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[2014] ZACC 19
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Sali v National Commissioner of the South African Police Service and Others (CCT 164/13) [2014] ZACC 19; [2014] 9 BLLR 827 (CC); 2014 (9) BCLR 997 (CC); (2014) 35 ILJ 2727 (CC) (19 June 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 164/13
In
the matter between:
DALUXOLO
NICHOLAS
SALI
.............................................................................................
Applicant
and
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
.....................................................................
First
Respondent
PROVINCIAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
................................................................
Second Respondent
MINISTER
OF SAFETY AND SECURITY
….........................................................
Third
Respondent
Neutral
citation:
Sali v National
Commissioner of the South African Police Service and Others
[2014]
ZACC 19
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der
Westhuizen
J and Zondo J
Heard
on:
10 March 2014
Decided
on:
19 June 2014
Summary:
Section 9 of the Constitution —
unfair discrimination — age discrimination
South
African Police Service Regulations — Regulation 11 — age
limit for employment of reservists — whether age
limit is
unfairly discriminatory
Leave
to appeal — constitutional challenge must be clearly and
properly raised in the court of first instance — not
in the
interests of justice to grant leave where the Court cannot give
effective relief
ORDER
On
appeal from the Labour Court, Port Elizabeth (Lallie J):
1.
The application for leave to appeal is refused.
2.
There is no order as to costs.
JUDGMENT
JAFTA
J:
Introduction
[1]
Our Constitution forbids unfair
discrimination regardless of the context in which it occurs and
irrespective of whether the perpetrator
is the state or a private
person. This case concerns alleged unfair discrimination in the
setting of employment where the
employer is the state.
[2]
The case is brought before this Court as an
application for leave to appeal against the order of the Labour Court
in terms of which
the applicant’s claim was dismissed.
Both the Labour Court and the Labour Appeal Court refused him leave
to appeal.
He contended that it was not necessary for him to
approach the Supreme Court of Appeal before coming to this Court
because, as
from 23 August 2013, the Supreme Court of Appeal no
longer has the competence to decide appeals from the Labour Courts.
[3]
The applicant is Mr Daluxolo Nicholas Sali
who, at the time the present dispute arose, was a police reservist
and stationed at Humewood
Police Station in Port Elizabeth. He
cites the National Commissioner of Police, the Provincial
Commissioner and the Minister
of Safety and Security as respondents.
Constitutional
and legislative background
[4]
For
a better appreciation of the applicant’s claim, it is necessary
to outline the relevant legal framework. He has instituted
an
equality claim contending that the decision of the South African
Police Service (SAPS) not to appoint him constituted unfair
discrimination, proscribed by section 6 of the Employment Equity
Act
[1]
(Equity Act).
The applicant based his claim on the Equity Act because it was passed
to give effect to the constitutional
right to equality in the
workplace. Where there is legislation giving effect to a right
in the Bill of Rights, a claimant
is not permitted to rely directly
on the Constitution.
[2]
[5]
However, this does not mean that in
determining such claim reference cannot be made to the Constitution.
The relevant legislation
must be interpreted in the context of the
Constitution. Moreover, the scope and content of the right
sought to be enforced
by a claimant may be determined with reference
to the Constitution. Therefore the Constitution is a good point at
which the outline
of the legal framework must begin.
[6]
Section 9 of the Constitution provides:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may
be
taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.”
[7]
It is significant to note that the
Constitution lists a number of grounds on which the state is
precluded from discriminating unfairly
against anyone. And
those grounds include age. Notably the Constitution does not
rank discrimination on the basis of
race or gender higher than
discrimination on any of the other listed grounds. This means
that discrimination on any of the
listed grounds must be treated
seriously.
[8]
It is apparent from section 9(5) that
discrimination based on any of the listed grounds is presumed to be
unfair. A claimant need
not prove unfairness. Instead, it is
the person who wishes to defend the discrimination who must show that
it is fair.
[9]
The
test for determining whether a claim based on unfair discrimination
should succeed was laid down by this Court in
Harksen
.
[3]
In that case this Court said:
“
At
the cost of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made on
a provision
in reliance on section 8 of the interim Constitution. They are:
(a)
Does the provision differentiate between
people or categories of people? If so, does the differentiation
bear a rational connection
to a legitimate government purpose? If
it does not then there is a violation of section 8(1). Even if
it does bear
a rational connection, it might nevertheless amount to
discrimination.
(b)
Does the differentiation amount to unfair
discrimination? This requires a two stage analysis:
(i)
Firstly, does the differentiation amount to
‘discrimination’? If it is on a specified ground,
then discrimination
will have been established. If it is not on
a specified ground, then whether or not there is discrimination will
depend upon
whether, objectively, the ground is based on attributes
and characteristics which have the potential to impair the
fundamental
human dignity of persons as human beings or to affect
them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to
‘discrimination’, does it amount to ‘unfair
discrimination’? If
it has been found to have been on a
specified ground, then the unfairness will be presumed. If on
an unspecified ground,
unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on the
impact of the
discrimination on the complainant and others in his or
her situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of section
8(2).
(c)
If
the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause (section 33 of the interim Constitution).”
[4]
[10]
Although the test was formulated with
reference to a claim in which the constitutional validity of
legislation was impugned, with
the necessary adjustment, it may be
applied where the attack is directed at conduct, policy or practice.
What needs to be
established at the commencement of the enquiry is
whether the policy or practice on which the challenged decision was
based, differentiates
between people. If it does, whether the
differentiation bears a rational connection to a legitimate
government purpose.
If it does, the policy or practice may or
may not, depending on the circumstances of a particular case, violate
section 9(3) of
the Constitution.
