of non-resolution before making a referral for adjudication to the Labour Court. A certificate of non-resolution was issued on 03 September 2020 in circumstances where the applicant referred his dispute to the CCMA on 10 March 2020.

[38] Therefore, upon the expiry of the 30-day period from receipt of his referral by the CCMA and without the applicant having been issued with a certificate of non-resolution, the lapse of the 30 days presented the applicant with a jurisdictional torch which immediately lights up the pathway for him to file his statement of claim at the Labour Court.

[39] To illustrate the point further, if the applicant is correct in his contention, that would mean the council, or the commissioner has unlimited amount of time within which to issue a certificate of non-resolution. That cannot be so because such event would render the 30-day period in section 191(5) nugatory. Furthermore, such latitude would be against the principle that labour disputes must be resolved expeditiously.

The BMW judgment

[40] In BMW, the dispute was referred to the CCMA for conciliation on 15 February 2018. The conciliation process took place on 13 July 2018 and the commissioner issued a certificate of non-resolution. On 11 October 2018, NUMSA referred a dispute to the Labour Court for adjudication.

[41] BMW raised a special plea contending that the dispute was referred for adjudication out of time.

[42] In dismissing the special plea, the Court relied on Hernic and concluded that the remarks of the Labour Appeal Court in Manentza are obiter to the extent that the Manentza judgment made reference to any referral for adjudication.

[43] The Court in BMW stated that:

“[10] The SAMWU judgment was one that dealt with a referral made to a bargaining council in terms of s 191(5)(a). The present case is distinguishable; it is a referral for adjudication made in terms of s 191 (5) (b). To the extent that the judgment makes references to any referral for adjudication under s 191(5)(b), these are obiter. Further, it seems to me, contrary to what the respondent submits, that the LAC did not refer to or explicitly overturn Hernic. The judgment makes no reference to s 191 (11), which specifically provides that a dispute be referred for adjudication (as opposed to arbitration) within 90 days of the date that the CCMA certifies that the dispute remains unresolved. There is no corresponding provision that applies to referrals to arbitration. This may well be anomalous, but the plain wording of s 191 (11) draws a clear distinction between the processes of arbitration and adjudication, and the time limits applicable to each.

…

[13] In summary: in the case of a dispute that is required to be referred for adjudication (as opposed to arbitration), s191(11) requires the dispute to be referred within 90 days of the issuing of a certificate of outcome, regardless of the date of which the 30-day period immediately following the date of referral of the dispute expired. The applicant’s referral to this Court was made within 90 days of the date of the certificate of outcome, and was thus timeously made. Condonation for a late referral is not required …”

[44] In my respectful view, section 191(11)(a) of the LRA is about subsection 5(b) and the Labour Appeal Court in Manentza gave a full interpretation of section 191(5). It does not appear anywhere in the Manentza judgment that the interpretation of section 191(5) advanced by the Labour Appeal Court is limited and applicable only to the arbitration proceedings. In my view, the interpretation of section 191(5) by the Labour Appeal Court in Manentza apply with equal force in respect of a referral for adjudication to the Labour Court.

Secondly, it was stated in Osenton v Commercial Refrigeration Services (Pty) Ltd (2019) 40 ILJ 1843 (LC) that it could never have been the intention of the Legislature to regulate the same dispute differently in relation to time period for a referral. The Court in that case further held that when interpreting section 191(11)(a) of the LRA, one must have regard to the provisions of subsection 5(b) and that “there is no illusion that the referral contemplated in section 191(11) is one in subsection 5(b). Where reference is made to certified, it must mean certified after conciliation or after the expiry of the 30 days and the dispute remaining unresolved. Any other interpretation would render the opening phrase of the section superfluous and meaningless”.[4]

[45] It is the duty of a Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.[5] As I understand section 191 of the LRA, when you go to subsection 5(b), you do not have an election on what to take from that subsection.

[46] You take what subsection 5(b) gives you. And subsection 5(b) gives you two triggering events: the certificate of non-resolution or the expiry of the 30-day period from the date in which the Bargaining Council or the CCMA received the referral. Whichever event comes first triggers the jurisdiction for adjudication. You then go to subsection 11(a) armed with one of the triggering events given to you by subsection 5(b).

[47] In my view, that is the only interpretation that does not undermine the principle of expeditious resolution of labour disputes. Limiting section 191(11)(a) to the issuing of a certificate of non-resolution will stultify the primary object of the LRA which is about speedy resolution of labour disputes.[6]

[48] Relying on the Manentza and the Osenton judgments, I come to the conclusion that the 90-day period in section 191(11)(a) of the LRA does not start to run only after the certificate of non-resolution is issued. The 90-day period also start to run immediately upon the expiry of the 30-day period contemplated in section 191(5) of the LRA.

[49] As a result, it was necessary for the applicant to apply for condonation for his late referral to this Court. The applicant has applied for condonation and I now turn to determine whether the application for condonation should be granted.

Should condonation be granted?

[50] The delay in filing the statement of claim is 133 days. The explanation given by the applicant for the delay was, in summary, that shortly after his dismissal he returned to Germany. On 10 March 2021 he referred an unfair dismissal dispute to the CCMA and on 13 March 2021 he received a notice of set down for conciliation which was to take place on 02 April 2021. Due to the closure of international borders, he could not return to South Africa. The CCMA was informed of the applicant’s inability to travel to South Africa. On 17 March 2021, the CCMA issued a directive to the effect that conciliation could take place telephonically if agreed between the parties.

