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IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

                                                                                                                      Not Reportable

                                                                                                         case no: C619/12

In the matter between:

FRED ENGELBRECHT                                                               Applicant

and

THE DEPARTMENT OF CORRECTIONAL SERVICES              First Respondent

THE MINISTER OF CORRECTIONAL SERVICES                      Second Respondent

THE NATIONAL COMMISSIONER OF THE

DEPARTMENT OF CORRECTIONAL SERVICES                       Third Respondent

THE MINISTER OF LABOUR                                                        Fourth Respondent

THE PUBLIC SERVANTS ASSOCIATION                                     Fifth Respondent

MC BREAKFAST                                                                            Sixth Respondent

J KLAAS                                                                                          Seventh Respondent

A TSETSANE                                                                                    Eighth Respondent

T MOKOENA                                                                                     Ninth Respondent

Heard: 04-06 September 2019 and 10 December 2019                   

Delivered: 03 March 2020

JUDGMENT

MAHOSI.J

Introduction

[1]        The Applicant seeks an order declaring that the First to Third Respondents (the Respondents) unfairly discriminated against him by not appointing him to the post of Regional Commissioner on the basis of, inter alia, his race, gender, being a member and spokesperson of a concerned minority group of employees, political affiliation and personal relationship of the Sixth, Seventh and Ninth Respondents and/or wrongful implementation of an unconstitutional Employment Equity Plan.

[2]        The relief sought by the applicant is an order:

2.1       Declaring that the Respondents unfairly discriminated against the     Applicant on the basis of his race, gender, being member and spokesperson of a concerned minority group of employees, political affiliation and personal relationship of the Sixth, Seventh and Ninth Respondents and/or wrongful implementation of an unconstitutional Employment Equity Plan;

2.2       Reviewing and setting aside the appointments of the sixth to ninth   Respondents as irrational, unlawful and unfair; and

2.3       Requiring the Respondents, with effect from 01 July 2011, to appoint the    Applicant in the position of Regional Commissioner: Western Cape.

[3]        The Respondents opposed this matter.

[4]        Prior to outlining the Applicant’s case in detail and considering the issues that gave rise to the claim, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

Background

[5]        The Applicant commenced his employment with the First Respondent, the Department of Correctional Services (DCS), on 26 July 1982. When the alleged unfair labour practice, that is the basis of the Applicant’s claim, occurred, the Applicant was occupying the position of (Chief Director) Deputy Regional Commissioner (DRC) – Western Cape, a position which he still occupies.

[6]        On 09 January 2011, the DCS placed an advertisement in the national newspapers inviting applications for various positions within the DCS with a closing date of 21 January 2011 (the first recruitment process).

[7]        The Applicant applied for all the vacant Regional Commissioner (RC) positions namely Gauteng (GP), Limpopo/ Mpumalanga / North West, Eastern Cape (EC) and Free State/Northern Province (FS/NC). However, he was shortlisted for the position of Regional Commissioner: Free State / Northern Cape. The interviews were held on 17 May 2011.

[7]        Following the interviews, on 28 June 2011, the National Commissioner of DCS addressed a letter regretfully informing the Applicant that he was unsuccessful in his bid for the position. This letter reads, in part, as follows:

‘Thank you for availing yourself to attend the interview for the post of Regional Commissioner: Free State/Northern Cape: Correctional Services.

                        While you presented yourself extremely well, I regret to inform you that it is unfortunate that you do not meet the set current requirements for the advertised position. The decision was not based on any single aspect but a combination of relevant experience, job requirements and the Departmental needs.

                        Thank you for the interest shown in the Department and I wish success in the future career pursuits’[1]

[9]        Of the four positions advertised, it was only the Eastern Cape position which was filled by Mr Breakfast from 01 June/July 2011. No appointments were made for the Gauteng, Limpopo/Mpumalanga/North West and Free State/Northern Cape regions.

[10]     On 31 May 2011, the Minister granted approval for a headhunting process to be undertaken for the above posts in which no appointments were made. The head-hunting process was conducted by Deloitte Consultancy and the closing date for the applications was 04 November 2011 (the second recruitment process).