[11]
Where there is a rational connection
between the impugned policy or practice and a legitimate government
purpose, it is necessary
to enquire whether the differentiation
concerned amounts to discrimination. If the differentiation was
based on one of the
grounds listed in section 9(3), it is presumed to
constitute discrimination which is further presumed to be unfair.
This
means that an applicant needs only to show that the
differentiation complained of was based on a listed ground for the
double presumption
to be triggered.
[12]
In the employment setting the right not to
be discriminated against unfairly is given effect to by section 6 of
the Equity Act.
Section 6(1) provides:
“
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.”
[13]
It is important to note that the section
lists all the grounds contained in section 9(3) of the
Constitution and adds three
more, namely, family responsibility, HIV
status and political opinion. But unlike section 9 of the
Constitution, section
6(1) of the Equity Act does not deal separately
with discrimination by the state and by a private person. The
latter section
prohibits unfair discrimination by all employers.
[14]
Section 11 of the Equity Act places the
burden of proof on an employer in every case where unfair
discrimination based on the Equity
Act is alleged. In order to
discharge the onus, the employer must establish that the
discrimination was fair. Significantly,
the employer’s
onus is triggered by a mere allegation of unfair discrimination based
on the Equity Act.
[15]
At
first blush, the reading of section 6(1) may suggest that it
prohibits unfair discrimination contained in an employment policy
or
practice. On this reading the reach of the section may appear
to be narrower. But this assumption is dispelled by
the wide
definition of “employment policy or practice”.
[5]
The definitional meaning of employment policy or practice includes
recruitment procedures and selection criteria.
[16]
However, it appears that the employment
policy or practice envisaged in the Equity Act does not cover
legislation. If the
unfair discrimination complained of is
authorised by legislation, the claimant must challenge the
constitutional validity of the
legislation in question. This is
the legal framework within which the applicant’s claim must be
assessed.
Factual
background
[17]
In 2006 the applicant joined the SAPS as a
reservist and was stationed at Humewood Police Station in Port
Elizabeth. He was
appointed as a constable reservist. At
the hearing of the matter in the Labour Court, Brigadier Govender,
who testified on
behalf of the SAPS, confirmed that reservists
performed the functions of police officers, such as investigating
crime and arresting
criminals. They were not only given the
powers of police officers but they were also allowed to carry
firearms supplied by
the SAPS when they were on duty. The only
material difference between reservists and members of the SAPS was
that the reservists
were not employees of the SAPS and as a result
they were not paid for their services. They were taken as
volunteers who performed
police functions for no reward.
[18]
In order to enable them to carry out police
functions, reservists undergo training on appointment. The
applicant received
that training.
[19]
At some point the reservists country-wide
were dissatisfied with their status. They wanted to be
appointed as members of the
SAPS. In order to exert pressure on
the SAPS to agree to their demand, reservists held protest marches in
February 2009.
The first demonstration was held in Johannesburg
at the headquarters of the African National Congress, the ruling
party.
The second demonstration was held on 23 February
2009. By then the reservists had attracted the attention of the
Minister
of Safety and Security who went to address the
demonstrators.
[20]
In his address the Minister informed the
reservists that their demand would be considered at a summit to be
held before the end
of March 2009. He advised them to elect
representatives to attend the summit. Indeed, on 23 March 2009 the
summit was held.
It was attended by representatives of
reservists from all nine provinces, representatives of the SAPS,
community policing fora
and the Department of Public Service and
Administration.
[21]
The
demand made by the reservists was considered and discussed.
Apparently the complaint by reservists was that many of them
were
above 30 years of age and in terms of the relevant Regulation they
did not qualify to be appointed as members of the SAPS.
Regulation 11(1) of the Regulations for the South African Police
Service
[6]
stipulates that in
order to become a member of the SAPS, an applicant must be above 18
years of age and not over 30 years.
[22]
A Task Team comprising members from each
stakeholder was formed to find a solution to the problem. The
Task Team proposed
that Regulation 11 be amended by adding two
requirements which would apply to the appointment of reservists
only. With regard
to age, the proposal was that the requirement
be altered to reflect a 40 year age limit for appointment.
This meant
that reservists who wished to become members of the SAPS
had to be above 18 years but not over 40 years old. The second
requirement
was that they should have three years’ experience
as reservists.
[23]
The proposal for amendment was submitted to
the National Commissioner for his consideration. On 29 May
2009, the National
Commissioner approved the proposal and, as shown
below, purported to amend the Regulations by adding those two
requirements.
[24]
Meanwhile, in September 2009 and having
been notified of vacancies, the applicant applied for two vacancies
in different categories.
One vacancy was in category A2 and the
other in category D2. One of the requirements for the
category A2 vacancy was
that an applicant’s age had to be
between 41 and 45 years. At that time the applicant was 41
years and 10 months old.
[25]
Following his application, he was required
to take various tests, including a medical examination to determine
his state of health.
He was successful in all tests. He
also passed a physical fitness assessment. During an interview
with one of the SAPS
officials, he was told that he would be
appointed as a member and that he should expect an employment
contract which would be dispatched
to him for signing. However,
no contract came until he enquired about the appointment in January
2010.
[26]
He was informed of the decision not to
appoint him to any of the vacancies for which he had applied.
The reason for not appointing
him, he was told, was that he was above
the age of 40 years. This decision prompted the Station
Commissioner of Humewood
Police Station to address a letter to the
Provincial Commissioner. The Station Commissioner requested
that the age requirement
be waived in favour of the applicant.
