Kimberley Junior School and Another v Head of the Northern Cape Education Department and Others (278/08) [2009] ZASCA 58; 2010 (1) SA 217 (SCA) ; [2009] 4 All SA 135 (SCA) (29 May 2009)

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Kimberley Junior School and Another v Head of the Northern Cape Education Department and Others (278/08) [2009] ZASCA 58; 2010 (1) SA 217 (SCA) ; [2009] 4 All SA 135 (SCA) (29 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 278/08
In the matter between:
KIMBERLEY JUNIOR SCHOOL FIRST APPELLANT
THE GOVERNING BODY OF THE
KIMBERLEY JUNIOR SCHOOL SECOND APPELLANT
and
THE HEAD OF THE NORTHERN
CAPE EDUCATION DEPARTMENT FIRST RESPONDENT
PAUL MELVILLE THEUNISSEN SECOND RESPONDENT
SEATILE SARAH RANTHO THIRD RESPONDENT
DONNA-LEE MARCELÉ BRAND FOURTH RESPONDENT
Neutral citation:
Kimberley
Junior School v The Head of the Northern Cape Education Department
(278/08)
[2009] ZASCA 58
(28 May 2009)
CORAM: STREICHER ADP, BRAND, MAYA, SNYDERS
et
MHLANTLA JJA
HEARD: 21 MAY 2009
DELIVERED: 28 MAY 2009
SUMMARY
:
Employment of
Educators Act 76 of 1998
– appointment of principal of public
school by first respondent in terms of
s 6(3)
of the Act –
recommendation by school governing body found to be essential
prerequisite for such appointment – held on the
facts that such
recommendation had never been made – appointment consequently set
aside.
______________________________________________________________
ORDER
_____________________________________________________
On appeal from
: Kimberley
High Court (Bosielo AJP
et
Majiedt J sitting as court of first instance.)
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and
replaced with an order in the following terms:
'(a) The decision taken by the first respondent to
appoint the third respondent as principal of the first applicant, is
hereby reviewed
and set aside.
(b) The first respondent is ordered to pay the
applicants' costs.'
_____________________________________________________
JUDGMENT
______________________________________________
BRAND JA
(Streicher ADP, Maya, Snyders and Mhlantla
JJA concurring)
[1] The appellants in this matter are the Kimberley
Junior School ('the School') and the Governing Body of the School
('the SGB').
The first respondent is the Head of the Northern Cape
Education Department ('the HoD') while the second, third and fourth
respondents
are Mr Paul Theunissen ('Mr Theunissen'), Mrs Seatile
Rantho ('Mrs Rantho') and Mrs Donna-Lee Brand ('Mrs Brand')
respectively.
Only the HoD actively involved himself in these
proceedings. The matter has its origin in the decision of the HoD to
appoint Mrs
Rantho – a black female person – instead of Mr
Theunissen – a white male person – as principal of the School.
The application
by the School and the SGB to the Kimberley High Court
for that decision to be reviewed and set aside was dismissed by
Majiedt J,
with Bosielo AJP concurring. The appeal against that
judgment is with the leave of the court a quo.
[2] The issues between the parties will best be
understood in the light of the factual background that follows. At
the beginning
of May 2006 the Northern Cape Education Department
('the Department') advertised for applications to fill various vacant
teaching
posts in its area. Included amongst these was the vacancy
for the position of principal at the School. Seven applicants
applied.
Two of those, who did not comply with the requirements
stated in the advertisement, were sifted out by the district office
of the
Department. Of the remaining five, four were short-listed for
interviews by an interview committee of the SGB specially constituted

for that purpose in accordance with directives from the Department.
The interviewing and assessment procedure to be followed by
the
interview committee was likewise prescribed in detail by the
Department. Inter alia the committee was required to put a series
of
questions to each candidate that were aimed at determining the
candidate's ability in twelve prescribed categories. Every committee

member was then called upon to score the candidate's performance in
each category. In the end, these scores were added up and the
average
mark calculated. Following upon its assessment of the four candidates
involved in the manner prescribed, the interview
committee made its
proposals to the SGB. These were adopted by the latter and conveyed
to the HoD in a letter of 12 June 2006.
[3] That letter and the ensuing correspondence between
the SGB and the HoD are directly relevant to the dispute that
eventually
arose for determination. This explains the somewhat
extensive extracts that are to follow.
