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[2017] ZAGPPHC 144
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Association of Test Publishers of South Africa v President of the Republic of South Africa and Others (89564/14) [2017] ZAGPPHC 144; [2017] 8 BLLR 850 (GP); (2017) 38 ILJ 2253 (GP) (3 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
CASE
NO:
89564/14
3/5/2017
Reportable:
No
Of
interest to other judges: No
In
the matter between:
ASSOCIATION
OF TEST PUBLISHERS
OF
APPLICANT
SOUTH
AFRICA
and
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
1
ST
RESPONDENT
THE
MINISTER OF
LABOUR
2
ND
RESPONDENT
THE
HEALTH PROFESSIONALS COUNCIL OF
SOUTH
AFRICA
3
RD
RESPONDENT
JUDGMENT
MALI J
[1]
This is an application for an order declaring Proclamation 50
published in Government Gazette 37871 null and void and of no
force
and effect.
[2]
The applicant is a voluntary association, which is a non-profit
organisation representing providers of tests and assessment
tools and
services related to education, employment, certification
I
licensing or clinical issues. It further describes itself as
representing the South African stakeholder group that specializes in
developing, importing, validating, providing training in and
distributing tests and assessments used in a variety of contexts in
South Africa. According to the applicant, its membership comprises of
the most prominent and reputable test publishers in South
Africa.
[3]
On 16 January 2014 the Employment Equity Amendment Act
("EE
Amendment Act''
was passed by Parliament and published in the
Government Gazette 37238. Section 30 of the Employment Equity Act
("EE
Acf') read as follows:
"this Act is
called the Employment Equity Amendment Act 2013, and comes into
operation on
a
date
proclaimed by the President by proclamation in the
Gazette".
[4]
On 25 July 2014 Proclamation, 50 duly signed by the President of the
Republic of South Africa
("The President'),
the first
respondent and the Minister of Labour ("The
Minister''
the
second respondent was published in the Government Gazette 37871. The
President determined 1 August 2014 as the date of operation
on which
the EE Amendment Act would come into operation.
[5]
Prior the amendment by the EE Amendment Act, referred to above,
section 8 of the EE read as follows:
"8
Psychological
testing and other similar assessments
Psychological testing
and other similar assessments of an employee are prohibited unless
the test or assessment being used-
(a)
has been scientifically shown to be valid and
reliable;
(b)
can be applied fairly to all employees;
(c)
is not biased against any employee or group."
[6]
From 1 August 2014 Section 4 of the EE Amendment Act read as follows:
"8
Psychological testing and other similar
assessments
Psychological testing
and other similar assessments of an employee are prohibited unless
the test or assessment being used-
(a)
has been scientifically shown to be valid and
reliable;
(b)
can be applied fairly to all employees;
.
(c)
is not biased against any employee or group;
and
(d)
has been certified by the Health
Professions Council of South Africa established by section
2
of
the
Health Professions Act, 1974 (Act 56 of
1974), or any other body which may
be
authorised by law to certify those
tests
or
assessments.
[Para. (d) added by s.
4 of Act 47 of 2013 (wef 1 August 2014).]"
[7]
The EE Amendment Act accordingly introduced section 8 (d) as an
additional requirement in that psychological testing and other
similar assessment be certified by the third respondent.
ISSUE
[8]
The issue to be determined is whether Proclamation 50 published in
Government Gazette 37871 on 25 July 2014
("Proclamation 50j
is null and void and of no force or effect to the extent that it
brings into operation the amendment of section 8 of EE in terms
of
section 4 of the EE Amendment Act.
LAW
[9]
It is firmly established that the exercise of all public power must
comply with the Constitution, which is the supreme law,
and the
doctrine of legality which is part of that law. This principle was
entrenched in the case of
Pharmaceutical
Manufacturers of South Africa In Re Exparte President of the Republic
of South Africa
[1]
.
In that matter the President by Proclamation in the Government
Gazette had brought into operation the South African Medicines
and
Medical Devices Regulatory Authority Act 132 of 1998. The act in
question was brought without any schedules to the Act or regulations
having been made. The court held:
"It is
a
requirement of the rule of law that the
exercise of public power by the Executive and other functionaries
should not be arbitrary.
Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in effect
arbitrary and inconsistent
with this requirement. It follows that in
order to pass constitutional scrutiny the exercise of public power by
the Executive and
other functionaries must, at least comply with this
requirement. If it does not, it falls short of the standards demanded
by our
Constitution for such action.
[10]
The court
inter alia
stated the following:
"The decision to
bring the Act into
force
before
the regulatory framework was in place, viewed objectively, is
explicable only on the grounds of error. There is no dispute
about
this..."
[11]
In determining the rationality of the Executive's action the test is
also emphasised in
President
of the Republic of South Africa and others v South African Dental
Association of South Africa and another
[2]
wherein the following is held:
''This Court must
therefore determine whether the President's decision is rationally
related to the purpose for which the power
was given. This is an
objective enquiry, unaffected by any good intentions the President
may have had.
"
MOTIVATION
FOR THE EE AMENDMENT ACT
[12]
The purpose of the President' power to bring the EE Amendment Act
into operation cannot be understated. The importance and
the intended
good in bringing the EE Amendment Act into operation cannot be
explained more than it is, as will be shown below.
[13]
It is common cause that during the process of developing the EE
Amendment Act in question the third respondent made a submission
to
the Department of Labour Parliamentary Committee on Labour. In the
said submission the third respondent recorded in paragraph
2 as
follows:
"development of
psychological testing in South Africa developed in an environment
that was characterized by the unequal distribution
of resources based
on racial categories (black, coloured, Indian and white).
Consequently, psychological testing was used
as
a
tool to perpetuate the colonial and
apartheid myths of white supremacy and black inferiority. The advent
of
a
democratic
dispensation saw the
transformation
of psychology to
a
profession
that started to be
responsive
to the socio- cultural needs of South African people".
[14]
Second and third respondents allude to the importance of EE Amendment
Act. In the affidavit of the second respondent the significance
of
the EE Amendment Act is emphasised. It is stated that the EE
Amendment Act is concerned with workplace advancement of employees
from designated groups and the equal and non discriminatory
treatment of all employees.
[15]
It is further stated that from historical experience is that certain
psychological tests applied were not properly and scientifically
adapted to the cultural diversity of South Africa, tended to unfairly
discriminate against certain groups or individuals and/or
were
applied to discriminate in this way. This had the effect that certain
groups or individuals were unfairly excluded from employment
by the
use of psychological tests and other similar assessments. Third
respondent recognised the question of test classification
to be
controversial as far back as April 2006.
ARGUMENT
[16]
On behalf of the applicant it is submitted that the President's
decision to put the EE Amendment Act into operation was irrational
and failed the constitutional requirement of legality in that the
introduction of section 8 (d) is premature. The reason behind
the
submission is that there is no framework in place regulating the
certification of psychological testing and other similar assessments
by the third respondent. There is no test in place that has been
certified as a psychological test. Accordingly there is therefore
nothing to be certified by the third respondent.
[17]
The applicant is offended by the coming into operation of the
amendment in that the introductory paragraph of section 8 of
the EEA
refers to "psychological testing and other similar assessments"
and the fact that no mention was made in the
proposed new section
8(d) of the EE Amendment Act as to the type of tests that needed to
be certified by the third respondent.
[18]
The applicant further complains that there is no regulatory structure
in place publishing the objective criteria for the classification
of
assessment as psychological assessments or as
"similar
assessments". The board of the third respondent does not
make a distinction between psychological and non-psychological tests.
The complaint is further that there are no published objective
standards or criteria rationally determined against which tests
are
rated for certification.
[19]
Prior to the amendment of the EE Act by the EE Amendment Act, the
third respondent classified psychological tests and not psychometric
tests. Furthermore third respondent neither
certified
psychological or psychometric tests. In certain instances third
respondent issued a certificate confirming
classification
of a
psychological test. (own emphasis).