[27]
In motivating his request the Station
Commissioner stated:
“
I
hereby request the condonation regarding enlistment for
abovementioned reservists. The member has been an active
reservist
since 2006 and received the necessary training regarding
the reservist basic training. The member falls under category
A,
sub-category A2, age 40-45 which was one of the requirements that
was set out during the recruitment drive for permanent enlistment.
The member is currently 42 years of age. The member has passed
all the necessary required tests and his age has no effect
on any of
the tests that were successfully passed. I hope this
application will be successful.”
[28]
The request elicited no response.
[29]
Dissatisfied with the decision not to
appoint him, and acting in terms of section 10 of the Equity
Act, the applicant referred
the matter to the Commission for
Conciliation, Mediation and Arbitration (CCMA). Conciliation
was unsuccessful and the CCMA
issued a certificate confirming this on
23 March 2010.
Labour
Court
[30]
In April 2010 the applicant instituted
action in the Labour Court. He cited the National Commissioner,
the Provincial Commissioner
and the Minister of Safety and Security
as respondents. These parties defended the action.
[31]
In the statement of case the applicant
pleaded his claim in these terms:
“
The
Station Commissioner addressed a facsimile to the respondent,
requesting condonation regarding the applicant’s age.
The
letter is attached hereto, marked Annexure C.
Until date hereof,
the applicant received no further correspondence from the respondent
and it is submitted that the reason for
his non-appointment was as a
direct result of his age.
The
abovementioned direct discrimination based on age is unfair and the
applicant referred a dispute to the CCMA in terms of section
10 of
the [Equity Act]. The applicant was a successful candidate and
the sole reason for his non-appointment was as a direct
result of his
age, which is clearly unjustifiable and discriminatory. Due to
the non-appointment, the applicant has failed
to secure permanent
employment, a permanent income and benefits and is prejudiced in this
regard.”
[32]
From these facts and in the same statement
of case, the applicant drew the legal issue that the Labour Court was
asked to determine.
On this aspect the statement reads:
“
The
reason for non-appointment of the applicant, based on his age,
amounts to direct unfair discrimination on a listed ground as
provided for in section 6 of the [Equity Act].”
[33]
Invoking section 50(2) of the Equity Act,
the applicant requested compensation in the amount of R500 000 or a
sum equal to a salary
of two years he would have received had he been
appointed. In addition he asked that he be appointed to one of
the posts
he had applied for and that the respondents be ordered to
eliminate unfair discrimination on the basis of age in their
recruitment
policies.
[34]
The respondents raised two defences to the
claim. First, they contended that the applicant was not
appointed because he was
above 40 years of age and that he did not
have three years’ experience as a reservist. They argued
that the requirements
were set by the relevant Regulation as amended
by the National Commissioner in May 2009. Consequently,
they pointed
out that the impugned decision fell outside the scope of
section 6 of the Equity Act because it was based on legislation.
They argued that the Regulations in terms of which the decision not
to appoint was made do not constitute “an employment
policy or
practice”.
[35]
Second, the respondents contended that in
the event of the Court holding that the definition of policy in the
Equity Act includes
the relevant Regulations, the discrimination was
fair.
[36]
Having heard evidence, the Labour Court
held that the applicant had met only one of the requirements. The
Court found that the applicant
had three years’ experience but
that he was above 40 years of age when he applied for appointment.
Proceeding from
the premise that these requirements were part of the
Regulations, the Court held that section 6 of the Equity Act did not
apply
because an employment policy or practice envisaged in that
section does not cover legislation. As a result the Labour
Court
did not find it necessary to determine whether the respondents
had established that the discrimination was fair. The
applicant’s
claim was dismissed.
In
this Court
[37]
The applicant does not only persist in the
issues raised in the Labour Court but also seeks an order declaring
Regulation 11(1)
inconsistent with the Constitution and invalid.
The issues arising are—
(a)
whether leave to appeal must be granted;
(b)
whether Regulation 11(1) should be declared
invalid;
(c)
whether the decision not to appoint the
applicant was based on a Regulation;
(d)
if so, whether that Regulation falls
outside the scope of section 6 of the Equity Act; and
(e)
if the decision was not based on a
Regulation, whether the respondents have established that the
discrimination complained of was
fair.
Leave
to appeal
[38]
It cannot be gainsaid that this matter
raises a constitutional issue. The applicant’s claim is
for the enforcement of
a right contained in section 9(3) of the
Constitution and given effect to by section 6 of the Equity Act.
The applicant contended
that his right not to be discriminated
against on a ground listed in these provisions was violated.
This is a constitutional
issue of importance.
[39]
A question that arises on this aspect of
the case is whether it is in the interests of justice to grant
leave. The issue is
whether the applicant should be allowed to
bypass the Supreme Court of Appeal and come directly to this Court.
Ordinarily
the Supreme Court of Appeal ought not to be denied the
opportunity to hear matters where the Constitution grants it power to
do
so. But this factor is not decisive. The enquiry
involves weighing up various factors, none of which is decisive.
[40]
The applicant’s financial resources
must be taken into account. From the Labour Court up to this
Court, the prosecution
of his claim has been funded by Legal Aid
South Africa, an organ of state that uses public funds to provide
legal representation
to indigent persons. Full argument on the
matter was presented to this Court and there are prospects of success
on the merits.
[41]
The matter does not raise an issue in
respect of which the Supreme Court of Appeal has special expertise.
Instead, it raises
a constitutional issue in the employment setting.
Moreover, the applicant did not approach this Court directly from the
Labour
Court. He went to the Labour Appeal Court which denied
him leave to appeal. The Labour Court and the Labour Appeal
Court are specialist courts established to decide labour matters.
