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[2006] ZACC 18
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South African Police Service v Public Servants Association (CCT68/05) [2006] ZACC 18; 2007 (3) SA 521 (CC) ; [2007] 5 BLLR 383 (CC); (2006) 27 ILJ 2241 (CC) (13 October 2006)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 68/05
SOUTH
AFRICAN POLICE SERVICE Applicant
versus
PUBLIC
SERVANTS ASSOCIATION Respondent
Heard
on : 18 May 2006
Decided
on : 13 October 2006
JUDGMENT
SACHS J:
[1] This case started as a dispute over how the word “may”
should be interpreted in a provision in the Police Service
Regulations.
It developed into a wider enquiry on how regulations
should be purposefully and contextually interpreted when they are
designed
to serve diverse purposes in a complex context.
[2] Regulation
24(6) of the regulations for the South African Police Service
(SAPS), promulgated in 2000,
1
reads as follows:
“
(6) If the National
Commissioner raises the salary of a post as provided under
subregulation (5), she or he
may
continue to employ the
incumbent employee in the higher-graded post without advertising the
post if the incumbent-
(a) already performs the duties
of the post;
(b) has received a satisfactory
rating in her or his most recent performance assessment; and
(c) starts employment at the
minimum notch of the higher salary range.” (My emphasis)
The National Police Commissioner (the Commissioner) on the one side,
and the unions representing police officers
2
on the other, found themselves in disagreement on how the
sub-regulation should be understood and applied.
[3] The Commissioner claimed that although sub-regulation (6) vested
a discretion in him when upgrading a post to allow an incumbent
to
remain undisturbed and enjoy a higher salary without competing for
the newly regraded post, it did not oblige the Commissioner
to do so
automatically and mechanically. The police unions on the other hand
insisted that the sub-regulation did not give a discretionary
power
to the Commissioner, but rather established that the ordinary
process of filling posts through advertisement was not to be
applied
in situations where an incumbent employee is working satisfactorily
in a post which is upgraded and carries a higher salary.
[4] It appears that disagreement on the issue of interpretation led
to great uncertainty which in turn threatened to have a negative
effect on the efficiency of the SAPS and the morale of its members.
Many incumbents dissatisfied at not receiving automatic promotion
when their posts were upgraded, resorted to arbitration.
[5] In October 2002 the Commissioner launched proceedings in the
Pretoria High Court for a declarator that on a proper interpretation
of regulation 24(6) he was entitled either to advertise the post
which he had decided to regrade to a higher grade, or to continue
to
employ the incumbent employee in the newly higher-graded post
without advertisement. He sought a further declarator to the
effect
that such incumbent was not entitled to automatic promotion. A
supporting affidavit
3
stated that the declarator would resolve real disputes as to the
meaning of regulation 24 and prevent further disputes arising.
It
averred further that the Commissioner was expending huge amounts of
manpower and money in dealing with such disputes. For
their part,
two of the police unions opposed the application, alleging that the
declarators should be refused because, properly
interpreted, the
regulation provided for automatic promotion of an officer, certified
as efficient, whose post was upgraded.
[6] The
High Court granted the application
4
and issued the declarators as requested by the Commissioner. It
held that within the framework of the regulations, promotions
are
made only after the post in question is advertised; if the
legislation intended that retention of an incumbent in a post with
an increased salary was in each instance to occur without the
process of advertising, the use of the word “may” by the drafter
was irreconcilable with that intent. According to the High Court
the word “may” in the context in which it was used was
unambiguous
and had to be given its ordinary meaning, which implied
a discretionary power. The judgment emphasised that “there is a
powerful
and legitimate public interest in an efficient and
effective police service” and that a procedure which would oblige
the Commissioner
to elevate the status of a police officer without
transparency and openness is inimical to that interest.
[7] The
High Court accordingly granted an order declaring:
“
1. THAT the applicant is
vested with a discretion in terms of regulation 24(6) of Regulation
389, the Regulations for the South
African Police Service, published
in the Government Gazette No 21088 on 14 April 2000 either:-
(a) to advertise the post which
he has decided to re-grade to a higher grade, or;
(b) to continue to employ the
incumbent employee in the newly higher graded post without
advertising the post, provided that the
requirements of reg
24(6)(a), (b) and (c) are satisfied.
2. THAT the incumbent of a post
is not entitled to an automatic promotion to a more senior rank upon
the decision of the applicant
in terms of reg 24(6) to continue to
employ the incumbent in a post which the applicant has decided to
re-grade to a higher grade.
3. THAT the costs of this
application be borne by the applicant.”
[8] The
Public Servants Association (the union) appealed to the Supreme
Court of Appeal, which divided on the matter.
5
Three judges
6
stated that if the High Court interpretation of the regulation were
to be upheld the effect would be that an incumbent of the upgraded
post, who happened to be coping with all the duties of the ‘new’
post and doing so satisfactorily, would lose his or her employment
if somebody else were appointed to it. This would infringe the
incumbent’s right to fair labour practices and the right not
to be
unfairly dismissed. This consequence, the majority of the Supreme
Court of Appeal held, would be manifestly inequitable
particularly
seeing that in sub-regulation (7),
7
and elsewhere in the regulations, the Labour Relations Act
8
and collective agreements between the service and its employees are
acknowledged and, by inference, respected. The majority accordingly
decided that provided the requirements of paras (a) and (b) of
regulation 24(6) are met, the Commissioner is not only empowered
to
retain the incumbent in the upgraded post without advertising it,
but under a duty to do so and to do so at the salary prescribed
by
para (c). In the view of the majority, the application to the High
Court ought to have failed. The order of the High Court
was
accordingly set aside and the application for a declarator was
dismissed.
[9] The
minority in the Supreme Court of Appeal
9
held that upon the upgrading of a post the Commissioner had a
discretion whether to continue to employ the incumbent employee in
the higher-graded post. Should he or she not be employed in the
upgraded post he or she could, in the circumstances mentioned
in
regulation 36(2),
10
without the post being advertised, be appointed to a post similar to
the one that had been filled by him or her, and he or she
could also
be discharged in terms of regulation 45.
11
Although regulation 24(6) did not contain any guidance on how the
Commissioner’s discretion was to be exercised, such guidance
could
be found in regulations which, first, required that the discretion
be exercised with due regard to the requirements of efficient
and
effective service delivery and the provision of appropriate
incentives for employees,
12
and, second, that the discretion be exercised in the light of the
principle that employment practices must ensure employment equity,
fairness, efficiency and the achievement of a representative
service.
13
[10] Being
administrative action, the minority judgment continued, a decision
taken by the Commissioner would in appropriate circumstances
be
reviewable. Furthermore, should the incumbent employee in the
particular circumstances of the case have a legitimate expectation
to be appointed to the higher-graded post, the administrative action
would have to be procedurally fair. Should it not be
administratively
fair it would likewise be reviewable. For these
reasons the minority would have dismissed the appeal.
[11] The
Commissioner has now applied to this Court for leave to appeal
against the whole of the judgment and order of the Supreme
Court of
Appeal. Before it is possible to reach the merits of the
application, however, two anterior questions have to be considered.

The first is whether the issue raised is a constitutional one.
14
The second is whether it is in the interests of justice for leave
to appeal to be granted.
[12] The
matter concerns the capacity of the Commissioner to fulfil
responsibilities entrusted to him by the Constitution.
15
Furthermore, regulation 24(6) was interpreted by the Supreme Court
of Appeal in the light of section 23(1) of the Bill of Rights,
which
guarantees to everyone the right to fair labour practices.
Prominent among these rights is the right not to be unfairly
dismissed. At the heart of the decision being appealed against,
then, is the manner in which the majority and minority in the
Supreme Court of Appeal differed over how appropriately to balance
two constitutional requirements, namely, capacity-building of
the
SAPS, on the one hand, and respecting job security, on the other.
Two constitutional issues are engaged, and the matter is
clearly a
constitutional one.
[13] In
support of his claim that it is in the interests of justice that the
appeal be heard, the Commissioner relied on the following:
There
is self-evidently a reasonable prospect of the appeal succeeding
given the divergent judicial views.
The
issue was controversial and litigious. Many decisions had been
taken by the Commissioner upon the authority of the initial
judgment of the High Court that might have to be reversed.
Accordingly there was a dire need for clarity and finality on the
proper interpretation of regulation 24(6), a result which was not
satisfactorily achieved by the division of judicial opinion.
The
proper interpretation and application in practice of regulation
24(6) extended beyond the interests of the parties to this
particular dispute and affected all members of the SAPS.
The
matter was self-evidently one of substance. The practice of the
Commissioner was in jeopardy and the problems of re-orienting
the
administrative apparatus would be considerable.
The
interpretation of regulation 24(6) directly impacted on the ability
of the Commissioner, under section 207 of the Constitution,
to
properly exercise control and manage the South African Police
Services; more especially the optimal deployment of personnel,
restructuring of an administrative apparatus to deliver a
meaningful service, and the appropriate latitude to do so
efficiently.
These are serious considerations. It is in the interests of justice
for this Court to consider and resolve the questions raised
by them.
Leave to appeal should accordingly be granted.
Interpreting the word “may”
[14] Considerable attention in this matter has been given to the way
in which the word “may” should be interpreted. The High
Court
and the minority in the Supreme Court of Appeal both indicated that
the use of the word “may” clearly showed an intention
to grant a
discretion to the Commissioner; it was manifestly permissive,
enabling the Commissioner to appoint an incumbent to the
upgraded
position without advertising it, but not obliging him to do so.
[15] The majority in the Supreme Court of Appeal, however, pointed
out that the word “may” could simply signify an authorisation
to
exercise a power coupled with a duty to use it if the requisite
circumstances were present. This latter possibility gained
support
from the decision of this Court in
Van Rooyen.
