THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 701/2012
REPORTABLE
In the matter between:

Andre Herholdt

Appellant
and
Nedbank Limited

Respondent
and
Congress of South African Trade Unions

Amicus Curiae

Neutral citation:  Herholdt v Nedbank Ltd (701/2012) [2013] ZASCA
97 (5 September 2013)
Coram:
Nugent, Cachalia, Shongwe, Wallis JJA and Swain AJA.
Heard:
23 August 2013
Delivered: 5 September 2013

Summary: CCMA arbitration – review – s 145(2)(a) of the Labour
Relations Act 66 of 1995 – grounds of review restated.

ORDER

On appeal from: Labour Appeal Court  (Murphy AJA, Mlambo JP and
Mocumie AJA, concurring, sitting as court of appeal from the Labour
Court).

The appeal is dismissed with costs such costs to include those attendant
upon the employment of two counsel.

JUDGMENT

CACHALIA and WALLIS JJA (NUGENT, SHONGWE JJA AND
SWAIN AJA concurring):

[1] Nedbank Limited dismissed Mr Andre Herholdt, who was
employed as a financial planner, for dishonestly failing to disclose a
conflict of interest arising from his being appointed a beneficiary in the
will of a client, Mr John Smith. He successfully challenged his dismissal
in arbitration proceedings before the CCMA in terms of s 138 of the
Labour Relations Act (the LRA).1 Gush J, in the Labour Court, upheld a
review of the arbitrator’s award and set it aside. This is an appeal, with
the leave of this court, against the decision of the Labour Appeal Court
(the LAC) dismissing an appeal against the judgment of Gush J.

1 Act 66 of 1995.

[2] It is only necessary to refer briefly to the facts. Two wills were
relevant to the charge against Mr Herholdt. The first was executed on
28 December 2007 and nominated him as a legatee to the proceeds of an
investment valued at £92 000. The second, executed on 27 May 2008,
appointed Mr Herholdt and his life partner as the sole heirs to Mr Smith’s
estate. Neither will was disclosed to Mr Herholdt’s line manager,
Mr Snyman, as required by Nedbank’s policy on conflicts of interest.
That is so notwithstanding that, on either 22 or 23 May 2008,
Mr Herholdt had asked his regional manager, Ms Esterhuizen, what he
should do if he was made the beneficiary of a client’s will and was
specifically told that in that event he had to disclose the details in full to
his line manager.

[3] In those circumstances the only issue for the CCMA arbitrator to
decide was whether the failure to disclose the existence of the wills, and
the fact that a client had made Mr Herholdt a beneficiary, was dishonest.
Mr Herholdt faced two difficulties in this regard. When Mr Smith had
first mooted making him a beneficiary, he was, on his own version,
‘uncomfortable’ with the notion and sought advice from Mr Williamson,
an employee of an associated company that prepared wills for Nedbank
customers at the instance of financial advisers such as Mr Herholdt.
Mr Williamson advised him that there were possible issues of a conflict
of interest and the potential for a complaint of exercising undue influence
over the client. He told Mr Herholdt that a letter should be prepared and
signed by Mr Smith confirming that he made this bequest of his own free
will. He also told Mr Herholdt that the fact of the bequest should be
disclosed to his manager. The letter was prepared and signed in
accordance with this advice but left, together with the will, with

Mr Williamson. A similar letter was prepared and signed and left with
Mr Williamson after the second will was executed.

[4] It was therefore undisputed that Mr Herholdt did not bring the two
wills and their terms, so far as they conferred benefits upon him, to the
attention of his line manager or any other appropriate person in the
hierarchy of the bank. It could not be disputed that he was aware of the
need to do this in the light of the unchallenged evidence of
Mr Williamson and Ms Esterhuizen. That left him with the explanation
that he thought Mr Williamson would furnish the letters to his manager
on his behalf. No factual foundation was laid for him to entertain such a
belief. He did not even say that he had asked Mr Williamson to do this
nor, when the issue arose as a result of an investigation by the bank
following a query from the Financial Services Board, did he respond by
saying that he had done what was necessary to make a disclosure because
he had requested Mr Williamson to make it on his behalf. Mr Williamson
was clear that he undertook no such responsibility.

