Pushing the limits of union activities in the workplace?

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1 Volume 23 No. 9 April 2014 Pushing the limits of union activities in the workplace? The Constitutional Court splits in favour of dismissed workers Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box Tokai 7966 Tel: ISSN X cll@workplace.co.za by P.A.K. Le Roux T he decision of the Constitutional Court in National Union of Public Service & Allied Workers Union obo Mani & Others v National Lotteries Board (Unreported CCT 75/13 10 April 2014) finalises a dispute that was considered by the Labour Court and the Supreme Court of Appeal (SCA). It makes some interesting points about the dividing line between misconduct and lawful union activities. It also, implicitly at least, raises an important question regarding the right to strike. The facts Various employees employed by the National Lotteries Board (the employer), were unhappy with the leadership style of the CEO of the employer. As a result, three employees who had been elected as shop stewards of the National Union of Public Service & Allied Workers Union (NUPSAW), a union which had been recognised by the employer, wrote two letters dated 20 March 2008 to the Human Resources Manager of the employer. In the first letter they requested a meeting with the Human Resources Committee. They indicated that they wished to consider the CEO s employment contract to determine -..whether it is within the Generally Acceptable Practice where occupation of similar positions within the public sector and government agencies is governed by a set of rules and prerequisites. They also complained about the leadership style and modus operandi of the CEO, the bad-causal effects this had on the staff and stated that they were no longer prepared to bear his style of leadership. In the second letter they complained about not being invited to attend the interviews of candidates for the post of Chief Operations Officer. They indicated that they would not recognise the person so appointed, would not co-operate with or assist him or her, and would isolate the appointee. They demanded that the selection process should be reopened and that all the candidates be Page 82

2 recalled for further interviews. The Human Resources Manager responded by addressing two letters to the General-Secretary of NUP- SAW s Gauteng region. In the one letter he rejected the request that the CEO s contract be provided and appears to have rejected the request that the matter be referred to the Human Resources Committee. He indicated that any employee who had a grievance should invoke the grievance procedure. In the second letter he stated that it was the prerogative of the employer to interview and employ personnel. He also indicated that the threat not to recognise or co-operate with the CEO would constitute insubordination and that any misconduct would result in disciplinary action being taken. In April 2008 NUPSAW referred a dispute to the CCMA in which it requested the CCMA to order the employer to disclose the terms of reference of the CEO. This was done in accordance with the provisions of s 16 of the LRA. This section envisages that disputes regarding the refusal of an employer to disclose information can be referred to the CCMA. If conciliation does not lead to the dispute being settled, it can be resolved through arbitration. At the conciliation meeting on 9 May 2008 it was agreed that the conciliation process be extended in order to enable NUPSAW to provide a written motivation outlining why it was important that the CEO s contract of employment should be disclosed. A document specifying the expectations of staff in terms of overall organisational performance delivery was also to be provided. On 23 May 2008 NUPSAW addressed a letter to the Human Resources Manager. In the opening paragraph of the letter it is stated that its purpose was to give a - motivation for demanding access to the contract of the CEO and Terms of Reference. The letter contained a series of allegations or grievances. These included that the CEO had not introduced certain human resource policies, had not granted study bursaries, had introduced restricted areas in the building and had given preferential treatment to certain departments by allowing them to appoint friends without advertising the vacancies, applied inconsistent contractual terms and failed to comply with tender policies. The employer did not respond to this letter. This letter was leaked to the Mail and Guardian and was the subject of a report in the newspaper on 30 May On 3 June 2008 another letter signed by 41 employees was addressed to the Human Resources Manager (described as a petition in the various decisions). The subject of the letter was stated to be - A vote of no confidence in the CEO of the National Lotteries Board. The petition went on to state that the employees had lost confidence in the CEO s ability to run the organisation and suffered adversely under the CEO s bureaucratic leadership style and inept management and were no longer prepared to bear with him anymore. The employer was urged to request the CEO to resign and to consider a suitable settlement package for him, failing which he should be relieved of his duties. The employer was urged to take the matter seriously because we are no longer prepared to spend a day with Professor Ram in the same building with him at the helm of this organisation. Finally, the employer was urged to ensure that 30 June 2008 would be the last day of the CEO s employment. This letter was followed by another letter to the employer dated 5 June 2008 in which the employer was urged to engage in dialogue in order to resolve the dispute On 6 June 2008, the employer s lawyers addressed a letter to NUPSAW in which it was stated that NUP- SAW was not entitled to the CEO s contract of employment, and that NUPSAW had breached the collective agreement entered into between itself and the Board. The leaking of the letter was described as being unlawful and being intended to undermine the authority of the employer, to bring it into disrepute and to create conflict in the workplace. The demand relating to the CEO was described as being unlawful and the threat not to work was stated to be an act of insubordination. The letter required the 41 employees to withdraw the petition by 9 June Three of the employees retracted their support for the letter. The remaining employees failed to do so and 38 were charged with three disciplinary offences namely Page 83

