IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)

In the matter between:

SOLIDARITY - First Applicant
UECKERMANN, H - Second Applicant
DE JAGER, LL - Third Applicant
VAN HAM, C - Fourth Applicant
GEUSTYN, JJ - Fifth Applicant

and

SOUTH AFRICAN POLICE SERVICES - Respondent

RESPONDENT'S RESPONSE IN TERMS OF RULE 6(3) OF THE RULES FOR THE CONDUCT OF PROCEEDINGS IN THE LABOUR COURT, AS AMENDED

1. The respondent opposes the applicants' referral and the relief sought by the applicants.

2. The respondent has appolnted Bowman Gilfihlan as its attorneys of record and will accept service of all notices and documents in this matter at the following address:  185 West Street, Sandton, reference Mr Tembeka Ngcukaitobi.

3. DETAILS OF THE PARTIES

3.1 The first applicant is Solidarity, a trade union duly registered in terms of the Labour Relations Act 1995 ("the LRK) with its principal place of business at 3 Floor. Old Mutual Building1 267 West Street, Centurion, Gauteng.

3.2 The second applicant is Ms H Ueckermann, an adult white female employed by the respondent as a forensic analyst in the materials analysis section: scientific analysis of the respondent's forensic science laboratory, whose further particulars are unknown to the respondent.

3.3 The third applicant is Mr LL de Jager, an adult white male employed by the respondent as a forensic analyst in the materials analysis section: scientific analysis of the respondent's forensic science laboratory, whose further particulars are unknown to the respondent.

3.4 The fourth applicant is Ms C van Ham, an adult white female employed by the respondent as a forensic analyst in the primer residue section: scientific analysis unit of the respondent's forensic science laboratory, whose further particulars are unknown to the respondent

3.5 The fifth applicant Is Mr JJ Geustyn, an adult white male employed by the respondent as forensic analyst: questioned documents at the respondent's Arcadia laboratory.

3.6 The respondent is the South African Police Service established in terms of the South African Police Service Act, 86 of 1995 ("the SAPS Act with its principle office at 7m Floor1 Wachthuis Building, Thibault Arcade, 231 Pretorius Street, Pretoria.

4. STATEMENT OF FACTS THAT WILL BE RELIED UPON BY THE RESPONDENT

4.1 During or about August to September 2004, the respondent invited applications for promotion to a number of positions, including the following posts in the respondent's forensic science laboratory (FSL):

4.1.1 post 289: SenIor: Forensic Analyst: FSt: Scientific Analysis - Primer Residue: Pretoria;

4.1.2 post 270: Senior Forensic Analyst: FSL: Scientific Analysis - Primer Residue: Pretoria;

4.1.3 post 271: Senior Forensic Analyst: FSL: Scientific Analysis -Primer Residue: Quality and Occupational Health and Safety: Pretoria;

4.1.4 post 272: Senior: Forensic Analyst FSL; Scientific Analysis: Pretoria;

4.1.5 post 273: Senior: Forensic Analyst: FSL: Scientific Analysis (Precious Metal Firs Assay Process): Pretoria;

4.1.6 post 274: SenIor: ForensIc Analyst: FSL: Scientific Analysis (Elemental Trace Analysis): Pretoria;

4.1.7 post 275: Senior Forensic Analyst: FSL: Scientific Analysis (Elemental Profiling Analysis): Pretoria; and

4.1.8 Two posts 278: Senior: Forensic Analyst: Questioned Documents.

4.2 The second to fifth applicants applied for the following posts:

4.2.1 the second apphcant, a white female, posts 274 and 275;

4.2.2 the third applicant, a white male, posts 273, 274 and 275;

4.2.3 the fourth applicant, a white female, posts 269, 270 and 271;

4.2.4 the fifth applicant, a white male, post 278.

4.3 The respondent received the following applications per post from the following candidates:

4.3.1 post 269: 5 (five) applications received. 4 (four) applications were received from African females; and 1 (one) application from the fourth
applicant, a white female;

4.3.2 post 270: 6 (six) applications received. 3 (three) applications were received from African females; I (one) application from an African male; and 2 (two) applications from white females one of whom was the fourth applicant;

4,3,3 post 271: 3 (three) applications received. 2 (two) applications were received from African males and 1 (one) application from the fourth applicant, a white female;

43.4 past 273: 4 (four) applications received 2 (two) applications were received from African males, Mr Mabala (‘Mabala") and Mr Mowela (TM Mowela); 1 (one) application was received from an African female; and 1 (one) application from the third applicant, a white male;

4.3.5 poet 274: 5 (five) applications received. 2 (two) applications were received from African males, Mabaia and Mowela; 2 (two) applications from white females, one of whom was the second applicant; and I (one) application from the third applicant, a white male;

4,3.6 post 275; 2 (two) applications received. I (one) application was received from the second applicant, white female, and I (one) application was received from the third applicant, a white male; and

4.3,7 post 278: 11 (eleven) applications received. 5 (five) applications were received from African males; 5 (five) applications were received from white females: and I (one) application from the fifth applicant a white male.