16
In that matter a provision of the
Magistrates Act 90 of 1993
17
stated that the Minister of Justice “may” confirm a
recommendation by the Magistrates Commission that a magistrate be
suspended
in certain circumstances. The Court stated that if this
meant that the Minister had a discretion to confirm a recommendation
by
the Commission that a magistrate be suspended, or to decline to
do so and instead impose lesser penalties on the magistrate
concerned,
the vesting of such powers in the Minister would be
inconsistent with judicial independence. Chaskalson CJ stated:
“
[T]he first question to
consider is whether it is possible to read the Act and the
regulations in a way that would be consistent
with judicial
independence . . . . As far as the Act is concerned, if “may”
in [the]
section 13(3)(aA)
is read as conferring a power on the
Minister coupled with a duty to use it, this would require the
Minister to refer the Commission’s
recommendation to Parliament,
and deny him any discretion not to do so . . . . In my view this is
the constitutional construction
to be given to the
section 13
(3)(aA).”
18
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18
[16]
Van Rooyen
indicates, therefore, that the word “may”
may be construed in one of two ways: either to give a complete
discretion to the
Commissioner to advertise or not, or simply to
give authorisation to the Commissioner to upgrade together with the
duty to appoint
the incumbent to the upgraded post without
advertisement.
19
The contextual scene
[17] Since grammar and dictionary meanings are merely principal
(initial) tools rather than determinative tyrants, I examine the
context in which the word “may” is used. The importance of
context in statutory interpretation was underlined by Schreiner
JA
in
Jaga v Dönges,
N.O. and Another
20
as follows:
“
Certainly no less important
than the oft repeated statement that the words and expressions used
in a statute must be interpreted
according to their ordinary meaning
is the statement that they must be interpreted in the light of their
context. But it may be
useful to stress two points in relation to
the application of this principle. The first is that “the
context”, as here used,
is not limited to the language of the rest
of the statute regarded as throwing light of a dictionary kind on
the part to be interpreted.
Often of more importance is the matter
of the statute, its apparent scope and purpose, and, within limits,
its background. The
second point is that the approach to the work
of interpreting may be along either of two lines. Either one may
split the inquiry
into two parts and concentrate, in the first
instance, on finding out whether the language to be interpreted has
or appears to
have one clear ordinary meaning, confining a
consideration of the context only to cases where the language
appears to admit of
more than one meaning; or one may from the
beginning consider the context and the language to be interpreted
together.”
[18] Schreiner JA went on to point out that whatever approach is
adopted, the court must be alert to two risks. The first is that
the context may receive an exaggerated importance so as to strain
the language used. The second is “the risk of verbalism and
consequent failure to discover the intention of the law-giver”.
21
He emphasised that “the legitimate field of interpretation should
not be restricted as a result of excessive peering at the
language
to be interpreted without sufficient attention to the contextual
scene”.
22
[19] It is necessary to add that the contextual scene has an even
deeper significance in our constitutional democracy. All law
must
conform to the Constitution and be interpreted and applied within
its normative framework.
23
The Constitution itself must be understood as responding to our
painful history and facilitating the transformation of our society
so as to heal the divisions of the past, lay the foundations for a
democratic and open society, improve the quality of life for
all and
build a united and democratic South Africa.
24
Account must be paid to the structure and design of the
Constitution, the role that different organs of government and law
enforcement
must play and the value system articulated by section 1
of the Constitution and the Bill of Rights.
[20] Interpreting statutes within the context of the Constitution
will not require the distortion of language so as to extract
meaning
beyond that which the words can reasonably bear.
25
It does, however, require that the language used be interpreted as
far as possible, and without undue strain, so as to favour
compliance with the Constitution. This in turn will often
necessitate close attention to the socio-economic and institutional
context in which a provision under examination functions. In
addition it will be important to pay attention to the specific
factual
context that triggers the problem requiring solution.
The
constitutional context
[21] A
complicating matter in the present case is that regulation 26(4) has
to be read in the context of not one but three different
constitutional imperatives. The first is to enable the Commissioner
effectively to carry out his or her specially identified

constitutional mandate. It is to be noted that the Commissioner
gets particular constitutional recognition,
26
something not accorded to the soldier who heads the defence force,
or the head of the intelligence services.
27
The Constitution clearly envisages an important and active
decisional role for the Commissioner, and regulation 24(6) must be
read in the light of this factor.
[22] At the same time, however, the Constitution declares that
everyone is entitled to fair labour practices.
28
Inasmuch as the decisions of the Commissioner affect the employment
of the persons whose work he manages, he is obliged not to
act
unfairly. Regulation 26(4) must accordingly be construed so as to
promote respect for fair labour practices.
[23] A third dimension must also be borne in mind. The Constitution
envisages the achievement of equality in a society still disfigured
by grave imbalances related to race and gender. These imbalances
are reflected in the SAPS itself. Representativity is especially
important in a service that has to provide security to, and have a
close connection with, all members of all communities.
The
statutory context
[24] The
Minister is obliged to determine a job evaluation system or systems
that must be utilised as well as a range of job weights
from the
evaluation system for each salary range in a salary scale.
29
The Commissioner is thereafter empowered to evaluate or re-evaluate
any job in the police service.
30
Regulation 24 as a whole is concerned with the consequences of the
application of an evaluation process.
31
The factual context
[25] The
evidence shows that the Act and the regulations were made in order
to authorise and systematise the restructuring and the
re-orientation of SAPS in the new constitutional order brought about
in the first place by the interim Constitution. The deponent
for
the Commissioner says in this regard:
“
The democratisation of South
Africa in 1994 brought about a completely new dispensation in
respect of the manner in which manpower
in the then South African
Police would be managed. Not only had it become necessary to
amalgamate all the various police agencies
into the new South
African Police Service, but it had also become essential to
introduce a new manpower management policy that
would be uniformly
fair and acceptable, and which would reflect the demographic
distribution of the South African population.”
[26] The
South African Police as it existed in the pre-constitutional order
had no mechanism for the systematic, continuous and
regular
evaluation of posts and their re-grading from time to time. Posts
were regraded on an
ad hoc
basis. The new staffing
management policy had to deal with this and did so by providing a
detailed evaluation mechanism with an
indication of how the
consequences of evaluation are to be managed.
[27] The
staffing management system had also to concern itself with
promotions. In the pre-constitutional order, the South African
Police had a
“
policy of promoting by
class, [that is] in seniority in accordance with the year during
which each rank group had joined the South
African Police or in
accordance with the year during which each rank group had completed
officers training. This meant in practice
that a group of inductees
would progress in what can best be described as blocks.”
To
correct this problem, an interim promotion policy was put in place
by SAPS as early as 1 September 1994.
32
The promotion policy sets out extensively the pre-requisites that
must be satisfied before a member of SAPS in one rank is eligible
for promotion to another, criteria for promotion, as well as the
process of promotion including the application by and evaluation
of
candidates.
[28] The
difficulties surrounding the filling of upgraded posts began to be
felt most acutely during the period 2000 – 2001 when
1333 vacant
posts of superintendent were filled by the application of the
interim promotion policy.
33
A large number of these advertised posts had been upgraded from
that of captain to that of superintendent and were being occupied
by
SAPS members who held the rank of captain. Despite this, none of
the posts for superintendent were filled without them being
advertised. All the posts were advertised. Some of the captains
who were the incumbents of the upgraded superintendents’ posts
and
who had continued to occupy these posts even after they were
upgraded, were promoted to those posts, while many were not.
This
resulted in a large number of grievances by those captains who had
not been promoted to the superintendent posts they had
occupied.
The Commissioner concedes that many of these grievances proceeded to
arbitration with awards being made against the
Commissioner with the
result that most of the captains were ultimately promoted to the
rank of superintendent.
[29] The Commissioner decided to adopt a different approach when,
after the new superintendents had been appointed, 3356 vacant
posts
of captain had to be filled. Because of the difficulties
encountered during the superintendent promotions, the Commissioner
decided not to advertise upgraded posts in relation to which the
work was already being done by an incumbent but to promote that
incumbent as if he or she was found to be suitable. When more posts
were advertised in late 2001, it was decided not to fill upgraded
posts at all. The filling of upgraded posts was suspended in 2002.
It is therefore not surprising that the interpretation of
a
regulation concerned with the filling of posts upgraded consequent
to an evaluation, became controversial.
Risk
of retrenchment
[30] During the course of argument counsel for both sides vigorously
debated the question of whether the reading favoured by the
Commissioner would place incumbents of upgraded posts who were not
successful after advertisement, in danger of retrenchment, and
whether such retrenchment would signify unfair labour practices.
Counsel for the Commissioner acknowledged during argument that
there
are indeed risks of job losses but given the absence of information
on the record he could provide no further assistance
to the Court.
Whatever the position, the Commissioner is obliged to exercise his
powers under regulation 24(6) in a manner which
does not involve
violation of the right of incumbents not to be subjected to unfair
labour practices. The regulation must accordingly
be interpreted
with this in mind.
Reconciling
the competing considerations
[31] It is evident that there are a number of constitutional,
statutory and factual considerations which may be in tension with
each other. In this respect it is salutary to consider the approach
of this Court in
Port Elizabeth Municipality
34
to the question of how to respond to questions raised when
rights compete with each other. In that matter the rights of owners
of land clashed with the rights of unlawful occupiers not to be
arbitrarily deprived of a home. The Court said:
“
The judicial function in
these circumstances is not to establish a hierarchical arrangement
between the different interests involved,
privileging in an abstract
and mechanical way the rights of ownership over the right not to be
dispossessed of a home, or
vice versa
. Rather, it is to
balance out and reconcile the opposed claims in as just a manner as
possible, taking account of all the interests
involved and the
specific factors relevant in each particular case.”
In the
present matter, too, an attempt should be made to balance out and
harmonise as far as possible the competing considerations
involved.
[32] In
summary, the key factors are the following:
SAPS
is involved in a major process of restructuring aimed at giving the
service greater efficiency and ensuring proper remuneration
of its
members on the basis of job evaluation and performance.
The
commissioner has a key role in directing this process.
Transparency
in career advancement ordinarily requires advertising of posts and
open procedures.
