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[2021] ZASCA 23
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South African Navy and Another v Tebeila Institute of Leadership, Education, Governance and Training (252/2019) [2021] ZASCA 23; [2021] 6 BLLR 555 (SCA); (2021) 42 ILJ 1431 (SCA) (19 March 2021)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA JUDGMENT
Reportable
Case
no: 252/2019
In
the matter between:
SOUTH AFRICAN
NAVY FIRST
APPELLANT
MINISTER
OF DEFENCE
SECOND APPELLANT
and
TEBEILA INSTITUTE OF
LEADERSHIP, EDUCATION, GOVERNANCE AND
TRAINING RESPONDENT
Neutral
citation:
South African Navy and Another v Tebeila Institute
of Leadership, Education, Governance and Training
(252/2019)
[2021] ZASCA 23
(19 March 2021)
Coram:
PETSE AP, MBHA, MBATHA JJA and GOOSEN and UNTERHALTER AJJA
Heard
:
26 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 19 March 2021.
Summary:
Age requirements for recruitment to the defence force –
equality challenge in terms of s 9 of the Constitution –
whether
age requirements constituted unfair discrimination –
challenge under s 29(1)
(b)
of the Constitution – right
to further education and the obligations of the State – held
that age requirements do not
constitute unfair discrimination –
held further that no case made out to establish infringement of s
29(1)
(b)
of the Constitution – appeal upheld.
ORDER
On
appeal
from:
The High Court, Limpopo
Division, Polokwane (Mokgohloa DJP, sitting as court of first
instance):
1
The appeal is reinstated.
2
The appeal is upheld.
3
The order of the court below is set aside and replaced with the
following order:
The
application is dismissed.
JUDGMENT
Unterhalter
AJA (Petse AP, Mbha
and Mbatha
JJA, and Goosen AJA
concurring)
Introduction
[1]
The first appellant, the South African Navy (the Navy),
has
implemented the military skills development system (MSDS). The MSDS
is used by the South African National Defence Force (the
defence
force), of which the Navy forms part, to select persons who enlist in
the defence force, to undergo training. They are
then deployed for a
period of two years, so as to determine whether such recruits are
suitable for continued service, in the regular
force or in the
reserves.
[2]
The respondent, the Tebeila Institute of Leadership,
Education,
Governance and Training (Tebeila), challenged the age requirements
for admission to the MSDS. Tebeila is an organisation
that works to
ensure access to further education, post-matric, for persons from
poor communities. Under the MSDS, applicants, who
would serve in a
combat role, are required to be between 18 and 22 years of age,
having completed Grade 12, with mathematics and
physical science, and
with at least level 3 in both subjects. Graduate applicants are
required to be between 18 and 26 years of
age, having completed Grade
12 and holding a degree, national diploma or a trade test certificate
in mechanical, marine or electrical
engineering (the age
requirements).
[3]
Tebeila challenged the age requirements, not on the basis
of the
educational requirements, but rather on the basis of the stipulations
as to age eligibility. It did so in the interests
of those excluded
by the age requirements from applying for admission to the MSDS, and
also in the public interest. Tebeila’s
challenge was based on
three grounds. First, Tebeila contended that the age requirements
constitute unfair discrimination contrary
to s 9 of the Constitution.
Second, the age requirements fail to accord to post-matric students
the right to further education,
which the State, through reasonable
measures, must make progressively available, as required by s
29(1)
(b)
of the Constitution. Third, the Navy has failed to
respect, protect, promote and fulfil the rights in the Bill of Rights
in terms
of s 7(2) of the Constitution by stipulating for the age
requirements.
[4]
In the high court, Tebeila’s challenge prevailed.
Mokgohloa DJP
held that the age requirements constitute unfair discrimination. The
high court found that the educational history
of our country has left
most young people in the position where they battle to finish their
degrees or diplomas between the ages
of 18 and 26. The age
requirements deprive these persons of the opportunity to be trained
as soldiers or military personnel under
the MSDS. That is unfair
discrimination. The right to equality cannot be sacrificed, so it was
reasoned, upon the altar of the
recruitment objectives of the Navy.
The high court declared the Navy’s policy concerning the
admission of applicants under
the MSDS to be invalid. The declaration
of invalidity was suspended for 12 months to enable the Navy to
revise its policy. With
the leave of the court below, the Navy and
the second appellant, the Minister of Defence, appeal to this court.