•
In its letter of 12 June 2006 the SGB informed the
HoD:
'
Re:
Appointment of Principal
In the nomination of the above
post, equity, redress and representivity were carefully considered at
both the shortlisting and the
interviewing process.
The demographics of the school
are attached.
Having calculated the scores of
the four candidates the following is relevant:
1. Mr P Theunissen, who obtained
a score of 98.8, has been a deputy principal for 9 years and acting
principal for 6 months. He
has excellent experience, sound knowledge
of the administration and financial management of a primary school.
He has taught for
17 years in a primary school and has insight into
current education issues relevant to primary school education. He has
had leadership
experience in a multi-cultural school.
2. Mrs S Rantho, the second
candidate, obtained a score of 58.1. She is currently HOD at a
Secondary School in Bloemfontein and
does not have teaching
experience in a primary school. Nor does she have adequate
administration and management skills to be a
principal of a Primary
School.
3. Mrs D-L Brand, the third
candidate, obtained a score of 55.8. She is a Foundation Phase
educator and has some experience in an
acting HOD position. As such
she lacks the necessary administration and management skills required
to be principal of a suburban
school with more than 700 learners.
It is very evident that Mr P
Theunissen is the only suitable applicant to take up the post of
principal at Kimberley Junior School.'
•
The demographics of the school attached to the
letter showed that the learner population was made up of 60 per cent
African; 25
per cent Coloured; 8 per cent Indian and 7 per cent white
learners. It also showed that the top management at the School
consisted
of one white male and three white female persons. The
letter also accompanied several forms prescribed by the Department,
including
form NCK2 which described all three candidates as being
'recommended for appointment'.
•
On 12 October 2006 the HoD decided to appoint Mrs
Rantho as principal and conveyed that decision to the SGB in a letter
of the
same date. It reads:
'I refer to the above-mentioned
matter and your recommendation for the appointment of a principal at
your school.
Having considered the
recommendation and ensured that you have complied with the
requirements in
section 6(3)
of the
Employment of Educators Act, 76
of 1998
, in that at least three candidates have been recommended for
appointment as contemplated in
section 6(3)(c)
and having satisfied
myself that there has been compliance with the provisions of
section
6(3)(b).
I am satisfied with your recommendation and shall proceed
with the appointment of Ms S S Rantho as per your recommendation.'
•
The SGB's response to this letter was dated 25
October 2006. The relevant part reads as follows:
'This letter serves to confirm
our telephone discussion held on Monday 23 October 2006 and has
reference to your letter signed 12
October 2006, but only received 19
October 2006, . . . It is obvious that there is a patent error in
your letter in that you state
that you accept the Governing Body's
recommendation that Ms S S Rantho be appointed as the Principal of
Kimberley Junior School.
. . . This is not what was recommended by
the Governing Body and I again attach the recommendation that Mr. P
Theunissen is the
only suitable candidate.
You also state very clearly that
the Governing Body had followed the required procedure correctly in
terms of the relevant sections
of the Act.
If it is not a patent error on
your part then I respectfully request that you supply the Governing
Body with:
(1) reasons for your deviation
from our recommendation . . .
(2) . . . '
•
It is not clear from the papers what was said during
the telephone conversation of 23 October 2006, but, as I see it, not
much
turns on that. What is clear is that Mrs Rantho was informed of
her appointment on 25 October 2006.
[4] On 31 October 2006 representatives of the Governing
Body met with the HoD. In a letter of that date to the HoD, the
chairperson
of the Governing Body recorded what he regarded to be the
gist of the meeting as follows:
'Our meeting this morning
scheduled for 09h00 and held at the Department of Education has
reference. . . .
I would like to place on record
my understanding of our meeting and my request for you to reconsider
your decision forwarded to
myself on 12 October 2006.
You made it clear that due to a
technical misinterpretation, by the Governing Body, of
Section
6(3)(c)
of the
Employment of Educators Act, 76 of 1998
you chose one
of the three candidates put forward by the Governing Body,
notwithstanding the fact that only one clear candidate
was indicated
as suitable in the letter dated 12 June 2006.
You further indicated that as
the Governing Body and the Department of Education have differing
interpretations as to the intention
of the abovementioned Act that
the Governing Body now only has the courts to turn to, to make a
final interpretation of the law,
as your decision is final and there
is no further appeal process.