The
specific purpose of the regulation is not to restructure the police
force or to promote affirmative action but to ensure that
posts are
properly evaluated, so that those who hold them are paid in
accordance with the work that they do.
A
real risk exists that an incumbent of a post that is upgraded and
advertised could end up without a proper job even though he
or she
is performing in a satisfactory manner.
[33] It
follows from above that the regulation must be read in such a way as
best to harmonise two major considerations that could
collide with
each other. The first is the need to give the Commissioner the
necessary flexibility to strengthen the leadership
capacity of the
service in a transparent manner.
35
The second is the requirement that incumbents whose work is
satisfactory should not be subjected to the anxiety of possibly
losing
their jobs simply because their posts are being upgraded.
[34] In
my view, then, the regulations can and should be read in a way that
neither produces the rigidity of outcome that would
flow from the
view of the majority in the Supreme Court of Appeal, nor carries the
risk of consequent redundancy, implicit in the
minority approach.
It is indeed possible to harmonise flexibility of application with
respect for appropriate job security. This
can be achieved by
acknowledging that the Commissioner does have a discretion whether
to advertise or not, but that the discretion
must in each case be
exercised in such a way as to not lead to the loss of employment by
a satisfactory incumbent as a consequence
of the upgrading of his or
her post. Nor should incumbents who are threatened with
retrenchment because their posts have been
upgraded, be obliged on a
case by case basis to invoke administrative or labour law mechanisms
to secure their positions in the
service. Since retrenchment
utilising the provisions of regulation 24(6) would be manifestly
unfair, the regulation should be
interpreted as a matter of law as
requiring the Commissioner to exercise his discretion in a manner
which does not lead to job
loss.
36
An incumbent whose work is satisfactory should not be subjected to
the anxiety of losing employment simply because the work he
or she
is doing is considered to be worthy of an upgrade and better pay.
[35] It
follows, then, that subject to the qualification mentioned below,
“may” in the context of this case does not mean “must”.
The
Commissioner has a discretion and is accordingly entitled to make a
declaration that although he is authorised without advertising
to
promote an incumbent whose job is upgraded, he is not obliged to do
so. The declaration should, however, be qualified by a
further
declaration that the Commissioner’s discretion must be exercised
in a manner which does not place an incumbent who is
performing
satisfactorily in jeopardy of losing his or her job in the service
simply because his or her post is being upgraded.
[36] In
the result, leave to appeal must be granted and the appeal must
succeed in the terms mentioned above.
[37] The
Commissioner was ordered to pay the union’s costs in the High
Court and the Supreme Court of Appeal. He did not ask
for costs in
this Court. The union contributed helpful arguments of a
substantive nature in all three courts. It has been partially
successful in that it has secured an interpretation that protected
its members from the threat of any retrenchment flowing from
the
upgrading of the post in terms of regulation 24. In these
circumstances it is appropriate that the costs orders in the High
Court and the Supreme Court of Appeal should stand, and that the
Commissioner bear the costs of the union incurred in this Court.
The
order
1. The
application for leave to appeal is granted.
2. The appeal is upheld to the extent indicated below and the order
of the Supreme Court of Appeal is replaced with the following
order-
(1) It is declared that:
(a) The applicant is vested
with a discretion in terms of regulation 24(6) of Regulation 389,
the Regulations for South African
Police Service, published in the
Government Gazette No 21088 on 14 April 2000, either:-
(i) to advertise the post which
he or she has decided to regrade to a higher grade, or;
(ii) to continue to employ the
incumbent employee in the newly higher graded post without
advertising the post, provided that the
requirements of regulation
24(6)(a), (b) and (c) are satisfied.
(b) The incumbent of a post is
not entitled to an automatic promotion to a post upgraded by the
applicant in terms of regulation
24(6).
(c) The Commissioner’s
discretion with regard to upgrading of posts in terms of regulation
24(6) must be exercised in a manner
which does not result in
retrenchment of an incumbent employee who is not promoted to the
upgraded post.
The costs of this application
in the High Court, the Supreme Court of Appeal and this Court shall
be borne by the applicant, the
costs to include the costs of two
counsel.
Madala J concurs in the judgment of Sachs J.
YACOOB J:
Introduction
The
applicant, the National Commissioner (the Commissioner) of the
South African Police Service (SAPS) requires leave to appeal
in an
effort to challenge the correctness of the interpretation by the
Supreme Court of Appeal of an employment regulation
1
made in terms of the Police Service Act (the Act).
2
The regulation concerned
3
focuses on the management of a process of job evaluation within
SAPS. It prescribes the way in which SAPS must respond if an
evaluation of a post reveals that it is undergraded.
The
crisp question that needs to be answered is whether the
Commissioner, having upgraded a post found to be undergraded by an
evaluation, is obliged by the regulation to “promote” the
incumbent to that upgraded post without advertising it, regardless
of the circumstances, and provided only that she already performs
the duties of the post and has received a satisfactory rating
in
the most recent performance assessment. The Commissioner contends
that a discretion whether to appoint the incumbent to the
upgraded
post is vested in his office by the regulation in the circumstances
just described, while some of the trade unions adopt
the view that
no such discretion is conferred upon the Commissioner who is
obliged by the legislation to appoint the incumbent
to the upgraded
post.
I
agree with the conclusions in the judgment of my colleague Sachs J
that the regulation gives the Commissioner a discretion whether
to
allow the incumbent of the upgraded post to continue in that post,
and that the incumbent concerned cannot be dismissed by
reason only
of the circumstance that he was not promoted to an upgraded post in
which she had been performing satisfactorily
before the upgrade had
occurred. I feel it is necessary to elaborate on:
the
circumstances in which the case was brought and prosecuted before
the High Court;
why,
I consider that the conclusion of the Supreme Court of Appeal that
the Commissioner has no discretion is wrong; and
the
basis for the interpretation of the Regulation in so far as that
interpretation has implications for the power of the Commissioner
to dismiss an incumbent.
I
begin by relating some of the circumstances in which the High Court
proceedings were brought and continued. The judgment then
summarises the judgments which have gone before this one and says
why, in my view, the majority in the Supreme Court of Appeal
was
not correct in its finding that the Commissioner was obliged to
“promote” an incumbent to an upgraded post in which he
had
performed satisfactorily before the upgrade. Finally, the question
of the correct interpretation of the regulation in relation
to the
dismissal of an incumbent who is neither appointed nor promoted to
the upgraded post will be considered.
The
application to the High Court materialised because there were many
disputes in relation to the interpretation and application
of the
regulation concerned. “Huge” sums of money were expended by
the Commissioner in the process of resolving these disputes.
None
of the grievances that resulted from the application of the
regulation were successfully conciliated and all of them were
brought to arbitration. The South African Police Union (SAPU)
brought an application for an interdict aimed at preventing SAPS
from filling any of the upgraded posts but that was dismissed.
SAPU instituted grievance proceedings on behalf of and in relation
to two SAPS officers. In the course of the arbitration
proceedings, however, it was agreed between SAPU and SAPS that the

arbitration proceedings would be adjourned pending the final
determination of an application to the High Court aimed at
determining
the proper meaning to be ascribed to the regulation in
question. It would seem that the proceedings were then adjourned
and
the application launched.
The
application in the High Court was brought pursuant to this
agreement between SAPU and SAPS. SAPU was joined as the first
respondent while the Public Servants Union (PSA) and the Police and
Prisons Civil Rights Union (POPCRU) were the two other trade
unions
joined in the High Court as the second and third respondents. The
PSA had represented a police officer in a grievance
process in a
case which also involved the correct construction of the regulation
and had at the time of the institution of the
proceedings in the
High Court, been referred to arbitration under the relevant law.
Three officers of SAPS were joined as fourth,
fifth and sixth
respondents respectively. These respondents too had brought
proceedings against SAPS arising out of the application
of the
regulation; the arbitrator had concluded that the respondents were
entitled to relief of “automatic promotion”; that
award was the
subject of a review at the instance of the Commissioner at the time
when the case was brought in the High Court.
The
Commissioner withdrew the application against the fourth to sixth
respondents before the date of argument in the High Court.
SAPU
and PSA opposed the proceedings and contended that the Commissioner
was obliged to appoint a person who had been performing
satisfactorily in a post that had been upgraded to the upgraded
post. Significantly, POPCRU did not oppose the proceedings in
the
High Court. It wrote to the applicant undertaking to abide the
decision of the court and making it plain that it agreed
with the
Commissioner’s interpretation of the regulation. In other words
POPCRU supported the interpretation of the regulation
that would
give the Commissioner a discretion; an interpretation that would
not oblige the Commissioner to appoint someone who
was performing
satisfactorily in a post to that post, when it was later upgraded.
The significance lies in the fact that the
unions themselves were
divided on the correct interpretation of the regulation: SAPU and
PSA disagreed with the Commissioner’s
interpretation while POPCRU
agreed. SAPU did not appeal to the Supreme Court of Appeal against
the High Court judgment presumably
because of the agreement between
the Commissioner and itself on the basis of which the proceedings
in the High Court had been
instituted.
Before
examining the judgments of the High Court
4
and the Supreme Court of Appeal,
5
it must be said that judgments of the various courts differed. The
High Court found in favour of the Commissioner holding that
the
Commissioner did have a discretion. The Supreme Court of Appeal
was not unanimous. The majority judgment
6
concluded that the High Court was wrong and that the Commissioner
had been given no discretion by the regulation. The minority
judgment
7
would have upheld the decision of the High Court on the basis of
its conclusion that the regulation did give the Commissioner
a
discretion. The judgments of the High Court and the Supreme Court
of Appeal will be better understood if some of the regulations
are
first set out. The regulation in question is regulation 24(6) but
regulations 24(4), 24(5), 24(6) and (7) must be reproduced.