The appellants
failed to file the record timeously, and the appeal
lapsed. The appellants sought condonation and explained their delay.
The delay
occasioned Tebeila no prejudice, and we granted condonation
and reinstated the appeal.
Unfair discrimination
[5]
The
appellants contended that the age requirements do not constitute
unfair discrimination. Relying upon the markers of unfair
discrimination enunciated in
Harksen
,
[1]
the appellants submitted that persons above the age of 26, rendered
ineligible for admission to the MSDS by reason of the age
requirements, are not a vulnerable class; the MSDS forms part of a
recruitment policy that seeks to ensure age- appropriate recruitment
to the defence force; and the class affected by the age requirements
have suffered no impairment to their dignity. No infringement
of s 9
of the Constitution, as a result, was proven.
[6]
Nor, urged the appellants, do the age requirements constitute
measures taken by the Navy that retard the State’s duty
progressively to make further education available and accessible.
The
MSDS has recruited significant numbers of members who have
successfully completed their training. That fulfils the duty resting
upon the State in terms of s 29(1)
(b)
of the Constitution.
Furthermore, the MSDS does not give rise to any failure by the State
to respect, protect, promote or fulfil
the rights in the Bill of
Rights, as required by s 7(2) of the Constitution.
[7]
Tebeila contended otherwise.
It
submitted that the age
requirements are arbitrary and irrational because they
exclude the
majority of young people, that is, those aged 26 to 35. This class of
young people should not be denied their right
to equality and further
education simply on the basis of their age. Persons falling within
this class may enjoy the attributes
necessary to serve in the
military. Their wholesale exclusion constitutes unfair
discrimination. Furthermore, to deny young persons
over the age of 26
the opportunity to enter the military exacerbates the problem of
youth unemployment in the country. The age
requirements, it was
argued, were thus properly determined by the high court to constitute
unfair discrimination. For similar reasons,
Tebeila maintained that
the MSDS violates the right to further education protected in terms
of s 29(1)
(b)
of the Constitution. In consequence, the
MSDS failed to comply with the State’s duties under s 7(2) of
the Constitution.
[8]
The
parties, rightly, located their submissions in the durable framework
set out in
Harksen
[2]
for the consideration of
challenges
brought under s 9 of the Constitution. Section 9(3) provides that the
State may not unfairly discriminate against anyone
on one or more
grounds, including specified grounds.
Among the
specified grounds in s 9(3) is age. Following
Harksen,
if the
differentiation that is challenged is on a specified ground, then
discrimination will have been established. Despite criticism
of this
somewhat mechanical approach to the identification of discrimination,
Harksen
remains
the authoritative interpretation of s 9(3). Since
the
age
requirements
specify
an
age
limit
to
determine
eligibility
for
participation in the MSDS, that limit amounts to discrimination
because it excludes persons from participation in the MSDS on
the
grounds of age, a specified ground. In particular, the challenge
brought by Tebeila was made on the basis of the upper age
limits
specified by the
policy of
the Navy to be considered for participation in the MSDS.
[9]
Once discrimination has been established, following
Harksen,
the
question is whether such discrimination is unfair. Section 9(5) of
the Constitution directs that discrimination on a specified
ground is
unfair, unless it is established that the discrimination is fair.
This constitutional presumption requires the appellants
to satisfy us
that the age requirements are fair. If that burden of persuasion is
not met by the appellants, then the age requirements
constitute
unfair discrimination in terms of s 9(3).
[10]
Harksen
makes it plain that the constitutional prohibition of
unfair discrimination is a protection against impairments of human
dignity,
judged on the basis of the impact of the discriminatory
measure upon the complainant or, as in this case, the group that the
complainant
represents. That impact is assessed on the basis of the
following: the position in society of those impacted by the
discriminatory
measure and whether they have suffered past patterns
of discrimination; the power that has been exercised and the purpose
served
thereby; and the effect of the discriminatory measure upon the
rights and interests of those affected. These considerations are
not
necessarily exhaustive of the enquiry.
[11]
The appellants set out in some detail the basis upon which the age
requirements came
to form an integral part of the MSDS. Section 200
of the Constitution requires that the defence force must be a
disciplined military
force that defends and protects the Republic. To
do this, s 63(4) of the Defence Act 42 of 2002 requires that the
training of members
of the defence force is an essential part of the
force’s preparation.
