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

APPLICANTS' STATEMENT OF CLAIM IN TERMS OF RULE 6 OF THE RULES OF THE LABOUR COURT

CASE NO: JS 6271 05

If a party intends opposing the matter, the response must be delivered within 10 days of service of this statement in terms of sub rule 6(3) of the Rules of the Labour Court, failing which the matter may be heard in that party's absence and an order for costs may be made against that party.

DETAILS OF THE PARTIES

3.1 The First Applicant is Solidarity, a trade union duly registered in terms of the
Labour Relations Act No 66 of 1995 (hereinafter referred to as "the Act") with principal office situated at Old Momentum Building, 267 West Avenue, Centurion, Gauteng.

3.2 The Second Applicant is H Ueckermann, a major white female and employee of Respondent.

3.3 The Third Applicant is LL de Jager, a major white male and employee of Respondent.

3.4 The Fourth Applicant is C van Ham, a major white female and employee of Respondent.

3.5 The Fifth Applicant is JJ Geustyn, a major white male and employee of Respondent.

3.6 In launching this application Solidarity acts on behalf of Second - to Fifth Applicants as paid-up members of Solidarity Trade Union, in terms of section 200 of the Labour Relations Act.

3.7 The Respondent is South African Police Service established in terms of the South African Police Service Act, an employer as defined in the Labour Relations Act 66 of 1995, do the State Attorney, Johannesburg with the following particulars:

95 Market Street, Johannesburg,
Private Bag X9
Tel.: (011) 3307657 Fax: (011) 333 0348

The abovementioned Honourable Court has jurisdiction to hear this matter.

STATEMENT OF THE FACTS THAT WILL BE RELIED ON TO ESTABLISH THE SECOND APPLICANT'S CLAIM

5.1 The Second Applicant is an inspector employed as a Forensic Analyst by the Respondent. She is attached to the Materials Analysis Section: Scientific Analysis Unit of the Respondent's Forensics Science Laboratory. Second Applicant earns R91 22.75 per month, which amounts to R 109473.00 per annum.

5.2 Second Applicant holds, inter alia, an M.Sc degree in Applied Mineralogy from the University of Pretoria, has attended various training courses and workshops, (nationally and internationally) and has 10 years experience in chemical and mineralogical analysis, of which 4 years are practical experience in forensic science at the Respondent's Forensic Science Laboratory.

5.3 During September 2004 Respondent advertised 2 promotion posts, namely Post 274 (Senior Forensic Analyst - Elemental Trace Analysis) and Post 275 (Senior Forensic Analyst - Elemental Profiling Analysis).

5.4 The abovementioned posts were not advertised as designated posts for achieving affirmative action, which meant that Second Applicant had the right to apply for the aforementioned positions and be considered therefore.

5.5 Second Applicant duly applied for Post 274 and Post 275 and was screened for these posts on 8 October 2004, along with Third Applicant and Inspectors Mowela and Mabala.

5.6 On 9 November 2004 Second Applicant, along with Third and Fourth Applicants were called into Director de Klerk's office and was informed by the latter that her application for promotion was unsuccessful and that no white members were considered for promotion.

5.7 Second Applicant was suitably qualified for Posts 274 and 275. Second Applicant was recommended by the screening panel as the first candidate for Post 275 and as the second candidate for Post 274. The screening panel's recommendation stated that neither of the other 2 persons, Inspectors Mowela and Mabala, had any valid training and experience in elemental trace analysis and was thus not recommended for Posts 274 and 275.

5.8 Inspector Mowela was subsequently appointed in Post 274.

5,9 Post 275, for which Second Applicant was found to have sufficient skill and experience to do the job, was left vacant and has to date of the filing of this application not been filled.

5.10 Second Applicant is expected to perform, along with her normal duties, certain of the duties attached to Post 274 as well as the vacant Post 275.

5.11 Second Applicant followed the internal grievance procedure of Respondent, which brought no solution to bear. Consequently a dispute was referred to the appropriate forum, which resulted in a certificate being issued whereby the matter was referred to the above Honourable Court for adjudication.

STATEMENT OF THE FACTS THAT WILL BE RELIED ON TO ESTABLISH THE THIRD APPLICANT'S CLAIM

6.1 Third Applicant is an inspector employed as Forensic Analyst by Respondent. He is attached to the Materials Analysis Section: Scientific Analysis Unit of the Respondent's Forensic Sciences Laboratory. Third Applicant earns R91 22.75 per month, which amounts to R 109473.00 per annum.

6.2 Third Applicant, inter alia, holds an M.Sc degree in Chemistry from the University of Pretoria, has 12 years experience in physical and chemical analysis of which 6 years are practical experience in forensic science at the Respondents Forensic Science Laboratory and has attended training courses and workshops, both locally and internationally.