Regulation
24 is headed “GRADING AND REMUNERATION”. Regulations 24(4),
24(5), 24(6) and 24(7) provide:
“
(4) If the job weight
demonstrates that a filled post is overgraded or undergraded, the
National Commissioner must either effect
changes to the work
organisation or regrade the post according to the job weight and the
relevant collective agreements as provided
for in subregulations
(5), (6) and (7).
(5) The National Commissioner
may increase the salary of a post to a higher salary range in order
to accord with the job weight,
if -
(a) the job weight as measured
by the evaluation system indicates that the post was graded
incorrectly; and
(b) the budget of the Service
and the medium-term expenditure framework provide sufficient funds.
(6) If the National
Commissioner raises the salary of a post as provided under
subregulation (5), she or he may continue to employ
the incumbent
employee in the higher-graded post without advertising the post if
the incumbent -
(a) already perfoms the duties
of the post;
(b) has received a
satisfactory rating in her or his most recent performance
assessment; and
(c) starts employment at the
minimum notch of the higher salary range.
(7) If the National
Commissioner determines that the salary range of an occupied
post exceeds the range
indicated by a job weight, she or he must -
(a) if possible -
(i) redesign the job to equate
with the post grade; or
(ii) transfer the incumbent to
another post on the same salary range; and
abide by relevant legislation
and collective agreements.”
The
High Court judgment
The
reasoning of the High Court may be summarised as follows.
a) The judge referred to the principles pertaining to the
appointment, promotion and termination of service of members of
SAPS
8
and pointed out that
“transparent, open and competitive norms are intended to govern
the recruitment, appointment and promotion of candidates in the
SAPS”;
9
and that promotions and appointments in the public service are
“deliberate, conscious and public events.”
10
b) The court reasoned that “[t]he retention, with increased
benefits, of an incumbent on a newly upgraded post has as its
consequence
the same substantive outcome as a promotion.”
11
c) The judgment emphasised that “there is a powerful and
legitimate public interest in an efficient and effective police
service”
12
and that a procedure which would oblige the Commissioner to elevate
the status of a police officer without transparency and openness
is
inimical to that interest.
d) Finally the court found that the use of the word “may” is
inconsistent with an intention to remove the Commissioner’s
discretion.
Accordingly,
the High Court granted the order in the terms sought by the
applicant:
“
1. That the Applicant is
vested with a discretion in terms of regulation 24(6) of
Regulation 389, the
Regulations for the South African Police Service,
published in the Government
Gazette No 21088 on 14 April 2000 either –
(a) to advertise the post which
he has decided to regrade to a higher grade, or,
(b) to continue to employ the
incumbent employee in the newly higher graded post without
advertising the post, provided that the
requirements of reg
24(6)(a), (b) and (c) are satisfied.
2. That the incumbent of a
post is not entitled to an automatic promotion to a
more senior rank upon the
decision of the Applicant in terms of reg 24(6) to
continue to employ the
incumbent in a post which the applicant has decided
to regrade to a higher grade.
3. That the costs of this
application be borne by the Applicant.”
The
majority judgment
The
majority judgment of the Supreme Court of Appeal held against the
Commissioner on two bases.
13
The first was that “the Commissioner’s interpretation could
lead to job termination and the drafter could never have intended
that consequence.” Secondly the judgment concluded that
regulation 24(6) is, on a proper construction not merely permissive
but also obligatory.
In developing the first line of reasoning described in the previous
paragraph, the President of that Court on behalf of the majority
emphasised that if the former incumbent was not appointed to an
upgraded post which the Commissioner decided to advertise, the
incumbent “would” be left without a job but “it might be
possible” to avoid this “drastic result” if the employee
could be transferred to an existing vacant post.
14
The Court reasoned that vacant posts are more likely to be
available at the lower end of the employment scale but that
incorrect
grading “is, as a matter of probability, going to occur
in the case of higher and more specialised posts.”
15
The implication of this reasoning is that the majority judgment
adjudicated the appeal on the basis that vacant posts were not
likely to be available in the upper echelons of the police service.
The President found that dismissal would be inevitable absent
an
alternative post, and doubted whether a dismissal “merely because
the post was regraded” could be fair.
16
It was on this basis that the majority concluded that the drafter
did not intend that upgrading would expose an incumbent who
is
satisfactorily performing the functions to dismissal.
17
The approach of the majority to the interpretation of the section
may be summarised in this way. The starting point is that
the word
“may” in sub-regulation (5) is “inapposite” and really
means “must” because, if I understand the reasoning,
once the
Commissioner has decided to upgrade the post in terms of
sub-regulation (5) he has to increase the incumbent’s salary.
18
Next, after pointing out that sub-regulation (7) ensures the
retention of the employee within SAPS if the post is found to have
been too highly graded, the majority judgment expresses the view
that “there is every reason to require retention in the case
of a
satisfactorily performing employee who has been significantly
underpaid.”
19
The third reason given for the interpretation excluding a
discretion is that the regulations contain no guidelines for how

the discretion was to be exercised. Finally the President for the
majority reasoned that the “stark unfairness” in the difference
between the overpaid undergraded employee whose services would be
retained and that of the underpaid employee who performs

satisfactorily “would” suffer dismissal if somebody else was
appointed to that post, would infringe the incumbent’s right
to a
fair labour practice and the right not to be unfairly dismissed.
20
The
minority judgment
The
first respect in which the minority in the Supreme Court of Appeal
disagreed with the majority judgment is in its conclusion
that the
word “may” in sub-regulation (5) has a permissive meaning
because the permission to increase the salary does not
in its
context refer to what would happen after an upgrade but is the
authorisation to upgrade.
21
The minority then emphasises that the language used in the
regulation consistently makes clear what the Commissioner was
obliged
to do. There is accordingly no reason why the word “may”
was used if the intention was to say that the Commissioner was

obliged to employ the incumbent in the circumstances. The question
for the minority was therefore whether there were indications
that
the drafter should be understood to have used the word “may” to
mean “must”, having regard to the scope and objects
of the
regulations.
22
The
minority also took issue with the majority conclusion that the
incumbent would be dismissed. Instead the minority took the
view
that the employee does not lose his job as a result of the
abolition of the post, that the Commissioner has a discretion
to
discharge a person if the post is abolished, and that the decision
of the Commissioner is subject to review.
23
The advertising of an upgraded post is not necessarily unfair says
the minority judgment, and poses the example of the situation
where
only some of a number of undergraded posts are upgraded. The
judgment points out that it will in this event be fair to
allow all
the people in undergraded posts to compete for the few upgraded
ones.
24
The minority emphasises that there is a difference between the
situation that arises when a post is upgraded and the situation
that prevails when a post is downgraded. It would accordingly be
fallacious to equate the two.
25
Finally the judge for the minority emphasises that guidance for
the exercise of a regulation 24(6) discretion is to be found
in the
regulation
26
which requires that a discretion be exercised with due regard to
efficient and effective service delivery and in another regulation
27
which mandates the discretion to be exercised so as to ensure
employment equity, fairness, efficiency and the achievement of
a
representative Service.
28
The decisions of the Commissioner would in any event be
reviewable.
29
The minority accordingly agreed with the applicant and the High
Court.
Evaluation
of the majority judgment
It
is appropriate to evaluate the majority judgment of the Supreme
Court of Appeal against the background of the judgments of
both the
minority in that court and the High Court before entering upon a
discussion of the meaning of the regulation in its
context. I
start with that part of the judgment which reaches the conclusion
that the Commissioner’s interpretation could
lead to job
termination and the drafter could never have intended that
consequence.
30
I could find no basis for the conclusion that incorrect grading
would probably occur in the case of higher and more specialised
posts nor for the statement that vacant posts are more likely to be
available at the lower end of the employment scale. There
is also
no basis for the conclusion that dismissal is likely as a
consequence of the upgrading of a post.
The
Supreme Court of Appeal also placed considerable reliance on its
analysis that the conferring of the discretion on the Commissioner
would result in the incumbent who is satisfactorily performing the
functions being exposed to dismissal as a result of the upgrade.

It is vital that legislative provisions do not unfairly expose
members of the public service to dismissal. But whether this
is so
depends on the proper meaning to be given to the regulation in its
context. I have already said that I agree with the
conclusion of
my colleague Sachs J in this respect. I show later in this
judgment that the regulation, properly construed does
not permit
dismissal merely because the incumbent who had performed
satisfactorily in a post before it was upgraded was not appointed
or promoted to that post.
I
now discuss the majority judgment’s interpretation of the
regulation.
31
Each of the bases relied upon is discussed in turn. The first
reason given is that the word “may” is not used throughout
the
section in a consistently permissive sense alone but also has an
obligatory content. The starting point of this line of
reasoning
is that regulation 24(5) compels the exercise of the power
conferred by it despite the fact that it uses the permissive
“may”.
It
is apparent and the majority of the Supreme Court of Appeal is
right that regulation 24(4) gives the Commissioner the choice
whether to regrade the post or to re-organise the work to cater for
incorrect grading. It is also true that regulations 24(5)
and
24(6) are concerned with the upgrading of a post and its
consequences if the decision is to upgrade the post. Regulation
24(5) does not in specific terms authorise the Commissioner to
upgrade the post. What it does though, is to authorise the

Commissioner to increase the salary. But the salary is tied to a
particular post or grade. The Commissioner has no power to

increase the salary in relation to a particular post or grade. In
the circumstances, the only way in which he can increase the
salary
of a post is to upgrade it. Once he has upgraded the post and
thereby rendered it subject to an increased salary, regulation
24(6) comes into the picture and, depending on whether the High
Court or the Supreme Court of Appeal is right, either permits
or
obliges the Commissioner to appoint the incumbent to that post.
It
is in this context that the reasoning of the majority which says
that the Commissioner is obliged to increase the salary of
the
incumbent after he has upgraded the post must be considered. In
the first place the Commissioner in terms of regulation
24(5) does
not increase the salary of the incumbent. He merely increases the
salary of the post. But he can do this only by
upgrading the post.