[11]     The interviews for the vacant posts were then conducted on 07 November 2011. The panel for these interviews were comprised of Ms N Mapisa-Nqakula (Former Minister of Correctional Services as the chairperson), Dr SC Cwele (Former Minister of State Security), Dr N. Mkhize (Former Director General of the Department of Women, Children and People with Disabilities), Mr TS Moyane (Former National Commissioner of DCS), Mr CGL Lembethe (Former Acting Chief Department Commissioner).

[12]     Following the second recruitment process, Mr Klaas was appointed as the Regional Commissioner of the Free State/Northern Cape regions, Mr Mokoena was appointed as the Regional Commissioner of Gauteng region, Mr Tsetsane was moved horizontally and placed as the Regional Commissioner for the Limpopo/Mpumalanga/North West regions once his suspension was uplifted. The appointments were made on or about January 2012.

[13]     Aggrieved by his non-appointment, the Applicant lodged a grievance and subsequently referred an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Conciliation yielded no results and a certificate of non-resolution was issued on 24 April 2012. This led to the Applicant filing this action.

Evidence of parties

[14]      The Applicant testified in support of his case and Mr Raseroka testified for the Respondent.

Applicant’s case

[15]      The Applicant mainly challenged his non-appointment on the following four grounds:

15.1    He was not appointed due to the DCS’s implementation of the   Employment Equity Plan for the period of 2010 to 2014, in that he was a coloured male and at the time this demographic was over represented; and

15.2    He was not appointed due to his involvement as a spokesperson for a group of affected employees who were unhappy with the Employment Equity Plan.

15.3    The interviewing panel was not lawfully constituted and therefore the appointments made by it were irregular and unlawful and should therefore be set aside.

15.4    He contends further that he was also not appointed because the successful candidates were politically and personally affiliated to the Minister of Correctional Services and the National Commissioner of the Department of Correctional Services.

Respondent’s case

[16]     The respondents’ contention was, inter alia, that the Applicant was not discriminated against. They submitted that instead, the applicant was interviewed for the post of Regional Commissioner in which interview he failed to perform well. Based on his performance, the respondents argued, the Applicant was not the best candidate for the post. The Respondents’ further contention was that the relief sought by the Applicant was incompetent in that:

16.1    The Sixth Respondent, Mr. Breakfast, has since retired from the employ of the DCS;

16.2    The Seventh Respondent, Mr. D Klaas, was appointed as the Regional Commissioner: Free State/Northern Cape on 01 January 2012 and was     transferred to the Western Cape as Regional Commissioner during June/July 2012;

16.3    The Eighth Respondent, Mr. A Tsetsane, resigned from the DCS on 31       March 2014; and

16.4    The Ninth Respondent, Mr T Mokoena, was appointed by the DCS on 16   January 2012 as Regional Commissioner: Gauteng Province and he resigned on 31 December 2015.

The relevant statutory framework

[17]     As part of the public service, the DCS is established in terms of the Constitution of the Republic of South Africa[2] (the Constitution), Section 1 of which provides that the Republic of South Africa is founded on, inter alia, the following values:

‘(a)       Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b)        Non-racialism and non-sexism.

(c)        Supremacy of the constitution and the rule of law.

(d)        …’

[18]      Section 2 of the Constitution provides that:

‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’

[19]      Section 7(2) requires the State to respect, protect, promote and fulfill the rights in the Bill of Rights. This means that the State must operate within the confines of the law and in so doing, it must comply with the Constitution, which is the supreme law of this country.

[20]      Section 9 of the Constitution provides that:

‘(1)      Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2)       Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3)       The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4)       No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5)       Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’

[21]     Section 6 of the Employment Equity Act[3] (EEA) proscribes unfair discrimination in a manner akin to Section 9 of the Constitution. Section 195 provides for the values and principles governing public administration and it reads:

‘(1)         Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(a)     A high standard of professional ethics must be promoted and maintained.

(b)     Efficient, economic and effective use of resources must be promoted.

(c)     Public administration must be development-oriented.