[20]
It is further submitted that amendment had the effect of immediately
prohibiting the use of tests which were then being used
without first
having established procedures and criteria to obtain·
certification of such tests. What further exacerbates
issues is that
the introduction of section 8 (d) has the effect that in any
psychological test or other similar assessment that
has not been
certified by the third respondent, the use of that test or assessment
is prohibited.
[21]
The oral submission on behalf of the applicant is that there is
nobody or institution in place to conduct the certification
of tests.
The only certification available or being conducted is certification
for classification purposes which is done by Psychometrics
Committee
of the Professional Board. By implication the third respondent is not
empowered to certify the Health Act, it is clothed
with the authority
to certify the Equity Act. Respondent's counsel objected to this
submission because it is not in the founding
affidavit. I fully agree
with respondent the applicant should stand by their submissions in
the founding affidavit.
[22]
It is not in dispute that before the promulgation of section 50, on 8
August 2013, the applicant made a submission to the Parliamentary
Portfolio Committee for Labour. The purpose of the said submission
was to raise concerns that no mention was made in the proposed
new
section 8 (d) of the EEA as to the type of tests that needed to be
certified by third respondent. It would seem that no satisfactory
consideration answer was given to the said comments.
[23]
Submissions on behalf of the respondents are that there is an
enabling framework for the application of the amendment, therefore
the decision of the President is not irrational. The system used by
the third respondent prior the amendment is still applicable.
There
is a Policy in place consisting of the existing material applied by
the third respondent known to everybody, there should
arise no
confusion.
[24]
Regarding the above submissions respondents referred to the case of
Natal
Joint Municipal Pension Fund and Endumeni Municipality
("Endumeni")
[3]
.
In
Endumeni the court is enjoined to look at the existing material
known. The material known in this matter does not support the
purpose
for which the policy referred to by the respondent. Firstly the
applicant's complaint is wider than requiring a policy
document. It
concerns the entire framework that encapsulates relevant regulations.
Secondly even if the said policy bears any relevance
, same deals
with classification of tests and not certification of psychological
test. Certification is a gravamen of this matter.
[25]
The respondents did not address the question of distinction between
psychological and non-psychological tests. Without fear
of
repetition, it would seem that the framework required is very nuanced
and comprehensive in that what is needed
inter alia,
is the
publication of information in regard to the information that needs to
be included as evidence for the certification of tests
by test
developers or publishers and timelines regarding the process of
certification of tests submitted for certification.
[26]
According to the applicant on 20 November 2014 third respondent
confirmed that its professional board was still in the process
of
developing new regulations relating to the development, control and
classification of Psychological tests. It was stated that
the said
regulations were in draft form and should be finalised in 2015. It
has been submitted on behalf of the respondents that
the making of
new regulations is intended to improve the current regulatory
framework. I cannot accept this contention, the current
regulatory
framework or policy does not provide for certification of
Psychological tests. In that event there is nothing to improve
if
there has been nothing established from the onset.
[27]
It is conceded by the respondents that other similar assessments
which are not psychological assessments are not covered by
the Policy
in place. There is therefore no infrastructure and neither framework
for same. In essence the respondents concedes the
invalidity of the
promulgation in question in respect of similar assessments.
EXISTENCE
OF FRAMEWORK FOR CERTIFICATION OF PSYCHOLOGICAL TESTING
[28]
What remains to be determined is whether there is a framework for
certification of psychological testing. It is apparent from
the
submissions that the policy referred to by the respondents as the
existing material is designed for the classification for
the purpose
of evaluation of psychological testing not for certification of same.
There is no classification leading to certification
of psychological
testing.
[29]
According to the undisputed version of the applicant, the applicant
once resorted to court per case number 12942/09. The issue
pertained
to the lack of clarity in the issued certificate of the third
respondent. The Notice published by the Board of the third
respondent
was declared to be void and of no force and effect. It would seem
that the issue has not yet been resolved. The same
pattern emerges in
the present matter.
[30]
Oral submissions on behalf of the respondents are that the words
"certify"
and "classify'' bear one meaning.
What has always been classified could simply be certified. It
therefore follows that there
is a grapple with the meaning of the two
words,
"certify"
and
"evaluate".