4,4 As prescribed by National Instruction 1 of 2004, ("the Promotion Policy")1 an evaluation panel was appointed to consider the promotion applications. The evaluation panel was made up of the following members:

4.4.1 the chairperson, Director Gouws, who is a white male, from the Ballistics unit of the forensic science laboratory

4.4.2 Director De Klerk, who is a white female, from the Scientific Analysis unit of the forensic science laboratory; and

4.4.3 Director Ngokha, who is a black male, from the Chemistry unit of the forensic science laboratory.

4.44 Director Joubert, who is a white male, was the secretary of the panel. He is part of the Biology Unit.

4.5 In accordance with the Promotion Policy, no interviews were conducted and the candidates were evaluated on the information presented in their application forms.

4.6 In order to determine whether each of the candidates was suitable for short- listing the panel evaluated the candidates on the following criteria:

4.6.1 the candidate's competence based on the inherent requirements of the job or the capacity to acquire the ability to do the job within a reasonable time;

4.6.2 whether the candidate Is suitable to function effectively at the next higher post;

4.8.3 the candidate's race and gender and whether s/he has a disability;

4.6.4 the candidate's relevant prior learning, training and development;

4.6.5 the candidate's record of previous experience in the core functions related to the post; and

4.6.6 the candidate's record of conduct
4.7 The following candidates were short-listed for the following posts: 4.7.1 post 269: 3 (three) candidates short-listed. 2 (two) African females and the fourth applicant, a white female, were short-listed;

4.7.2 post 270: 3 (three) candidates short-listed: 2 (two) African females and the forth applicant, a white female, were short-listed;

4.7.3 post 271: 3 (three) candidates short-listed. 2 (two) African females and the forth applicant, a white female, were short-listed;

4.7.4 post 273: 3 (three) candidates short-listed. The third applicant, Mabala and Mowela were short-listed;

4.7,5 post 274: 4 (four) candidates short-listed. The second and third applicants, Mabala and Mowela were short-listed;

4.7.6 post 275: 2 (two) candidates short-listed. The second and third applicants were short-listed; and

4.7.7 post 278: 1 (one) candidate, the fifth applicant, a white male, was short- listed.

4.8 Therefore, the second to fifth applicants together with Mabala and Mowela were short-listed and considered for the positions for which they had applied.

4.9 These candidates were rated out of 10 (ten) for each of the following criteria, which is in accordance with the respondent's Promotion Policy:

4.9.1 the candidates competence based on the inherent requirements of the job or the capacity to acquire the ability to do the job within a reasonable time (the blend of knowledge, skills, behaviour and aptitude of the candidate that she or he can apply in the work environment and which are indicative of her or his ability to meet the requirements of the post); 4.9.2 the candidate's prior learning, training and development (relevant prior learning, self-development, related training undergone and relevant qualifications of the candidate); end

4.9.3 the candidate's record of previous experience in the core functions of the post (such as planning, organisation, functional expertise1 administration, information processing, analysis, management and multi-functional orientation experience).

4.10 In this regard, the second to fifth applicants and Mabala and Mowela, scored as follows out of a maximum of 30 (thirty) marks;

4.10.1 the second applicant: 25 (twenty-five);

4.10.2 the third applicant: 26 (twenty-SiX)

4.10.3 the fourth applicant: 25 (twenty-five); and

4.10.4 the fifth applicant: the fifth applicant was the only person who was short-listed for post 278. Because his promotion would not promote equity, he did not receive a score;

4.10.5 Mabala: 25 (twenty-five)

4.10.8 Mowela: 28 (twenty-six).

4.11 The candidates were thereupon evaluated in terms of the following criteria:

4.11.1 employment equity in line with the respondent's Employment Equity Plan ("the Plan"), (i.e. whether the candidate's promotion would enhance representivity in the forensic science laboratory);

4.11.2 the candidate's performance (i.e. the performance rating achieved by the candidate):

4.11.3 the candidate's suitability to function effectively at the next higher post level; and

4.11.4 the candidate's record of conduct.

