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Citation
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Judgment date
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| December 2016 |
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Whether non-parties may be added as respondents on appeal when they were not cited in earlier proceedings.
Civil procedure — Joinder vs substitution — Parties to original proceedings — Locus standi of non‑parties on appeal — Representative capacity of trade unions — Vague and embarrassing pleadings.
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16 December 2016 |
| November 2016 |
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Conviction based on uncorroborated accomplice testimony was unsafe; sentence quashed for lack of reasons.
Criminal law — fraud — accomplice evidence — s 267 Criminal Procedure and Evidence Act — cautionary rule — necessity for corroboration implicating accused or other features removing danger of false incrimination — failure to warn; criminal procedure — sentencing — duty to give reasons — gross irregularity; conviction unsafe and sentence quashed.
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28 November 2016 |
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A revenue authority may appoint agents and garnishee accounts; trial court erred in mero motu administrative review and granting interdict.
Tax law – VAT Act ss 36 & 48 – power to appoint agents and garnishee bank accounts; ‘pay now, argue later’ principle; administrative review – limits on courts raising issues mero motu; interdicts not available to protect duties to pay tax; construction of s 14 Fiscal Appeal Court Act vs s 36 VAT Act.
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24 November 2016 |
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Failure to give reasons and not deciding a decisive preliminary point vitiated Labour Court orders substituting the employer; orders set aside.
Civil procedure — duty to give reasons — absence of reasons vitiates contested proceedings; Labour law — amendment of notice of appeal and proper citation; corporate veil — court's lack of jurisdiction to uplift; Supreme Court s25 review powers to set aside irregular proceedings.
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17 November 2016 |
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Longstanding failure to secure employer's bullion and remediate missing spare key constituted habitual neglect justifying dismissal.
Employment law – misconduct – custodial duties over employer’s property – breach of fundamental term – habitual and substantial neglect of duties – formulation of disciplinary charge – dismissal substantively fair.
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7 November 2016 |
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Arbitral damage awards must be evidence-based; employee failed to prove losses beyond the four-month unemployment period.
Labour law – wrongful dismissal – quantification of damages – onus on employee to prove loss – mitigation – damages limited to period until alternative employment found – arbitral awards must be supported by evidence; award without evidentiary basis unsustainable.
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3 November 2016 |
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A materially defective counter-application is a nullity; specific performance cannot be granted on a validly cancelled contract.
Civil procedure — Counter-application formalities (r 229A, r 230) — failure to use Form 29 renders counter-application invalid; Specific performance — cancelled contract — must set aside cancellation and show prestatement; Disputes of fact not resolvable on papers.
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1 November 2016 |
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Whether dismissal for failure to submit claims was justified and reinstatement order valid without damages alternative.
Labour law — dismissal for misconduct — negligence vs gross negligence — employer's discretion to treat misconduct as repudiatory — limited appellate interference — reinstatement orders must include damages alternative (s 89(2)(c)(iii) Labour Act).
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1 November 2016 |
| October 2016 |
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The award was invalidated because the respondent failed to meet mandatory financial funding and bank guarantee tender requirements.
Procurement law — mandatory tender requirements — compliance with financial funding proposals and bank guarantees — administrative review — invalid tender award and setting aside of contracts and statutory certificate — remittal for fresh tender — legal ethics and abuse of court process; costs.
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28 October 2016 |
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Court remitted matter after trial court failed to decide the referred special case and exceeded its mandate.
Banking Act s54 – effect on shareholders of a bank under curatorship; special case procedure – pre-trial conference minute; court exceeding scope of referral; fundamental procedural irregularity; remittal.
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13 October 2016 |
| September 2016 |
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Application to reinstate a lapsed appeal dismissed for non-compliance with mandatory rule requiring payment/undertaking for the record.
Civil procedure — reinstatement of lapsed appeal; Supreme Court Rules r34 (deposit/undertaking for record) — mandatory compliance; r26 inapplicable to civil appeals (Part IV criminal appeals); r4 (departure from rules) not to be used to circumvent mandatory provisions; condonation — onus on applicant; finality of litigation; costs — attorney–client scale.
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29 September 2016 |
| August 2016 |
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An arbitrator and Labour Court may not replace an employer’s discretionary decision to dismiss for wilful disobedience absent misdirection or unreasonableness.
