IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C952/2002
In the matter between:
LESLIE SIEGELAAR Applicant
And
MINISTER OF SAFETY AND SECURITY Respondent
JUDGEMENT
MURPHY, AJ
1. On 26 July 2004 I upheld a point in limine made by the respondent and dismissed the applicant’s
action in terms of section 6 the Employment Equity Act, 56 of 1998 (“the EEA”) alleging unfair
discrimination. At the time I reserved the reasons for my decision. These are my reasons.
2. On 13 September 2002 the applicant filed suit in the Labour Court alleging that he had been unfairly
discriminated against by his employer, the respondent, on the basis of race and/or colour as
contemplated in section 6 of the EEA.
3. The respondent delivered a response to the applicant’s statement of claim on 3 October 2002 in which
it disputes many of the facts and conclusions of law in the applicant’s statement of claim and further
avers that the applicant has delayed unreasonably in referring the matter to court in terms of section 10
of the EEA.
4. The applicant is an employee of the respondent within the meaning of EEA, the respondent similarly is
an employer and the application is brought in terms of section 6(1) of the EEA. Section 6 of the EEA
provides as follows:
1
1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment
policy or practice, on one or more grounds, including race, agenda, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV
status, conscience, belief, political opinion, culture, language and birth.
2) It is not unfair discrimination to –
(a). take affirmative action measures consistent with the purpose of this Act; or
(b). distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
5. In the pretrial minute filed in accordance with rule 6 of the Labour Court rules, the parties were able to
record many facts that are common cause. The applicant was appointed by the respondent as a
constable on 29 March 1982 and was promoted to the rank of sergeant during 1993. Thereafter the
applicant rose quickly through the ranks and by 1995 had been promoted to Captain and in 2001 was
further promoted to Superintendent. During the period 1986 to February 2002 the applicant held
several senior positions in the police force. He has been Station Commander at different police stations
in the Western Cape and has served also as Detective Commander and ultimately Detective Branch
Commander in Kraaifontein. Throughout his period of employment he has acquired an impressive
range of academic qualifications, including a national diploma in police administration, an advanced
diploma in public administration and management, and a Master’s degree in public administration from
the University of Stellenbosch. He has also completed a number of inservice training courses and
certificates.
6. In July 2000 the respondent advertised various vacant posts on the level of Senior Superintendent.
During or about August 2000 the applicant applied for one of these posts, namely, Commander
Detective Services: Cape Town Central: Western Cape.
7. In terms of the respondent’s advertisements applicants for the post were required to meet the following
criteria:
• Proven managerial experience in the field of the post;
• Fluency in at least two of the official languages of which one must be English;
2
• A recognized degree or equivalent qualification applicable to the post would be a
recommendation.
8. In addition, applicants were required to display competency in the core functions of the job which were:
• Direct responsibility for the effective management of the detective service capacity at the
station in accordance with the relevant policies, standards and directives;
• Develop and maintain investigative priorities and objectives of the station in accordance with
policing priorities and objectives as well as the crime combating strategy; and
• Effective management and coordination of the functions and resources allocated to this
component.
9. The applicant went through the interview process and on or about 23 October 2000 the promotion
selection committee of the Western Cape office of the respondent placed the applicant as number 2 on
its recommendation priority list. The process of recommendation was the culmination of an interview
process directed by the provisions of the respondent’s National Instruction 3/2000 dealing with
appointments to posts on salary levels 11 to 15.
10. The selection committee was comprised of Commissioners Du Toit, Strydom and Holtzman. The
committee was unable to reach consensus on a recommendation for the post in question. Its
comments were as follows:
The selection committee could not find consensus, whilst Commissioners Du Toit and Strydom are of the opinion that the
candidate who scored the most marks during the adjudication…Superintendent De Beer should be considered for
appointment…Commissioner Holtzman is of the opinion that the difference in marks between the first and the second
candidate is marginal and given the fact that the second candidate (the applicant) is from the designated group [the
applicant] should be considered for the post. The interview manager refers to section 18(4) of National Instruction 3/2000
and informs the selection panel that he will ask the Provincial Commissioner for a ruling on this matter. Both
Commissioners Du Toit and Strydom reply that [the applicant] is equally qualified to take up the position, and [they] will
accept the Provincial Commissioner’s ruling…It is also the unanimous recommendation of the selection committee that
either Superintendent De Beer or [the applicant] should be the second candidate in line, depending on the Provincial
Commissioner’s ruling.
