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THE SOUTH AFRICAN LAW REPORTS

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					                       LEGAL NOTES

                       VOL. 6 OF 2005
                      Compiled by Adv. M Klein



INDEX

1.   SA Law Reports May 2005

2.   SA Criminal Law Reports – January 2005

3.   All SA Law Reports Vol. 2 April 2005

4.   All SA Law Reports Vol. 2 May No. 1 2005

5.   All SA Law Reports Vol. 2 May No. 2 2005

6.   Industrial Law Journal January 2005
           THE SOUTH AFRICAN LAW REPORTS
                      MAY 2005



Zondi v Mec for Traditional and Local Government Affairs and Others
[2005] 3 SA 25 NPD

Animal – Pounds – Pound Ordinance 32 of 1947 (KZN). Provisions (which, inter
alia, authorize landowner to decide whether trespass occurred and to seize
livestock; provide for destruction of impounded animals; provide for levying of
fees and charges and sale of impounded livestock without court order; and deny
stockowners equal protection and benefit of the law) declared to be inconsistent
ss (c), 9 (1), 25, 33 and 34 of Constitution read with ss 3(1) and 3(2) of Promotion
of Administrative Justice Act of 2000.

The applicant was an unemployed 53-year-old widow who was the owner of
livestock threatened with seizure and impoundment. She was dependent on her
livestock, which she used to convert to cash when needed. The applicant denied
that there had been any trespass. In her application the applicant contended that
nine provisions of the Pound Ordinance 32 of 1947 were inconsistent with the
Constitution of the Republic of South Africa.

Four Tower Investments (Pty) Ltd v Andre’s Motors
[2005] 3 SA 39 NPD

Magistrate‟s court – Civil proceedings – Practice – Pleadings – Summons –
Amendment of – Plaintiff close corporation wrongly cited in summons and
particulars of claim as company – Application for amendment always in order
unless made mala fide or prejudicial to other party – Courts gradually moving
away from overly formal approach – Courts should, in line with this approach, be
careful not to find prejudice where none existing – Mere fact that citation or
description of party happening to be non-existent entity not per se rendering
summons void – Citation of plaintiff nothing more than misdescription –
Application for amendment allowed.

Ntuli v Zulu and Others
[2005] 3 SA 49 NPD

Costs – Against a judicial officer. It must be borne in mind that s 34 of the
Constitution of the Republic of South Africa Act 108 of 1996 provides: “Everyone
has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum‟.

In the result the order that I make is : The second respondent is ordered, in her
official capacity, to pay the applicant‟s costs in these proceedings under case No
4540/2003.
Ripoll-Dausa v Middleton No and Others
[2005] 3 SA 141 CPD

Practice – Applications and motions – Dispute of fact – Referral for hearing of
oral evidence. Disputes of fact arising on affidavits – Applicant nevertheless
seeking final relief without resort to oral evidence – Respondent seeking resort to
oral evidence – Court restating general rule – Semble: Two exceptions existing to
general rule, namely where respondent‟s denial not raising bona fide or genuine
dispute of fact and where respondent‟s denial far-fetched or untentable –
Respondent disputing crucial fact – Probabilities not favouring responding and
reasonable prospect of oral evidence tipping balance in favour of applicant –
Accordingly, Court referring matter to oral evidence.

Earth life Africa (CT) v DG: Dept of Environ Affairs & Tourism
[2005] 3 SA 156 CPD

Administrative law – Administrative function – Principles of natural justice – Audi
alteram partem rule. Domestic remedies – Exhausting of before taking legal
proceedings – Exemption from said requirement in „exceptional circumstances‟
as intended in s 7(2)(c) of Promotion of Administrative Justice Act 3 of 2000.

K v Minister of Safety and Security
[2005] 3 SA 179 SCA

Delict – Liability for – Vicarious liability – The appellant had been raped by three
policemen who had offered her a lift home late at night – They had all three been
in uniform The appellant had sought damages against the respondent Minister in
a Local Division of the High Court, but the Court ordered absolution from the
instance. Leave to appeal to the Supreme Court of Appeal was, however,
granted. The point at issue was whether the respondent could be held
vicariously liable for the conduct of the policemen. The conduct relied upon was
(a) the actual rape of the appellant by each of the three policemen, and (b) the
failure of each to intervene when one or the other of their co-rapists was raping
the appellant. The appellant relied, inter alia, on Minister van Polisie v Ewels
1975 (3) 590 (A). It was conceded on behalf of the appellant that under the
common law no vicarious liability could attach to the Minister. It was argued,
however, that because the case involved an infringement of the appellant‟s
constitutional rights, the common law relating to the vicarious liability of the State
for delicts, committed by police officers had to be developed so as to render the
Minister liable.

