CASE: JS408/03. In the matter between: SOUTH AFRICAN TRANSPORT AND ALLIED. And JUDGMENT MAYET AJ. Introduction

Transcription

1 CASE: JS408/03 In the matter between: MRS V.E. SMITH AND 13 OTHERS First Applicant SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION Second Applicant And THE COURIER FREIGHT Respondent JUDGMENT MAYET AJ Introduction [1] In this matter the first applicant and others ( the employees ) seek relief against the respondent ( the employer ), for what the employees allege was an

2 unfair retrenchment. The applicants seek reinstatement and costs against their former employer on grounds that that their retrenchments were substantively and procedurally unfair. Background [2] It was common cause between the parties that the respondent was a subsidiary of the South African Post Office ( SAPO ). [3] The employer s profitability was called into question by the shareholders when it posted a loss of fifty two million rand for the end of the financial year in [4] In order to remain in business the employer required a subsidy from its principal shareholder, the SAPO. [5] The subsidy was withheld and made conditional on the company embarking on a restructuring process that would improve its profitability within a period of eight months. [6] The company called in the services of an outside consultant called Gemini to assist with a restructuring process. [7] The consultant prepared a report in which it identified the following

3 departments within the company as problem areas. The departments identified for restructuring were the following: 7.1 Owner driver; 7.2 Human Resources; 7.3 Finance and; 7.4 IT. [8] The report also indicated that the finance department could not sustain the number of persons employed in that department. It was top heavy with employees and recommended that its functions be outsourced. [9] The employees in this matter were all employed in the finance department. Their services were terminated at the end of June Issues in dispute [10] The employees contend that there was no consultation in terms of Section 189 of the Labour Relations Act 66 of 1995 as amended ( the Act ). The retrenchment process fell short of what is required in terms of the Act. The employees further maintain that the Respondent failed to comply with the National Bargaining Council clauses and provisions in the Recognition Agreement governing the retrenchment process in the workplace. The employer denies this and maintains that it acted in accordance with the

4 provisions of Section 189 (a) of the Act. The evidence [11] Petros Pat Baloyi and Pieter Casparus Jacobs testified on behalf of the employer. Mr. Baloyi was employed as a Line Manager and was involved in the negotiations with the union and its members in regard to the recommendations made by Gemini. Pieter Jacobs was the Human Resources Manager of the employer during the retrenchment process and he was involved in drawing up a strategy to offer the employees voluntary severance packages, early enhanced retirement and he was also in charge of the advertising of positions that were offered to the employees affected by retrenchment. He participated in the interviews and was responsible for the implementation of the selection criteria. [12] Mr. Baloyi testified that the employer consulted with the union and its members as early as in September and October 2002 when the audit report showed that the company was in dire financial straits. The company was running at a loss of 52 million rand. [13] During September and October 2002 the company invited its employees to apply for voluntary severance packages and early enhanced retirement in an effort to minimize the effect of retrenchment. However, not enough

5 employees took up the offer. The company then realized that retrenchment for operational requirements was unavoidable. [14] The company held several meetings with the union and its employees to discuss the retrenchment process. The company submitted its own proposals to mitigate job losses but the union did not make any of its own proposals known, and instead, delayed the restructuring process by being uncooperative. The union and its members referred a dispute to the Bargaining Council as well but nothing came of it. [15] Baloyi denied that the retrenchment process was flawed because certain employees had been retrenched and were reemployed in their old positions soon after retrenchment. With regard to one such employee, Charles Mkwanazi, Baloyi testified that there was an agreement between the union and the company that Mkwanazi who was disabled as a result of an injury sustained while he was a driver would not lose his employment. Baloyi also referred to Ms. V. Seeparsad, she was employed by the company and was retrenched. However, they knew that she was offered employment by SAPO. In other words, she was not re employed by the company. He confirmed further that SAPO brought in contract workers with specialized skills to help sort out incorrect journal postings in the finance department. These people were employed on temporary contracts. [16] The retrenchment process was managed by the Human Resources Manager