3 Charge 1 Insubordination and disrespectful behaviour making the continued employment relationship intolerable by associating yourself with and supporting: the contents of the union s letter dated 23 May 2008 and the petition dated 3 June 2008 in which the CEO is grossly defamed by the false accusations of ineptitude, favourtism, racial bias, unlawful acts and mismanagement; the statement that you are not prepared to continue working with the CEO in the same building with him at the helm; and the call to the NLB to relieve the CEO of his duties. Charge 2 Bringing the name and integrity of the NLB and the CEO into disrepute and making the continued employment relationship intolerable by associating with and suporting: the contents of the union s letter of 23 May 2008 in which the CEO is falsely accused of ineptitude, favouritism, racial bias, unlawful acts and mismanagement. the publication of the contents of that letter in the media; and the union s stated intention in its letter dated 5 June 2008 to make the contents of its correspondence with the NLB available to the media whenever it deems fit. The disciplinary hearing was chaired by an independent chairman. The chairman found all the employees guilty of insubordination and disrespectful behaviour as well as bringing the name of the employer into disrepute. However, he also found that there was no indication of a refusal to work or co-operate. The chairman took into account the fact that NUP- SAW had not attempted to invoke or exhaust the grievance procedure and that there was no indication that it had exhausted all possible avenues in seeking to have the employees concerns addressed. By associating themselves with NUPSAW s action the employees had made themselves guilty of insubordination and disrespectful behaviour. The chairman also found that NUPSAW had leaked the letter of 23 May 2008 and that the employees had associated themselves with the publication of the letter, in particular that part that stated that the CEO should resign or be dismissed. This also constituted insubordination and disrespect. As an alternative to dismissal the employees were given an opportunity to sign a formal acknowledgement and undertaking to the effect that: they disassociated themselves from the letter of 23 May 2008 and the petition of 3 June 2008; they accepted their wrongdoing; they apologised to the CEO; they undertook to utilise the grievance procedures provided for in the employer s policies and provided for in the LRA; and, that they agreed to the imposition of a final warning. All but ten of the charged employees complied with this alternative. These ten employees submitted a collective submission which fell far short of the requirements set by the chairman. They were dismissed. In the meantime it appears that the employer did not attend the reconvened conciliation process and that the matter was then referred to arbitration. The arbitrating commissioner decided that the NUPSAW was not entitled to have the CEO s contract disclosed. The Labour Court decision The ten dismissed employees challenged the fairness of their dismissals in the Labour Court. They argued that their dismissals were automatically unfair because they were dismissed in contravention of s 187 (1)(d) of the Labour Relations Act, 66 of 1995 (LRA). This provides that a dismissal is automatically unfair if the reason for the dismissal is that the employee exercised any right conferred by the LRA or is that the employee participated in any proceedings in terms of the LRA. At issue here was the interpretation of s 4(2)(a) of the LRA referred to above. This provides that a union member, subject to the provisions of the constitution of the union, has the right - to participate in its lawful activities; The question was whether the actions described above constituted lawful union activities. The employees also argued that, even if the Court should find that the dismissals were not automatically unfair, they were still unfair because the sanction of dismissal was too severe in that there had been no irretrievable breakdown in the employment relationship. The argument appears to have been that the threats made in the petition were not serious and had been merely strategic in order to catch the at- Page 84