3
11. On or about 23 October 2000 the Provincial Commissioner recommended Superintendent De Beer, a
white male as number 1, and the applicant, a coloured male, as number 2. Superintendent De Beer
scored 74% on the interview and the applicant scored 71.32%.
12. On or about 1 December 2000 the National Commissioner of Police appointed a third party, an African
male, into the post. The third party had also been one of the candidates shortlisted on the committee’s
priority list, but as he had attained a lesser score he was ranked lower than Superintendent de Beer
and the applicant. The third party took up the position with effect from 1 December 2000.
13. Almost five months later, on 25 April 2001, the applicant lodged a grievance in relation to the
appointment inter alia on the grounds that he had been unfairly discriminated against on the basis of
race and/or colour.
14. According to the applicant, he thereafter attempted to exhaust the respondent’s internal dispute
resolution and grievance procedures from 25 April 2001 until 31 July 2001. When it became clear to
him that he could not resolve the matter internally, he referred a dispute to the CCMA, with the
assistance of SAPU, his trade union, in terms of section 10(2) of the EEA on 1 August 2001. A
conciliation hearing was convened at the CCMA on 12 December 2001, which was postponed to a
later date, and when the matter was eventually not resolved, the CCMA issued a certificate of outcome
on 21 February 2002.
15. On 11 April 2002 Mr A G Miller of SAPU, ostensibly acting in terms of an agreement between the union
and the respondent, the terms of which remain unclear and in respect of which no evidence has been
adduced, referred the dispute between the parties to the CCMA for arbitration, purportedly in terms of
section 10(6)(b) of the EEA (set out fully later in this judgment). The matter was then set down by the
CCMA for arbitration on 15 August 2002. In an undated arbitration award the appointed commissioner
ruled that the lack of clarity concerning the terms of the agreement to refer the matter to arbitration,
occasioned by the failure of the parties to reduce the agreement to writing, had resulted in his lacking
jurisdiction to determine the dispute, which ought properly in his opinion to have been referred to the
Labour Court in terms of section 10(6)(a)) of the EEA.
4
16. The applicant then filed a statement of claim with the Labour Court on 13 September 2002.
17. As mentioned earlier, the respondent has taken issue with many of the factual and legal allegations
made by the applicant. In particular, it avers that the appointment of the third party to the post by the
National Commissioner, first having satisfied himself that the appointee was indeed qualified in all
respects for the post, gave effect to the provisions of the National Instruction which form part of the
collective agreement concluded with the South African Police Union (SAPU) and the respondent. It
further maintains that the appointment was effected in terms of the respondent’s employment equity
plan and was aimed at the promotion of representivity at salary level 11 to 12.
18. The applicant’s filing of his statement of claim with the Labour Court almost 22 months after the
appointment prompted the respondent to raise a point in limine on the issue of delay. Anticipating the
point, the applicant in paragraph 4 of his statement of claim sets out the facts upon which he relies to
justify the delay in bringing the application. Paragraph 4 of the statement of claim reads as follows:
Delay in bringing this Application
4.1 The Applicant attempted to exhaust the Respondent’s internal dispute resolution and grievance
procedures in order to resolve this matter from 25 April 2001 until 31 July 2001.
4.2 When it became clear that the internal procedures were exhausted, Applicant via his Trade
union, referred the dispute to the CCMA on 1 August 2001.
4.3 On 12 December 2001 the CCMA issued a Certificate of NonResolution and on 11 April 2002
the dispute was referred to the CCMA for arbitration by agreement between the parties.
4.4 On 15 August 2002 and at the arbitration hearing, a dispute arose regarding the agreement to
arbitrate at the CCMA. The CCMA held that it did not have jurisdiction and that the matter should
be referred to the above Honorable Court.
19. The respondent in his response disputes these facts and contends with reference to the history of the
dispute that the applicant delayed unreasonably in bringing the application to the Labour Court.
20. In the pretrial minute dated 3 December 2002 the parties agreed that the issue of delay should be
determined in limine.
5
21. Disputes in relation to the prohibition of unfair discrimination as contemplated in Chapter II of the EEA
are to the processed in terms of section 10 of the EEA. The section reads as follows:
1) In this section the word dispute excludes a dispute about an unfair dismissal, which must be
referred to the appropriate body for arbitration or adjudication in terms of Chapter VIII of the
Labour Relations Act.