4.12 Following evaluation on these criteria, the panel recommended, inter ella, that none of the second to fifth applicants be promoted. This W35 in view of the fact that their promotion, if effected by the National Commissioner, would not have advanced employment equity in the respondent's forensic science laboratory. White officers are overrepresented in the respondent's forensic science laboratory.

4.13 The panel recommended that Mabala and Mowela be promoted to post 273 and 274 respectively.

4.14 The chairperson of the panel submitted the panel's recommendations together with all the relevant documents to the Divisional Commissioner of the Detective Services business unit, who in turn forwarded all the relevant documents and recommendations to the National Commissioner. The National Commissioner accepted the recommendations of the panel. In the circumstances, none of the second to fifth applicants were promoted. Mabala was, however, promoted to post 273, and Mowela was promoted to post 274. These promotions were effective from 1 December 2004.

4.15 As Is required by the Employment Equity Act 55 of 1998 ("the EEA"), the respondent, as a designated employer, has implemented the Plan and committed itself to the implementation of affirmative action measures to ensure that suitably qualified persons from designated groups are equitably represented In all occupational categories and levels in the respondent's workforce,

4.16 The respondent employs in the region of 120 000 employees. Due to the size of the respondent, the respondent has taken the approach of Implementing the Plan per business unit, The respondent has accordingly been subdivided into 27 business units in order to manage the Plan with greater efficiency. For purposes of the Plan, the respondent's forensic science laboratory, together with the respondent's criminal record centre fall within the scope of the Detective Services business unit

4.17 The ultimate object of the plan is to align the respondent with national demographics. Roughly speaking, the national demographics of South Africa are 40% (forty percent) females and 60% (sixty percent) males made up as follows:

4.17,1 77% (seventy-seven percent) African;

4.11.2 11% (eleven percent) White;

4.17.3 9% (nine percent) Coloured; and

4.17.4 3% (three percent) Indian.

4.18 The respondents forensic science laboratory is made up of the following units:

4.18.1 Questioned Documents;

4,18.2 Scientific Analysis;

4.183 Chemistry;

4.18.4 Explosives;

4.18.5 Biology;

4.18.6 BallistIcs; and

4.18.7 Support.

4.19 Prior to the implementation of the promotion process, the demographic composition of the members in the forensic science laboratory was as follows:

 4.20 The forensic science laboratory is predominantly made up of white people and there is therefore a strong need to address equity and representivity in this environment.

4.21 Following the promotion process, the demographic composition of the forensic science laboratory is as follows:

4.22 There has accordingly been some progress towards the achievement of the equitable representation of designated persons as defined in the EEA which would not have been possible had the second to fifth applicants been promoted.

4.23 Subsequent to the promotion process there are 14 (fourteen) so-called vacant posts on salary level 8 in the respondent's forensic science laboratory. However, these vacancies do not adversely affect service delivery. Because the forensic science laboratory is highly specialised, members from the forensic science laboratory would be the only candidates for promotion within the forensic science laboratory. Therefore, even after promotions have occurred, there will be the same number of people working in the forensic science Laboratory as there were before the promotion process. Irrespective of whether promotions have taken place, the members in the forensic science laboratory would be performing the same core functions as they would have performed before the promotion process. In the circumstances, service delivery is not adversely affected.

4.24 In making their recommendation, the panel considered the information contained in all of the candidates' application forms, as well as all of the other requirements specified In the Plan and the Promotion Policy.

4.25 The entire promotion process was fair and complied with the EEA, the Plan and the respondent's Promotion Policy. In particular, the respondent's Promotion Policy expressly provides that employment equity is one of the criteria to be taken into account when candidates are selected for promotion. in terms of paragraph 5(7) of the Promotion Policy, the National Commissioner is furthermore under no obligation to fill any advertised post.

Therefore, no candidate, including the second to fifth applicants, has an enforceable right to be promoted.
4.26 In particular, the EEA specifically provides that it is not unfair discrimination to take affirmative action measures consistent with the purposes of the EEA. In this regard, the respondent points out that the decision not to recommend the second to fifth applicants for promotion is expressly sanctioned by the Constitution Act 106 of 1998 and the EEA. In the circumstances, the non- promotion of the second to fifth applicants does not constitute unfair discrimination on the basis of their colour.