[51] From March up to August 2020, the applicant’s attorney was communicating with the CCMA regarding the conciliation process. The applicant on the other hand while in Germany, was busy trying to sort out his bank account issues with the respondent as he was unable to transact on his account.

[52] In respect of his bank account, the explanation furnished by the applicant was that after his dismissal he went to the respondent’s Sandton branch to make a request to the respondent to change his contact details to reflect his impending move to Germany. He only discovered when he arrived in Germany that the respondent did not process his request. The effect of this was that he was unable to transact on his bank account because each payment authorization requires a 4-digit pin number, and he was unable to access this 4-digit pin number. The applicant needed to transact on his bank account in order to be able to pay legal fees to his attorney.

[53] On 24 August 2020, the respondent furnished the applicant with an indemnity form which he was required to complete and submit together with certified copies of his passport. He experienced challenges in certifying copies of his passport. He managed to courier the required documents to the respondent on 10 September 2020. The respondent eventually activated his account on 19 October 2020, and he then made payment to his attorney.

[54] In addition, Covid-19 had a significant impact on the applicant and his family as he presented with Covid-19 symptoms in August 2020, and he was required to quarantine for two weeks. In September 2020, he was also ill with kidney and back problems. On 19 October 2020, the applicant’s wife tested positive for Covid-19. On 29 October 2020, the applicant’s son also tested positive for Covid-19.

[55] The applicant’s explanation is acceptable. I cannot find any indication that the conduct of the applicant demonstrates that he acquiesced with the decision to dismiss him. There is also no evidence which suggest that the applicant was dilatory in the prosecution of his claim. I conclude that the applicant’s explanation is reasonable.

[56] The criticism by the respondent that the applicant was busy trying to arbitrate the dispute and that the respondent raised a point in limine in July 2020 in a draft pre-arbitration minutes to the effect that the CCMA was an incorrect forum cannot on its own, mean that the doors of this Court should be closed on the applicant.

[57] Mr. Moll, who appeared on behalf of the applicant argued that at the time when the applicant and the respondent were preparing the pre-arbitration minutes, the jurisdiction of the CCMA was still a contested issue between parties. In addition, the certificate of non-resolution which the applicant thought was a jurisdictional event stated that the matter had to be referred to arbitration. Under the circumstances, I am unable to conclude that the applicant should be penalized for not conceding the respondent’s in limine point which was raised while both parties were busy preparing for arbitration.

[58] Ms. Ngwenya, who appeared on behalf of the respondent also complained about finality in litigation. In this regard, the complaint was that condoning the late filing of the applicant’s statement of claim would deny the respondent the right to expeditious resolution of the dispute. There is some force in this argument, however, finality is a good thing, but justice is better.

[59] The standard for considering an application for condonation is the interests of justice.[7] Condoning the late filing of the applicant’s statement of claim would not be against the interests of justice, and certainly it would not delay the finalization of the matter. The respondent has already filed its statement of response. The matter is trial ready.

[60] I do not understand the principle of finality to be a flame-thrower designed to expedite labour litigation while at the same time it prevents the adjudication of the merits of a matter such as the present simply because of a procedural impediment.

[61] For my remarks, I draw support from Comrie AJA in Rademan v Containerlink[8], where the Court stated that:

“Reasonable expedition is no doubt laudable in all litigation, and the more so in labour disputes. It is not however an end in itself. Circumstances arise where expedition must yield to other considerations, if justice is to be done…”

[62] Condonation is not a mechanical process but one that involves the balancing of often competing factors. The respondent contended that the applicant’s prospects of success are weak because it followed a proper procedure when effecting the retrenchment. On the other hand, the applicant contended that there was no joint consensus seeking process because his retrenchment was a foregone conclusion.

[63] The other contention was that the applicant was recruited specifically for employment in Nigeria. However, this contention is undermined by a letter from the respondent dated 27 February 2020 which stated that the applicant was employed by ABSA South Africa and was seconded to ABSA Nigeria.

[64] These are all triable issues which makes the applicant to have reasonable prospects of success at trial. More particularly, in the context of terminations of employment for operational reasons, it must be seldom that a controversy truly is determined on a single element of the case.

[65] The matter deserves the attention of the trial Court, and I am prepared to send it straight to that Court.

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

Order

1. Condonation is granted in respect of the late filing of the applicant’s statement of claim.

2. There is no order as to costs.

Mofokeng AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant : P Moll

Instructed by : Reed Law Inc

For the respondent : Z Ngwenya

Instructed by : Cliffe Dekker Hofmeyr Inc

[1] I make no determination whether Absa complied with s189 of the LRA when retrenching the applicant.

[2] Manentza at para 36.

[3] See: Louw v Micor Shipping (1999) 12 BLLR 308 (LC), at para 7.

[4] At para 8—10.

[5] See: Foster v Carlis and Houthakker 1924 TPD 247 at 252.

[6] See: National Education Health and Allied Workers Union v University of Cape Town and Others (2003) 24 ILJ 95 (CC), para 31; Toyota SA Motors (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others (2015) JOL 34970 (CC), para 1; Natal Joint Municipality Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), paras 18 and 26.

[7] Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC), para 20.

[8] Unreported judgment: DA5/00 [2001] ZALAC 15 (Delivered: 1 January 2001) at para 14.