2) Any party to a dispute concerning this Chapter may refer the dispute in writing to the CCMA
within 6 months after the act or omission that allegedly constitutes unfair discrimination.
3) The CCMA may at any time permit a party that shows good cause to refer the dispute after the
relevant time limit set out in subsection (2).
4) The party that refers a dispute must satisfy the CCMA that –
(a). a copy of the referral has been served on every other party in the dispute; and
(b). the referring party has made a reasonable attempt to resolve the dispute.
5) The CCMA must attempt to resolve the dispute through conciliation.
6) If the dispute remains unresolved after conciliation –
(a) any party to the dispute may refer it to the Labour Court for adjudication; or
(b). all the parties to the dispute may consent to arbitration of the dispute.
7) The relevant provisions of parts C and D of Chapter VII of the Labour Relations Act, with the
changes required by context, apply in respect of a dispute in terms of this Chapter.
22. Although section 10 lays down a 6month time limit within which an applicant is required to refer a
matter to conciliation, it fails to specify a time limit for the referral of a dispute either to the Labour Court
for adjudication or to voluntary arbitration.
23. Mr. Sutherland, on behalf of the respondent, with reference to section 10(7) of the EEA, which
incorporates part C and D of Chapter VII of the Labour Relations Act into the EEA, submitted that
section 136 of part C of Chapter VII of the Labour Relations Act could be relied on to support the
contention that the applicant was obliged to make a valid referral to the Labour Court for adjudication,
or to the CCMA for voluntary arbitration, within 90 days of the commissioner issuing the certificate of
outcome on 21 February 2002, i.e. on or before 21 May 2002. Section 136 of the LRA deals with the
appointment of a commissioner to resolve a dispute through arbitration and the relevant part of it
reads:
1) If this Act requires a dispute to be resolved through arbitration, the commission must appoint a
6
commissioner to arbitrate the dispute, if –
(a) a commissioner has issued a certificate stating that the dispute remains unresolved; and
(b). within 90 days after the date on which the certificate was issued, any party to the dispute has requested that the
dispute be resolved through arbitration. However, the commission, on good cause shown, may condone a party’s non
observance of that time frame and allow a request for arbitration to be filed by the party after the expiry of the 90 day
period.
24. I am persuaded that section 136(1) might be of application to referrals made under section 10(6)(b) of
the EEA, meaning that referrals to consensual arbitration at the instance of the CCMA would have to
be done within 90 days of the commissioner issuing a certificate, failing which an application for
condonation would be necessary and would succeed only in the event of good cause shown. However,
I doubt the subsection can apply in respect of referrals to the Labour Court in terms of section 10(6)(a).
Section 136 deals with the appointment of a commissioner as an arbitrator and does not deal with
adjudication of disputes by the Labour Court. Besides, there is no other provision in part C or D of
Chapter VII of the Labour Relations Act which imposes any time limit within which disputes must be
referred for adjudication to the Labour Court once conciliation has failed and the commissioner has
issued a certificate of outcome in terms of section 135(5)(a). It would seem naturally to follow in
accordance with common law principles that if the dispute remains unresolved after conciliation any
party wishing to refer the dispute to the Labour Court should do so within a reasonable time. This then
raises the question of what amounts to a reasonable time within the context of the EEA.
25. Before turning to this, it needs saying that the applicant has dealt with the in limine point in a less than
satisfactory manner. As indicated earlier, the applicant was aware that there was a time frame problem
at the time he delivered his statement of claim. And the respondent in his response put the question of
unreasonable delay in referring the matter to adjudication squarely in issue. Thereafter it was agreed in
the pretrial minute that the issue would be dealt with on an in limine basis. Since the applicant is
essentially seeking condonation for the delay, given the terms of the pretrial minute he should have
dealt with the matter by way of an interlocutory application delivered in accordance with rule 11 of the
rules of the Labour Court. The rule provides as follows:
1) The following applications must be brought on notice, supported by affidavit:
(a). interlocutory applications;
(b). other applications incidental to, or pending, proceedings referred to in these rules that are not specifically provided for
7
in these rules; and
(c). any other applications for direction which may be sought from the court.
2) The requirement in subrule (1) that affidavits be filed does not apply to applications that deal
only with procedural aspects.
26. Seeing that the point in limine goes beyond a mere procedural issue, Mr. Sutherland submitted,
correctly in my view, that the applicant needed to bring an application on notice and supported by an
affidavit. This the applicant has failed to do and has offered no reason at all for his noncompliance.