Those are the courts in which our labour law jurisprudence
is
developed.
[42]
In
any event the Seventeenth Amendment to the Constitution suggests that
in appropriate cases appeals from the Labour Appeal Court
may come
directly to this Court.
[7]
However, it is not necessary to determine whether this case falls
within the ambit of the Seventeenth Amendment. In
the view I
take, leave to appeal must be granted.
Declaration
of invalidity
[43]
A
reading of the applicant’s statement of case shows that he did
not raise the constitutional challenge to Regulation 11.
As a
matter of principle, a party is not permitted to raise a
constitutional challenge for the first time in this Court, except
in
exceptional circumstances.
[8]
Those circumstances have not been established in this case.
This means that the applicant cannot be allowed to seek
the
declaration of invalidity from this Court unless he can show that the
claim for declaring Regulation 11(1) invalid was
raised in the
Labour Court.
[44]
The applicant contended that although his
statement of case made no reference to this claim, it was included in
the issues contained
in the pre-trial minute which was signed by the
parties before the trial commenced. A copy of the minute was
furnished to
this Court. An examination of the minute reveals
that the Labour Court was asked to determine whether:
(a)
the applicant met the requirements set by
the SAPS for appointment as a permanent member of the SAPS;
(b)
the SAPS has discriminated against the
applicant on the basis of age, and if so, whether such discrimination
was unfair; and
(c)
the applicant was entitled to relief sought
or any relief.
[45]
In addition to compensation for damages,
the minute reflects the relief claimed by the applicant in these
terms:
“
That
the Honourable Court grants the following order in terms of section
50(2)(c) of the [Equity Act]:
5.2.1
That the Court order the respondents to appoint the applicant
permanently in the position applied for with retrospective effect;
and/or
5.2.2
Directing the respondents from eliminating unfair discrimination on
the basis of age in respect of the respondents’
recruitment
policies; and/or
5.2.3
Issuing a declaratory order that the provisions of the
Government
Gazette
in relation to a minimum age
requirement in respect of permanent employment at the respondents are
discriminatory in nature and
without any justification.”
[46]
It cannot be disputed that the declaratory
order referred to in the minute is framed in vague terms which are
incapable of being
interpreted as referring to Regulation 11(1).
In the first place, the impugned provisions are those of an
unidentified
Government Gazette
.
No reference is made to Regulation 11 at all. Secondly, the
provisions challenged relate to a minimum age requirement
for
permanent employment. Yet the applicant’s complaint was
directed at the maximum age which the SAPS had said he
had exceeded.
[47]
It
is a fundamental principle of constitutional litigation to require
accuracy in the identification of the provision of legislation
that
is challenged on the basis that it is inconsistent with the
Constitution.
[9]
In
Phillips
this Court stated:
“
The
constitutional challenge should be explicit, with due notice to all
affected. This requirement ensures that the correct
order is
made; that all interested parties have an opportunity to make
representations; that the relevant evidence can, if necessary,
be
led; and that the requirements of the separation of powers are
respected.”
[10]
(Footnotes omitted.)
[48]
Since the constitutional challenge was not
properly raised, that claim must fail.
[49]
But the failure of the constitutional
challenge does not lead automatically to the dismissal of the entire
claim. The claim
that was pleaded and pursued in the Labour
Court was that the decision not to appoint the applicant amounted to
unfair discrimination
in terms of section 6(1) of the Equity Act.
The Labour Court’s decision addresses this claim and since the
appeal lies
against that decision, this Court must consider the
unfair discrimination claim. This is because the determination
of the
latter claim does not depend on the viability of the
constitutional challenge. In fact, the constitutional challenge
is irrelevant
to the assessment of whether the impugned decision
constitutes unfair discrimination.
[50]
It
follows that I disagree with Cameron J (majority judgment) that leave
to appeal should be refused because “if the Commissioner’s
waiver under Regulation 11(2) is knocked out, but the age limit
of 30 in Regulation 11(1) stands, Mr Sali is in an even worse
position”.
[11]
This reasoning overlooks and conflates two different acts into one.
It treats the act of waiver and the purported amendment
of the
Regulations as one act. They are not. Waiver and
amendments are different concepts. It is apparent from
the
facts on record that acting in terms of Regulation 11(2), the
National Commissioner waived the 30-year age limit in respect
of all
reservists, including the applicant. This was consistent with
the recommendation of the Task Team. It will be
recalled that
the Task Team had recommended that the age limit in respect of
reservists be raised to 40 years and that they must
have three years’
experience in order to be eligible for appointment.
[51]
Furthermore, the Task Team had recommended
that these requirements be introduced into the Regulations by means
of an amendment.
The SAPS contended in the Labour Court that by
endorsing the recommendation, the National Commissioner amended the
Regulations
and the Labour Court upheld this argument, hence its
finding that the Regulations were amended and that the decision not
to appoint
the applicant was based on the amended Regulations.
Consequently, the Labour Court held that the applicant’s claim
based on section 6(1) of the Equity Act could not succeed because the
discrimination complained of arose from legislation and not
an
employment policy or practice.
[52]
In
our law the concepts of waiver and amendment of legislation differ
and the power to waive does not include the power to amend.
Take for example the waiver of a right conferred by statute.
The right-holder has the power to waive the right or benefits
flowing
from it.
[12]
The fact
that the right-holder may waive a right does not mean that he or she
has the power to amend the statute conferring
the right. The
same reasoning applies here. The power to waive requirements in
Regulation 11(1), which sits in Regulation
11(2), does not authorise
the National Commissioner to amend the Regulations.
[53]
Waiver takes place where a right or remedy
or privilege or power or an interest or benefit is not asserted.