Held, applying the standard test for vicarious liability in „deviation‟ cases, that it
could not be said that the policemen were, while raping the appellant, still
exercising the functions to which they were appointed or carrying out some
instruction of their employer. They were motivated by nothing more than self-
gratification. Acting in concert, they deviated from their functions and duties as
policemen to such a degree that it could not be said that in committing the crime
of rape they were in any way exercising those functions or performing those
duties.
Minister of Home Affairs v Nicro and Others
[2005] 3 SA 280 CC

Constitutional law – Human rights – Protection of – Justification of limitation of in
term of s 36 of Constitution – Onus – Nature of onus on State discussed – Where
justification depending on factual material, party relying on justification to
establish facts on which justification depends – But where justification depends
on policies directed to legitimate governmental concerns, party relying thereon
should place before Court sufficient information as to policy being furthered,
reasons that policy and why is was considered reasonable in pursuit of that policy
to limit a constitutional right – Failure to place such information before Court
might be fatal to justification – Possible, however, that in some cases absence of
such information might to be fatal and Court able to uphold justification based on
common sense and judicial knowledge.

Canon KZN (Pty) Ltd t/a Canon Office Automation v Booth
[2005] 3 SA 205 NPD

Contract – Legality – Restraint of trade – Reasonableness of – Protectable
interest – Confidential information or trade secret – In order to qualify as
confidential, information must (1) involve and be capable of application in tr ade
and industry; (2) not be public knowledge and public property; and (3) be of
economic value to person seeking to prove it – Ordinary general information
about business not becoming confidential merely because proprietor chooses to
call it so.

Le Riche v PSP Properties CC and Others
[2005] 3 SA 189 CPD

Spoliation – Mandament van spolie – Delay bringing application – Delay of more
than one year. Applicant having attempted to trigger mediation process and
been party to settlement negotiations throughout period in question; having
contacted spoliator on day after act of spoliation; having telephonically
complained to spoliator two days later; and instructed attorney to demand
restoration during following week – In such circumstances not possible to infer
acquiescence on part of applicant – Mandament granted.


                   S.A. CRIMINAL LAW REPORTS
                         JANUARY 2005 (1)

Director of Public Prosecutions, Cape of Good Hope v Robinson
[2005] 2 SACR 1 CC

Court – Constitutional Court – Jurisdiction – Constitutional matters – What
constitutes – Extradition – Whether extradition magistrate or Minister having
power to consider if and extent to which person‟s constitutional rights violated if
she or he extradited a matter concerned with enforcement of person‟s
constitutional rights violated if she or he extradited a matter concerned with
enforcement of person‟s constitutional fair trial right – So, too, question whether
extradition magistrate should discharge person and preclude Executive from
making decision to extradite if there is some danger that fair trial rights of person
would be violated upon extradition danger that fair trial rights of person would be
violated upon extradition – Extradition of South African citizen raises
constitutional matter because citizen will be formally removed from the country to
stand trial or serve period of imprisonment which will have impact on
constitutional rights of person – All people unlawfully extradited to serve sentence
of imprisonment abroad will have constitutional rights infringed.

S van Dyk
[2005] 2 SACR 32 SCA

Sentence – Correctional supervision – When a property sentence – Correctional
supervision, in appropriate circumstances, may be imposed notwithstanding fact
that penal provisional of particular enactment provides for other sentences, with
no reference being made in such enactment to correctional.

Conservation offences – Sentence – Marine living Resources Act 18 of 1998 –
Contravention of regs 9, 36(1) and 38(3)(b) or regulations promulgated under Act
– Accused, a second offender, possessing 378 abalone – Sentence of 18
months‟ imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of
1977 confirmed on appeal.

S v Du Toit e.a.
[2005] 2 SASV 47 TPA

Trial – In camera hearing - Application by State for witness to give evidence in
camera – Witness a self-confessed participant – Alleged that he would be
prejudiced if his name published, inter alia because nobody where he worked or
lived aware of his involvement in case or that he would give evidence and
because testifying would place his employment at risk. Accused not getting
same protection as that for which State asking for witness – Their identity
published regularly – Accused having to be presumed innocent while witness a
self-confessed perpetrator – Press freedom would be limited by such order.