Hence, at the commencement of the trial the court was without evidence in relation to the nature,
extent and reasons for the delay of sufficient order to enable me to exercise a discretion to condone or
not to condone it. However, by agreement between the parties, the applicant was sworn in and gave
brief testimony upon which his counsel then relied to make an application for condonation. The
applicant also called Mr Lennit Max, a member of Parliament, and previously Commissioner of Police
for the Western Cape who also gave limited testimony of a general nature concerning the practice in
respect of grievances within the police force to the effect that members are expected first to exhaust
their internal remedies, with each step being clearly spelt out in the governing code and procedure, and
that the department was obliged to process grievances expeditiously. As will become apparent
presently, the testimony of both witnesses offered little in the way of explanation for the delays at the
different stages of processing this matter.
27. Although the period in contention strictly speaking relates to the time taken between 21 February 2002,
when the commissioner issued the certificate of outcome in respect of the failed conciliation, and the
eventual referral of the dispute to the Labour Court on 13 September 2002, it is both appropriate and
necessary to have regard to the overall time frame in which the dispute was processed in order to
arrive at a conclusion as to whether the referral to the Labour Court was made within a reasonable
time and whether condonation should be granted.
28. The appointment into the vacant post was made with effect from 1 December 2000. There is some
uncertainty about when the applicant first acquired knowledge of the appointment. In his oral testimony
he claimed to have become aware of the appointment in April 2001. Although Mr. Sutherland mounted
no serious challenge to this in crossexamination, I doubt its correctness. In his internal grievance filed
on 25 April 2001 the applicant states: “Gedeurende Januarie 2001 is bekend gemaak dat die pos aan
8
‘n ander offiseer toegeken is”. It is not clear whether he or his representative is stating that he became
aware of the appointment in January 2001 or whether that is when it became a matter of general
knowledge. Moreover, it seems improbable that as a senior officer he would not have become aware of
the appointment sooner. Had he been aware in January it would mean that he waited for four months
before filing his internal grievance on 25 April 2001. At the very least therefore the applicant was
obliged to furnish a fuller explanation of this 4month period. A bald statement that he first became
aware of the appointment in April 2001 is not enough, especially in the face of a contradictory and
ambiguous statement in his grievance form.
29. After filing his grievance the applicant waited a further four months before referring the dispute to the
CCMA for conciliation on 1 August 2001. Mr. Max’s evidence that the processing of grievances within
the SAPS take time, hints at some general justification. Still, again, there is no evidence before me
outlining what in fact transpired in relation to the applicant’s grievance, and what steps, if any, were
taken to move the process along and where responsibility lay for the delay in processing the grievance
through the internal procedures.
30. Section 10(2) of the EEA requires a dispute alleging unfair discrimination to be referred in writing to the
CCMA “within 6 months after the act or omission that allegedly constitutes unfair discrimination”. The
“act or omission” complained of by the applicant presumably would be the appointment of the
successful candidate and the failure to appoint the applicant during December 2000, which would then
have required a referral to the CCMA by the end of June 2001 at the latest. It is common cause that
the referral was made on 1 August 2001. As the referral to the CCMA for conciliation was more than
six months after the act or omission allegedly constituting unfair discrimination, one assumes that in
order to found its jurisdiction the CCMA, on the basis of good cause shown, must have condoned the
late referral in terms of section 10(3) of the EEA. Alternatively, it may have held that condonation was
unnecessary because it considered some other later act or omission as the conduct constituting the
discriminatory conduct. Again, though, there is no evidence on record dealing with these aspects,
making difficult any assessment of the nature, extent and reasons for the delay, to say the least.
31. Almost four and a half months after the dispute was referred to the CCMA, a hearing was convened at
the CCMA on 12 December 2001. A certificate of outcome was issued two and a half months later on
9
21 February 2002. In his oral testimony the applicant stated somewhat cryptically, without elucidation,
that the conciliation hearing of December 2001 was postponed to February 2002 because the
employer apparently had claimed it lacked a mandate. What that signifies is unclear. Moreover, the
applicant has tendered no evidence by way of affidavit or in his oral testimony explaining why he did
not expedite the matter, as he was entitled to do in terms of section 135 of the Labour Relations Act,
applicable in EEA disputes by virtue of section 10(7) of the EEA. Section 135 provides that when a
dispute has been referred to the CCMA, the CCMA must appoint a commissioner to attempt to resolve
it through conciliation. The appointed commissioner is obliged to attempt to resolve the dispute through
conciliation “within 30 days of the date the commission received the referral” – section 135(2). Section
135(5) provides that when conciliation has failed, or at the end of the 30day period, or any further
period agreed between the parties, the commissioner must issue a certificate stating whether or not the
dispute has been resolved. No account has been offered for why the applicant did not avail himself of
his right to obtain a certificate of outcome at the expiry of the 30day period, nor has he made any clear
assertion that the parties decided, in the interests of seeking a settlement, to extend the conciliation
process by way of agreement. Accordingly, the explanation for why the conciliation process (normally
expected to endure on average for no more than 30 days) was allowed to extend over a 7month
period, from 1 August 2001 until 21 February, is once more, at best, incomplete.