5 RESPONDENT'S RESPONSE TO THE APPLICANT'S STATEMENT OP CLAIM

6.1 Ad paragraphs 1 -2

The contents of these paragraphs are noted.
5.2 Ad paragraph 3.1 - 3.6

The contents of these paragraphs are noted.

5.3 Ad paragraph 3.7

Save to state that the respondent's principal office is at 7 Floor, Wachthuls BuIlding, Thibau Arcade, 231 Pretorlus Street, Pretoria, the contents of this paragraph are admitted.

5.4 Adparagraph 4

The contents of this paragraph are admitted.
5.5 Ad paragraph 6.1

The contents of this paragraph are admitted.

5.8 Ad paragraph 6.2

56.1 It is admitted that the second applicant holds an M.Sc degree in Applied Mineralogy from the University of Pretoria and that she has 4 years' practical experience at the respondent's forensic science laboratory,

5.6.2 The respondent does not have any knowledge of the balance of the allegations contained in this paragraph and therefore cannot admit or deny same.

5.7 Ad paragraph 5.3

Save to stats that the respondent also advertised a number of other posts in addition to posts 274 and 275, the contents of this paragraph are admitted

5.8 Ad paragraph 5.4

5.8.1 The respondent respectfully points out that it no longer advertises certain posts as ‘designated11. Anyone who qualifies for a post is entitled to apply for it. It is therefore admitted that the posts were not advertised as "designated posts for achieving affirmative action", and that the - second applicant was entitled to apply and be considered for the position. In fact, the second applicant was considered for the posts for which she applied.

5.8.2 However, the fact that the posts were not advertised as "designated poets, does not mean that the Plan and the Promotions Policy did not apply to the posts, or that the respondent was not obliged and/or entitled to have due regard to employment equity considerations in filling the posts.

5.9 Ad paragraph 5.5

The allegations contained in this paragraph are admitted.

5,10 Ad paragraph 5.6

5.10.1 It is admitted that, on or about 9 November 2004, Director De Klerk ("De Klerk") called the second third and fourth applicants into her office.

5.10.2 On this occasion, De Klerk indicated to the second, third and fourth applicants that no white members were recommended for promotion.

5.11 Ad paragraph 5.7

5.11 .1 The respondent admits that the second applicant was "suitably qualified' for posts 274 and 275 in terms of the EEA's definition of
suitable qualification.

5.11.2 It is denied that a ‘screening panel' is In existence. It is denied that the ‘screening panel' made any of the recommendations referred to in this paragraph.

5.11.3 It is also denied that the panel's recommendation stated that neither Mabala nor Moweia "had any valid training and experience in elemental trace analysis and was thus not recommended for Posts 274 arid 275' and the applicants are put to the proof thereof.

5.11.4 in addition, it is denied that Mabala and Mowela were not recommended for appointment and the applicants are put to the proof thereof.
5.11.5 The respondent respectfully points out that Mabala and Mowela had the relevant prior learning, training, development and experience. In
addition, their recommendation and appointment would advance employment equity in the forensic laboratory of the respondent.

5.12 Ad paragraph 58

5.12.1 The allegations contained in this paragraph are admitted.

5.12.2 The respondent points out that Mowela was suitably qualified and that his recommendation and appointment advanced employment equity in the forensic laboratory of the respondent.

5.13 Ad paragraph 5.9

The respondent admits the allegations contained in this paragraph. The vacancy does not affect service delivery by the respondent's forensic science laboratory.

5.14 Ad paragraph 5.10

The contents of this paragraph are denied and the applicants are put to the proof thereof.

5.15 Ad paragraph 5.11

The contents of this paragraph are admitted.

5.16 Ad paragraph 6.1

The contents of this paragraph are admitted.

5.17' Ad paragraph 6.2

5.17.1 It is admitted that the third applicant holds an M.Sc degree in Chemistry from the University of Pretoria and that the third applicant has 6 years' experience In forensic science at the respondents forensic science laboratory.

5.17.2 The respondent does not have knowledge of the balance of the allegations contained in this paragraph and accordingly cannot admit or deny same.

5.18 Ad paragraph 6.3

The respondent does not have any knowledge of the allegations contained in this paragraph and therefore cannot admit or deny same.

5.19 Ad paragraph 6.4

The allegations contained in this paragraph are admitted.

5.20 Ad paragraph 6.5

5.20.1 It is admitted that the posts were not advertised as "designated' posts.

5.20.2 In this regard the above Honourable Court is. rnutatis mutandis, respectfully referred to what is stated at paragraph 5.8 above.