6 and the effected employees were given the option to apply for posts in the restructured finance department. All the affected employees applied and were interviewed. There was no short listing of the applicants. Those who were not successful were given the further option of applying for vacant posts in other departments. Those employees who were unsuccessful were called in and informed by management that they were redundant and were offered retrenchment packages. [17] Baloyi denied that the company was responsible for delaying the restructuring process because it failed to respond to the union s request for a meeting with senior management on the 26 th or 27 th June The union called the meeting because they were not getting satisfactory answers from the transformation forum meetings. He confirmed that the proposed meeting with senior management did not take place but felt that the union had ample opportunities to raise its concerns properly at several meetings held under the transformation forum. [18] He was adamant that if the retrenched employees were reinstated they could not be accommodated in their previous employment in the finance department since this department was now under SAPO. [19] Finally Baloyi was of the view that there was indeed a valid rationale for retrenchment because the company was operating at a huge loss and could not

7 afford to continue to operate in the same manner. He could not tell how many employees had been retrenched in total because the retrenchment process was still ongoing. [20] It was put to Baloyi that there was no consensus reached on the retrenchment process. In fact the retrenchment process did not apply the principal of LIFO even though this was alleged in the respondent s opposing statement. Baloyi confirmed that LIFO was not applied when the company realized that it would not have the desired effect. One of the main criteria was skills retention. Those who were retrenched did not have the requisite skills. The retrenchment process was carried out in consultation with the union and this could be seen in the number of e mails that were exchanged between the members of the transformation forum which included representatives from the union and shopstewards as well. [21] The next witness to testify was Pieter Casparus Jacobs. He was the Human Resource Manager of the respondent. He confirmed that the company operated at a huge loss of fifty two million rand in 2002 and it became necessary to call in Gemini, as consultants, to devise a turnaround strategy. The project was called Phambili. He further confirmed that the finance department was one of the departments contributing to the unprofitability of the company. He further confirmed that the consultations with the employees and union began as early as in 2002.

8 [22] The witness then referred to the posts that were advertised for the finance department. There were only a limited number of posts in terms of the new vision for the finance department. However, all the employees in the finance department were encouraged to apply for the positions. All the staff members in the finance department applied for the positions that were advertised. There was no short listing of any of the applicants. All those who applied for the posts were graded and given a score, in terms of their competency levels, knowledge and skills. Those candidates who were not successful were allowed to apply for posts in other departments. The selection criteria was formulated in conjunction with inputs received from the manager of the finance department and the employment equity representative. The union was actively engaged throughout the selection process. [23] Mr. Jacobs confirmed under cross examination that one of the minimum requirements for the advertised posts was a grade 12 qualification. The principle of LIFO was not applied as it would not have had the desired effect in line with the new vision of the finance department. He further confirmed that there were far more applicants than the number of posts available in the finance department. The interviews took place in April and May 2003 and the applicants were informed of the outcome of the interviews only in the middle of May He denied that the consultation process in regard to retrenchment only began in May The retrenchment process started in

9 September It was not known who was going to be retrenched by prior to May 2003 after the interview had been conducted. [24] He was no longer employed by the company and could not tell whether the advertised posts were filled by contract employees. [25] The applicants called on three witnesses to testify namely, Mr. Phillip Morapedi, Mr. Charles Mkwanazi and Mr. Andrew Motudi, a shopsteward. [26] At the time of the retrenchment, Phillip Morapedi was employed as an accounting clerk. He was with the company for approximately 18 years. He was initially employed as a micro filament operator for about 13 years. He was then given a position as accounts clerk. This was not a promotion. He did not receive any training on the job but was helped by a colleague of his to carry out his tasks. He learnt what was required of the job in one week. He was a permanent employee in the finance department until his retrenchment at the end of June [27] Mr. Morapedi was unhappy about his retrenchment because it came as a complete surprise to him. He was not aware of the financial difficulties experienced by the company. He was not informed either by management or his union that the company had to restructure. As far as he was concerned there was no consultations whatsoever in regard to his retrenchment. He strongly felt that the company should have held consultations with him and his

10 fellow employees in the finance department on the need to restructure, the timing of the retrenchment, the retrenchment package itself, so that they could make proposals on how jobs could be saved. [28] He was bitter about the fact that someone else had been employed by the company on a temporary contract to fill his position. His job was therefore not made redundant and he identified the temporary employee as one, Mavis Maele. [29] He confirmed that he went through an interview process and was given an opportunity to apply for his own post and for another post in the company as well. He could not understand why he was unsuccessful given the fact that he had five years experience on the job. The job required a grade 12 qualification which he did not have. [30] Mr. Charles Mkhwanazi testified that he joined the company as a driver in After his injury he was transferred to the billings section where he was responsible for data capturing and document retrieval. During May 2003 he was informed of the restructuring process and invited to apply for positions advertised within the finance department. He was interviewed but his application was not successful. He was given a further option of applying for another post in the company. He did so but nothing came of it. Instead he was told that he was redundant and had to take a retrenchment package. He was retrenched at the end of June 2003.