(d)     Services must be provided impartially, fairly, equitably and without bias.

(e)     People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

(f)      Public administration must be accountable.

(g)     Transparency must be fostered by providing the public with timely, accessible and accurate information.

(h)     Good human-resource management and career-development practices, to maximise human potential, must be cultivated.

(i)      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

(2)        The above principles apply to—

(a)        administration in every sphere of government;

(b)        organs of state; and

(c)        public enterprises.

(3)       National legislation must ensure the promotion of the values and principles listed in subsection (1).

(4)       The appointment in public administration of a number of persons on policy considerations is not precluded, but national legislation must regulate these appointments in the public service.

(5)       Legislation regulating public administration may differentiate between different sectors, administrations or institutions.

(6)       The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration.’

Analysis

Validity of the selection panel

[22]          The applicant contended that the selection panel chaired by the Third Respondent, the National Commissioner of the DCS with two other Director Generals was not constituted in accordance with the Public Service Regulations, 2001 (the Regulations)[4], issued in terms of the Public Service Act[5]. Paragraph D2 of Part VII of the Regulations provides that:

‘D2:     A selection committee constituted for the appointment of-

…

(d)        a Deputy Director-General of a national department, shall include at least two Ministers or Deputy Ministers one of whom is not in the portfolio in which the vacancy exists, and the head of a national department;

…’

[23]          In opposing, the Respondents contended that the interviewing panel was lawfully constituted. In support of its contention, it submitted that the provisions of the Regulations are inconsistent with the provisions of the Correctional Services Act in that the said Act does not require the constitution of the interview panel in any particular manner. Section 96(3) of the Correctional Services Act reads:

‘(3)       Subject to the provisions of this Act and the provisions of the Labour Relations Act and having regard to the operational requirements of the Department, the National Commissioner shall determine the qualifications for appointment and promotion and decide on the appointment, promotion and transfer of correctional officials, but—

(a)       the appointment or promotion of a correctional official to or above the post level of director takes place in consultation with the Minister;

(b)       all persons who qualify for appointment, promotion or transfer must be considered;

(c)       the assessment of persons shall be based on level of training, relevant skills, competence, and the need to redress the imbalances of the past in order to achieve a Department broadly representative of the South African population, including representation according to race, gender and disability;

(d)       despite the provisions of paragraph (c), the National Commissioner may, subject to the conditions prescribed by regulation, approve the appointment, transfer or promotion of persons to promote the basic values and principles referred to in section 195 (1) of the Constitution; and

(e)        …’

[24]     The Respondents further contended that to an extent that the Applicant only challenged the composition of the panel after he had not been appointed, he forfeited the opportunity to challenge the proper composition of the panel when the panel sat and interviewed him.

[25]     Furthermore, the Respondents contended that following the interviews conducted on 17 May 2011, Mr Damons who was also shortlisted with the Applicant, referred a dispute to the CCMA challenging the constitution of the interviewing panel. The dispute was referred to arbitration and the Commissioner found that the interview panel/selection committee was lawfully constituted. It is common cause that this arbitration award was taken on review to this Court by Mr Damons. The review application was dismissed and the arbitration award was made an Order of Court. This Court Order stands and has not been taken on appeal.

[26]     To an extent that this Court is bound by the Court Order until such time that same is set aside, the Court will not make any determination in regard to the lawfulness of the interview panel, and therefore, the relief sought in respect of the lawfulness of the panel that conducted the interviews falls to be dismissed.

Political views and nepotism

[27]     During the trial the Applicant gave evidence in support of his contention that one of the reasons he was not recommended for the post was due to him being part of a group of employees who raised their concerns about the Employment Equity plan (EE plan) whereas the other successful applicants were politically affiliated and personally connected to the Minister as well as the National Commissioner.

[28]     The Respondents opposed this claim on the basis that it was baseless. Mr Raseroka, the witness for the Respondents was clear in his evidence that the Applicant was not selected for appointment because he did not have the leadership qualities that the DCS was looking for. The Applicant submitted that the reason the DCS found that he did not have the leadership qualities needed for the position was because of his belief and outspokenness about the way the DCS applied affirmative action.