Labour law – wilful disobedience – transfers – dismissal discretionary under National Employment Code s4 and s7(3) – appellate interference only for misdirection or gross unreasonableness.
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18 August 2016 |
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An employer’s dismissal was invalid where the chairman improperly overturned a disciplinary majority and cast an unentitled deciding vote.
Labour law – limits on appellate review of factual findings – employer’s duty under s 6(1)(d) Labour Act – disciplinary procedure – majority decision binding; chairman’s casting vote only on equal votes (s 4(5) of Code) – unexplained duplicate minutes invalidating dismissal.
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3 August 2016 |
| July 2016 |
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Refusal to correct a material mis‑citation renders proceedings improperly before the court and justifies striking off and punitive costs.
Civil procedure — mis‑citation/wrong party — locus standi — abuse of process — applicant cannot benefit from own wrong — wrong citation may render proceedings void — exemplary costs.
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22 July 2016 |
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A default judgment granted in error due to registry mistake must be rescinded under r449 without proving "good cause".
Civil procedure — Rescission of default judgment — High Court Rules r 63 versus r 449(1)(a) — Judgment erroneously granted — Court may invoke r 449 mero motu — No requirement to show "good cause" where judgment was granted in error — Inherent jurisdiction to correct patent errors.
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21 July 2016 |
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The applicant’s persistent noncompliance with an extant eviction order barred him from seeking condonation and appeal until he purged his contempt.
Civil procedure – condonation and extension of time – dirty hands doctrine – obligation to comply with extant court orders pending appeal or stay – purging contempt before seeking relief.
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20 July 2016 |
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Appeal dismissed: grounds challenged factual findings, not points of law, and the notice contained an incompetent remedial prayer.
Labour law – appeals against arbitral awards – section 98(10) Labour Act – appeals only on points of law – factual findings not reviewable absent pleaded gross misdirection or irrationality – defective notice of appeal – incompetent remedial prayer (remittal to court a quo).
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5 July 2016 |
| June 2016 |
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A company placed in liquidation after commencing suit retains locus standi and need not seek leave to continue as plaintiff.
Company law — effect of liquidation on existing litigation — locus standi of a plaintiff-company placed under liquidation — interpretation of s 213 and s 221(2) of the Companies Act — procedural requirements for raising special pleas after litis contestatio — improper striking off of proceedings.
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30 June 2016 |
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Appellant must obey valid labour regulations and cannot seek judicial relief while refusing compliance (dirty hands doctrine).
Administrative law – Dirty hands doctrine – Obligation to obey valid statutory instruments pending judicial review – Collective bargaining agreements – Right of access to courts and property protection exercised consistently with obedience to law.
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23 June 2016 |
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Condonation for late noting of appeal refused due to no reasonable prospects of success despite some sympathy for applicant.
Civil procedure – condonation and extension of time to note appeal – application assessed under extent of delay, reasonableness of explanation, and prospects of success (Kombayi test) – credibility findings and evidence that property was sold inter vivos – no reasonable prospects of success – ordinary costs.
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23 June 2016 |
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An auctioneer earns commission upon conclusion of a sale; a retention clause is enforceable absent demonstrated disproportionality.
Auction law – Auctioneer’s commission – entitlement arises on conclusion of sale; Contractual Penalties Act s4 – reduction only if penalty disproportionate and factual basis proved; pleadings – closing submissions do not substitute for pleaded or proved facts; points of law may be raised on appeal if no unfairness.
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21 June 2016 |
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Application for leave to appeal dismissed for procedural default, failure to seek rescission/condonation, and inordinate delay.
Labour law – Leave to appeal – s 92F – appeal to Supreme Court decided afresh on merits; Procedural compliance – failure to file heads of argument; Rescission – s 92C required for orders made in absence; Rules r 26 and r 33 – condonation/extension; Inordinate delay and failure to exhaust remedies – grounds for dismissal.
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15 June 2016 |
| May 2016 |
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Sale of whole property upheld; court erred in dismissing rescission for want of prosecution without considering merits and prejudice.
Property law – Regional Town and Country Planning Act s 39(1)(b)(i) – subdivision permits – agreements for change of ownership of portion of property; Civil procedure – High Court Rules r 236(3) – dismissal for want of prosecution – judicial discretion requires consideration of delay and explanation, prospects of success, balance of convenience and prejudice; Rescission of default judgment – procedural fairness and proper exercise of discretion; Irregularities – summary orders and judicial assignment.