11 [31] During October 2003 he was asked to return to work and he was employed in the finance department on a temporary contract in his former position. He found that that the company had in fact recruited new employees on temporary monthly contracts to work in the finance department. He further confirmed that although the finance department had been taken over by SAPO he was still employed by his former employer. [32] He was unhappy about losing out on the benefits he enjoyed as a permanent employee. He was no longer receiving medical aid, pension and was not entitled to apply for bursaries offered by the company. He also was not entitled to yearly increases which are negotiated between the union and the company. [33] He admitted that he did not have the minimum qualification of grade 12 but he felt that he had acquired about 15 years experience of the job. He did not receive any training on the job but learnt how to do his work by observing his fellow employees. It took him about one week to learn how to do his job. [34] He confirmed that there was an agreement between the union and the company that he would be taken care of after he sustained an injury whilst on duty that left him disabled. However, he was of the view that he was recalled primarily because he knew how to do the job properly.

12 [35] He also found out quite by accident when he answered the telephone at work that one of the other retrenched employees, Ms. V. Seeparsad was back in her old position with the company. [36] He denied any knowledge of the company s financial predicament. Neither his union nor the company informed him of the need to restructure in light of the losses made in the 2002 and 2003 financial years. He denied having any knowledge of the need to retrench. The retrenchment letter given to him on the 22 nd May 2003 came as a complete surprise to him and his fellow employees since there were no consultations held prior to retrenchment at the workplace. [37] He admitted that he knew of the offer of voluntary severance packages and early retirement by the company. He did not see any connection between the offer of voluntary severance packages and early retirement with the need for retrenchment. These were separate issues to him. [38] Finally the shopsteward, Andrew Motudi, testified that he was shocked by the retrenchment letters given to employees in the finance department on the 22 nd May It came as a complete surprise to him because no consultations had taken place in regard to retrenchment. Retrenchment was different to voluntary severance packages and early retirement and he was not informed that retrenchment would follow if sufficient employees did not take up the

13 offer of voluntary severance packages and early retirement. [39] He admitted that meetings took place under the umbrella of the transformation forum but that retrenchment was not discussed because it was not on the agenda. Discussions on retrenchment could only occur after the company had issued a three month written notice of its intention to retrench workers. The first month would be used to minimize dismissals by offering employees voluntary severance packages and early retirement. In the second month, the union and the employer would look at minimizing job losses by getting rid of labour brokers and contract workers. In the third month, the actual timing of the retrenchment would be discussed between the union and the company. This did not take place. [40] He denied that the union deliberately delayed any discussions on retrenchments by having purposely stalled the retrenchment process. It was management who delayed the process because they did not follow the correct procedure. The union refused to discuss voluntary severance packages because they could only be discussed at a national forum and not a regional forum. The shopstewards met at a national forum four times a year. If the company did not want to wait that long they could have called for a special meeting to discuss retrenchment and they could have asked the union to waive the three month written notice at such a meeting. In fact it was the union that asked for a meeting with senior management on 26 th or 27 th June 2003 but this did not materialize. The union asked for a meeting because they required clarity on the restructuring process and the manner in which it was being discussed at the transformation forum. [41] According to the shopsteward Andrew Motudi, the union became aware of the retrenchment only after letters were issued to the affected employees on 22nd