Here, waiver occurred
when the National Commissioner decided to
exempt all reservists from the 30-year age limit. That waiver
does not incorporate
the power to put in place different and new
requirements such as the age limit of 40 years and the minimum
experience of three
years. The waiver by the National
Commissioner was limited to exempting all reservists from complying
with the 30-year age
limit. The National Commissioner did not
amend Regulation 11(1) insofar as it laid down the age limit of 30
years.
That Regulation remained intact but it was its
application to reservists which was relaxed.
[54]
This relaxation meant that for as long as
the decision to waive stood, the 30 year age limit could not be
applied to reservists.
It is therefore incorrect to assume that
the National Commissioner’s waiver here involves putting in
place the new requirements
and that if those requirements are
“knocked out” the 30-year age limit stands in the way of
the relief sought by the
applicant. Instead, the question that
arises is whether the new age limit of 40 years set by the National
Commissioner forms
part of the Regulations. For if it does, the
applicant’s claim based on section 6(1) of the Equity Act may
not succeed
for the reason that the discrimination raised would have
arisen from legislation and not an employment policy or practice.
Was
the decision not to appoint based on the Regulations?
[55]
It
will be remembered that the reason the applicant was not appointed
was that he was above the age of 40 years and that he did
not have
the experience of three years as a reservist. The Labour Court
held that, although he did not meet the age requirement,
he had the
necessary experience.
[13]
[56]
These findings were preceded by an enquiry
whether the two requirements were introduced by the Regulations.
It will be remembered
that this issue was raised as part of the
respondents’ defence that the discrimination was authorised by
the Regulations
and not an employment policy or practice.
[57]
In determining whether the requirements in
question were part of the Regulations, the Labour Court stated:
“
I
now turn my attention to the first issue I need to determine in terms
of the pre-trial minute: whether the applicant met the requirements
for appointment as a permanent member of SAPS. The starting
point is the source of the requirements.
The
respondents’ unchallenged evidence is that as a result of
recommendations of a Task Team with representatives of reservists
from all nine provinces, the National Commissioner of SAPS exercised
his discretion in terms of Regulation 11(2) of the Regulations
promulgated
by Government Notice No R203 of 14 February 1964 as amended by
Government Notice R519 of 27 December 2009
and
amended the age of reservists to be enlisted as permanent members of
SAPS from between 18 and 30 years to between 18 and
40 years
.
In addition the reservists were required to have three years’
experience as reservists.”
[14]
(Emphasis added.)
[58]
Proceeding from the premise that the
National Commissioner amended the Regulations by introducing two
requirements, the Labour Court
held that the discrimination
complained of was not based on a policy or practice but on
legislation. The Court said:
“
I
have already accepted the respondents’ evidence that the age
restriction was introduced by a Regulation. It is noteworthy
that the Regulation is the culmination of discussions on employment
of reservists in which the applicant, through his representatives
consented to the age restriction which forms part of the contents of
the Regulation.”
[15]
[59]
What emerges from the statement quoted in
[57] is that the respondents’ evidence before the Labour Court
was to the effect
that the National Commissioner “amended the
age of reservists to be enlisted as permanent members of SAPS from
between 18
and 30 years to between 18 and 40 years”. This
evidence was accepted as correct by the Labour Court. This
appears
from the statement taken from that Court’s judgment and
quoted in [58]. That the Labour Court held that the National
Commissioner amended the Regulations is supported further by the
following statement:
“
The
respondents’ evidence which the applicant did not gainsay is
that a Task Team in which he was represented recommended
the
requirements for enlistment of reservists which included the two
requirements referred to in these proceedings.
The
recommendations were made Regulations
.
The only reason a 40-year-old reservist could qualify for enlistment
as a member of SAPS was by operation of the Regulation.”
[16]
(Emphasis added.)
[60]
The facts recorded in the judgment of the
Labour Court show that the authority to apply the 40-year age limit
came from the National
Commissioner and not from the Minister.
Consequently when the Labour Court says the Task Team’s
“recommendations
were made Regulations”, it refers to the
National Commissioner having made those recommendations part of the
Regulations.
Yet, as indicated below, the power to make or
amend the Regulations vests in the Minister.
[61]
In my respectful view, the reasoning of the
Labour Court is flawed in a number of respects. First, the
Court departed from
the premise that Regulation 11(2) empowers the
National Commissioner to amend the Regulations. Regulation
11(2) does not
vest the power to amend in the National Commissioner.
It provides:
“
Notwithstanding
the provisions of subregulation (1), the National Commissioner may in
his or her discretion and in exceptional circumstances,
waive any of
the requirements where and if such a waiver will be in the interest
of the Service.”
[62]
What
emerges from the text of Regulation 11(2) is that the National
Commissioner is vested with a discretionary power to waive the
requirements in Regulation 11(1). One of those requirements is
that a person who applies to be appointed as a member must
“be
at least eighteen (18) and under thirty (30) years of age of which
documentary proof must be furnished.”
[17]
But the exercise of the discretion by the National Commissioner is
subject to two conditions. There must be exceptional
circumstances justifying the waiver and it must be in the interest of
the SAPS that a particular requirement be waived.
[63]
Consistent with this reading of Regulation
11(2) and in the affidavit filed in this Court in opposing leave, the
respondents averred:
“
As
pointed out above, Regulation 11(2) provides that the National
Commissioner may in his or her discretion and in exceptional
circumstances, waive any of the requirements where and if such waiver
will be in the interest of the SAPS. The history of
this matter
shows that it was in the interest of the SAPS that reservists be
appointed as permanent members of the SAPS.”