32. About 2 months after the issue of the certificate of outcome, the applicant’s trade union referred the
dispute to the CCMA for arbitration. The certificate of outcome reflects that the dispute could be
referred to arbitration “by consent”. As set out above, section 10(6) of the EEA allows for adjudication
of unfair discrimination disputes by the Labour Court, with referrals to arbitration being permitted only
by agreement between the parties. No evidence has been placed before the court setting out the terms
of the agreement to refer the matter to arbitration. When the matter eventually came before the CCMA
on 15 August 2002, the commissioner held that he did not have jurisdiction to determine the dispute on
the grounds that there was not a valid agreement in terms of section 10(6)(b) of the EEA. The matter
was then referred to this court a month later on 13 September 2002, 204 days after the certificate of
outcome was issued.
33. In his oral testimony the applicant alleged that the professed agreement to refer the matter to
arbitration unraveled because of a dispute concerning legal representation. The commissioner’s ruling
10
on the other hand goes further, finding in effect that the terms of referral were never properly
concluded. There is no affidavit or other evidence before me contesting the correctness of the
commissioner’s decision or offering any explanation or justification for the applicant labouring under a
mistaken supposition of one kind or another. Accordingly, it is not easy to conclude that the defective
referral to arbitration, leading to a six and a half month delay in referring the matter to the Labour Court
after the issue of the certificate of outcome, was reasonable in the circumstances. The applicant’s
explanation is plainly insufficient.
34. As I have already discussed, I am not persuaded that section 136(1) of the Labour Relations Act is of
any direct application to the determination of the time frame in which the referral to adjudication should
have been made. Nevertheless, I do take the view that the review of the decision of the National
Commissioner of Police, as with all review applications, should have been brought within a reasonable
time. The legal principles applicable to determining the question of unreasonable delay in this regard
are well established. In Wolgroeiersafslaers v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 39A
C, Miller JA stated the principles as follows:
In gevalle waar ‘n bepaalde tydperk vir instelling van sodanige verrigtinge deur wetgewing of regulasies voorgeskryf is en
die aansoekdoener nie aan die voorskrif voldoen nie, is die Hof by magte om te weier om die saak in hersiening te neem
– of kan hy die versuim kondoneer. In sulke gevalle oefen die Hof ‘n regterlike diskresie uit, met inagneming van alle
tersaaklike omstandighede. In die afwesigheid van enige spesifieke tydsbepalings het ons Howe gedurende die afgelope
sowat 70 jaar herhaaldelik daarop gewys dat die verrigtinge binne redelike tyd ingestel moet word……..Word beweer dat
die aansoekdoener nie binne redelike tyd die saak by die Hof aanhangig gemaak het nie moet die Hof beslis (a) of die
verrigtinge wel na verloop van ‘n redelike tydperk eers ingestel is en (b) indien wel, of die onredelike vertraging oor die
hoof gesien behoort te word. Weereens, soos dit my voorkom, met betrekking tot (b), oefen die Hof ‘n regterlike diskresie
uit, met inagneming van al die relevante omstandighede.
35. In other words, in determining whether the delay in bringing the proceedings is unreasonable the court
is obliged to exercise a judicial discretion taking into account all the relevant circumstances. Guidance
can also be sought from cases dealing with applications for condonation for special leave to appeal. In
Brummer v Gorfil Brothers Investments (Pty) Ltd & Others 2000 (2) SA 837 (CC) the Constitutional
Court stated:
This court has held that an application for leave to appeal will be granted if it is in the interests of justice to do so and that
11
the existence of prospects of success, though an important consideration in deciding whether to grant leave to appeal, is
not the only factor in the determination of the interests of justice. It is appropriate that an application for condonation be
considered on the same basis and that such an application should be granted if that is in the interests of justice and
refused if it is not. The interests of justice must be determined by reference to all relevant factors, including the nature of
the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which
condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s
explanation for the delay or defect.