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31 May 2016 |
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An employer’s disciplinary discretion (including dismissal) stands unless shown to be improperly exercised; prior warnings remain relevant to penalty.
Labour law – disciplinary penalty – employer’s discretion to dismiss – appellate interference only for misdirection or irrationality – relevance of prior warnings irrespective of chronology or exact similarity.
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30 May 2016 |
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Court upheld dismissal for gross negligence and proven sexual misconduct; charges were not prescribed.
Employment law – disciplinary procedure – prescription – when employer becomes aware of facts – gross negligence for failure to graft crop – sexual misconduct with junior staff – corroboration and credibility – dismissal as permissible sanction.
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24 May 2016 |
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Condonation granted; arguable appeal where respondent’s conduct, waiver and timely review of Master’s confirmation raise material disputed issues.
Succession and administration of estates – condonation of late appeal – reasonable explanation for delay – waiver by conduct and correspondence – review of Master’s confirmation of distribution under s 52(9) Administration of Estates Act – disputed factual issues requiring Master’s report or oral evidence.
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23 May 2016 |
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Misconduct destroying employer’s trust (removing confidential records, intimidation) warranted dismissal; appellate interference with arbitral penalty was proper.
Employment law – Misconduct going to the root of the contract – Removal of confidential personnel records and intimidation – Trust eroded — Appropriate penalty of summary dismissal – Role of mitigating factors under s 12B(4) of the Labour Act – Scope of appellate interference with arbitral discretion.
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23 May 2016 |
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Completion of a pension withdrawal form stating “leaving Conquip” constituted a communicated resignation, dismissal with costs awarded.
Employment law – Resignation as a unilateral act – Communication and form of resignation – Pension withdrawal form as notice – Employer acceptance by company official – Costs on legal practitioner and client scale for dishonest or frivolous litigation.
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18 May 2016 |
| April 2016 |
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Applicant's leave to appeal refused for relying on non-appealable factual findings and defective notice of appeal.
Labour law – leave to appeal – appeal against factual findings of arbitrator – appealability – procedural compliance with notice of appeal – standard of irrationality for interfering with findings of fact.
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26 April 2016 |
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A respondent is not delictually liable for its lawyer’s wrongful eviction absent the respondent’s own wrongful participation or foreseeability.
Delict – liability for legal practitioner's delicts – mandatum/mandatary – client not vicariously liable absent participation or foreseeability; Aquilian action – requirements of wrongfulness and culpa and need for particulars; actio injuriarum – necessity to plead intentional infringement of personality rights; unlawful eviction and attachment.
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6 April 2016 |
| March 2016 |
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Labour Court lacked jurisdiction to grant interdict or declaratory relief; retrenchment agreement and Board approval upheld.
Labour law – jurisdiction of Labour Court – interdicts and declaratory orders – statutory limits of Labour Court powers under s 89 – retrenchment procedures and Retrenchment Board approval – company law – separate legal personality and piercing the corporate veil.
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29 March 2016 |
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Failure to value attached goods and continuing sale after debt satisfied renders attachment and sales nullities.
Civil procedure — Attachment and sale in execution — High Court Rules r 335 (inventory and valuation mandatory), r 340 (sale to stop when sufficient funds raised), r 341 (excess funds), High Court Act s 20 (duties of sheriff), nullity of unlawful attachment and sale.
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29 March 2016 |
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A former spouse may recover arrear maintenance and medical expenses under s 11 despite informal variation and prescription defences.
Maintenance law – Arrear maintenance and reimbursement of medical expenses – Matrimonial Causes Act s 11 – Recovery by former spouse – Prescription and acknowledgement of debt – Dollarization and alleged impossibility – Informal variation of consent maintenance order enforceable – Best interests of the child – Costs (punitive scale).
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22 March 2016 |
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Deed of suretyship remained binding absent written cancellation; privileged lawyer-client letter was inadmissible without proof of waiver.
Contract — Suretyship — Requirement of written cancellation under deed clause — No novation where original suretyship not cancelled; Evidence — Legal practitioner-client privilege — Onus to prove waiver of privilege; Admission of privileged communication without proof of waiver is erroneous.