[5] The Labour Court and the LAC held that the only inference that
could be drawn from the evidence was that Mr Herholdt deliberately
chose not to disclose the existence of the two wills to his employer when
he knew that he was obliged to do so. As he had not said why he did this,
preferring to advance several spurious excuses, including the proposition
that the wills did not give rise to a conflict of interest between the bank
and its customer and that he was not aware of the obligation to disclose,
their conclusion was that his non-disclosure was dishonest.

[6] The arbitrator had reached a contrary conclusion. This Court would
ordinarily have been disinclined to entertain the appeal because the

appellant principally attacked the factual findings of the LAC. And this
court has made it clear that it will not interfere with a decision of the
LAC only because it considers it to be wrong. Incorrect factual findings
fall into this category. There must, in addition, be special circumstances
that take it out of the ordinary.2

[7] The appellant, however, submitted that in setting aside the
commissioner’s award the Labour Court approached its task on review by
embarking on an in depth analysis of every disputed factual issue and
then substituted its view for that of the commissioner ie by employing a
methodology appropriate to an appeal. It is submitted on the appellant’s
behalf that even if aspects of the commissioner’s reasoning were
incorrect there was no basis to impugn the award; all that was required
was to ascertain whether or not the evidence reasonably supported the
commissioner’s decision. The LAC, it was submitted, not only
erroneously confirmed the approach by the Labour Court, but proceeded
to question the utility of maintaining the distinction between appeals and
reviews for CCMA awards.

[8] Moreover, the Congress of South African Trade Unions (Cosatu)
intervened and was admitted as amicus curiae by order of this court, in
view of its concern that the labour courts have unduly relaxed the
grounds for challenging CCMA awards. This relaxation appears from the
judgment of the Labour Court initially and thereafter the judgment of the
LAC, where it was indicated that the ground of review of gross
irregularity in respect of CCMA arbitrations under s 145(2)(a)(ii) of the
LRA involves the consideration of what the LAC termed ‘latent

2 National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome) & others (2011)
32 ILJ 1618 (SCA) para 14.

irregularities’ and ‘dialectical unreasonableness’ and that these provide a
basis for review more extensive than the level of unreasonableness
identified as a ground of review in Sidumo.3  Cosatu’s view appears to be
supported by a recent article concerning the effect of three recent
judgments of the LAC, including the one in the present case, which poses
the question whether the test for review of CCMA awards enunciated in
Sidumo is in decline.4 There are thus clearly special circumstances that
require us to entertain the appeal.

[9] It is unnecessary to traverse in detail the history of reviews of
CCMA arbitration awards under the LRA. Those responsible for drafting
the LRA deliberately chose arbitration on a relatively informal basis as
the preferred option for dealing with most issues arising in the context of
labour relations and under the LRA. In particular this was to be the means
for resolving disputes over dismissals, which constitute the bulk of the
work of the CCMA.5 They were also deliberate in rejecting the possibility
of appeals and selecting the narrowest possible grounds of review as the
basis for challenging arbitration awards.6 They did so, not because review
is an inexpensive or speedy way of reconsidering the award of an
arbitrator, but because it sets an extremely high standard for setting aside
an award and, together with the cost and delays inherent in reviews, it
was thought that this would act as a deterrent to parties challenging
arbitration awards and thereby support the overall aim of a speedy and
inexpensive resolution of such disputes.

3 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC).
4 A Myburgh ‘The LAC’s Latest Trilogy of Review Judgments: Is the Sidumo Test in Decline?’ (2013)
34 ILJ 19.
5 The current annual workload of the CCMA is around 160 000 arbitrations a year of which 80 per cent
are dismissal disputes.
6 The grounds were copied from those in s 33(1) of the Arbitration Act 42 of 1965.