. . . '
•
The HoD concluded the exchange of correspondence by
his letter of 10 November 2006, which reads:
'With reference to your letter
dated the 25
th
October 2006, I wish to respond as follows:
1. There is no error in the
position that I have taken in my letter dated the 12
th
October 2006. I believe this position was fully explained to you at
our meeting.
2. To the extent that you are
not aware of the reasons for my decision which I believe were given
to you at our meeting I wish to
re-iterate them:
2.1 While I accept that the
recommendation complies with
Section 6(3)
[of the
Employment of
Educators Act 76 of 1998
] an obligation is placed on me by
Section
7(1)
to always have regard to the democratic values and principles
set out in Section 195 of the Constitution. This I have to do while

taking into account the ability of the candidate and the need to
address the imbalances of the past. Given the context of the school
I
have striven to meet this obligation in appointing Ms Rantho.
2.2. I am satisfied that with
the necessary support Ms Rantho will be able to discharge her duties
as principal of your school.
. . . '
[5] The correspondence shows an appreciation by both
parties that the roles of both the HoD and the Governing Body in the
present
context are governed by
s 6(3)
of the
Employment of
Educators Act 76 of 1998
. In terms of
s 6(1)
the authority to
appoint, promote or transfer any educator employed by a provincial
department of education vests in the head of
that department. That
authority is, however, subject to
s 6(3)
of which the relevant
part provides:
'(3)(a) . . . (A)ny appointment,
promotion or transfer to any post on the educator establishment of a
public school may only be
made on the recommendation of the governing
body of the public school . . .
(b) In considering the
applications, the governing body . . . must ensure that the
principles of equity, redress and representivity
are complied with
and the governing body . . . must adhere to-
(i) the democratic values and
principles referred to in
section 7
(1);
(ii) any procedure collectively
agreed upon or determined by the Minister for the appointment,
promotion or transfer of educators;
(iii) any requirement
collectively agreed upon or determined by the Minister for the
appointment, promotion or transfer of educators
which the candidate
must meet;
(iv) a procedure whereby it is
established that the candidate is registered or qualifies for
registration as an educator with the
South African Council for
Educators; and
(v) procedures that would
ensure that the recommendation is not obtained through undue
influence on the members of the governing
body.
(c) The governing body must
submit, in order of preference to the Head of Department, a list of-
(i) at least three names of
recommended candidates; or
(ii) fewer than three
candidates in consultation with the Head of Department.
(d) When the Head of Department
considers the recommendation contemplated in paragraph (c), he or she
must, before making an appointment,
ensure that the governing body
has met the requirements in paragraph (b).
(e) If the governing body has
not met the requirements in paragraph (b), the Head of Department
must decline the recommendation.
(f) Despite the order of
preference in paragraph (c) and subject to paragraph (d), the Head of
Department may appoint any suitable
candidate on the list.
(g) If the Head of Department
declines a recommendation, he or she must-
(i) consider all the
applications submitted for that post;
(ii) apply the requirements in
paragraph (b) (i) to (iv); and
(iii) despite paragraph (a),
appoint a suitable candidate temporarily or re-advertise the post.
(h) The governing body may
appeal to the Member of the Executive Council against the decision of
the Head of Department regarding
the temporary appointment
contemplated in paragraph (g).
(i) The appeal contemplated in
paragraph (h) must be lodged within 14 days of receiving the notice
of appointment.
(j) The appeal must be finalised
by the Member of the Executive Council within 30 days.
(k) If no appeal is lodged
within 14 days, the Head of Department may convert the temporary
appointment into a permanent appointment
. . ..'
[6] To complete the legislative picture;
s 7(1)
of
the Act – to which reference is made in
s 6(3)(b)(i)
–
provides:
'(1) In the making of any
appointment or the filling of any post on any educator establishment
under this Act due regard shall be
had to equality, equity and the
other democratic values and principles which are contemplated in
section 195 (1) of the Constitution
of the Republic of South Africa,
1996 (Act 108 of 1996), and which include the following factors,
namely-
(a) the ability of the
candidate; and
(b) the need to redress the
imbalances of the past in order to achieve broad representation.'