[29]     The Court has considered the evidence presented at trial as well as the pleadings. The Applicant’s version, if proven, would have shown the basis for bias and discrimination. However, on an analysis of the evidence presented, most of what the Applicant contended was subjective and could not be objectively verified. The allegations, though serious, were not proved through the evidence led. Therefore the Applicant has failed to discharge the onus required in regard to this claim, which also falls to be dismissed.

Most suitable candidate

[30]     The Applicant applied for all the Regional Commissioner posts that were advertised. It is common cause that he was only shortlisted for the Regional Commissioner: Free State/Northern Cape post. Under the common cause facts, it is recorded that at the interview, he was advised that he would be considered for all the posts.[6]

[31]     As aforesaid, following the interview, the Applicant was advised that he was unsuccessful in his bid. The respondents thereafter embarked on a head-hunting process which culminated in the appointments of Seventh, Eighth and Ninth Respondents.

[32]     The Applicant contends that the criteria used to assess the suitability of the head hunted applicants were not the same criteria used to assess the suitability of the Applicant. He contends that Mr Klaas, the successful candidate for the Free State/Northern Cape, did not have the necessary qualifications for the position of Regional Commissioner, nor did Mr Mokoena as he did not have any experience within the DCS prior to his appointment.

[33]     Whereas it is common cause that as a general procedure, the Applicant as the DRC would act in place of the Regional Commissioner (RC) when the RC was not available, it is prudent to confine the enquiry to the Regional Commissioner: Free/State Northern Cape post, as this was the only post the Applicant was shortlisted for. I do take cognisance of the fact that the common cause facts note that he was considered for all the posts, however, he had a right to fair treatment and non-discriminatory actions with regards to the posts he was shortlisted for.

[34]     It is trite law that no employee has an entitlement or right to a promotion. An employer has the prerogative whether to promote an employee or not. The Court in Gaitsiwe v SSSBC and Others[7] summarised the principle succinctly thus:

‘… prerogative to appoint or to promote remains that of the employer. The employer’s discretion can only be interfered with, if it is established that it was exercised capriciously, or for insubstantial reasons, or based on any wrong principle or was exercised in a biased manner. Ultimately, when an employee raises an unfair labour practice dispute relating to promotion, in order to be successful, he/she must show that he/she met the inherent requirements of the post in question, and that he/she was the best candidate for the post. Further, it must be demonstrated that the appointment of another individual in preference over the employee was unfair and there is a further obligation to demonstrate why the unfairness is alleged.’

[35]     In casu, the Applicant alleges that the Respondents committed an unfair labour practice in not appointing him to the position of Regional Commissioner of any of the regions. This, the Applicant contends amounted to unfair discrimination. Keeping in mind the above, the Applicant merely presented his view of the events that unfolded. Further, the only comparison that must be made is between the Applicant and the successful candidates from his interviewing process. One cannot equate both the interviewing processes as they were two separate processes. Therefore, since the Applicant did not compete against Mr Klaas for the post, it would be wrong to compare the two. The right to be given a fair opportunity to compete was given to the Applicant and unfortunately he fell short.

[36]     However, even if I am wrong in that regard, when looked at holistically, it might be that the Applicant held more qualifications than Mr Klaas, the evidence shows that Mr Klaas had a more rounded personality fit for the position. It is clear from the evidence led that it was a whole range of factors that led to the Applicant to not being appointed. Further, the Applicant under cross-examination conceded that both his interviewing process as well as the head-hunting process was “basically the same criteria, the same type of questions.”[8] He went on further to state that: “even if it is a summary (of the interview) the summary makes sense that the same type of questions have been asked.”[9]

[37]     Therefore, it is clear that the head-hunted candidates, especially Mr Klaas was subjected to the same procedure as the Applicant. The Applicant has therefore failed to show that the decision of the employer was capricious, for insubstantial reasons or biased and therefore this challenge to the fairness of the decision to not promote him stands to be dismissed.