4 tention of the employer. Finally, it was also argued that the employer had acted inconsistently by imposing a final warning on some employees but then dismissing the ten employees. This issue will not be discussed here. The Labour Court came to the conclusion that the dismissals were not automatically unfair. It accepted that: it may sometimes be difficult to distinguish between misconduct committed in the context of lawful union activities and misconduct committed by an employee (as an individual or as part of a group); a union has an important role to play in protecting the legitimate concerns and demands of its members; workers have the right to associate with a trade union of their choice and that they must be able to associate and participate in the lawful activities of the union without fear of reprisal from their employer; a trade union has the right to petition as one of the means to pursue the legitimate demands of its members; and, that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities. However, it then went on to find as follows [26] I am, however, not persuaded that the applicants in this particular case were dismissed for having participated in the activities of the trade union. Mr. Voyi for the union argued, inter alia, that, because the charge sheet stipulates that the applicants were charged for associating themselves with and supporting the contents of the union s letter dated 23 May 2008 and the petition dated 3 June 2008, it is clear that they were dismissed for having participated in the activities of the union. I accept that this is what is stated in the charge sheet. However, nowhere in the pleadings nor in the evidence presented on behalf of the union has any case been made out that the individuals were dismissed for having participated in the activities of the trade union. The employees themselves took a conscious decision to commit acts of insubordination. This much is clear from the petition and especially the declaration made by each person when signing the petition. The employees cannot now hide behind the confrontational path chosen by their union to justify their own conduct. The individual employees clearly and unequivocally declared in the petition that they accepted the consequences of their conduct which was to defy the authority of the CEO and demand his dismissal. I do not accept that these acts of insubordination were committed as part and parcel of the (legitimate) activities of the union. The employees themselves decided to repudiate the authority of their CEO. This is insubordination. The fact that the acts of insubordination emanated from the trade union or were instigated by the union does not, in my view, transform these acts of serious and deliberate insubordinate conduct into the legitimate activities of the trade union. As I will indicate in the paragraphs hereinbelow, what the trade union did can, in any event not, in my view, be classified as legitimate trade union activities. It is simply not acceptable for employees to behave themselves in such a manner and then try to hide behind the excuse that their actions constitute legitimate trade union activities. I have already stated that it is accepted that a trade union can strongly and even robustly pursue grievances on behalf of its members. However, what the union and the applicants did in this case went far beyond what is considered to be acceptable and legitimate trade union activities. The claim that the dismissals were unfair were also rejected by the Court. It did not accept the Union s assertion that the threats set out in the petition were a strategy to get the attention of the employer and that they merely wanted to discuss the issue with management. The Court found that the union (and the individuals who signed the petition) knew exactly what message they were conveying to their employer. The suggestion that management should not have taken the threats seriously was described as ridiculous by the Court. The letter dated 6 June 2008 from the Board s attorneys made it clear that the Board regarded the petition in a serious light. If NUPSAW and the shop stewards really regarded the petition as a cry for attention and not a serious threat it could have dispelled the Board s misconception by conveying this to the attorneys. The Court also did not accept that the employees individually did not mean what was stated in the petition. Not one of the other employees came forward to refute this evidence. In any event the petition stated that each employee confirmed that they were not coerced or misled into signing the petition. The employees only had themselves to blame and were guilty of insubordination and insolence. In addition, they should also have invoked the employer s grievance procedure. The Court returned to the issue of whether the employees had been engaged in lawful union activities when they associated themselves with the petition. It reiterated that they had not been so engaged - Page 85

5 [39] Although I do accept that a union may vigorously and in somewhat strong terms pursue the rights of its members, I do not accept that the constitutionally guaranteed right of freedom of expression affords a union and its members the right to engage in acts of grossly disrespectful insubordination without consequences. To suggest that the Constitution grants a union and its members the license to commit acts of gross insubordination is simply ridiculous. I am in agreement with Mr. Kennedy that just as, under the Constitution, a person who exercises his or her right to freedom of expression may still be held liable for defamation, so too can an employee be found guilty of insubordination if, through his or her statement (whether in a petition or otherwise), he or she acts in a grossly disrespectful manner, rejecting the authority of management, and manifesting gross insubordination. Moreover, this court acknowledges that an employee must accord a reasonable degree of respect towards his or her employer and that the failure to do so may destroy the employment relationship. Although it is not expected that an employee be subservient it is at the very least expected that an employee show respect for the authority of the employer and behave in a respectable and responsible manner towards the employer. The conduct of the