[7] In formulating its case for the review of the HoD's
decision to appoint Mrs Rantho instead of Mr Theunissen, the SGB
accepted,
quite correctly, so it seems, that that decision had been
taken in terms of s 6(3)(f). Departing from that premise its
contentions,
broadly stated, were twofold. First, that Mrs Rantho was
not a 'suitable candidate' for the position of principal as required
by
the subsection. Secondly, that although the subsection allows the
HoD to deviate from any order of preference proposed by the SGB,
Mr
Theunissen is so markedly better qualified for the position and so
markedly outscored Mrs Rantho during the interview procedure,
that
her appointment could not be justified on any reasonable grounds.
[8] The response to the first proposition elicited from
the HoD was in essence that, since the SGB recommended Mrs Rantho as
one
of three candidates for the position, albeit as a distinct second
option, it is not open to it to argue that she is not suitable.
In
this regard the HoD referred to the definition of 'recommendation' in
the Concise Oxford English Dictionary, namely, 'to put
forward with
approval as being suitable for a purpose or role'. The proposition by
the SGB that it recommended someone who it regarded
as not suitable,
so the HoD contended, therefore amounts to a contradiction in terms.
As to the markedly superior score attained
by Mr Theunissen during
the interview and assessment procedure, the HoD's response appears to
be encapsulated by the following
statement in his answering
affidavit:
'The constitutional imperative
of the need to redress imbalances of the past in order to achieve
broad representation as echoed
in Section 7(1) of the EEA and
Section 195(1)(h) and (i) of the Constitution could only be
given effect to by appointing as
principal of [the School] someone
other than [Mr Theunissen]. These constitutional imperatives could,
in my respectful submission,
only be achieved by appointing [Mrs
Rantho] as principal of [the School].'
[9] The way in which the battle lines were thus drawn
led the court a quo to believe that the dispute presented for
determination
turned on whether the HoD had properly exercised the
discretion bestowed on him in terms of s 6(3)(f) when he decided
to appoint
Mrs Rantho instead of Mr Theunissen. Having thus
understood the dispute, the court proceeded to decide it in favour of
the HoD.
Its
ratio decidendi
appears from the following statement (in para 23):
'I unreservedly endorse this
approach by the HOD. Once he had taken the position, correctly so in
my view, that the three candidates
proffered for recommendation had
been regarded as suitable for appointment after having undergone a
rigorous and extensive process
of sifting and evaluation, he was not
only at liberty, but in fact enjoined by legislation, particularly by
the Constitution, to
exercise his discretion in favour of a candidate
who would promote equity, redress and representivity. The top
management demographics
is clearly out of proportion to the learner
demographics at the school. This required redress as envisaged by the
applicable legislation.
In my view therefore, it cannot be said that
his decision was not rationally connected to the purpose of the
empowering legislation.'
[10] But as I see it, a proper analysis of the facts
directs the spotlight to an issue which is entirely different from
the one
identified by the court a quo. As the court a quo saw it, the
question was essentially the same as the one that arose in
Head,
Western Cape Education Department v Governing Body, Point High School
2008 (5) SA 18
(SCA), namely, whether the HoD
had properly exercised his discretion under s 6(3)(f). In my
view, the real enquiry in this
case, however, relates to the
antecedent question, namely, whether the HoD had any discretion to
make an appointment under s 6(3)(f)
at all. That, in turn,
depends on the answer to the more pertinent question, whether the SGB
had recommended Mrs Rantho to be appointed
as principal of the
School. The question arises from the pre-condition in s 6(3)(a)
– which could hardly be stated in any
clearer terms – that 'any
appointment, promotion or transfer . . . [of an educator by the head
of the department to a post at
a public school] may only be made on
the recommendation of the governing body of the public school . . .'
(See also
Head, Western Cape Education
Department v Governing Body, Point High School (supra)
para 10.) The same theme is maintained in s 6(3)(f). Though the
head of department is not bound by the order or preference
proposed
by the governing body, he or she can only appoint from the list of
candidates recommended by the latter.