36. In other words, the interests of justice are a central consideration in deciding whether to grant
condonation for an unexplained delay. So too is the observance of appropriate standards in the
administration of justice. Applications for condonation must be properly made in the appropriate
manner in order to ensure they can be effectively adjudicated.
37. The question then is whether the interests of justice in this instance demand that I should condone a
referral made to the Labour Court in terms of section 10(6)(a) of the EEA 204 days after the certificate
of outcome was issued by the CCMA. At first glance, 204 days may not seem to be an inordinate lag in
making the referral. Yet in Lionmatch Co Ltd v Paper Printing Wood and Allied Workers Union and
Others 2001 (4) SA 149 (SCA) the court held that a period of five months was a delay of such a
magnitude that it called for an explanation from the appellant in anticipation of the delay being raised
as a bar to his claim. Moreover, in the context of employment relations, it is trite that the dispute
resolution scheme enacted by different statutes aims at expedited dispute resolution. By analogy,
referrals of unfair dismissal disputes to adjudication by the Labour Court as a rule must be made within
90 days after the CCMA has certified that the dispute has remained unresolved – section 191(11)(a).
Similarly, disputes concerning alleged unfair labour practices related to protected disclosures must be
referred for adjudication within 90 days. Hence, although section 136(1) of the Labour Relations Act
has no direct application, the 90day period is certainly a contextual yardstick against which to
measure the issue of delay when no time limit has been specifically enacted.
38. Furthermore, section 7 of the Promotion of Administrative Justice Act 3 of 2000 offers a helpful
indication of the norm. It goes some way towards codifying the common law principle for determining
questions of unreasonable delay by establishing as a general principle that proceedings for judicial
review should be instituted without unreasonable delay and not later than 180 days after the
12
exhaustion of internal remedies, where they exist.
39. Accordingly, when measured against these benchmarks, it would seem fair to conclude that the filing of
the referral to adjudication 204 days after the exhaustion of the conciliation process is indeed an
unreasonable delay. The only question therefore is whether is should be condoned in the light of the
less than adequate application for condonation which has been made from the bar.
40. Taking into account all the relevant factors, I am of the opinion that the application for condonation
should not be granted. The extent of the largely unexplained delay in referring the matter to
adjudication is compounded by the delays throughout the other processes for which the applicant has
advanced no adequate explanation on the papers or in his oral testimony. There is simply no
satisfactory account for the delays in finalizing the internal processes, the conciliation process and the
mistaken routing of the matter to arbitration before the CCMA. Added to that is the fact that the
successful applicant was appointed to the post on 1 December 2000, and given that instatement is the
normal remedy in matters such as this, it would not, in my view, be in the interests of justice after such
an inordinate delay to reopen the dispute and to place the successful appointee in jeopardy of losing
his position so long after his appointment (see in this regard the unreported decision of the
Constitutional Court in the Head of Department, Department of Education, Limpopo Province v Settlers
Agricultural High School and others dated 2 October 2003). Any attempt to reopen the dispute will
subject the operation of the post to an undesirable uncertainty and dislocation. Likewise, the prejudice
facing the respondent is significant by virtue of the intervening period in all probability having induced
the reasonable belief in the minds of the successful candidate’s subordinates that the appointment has
become unassailable.
41. Moreover, besides a bald allegation on the pleadings and in the applicant’s oral testimony to the effect
that his prospects of success are reasonable, there is no compelling evidence to suggest that the
balance favours him on the merits or that he is deserving of protective promotion.
42. For the above reasons, I handed down the following order on 26 July 2004:
42.1.The respondent’s point in limine is upheld and the applicant’s application for
13
condonation is refused.
42.2.The applicant’s referral in terms of section 10(6) of the Employment Equity Act 65 of 1998 is
dismissed.
42.3.There is no order as to costs.
MURPHY AJ
DATE OF HEARING: 26 July 2004
DATE OF JUDGEMENT: 26 July 2004
DATE OF REASONS: 12 August 2004
APPERANCES FOR THE APPLICANT:
Adv February instructed by Garon Nortje & Associates
APPEARANCES FOR THE RESPONDENT:
Adv R Sutherland SC instructed by the State Attorney
14