applicants in this case was anything but respectful. In fact, they calculatedly decided to defy the authority of their employer. The fact that they were frustrated with their working conditions (assuming that their grievances had merit) does not entitle them to act in the defiant manner that they did. The majority of the employees, however, came to their senses and apologized for their behaviour. The ten applicants have decided not to do so and continue to defend their insolent and insubordinate behaviour. The Labour Court refused to grant leave to appeal. The Labour Appeal Court also dismissed a petition to it seeking leave to appeal to it. The employees then sought leave to appeal to the SCA. This was granted by the SCA. The SCA decision The SCA also found for the employer in this regard. See National Union of Public Service & Allied Workers Union obo Mani & Others v National Lotteries Board (2013) 34 ILJ 1931 (SCA). It rejected the argument that the employees activities constituted protected trade union activities. It did so in the following terms [30] As far as this submission, advanced on behalf of the affected employees is concerned, murder and arson, would, for example, remain unlawful even if the conspiracy hatched to commit them had been formed during a meeting of a trade union, scrupulously convened in terms of the formal organizational rights conferred upon trade unions by the provisions of the LRA and affirmed in the Constitution. When these vivid hypothetical illustrations were presented to Mr Ngalwana by the court, he was compelled to concede that it could never have been intended by the legislature that the rights to petition and to organize in terms of the LRA and the Constitution were unqualified. A meeting of trade union officials and shop stewards cannot, for example, be convened to plot and plan the murder of a disagreeable employee at the workplace or to burn down the buildings of the employer, no matter how justified the participants may believe such action to be. So too, pickets, protests, meetings, pamphleteering cannot, as the court a quo also mentioned by way of illustration, be organized contrary to our law of defamation. Trade union activities which constitute unlawful acts of insubordination are not protected. The law does not dissemble unlawful acts through the invocation of a constitutional banner. The SCA also found that the dismissals were fair in that the employees were guilty of insubordination. See the discussion of this aspect of the case in CLL Vol 22 no 10. The decision of the Constitutional Court NUPSAW then sought leave to appeal to the Constitutional Court. Leave was granted and in a split decision the majority found for NUPSAW. Judges Froneman, Cameron and Skweyiya found that the dismissals were not automatically unfair or unfair. They found that the petition and the publication of the letter constituted insubordination and the bringing of the name of the CEO and the employer into disrepute. They then went on to consider whether the actions of the union and the employees were nevertheless protected because they constituted lawful trade union activity envisaged in s 4(2)(a) of the LRA. The Court adopted what appears to be a very restrictive approach to the definition of unlawfulness, namely lawfulness under the LRA. Lawfulness did not involve an enquiry into criminal illegality or civil wrongfulness. The judges came to the conclusion that the actions of the employees did not constitute lawful activities. They gave two reasons for this. The first was that NUPSAW and the employees, Page 86

6 once they had referred a dispute to the CCMA in connection with the disclosure of the information, should have pursued it to conclusion. This seems to have entailed taking the arbitration award of the commissioner on review if they were unhappy with it. If conciliation failed to resolve the dispute they should have referred the dispute to arbitration. The second was that the employees had made an unlawful demand, namely that the CEO should be dismissed. The validity of the first reason may be debatable. The employees did in fact refer the dispute to arbitration and the arbitrator found against them. The complaint must therefore have been that they acted prematurely. The majority decision, written by Zondo J took another approach. He made the following points - The letter of 23 May 2008 was in fact the motivation for the request to gain access to the CEO s contract of employment that it was agreed at the conciliation process would be provided. Most, if not all of the issues raised in the letter, could have been legitimately raised by a trade union if its members were concerned or aggrieved about these issues and there was no suggestion that there was anything other than a desire to achieve a resolution of the dispute or the grievances of its members. It was also never suggested that the letter was not a true reflection of the concerns and grievances of its members. The petition of 3 June 2008 was an extension of, or a follow up to, the letter of 23 May The statements made by employees in the petition - [13] were made in pursuit, and, in the course, of the statutory conciliation process and as part of collective bargaining aimed at resolving the disclosure dispute. The petition did not demand that the CEO be dismissed. This conclusion was based on the fact that the petition urged the employer to take certain steps. [121] The first point is that, in the light of the meaning of the verb urge used in that part of the petition, the meaning of the third paragraph is that the union and the employees were giving the respondent strong advice or recommendation to offer the CEO a suitable separation monetary