[10] The height of the bar set by the provisions of s 145(2)(a) of the
LRA7 is apparent from considering the approach to reviews of arbitral
awards under the corresponding provisions8 of the Arbitration Act 42 of
1965.9 The general principle is that a ‘gross irregularity’ concerns the
conduct of the proceedings rather than the merits of the decision. A
qualification to that principle is that a ‘gross irregularity’ is committed
where decision-makers misconceive the whole nature of the enquiry and
as a result misconceive their mandate or their duties in conducting the
enquiry. Where the arbitrator’s mandate is conferred by statute then,
subject to any limitations imposed by the statute, they exercise exclusive
jurisdiction over questions of fact and law.

[11] Since the inception of the CCMA various courts have sought to
construe those provisions to provide a more generous standard of review,
that is, one more easily satisfied. That culminated in this court, in
Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for

7 ‘145 Review of arbitration awards
(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an order setting aside the arbitration award –
(a) . . .
(b) . . .
(1A) . . .
(2) A defect referred to in subsection (1), means –
(a) that the commissioner –
(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s powers . . .’
8 Section 33(1) of the Arbitration Act 42 of 1965 provides:
‘ (1)  Where—
(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as
arbitrator or umpire; or
(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration
proceedings or has exceeded its powers; or
(c) an award has been improperly obtained,
the court may, on the application of any party to the reference after due notice to the other party or
parties, make an order setting the award aside.’
9 Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA); (2007 (5) BCLR 503; [2007] 2
All SA 243 (SCA).

Conciliation, Mediation and Arbitration,10 holding that PAJA11 applied to
CCMA arbitrations and had, by necessary implication, extended the
grounds of review in respect of their awards. 12  This meant that a
reviewing court could, in addition to the requirements under s 145(2)(a)
of the LRA, review the award for reasonableness. It would do so by
examining the ‘substantive merits’ of the award, not to decide whether
the decision was correct, but to determine whether the award was
rationally related to the reasons given by the arbitrator. Once it was found
that the award was appreciably or significantly infected with bad reasons
it fell to be set aside irrespective of whether it could otherwise be
sustained on the material in the record.13

[12] That decision was taken on appeal to the Constitutional Court in
Sidumo v Rustenburg Platinum Mines Ltd 14  and overruled in two
respects. First it was held that although a CCMA award involved
administrative action it did not fall within PAJA. 15 Second the court
enunciated an unreasonableness test that differed from the test adopted by
this court, namely, whether the award was one that a reasonable decision-
maker could not reach. 16  That test involves the reviewing court
examining the merits of the case ‘in the round’ by determining whether,
in the light of the issue raised by the dispute under arbitration, the
outcome reached by the arbitrator was not one that could reasonably be
reached on the evidence and other material properly before the

10 Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and
Arbitration 2007 (1) SA 576 (SCA).
11 The Promotion of Administrative Justice Act 3 of 2000.
12 Para 23.
13 Paras 31-34.
14 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) para 110. The
decision was followed and affirmed in this court in Shoprite Checkers (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration & others 2009 (3) SA 493 (SCA) para 27.
15 Para 104.
16 Para 110.

arbitrator.17 On this approach the reasoning of the arbitrator assumes less
importance than it does on the SCA test, where a flaw in the reasons
results in the award being set aside. The reasons are still considered in
order to see how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably be reached by that route. If
not, however, the court must still consider whether, apart from those
reasons, the result is one a reasonable decision-maker could reach in the
light of the issues and the evidence.

[13] The
distinction
between
review
and
appeal,
which
the
Constitutional Court stressed is to be preserved,18 is therefore clearer in
the case of the Sidumo test. And while the evidence must necessarily be
scrutinised to determine whether the outcome was reasonable, the
reviewing court must always be alert to remind itself that it must avoid
'judicial overzealousness in setting aside administrative decisions that do
not coincide with the judge's own opinions'. 19 The LAC subsequently
stressed that the test ‘is a stringent [one] that will ensure that … awards
are not lightly interfered with’ and that its emphasis is on the result of the
case rather than the reasons for arriving at that result.20 The Sidumo test
will, however, justify setting aside an award on review if the decision is