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15 March 2016 |
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Appeal dismissed: defective foreign power of attorney, late opposing papers, and judicial management sought as abuse to avoid contractual liability.
Companies law — Judicial management — Provisional and final judicial management under ss 300 & 305 — Abuse of process where application seeks to avoid suretyship/mortgage obligations; Authentication and translation of foreign Powers of Attorney — High Court (Authentication of Documents) Rules; Publication short form as dies induciae — service and notice requirements; Assumption of agency by legal practitioners.
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14 March 2016 |
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Failure to decide a dispositive preliminary procedural point and to give reasons vitiates a judgment and warrants remittal.
Administrative law — Procedural propriety of judicial review applications — Distinction between Order 33 and Order 32/r 226 — Duty to decide dispositive preliminary points — Requirement to give reasons for tacit acceptance — Failure to decide preliminary issue vitiates order — Remittal.
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11 March 2016 |
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Appeal dismissed: no admissible fresh evidence, no security under r66, no bona fide defence, prior Supreme Court decision dispositive.
Civil procedure – Summary judgment – High Court Rules r66/r68/r69 – security to satisfaction of Registrar – bona fide defence; Appeal – adducing further evidence on appeal – supplementation of record; Finality of litigation – prior Supreme Court decision; Costs – scale and de bonis propriis.
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11 March 2016 |
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A notice of appeal omitting the relief sought is not substantially compliant with Form LC3 and can be struck off the roll.
Labour Court procedure — Notice of appeal (Form LC3) — requirement to state determination appealed and relief sought — substantial compliance — rule 37 improvisation limited — s49 Labour Act discretion subject to prescribed procedures — condonation of fatal defects.
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8 March 2016 |
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A deregistered trade union loses capacity to sue; successor must apply for substitution before prosecuting former union’s claims.
Labour law — Trade union deregistration — Effect on corporate capacity to sue or be sued under s29(2) Labour Act — Proceedings by non-existent entity are nullity — Successor union must apply for substitution to claim rights.
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7 March 2016 |
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Domicilium clause and clear admission of debt defeated rescission; appeal dismissed with costs.
Civil procedure – rescission of default judgment – good and sufficient cause – domicilium citandi et executandi – valid service – acknowledgement of debt – bona fide defence – appellate interference with discretion.
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4 March 2016 |
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Informal assignment not a s14 secondment; court awarded appellant allowance arrears for Oct–Dec 2009.
Public Service Regulations s14 — secondment; whether appointment to run another institution amounts to release to an approved service; implied contract and conduct of parties; entitlement to allowance arrears.
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4 March 2016 |
| February 2016 |
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Failure to lift a suspension after acquittal is not automatically an unfair labour practice; reinstatement under s 6(2)(b) differs from reinstatement after dismissal.
Labour law – suspension v dismissal – meaning of reinstatement under s 6(2)(b) of the Labour (National Employment Code of Conduct) Regulations – discretionary refusal to lift suspension – damages in lieu of reinstatement arise in dismissal cases, not suspension disputes.
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25 February 2016 |
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A rescission order made after the decision cannot be adduced as further evidence on appeal; further evidence must have existed when the decision was made.
Civil procedure – Appeal – Further evidence – Border Syndicate criteria – Evidence must have existed or been obtainable at time trial decision – Rescission made after judgment not admissible; Arbitration – Registration of arbitral award – Interim suspension by Labour Court – Jurisdiction to suspend enforcement pending appeal.
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23 February 2016 |
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Host State allowed to vindicate international organisation’s immunity; condonation granted for late appeal.
Civil procedure – condonation for late appeal; locus standi of host State to vindicate international organisation’s immunity; constitutional effect of treaties and international customary law (s 326(2), s 327(6)); FAO Headquarters Agreement and UN Convention confer immunity from suit, process and execution; stay rendered moot by payment under garnishee.
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16 February 2016 |
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Whether disciplinary proceedings were before a properly constituted disciplinary authority and whether damages may be awarded without evidence.
Labour law – disciplinary authority v disciplinary committee – interpretation of National (Employment) Code definitions and s 6(4)(b) – constitution and validity of disciplinary proceedings – award and quantification of damages – requirement for evidence on liability and mitigation.
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15 February 2016 |