14 May There were no consultations held between the company and the union on retrenchments. He confirmed that all employees were kept informed of the restructuring process proposed by the consultant, Gemini, and that all employees were made aware of the offer of voluntary severance packages and early retirement. [42] Mr. Motudi was adamant that there was no consultation on retrenchment even though he was part of the transformation meeting. He confirmed after being referred to the minutes of the meeting that any discussion on the restructuring was stymied by the shop stewards as they did not want any discussion on it. Their objections related to the fact that the transformation meeting was not the proper forum to discuss restructuring and retrenchment. He further maintained that the union was not aware of the minutes of the transformation meeting because as a shopsteward he was the link between the employees and the employer. He was not representing the union at the transformation meetings. Analysis of Evidence and Argument [43] It was common cause that the company went through a poor financial year at the end of 2002 and it made a loss of approximately fifty two million rand and was anticipating a further loss in the 2003 financial year. It was common cause that the company enlisted the services of a consultant called Gemini Consulting to assist it with the turnaround strategy. It was common cause that

15 Gemini Consulting provided a report in which it identified, amongst others, the finance department for outsourcing. It was reported that there were deficiencies in the skills of employees employed in the finance department to make correct journal entries. It was also common cause that the report further pointed out that the finance department was top heavy with employees and could not continue in the same way. [44] In an effort to minimize job losses the employees in the old structure of the department were invited to apply for posts that were ringfenced for all the employees in the restructured finance department. It was common cause that there were more employees than posts available and the employees were allowed to apply for posts in other departments as well. Every employee who applied was given an interview and rated in terms of their skills, knowledge and competency. It was common cause that the employees who were unsuccessful in their interviews were made redundant and given letters of retrenchment on the 22 nd May [45] It was not disputed by any of the parties that the company faced huge financial losses that required drastic action. It was not disputed that the company made a loss of fifty two million rand in the 2002 financial year and anticipated a further huge loss in the 2003 financial year. The financial crisis faced by the company dictated that it consider restructuring as a necessity. [46] The applicants contended that no genuine consultation had taken place with

16 regard to retrenchment. Employees only became aware of retrenchment when they received their retrenchment letters on the 22 nd May However, with respect this contention is not supported by the evidence that shows that several meetings took place between management and the employee s representative to discuss the Gemini report which made out a strong case for restructuring of the finance department. All attempts by the company to engage in a meaningful joint consensus seeking exercise came to nought as a result of the insistence of the union that they could only consider any consultation on retrenchments after the company had submitted a three months written notice in terms of the recognition agreement. The process of restructuring actually began way back in September 2002 when the company and the employees looked at ways of minimizing job losses in the finance department by offering voluntary severance packages, early enhanced retirement and training to affected staff in the finance department. It is not certain from the evidence how many of the staff opted for the options offered by the company to minimize job losses. It is clear from the evidence that not enough employees took up the offer of either voluntary severance package or early retirement. [47] Whilst it is true that a written notice giving three months advance notice by the company that it contemplated retrenchment in the workplace was not submitted by the company, this does not detract from the fact that the company made attempts to consult with the union and its members including the affected employees on restructuring of the finance department. The fact that voluntary severance packages and early retirement were discussed as an option to minimize job losses indicates that the employees and the union were aware of the need to restructure and that retrenchment was then considered.

17 [48] The various minutes of meetings held under the umbrella of the transformation forum as well as minutes of a special meeting held by shop stewards at a national forum indicate that the union was not prepared to consult with the company and deliberately shifted the goal posts to avoid consultation on the retrenchment process. It is therefore not true to say that retrenchment came as a complete surprise to both the union and affected employees. [49] It was argued by the employees and the union that the retrenchment process was flawed not only because of insufficient consultations, but because of the fact that the company had recruited new employees on a temporary contract basis to work in the place of retrenched employees in finance department. Mkhwanazi testified that he recalled as there was too much work to be done. The evidence however shows that his retrenchment was because of an oversight on behalf of the company. There was an agreement between the company and the union not to dismiss Mkhwanazi because of his disability. Furthermore, Pieter Jacobs, the erstwhile Human Resources Manager made it clear that in terms of the report submitted by the consultant Gemini, there was a need to bring in contract workers with specialized skills to address the problem of incorrect journal posting in the finance department. His evidence was corroborated by Baloyi. [50] Contract employees with specialised skills were brought in to implement proper accounting procedures. Both Mkhwanazi and Morapedi testified that their applications were unsuccessful because they did not have the necessary qualifications. The minimum qualification required for the advertised posts was grade 12. Neither Mkhwanazi nor Morapedi had grade 12. However, they were of the view that their applications should have been successful because they had on the job experience. They admitted that they were not given any formal training on the job but acquired the necessary skills by observing how other employees carried out their duties. In other words they learnt through observation. It is questionable whether Morapedi and Mkhwanazi had acquired the necessary level of competency and skills required in the posts they occupied given the fact that the report from Gemini highlighted deficiencies in the posting of journal entries in the finance