S v Orrie and Another
[2005] 1 SACR 63 CPD

Evidence – Admissibility – Statement made to police by suspect prior to being
apprised of right to remain silent – Admission of statement obtained without
warning that it may be used against maker would inevitably taint fairness of any
subsequent trial – Statement obtained from accused in violation of constitutional
duty to inform him that any statement he made could be used against him in later
proceedings – Statement inadmissible against accused.
Van Rooyen v Department of Korrektiewe Dienste
[2005] 2 SASV 77 TPA

Prisons – Prisoners – Rights of – Unsentenced prisoners – Right to prepare for
trial – Correctional Services Act 111 of 1998, s 174(4) Court having authority to
prescribe to Department of Correctional Services under what circumstances
awaiting-trial prisoners to be detained – Decision of Department not to allow
prisoners to make use of consultation facilities in section where they were
detained being violation of right to prepare for trial in terms of s35(3)(b) of
Constitution and in contravention of s17(4) of Correctional Services Act – Interim
order compelling Department of Correctional Services to provide awaiting-trial
prisoners access to consultation facilities in section where they were detained
until 22:00 confirmed.



          THE ALL SOUTH AFRICAN LAW REPORTS
                         2005
                       VOLUME 2
                      APRIL NO 2

Magre Property Holdings CC v Jewula
2005 (2) All SA 119 (E)

Land Claims – The High Court, it was submitted, lacked the jurisdiction even to
enquire into the issue as to whether the order sought would in fact constitute an
eviction as defined. The Court disagreed with this argument. In its opinion, in a
case such as the present, the High Court is obliged to enquire into the issue and
can only decline to exercise jurisdiction once it is satisfied that the relief sought
by the applicant would constitute an eviction as defined in the Act, thus bringing
the matter within the exclusive jurisdiction of a court as defined therein.

S v Orrie and Another
2005 (2) All SA 212 CPD

Evidence – Admissibility of statement where accused not warned that it may be
used against him – Trial rendered unfair – Statement inadmissible.

According to the accused, the statement was inadmissible as he had not been
made aware that he was a suspect and had not been warned of his rights to
silence and to legal representation. It was also contended that had he known
that he was a suspect and had legal rights, he would have remained silent and
waited for his lawyer.
             ALL SOUTH AFRICAN LAW REPORTS
                          2005
                        VOLUME 2
                        MAY NO 1

Imbali 13 and 15 Taxi Association and Others v KwaZulu-Natal Provincial
Taxi Registrar and Others
[2005] 2 All SA 268 (N)

Administrative Law – Procedural fairness – Hearings and appeals in terms of
KwaZulu-Natal Interim Minibus Act 4 of 1998 – Alleged grounds of objection to
registered taxi route not put before registering party – Whether procedurally fair.

Held, the hearing in fact held was completely inadequate because a copy of the
letter of objection to the route registered by the first applicant (apparently put
before the first respondent by the third respondent) was never furnished to the
applicants, and this had not allowed them to know the case they would need to
meet.

Melani v S
[2005] 2 All SA 280

Criminal procedure – Failure to explain and assist with exercise of, right of
access to witnesses‟ statements – Right to challenge evidence – 35(3)(i) –
Constitution of the Republic of South Africa Act 108 of 1996.

Criminal procedure – Inspection in loco – Magistrate visiting scene suo motu to
obtain adverse creditability finding – Gross irregularity vitiating proceedings per
se.

The magistrate had gone alone to a site that was the subject of a dispute of the
evidence and it was clear that he went to the scene not to understand and follow
the evidence better but to obtain evidence in order to make an adverse credibility
finding. He committed a gross irregularity by importing, into the case, facts within
his own knowledge. This irregularity was so gross that it constituted per se a
failure of justice. The count in respect of which the irregularity was committed fell
to be set aside.

It was clear from the record that the regional magistrate forsook his duty to
protect and assist the appellant and actively took a position against the appellant.
He subverted his duty to assist the appellant and actively took a position against
the appellant. He subverted his duty to assist an unrepresented accused. He
exceeded the bounds of reasonable questioning. This conduct constituted such
a gross departure from the established rules of procedure that it constituted per
se a failure of justice.
Seymour v Minister of Safety and Security
[2005] 2 All SA 296 WLD

Delict – Claim for damages – Unlawful arrest – Quantum – Each case to be
determined on own facts.