[31]
The EE amendment Act does not make provision for the definition of
the word
"certify".
The Concise Oxford Dictionary
meaning of the word certify is (i) formally attest or confirm,(ii)
officially recognize as possessing
certain qualifications or
meeting certain standards and (iii) officially declare insane.
THESAURUS meaning of the word
"certify"
is (i)
establish reality, (ii) consent, (iii) verify , (iv) prove , (v)
qualify, (vi) make certain, (vii) inform , (vii) confirm
,
(viii)prove true , (ix) guarantee.
[32]
The Concise Oxford Dictionary meaning of
" evaluate"
is
(i) form an idea of an amount, (ii) number or value of assets , (iii)
Mathematics find a numerical expression or equivalent for
( an
equation , formula, or function).Thesaurus meaning of
evaluate
is
(i) rationalize,(ii) enumerate, (iii) measure, (iv) estimate, (v)
criticize, (vi) price.
[33]
The traditional approach, the golden rule, to interpreting a document
is that ascertaining the intention of the parties to
a contract the
words used in it must be given their ordinary grammatical meaning.
The exercise is conducted with application of
the rules of grammar,
dictionary meaning assigned to them in previous judicial decisions
unless such words lack clarity or are
incapable of bearing more than
one meaning; in which event the evidence of surrounding
circumstances/ background facts should be
considered.
[34]
The word used in the EE Amendment Act is clearly
"certify".
It is apparent from the dictionary meaning as indicated above
that it does not mean the same thing as
"classify".
Furthermore reading the EE Amendment Act as a whole and the
circumstances attendant upon its coming into existence, the apparent
purpose to which the provision appears ; in the present case even if
more than one meaning was possible the legislature could not
have
intended to use the words classify and certify interchangeable. See
Endumeni above.
[35]
As was earlier indicated, the promulgation of the Act in question
brings into effect the prohibition of the use of tests without
being
certified, resulting into the illegality of uncertified psychological
testing by the third respondent. The purpose for which
the power is
given to the third respondent is certification of psychological
testing and similar assessments; there is no room
for errors and or
mishaps when the issue gets finally addressed. Rationality must
prevail.
[36]
Certification is the highest standard of compliance set in any
environment, it follows that certainty is a non- negotiable.
In
casu
regulatory structure dealing with classification and
certification of psychological tests is of necessity. This is in
order to give
effect to the requirement in the amended Section 8 of
the EE Act that tests and assessments be classified as psychological
tests
and be certified by the third respondent.
[37]
Accordingly, the President's decision was irrational and therefore
invalid.
[38]
In the result the following order is made;
1.
That Proclamation 50 published in Government
Gazette 37871 on 25 July 2014 is null and void and of no force or
effect to the extent
that it brings into operation the amendment of
section 8 of Employment Equity Act, Act 55 of 1998 in terms of
section 4 of the
Employment Equity Amendment Act,
2013, Act 47
of
2013.
2.
That Section 8 of the Employment Equity Act, Act
55 of 1998 as it pertained on 31 July 2014 continued, and continues,
unabated as
from the aforesaid date.
3.
That this order be published by way of one notice
in the Government Gazette, and a notice in each of the Sunday Times,
Rapport and
City Press.
4.
That the respondents are ordered to pays costs of
this application, costs to be paid jointly and severally the one
paying the other
to be absolved. Costs to include the cost of Senior
Counsel.
______________________
N.P.
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
Adv. Maritz SC
Instructed
by:
MACROBERT INC
Counsel
for the 1
ST
& 2
ND
Respondents:
Adv. Maenetje SC
Instructed
by:
THE STATE ATTORNEY
Counsel
for the 3
RD
Respondent:
Adv. Makgalemele
Instructed
by:
GILDENHUYS MALATJI INC
Date
of hearing:
29 & 30 November 2016
Date
of Judgment:
3 May 2017.
[1]
2000 (2) SA 674 (CC).
[2]
CC 201/14 at paragraph 14 page 9
[3]
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) (16 March 2012)