18 department. It was further pointed out that the retrenchment process was unfair because some of the employees who had been retrenched were called back to their old posts. An example given was that of Ms. Seeparsad. Mkhwanazi testified that he accidentally found out during a telephone discussion that Ms. Seeparsad was employed in her old job. However, he could not dispute that the department of finance now fell under SAPO and that meant that SAPO was her new employer. Furthermore there was no concrete evidence to confirm that Ms. Seeparsad was indeed employed in her old position by her former employer and not by SAPO. Ms Seeparsad was not called on to testify. The issues to be decided [51] This court is required to decide the following issues: 51.1 Whether there existed operational reasons for the retrenchment of the applicant; 51.2 Whether the respondent had engaged the applicants, alternatively made bona fide attempts to engage the applicants in a meaningful consensus seeking process regarding the termination of their services for alleged operational reasons; 51.3 Whether the respondent had complied with the provisions of Section 189 of the Labour Relations Act 66 of 1995 ( the Act ), alternatively made bona fide attempts to comply with Section 189 of the Act; 51.4 Whether the applicants are entitled to reinstatement.

19 Was there a need to retrench the applicants? [52] S213 of the Act defines operational requirements to mean requirements based on economic, technological, structural or similar needs of an employer. On the undisputed evidence before me, there was a commercial rationale for restructuring. The employer was faced with financial losses of calamitous proportions and sought the advice of a consultant to address its financial woes. [53] The consultant Gemini, recommended that the financial department be outsourced as it was top heavy with employees and not financially viable. The report also indicated that the competency levels of employees in the finance department left much to be desired. The consultant s report found that journal entries had been incorrectly posted. [54] It was common cause between parties that the company made a loss of fifty two million rand in the 2002 financial year and was anticipating a further huge loss in the 2003 financial year. As a result thereof the shareholders refused to subsidize the company and instructed it to call in the services of a consultant to put in place a turnaround strategy. [55] The employees in the finance department were informed that the company had to restructure and that in terms of the new vision for the finance department, there were more people than posts available. Each and every employee was given an opportunity to apply for the new advertised posts and no short listing was applied. All of the employees were interviewed and those who were not successful were allowed to apply for positions in other departments as well. Those who did not make it and did not have the necessary skills and competencies were made redundant. [56] The employees who testified did not have the minimum qualification of grade 12. Furthermore, after the interview it became clear that the employees did not have the requisite skills and competencies required of them to be retained in the restructured finance department. [57] There was no evidence to corroborate the evidence of the employees that after their dismissals their positions were filled by temporary casual employees who carried out the same functions as they did prior to their dismissals. Both Baloyi and Jacobs testified that people with specialized skills were brought in on temporary contracts to reverse the slide in the company s profits and to bring in the requisite skills in line

20 with the new vision of the restructured finance department. [58] I am satisfied that the employer has proved on a balance of probabilities that there was a genuine need to restructure the finance department and to retain only those employees with the requisite skills and competencies. There was a genuine reason for declaring the employees positions redundant and a need to retrench them. The retrenchment of the applicants was, in the circumstances, substantively fair. Were the retrenchments procedurally fair? [59] In the pre trial minute the employees contend that the retrenchments were procedurally unfair and that the employer failed to comply with section 189 of the Act. [60] The employer, on the other hand, was of the opinion that it had complied substantially with the provisions of section 189 of the Act and that any shortcomings in the consultation process were solely as a result of the representative union s obstructionist conduct in meetings that undermined the consultation process. [61] Section 189 (1) of the Act requires an employer who is contemplating dismissing an employee for reasons based on the employer s operational requirements to consult with the employee who is likely to be affected by the proposed dismissal. In terms of section 189 (2) of the Act the consulting parties must in the envisaged consultation engage in a meaningful joint consensus seeking process and attempt to reach consensus on appropriate measures to avoid the dismissal; to minimise the number of dismissals; to change the timing of the dismissals and to mitigate the adverse effects of the dismissals. In terms of section 189 (3) of the Act the employer must issue a notice inviting the other consulting party to consult with it and disclose in writing all relevant information including, but not limited to the reasons for