It is common cause that the plaintiff was arrested on 29 December 2000, without
a warrant (on charges for which a warrant for his arrest would have been
required) by one Superintendent Smith, who, at the time, was acting within the
.course and scope of his employment with the South African Police Services.
Superintendent Smith has since been discharged from service. It is not clear
precisely on what charges the plaintiff was arrested. When he was detained
initially, he was told it was for “intimidation”, but the next day, when was taken to
the Johannesburg Central Police Station, he was told it was for fraud.
Superintendent Smith came to the business premises of the plaintiff on the
afternoon of 29 December 2000, and commanded the plaintiff to accompany him
to the Ennersdale Police Station, where he informed him he was under arrest.
Attempts by the plaintiff‟s family to arrange for him to be released on bail were
thwarted by Superintendent Smith.

Dr Vallabh had no doubt that the plaintiff‟s medical condition, on that day, was
directly attributable to the stress which the plaintiff had been experiencing as a
result of his detention.

The hospital records confirm the seriousness of Dr Vallabh‟s diagnos is. The
plaintiff was kept under arrest at the Rand Clinic and was brought to court on 3
January, 2001. All charges were withdrawn against him and no further charges
have since been laid. The plaintiff was kept under arrest at the Rand Clinic and
was brought to court on 3 January, 2001. All charges were withdrawn against
him and no further charges have since been laid. The plaintiff has a completely
clean criminal record.

Subsequently to the plaintiff‟s release, Superintendent Smith arrived uninvited at
a meeting of the Simunye Dairy, at which were present not only the plaintiff but
also the Simunye Diary‟s auditor, a representative of the Danish International
Development Agency (DANIDA), the Land Bank and various other persons.
Superintendent Smith was asked by the plaintiff to leave the meeting. He
obliged, but before he did so, he said to the plaintiff, in the presence of the
others, that he would still “get” the plaintiff “for fraud and misappropriation of
funds”. Since that date, the Simunye Diary Project has received no further
financial assistance from DANIDA or the Land Bank.

The defendant is to pay the plaintiff – the sum of R500 000 (Five Thousand
Rands).
          THE ALL SOUTH AFRICAN LAW REPORTS
                         2005
                       VOLUME 2
                       MAY NO 2

Brink v Humpries & Jewell (Pty)_ Ltd
[2005] 2 All SA (2) 343 SCA

Contract – Existence of consensus – Caveat subscriptor rule. At some point
during the relationship between the parties, the respondent required the
signature of a credit application form, and the appellant signed the form. It was
common cause that the respondent did not inform the appellant that the form
imposed a suretyship obligation on the individual who signed it. In his evidence-
in-chief, the appellant testified that he had signed the form without reading
anything but the heading thereon. That heading indicated that the form was a
standard credit application form. He had therefore not anticipated that it would
contain a suretyship undertaking.

Held, The caveat subscriptor rule is based on the doctrine of quasi-mutual
assent. A party to a contact can rely on iustus error to repudiate his apparent
assent to a contractual term if he has not, by his conduct, led the other party, as
a reasonable man, to believe that he was binding himself. The Court found that
the appellant had acted under a misapprehension in signing the credit application
form.

Southern Life Association Ltd v Miller
[2005] 2 All SA 371 SCA

Insurance – Disability benefit – Policy providing that a disability benefit would
only be granted if the applicant was totally and permanently unable to engage in
his own or any other occupation for which he was or could reasonably be
expected to become qualified by his knowledge, training, education, ability and
experience – Insurer not unreasonable in finding that claimant was able to work
in related field.   Although the respondent could not perform all his previous
duties an electrician, he could manage doing sedentary work.

Matroos v S
[2005] 2 All SA 382 (C)

Criminal procedure – Prison appeal – Appeal against sentence only – Whether
Court entitled to consider merits of conviction.

Magistrate – Conduct – Gross irregularities – Descending into arena, disallowing
relevant questions by accused, eliciting inadmissible evidence, asking leading
questions.
The appellant appealed against his sentence only, in person from prison (a so-
called “prison appeal”). The Court therefore issued an order condoning late
lodging of notice of appeal and setting aside the appellant‟s conviction and
sentence.



                    INDUSTRIAL LAW JOURNAL
                          VOLUME 26
                         JANUARY 2005

Insurance – Liability refuted – Prescription – Claim had not been lodged
timeously as required by operating conditions of the policy. Metcash Trading Ltd
v Credit Guarantee Insurance Corporation of Africa ltd [2004]2 All SA 484 (SCA).