[12]
The Department of Defence has adopted a policy, entitled ‘the
policy for the
implementation of inherent rank-age requirements for
the South African Defence Force’ (the policy). The policy,
though expressed
in sometimes arcane language, explains that the
defence force requires young, fit and healthy members who are able to
adapt to
change. The defence force runs the risk of rank-age
imbalance. The essential difficulty is that the age profile of
members of the
defence force, within and between the different ranks,
exceeds international norms. This can hamper the readiness and
capability
of the defence force. It can also give rise to the
difficulty that older soldiers holding more junior ranks are
commanded by younger
soldiers holding more senior ranks. Put simply,
too many members of the defence force within the ranks, and
especially within the
junior ranks, are, on average, too old.
Recruitment policy must therefore seek to redress this imbalance.
[13]
The MSDS is the primary programme used to recruit regular and reserve
forces. Those
enlisted undergo training and serve for a period of two
years. Thereafter, members may serve in the reserve or in the regular
force,
if vacancies arise. The MSDS imposes the age requirements so
as to train recruits who are young, fit and healthy. Such recruits
may be deployed with less concern for family commitments. The age
requirements also permit of recruitment that allows for the
correction of the sub-optimal age profile of the junior ranks.
[14]
This corrective function appears to have met with some success. In
2002, before the
implementation of the MSDS, only 8% of regular
privates and equivalent ranks were aged between 18 and 24 years,
compared with 57%
in 2011.
[15]
Tebeila, in its replying affidavit, accepted that it is a legitimate
purpose for
the defence force to recruit persons into the defence
force who are young, fit and healthy. Tebeila contended however that
these
attributes are also to be found in people up to the age of 35,
and, to exclude them from consideration solely on the grounds that
they are older than 26 years is arbitrary and unfair. The MSDS
exacerbates the problem of youth unemployment because it denies
young
people over the age of 26, who are studying for a degree or a
diploma, the opportunity to pursue a military career, to which
they
may well be suited. Tebeila also asserted that in South Africa people
aged 16-35 are considered young.
[16]
The analysis must commence with the consideration of those persons
aged 27 to 35
who are fit and healthy, wish to be considered for the
MSDS to pursue a military career, but are excluded by reason of their
age.
The essence of the challenge is that the imposition of the age
requirements renders the opportunity to be considered for recruitment
through the MSDS under-inclusive because people who are still young
are thereby excluded.
[17]
While it might be considered arbitrary to exclude some young people
from the valuable
opportunity of applying for admission to the
defence force, this position fails adequately to appreciate the
rationale for the
age requirements.
[18]
First, the constitutional duty of the defence force is to defend and
protect the
Republic. To do so, it must be combat ready. That
requires, as the deponent to the answering affidavit, Major General
Sitshongave,
explained, soldiers who may readily be deployed. Older
recruits have young families, with attendant responsibilities. They
are
more area bound and less amenable to lengthy, stressful,
deployments away from home. This consideration supports the age
requirements.
[19]
Second, the challenge fails properly to reckon with the age profile
of the ranks
making up the defence force. The MSDS is the programme
through which the defence force recruits people, trains and deploys
them,
and ultimately selects soldiers for the reserves and the
regular force. The older persons are when first recruited, the
shorter
will be the time that they may serve as soldiers who are
combat ready – the core competence that the defence force must
have.
That was precisely the problem that the MSDS was intended to
address. Too many serving soldiers in the junior ranks were simply
getting too old, which compromised the capacity of the defence force
to protect and defend. Younger recruits were the answer to
this
problem. So too, the requirement that the command structure of the
ranks should be age appropriate was a further reason for
the
development and implementation of the MSDS.
[20]
Tebeila sought to answer these justifications for the age
requirements by recourse
to an argument of individual assessment.
Rather than impose the age requirements, the Navy should assess
whether applicants over
the age of 26 have the attributes necessary
to meet the needs of the defence force. If an applicant is fit,
unattached, willing
to be subjected to unpredictable deployment, and
otherwise qualified, why should the fact that they are aged 27-35
preclude them
from consideration?
[21]
This argument is unavailing. First, the age requirements are
predicated upon a reasonable
delineation of the attributes that
generally correlate with age. Whenever a maximum threshold is
specified, persons may be excluded
who, with some relaxation of the
threshold, would be well qualified to enjoy a benefit. In this case,
there may be persons older
than 26 who would make good soldiers.