The incumbent is appointed to the post only after it is upgraded,
that is after the salary attaching to
the post has become higher
consequent upon the upgrading. To say in the circumstances, that
the Commissioner is obliged to increase
the incumbent’s salary if
he has been appointed to the post is to put the cart before the
horse. It is artificial to suggest
that the word “may” in
regulation 24(5) connotes a duty. I would therefore support the
judgment of the minority in this
respect.
The
second reason advanced for the interpretation is that “there is
every reason to require retention in the case of a satisfactorily
performing employee who has been significantly underpaid” as
there is to require the retention of the employee as provided
for
in regulation 24(7). Regulation 24(7) may be repeated for
convenience:
“
If the National Commissioner
determines that the salary range of an occupied post exceeds the
range indicated by a job weight, she
or he must -
(a) if possible -
(i) redesign the job to
equate with the post grade; or
(ii) transfer the incumbent
to another post on the same salary
range; and
abide by relevant legislation
and collective agreements.”
The
first problem with this reasoning is that there is no basis upon
which to draw the conclusion that the incumbent of the upgraded
post had been “
significantly
underpaid”. The second
difficulty with this approach, is that, as was pointed out by the
minority, it is quite impossible
to equate the consequences of
upgrading with the consequences of downgrading. The judgment of
the majority is not helpful in
this regard. For apart from simply
stating that there is “every reason to require retention” in
both upgrade and downgrade
situations, no particulars of the
reasons are given. I cannot think of any reason to equate the
consequences of upgrading and
downgrading.
The
next reason advanced is that the regulations, according to the
majority, contain no guidelines for how the discretion is to
be
exercised. It will be remembered that the minority disputed this
finding, holding that guidance for the exercise of the discretion
whether to have the incumbent of the upgraded post continue in that
post or to advertise the post is to be found in certain

regulations. Two regulations were referred to. Regulation 22(1)
which provides:
“
Remuneration in the Service
must aim, within fiscal constraints, to support —
(a) efficient and effective
service delivery and provide appropriate incentives for employees;
and
(b) equal pay for work of equal
value and other labour standards.”
And
regulation 34 which provides:
“
Employment practices must
ensure employment equity, fairness, efficiency and the achievement
of a representative Service. Affirmative
action must be used to
speed up the creation of a representative and equitable Service and
to give practical support to those who
have been historically
disadvantaged by unfair discrimination to enable them to fulfill
their maximum potential. Employment practices
must maximize
flexibility, minimize administrative burdens on both employer and
employee, and generally prevent waste and inefficiency.
Having
regard to
section
6
(1)
of the Constitution
and without derogating from the provisions of
section
6
(3)(a) of the Constitution, lack of fluency in an
official language shall not be a consideration in making a
recommendation on the
suitability of a candidate for appointment or
promotion, where such fluency is not an inherent requirement of the
job for which
such candidate has applied.” (My emphasis)
I
agree with the minority to the extent that these regulations do
provide some guidance but, as I will show later, the discretion
must
be exercised in the context of the regulations, the Act and the
Constitution.
The
majority makes no effort to address the assertion by the minority
that the regulations concerned do provide guidance for the
exercise
of the discretion. In my view there is no acceptable answer to
this position of the minority.
The
final aspect of the reasoning for the majority in relation to
interpretation is that a permissive construction of the regulation
would infringe the incumbent’s right to fair labour practice and
the right not to be unfairly dismissed. I interpret the regulation
and its implications for dismissal later in this judgment.
Interpretation
SAPU
relies on the case of
Schwartz
32
in support of the proposition that the use of the word “may”
does not invariably confer a discretion. The Court said the

following in that case:
“
A statutory enactment
conferring a power in permissive language may nevertheless have to
be construed as making it the duty of the
person or authority in
whom the power is reposed to exercise that power when the conditions
prescribed as justifying its exercise
have been satisfied. Whether
an enactment should be so construed depends on,
inter alia
,
the language in which it is couched, the context in which it
appears, the general scope and object of the legislation, the nature
of the thing empowered to be done and the person or persons for
whose benefit the power is to be exercised.”
33
SAPU
contends that Regulation 24(6) is a provision of this kind. It not
only permits the Commissioner to continue to employ the
incumbent
but obliges him to do so provided the conditions are met. In
addition SAPU also relies on the constitutional injunction
to
interpret law so as to promote the spirit, purport and objects of
the Bill of Rights. They contend that an interpretation
of
regulation 24(6) that merely empowers the Commissioner to act and
does not oblige him to do so would result in the regulation
being
inconsistent with the Constitution. The regulation should be
interpreted, so the argument goes, to oblige the Commissioner
to
act. Reliance is also placed on the judgment of this Court in
Van
Rooyen
.
34
In that case the word “may” was interpreted as conferring both
a power and a duty because, if the section were to be interpreted
so as to confer only a power the provision would be inconsistent
with the Constitution. The regulation must be interpreted in
its
constitutional and statutory context.
The
constitutional context
Although
the regulations came into operation
35
at the time when our Constitution was already in force, the Act was
passed as a direct result of the injunctions of the interim
Constitution.
36
The interim Constitution and the Constitution are therefore both
relevant elements of the constitutional context.
The
interim Constitution had two provisions relevant for present
purposes. The first concerned the public service and demanded
that
“
[i]n the filling of any post
in the public service, the qualifications, level of training, merit,
efficiency and suitability of
the persons who qualify for the
appointment, promotion or transfer concerned … shall be taken into
account.”
37
The
second required an Act of Parliament to provide for the
establishment and maintenance of uniform standards regarding,
amongst
other things, recruitment, appointment, promotion and
transfer of members of the police service.
38
The
police service forms part of the public service in South Africa.
The provisions of the Constitution in so far as they concern
the
public service are therefore relevant.
39
The Constitution requires national legislation to regulate the
terms and conditions of employment in the public service and
by
implication in the police service. Because the Constitution places
the public service within the public administration,
40
the basic values and principles governing public administration
41
would also govern the public service including the police service.
In
my view the following principles or values are relevant to the
interpretation of the regulation:
the
promotion and maintenance of a high standard of professional
ethics;
42
the
promotion of efficient, economic and effective use of resources;
43
public
administration must be accountable;
44
the
cultivation of “good human resource management and career
development practices”;
45
and
public
administration and therefore the police service is required to be
broadly representative of the South African people with
employment
and personnel management practices based on “ability,
objectivity, fairness, and the need to redress the imbalances
of
the past”.
46
Moreover
national legislation which includes regulations
47
is required to ensure the promotion of all values and principles.
48
The final matter to which attention must be drawn is that the
Public Service Commission is required by the Constitution to propose
measures to ensure effective and efficient performance within the
public service.
We
also find relevant provisions in the Constitution that concern SAPS
directly. The National Commissioner, appointed by the
President,
49
“must exercise control over and manage the police service.”
50
This general provision is given more flesh in a provision
51
concerned with the responsibilities of the National Commissioner
which was expressly kept alive by the transitional provisions
of
the final Constitution.
52
The Commissioner is specifically made responsible for the
maintenance of an impartial, accountable, transparent and efficient
police service,
53
as well as the recruitment, appointment, promotion and transfer of
all the members of SAPS.
Two
other constitutional provisions which I consider relevant are
contained in the Bill of Rights. The first provides that everyone
has the right to fair labour practices.
54
The second which need not be discussed here is concerned with
equality and expressly authorises legislative and other measures
designed to protect or advance people disadvantaged by unfair
discrimination may be taken in order to promote equality.
55
This is referred to in some circles as the affirmative action
provision. This is the terminology I intend to adopt.
In
summary, it can fairly be said that the Constitution requires a
balanced approach. On the one hand fair labour practices and
affirmative action must be observed in the police service. On the
other hand, it is recognised that effectiveness, efficiency,
high
ethical standards and progressive human resource policies are
crucial. The case must be evaluated in this context.
The
statutory context and the general approach
A
number of statutory provisions must be borne in mind. The Public
Service Act
56
authorises the discharge of an employee but the power must be
exercised “with due observance of the applicable provisions of
the Labour Relations Act”.
57
In addition, these very regulations oblige the Commissioner in the
process of planning to “address the position of employees
affected by the abolition of unnecessary posts
with the
retrenchment of employees only
. . .
as the last resort
.”(My
emphasis)
58
Finally, reference must be made to the fact that an incumbent who
is dissatisfied with a decision not to promote is entitled
to
challenge the correctness of that decision through conciliation and
mediation
59
on the basis that the decision represents an unfair labour
practice
60
in contravention of the provisions of that Act.
61
A
broad question to which attention must be paid before deciding how
to interpret the regulation is whether the question must
be decided
on the assumption that the Commissioner, if he has the discretion,
will exercise it properly and responsibly or whether
one makes the
analysis on the footing that the functionary concerned will not
exercise the discretion, if it is found to have
been imposed upon
the office, properly. In other words, we must decide whether we
determine the case on the basis of a cynical
view of the ability of
the Commissioner to exercise an appropriate discretion. This Court
has pronounced on the vexed question
of assumption-driven
decision-making in
Van Rooyen
:
62
“
Any power vested in a
functionary by the law (or indeed by the Constitution itself) is
capable of being abused. That possibility
has no bearing on the
constitutionality of the law concerned. The exercise of the power
is subject to constitutional control and
should the power be abused
the remedy lies there and not in invalidating the empowering
statute.
The findings made by the High
Court concerning the Magistrates Commission are premised on the
assumption that a body consisting
of judicial officers, legal
practitioners, members of Parliament and nominees of the Executive,
charged with the important duty
of protecting the independence of
magistrates, will either be, or objectively be perceived to be, a
sham, concerned more with pleasing
the Minister of Justice than with
discharging its responsibilities. I should say immediately that
there is, in my view, no basis
for such an assumption, nor for the
conclusion reached by the High Court to that effect. However, the
findings lie at the heart
of the judgment of the High Court and it
is therefore necessary to deal with them in some detail.”