compensation in return for his resignation. The meaning of that paragraph is also that if that failed, the union s and employees strong advice or recommendation was that the CEO be relieved of his duties. The second point is that the proposition that the employees demanded the dismissal of the CEO is not consistent with the use of the verb urge. The union and employees were giving the respondent strong advice or a recommendation which it could accept or reject. In that letter they did not spell out what they would do if the respondent rejected the advice. In the letter dated 5 June 2008 NUPSAW called on the employer to address the impasse and to enter into a dialogue with it. The employer failed to do so but instead referred the matter to its lawyers who responded in a manner that showed a lack of appreciation of the fact that when a union embarks on collective bargaining it is not normally asking for things that it is entitled to in law to but asks and or demands things that it, or its members, are not entitled to. The employer s attorneys read into the petition a threat not to work that was not there. Even if there was such a threat, it could not be assumed that the work stoppage constituted an unprotected strike. If the CEO was still in employment after 30 June 2008 it was possible that the union and its members could have followed the required procedures to render the strike in support of a demand that the CEO be dismissed protected. Provided that these procedures were followed and provided that the dismissal was substantively and procedurally fair, the strike would have been protected. This case had to be decided on the assumption that the complaints against the CEO were legitimate and true because both the chairperson and the Labour Court did not investigate whether the complaints were valid and they were prepared to assume so. The question as to what constitutes a lawful union activity is an important consideration in deciding the case. In interpreting this phrase the following principles and factors had to be taken into account: Firstly, a meaning that promotes the workers right to participate in union activities (as opposed to one that undermines that right) should be preferred. Secondly, the promotion and protection of the fundamental rights found in the Constitu- Page 87

7 tion and an acceptance that constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them. The statement made by the union and its members to the effect that they strongly advised or recommended that the CEO be offered a suitable separation package in return for his resignation, failing which he should be relieved of his duties (i.e the interpretation of the petition favoured by the majority decision) should be seen in context. This was a motivation as to why the CEO s contract of employment should be disclosed to it as part of the conciliation process in terms of s 16 of the LRA. This was also part of a collective bargaining process in which NUPSAW and its members were entitled to participate. The dismissal for this conduct rendered the dismissals automatically unfair. The same applied to the statement that they were no longer prepared to spend a day in the same building with the CEO and that they urged the employer to ensure that his last day of employment was 30 June They were made in the context of a collective bargaining process that would have taken place at the conciliation meeting. This conduct constituted lawful union activity within the meaning of s 4(2)(a). There was no obligation on the union to follow the employer s grievance procedure as it was not applicable to grievances against the CEO. The third and final stage of the grievance procedure involved a decision being taken by the CEO himself and it could not therefore not apply to him. There was nothing unlawful in the steps taken by NUPSAW to have the contents of the letter of 23 May 2008 disclosed to the media. It stated that: NUPSAW and its members have the right to freedom of expression under s 16 of the Constitution; the LRA grants the union the right to decide its own programmes and its activities in serving the interests of its members; the employer is a public institution; and, the public has an interest in how a public institution is run. Finally the Court also argued that the employer is bound to comply with the provisions of s 195 of the Constitution which requires, inter alia, the efficient and effective use of public resources, an accountable administration, and the participation of the public in policy making. The public had the right to know whether the CEO was implementing the principles set out in this section. The argument that NUPSAW had acted in a confrontational manner was also rejected. It did so in the following terms [193] A trade union has a right to determine its own strategies and tactics in dealing with an employer concerning grievances, or complaints, disputes of right or disputes of interests, and, generally, on how to handle consultations, negotiations, discussions and collective bargaining with an employer. It is not for a court to dictate to a trade union how to handle its discussions or negotiations with an employer or what tactics and strategies it should use and at what stage it should use them in its dealings with an employer. [194] It is the union s prerogative to decide how to handle those matters. Sometimes it may deem it fit to handle these matters gently. Sometimes it may decide to handle these matters in a confrontational way. Sometimes it can decide to resort to industrial action and sometimes it may decide to take the route of negotiation without any threat of industrial action. The same can be said of an employer or an employers organisation