Discrimination based on race and gender

[38]     This then brings us to a more relevant challenge raised by the Applicant in that he claims that he was not appointed to the Regional Commissioner position because of the application of the EE Plan which was declared unconstitutional by the Constitutional Court. This, according to him, led to him being discriminated against based on his race and gender. The Applicant contends that due to this discrimination and the unconstitutionality of the EE plan all the appointments were thus unlawful and should be set aside and further that he should have been appointed to one of the Regional Commissioner posts.

[39]     It is trite that substantive unfairness would abound if the reason for the decision of the employer was based on unfair affirmative action plan, in applying it or in not applying it.[10] The Applicant contends that the Respondents bound themselves to the pre-trial minute where they agreed that the reason that the Applicant was not appointed was due to the implementation of the EE plan. According to the Current Workforce Representivity Status SMS levels 15, April 2011, persons from the coloured demographic were already over-represented in the workforce. This the Applicant contends, proves that due to the coloured demographic being over-represented, appointing him would have not been in accordance with the EE Plan.

[40]     Despite the Respondents’ contention that the EE Plan did not feature in the non-appointment of the Applicant during trial, it is clear from the statement of defence that it did. The Respondents stated that the Applicant “was not appointed to any of the positions since he was not the most suitable for the positions and did not meet the department’s needs as his appointment would not be in compliance with the EE plan and AA programme of the department.’[11]

[41]     The Respondents go on to state that “the appointment of the applicant to any of the advertised posts would not have complied with the EE plan and the AA programme of the department regard being had to the equity targets agreed upon as stated above.”[12]

[42]     Therefore, in light of the above and the letter sent to the Applicant after his non-appointment, the EE plan of the DCS feature as a criteria to be considered during the interview process. This then leads the Court to a two pronged enquiry. Firstly, the Court has to enquire whether the EE plan was truly declared unconstitutional, and if so, then naturally it would follow that all decisions made under it would be unlawful.

Constitutionality of the EE Plan

[43]     The constitutionality of the EE plan was challenged at the Constitutional Court in the matter of Solidarity and Others v Department of Correctional Services and Others[13].

[44]     The Consitutional Court, per Zondo J, held that in failing to use the demographic profile of both the national and regional economically active population to set the numerical targets, the Department acted in breach of its obligation in terms of section 42(a) and, thus, acted unlawfully. Further that it had no power to disregard the requirement of also taking into account the demographic profile of the regional economically active population provided for in section 42(a).

[45]      The Court went on to state that:

‘Since the Department’s understanding that Coloured people and women were overrepresented in the relevant occupational levels had no lawful basis, the Department has failed to show that the discrimination was rational and not unfair or was otherwise justifiable. In the circumstances, the conclusion is inescapable that the Department’s decisions in refusing to appoint the Coloured and female individual applicants constituted acts of unfair discrimination. Those decisions also constituted unfair labour practices.[14]

[46]     The Court however then decided that because of the numerous decisions already made under the EE Plan, declaring it unconstitutional would lead to chaos and further due to the effluxion of time, it had already been replaced with a new EE Plan, so therefore, only matters where applicants challenge the decisions would it be set aside. Does this then mean that the decision made by the DCS in regard to the Applicant herein is automatically discriminatory and therefore constituted an unfair labour practice?

[47]     This question would have to be answered in the negative as the question that then arises is that even though the EE Plan was part of the criteria used in appointing to the Regional Commissioner posts, it was not declared unconstitutional in its entirety so the more prudent question to ask would be, how did it feature during the interviewing process and what role did it play?

Was the EE Plan a contributory or the sole factor in the non-appointment of the applicant?

[48]     In argument it emerged that it was common cause that the EE Plan, while making provision for coloured people, was implemented as per the workplace representivity which informed whether a certain race could be appointed.[15] This the Applicant contends is clear proof that if the representivity states that there is no provision for people of the coloured race, then a coloured person cannot be appointed. He contends further that this is exactly what happened to him and since the EE Plan was unconstitutional and the representivity was drawn up with the EE Plan in mind his non-appointment due to there being an over-representation of the coloured race is unlawful and unconstitutional and should be set aside and he be appointed into a Regional Commissioner post.