This, however, does not render the threshold arbitrary or unfair. As
long as the age requirements
are imposed for reasons that bear
rational scrutiny, then the requirements are not arbitrary or unfair
merely because there are
persons of merit who are excluded. This case
is a good illustration of this principle. The attributes of fitness
for combat, unencumbered
relationships, and a willingness to be
subject to a command structure are meaningfully correlated with age.
Where precisely the
threshold should be set may be a matter for
debate. But the specification of an age requirement so as to attract
applicants most
likely to have the attributes required is not unfair
to those excluded, because it is a delineation predicated upon a
rational
judgment as to where the best applicants, in aggregate, are
most likely to be found.
[22]
Second, the age requirements do not stand impugned as unfair
discrimination simply
because it is possible to imagine other
thresholds or other means by which the functional requirements of
recruitment for the defence
force could be met. That the maximum age
might have been set at 25 or 27, does not render the specified
maximum of 26 unfair. The
implementation of a policy always requires
that a limit is set. As long as the limit falls within the range of
reasoned substantiation,
it is not unfair. Nor is unfair
discrimination determined by conceiving of another way in which
recruitment for the defence force
could take place. That Tebeila
would determine recruitment policy in a different and more expansive
way is irrelevant to the question
as to whether the age requirements
are unfair. The proper enquiry concerns whether the age requirements
that have been decided
upon withstand scrutiny under the
constitutional standard of unfair discrimination.
[23]
I am, thus, of the view that the age requirements, forming part of
the MSDS, have
a rational basis that serves the functional
requirements of the defence force so as to permit the force to carry
out its constitutional
mandate.
[24]
Tebeila also contended that the age requirements constituted unfair
discrimination
because these requirements exclude a significant
number of young people from applying for employment with the defence
force. The
age requirements, as a result, serve to limit the impact
of the MSDS in reducing youth unemployment.
[25]
I recognise that youth unemployment is one of the country’s
gravest problems.
In a youthful country, unemployment denies to many
the multi-faceted goods that come with a job, both material and by
way of personal
fulfilment. However, the age requirements make no
difference to the number of young people recruited to the defence
force. The
age requirements simply limit which young people secure
the employment opportunities created by recruitment under the MSDS,
on
Tebeila’s premise that persons aged 27-35 are young. On the
evidence before us, there is no basis to contend that more young
people would be employed if the age requirements were eliminated or
changed. And because the defence force can only accommodate
a
predetermined number of recruits for each intake, extending the age
to 35, as Tebeila would have it, would have no impact whatsoever
on
the country's youth unemployment problem.
[26]
Tebeila’s case amounted, then, to its central claim that it is
unfair discrimination
to exclude a class of young people from the
prospective benefit of recruitment into the defence force. However,
Tebeila made out
no case that those excluded from recruitment under
the MSDS have in the past suffered from patterns of discrimination.
Whether
or not young people have been historically disadvantaged by
limited opportunities to gain employment was not Tebeila’s
case.
Nor was there any showing that young people aged 27-35 are
especially vulnerable as a class, whether in comparison to older age
groups or whether in comparison to young people aged 18-26. Tebeila’s
complaint was simply that the opportunities created
by the MSDS for
youth employment should be more widely available to an excluded class
of young people.
[27]
That complaint does not amount to unfair discrimination. Recruitment
under the MSDS
provides employment for young people. That this
benefit is limited by the age requirements to a restricted class of
young people
has been adequately explained. Those excluded, on the
evidence before us, have not been made especially vulnerable to past
discriminatory
practices. Nor is their exclusion actuated by any
assault upon their dignity. The age requirements are not imposed to
demean the
respect that is due to young people aged 27-35. Rather,
the age requirements ration a limited and valuable resource,
recruitment
into the defence force, for reasons of functional
efficacy. The exclusion of young people aged 27-35 from recruitment
into the
defence force is based upon a rational calculus as the
attributes of value to the defence force that are more likely to be
found
in one class of young people over another. Aging brings both
benefits and detriments. That the defence force considers certain
attributes of one class of young people to have special utility for
the purpose of recruitment entails no judgment that demeans
another
class of young people. As long as there is a proper basis for
distinguishing these two classes in relation to the recruitment
needs
of the defence force (as I have found), the age requirements do not
constitute unfair discrimination.