6.3 In addition hereto Third Applicant has conducted more than 750 forensic investigations in a number of disciplines including, inorganic trace element analysis, physical matches and precious metals analysis.

6.4 During September 2004 the promotion positions named Post 273 (Senior Forensic Analyst: Precious Metal Fire Assay Process), Post 274 (Senior Forensic Analyst: Elemental Trace Analysis Process) and Post 275 (Senior Forensic Analyst: Elemental Profiling Analysis) were advertised.

6.5 The above positions were not advertised as designated posts, which had resulted that Third Applicant had the right to apply for the posts and be considered therefore.

6.6 On 8 October 2004 Third Applicant was screened for the aforementioned positions along with Second Applicant, Inspector Mowela and Inspector Mabala.

6.7 On 9 November 2004 Third Applicant along with Second and Fourth Applicants were called into Director de Klerk's office and was informed by the latter that his application for promotion was unsuccessful and that no white members was considered for promotion on the aforementioned positions.

6.8 Third Applicant was suitably qualified for Posts 273, 274 and 275. Third Applicant was recommended by the screening panel as the first recommendation on the list for Post 273. However as he had been identified for the Elemental Trace Analyst post (Post 274), Inspector Mowela was the identified candidate.

6.9 Third Applicant was recommended for Post 274 and was identified along with Second Applicant as having sufficient skills for the performance of a wide range of elemental trace analysis cases.

6.10 Third Applicant was recommended for Post 275 and was identified along with Second Applicant to be sufficiently skilled to the work related to that post.

6.11 It was specifically stated that neither Inspector Mowela nor Inspector Mabala had any valid training and experience in elemental trace analysis and were thus not recommended for Post 274. Neither of these two applied for Post 275.

6.12 Inspector Mowela was subsequently appointed in Post 274, and Inspector Mabala was appointed in Post 273. Third Applicant currently performs a number of the duties attached to Post 274 as well as a number of the duties attached to Posts 273 and 275.

6.13 Post 275 was left vacant after the advertisements and remained so to date of filing this application.

6.14 Third Applicant followed the internal grievance procedure, which brought no solution to bear. Consequently a dispute was referred to the relevant forum, which resulted in a certificate being issued by the matter was referred to the above honourable court for adjudication.

STATEMENT OF THE FACTS THAT WILL BE RELIED ON TO ESTABLISH THE FOURTH APPLICANT'S CLAIM

7.1 Fourth Applicant is an Inspector employed by Respondent attached to the Primer Residue Section of the Scientific Analysis Unit of the Forensic Sciences Laboratory as a Forensic Analyst. Fourth Applicant earns R91 22.75 per month, which amounts to R 109473.00 per annum.

7.2 Fourth Applicant, inter alia holds a B.Sc (Honours) degree in Chemistry from the University of Pretoria.

7.3 Fourth Applicant has 7 years experience as an Analyst in Respondent's Primer Residue Section, has conducted numerous investigations and has attended various training courses and programmes, and has 13 years experience in chemical analysis, of which 9 years are practical experience.

7.4 During September 2004 Post 271 (Senior Forensic Analyst: Quality and Occupational Health and Safety) was advertised. The abovementioned post was not advertised as a designated post, which meant that Fourth Applicant had the right to apply for the post and be considered therefore.

7.5 Fourth Applicant was ideally suited for promotion to Post 271, but was called to Director de Klerk's office on 9 November 2004, along with Second and Third Applicants and informed by the latter that no white members were considered for posts.

7.6 In addition hereto Fourth Applicant has been certified as disabled by the Compensation Commissioner, which made her even more suitable for the position as disabled persons are nor sufficiently represented in post level 8 of Respondent.

7.6 Post 271 was left vacant after the advertisements and remained so to date of filing this application. Fourth Applicant is the only person suitable for this post because of the specialised experience required in Primer Residue Analysis. She currently fulfils the duties attached to Post 271.

7.7 Fourth Applicant followed the internal grievance procedure, which brought no solution to bear. Consequently the matter was referred to the appropriate forum, was conciliated and a certificate was issued referring the matter to the above Honourable Court for adjudication.

STATEMENT OF FACTS THAT WILL BE RELIED UPON TO ESTABLISH THE FIFTH APPLICANTS CLAIM

8.1 Fifth Applicant is an Inspector employed by Respondent as Forensic Analyst: Questioned documents at the Respondents Arcadia Laboratory. Fifth Applicant earns R 9896.00 per month, which amounts to R 118 752.00 per annum.