as well. Provided that a trade union does not act unlawfully, it may adopt a confrontational stance. There is nothing unlawful in adopting a confrontational stance per se where it does not involve any physical harm to any person or damage to property. This does not mean that a trade union is free to say whatever it pleases. There are limits to that right but, on the facts of this case, those limits were not exceeded and there is no need to define them with any precision. To the extent that the union adopted a confrontational stance it was entitled to do so. It was a part of legitimate collective bargaining and a lawful activity within the meaning of s 4(2)(a). The Court then went on to decide that the employees should be reinstated with full retrospective effect. The reason for this was that a dismissal for supporting the lawful activities of a trade union is a serious violation of workers constitutional rights. This violation is even more serious when the employer is a public institution because it is expected to take a lead in the protection of these rights. Page 88

8 The second minority decision It should be pointed out that a second minority decision was delivered by Dambuza AJ. He found that the dismissals were not automatically unfair but were unfair. His reasons for finding that the dismissals were not automatically unfair appear to be similar to those formulated in the other minority decision. Although he accepted in principle that the actions of the employees could constitute insubordination he nevertheless found that the dismissals on this ground were unfair because of the employer s conduct. It breached its duty to negotiate in good faith as expressed in the recognition agreement entered into between the employer and NUPSAW. It also abused its power. He also seems to have accepted that the leaking of the letter of 23 May 2008 to the media could constitute a disciplinary offence but found that the dismissals for this reason in this case were unfair because of the disrespectful conduct of the employer. Comment The majority decision in this matter clearly places a premium on protecting employee actions during the course of exercising statutory rights and during the process of collective bargaining. This approach is not dissimilar to the approach adopted by the Courts and arbitrators when dealing with alleged acts of misconduct committed by shop stewards. They have accepted that shop stewards can wear two hats. When wearing the hat of a shop steward he or she will be granted more leeway in the way he conducts himself or herself in interactions with management. This being said the decisions have also indicated that there are limitations to the conduct that a shop steward can engage in. What is not clear in this case is where the majority decision of the Constitutional Court draws the line between lawful and unlawful conduct. It accepts that illegal conduct will not be protected. But there are other situations where the actions of an employee that do not constitute illegal activity will justify disciplinary action in the normal course of events. The allegations made in the letters and petition would normally justify disciplinary action being taken. Perhaps this decision will have limited effect simply because the Court was dealing with the case of statements made in the course of section 16 proceedings. In addition the Court accepts that, for the purposes of the judgment at least, it was not required to enquire into the veracity of the allegations made. Surely a different approach would have been taken if the employees concerned made these allegations knowing full well that they were not true or without having a reasonable basis for making these allegations? Another interesting question arises from the fact that the majority decision accepts that employees could embark on a protected strike in support of a demand that a senior or manager be dismissed provided that the procedures set out in s 64 of the LRA had been complied with and further provided that the dismissal was substantively and procedurally fair. The outcome of this can be illustrated by the following example. The employees of an employer allege that a senior manager is a racist. They inform the employer that the manager must be immediately dismissed without a hearing and if this does not occur they will refer a dispute to the CCMA and follow the processes set out in s 64 of the LRA and embark on a protected strike. The decision of the Labour Appeal Court in TSI Holdings (Pty) Ltd & Others v NUMSA & Others [2006] 7 BLLR 631 (LAC) accepted that the action of the employees in refusing to work would be unprotected. This was because the demand would be unlawful the manager would be deprived of his right not to be fairly dismissed at least in a procedural sense. But what would be the case if the employees made a more nuanced demand to the effect that the employee must be subjected to a disciplinary enquiry, that the employer agreed to this demand and the manager was found not guilty for lack of evidence? Will any refusal to work in protest against the fact that the manager was not dismissed be protected and will an employer be able to interdict such action on the basis that it is unable to dismiss the employee because there is no credible evidence to justify the dismissal and that, accordingly, dismissal will lead to his right not to be unfairly dismissed being infringed? On the face of it, it seems arguable that the Court will, when hearing an interdict application, be called upon to decide whether or not an employee could be fairly dismissed. This would involve an enquiry into the factual basis on which the union premised its allegations. PAK le Roux Page 89