63
(footnotes omitted)
It
follows in my view that the interpretation of the regulation must
be undertaken on the basis that if the Commissioner has a
discretion, he will exercise it fairly and with due regard to all
the relevant protection to which an incumbent is entitled in
terms
of the relevant legislation.
64
We are required to determine whether the Commissioner has a
discretion, on the assumption that, if he has a discretion, he will
exercise it properly. The assumption that he would exercise the
discretion improperly is an irresponsible and unjustifiable
one.
The improper exercise by the Commissioner of a discretion is
subject to judicial control. We can now proceed to an
interpretation
of the regulation.
In
the first place I do not agree with the reasons given by the
majority in the Supreme Court of Appeal for their interpretation
of
the regulation as I have set out above. Indeed, my colleague Sachs
J is correct in the observation that the conclusion of
the Supreme
Court of Appeal cannot be accepted for the additional fundamental
reason that the majority interpretation gives rise
to a situation
too inflexible to accord with the constitutional and other
requirements imposed upon the Commissioner. There
is nothing in
the context that suggests that the word “may” must be given
anything but its ordinary permissive meaning without
the obligation
to exercise the power it confers. Where the drafters of the
regulation intend to impose a duty upon the Commissioner
they do so
by the use of the word “must”.
I
now come to the final argument on behalf of the union that the fact
that the unpromoted incumbent of the upgraded post will
be exposed
to dismissal is a factor which militates against the Commissioner’s
exercise of any discretion. The argument is
that the dismissal of
a satisfactorily performing incumbent in an upgraded post merely
because he is not appointed or promoted
to that post would be
unfair. It is argued that this unfairness would render the
regulation unconstitutional.
The
question to be answered is whether the regulation does permit
dismissal merely by reason of the fact that the incumbent concerned
was not appointed to the upgraded post. It must first be
acknowledged that the regulation is not concerned with dismissal at
all.
Regulation
24 as a whole regulates the consequences of an evaluation process.
This is confirmed by the detailed job evaluation
guide
65
which shows how the various decisions are to be taken. In broad
terms, it is sufficient to say that the decision is finally
taken
by the appointed decision-maker on a decentralised basis. The
guide says:
“
Emanating from the 1997 and
1998 amendments to the Public Service Act, 1994, a new decentralised
approach to work organisation and
human resource management, as
embodied in the Public Service Regulations, 1999 has been
established. Under the Regulations, executing
authorities have a
far greater degree of autonomy to take decisions on the salaries and
grading of their employees than was previously
the case. Job
evaluation will help ensure that transverse consistency is
maintained across the Public Service by providing the
framework
within which executing authorities should take such decisions.
Job evaluation is the main
mechanism available to ensure compliance with the principle of equal
pay for work of equal value as envisaged
in the White Paper on the
Transformation of the Public Service.”
The
objectives of job evaluation are stated as follows in the job
evaluation guide:
“
In basic terms, job
evaluation is a process of comparing jobs with one another. It
deals with the relationships between the jobs
within an
organisation. Stated in another way, job evaluation is used as an
objective process to determine the relative size or
weight of jobs
within an organisation. As such, job evaluation is aimed at
providing a defensible and equitable basis for determining
and
managing internal pay relativity between jobs. It also provides the
framework within which decisions on salaries and grading
can be
made.”
The
Minister
66
could never have contemplated that this regulation aimed at dealing
with the consequences of the upgrading of a post could result
in
the dismissal of the incumbent of that post in circumstances where
he had been performing satisfactorily in the upgraded post.
If
this had been the intention, I would have expected this to have
been said in so many words. And even if this had been expressly
said in the regulations, the constitutionality of a provision of
this kind would, in my view, be extremely doubtful. In the
circumstances, I conclude that the exercise of the Commissioner’s
discretion is limited. The discretion cannot be exercised
in such
a way as to raise the possibility of the dismissal of the
satisfactorily performing incumbent. If it does, the exercise
of
that discretion will be invalid. To put it positively, it is
implied in the regulation that the Commissioner may only exercise
a
discretion not to appoint the incumbent if satisfied that the
incumbent would not find herself out of a job merely by reason
of
the decision of the Commissioner to advertise the post and the fact
of the incumbent not being appointed to that post.
In
the circumstances, on a proper construction of the regulation, the
majority judgment in the Supreme Court of Appeal wrongly
concluded
that the conferral of a discretion by the regulation raises the
spectre of unfair dismissal. It does not.
For
these reasons and for the reasons set out in the judgment of Sachs
J that are consistent with this judgment, I concur in the
order
made by my colleague.
O’REGAN J:
I
have had the opportunity of reading the judgments prepared in this
matter by my colleagues Sachs J and Yacoob J. I cannot agree
with
their reasoning or outcome for the reasons that follow.
The
simple question in this case is what regulation 24(6) of the
regulations for the South African Police Services (SAPS) means.

Regulation 24(6) provides as follows:
“
(6) If the National
Commissioner raises the salary of a post as provided under
subregulation (5), she or he may continue to employ
the incumbent
employee in the higher-graded post without advertising the post if
the incumbent-
already performs the duties of
the post;
has received a satisfactory
rating in her or his most recent performance assessment; and
starts employment at the
minimum notch of the higher salary range.”
The
National Police Commissioner (the Commissioner) claims that this
regulation permits him to decide when upgrading a post whether
to
allow an incumbent who complies with the conditions in
sub-regulation 6(a) and (b) to move into the post without the post
being
advertised, or whether to advertise the post and appoint
someone else to the newly upgraded position. The Public Servants
Association
(the union) on the other hand argues that if an
incumbent of a post to be re-graded complies with conditions (a) and
(b), then
the Commissioner, when upgrading the post, must appoint
the incumbent to that post without advertisement.
The
question is one of interpretation. The starting point is the text
of the provision. The provision states that if the Commissioner
increases the salary range of a filled position because a job
evaluation process indicates that it has been under-graded, the
Commissioner may continue to employ the incumbent in the position
if the incumbent already performs the duties of the post, and
has
received a satisfactory grading for so doing. In many
circumstances, where a provision provides that a person “may”
do something, it means not that the person is obliged to do
something, but that the person is permitted to do it, if she or he
chooses. In other circumstances, the fact that a person “may”
do something means that they have the power to do something
(that
they might not ordinarily have the power to do) and that they have
a duty to exercise the power in certain circumstances.
1
The question that arises is what “may” means in section 24(6).
We
need to answer that question with a weather-eye to the spirit,
purport and objects of the Bill of Rights
2
to which I will return later; but the starting point remains the
text and context of the provision itself. Regulation 24(6)
is part
of a regulation directed at grading and remuneration. Regulation
24(1) imposes an obligation upon the National Commissioner
to grade
posts to ensure that they are correctly graded according to their
job weight.
3
It also obliges the Commissioner to set commencing salaries on the
lowest notch of the salary range attached to the particular
grade
to which a post has been allocated, save in special circumstances.
4
If,
as a result of a job evaluation exercise, it is discovered that a
post is incorrectly graded, the Commissioner must either
effect
changes to the work organisation (presumably, by adding or
subtracting duties from a filled post so as to ensure the post
is
no longer incorrectly graded) or the Commissioner must re-grade the
post.
5
The Commissioner may only increase the salary attached to a post
in order to grade it correctly, if the job evaluation exercise
indicates that the post was previously incorrectly graded and there
are sufficient funds in the budget to do so.
6
Accordingly, if there are not adequate funds, the Commissioner has
no choice but to make work organisational changes to ensure
that
the post is correctly graded.
Sub-regulation
(6) then provides that if the Commissioner does raise the salary of
a post previously incorrectly graded he may
continue to employ the
incumbent employee in the higher-graded post without advertising,
if the incumbent already performs the
duties of the post
satisfactorily. In such circumstances, the incumbent must be
employed at the minimum notch of the higher
salary range. In
understanding this provision, it is important to note two things:
firstly, that the effect of re-grading the
post is to create a new
job that is vacant from the moment it is created; and secondly,
that ordinarily all vacant jobs in the
police service must be
advertised. Indeed, regulation 36(2)(c) and (d) impose an
obligation upon the Minister in the following
terms:
“
(c) The National
Commissioner must advertise any vacant post in the senior management
nationally simultaneously inside and outside
the Service.
(d) The National Commissioner
must advertise any vacant post other than those for the senior
management, as a minimum, within the
Service, but may also advertise
such posts –
(i) within the rest of the
Public Service;
(ii) outside the Public Service
either nationally or locally; or
(iii) by other acceptable means
of recruitment.
(e) The National Commissioner
may fill a vacant post without complying with the requirements of
paragraph (c) and (d) if –
(i) the Service can utilise
supernumerary staff of equal grading to fill the post, or other
staff of equal grading if the latter
is in the interest of the
Service;
(ii) the Service can absorb
into the post an employee appointed or serving under an affirmative
action or other similar acceleration
programme, and if she or he
meets the requirements of the post; or
(iii) the Service plans to fill
the post as part of a programme of laterally rotating or
transferring employees to enhance organisational
effectiveness and
the skills of the employees.”
In the
ordinary course, therefore, and without any provision to the
contrary, the effect of the creation of a new post as a result
of
the job evaluation exercise, would be to require the post to be
advertised at least within the Public Service. I shall return
to
the significance of this in a moment.
The
remaining provisions of regulation 24 govern the situation where it
is discovered as a result of a job evaluation exercise
that a post
has been over-valued. Regulation 24(7) provides that in these
circumstances a Commissioner must if possible redesign
the job to
equate with the post grade, or transfer the incumbent to another
post at the same salary range and, whichever route
is chosen, he
must abide by the relevant legislation and collective agreements.
7
The
question that arises is whether regulation 24(6) in this context:
(a) permits the Commissioner, in circumstances where a post
that
has been under-graded and is being performed satisfactorily by its
incumbent, to choose whether to advertise the post or
to appoint
the incumbent automatically to the newly re-graded post; or (b)
permits the Minister not to advertise the post, despite
the
obligatory provisions of regulation 36, but requires the
Commissioner to appoint an incumbent who is already performing the
tasks of the re-graded position satisfactorily.
