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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2026-046187
DATE: 07 APRIL 2026
In the matter between:
DR MARECHELLE VOLSCHENK Applicant
And
SOUTH AFRICAN NATIONAL DEFENCE FORCE First Respondent
THE MINSTER OF DEFENCE AND MILITARY Second Respondent
VETERANS
HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA Third Respondent
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date: ___ 07 April 2026
Signature:_
______________
T E
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NYATHI, J:
Introduction
1. This is an urgent application concerning the implementation of a statutory
community service placement for the 2026 annual cycle. The applicant, a
qualified dentist, seeks relief arising from the refusal or deferral by the First
and Second Respondents to finalise and implement her placement on the
basis of her pregnancy and anticipated maternity leave.
2. The application raises three principal issues. First, whether the matter is
urgent. Second, whether the respondents were legally entitled, after a
lawful placement, to defer the applicant’s appointment on pregnancy
grounds. Third, whether such deferral is unlawful, irrational, and
discriminatory.
Common Cause Facts
3. The material facts are largely common cause.
4. The applicant is registered with the Health Professions Council of South
Africa as a dentist in the category “Public Service Community Service” with
effect from 1 January 2026.
5. During 2025 she applied, through the statutory Internship and Community
Service Placement process, for placement in the 2026 annual cycle. She
disclosed her pregnancy during that process and provided the required
medical confirmation.
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6. On 31 October 2025, the National Department of Health allocated the
applicant to GP SAMHS Thaba Tshwane DTF, with a commencement
date of 1 January 2026.
7. The allocation letter recorded that the applicant’s application had been
finalised and forwarded to the relevant department for appointment
processing and finalisation in accordance with applicable legislation and
regulations. It further recorded that the allocation did not itself constitute
an offer of employment and that the department reserved the right to
migrate the applicant to another facility where her services were most
required.
8. On 14 January 2026, the Second Respondent informed the applicant that
her appointment would be delayed because, due to her pregnancy and
anticipated maternity leave, she would only be able to render services for
a limited period before going on leave.
9. In the answering papers, the respondents maintained that the appointment
was not declined but deferred, that the post remained vacant, and that the
applicant would be appointed later in 2026 alternatively in 2027.
Urgency
10. The respondents contended that the matter lacks urgency or that any
urgency is self -created, pointing to the applicant’s knowledge of her
pregnancy and the delay between January and the launching of
proceedings in March.
11. Urgency must, however, be assessed in light of the nature of the right
asserted and the prejudice alleged. The applicant’s community service
year is a mandatory statutory prerequisite for independent practice as a
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dentist. It forms part of a once -off annual placement cycle that cannot
simply be replicated at a later stage without consequence.
12. The prejudice alleged is not confined to remuneration. The deferral
interferes with the applicant’s progression into professional practice and
delays completion of a compulsory statutory requirement. On the
respondents’ version, the applicant might only be appointed later in 2026
or even 2027. Substantial redress in due course is accordingly not
available.
13. The founding affidavit explains that initial forbearance was exercised in a
bona fide attempt to obtain an administrative resolution and avoid
unnecessary litigation. That conduct does not render the urgency
self-created. (See Nelson Mandela Metropolitan Municipality v
Greyvenouw CC (3263/02) [2003] ZAECHC 5; 2004 (2) SA 81 (SE) (21
February 2003).
14. In these circumstances, I am satisfied that the matter is urgent and that it
is appropriate to entertain it on that basis.
The Statutory and Regulatory Framework
15. Section 24A (1) of the Health Professions Act 56 of 1974 provides that a
person registering for the first time in a listed category must perform
remunerated community service for a period of one year and, upon
completion, is entitled to practise the profession.
16. Dentists fall within the categories prescribed by the regulations made
under section 24A. The regulations further provide that:
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• the conditions of service applicable to the public service apply to
persons performing community service;
• community service is performed at an approved health facility as
determined through the placement process; and
• where a period of community service is interrupted, the periods served,
when added together, must amount to not less than one calendar year,
including approved periods of leave, provided that the service is
completed within a maximum of two years.
17. The Department of Health Community Service Policy expressly provides
for interruption of community service, including approved leave. It further
stipulates that community service officers are entitled to four consecutive
calendar months’ paid maternity leave and that community service should
not be extended by the number of approved maternity leave days taken.
Effect of the Placement Decision
18. It is correct, as the respondents emphasised, that the allocation letter itself
did not constitute an offer of employment. That proposition is not in
dispute.