17 The test is whether the decision is one that could not reasonably be reached, which is a more
stringent test than asking whether the decision is one that the arbitrator could reasonably reach. It is
concerned primarily with the result rather than the process of reasoning of the arbitrator. Fidelity Cash
Management Service v CCMA & others (2008) 29 ILJ 964 (LAC) para 103.
18 Sidumo para 108.
19 Sidumo para 109 approving a passage from Professor Hoexter Administrative Law in South Africa
(Juta, Cape Town 2007) 318. The passage is repeated in the second edition (Juta, Cape Town, 2012)
352. It is an approach that has been consistently followed in this court. Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration 2009 (3) SA 494 (SCA); Edcon Ltd v
Pillemer NO & others (2009) 30 ILJ 2642 (SCA); Food & Allied Workers Union on behalf of Mbatha
& others v Pioneer Foods (Pty) Ltd t/a Sasko Milling & Baking & others (2011) 32 ILJ 2916 (SCA). It
follows that the proposition by Murphy AJA in the court below at para 55 that ‘few decisions that are
wrong are likely to be upheld as reasonable’ cannot be supported.
20 Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC) para 100.

‘entirely disconnected with the evidence’ 21 or is ‘unsupported by any
evidence’ and involves speculation by the commissioner.22

[14] After Sidumo the position in regard to reviews of CCMA
arbitration awards should have been clear. Reviews could be brought on
the unreasonableness test laid down by the Constitutional Court and the
specific grounds set out in ss 145(2)(a) and (b) of the LRA. The latter had
not been extinguished by the Constitutional Court 23  but were to be
‘suffused’ with the constitutional standard of reasonableness. What this
meant simply is that a ‘gross irregularity in the conduct of the arbitration
proceedings’ as envisaged by s 145(2)(a)(ii) of the LRA, was not
confined to a situation where the arbitrator misconceives the nature of the
enquiry, but extended to those instances where the result was
unreasonable in the sense explained in that case. Beyond that there was
no reason to think that their meaning had been significantly altered
provided they were viewed in the light of the constitutional guarantee of
fair labour practices.

[15] Although this should not have been the case after Sidumo, there has
been a development in a different direction, aimed, as were the pre-
Sidumo cases already referred to, at providing a more generous standard
for review of CCMA arbitration awards. It is unnecessary to trace this
development through the cases.24 It suffices to deal with its formulation in
the present case, which represents its culmination. Counsel for COSATU

21 Transnet Ltd v CCMA & others (2008) 29 ILJ 1289 (LC) para 27.
22 Karan Beef (Pty) Ltd v Mbovane NO & others (2008) 29 ILJ 2959 (LC) paras 22 and 25.
23 National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome) & others (2011)
32 ILJ 1618 (SCA) para 5.
24 Anyone interested can follow it in a series of articles by Anton Myburgh in the Industrial Law
Journal. See ‘Sidumo v Rustplats: How have the courts dealt with it? (2009) 30 ILJ 1; ‘Determining
and reviewing sanction after Sidumo’ (2010) 31 ILJ 1; ‘Reviewing the review test: recent judgments
and developments’ (2011) 32 ILJ 1497; and ‘The LAC’s Latest trilogy of review judgments: Is the
Sidumo test in decline?’ (2013) 34 ILJ 19.

made submissions under the two heads of ‘latent irregularity’ and
‘dialectical unreasonableness’ and it is convenient to adopt that
nomenclature.

[16] A latent irregularity, sometimes referred to as process related
unreasonableness , is one arising from the failure by the arbitrator to take
into account a material fact in determining the arbitration. It includes the
converse situation of taking into account a materially irrelevant fact. If
that occurs, it is said to be a latent irregularity justifying the setting aside
of the award. The LAC expressed it thus:
‘Where a commissioner fails to have regard to material facts, this will constitute a
gross irregularity in the conduct of the arbitration proceedings because the
commissioner would have unreasonably failed to perform his or her mandate and
thereby have prevented the aggrieved party from having its case fully and fairly
determined.’25
The LAC went on to endorse the following passage in the judgment of
van Niekerk J in Southern Sun Hotel Interests (Pty) Ltd v CCMA &
others: 26
‘If a commissioner fails to take material evidence into account, or has regard to
evidence that is irrelevant, or the commissioner commits some other misconduct or a
gross irregularity during the proceedings under review and a party is likely to be
prejudiced as a consequence, the commissioner’s decision is liable to be set aside
regardless of the result of the proceedings or whether on the basis of the record of the
proceedings, that result is nonetheless capable of justification.’