[64]
In the same affidavit SAPS conclude by
stating:
“
The
National Commissioner of the SAPS did not unilaterally decide to
waive compliance with the provisions of Regulation 11(1)(a)(iii).
The evidence revealed that the waiver was the result of negotiations
between the SAPS and the trade unions who represented the
reservists
who wanted to be employed as members of the SAPS.”
[18]
[65]
It is apparent from the record that the
Labour Court did not itself interpret Regulation 11(2) to determine
the nature and scope
of the powers it conferred on the National
Commissioner. The Court merely accepted as correct what was
said by SAPS.
In this regard the Labour Court erred. The
question whether the requirements concerned constituted an amendment
of the Regulations
was not a matter of evidence but an issue of
interpretation of the empowering provision. The interpretation
must have been
done by the Court itself. Had it done this, the
Court would have realised that Regulation 11(2) did not empower the
National
Commissioner to amend the relevant Regulations.
[66]
Regulation 11(2) presupposes that before
reaching the opinion that it will be in the interest of SAPS to waive
a requirement, the
National Commissioner will take into account all
relevant factors, including whether the candidate in respect of whom
the waiver
is granted would qualify to be appointed, once the waiver
is given. It cannot be in the interest of SAPS to waive an
appointment
requirement if the candidate does not qualify for
appointment. It seems doubtful that once the National
Commissioner waives
a particular requirement, he or she can fix
another requirement that would disqualify from appointment a
candidate in whose benefit
the waiver was granted. This would
be inconsistent with the objects of Regulation 11(2). However,
in the view I take
it is not necessary to reach a finding on this
issue.
[67]
The
purpose of Regulation 11(1) is to provide the SAPS with criteria for
selecting suitable candidates for appointment as members
of the
Service. Sometimes strict adherence to those criteria may deny
the SAPS acquisition of scarce skills necessary for
the performance
of its constitutional mandate “to prevent, combat and
investigate crime, to maintain public order, to protect
and secure
the inhabitants of the Republic and their property, and to uphold and
enforce the law.”
[19]
[68]
In granting the National Commissioner the
discretion to waive the requirements, Regulation 11(2) affords the
SAPS flexibility in
the application of the recruitment criteria.
For as long as the conditions for the exercise of that discretion
exist, the
National Commissioner has a wide discretion to waive any
of the requirements, including the one on age. If, for example,
the SAPS needs helicopter pilots or forensic analysts and the
applicants who possess these skills are 50 years old, the National
Commissioner may waive the age requirement and appoint them.
This power has nothing to do with the amendment of the Regulations.
[69]
In
terms of the South African Police Service Act
[20]
,
the power to amend the Regulations vests in the Minister and not the
National Commissioner.
[21]
During the hearing in this Court counsel for the respondents
conceded, correctly so, that the National Commissioner did not
have
the power to amend the Regulations. Therefore the purported
amendment could not result in the two requirements being
part of the
Regulations. This finding destroys the foundation for the
conclusion reached by the Labour Court to the effect
that the
discrimination raised by the applicant was not based on a policy or
practice, but arose from legislation.
Does
the discrimination fall within section 6(1)?
[70]
Since the decision not to appoint the
applicant was based on the requirements set by the National
Commissioner and assuming that
he had power to do so, the question is
whether, in the context of the Equity Act, those requirements
constitute an employment policy
or practice. The Act states
that these words include “recruitment procedures, advertising
and selection criteria”.
It is apparent therefore that
the requirements which influenced the decision not to appoint the
applicant constitute an employment
policy or practice.
Consequently, the conduct complained of falls within the ambit of
section 6(1) of the Act.
Was
the discrimination unfair?
[71]
This enquiry commences with the
determination of whether there was differentiation which amounted to
discrimination. The facts
on record show that the age
requirement which fixed the maximum age for appointment as a member
of the SAPS at 30 years was an
obstacle to the appointment of many
reservists. This obstacle was removed by waiving that
requirement in respect of all reservists.
But the limit was
raised to 40 years. This enabled reservists who were over 30
years of age but not above 40 years to be
appointed.
[72]
But
the applicant was not appointed on the ground that he was over the
age of 40 years. Although he was covered by the waiver
of the
age requirement, he was treated differently from other reservists
when the SAPS declined to appoint him on the ground of
age. A
differentiation was established. Because the differentiation
was based on a ground listed in section 9(3) of
the Constitution it
must be presumed to amount to discrimination which is unfair unless
the SAPS shows that it was fair.
The fact that the applicant
based his claim on section 6(1) of the Equity Act and not section
9(3) of the Constitution is immaterial.
This is so because
section 6(1) gives effect to section 9(3) and consequently the
principle of constitutional subsidiarity dictates
that the applicant
was not permitted to rely directly on the Constitution.
[22]
[73]
In any event because the applicant alleged
that the unfair discrimination was based on section 6(1) of the
Equity Act, the onus
fell on the SAPS to show that the discrimination
was fair. The determination of this issue requires us to
examine the explanation
furnished to justify the discrimination.
In an attempt to show that the discrimination was fair, the SAPS
relied on the evidence
of Brigadier Govender.
[74]
Brigadier Govender testified that recruits
who are 25 years old and older perform poorly in academic studies and
physical training
at the college. His testimony on this issue
went as follows:
“
The
generic requirement of 18 to 30, when we send people to the college
the academic as well as the fitness requirements are quite
demanding,
and one would find that when you are reaching the age of 25/26 that
there is a challenge in the college for people in
that category to
meet the academic as well as the physical fitness requirements that
is in the college.”