19. However, the letter did more than merely express an intention. It recorded
that the applicant had been allocated through the statutory placement
process; that her application had been finalised; and that the matter had
been forwarded to the relevant depart ment for appointment processing
and finalisation in line with the governing legislation and regulations.
20. The role of the relevant department at that stage is not an unfettered
discretion to revisit and nullify the placement on grounds already known
and considered during the statutory process. Its function is to give effect
to the placement in accordance with the empowering framework.
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21. The reservation of a right to “migrate” an applicant to another facility where
services are most required authorises redeployment within the system. It
does not confer a power to postpone commencement indefinitely or to
displace an applicant into a future cycle on grounds not contemplated by
the framework.
Pregnancy-Based Deferral
22. The respondents’ case is that appointing the applicant shortly before she
gives birth and proceeds on maternity leave would not be prudent, both
operationally and financially, and that she should therefore commence
community service only once she is able t o serve a continuous
twelve-month period.
23. That contention finds no support in section 24A, in the regulations, or in
the Department’s own policy. On the contrary, regulation 6 expressly
contemplates interrupted service, including approved leave, provided the
total service amounts to one calendar year within a maximum of two years.
24. The policy deals specifically with maternity leave. It recognises pregnancy
and maternity leave as part of the statutory community service framework
and expressly provides that approved maternity leave does not extend the
community service period.
25. The respondents’ repeated reliance on the notion that the applicant would
not serve an uninterrupted twelve -month period is therefore legally
misplaced. The statutory and policy answer to that concern is interruption,
not exclusion or postponement to a later cycle.
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26. No provision has been identified in the legislation or policy that entitles the
respondents to defer commencement of community service solely
because pregnancy and maternity leave are anticipated.
Discrimination and Legality
27. On the respondents’ own version, pregnancy is the operative reason for
the deferral. The applicant was not rejected for lack of qualification,
registration, clearance, or because the post had fallen away. She was
deferred because she was pregnant and would take maternity leave.
28. Pregnancy is a listed ground of discrimination. Differentiation on that basis
requires cogent legal justification.
29. Section 6(1) of the Employment Equity Act prohibits unfair discrimination
on grounds including pregnancy and, for these purposes, an “employee”
includes an applicant for employment. Employment policies and practices
include appointments and the appointment process itself. [my emphasis]
30. Even if the matter is approached primarily as one of public -law legality
rather than labour law, the principle remains that organs of state must
exercise public power lawfully, rationally, and in accordance with the policy
and purpose of the empowering statute.
31. Here, the respondents relied on a rule that does not exist in the legislation
or policy. The deferral is inconsistent with the statutory framework that
expressly accommodates interrupted service and maternity leave. It is
therefore unlawful and irrational.
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32. To the extent that pregnancy was treated as an operational disqualifier for
commencement, the decision is also discriminatory and cannot be justified
on the respondents’ stated grounds of financial or administrative
convenience.
Relief
33. The applicant seeks an order compelling the respondents to finalise and
implement her appointment retrospectively from 1 January 2026.
34. The essential unlawfulness lies in the refusal to implement the placement
and to permit commencement on pregnancy grounds. Effective relief must
address that unlawfulness.
35. In the circumstances, it is appropriate to declare the pregnancy -based
deferral unlawful and to direct the First and Second Respondents to
finalise and implement the applicant’s appointment in accordance with the
statutory placement, subject only to lawful and non -discriminatory
administrative requirements.
36. The issue of costs raises no exceptional considerations warranting a
departure from the ordinary rule. Costs follow the cause.
Order
37. The following order is made:
i. The application is heard as one of urgency and the usual forms and
service are dispensed with insofar as time limits are concerned.
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ii. The decision of the First and Second Respondents to defer the
applicant’s community service appointment on grounds of pregnancy and
anticipated maternity leave is declared unlawful, irrational, and invalid.
iii. The First and Second Respondents are directed to finalise and
implement the applicant’s community service appointment in accordance
with her lawful placement for the 2026 annual cycle, subject only to lawful,
non-discriminatory administrative requirements.
iv. The respondents are ordered, jointly and severally, to pay the costs of
the application.
_____ _
JS NYATHI
Judge of the High Court
Gauteng Division, Pretoria
HEARD ON:
31 March 2026
JUDGMENT DATE: 07 April 2026
FOR THE APPLICANT:
Adv PJ Greyling
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INSTRUCTED BY:
Dreyer and Dreyer Attorneys,
Pretoria
FOR THE DEFENDANTS:
Adv M Ntiso
INSTRUCTED BY: STATE ATTORNEY, PRETORIA
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 07 April 2026.