[17] Two points flow from this approach. The first is that the threshold
for interference with the award is lower than in terms of the judgment in
Sidumo.27 The second is that it is immaterial whether the result reached

25 Para 36.
26 Southern Sun Hotel Interests (Pty) Ltd v CCMA & others (2010)] 31 ILJ 452 (LC) para 17.
27 Murphy AJA said as much in para 39 of his judgment in the LAC.

by the arbitrator is one that could reasonably be reached on the material
before the arbitrator. The mere possibility of prejudice will suffice to
warrant interference.

[18] The origin of this approach is a dictum in the minority judgment of
Ngcobo J in Sidumo,28 where he said in the context of a discussion of
s 145(2) of the LRA that:
‘Fairness in the conduct of the proceedings requires a commissioner to apply his or
her mind to the issues that are material to the determination of the dispute. One of the
duties of a commissioner in conducting an arbitration is to determine the material
facts and then to apply the provisions of the LRA to those facts in answering the
question whether the dismissal was for a fair reason. In my judgment, where a
commissioner fails to apply his or her mind to a matter which is material to the
determination of the fairness of the sanction, it can hardly be said that there was a fair
trial of issues.’

[19] Ngcobo J did not explain how material an oversight in regard to the
facts would have to be to result in the award being set aside, nor did he
seek to reconcile this approach with a long chain of authority, which he
had cited and relied upon, that held that an error of fact or law by the
arbitrator would not justify the setting aside of the award, unless it had
the result that the arbitrator was diverted from the correct path in the
conduct of the arbitration and as a result failed to address the question
raised for determination in the arbitration. 29 This did not relate to the
outcome of the arbitration but to the conduct of the arbitration.

28 Para 267.
29 Ellis v Morgan; Ellis v Dessai 1909 TS 576 at 581; Goldfield Investments Ltd & another v City
Council of Johannesburg & another 1938 TPD 551 at 560 and Telcordia Technologies Inc v Telkom
SA Ltd 2007 (3) SA 266 (SCA) paras 52 to 78 and 85 to 88.

[20] It is unnecessary to analyse this dictum further because it results in
an approach to the review of CCMA arbitration awards that is contrary to
that endorsed by the majority judgment in Sidumo. This is apparent from
examining the manner in which the two judgments dealt with the facts of
that case. Ngcobo J analysed the award of the arbitrator and held that,
although a little terse, it could be construed in a way that did not involve
the arbitrator in making a material error in regard to the facts. By contrast
the majority held that the arbitrator had erred in certain respects in
making his award, in particular in holding that the relationship of trust
between employer and employee had not been breached, but held that it
was nonetheless an award that a reasonable decision-maker could make
in the light of all the facts. In other words the approach of the majority
was clearly inconsistent with the approach suggested by Ngcobo J. As
we, and all courts, are bound by the majority judgment the development
of the notion of latent irregularity, in the sense that it has assumed in the
labour courts, cannot be accepted.

[21] That does not mean that a latent irregularity, as Schreiner J
originally used that term in the Goldfield Investments case, is not a gross
irregularity within the meaning of s 145(2)(a)(ii). It is, but only in the
limited sense mentioned earlier, where the decision-maker has undertaken
the wrong enquiry or undertaken the enquiry in the wrong manner. That
is well illustrated by the facts of that case. A magistrate seized with a
valuation appeal was required under the relevant legislation to conduct a
fresh enquiry into the question of the proper value of the property. Instead
he refused to consider the evidence of value tendered by the appellant and
approached the matter on the basis that he could only amend the
valuation if it was clearly erroneous. In the circumstances he did not enter
upon the correct enquiry and his decision was set aside.