8.2 Fifth Applicant, inter alia, holds a National Diploma in Police Administration and is busy studying a B Tech Degree in Forensic Investigation.

8.3 Fifth Applicant has 7 years experience as Forensic Analyst, has conducted numerous investigations and attended numerous courses and programmes both nationally and internationally.

8.4 During September 2004 two Posts 278, namely that of Principal Forensic Analyst: Questioned Documents were advertised by Respondent.

8.6 Notwithstanding the aforesaid Fifth Applicant was not considered for Posts 278, which positions remained vacant after the advertisement thereof and remain vacant until date of filing of this application.

8.7 Fifth Applicant was informed, along with Second - to Fourth Applicants, that the Equity Plan of Respondent sets certain numerical targets in relation to race and gender. The number of white males and white females exceed the numerical targets in post level 8 and as a result no candidates were recommended which would have a negative affect on the numerical target within post level 8.

8.8 Fifth Applicant followed the internal grievance procedure, which brought no solution to bear. Consequently the matter was referred to the appropriate forum, was conciliated and a certificate was issued referring the matter to the above Honourable Court for adjudication.

LEGAL ISSUES THAT WILL ARISE FROM THE ABOVE FACTS

9.1 Applicants were subjected to differentiating treatment on the basis of their colour, namely white.

9.2 Had Applicants not been white they would not have been subjected to differentiation and the fact that they are white is the dominant cause for the pertinent differentiating treatment they received from Respondent.

9.3 As a result Applicants submit that Respondent had unfairly discriminated against them, as contemplated in section 6(1) of the Employment Equity Act 55 of 1998 on the listed ground of colour.

9.4 It is established law that if an employee successfully linking differentiation with a listed ground, this is not only discrimination, but is also presumed to be unfair. Applicants were not considered for promotion simply because they are white persons. Such direct discrimination is unfair and cannot be defended on the grounds of the inherent requirements of the job, affirmative action consistent with the Employment Equity Act or on a basis that the discrimination is generally fair.

9.5 The advertised positions were not for designated persons only and Respondents actions of leaving Posts 271, 275 and 278 vacant and the appointment of an unsuitable applicant to Post 274, while Applicant's are still required to perform certain of the functions related to these posts, is unfair.

9.6 It is established law that an entity such as Respondent, which performs a cardinal role in society, must be alert to the fact that extensive affirmative action measures, when implemented, can be insufficient to address the vacancies and operational needs of a particular Unit.

9.7 Applicants submit that such is the case in the Forensic Science Laboratory, where Second - to Fifth Applicants are employed. Due to the highly specialised skills required for the Posts 271, 274, 275 and 278, Applicants were the only persons qualified to fill the aforementioned positions.

9.8 As a result of Respondent's extensive affirmative actions these posts were left vacant. In the meantime the services that the Forensic Science Laboratory perform are negatively affected as Applicants' workloads increase and they are expected to perform certain of the functions attached to the vacant positions without the rewards to which they are entitled.

9.9 Second - Fourth Applicants have each suffered monetary loss for the period they were not promoted to the said posts, being the difference in salary between the rank of Inspector and the rank of Captain, which amounts to R82594.25 per person from December 2004 until end July 2005.

9.10 Fifth Applicant suffered monetary loss for the period he was not promoted to the said posts, being the difference in salary between the rank of Inspector and the rank of Captain, which amounts to R88 012.25 from December 2004 until end July 2005.

RELIEF SOUGHT

Applicants prays that the above Honourable Court grants the following relief:

10.1 An order that Respondent unfairly discriminated against Second - to Fifth Applicant's on the basis of race, in terms of Section 6(1) of the Employment Equity Act;

10.2 Ordering that Second to Fifth Applicants be afforded promotions to the rank of Captain with retrospective effect from 9 November 2004,

ALTERNATIVELY,

10.3 That Second Applicant is promoted to the rank of Captain in post 275 with retrospective effect from 9 November 2004;

10.4 That Third Applicant is promoted to the rank of Captain in post 273 or 274, with retrospective effect from 9 November 2004;

10.5 That Fourth Applicant be promoted to post 271 with retrospective effect from 9 November 2004;

10.6 That Fifth Applicant be promoted to post 278 with retrospective effect from 9 November 2004:

10.7 Costs of suit;

10.7 Costs of suit;

10.8 Further and I or alternative relief;
SCHEDULE OF DOCUMENTS
Attached is a schedule of documents marked annexure "A", which are material and relevant to the dispute.

DATED AT CENTURION ON THIS DAY OF AUGUST 2005.

[Editor's Note: The second and third applicants have subsequently resigned from the SAPS.]

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