21 the proposed dismissals; the alternatives that the employer considered proposing to avoid the dismissals, and the reasons for rejecting each of the alternatives; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the time when, or period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer the employees likely to be dismissed; the possibility of the future re employment of the employees who are dismissed; the number of employees employed by the employer; and the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months. [62] The applicants contend that there was no genuine consultation on retrenchment because the company failed to give proper written notification of the need to restructure the finance department. However, on the evidence of the shopsteward, Motudi, and that of Baloyi, both management and the union realized that something had to be done about the huge losses incurred by the company. A transformation forum was set in place to discuss ways in which to minimize job losses. Both the respondent and the applicants were represented on the transformation forum. The transformation forum recommended that employees be given an option to apply for voluntary severance packages and early enhanced retirement in an effort to minimize job losses. The minutes of meetings held under the umbrella of the transformation forum show that these options were offered to the employees but an insufficient number of

22 employees took up the offer. [63] The minutes of the meeting refer to attempts made by the employer to engage with the union on the retrenchment process. However, Motudi confirmed that the union was not prepared to discuss the retrenchment process at the meetings convened by the respondent as the union felt that these forums, which were described as regional forums, were not the proper place to discuss the retrenchment process, which was a national priority. On the evidence it seems that none of the meetings convened under the banner of the transformation forum were sanctioned by the union to discuss the retrenchment process as it was not considered to be the proper forum for discussing retrenchment. The union sent a letter requesting to meet with senior management but this was not granted because the representatives elected by the employer were given a mandate by senior management to negotiate with the employee s representatives. [64] According to Motudi, the union raised other objections to the restructuring process. The union insisted on compliance with a three months advance written notification by the employer that it was contemplating retrenchment even though it conceded that in exceptional circumstances this requirement could be waived. The company was experiencing a financial crisis, which required urgent and immediate attention. It was under strict time limits to implement a turnaround strategy within a period of eight months or face the risk of closing its doors. [65] Motudi described himself as the link between the employer and the employees. He was involved in meetings held under the umbrella of the transformation forum and he also participated in the national shop stewards meeting held on 13 January He confirmed that the employees were made aware of all developments relating to the restructuring process including the offer of voluntary severance packages and early enhanced retirement. [66] Motudi made it abundantly clear in his evidence that the union was justified in refusing to discuss retrenchment at meetings convened by the employer. His feigned expression of shock on learning that retrenchment letters were issued to employees in the finance department smacks of insincerity. [67] Matudi forgot to mention that in his capacity as a shop steward, he was an

23 important link between management and the union as well. His evidence that the union was not aware of developments around restructuring cannot possibly be true. [68 I find on a balance of probabilities that the union was responsible for frustrating the restructuring process to the detriment of its members, the employees. In Numsa and Others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR 570 (LC) The court held that where the consultation process has been frustrated it is not for the party who caused the frustration to complain that there was non compliance with the consultation process. The employer could not allow the union s recalcitrant attitude to interfere with the employer s entitlement to retrench in the interests of the company. (See Chester Wholesale Meats (Pty) Ltd v National Industrial Worker Union of SA and Others [2006] 27 ILJ (LAC)). [69] I am satisfied that the employer made genuine attempts to engage with the union on the retrenchment process. However, it could not allow the union to delay the process of restructuring indefinitely. The union overplayed its hand and must now accept the consequences of its ill advised decision to unnecessarily delay the consultation process. In light of the aforesaid, I believe there was substantial compliance with the provision of Section 189 of the Act by the employer. [70] I am therefore satisfied, that in the circumstances the retrenchment of the employees was procedurally fair. [71] In the circumstances I make the following order: 67.1The dismissal of the employees by the employer is found to be both substantively and procedurally fair. 67.2In the premises the applicant s claim falls to be dismissed with costs.

24 MAYET AJ JUDGE OF THE LABOUR COURT OF SOUTH AFRICA FOR THE APPLICANT: M.M. BALOYI ATTORNEYS FOR THE RESPONDENT: RANAMANE PHUNGO INCORPORATED DATE OF HEARING: 06 AUGUST 2007 DATE OF JUDGMENT: 13 SEPTEMBER 2007