[11] Under common law, necessary preconditions that must
exist before an administrative power can be exercised, are referred
to
as 'jurisdictional facts'. In the absence of such preconditions or
jurisdictional facts, so it is said, the administrative authority

effectively has no power to act at all (see eg
Paola
v Jeeva NO
[2003] ZASCA 100
;
2004 (1) SA 396
(SCA) paras 11, 14
and 16). The same principle finds application under the provisions of
the
Promotion of Administrative Justice Act 3 of 2000
– PAJA –
albeit that the formulation is in somewhat different terms (see
President of the Republic of South Africa v
South African Football Union
2000 (1) SA 1
(CC) para 168). This is borne out, for example, by the following
statement by Cora Hoexter,
Administrative Law
in South Africa
227:
'
Section 6(2)(a)(i)
of the PAJA
gives effect to s 33(1) of the Constitution [which guarantees
the right to administrative action that is lawful]
by allowing
judicial review of administrative action where the administrator who
took it "was not authorised to do so by the
empowering
provision". Section 6(2)(f)(i) of the PAJA similarly provides
that an administrative action may be reviewed where
it "is not
authorised by the empowering provision". These two provisions
reflect the position at common law.'
[12] In administrative law parlance the head of
department's power to appoint under s 6(3)(f) is therefore
dependent on the
jurisdictional fact of a recommendation by the
governing body. As was pointed out by the Constitutional Court in
President of the Republic of South Africa v
South African Football Union (supra)
para 168
note 132, the judgment of Corbett J in
South
African Defence and Aid Fund v Minister of Justice
1967
(1) SA 31
(C) remains the leading authority on jurisdictional facts
in our law. In that judgment Corbett J (at 34
in
fine
– 35C) identified two categories of
jurisdictional facts that can be encountered in empowering
legislation. The first category,
described as 'objective
jurisdictional facts', includes the type of fact or state of affairs
that must exist in an objective sense
before the power can validly be
exercised. Here the objective existence of the fact or state of
affairs is justiciable in a court
of law. If the court finds that
objectively the fact or state of affairs did not exist, it will
declare invalid the purported exercise
of the power.
[13] In the second category, that of subjective
jurisdictional facts, the empowering statute has entrusted the
repository of the
power itself with the function to determine whether
in its subjective view the prerequisite fact or state of affairs
existed or
not. Expressions often used by the legislature to express
this intent are, eg, 'in his or her opinion' or 'if he or she is
satisfied
that' the particular fact or state of affairs exists. In
this event the question is not whether the prescribed fact or state
of
affairs existed in an objective sense. The court can only
interfere where it is shown that the repository of the power, in
forming
the opinion that the fact or state of affairs existed, had
failed to apply its mind to the matter. Whether a particular
jurisdictional
fact can be said to fall within the one category or
the other, will depend on the interpretation of the empowering
statute.
[14] On my interpretation of s 6(3)(a) and
s 6(3)(f) the prerequisite of a recommendation by the governing
body falls
in the first category, ie of objective jurisdictional
facts. For the existence of this fact, the HoD in this case relied on
the
form NCK2 which specifically described all three names submitted
as 'recommended candidates'. Self-evidently, however, the form
must
be read together with the SGB's letter of 12 June 2006. The pertinent
question is therefore whether form NCK2, read with that
letter, can
objectively be construed as a recommendation of three candidates,
including Mrs Rantho, for the position of principal
of the School.
The HoD concluded that it did. From his answering affidavit it
appears that that conclusion evolved from the following
process of
reasoning: s 6(3)(c)(i) requires in peremptory language that the
governing body 'must submit a list of at least
three names of
recommended candidates'. Moreover, s 6(3)(c)(ii) provides for
the eventuality that a governing body finds itself
unable to
recommend three candidates. In that event it can submit a list of
fewer than three candidates, but in consultation with
the head of
department. In this case, so the HoD's reasoning went, the SGB made
no attempt to invoke the s 6(3)(c)(ii) procedure.
It must
therefore be understood to have recommended three candidates as
required by s 6(3)(c)(i).
[15] The replying affidavit on behalf of the SGB
presented the explanation that its members were unaware of the
s 6(3)(c)(ii)
option because the directives of the Department
and the form NCK2 itself provided for no alternative but to submit
the names of
three candidates. Consequently the SGB decided that,
although they found only one candidate suitable, they would submit
three names
but recommend only one. However, as I have said, the
question is not what the SGB intended nor what the HoD thought. The
question
is whether form NCK2 read with the letter by the SGB of 12
June 2006 can objectively be construed as a recommendation of Mrs
Rantho
as principal of the school.