In
answering this question, the provisions of the Constitution are
relevant. Section 23(1) of the Constitution provides that
everyone
is entitled to fair labour practices.
8
The majority in the Supreme Court of Appeal held that if
regulation 24(6) was interpreted to afford the Commissioner a
discretion
as to whether to advertise the position or not, and the
position was advertised, a candidate other than the incumbent would
be
appointed to the post which would create the risk that the
incumbent would lose his or her job. In this Court too, counsel
for
the Commissioner conceded that there was a real risk of such
job losses. It was primarily for this reason that the majority in
the Supreme Court of Appeal concluded that properly interpreted
regulation 24(6) does not afford the Commissioner a discretion
whether to advertise or not.
Sachs
J, with whom Yacoob J concurs, holds that properly understood,
regulation 24(6) confers a power upon the Commissioner to
choose
whether or not to advertise a post that has been created in these
circumstances, but holds that that choice may not result
in a
redundancy. Although I agree that regulation 24(6) should not be
read to create the possibility of job losses, to ensure
that the
interpretation afforded to the regulation is consonant with the
spirit, purport and object of the Bill of Rights, I
am not
persuaded that the approach to the regulation adopted by Sachs J
and Yacoob J is correct.
In
the first place, their interpretation may stretch the text of
regulation 24(6) beyond its reasonable bounds. If the text is
read
to permit a choice as to whether to advertise or not, the
inevitable consequence is that a person other than a satisfactorily
performing incumbent may be appointed to the newly re-graded post
with the effect that the incumbent no longer has a post. The
requirement that the discretion may only be exercised if job losses
will not result is not explicitly mentioned in the regulation.
At
times, to comply with section 39(2) of the Constitution, a
provision must be given a meaning which may not be the first

meaning that springs to mind. However, it may not be given a
meaning beyond that which it is reasonably capable of bearing.
It
seems to me that the interpretation suggested by Sachs J and Yacoob
J’s may well fall foul of this requirement.
As
importantly, however, it seems to me that the interpretation will,
in effect, result in the Commissioner often not genuinely
being
able to exercise a choice. Indeed, he will not be able to
advertise the post unless there is a suitable vacant position
at an
appropriate level to which the incumbent can be moved. Bear in
mind, that if after advertisement a candidate other than
the
incumbent is selected for the position, the incumbent will have no
post unless moved to another vacant post. She or he will
only be
able to be moved into another vacant post in accordance with
regulation 36(2)(e) if there is such a vacant post in existence
at
a similar grading level. Moreover, given that job evaluation
exercises the evaluation of large numbers of posts, it is clear
what will happen should more incumbents be rendered supernumerary
that the number of available suitable vacant posts. In the
circumstances, unless there is a vacant post to which the incumbent
can, without contest from other candidates, be moved, the
Commissioner cannot be sure that a job loss will not result, once
he commences the process of advertisement. In the circumstances,
it is not clear to me, how often the Commissioner will really have
a choice on the interpretation proposed by Sachs J and Yacoob
J,
that really has a choice weather to advertise or not.
For
these reasons, I cannot agree with the meaning given to regulation
24(6) by Sachs J and Yacoob J. In my view, the interpretation
of
the regulation endorsed in the majority judgment in the Supreme
Court of Appeal is correct. Given the constitutional insistence
on
fair labour practices, regulation 24(6) should be understood as one
of those occasions where the word “may” properly understood
not
only permits non-compliance with another general obligation (in
this case, the general requirement of advertisement provided
for in
regulation 34), but where certain conditions are met (that there is
an incumbent already satisfactorily performing the
tasks of the new
post), obliges the Commissioner not to comply with the obligation
to advertise and to appoint the incumbent
to the new post.
Moreover, once the Commissioner must appoint the satisfactory
incumbent to the new post, there is an obligation
to appoint the
incumbent at the lowest level in the salary range (regulation
24(6)(c)).
This
interpretation avoids the risk that satisfactorily performing
incumbents will lose their jobs as the result of a job evaluation
exercise. Job security is an important consideration given
constitutional force by the right to fair labour practices.
Moreover
this interpretation is one that the text of the provision
is quite capable of bearing. Although it may be that ordinarily
the
word “may” confers a choice, it is well-recognised that
this is not always the case, and this, in my view, is another of

those cases.
The
considerations raised by Sachs J and Yacoob J relating to the need
to ensure that SAPS is transformed into a police service
representative of the broader South African population is an
important consideration, but one not relied upon by counsel for
the
Commissioner either in written argument or, under questioning from
the bench, in oral argument. In the circumstances, I
am not
persuaded that it can weigh heavily in the balance.
For
these reasons, although I accept that a constitutional matter of
substance has been raised and so would grant the application
for
leave to appeal, I would dismiss the appeal.
NKABINDE
J:
I
concur with the judgment of Sachs J and the additional reasons set
out in the judgment of Yacoob J that are consistent with
the
judgment of Sachs J.
Langa
CJ; Moseneke DCJ; Mokgoro J; Skweyiya J and Van der Westhuizen J
concur in the judgments of Sachs J and Yacoob J.
Counsel
for the Applicant R Sutherland SC, D Mashigo
Instructed
by Routledge Modise Morris
Counsel
for the Respondent GJ Marcus SC, KW Luderitz
Instructed
by Couzyn Hertzog & Horak
1
By
the Minister for Safety and Security in terms
of section 24(1) of the South African Police Service Act, 1995 (Act
68 of 1995),
R389, Government Gazette 21088 on 14 April 2000.
2
These included the Public Servants Association of South Africa, the
Police and Prisons Civil Rights Union (POPCRU) and the South
African
Police Union. At a later stage POPCRU distanced itself from the
other unions and indicated its support for the position
advanced by
the Commissioner.
3
By the Deputy National Commissioner responsible
for human resource management and legal services.
4
The National Commissioner of the South African Police Service v
The South African Police Union and Others
(TPD) Case No
28812/02, 31 October 2003, as yet unreported.
5
The Public Servants Association v National Commissioner of the
South African Police Service
SCA 573/04, 25 November 2005, as
yet unreported.
6
Howie P with Nugent and Lewis JJA concurring.
7
Subregulation 7 reads:
“
If the National Commissioner determines that the
salary range of an occupied post exceeds the range indicated by a
job weight, she
or he must-
(a) if possible-
(i) redesign the job to equate with the post grade; or
(ii) transfer the incumbent to another post on the same
salary range; and
(b) abide by relevant legislation and collective
agreements.”
8
Act 66 of 1995.
9
Streicher JA with the concurrence of Maya AJA.
10
Regulation 36(2) reads:
“
(a) The National Commissioner must ensure that
advertisements of vacancies aim to reach, as efficiently and
effectively as possible,
the entire pool of potential applicants,
especially persons historically disadvantaged
(e) The National Commissioner may fill a vacant post
without complying with the requirements of paragraphs (c) and (d)
if−
(i) the Service can utilise supernumerary staff of
equal grading to fill the post, or other staff of equal grading if
the latter
is in the interest of the Service;
(ii) the Service can absorb into the post an employee
appointed or serving under an affirmative action or other similar
acceleration
programme, and if she or he meets the requirements of
the post; or
(iii) the Service plans to fill the post as part of a
programme of laterally rotating or transferring employees to enhance
orginisational
effectiveness and the skills of employees.”
11
Regulation 45 reads:
“
In the case of unsatisfactory
performance, the National Commissioner must−
(a) provide systematic remedial or developmental
support to assist the employee to improve her or his performance; or
(b) if the performance is so unsatisfactory as to be
poor and the desired improvement cannot be effected consider steps
to discharge
the employee for unfitness or incapacity to carry out
her or his duties.”
12
R
egulation 22(1).
13
Regulation 34.
14
Section 167(3)(b) of the Constitution provides
that:
“
The Constitutional Court may decide only
constitutional matters, and issues connected with decisions on
constitutional matters.”
15
Section 207(2) provides that:
“
The National Commissioner must exercise control over
and manage the police service in accordance with the national
policing policy
and the directions of the Cabinet member responsible
for policing.”
16
Van Rooyen
and Others v The State and Others
(
General
Council of the Bar of South Africa Intervening
)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC).
17
Section 13(3)(aA).
18
Van Rooyen
above n16 at
paras 180-182 in which it explains t
hat the
permissibility of such an interpretation has been made clear by a
number of decisions, including,
Weissglass
N.O. v Savonnerie Establishment
[1992] ZASCA 95
;
1992 (3) SA
928
(A) at 937;
Commissioner for Inland
Revenue v IHB King; Commissioner for
Inland
Revenue
v
AH King
1947 (2) SA
196
(A) at 209-210 and
South African Railways
and Harbours v New Silverton Estate, Ltd
1946
AD 830
at 842.
Footnote 163 in
Van Rooyen
above n16 cites Wade
and Forsyth in
Administrative Law
(8ed, Oxford, University
Press, Oxford 2000) as saying at 239:
“
The hallmark of discretionary power is permissive
language using words such as ‘may’ or ‘it shall be lawful’,
as opposed
to obligatory language such as ‘shall’. But this
simple distinction is not always a sure guide, for there have been
many decisions
in which permissive language has been construed as
obligatory. This is not so much because one form of words is
interpreted to
mean its opposite, as because the power conferred is,
in the circumstances prescribed by the Act, coupled with a duty to
exercise
it in a proper case.”
19
Further
support of the proposition that the use of the word “may” does
not invariably confer a discretion, comes from
Schwartz
v Schwatz
[1984] ZASCA 79
;
1984 (4) SA 467
(A) at 473-474 in
which it was said:
“
A statutory enactment conferring a power in
permissive language may nevertheless have to be construed as making
it the duty of the
person or authority in whom the power is reposed
to exercise that power when the conditions prescribed as justifying
its exercise
have been satisfied. Whether an enactment should be so
construed depends on,
inter alia
, the language in which it is
couched, the context in which it appears, the general scope and
object of the legislation, the nature
of the thing empowered to be
done and the person or persons for whose benefit the power is to be
exercised.”