[28]
There remains one further issue that warrants mention. The high court
found that
the Navy’s admission policy amounted to unfair
discrimination on the grounds of age. The consideration that weighed
with
the court was that the educational history of our country meant
that most of the youth between the ages of 18 and 26 have not yet
graduated, battle to complete their degrees by the age of 26, and yet
these are the very young people who need to be trained to
become
soldiers. The high court reasoned that rights of young people who
would become soldiers cannot be sacrificed ‘at the
altar of the
respondent’s (the Navy’s) HR concepts’.
[29]
This line of reasoning cannot assist Tebeila. First, there is no
evidence before
us that appreciable numbers of young people are not
able to complete their degrees or diplomas by the age of 26. Second,
as I have
observed, Tebeila made no challenge to the educational
requirements of the MSDS, nor did it posit any relationship between
the
educational and age requirements of the MSDS as the basis of its
case that the Navy’s recruitment amounted to unfair
discrimination.
The high court’s decision rested upon a case
that was not made. Tebeila has no entitlement to sustain that holding
on appeal.
[30]
For these reasons, although the age requirements constitute
discrimination under
s 9 of the Constitution, the appellants have
established that the age requirements do not amount to unfair
discrimination, and
hence, the right to equality has not been
infringed.
The right to further
education
[31]
Tebeila contended that the age requirements denied potential recruits
above the age
of 26 the right to further education, as provided for
in s 29(1)
(b)
of the Constitution. Section 29(1)
(b)
accords everyone the right to further education, which the State,
through reasonable measures, must make progressively available
and
accessible.
[32]
Recruitment into the defence force provides an opportunity for
training, and that
training may include study at institutions of
tertiary education. I shall assume, without deciding, that military
training within
or under the auspices of the defence force
constitutes further education within the remit of s 29(1)
(b)
.
The right to further education, in terms of s 29(1)
(b)
, is a
claim against the State to make further education, through reasonable
measures, progressively available and accessible. In
order to sustain
such a challenge, a complainant must set out what the State has done
and failed to do in the measures it has taken
to make further
education available and accessible.
[33]
Tebeila has not made out such a challenge. Even on the premise,
adopted in its favour,
that recruitment into the defence force forms
part of what the State does to provide further education, Tebeila’s
papers
do not explain what the State has done to provide further
education in furtherance of its constitutional obligations under s
29(1)
(b)
. Nor does Tebeila make any attempt to show what
opportunities for further education the State has provided to young
people excluded
from recruitment into the defence force by the age
requirements. Absent some such showing by Tebeila, it is impossible
to say in
what way, if any, exclusion from the training opportunities
of recruitment into the defence force constitutes a derogation by the
State of its duty to make further education progressively available
and accessible. Tebeila’s challenge cannot prevail.
Section 7(2)
[34]
Tebeila also advanced the contention that the appellants had failed
to uphold their
obligation to respect, protect, promote and fulfil
the rights in the Bill of Rights, as required by s 7(2) of the
Constitution.
[35]
Counsel for Tebeila accepted that if its challenges under ss 9 and
29(1)
(b)
did not prevail, then it had no independent case to
advance under s 7(2). Since, for the reasons given, these two
challenges cannot
be sustained, Tebeila’s s 7(2) case must also
fail.
Conclusion
[36]
For these reasons, the appeal succeeds. The appellants, rightly,
recognised that
this litigation was initiated and pursued in the
public interest. As a result, no costs are sought by the appellants,
and no adverse
cost order is made against Tebeila. The following
order is made:
1
The appeal is reinstated. 2 The appeal is upheld.
3
The order of the court below is set aside and replaced with an order
as follows:
The
application is dismissed.
D
UNTERHALTER
ACTING
JUDGE OF APPEAL
Appearances:
For
appellants: B Makola SC (with him O
Motlhasedi, M Lengane and F Mnisi)
Instructed
by:
The
State Attorney, Polokwane The State Attorney, Bloemfontein
For
respondent: S Tebeila (with him TA Makola and S
Makoasha) Instructed by:
Maponya
Attorneys, Polokwane Fixane Attorneys, Bloenfontein
[1]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998
(1) SA 300
(CC) para 51
[2]
Paragraph 53.