[49]   It its defence, the Respondents through Mr Raseroka, while agreeing that the EE Plan is informed by the representivity within the workplace, disputed that this was the end of the matter. He clearly led evidence that the representivity is merely a screenshot of a certain time and is fluid and ever-changing. Further, should there be a candidate that was recommended to the post but was within an over-represented demographic, the guidelines then state that a deviation from the EE Plan need to be sought. Mr Raseroka was very clear in his evidence that indeed the EE Plan is applied in all selections during a recruitment process, it only comes into play after recommendations have been made.[16]

[50]   This state of affairs mirrors the position of the Constitutional Court in the Solidarity matter supra. The Constitutional Court did not make a blanket finding, but put a rider on the effect of the judgment. The Court found that the unconstitutionality of the EE Plan only applies to individuals that were recommended for respective posts. In respect of one Mr Jonkers the Constitutional Court found that since he was not recommended for appointment it cannot be said that he “suffered any unfair discrimination or to have been subjected to any unfair labour practice.”[17]

[51]   This is apposite in casu. The Applicant herein was shortlisted for the Free State/Northern Cape region post. Therefore, to be successful, the Applicant had to show that he was recommended for the post and his race was the sole reason for his non-appointment. Thereafter, he had to show to the Court that the Respondents failed to take into account the demographic of the Free State and the Northern Cape, which we do not know as it was not led in evidence. Suffice to state that on assumption, which I do not make, that the Northern Cape alone has a larger demographic of coloured people, the Applicant then needed to show that and thereafter could prove that his non-appointment was unlawful.

[52]   It is clear from the evidence led that even though the Respondents applies its EE Plan to all decisions made, the Applicant’s bid for the post did not make it that far. The Applicant fell at the first hurdle, not being the best candidate for the post. Therefore, the Respondents did not have to make a decision based on the EE Plan. The matter might have been different had the Applicant crossed the first hurdle, was recommended and was then not appointed due to his race. Unfortunately for the Applicant, that is not true for his case.

[53]   It is clear from the evidence that the biggest contributing factor in the decision of whether to appoint the Applicant or not, was ultimately the Applicant’s falling short of meeting the requirements of the vacancy that cemented the decision. In applying the principles laid down in the Solidarity[18] matter the Applicant did not suffer any discrimination and therefore was not subjected to an unfair labour practice as he was not recommended to the post.

Conclusion

[54]   Under the new constitutional dispensation, our young democracy is tasked with balancing the wrongs of the past with the current and future needs and rights. This is a precarious balance that needs to be held at all times. On a piece meal approach, this matter has all the ringers of the need to hold this balance, however on a closer look, it is clear that this is not a case of discrimination.

[55]   The Applicant made a lot of the EE Plan and his political views. However, he was shy on his defence of him not having the requirements needed for the post. It is unfair to compare notes with the interview of Mr Klaas as they both competed in two different settings and processes and therefore were not competing against each other.

[56]   The Respondents made a decision based on the suitability of the candidate to the inherent requirements of the post, not only on his qualifications and the decision was also not based on his race. It cannot be said that the Respondents did not appoint the Applicant because it favoured Mr Klaas as he (Mr Klaas) was only appointed afterwards in a separate process. Further, the Applicant has failed to show that the decision to appoint Mr Klaas was based on political affiliations and nepotism. As such, it follows that the Applicant’s claim falls to be dismissed.

Costs

[57]   In light of the Constitutional Court decision in Solidarity[19], it was reasonable for the Applicant to pursue his case. Therefore in light of the law and fairness, it would be best to make no order as to costs.

[58]      Accordingly, the following order is made:

Order

1.         The Applicant’s claim is dismissed.

2.         There is no order as to costs.       

___________________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant:                 Advocate D. J. Groenewald

Instructed by:                        Serfontein Viljoen and Swart Attorneys  

For the respondent:             Advocate M.T.K. Moerana SC and Advocate M.B.Lecoge

Instructed by:                       State Attorney          

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