5.21 Ad paragraph 6.6

The allegations contained in this paragraph are admitted.

5.22 Ad paragraph 6.7

5.22.1 It is admitted that, on or about 9 November 2004, De Klerk called the second, third and fourth applicants Into her office.

5.22.2 In this respect the above Honourable Court is, mutatis mutandis, respectfully referred to what is stated at paragraph 5.10 above.

5.23 Ad paragraph 6.8

5.23.1 The respondent admits that the third applicant was "suitably qualified" for posts 273 274 and 275 in terms of the EEA's definition of suitable qualification.

5.23.2 It is denied that a "screening panel" Is In existence. It is denied that the "screening panel" made any of the recommendations referred to in this
paragraph

5.23.3 It is denied that because the third applicant was identified for post 274 Mowela was the "identified candidate' for post 273. and the applicants
are put to the proof thereof.

5.24 Ad paragraph 8.9

5.24.1 The contents of this paragraph are denied and the applicants are put to the proof thereof.

5.24.2 In particular, the allegation that the third applicant was recommended for post 274 is denied and the applicants are put to the proof thereof.

5.25 Ad paragraph 6.10

5.25.1 The contents of this paragraph are denied and the applicants are put to the proof thereof.

5.25.2 In particular, the allegation that the third applicant was recommended for post 275 is denied and the applicants are put to the proof thereof.

5.26 Ad paragraph 6.11

5.28.1 It is admitted that neither Mabala nor Mowela applied for post 275,

5.28.2 The balance of the allegations contained in this paragraph are denied and the applicants are put to the proof thereof.

5.27 Ad paragraph 6.12

5.27.1 It is admitted that Mabala was appointed to post 273, and Mowela to post 274.

5,272 The balance of the allegations contained In this paragraph are denied and that applicants are put to the proof thereof.

5.26 Ad paragraph 6.13

The respondent admits the allegations in this paragraph. This vacancy does not affect service delivery of the respondent's forensic science laboratory.

5.29 Ad paragraph 6.14

The contents of this paragraph are admitted.

5.30 Ad paragraph 7.1

The contents of this paragraph are admitted.

5.31 Ad paragraph 7.2

The contents of this paragraph are admitted,
5.32 Ad paragraph 7.3

5.32.1 It Is admitted that the fourth applicant has 7 years' experience as an analyst in the respondent's primer residue section.

5.32.2 The respondent does not have any knowledge of the balance of the allegations contained in this paragraph and therefore cannot admit or
deny same,

5.33 Ad paragraph 7.4

5.33.1 It is admitted that post 271 was advertised during September 2004.

5.33.2 It is admitted that the post was not advertised as a "designated" post. In this regard the above Honourable Court is, mutatis mutandis,
respectfully referred to what is stated at paragraph 5.8 above.

5,34 Ad paragraph 75

5.34.1 Whilst it is admitted that the fourth applicant was suitably qualified for post 211 it Is denied that she was 9dealiy suited" for promotion to this post, and the applicants are put to the proof thereof.

5.34.2 It is admitted that, on or about 9 November 2004, De Klerk called the second, third and fourth applicants into her office.

6.34.3 In this respect, the above Honourable Court is respectfully referred to what is stated in paragraph 5,10 above.

5.35 Ad first paragraph 7.6

5.35.1 It is admitted that disabled persons are riot sufficiently represented at the respondents forensic science laboratory on post level 8.

5.35.2 Whilst the fourth applicant was injured on duty and received a compensation payment from the Compensation Commissioner, it is denied that the fourth applicant suffers from a disability.

5.35.3 it is therefore denied that her alleged disabled status made the fourth applicant Neven more suitable" for promotion to post 271, and the applicants are put to the proof thereof.

5.36 Ad second paragraph 7.6

5.36.1 The respondent admits that post 271 was Left vacant. This vacancy does not affect service delivery,

5.36.2 Whilst it is admitted that specialised experience is required in primer residue analysis, it is denied that the fourth applicant Is the only person suitable for post 271 • and the applicants are put to the proof thereof.

5.35.3 it is denied that the fourth applicant currently fulfils the duties attached to post 271 and the applicants are put to the proof thereof.

5.37 Ad paragraph 7.7

The contents of this paragraph are admitted.

5.38 Ad paragraph 6.1
The contents of this paragraph are admitted.

5.39 Ad paragraph 8.2

The contents of this paragraph are admitted.