Interdict – Against demolition of building protected under section 34(1) of
National Heritage Resources Act of 1999 – Whether de facto condition of building
rendered interdictory relief nugatory. Provincial Heritage Resources Authority for
the Eastern Cape v Gordon [2004] 2 All SA 554 (E).

Marriage – Breach of promise to marry – Where one party to agreement already
married – Whether agreement contra bonos mores – Whether breach actionable
– Changing mores of society. Lloyd v Mitchell [2004] 2 All SA 542 (C).


Hammond v Compensation Commissioner & Another
[2005] 26 ILJ 45 (T)

Compensation for Occupational Injuries and Diseases Act 130 of 1993 – Tribunal
– Appeal to High Court against decision of tribunal rejecting claim for
compensation – Whether tribunal‟s decision involved „interpretation of this Act or
any other law‟ in s 91(5)(i) – Tribunal correctly finding that claimant had to prove
casual link between his condition and his employment and had failed to do so –
Tribunal‟s decision falling outside ambit of section and not appealable.

The appellant appealed to the High court against the decision in terms of s91(5).
It was clear that the only paragraph of s 91(5) that was relevant was para (i),
which provided that „[a]ny person affected by a decision referred to in subsection
(3)(a), may appeal to any provincial or local division of the Supreme Court having
jurisdiction against a decision regarding – (i) the interpretation of this Act or any
other law‟.

The appeal was accordingly dismissed with costs.
MEC For Department of Public Works (Eastern Cape) v Falten
[2005] 26 ILJ 49 (SCA)

Public Service – Indemnity from liability – Section 40 of Public Service Act (Proc
103 of 1994) – Exception – Exception from indemnity applies to person conveyed
in performance of functions of state and also to person conveyed in interest of
performance of functions of sale.

Vicarious liability – Employer‟s liability for delictual acts of employee – Bus   driver
employee not authorized to drive on specific occasion taking over                  from
authorized driver – Whether acting in course and scope of employment              when
doing so – Whether employer liable for damage arising from collision              while
employee driving.

The MEC was accordingly liable. The appeal was dismissed with costs.

North West Star (Pty) Ltd (under judicial management) v Serobatse &
Another
[2005] 26 ILJ 56 (LAC)

Labour Court – Orders – Failure to comply with order. Part of constitutional
democracy that people cannot disregard orders of courts simply because they do
not agree with them – Correct procedure is for person to comply with order or
appeal against it to higher court.

SA Municipal Workers Union & Others v Rand Airport Management Co (Pty)
Ltd & Others
[2005] 26 ILJ 67 (LAC)

Transfer of business as going concern – Section 197 of LRA 1995 (as amended
by Act 12 of 2002) – Dismissal of employees for operational requirements –
Section 187(1)(g) clear that dismissal because of transfer contemplated by s197
will be automatically unfair.

Outsourcing agreement – Intention of transferor and transferee not decisive in
determining whether business or service has been transferred as going concern.

Ceramic Industries (Pty) Ltd v Commision for Conciliation, Mediation &
Arbitration & Another
[2005] 26 ILJ 89 (LC)

-CCMA – Con-arb proceedings – Nature of process. The employer is given two
opportunities to object to this process, the one in terms of form LRA 7.11 and the
second is by writing to the CCMA on receipt of the notice of set down. The
result of the provisions relating to con-arb is that, if one party objects to taking
part in con-arb, the CCMA is precluded from invoking the provisions of s 191(5A).
The effect of this is that the procedure that was in place prior to 1 august 2002
must be used. This means that, after conciliation, the commissioner must issue
a certificate of non-resolution and thereafter the employee must request the
CCMA to conduct arbitration by completing form 7.13 and serving it on the
employer.

Fortuin v Commission for Conciliation, Mediation & Arbitration & Others
[2005] 26 ILJ 96 9(LC)

Practice and procedure – Condonation – CCMA conciliation proceedings, Late
referral of dispute – Commissioner refusing application for condonation – On
review, Labour Court finding that commissioner failed properly to apply her mind
to true reasons and explanations for delay, to assess prospects of success, to
balance competing legitimate interests – Ruling thus neither rational nor
justifiable – Ruling set aside – Court granting condonation

Lewin v Commission for Conciliation, Mediation & Arbitration & Others
[2005] 26 ILJ 105 (LC)

Dismissal – Theft – Employee accepting deposit of R150 from client of post
office.