[75]
The explanation is without merit. If
indeed the recruits of 25 to 26 years of age battled with physical
training and academic
studies, it is inconceivable that the National
Commissioner could increase the maximum age limit from 30 to 40
years. Logic
dictates that the age limit should have been
reduced from 30 instead of increasing it. The explanation does
not support the
decision of the National Commissioner to increase the
age to 40 years. On the contrary, it shows that fixing the age
at 40
years was unsound.
[76]
However, under cross-examination, it turned
out that the explanation was based on hearsay evidence.
Therefore the evidence
tendered on why the age was fixed at 40 has
little, if any, probative value. In this regard the exchange
between the applicant’s
attorney and Brigadier Govender went as
follows:
“
Question:
You testified that you are not actually in training, so when you
testified as to the problems that you guys get when they
are 25/26/27
is that then hearsay evidence?
Answer:
It could be hearsay, but it is also information that was shared by
us. You know like I said we have a relationship
on our station
at head office in Pretoria between our Human Resources Development
Department and the Personnel Management Department
because we sort of
relate to each other in terms of we supply the trainees for training
and they try to train those trainees, and
if they are having
challenges then they come back to us.”
[77]
But apart from the fact that the
explanation was based on hearsay evidence and that it was at variance
with the National Commissioner’s
decision, the explanation
overlooked the applicant’s ability. The record
illustrates that the applicant passed all
the necessary tests and the
fitness assessment.
[78]
On this issue Brigadier Govender’s
evidence went thus:
“
Question:
I can put it to you the applicant scored fairly high in the fitness
test, but the fact is if they pass the fitness test
in the
recruitment process surely that, what does that mean?
Answer:
It means that the person is fit, that he met the standards and the
norms of the prescribed fitness test for the South African
Police
Service.
Question:
And what is the reason then that he will not be able to then continue
with this level of fitness if he then enters into
the Service?
Answer:
I think for me what was important was that he had not met the age
requirement initially when he submitted his application
already, so
whatever requirements he met after that was, it is immaterial to me
because he had not met the requirement of the age
together with the
prescribed number of years of service initially.
Question:
But let us forget about the age and the three years. Say for
example he did meet the three years and he did meet
the age, what
does it mean if they need this fitness test at this level? Does that
okay them that you are fit enough to actually
go to the college?
Answer: Yes, that is
the intention of the fitness test.
Question:
I am understanding you correct that your version is, as far as you
know, the applicant did not get the position because
of the age
requirement, and secondly because he did not meet the three years?
Answer:
That is correct.”
[79]
It is apparent from the record that the
applicant’s age had no impact on his academic ability and his
physical fitness, yet
the decision not to appoint him was based on
age. This was the case despite the fact that one of the
positions he had applied
for required that candidates be between 41
and 45 years of age. At the relevant time the applicant was
almost 42 years old.
Moreover, the applicant’s Station
Commander, who supported the applicant’s appointment, had also
requested that the
age requirement be waived. During the trial
Brigadier Govender conceded that a candidate who, like the applicant,
passes
the fitness test does well in training at the college.
[80]
In the circumstances, the respondents have
failed to show that the discrimination was fair. It follows
that the applicant’s
constitutional right not to be
discriminated against by the state was violated.
[81]
With regard to the requirement that a
reservist must have three years’ experience and assuming that
the National Commissioner
had authority to set the requirement, the
Labour Court held that the applicant had met this requirement.
This finding was
not challenged in this Court and there is no
justification to interfere with it. What remains is the
determination of the
appropriate remedy.
Remedy
[82]
The
determination of remedy must commence with reference to the
Constitution because a constitutional right was violated.
The
Constitution imposes a duty on a competent court to grant
“appropriate relief” for the violation of any right in
the Bill of Rights.
[23]
In
Fose
,
this Court said:
“
Appropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of
each particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If
it
is necessary to do so, the courts may even have to fashion new
remedies to secure the protection and enforcement of these
all-important
rights.”
[24]
(Footnote omitted.)
[83]
In that case the Court went further to hold
that in suitable cases “appropriate relief” would include
an award for damages.
The Court reasoned thus:
“
[I]t
seems to me that there is no reason in principle why ‘appropriate
relief’ should not include an award of damages,
where such an
award is necessary to protect and enforce Chapter 3 rights [of the
interim Constitution]. Such awards are made
to compensate
persons who have suffered loss as a result of the breach of a
statutory right if, on a proper construction of the
statute in
question, it was the Legislature’s intention that such damages
should be payable, and it would be strange if damages
could not be
claimed for, at least, loss occasioned by the breach of a right
vested in the claimant by the supreme law. When
it would be
appropriate to do so, and what the measure of damages should be will
depend on the circumstances of each case and the
particular right
which has been infringed.”
[25]
(Footnotes omitted.)
[84]
But
happily in this case the Equity Act, which gives effect to the
infringed constitutional right, proposes various remedies.
The
Labour Court is empowered to make “any appropriate order”
including “awarding compensation in any circumstances
contemplated in this Act” and “awarding damages in any
circumstances contemplated in this Act”.
[26]
[85]
It is significant to note that the Labour
Court is granted a wide remedial power which extends beyond the
remedies listed in section
50(1). Where there is a violation of
the Act, the Labour Court enjoys the power to make “any
appropriate order”.
Flowing from this construction, the
orders requested by the applicant fell within the remedial power of
the Labour Court.
It will be recalled that the applicant asked
the Court to order that he be appointed on a permanent basis and that
he be paid compensation.
But in view of the Labour Court’s
finding on whether he met the requirements, that Court did not
consider the issue of remedy.