[22] Turning then to ‘dialectical unreasonableness’ this is said to be
unreasonableness flowing from the process of reasoning adopted by the
arbitrator. The question facing a reviewing court, as expressed by the
LAC in this case, is whether the decision ‘is supported by arguments and
considerations recognised as valid, even if not conclusive’.30 And further
that:
‘Proper consideration of all the relevant and material facts and issues is indispensable
to a reasonable decision and if a decision-maker fails to take account of a relevant
factor which he or she is bound to consider, the resulting decision will not be
reasonable in a dialectical sense.’31
The LAC went on to say that:
‘There is no requirement that the commissioner must have deprived the aggrieved
party of a fair trial by misconceiving the whole nature of [the] enquiry. The threshold
for interference is lower than that: it being sufficient that the commissioner has failed
to apply his mind to certain of the material facts or issues before him, with such
having potential for prejudice and the possibility that the result may have been
different.’32

[23] This approach is also based on a dictum by Ngcobo J, this time in
New Clicks,33 that reads:
‘There is obviously an overlap between the ground of review based on failure to take
into consideration a relevant factor and one based on the unreasonableness of the
decision. A consideration of the factors that a decision-maker is bound to take into
account is essential to a reasonable decision. If a decisionmaker fails to take into
account a factor that he or she is bound to take into consideration, the resulting
decision can hardly be said to be that of a reasonable decisionmaker.’

30 Para 34.
31 Para 36.
32 Para 39.
33 Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment Action
Campaign & another as Amici Curiae) 2006 (2) SA 311 (CC) para 511.

[24] The first thing to note about this dictum is that it expressly relates
to the provisions of PAJA and the manner in which they are to be applied.
As PAJA does not apply to reviews under s 145(2) of the LRA it is of no
application to CCMA awards. Second, if applied by considering the
reasoning of a CCMA arbitrator and determining that the reasons given
for making an award are not such as to justify that award, its effect is to
resuscitate this court’s decision in Rustenburg Platinum Mines Ltd
(Rustenburg Section) v Commission for Conciliation, Mediation and
Arbitration, supra, even though that decision was expressly overruled in
Sidumo. Once again that is not a permissible development of the law.

[25] In summary, the position regarding the review of CCMA awards is
this: A review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or arrived at an unreasonable
result. A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before the
arbitrator. Material errors of fact, as well as the weight and relevance to
be attached to particular facts, are not in and of themselves sufficient for
an award to be set aside, but are only of any consequence if their effect is
to render the outcome unreasonable.

[26] We return to this case. As we indicated earlier, the issue in dispute
was whether Mr Herholdt had dishonestly failed to disclose a conflict of
interest regarding the two wills. The Commissioner correctly stated in her
award that this was the issue. She dealt exhaustively with the evidence
and concluded that he had not been dishonest. Given the depth of her

treatment of the evidence it could hardly be said that she misconceived
the nature of the enquiry. But it is clear from the judgments of both the
Labour Court and of the LAC that her conclusion was not one that a
reasonable decision-maker could have reached in the light of the evidence
and the issues she was called upon to decide. The result was
‘substantively
unreasonable
in
the
sense
that
no
reasonable
commissioner, acting reasonably, could have reached the decision on the
evidence and the inferences drawn from it.’ 34  So it is clear that
notwithstanding its excursus on ‘latent irregularities’ and ‘dialectical
unreasonableness’ the LAC was alive to Sidumo and applied it correctly.
There is thus no basis for this court to interfere with its decision. The
appeal is thus dismissed with costs, including the costs attendant on the
employment of two counsel.

______________
A CACHALIA

______________
M J D WALLIS
JUDGES OF APPEAL

34 Judgment of the court a quo para 51.

Appearances

For appellant:
A Findlay SC (with him R Ungerer)
Instructed by:
Weber Attorneys, Durban
Azar & Havenga Attorneys Inc, Bloemfontein

For respondent:

A Myburgh SC (with him T Ngcukaitobi)

Instructed by:

Cliffe Dekker Hofmeyr Inc, Sandton

Phatshoane Henny Attorneys, Bloemfontein.

For Amicus Curiae:
W H Trengove SC (with him J Brickhill);
(Heads of argument prepared by
H Maenetje SC and J Brickhill)
Instructed by:
McIntyre & Van der Post, Bloemfontein.