[16] The term 'recommendation' is so commonly used that
dictionary definitions can hardly contribute to greater clarity. But
the
definition of the term in the Concise Oxford English Dictionary
which both the HoD and the court a quo found helpful, namely 'to
put
forward with approval as being suitable for a purpose or role',
accords with my understanding of the term. Simply stated the
question
is thus: can form NCK2 read with the letter of 12 June 2006 be
understood to put three candidates, including Mrs Rantho,
forward as
suitable candidates for the post of principal? I believe the answer
to the question is: clearly not. In fact, the letter
conveys the
exact opposite. By saying in the last sentence that only one of the
three candidates referred to is suitable, the author
clearly intended
to convey that the other two are not. Logic allows for no other
inference. Moreover, what I regard as the only
sensible inference is
accentuated by two comments in paragraph 2 of the letter with
specific reference to Mrs Rantho, namely, first
that she has no
experience in teaching at a primary school and, secondly, that she
does not have adequate administration and management
skills to be a
principal of a primary school.
[17] The HoD's response to the first comment is that
teaching experience at a primary school is not required by the
advertisement
for the post. But that is neither here nor there. The
author of the letter obviously thought, rightly or wrongly, that it
was and
therefore concluded that Mrs Rantho's lack of such experience
rendered her unfit for recommendation. The second comment in
paragraph
2 of the letter the HoD regarded, so he said (in para 36.3)
as 'an acceptance by the [SGB] that [Mrs Rantho] does have
administration
and management skills to be a principal of a primary
school, albeit inadequate'. I find the answer untenable. How can Mrs
Rantho
be understood to be recommended as suitable to be a principal
if her administration and management skills were assessed to be
inadequate
to perform that function? What is more, what goes for Mrs
Rantho must also go for Mrs Brand who can plainly not be understood
to
be recommended. It is true that form NCK2 on its own describes all
three nominees as 'recommended candidates', but the message conveyed

by the letter is so clear that it can hardly be obscured by the
contents of the form.
[18] As to the HoD's process of reasoning based on his
interpretation of s 6(3)(c), my conclusion is this: though I
agree with
his interpretation of the section, his reasoning cannot be
sustained. Section 6(3)(c)(i) plainly requires a governing body

to recommend at least three candidates. For the recommendation of a
lesser number it must consult the head of the department with
a view
to invoke the procedure under s 6(3)(c)(ii). What the SGB tried
to do in this instance, namely to nominate or put up
the names of
three candidates, but to recommend only one, is simply not permitted
by s 6(3)(c). The SGB was supposed to recommend
three
candidates. But the HoD's inference that the Governing Body did in
fact do something just because it was required to do so,
simply does
not follow. Experience of life dictates otherwise. Things are often
not what they are supposed to be. The question
remains whether, on a
proper interpretation of its letter of 12 June 2006, the SGB did in
fact recommend three candidates. For
the reasons I have given, I
believe the answer to that question is 'self-evidently not'.
[19] In the absence of the jurisdictional fact of a
recommendation by the SGB the HoD had no authority to make an
appointment. Or
– in the language of s 6(2)(a)(i) and
s 6(2)(f)(i) of PAJA – absent any recommendation by the SGB,
the HoD was not
authorised by the empowering provision to make an
appointment. It follows that his appointment of Mrs Rantho as
principal of the
School falls to be set aside. In the event, the SGB
requested that we should appoint Mr Theunissen as principal of the
School.
I do not believe that would be appropriate. Apart from the
principle of separation of powers, which dictates that a court should

be hesitant to usurp executive functions, there was in this case not
even a proper recommendation by the SGB as contemplated by
s 6(3)(c).
In the circumstances, both the SGB and the HoD should, in my view, be
afforded the opportunity to perform their
respective functions in
terms of s 6(3) in a proper manner.
[20] In the result it is ordered that:
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and
replaced with an order in the following terms:
'(a) The decision taken by the first respondent to
appoint the third respondent as principal of the first applicant is
hereby reviewed
and set aside.
(b) The first respondent is ordered to pay the
applicants' costs.'
…………………
F D J BRAND
JUDGE OF APPEAL
COUNSEL
FOR APPELLANT
:
J
G VAN NIEKERK SC
Instructed
by: ENGELSMAN, MAGABANE INC
KIMBERLEY
Correspondents: LOVIUS
BLOCK ATTORNEYS
BLOEMFONTEIN
For
Respondent: L T SIBEKO SC
Instructed
By: THE STATE ATTORNEY
KIMBERLEY
Correspondents: THE
STATE ATTORNEY
BLOEMFONTEIN