20
Jaga v Dönges , N.O. and Another; Bhana v Dönges, N.O.
and Another
1950 (4) SA 653
(A) at 662G-H.
21
Id at 664C-D.
22
Id
at 664H.
23
Section 39(2) provides that “When interpreting any legislation . .
. every court . . . must promote the spirit, purport and objects
of
the Bill of Rights.”
24
See preamble to the Constitution.
25
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10)
BCLR 1079
(CC).
26
Section 207 provides that the President as head of the national
executive must appoint a woman or a man as the National Commissioner
of the police service, to control and manage the police service
(207(1)). The National Commissioner must exercise control over
and
manage the police service in accordance with the national policing
policy and the directions of the Cabinet member responsible
for
policing (207(2)). The responsibility of provincial commissioners
for policing in their respective provinces is made subject
to the
power of the National Commissioner to exercise control over and
manage the police service (207(4)).
27
See chapter 11 of the Constitution, which deals with security
services.
28
Section 23(1) of the Constitution. The
Labour
Relations Act 66 of 1995
further provides in
section 185:
“
Every employee has the right not to be−
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.”
Section
186(2)
provides further:
‘“
Unfair labour practice’ means an unfair act or
omission that arises between an employer and an
employee
involving–
(a) unfair conduct by the employer relating to the
promotion, demotion, probation
(excluding
disputes
about dismissals for a
reason relating to probation) or training of
an
employee
or relating to the provision of
benefits to an
employee
;
(b) the unfair suspension of an employee or any other
unfair disciplinary action short of dismissal in respect of an
employee
;
(c) a failure or refusal by an employer to reinstate or
re-employ a former
employee
in
terms of any agreement; and
(d) an occupational detriment, other than dismissal, in
contravention of the Protected Disclosures Act,. 2000 (Act No. 26 of
2000),
on account of the
employee
having made a protected
disclosure defined in that Act.”
29
Regulation 21(1).
30
Regulation 21(3).
31
Dealing with appointments in the public service generally the guide
to job evaluation says:
“
Emanating from the 1997 and 1998 amendments to the
Public Service Act, 1994, a new decentralised approach to work
organisation and
human resource management, as embodied in the
Public Service Regulations, 1999 has been established. Under the
Regulations, executing
authorities have a far greater degree of
autonomy to take decisions on the salaries and grading of their
employees than was previously
the case. Job evaluation will help
ensure that transverse consistency is maintained across the Public
Service by providing the
framework within which executing
authorities should take such decisions.
Job evaluation is the main mechanism available to
ensure compliance with the principle of equal pay for work of equal
value as envisaged
in the White Paper on the Transformation of the
Public Service.”
32
Although initially intended to last only until 31 December 1995 its
application was repeatedly extended by collective agreements
with
the result that it was still being applied during October 2001.
33
The rank immediately below that of superintendent is that of captain
and the evidence demonstrates that people holding the post
of
captain would ordinarily qualify for promotion to the post of
superintendent.
34
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC);
2004 (12) BCLR 1268
(CC) at para 23.
35
In attempting to reconcile these different considerations, it will
be useful to consider certain practical examples. The consequence
of
automatic promotion would be that a satisfactorily performing
captain would become a superintendent even if not the best candidate
and there is in fact no threat to his or her job because another
vacant post of captain is available to which the captain can be
transferred. Similarly, if four captains were doing jobs that were
upgraded to the post of superintendent and money was available
to
upgrade only two posts, it would mean that the two captains who
fortuitously occupied the only two posts that could be upgraded
become superintendents on the basis of their satisfactory
performance. The other two captains are excluded from the process
even
if they are better qualified for the job and even if they have
been exceptional performers. The examples suggest that automatic
promotion to the upgraded post would not necessarily best further
the objectives of the regulations. On the contrary, considerations
of flexibility and transparency would point in the direction of
keeping alive the option of advertising the post.
36
This does not prevent a disappointed incumbent who
remains in the service from having recourse to administrative and
labour law
processes on a case by case basis in order to challenge
an exercise of a discretion, first to advertise and second, not to
appoint
him or her.
1
Regulation 24(6) of the Regulations for the South African Police
Service promulgated by the Minister of Safety and Security
Government
Gazette 21088 GN R389, 14 April 2000.
2
South African Police Service Act 68 of 1995
.
3
I set out the Regulation in its context later in this judgment.
4
The National Commissioner of the South African Police Service v The
South African Police Union and Others
(TPD) Case No 28812/02,
31 October 2003, as yet unreported.
5
The Public Servants Association v The National Commissioner of
the South African Police Service
(SCA) 573/04, 25 November 2005,
as yet unreported.
6
Three judges.
7
Two judges.
8
Regulation 34.
4
5">
9
Above n4 at para 16.
10
Id.
11
Id at para 20.
12
Id at para 22.
13
Above n5 at para 21.
14
Id at para 12.
15
Id.
16
Id at para 14.
17
Id at para 15.
18
Id at para 17.
19
Id at para 18.
20
Id at para 20.
21
Id at para 33.
22
Id at para 34.
23
Id at paras 37 and 38.
24
Id at para 39.
25
Id at para 40.
26
Regulation 22(1).
27
Regulation 34.
28
Above n5 at para 41.
29
Id at para 42.
30
The reasoning is summarised in para 50.
31
As summarised in paragraph 51 of this judgment.
32
Schwartz v Schwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A) at 473-4.
33
Id.
34
Van Rooyen and Others v The State and Others (General Council of
the Bar of South Africa Intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002
(8) BCLR 810
(CC) at paras 181-2.
35
Section 1 of the
Regulations provides:
“
(1) These regulations shall be called the South
African Police Service Employment Regulations, 1999 (hereinafter
referred to as
these Regulations) and subject to subregulation (2)
come into operation on 1 July 1999.
(2) The regulations specified hereunder shall come into
operation on the dates mentioned in respect thereof:
(a) Regulations 19(6) and 29(3) on 1 October 1999;
Regulations 14, 17(c) and 40 on 1 January 2000; and
Regulations 13(2)(b), 17(b) and 19(1) on a date to be
determined by the Minister in the
Gazette.
”
36
Act 200 of 1993.
37
Section 212(4).
38
Section 214(2)(b)(ii) of the interim Constitution repealed by
section 242 of the Constitution.
39
Chapter 10.
40
Section 197(1).
41
Section 195 of the Constitution.
42
Section 195(1)(a).
43
Section 195(1)(b).
44
Section 195(1)(f).
45
Section 195(1)(h).
46
Section 195(1)(i).
47
Section 239 of the Constitution.
48
Section 195(3).
49
Section 207(1) of the Constitution.
50
Section 207(2).
51
Section 218 of the interim Constitution.
52
Schedule 6 Item 24 read with Annexure D.
53
Section 218(1)(a) of the interim Constitution.
54
Section 23(1).
55
Section 9(2).
56
(Proclamation 103) of 1994 s 17(1)(a)
.
57
Act 66 of 1995.
58
Regulation 15(1)(d).
59
Above n55, Section 191.
60
Above n55, Section 186(2).
61
Above n55,
Section 185.
62
Above n32.
63
Id at paras 37 and 38.
64
See
Nel v Le Roux N.O and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996
(4) BCLR 592
(CC) at paras 6-9. See also
Bernstein and Others v
Bester N.O and Others N.N.O
[1996] ZACC 2
;
1996 (2) SA 751
CC
[1996] ZACC 2
; ;
1996 (4) BCLR
449
(CC) at para 60.
65
An Evaluation Guide produced by the Department of Public Service and
Administration for the guidance of all sectors of the public
service
including SAPS circulated during 2002.
66
The Minister is responsible for making the regulations. See n1
above.
1
See
Van Rooyen v The
State and Others
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8)
BCLR 810
(CC) at paras 181 – 182. See also
Commissioner for
Inland Revenue v King
1947 (2) SA 196
(A) at 209 – 210;
Weissglass NO v Savonnerie Establishment
[1992] ZASCA 95
;
1992 (3) SA 928
(A)
at 937B – F;
Schwartz v Schwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A) at
473I – 474D. In the latter case, the Court held that:
“
Whether an enactment should be so construed depends
on,
inter alia,
the language in which it is couched, the
context in which it appears, the general scope and object of the
legislation, the nature
of the thing empowered to be done and the
person or persons for whose benefit the power is to be exercised.”
(at 474B).
2
Section 39(2) of the Constitution provides as follows:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
3
Regulation 24(1) provides as follows:
“
The National Commissioner must determine the grade
of a post to correspond with its job weight and set the commencing
salary of
an employee on the minimum notch of the salary range
attached to the relevant grade, unless the salary proves inadequate
under
the criteria in subregulation (3).”
4
Regulation 24(3) sets out those circumstances as
follows:
“
The National Commissioner may set the salary a post
or an employee above the minimum notch of the salary range indicated
by the
job weight –
if
she or he has evaluated the job, but cannot recruit or retain an
employee with the necessary competencies at the salary indicated
by
the job weight; and
she
or he shall record the reasons why the salary indicated by the job
weight was insufficient.”
5
Regulation 24(5) provides as follows:
“
The National Commissioner may increase the salary of
a post to a higher salary range in order to accord with the job
weight, if
–
the
job weight as measured by the evaluation system indicates that the
post was graded incorrectly; and
the
budget of the Service and the medium-term expenditure framework
provide sufficient funds.”
6
Id.
7
Regulation 24(7) provides as follows:
“
If the National Commissioner determines that the
salary range of an occupied post exceeds the range indicated by a
job weight, she
or he must –
if
possible –
redesign
the job to equate with the post grade; or
transfer
the incumbent to another post on the same salary range; and
abide
by relevant legislation and collective agreements.”
8
Section 23(1) of the Constitution provides as
follows: “Everyone has the right to fair labour practices.”