5.40 Ad paragraph 8.3

5.40.1 The respondent admits that the fifth applicant has 7 years' experience as a forensic Analyst.

5.40.2 The respondent does not have any knowledge of the remainder of the allegations contained in this paragraph and therefore cannot admit or
deny same.

5.41 Ad paragraph 8.4

It is admitted that two posts 278 was advertised during September 2004.

5.42 Ad paragraph 8.6

5.42.1 The respondent points out that the applicants' statement of case does not contain a paragraph 8.5.

5,42.2 It is denied that the fifth applicant was not considered for posts 278 and the applicants are put to the proof thereof.

5.42.3 It is admitted that posts 278 have remained vacant. These vacancies do not affect service delivery.

5.43 Ad paragraph 8.7

The contents of this paragraph are admitted.

5.44 Ad paragraph 8.8

The contents of this paragraph are admitted.

5.45 Ad paragraphs 9.1 . 9.2

5.45.1 The second to fifth applicants were not recommended because their appointment would have negatively impacted on the Equity Plan of the respondent.

5.45.2 In this respect the above Honourable Court is respectfully referred to what is stated at paragraphs 4.19 to 4.26 above.

5.46 Ad paragraph 9.3

5,46,1 The respondent denies that it had unfairly discriminated against the second to fifth applicants on the basis of their colour.

5.46.2 In this respect the above Honourable Court is respectfully referred to what is stated at paragraphs 4.19 to 4.26 above.

5,47 Ad paragraph 9.4

5.471 The allegations contained in this paragraph are denied and the applicants are put to the proof thereof, In this respect the above Honourable Court is respectfully referred to what is stated in paragraphs 4.19 to 4.26 above.

5.47.2 in addition, ii Is expressly denied that the second to fifth applicants were not considered for promotion. These applicants were all considered,

5.48 Ad paragraph 9.5

5.46,1 The respondent admits that the advertised positions were not for designated persons and in this regard, mutatis mutendia, respectfully refers the above Honourable Court to what is stated at paragraph 5.6 above,

5.48.2 The respondent admits that posts 271, 275 and 278 were left vacant. The respondent denies that this is unfair.

5.48.3 The respondent denies that an unsuitable candidate was appointed to post 274.

5.48.4 The respondent furthermore denies that the applicants are still required to perform certain of the functions in relation to posts 271 275 and 276, or that it is unfair.

5.4.9 Ad paragraph 9B

5.49.1 The contents of this paragraph are denied and the applicants are put to the proof thereof.

5.49.2 Any suggestion that the operational obligations of the forensic laboratory of the respondent are not honoured as a result of the refusal to promote the second to fifth applicants is expressly denied and the applicants are put to the proof thereof.
5.50 Ad paragraph 9.7

Save to admit that posts 271, 214, 275 and 278 require speclalised skills, the contents of this paragraph are denied and the applicants are put to the proof thereof.

5.51 Ad paragraph 9.8

5.51.1 It is admitted that posts 271, 275 and 278 are still vacant.

5.51.2 It is denied that the services performed by the respondent's forensic science laboratory are negatively affected, and the applicants are put to the proof thereof.

5.51.3 The respondent furthermore denies that the applicants are required to perform certain of the functions in relation to the vacant posts without reward,

5.52 Ad paragraph 9.9 - 9.10

5.52.1 The respondent states that, should the second to fifth applicants have been promoted, their salaries would have increased. It is, however, denied that the second to fifth applicants suffered the monetary loss, as alleged, and the applicants are put to the proof thereof.

5.52.2 The second to fifth applicants do riot have any enforceable right to be promoted and the respondent may, in accordance with the Promotion Policy, decide not to make any appointments subsequent to a promotion process. This is what occurred in this case. Based on the Plan and in accordance with the Promotion Policy, these Individuals were not recommended for promotion.

5.53 Ad paragraph 10

It is denied that the applicants are entitled to the relief sought in terms of this paragraph and the applicants are put to the proof thereof. In any event, the respondent points out that the promotions were effective from 1 December 2004 and not 9 November 2004.

B. LEGAL ISSUES ARISING FROM THE FACTS

The Court is required to determIne whether the second to fifth applicants were unfairly discriminated against on the basis of their colour.

7. RELIEF SOUGHT

The Respondent requests the above Honourable Court to dismiss the applicants' application with costs.

8. The Respondent's schedule of documents is attached marked TMA11.

DATED at SANDTON on this 14th day of NOVEMBER 2005.
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