Dismissal appropriate sanction – No basis for interfering with award.

Salvation Army (South African Territory v Minister of Labour
[2005] 26 ILJ 126 (LC)

Church – Priest – Nature of relationship between church and clergy – Whether
parties at time of offer and acceptable intended to enter a legally binding
contractual relationship to be determined – Relationship spiritual and governed
by religious conscience and priests covenant with God – Not employees – Not
governed by labour legislation.

Siegelaar v Minister of Safety & Security
[2005] 26 ILJ 133 (LC)

Employment Equity Act 55 of 1998 – Unfair discrimination dispute – Referral for
adjudication after conciliation – No time-limit specified for such referral –
Application to be brought within reasonable time – Interests of justice central to
deciding whether to grant condonation for unreasonable and unexplained delay –
Ninety-day period can be used as contextual yardstick against which to measure
issue of delay when no time-limit specifically enacted.

McDonald & Another and Shoprite Checkers
[2005] 26 ILJ 168 (CCMA)

Retrenchment – Severance pay – Basic Conditions of Employment Act 75 of
1997 – Section 41(4) – right to severance pay – Employee refusing offer of
alternative employment – Employee claiming that his refusal to accept
reasonable because had not been consulted and was offered position only two
days before date of transfer – Employer under no duty to consult on this score –
Refusal unreasonable.
SA Rugby Players Association on behalf of Bands & Others and SA Rugby
(Pty) Ltd
[2005] 26 ILJ 176 (CCMA)

Contract of employment – Fixed-term contract – Renewal. The three individual
applicants were professional rugby players. They played for their provincial
teams and also concluded fixed-term contracts with the respondent to play for the
national team, the Springboks. Their respective contracts to play for the
Springboks expired at the end of 2003. In November 2003 the national coach at
the time, Rudolph Straueli, indicated to each of the applicants that he was
pleased with their performance and that it was his intention to retain them in the
Springbok team in 2004. In December 2003 Straueli resigned as coach and the
entire top structure of the respondent‟s management changed. The applicants‟
contracts were either not renewed, or were renewed on less advantageous
terms. They claimed before the CCMA that they had a reasonable expectation
that their contracts would be renewed, and that the respondent‟s failure to renew
them constituted an unfair dismissal in terms of s 186(1)(d) of the LRA 1995.
The respondent argued that it was an express term of the contracts that the
applicants might entertain no expectation of renewal, that Straueli had no
authority to give such undertakings on behalf of the respondent, and that the
applicants had not been dismissed.

Held that there was a dismissal which was unfair. Compensation equivalent to
12 months‟ remuneration was awarded.



Werner and Capital Contracting Services
[2005] 26 ILJ 194 (CCMA)

CCMA – Jurisdiction – Employment contract concluded in South Africa but
performed and terminated elsewhere – Parties to contact both South African and
contract subject to SA labour law – Parties tacitly agreeing to jurisdiction of SA
courts – CCMA having jurisdiction to entertain dispute concerning dismissal.

Siswana and SA Police Service
[2005] 26 ILJ 207 (BCA)

Residual unfair labour practice – Promotion. The applicant, a police officer,
applied for one of two advertised promotional posts. She was shortlisted and
interviewed but was not appointed. She claimed that the employer‟s failure to
promote her amounted to an unfair labour practice.

In evidence it was established that a requirement for the post, as specified in the
advertisement, was possession of a tertiary qualification. It was also a
requirement in terms of reg 11 of the SAPS Regulations that members of the
SAPS should possess a driver‟s licence. The respondent claimed that at the time
of her interview the applicant failed to qualify on both grounds.

The applicant argued that it was not stated in the advertisement that a driver‟s
licence was an essential requirement, and that other employees in the
department did not have licences. The lack of a licence did not impact adversely
on her work. Further, she had completed all the courses for a tertiary diploma,
but was only awarded the diploma some six weeks after she was interviewed.

In the arbitrator‟s view the regulations took precedence over the advertisement,
and a driver‟s licence was a requirement. The national commissioner was
authorized to condone non-compliance with the requirement, but the employee‟s
application for condonation had been rejected by another official who had no
delegated authority in the matter. The applicant‟s case in respect of the driver‟s
licence therefore had some merit. The respondent did not c ommit an unfair
labour practice in failing to appoint her.

				
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