[86]
The record filed in this Court does not
shed any light on the posts applied for by the applicant. We do
not have information
on whether those posts were filled or not.
Nor do we have evidence supporting the amount of compensation sought
by the applicant.
Consequently, this Court is not in a position
to determine the appropriate remedy which ought to have been granted
by the Labour
Court. In these circumstances, the matter must be
remitted to the Labour Court for the determination of the appropriate
relief,
after allowing the parties to present the relevant evidence.
[87]
For these reasons I would uphold the
appeal, set aside the Labour Court’s order and remit the matter
to that Court.
CAMERON
J (Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Khampepe J,
Madlanga J, Majiedt AJ, Van der Westhuizen J and Zondo
J concurring):
[88]
The
issue the applicant brings is large and important: age
discrimination. May the South African Police Service (SAPS),
acting
conformably with the Constitution and the Employment Equity
Act,
[27]
refuse to employ job
applicants because they are too old? The particular barrier Mr
Sali challenges is the 40-year age limit
the SAPS places in the path
of police reservists who want to enter the service as permanent
members.
[28]
The SAPS
applies an even lower bar of 30 years to entirely new recruits.
Other public-sector employers also impose
age cut-offs. So the
answer to the question has significant implications for public-sector
employment generally and indeed
for all employers.
[89]
But
should we answer the question for Mr Sali? In the main
judgment, Jafta J says Yes. He finds that leave to appeal
should be granted. And on the substance of Mr Sali’s
case, even though he finds that Mr Sali did not properly challenge
the statutory source for the 30-year age bar, Regulation 11(1),
[29]
he concludes that the 40 year age limit applied against Mr Sali
cannot stand. The Labour Court found that the 40-year
bar was
“introduced by a regulation”,
[30]
and hence did not constitute an “employment policy or
practice”
[31]
over which
it had jurisdiction. The main judgment faults this on the basis
that only the Minister of Police, and not the
National Commissioner
of the SAPS (Commissioner), is empowered to amend the Regulations.
The 40-year bar that kept Mr Sali
out did not derive from Regulation
11(1). Instead, the Commissioner purported to impose the
40-year bar by a waiver under
Regulation 11(2).
[32]
The waiver constituted a policy or practice, which the Labour Court,
contrary to its approach, was entitled to review.
And, the main
judgment finds, once the age-discriminatory policy or practice is
scrutinised, it cannot stand. This is because
the burden rested
on the SAPS to establish that the 40-plus age bar it applied against
Mr Sali was fair
[33]
–
and it failed to do so.
[90]
But
the main judgment finds for Mr Sali on a basis he never argued.
He did not attack the Commissioner’s power to waive
the 30-year
age limit conditionally. Nor did any party suggest that that
power of waiver amounted to an amendment of the
Regulations.
[34]
For this and other reasons, I do not agree with the main judgment’s
outcome, or its reasoning for it. However,
I gratefully adopt
its exposition of the facts and litigation history, save that I do
not accept that in setting the age limit
of 40 the Commissioner
purported to amend the Regulations.
[35]
Like the main judgment, I am prepared to assume, without deciding,
that Mr Sali was entitled to bypass the Supreme Court
of Appeal.
[36]
[91]
And I agree with the main judgment’s
conclusion that Mr Sali cannot be allowed to initiate an attack on
Regulation 11(1) in
this Court. The parties’ pre-trial
minute in the Labour Court alluded to the Regulations: Mr Sali
recorded that he
sought a declaration that “the provisions of
the
Government Gazette
in relation to a minimum age” are “discriminatory in
nature and without any justification”. But this did
not
spell out the attack or what it sought to achieve. Neither the
parties nor the judge addressed the constitutional validity
of the
Regulations during the trial. At no time before applying for
leave to appeal against the Labour Court’s adverse
judgment did
Mr Sali say the Regulations should be declared void. He does
now. The question is whether his belated
attempt to impugn the
Regulations can be countenanced.
[92]
For
reasons of both form and substance, I agree with the main judgment
that he cannot. Litigants must give clear notice when
they
attack legislation on constitutional grounds.
[37]
This allows their opponents to mount the best defence possible.
That in turn enables the Court to decide properly,
with full
information and argument, whether the attack should be upheld.
This plainly did not happen here. The SAPS
seem to have had no
inkling that they were called upon to defend the constitutional
validity of a service-wide recruitment age
bar. Nor, on the
pleadings in the trial court, were they. Their witness set out
to defend the particular application
of the 40-year bar to Mr Sali.
As a result, the evidence on the necessity or justification for a
service-wide bar was equivocal
and patchy. It would be
lamentable justice in these circumstances to determine its validity.
[93]
This conclusion has damaging implications
for Mr Sali’s entire claim to relief. If Regulation 11(1)
stands, where does
it leave him? It leaves him nowhere.
It makes it impossible to answer the main question in his favour.
It is
true that Mr Sali’s main focus is not a direct attack on
Regulation 11(1). His grievance is against the Commissioner’s
exercise of the Regulation 11(2) power to waive the requirements in
Regulation 11(1). The Commissioner, in exercising that
power,
set an age limit of 40, which is the focus of Mr Sali’s
grievance. But, in setting that limit, the Commissioner’s
waiver is premised on, and derives from, the validity of the 30-year
age restriction in Regulation 11(1). It departs from
the
30-year limit only to the extent that it grants certain job
applicants, namely experienced police reservists, an extra 10 years.
[94]
If the Commissioner’s waiver under
Regulation 11(2) is knocked out, but the age limit of 30 in
Regulation 11(1) stands, Mr
Sali is in an even worse position: he
would not be marginally over, but totally beyond, the age limit.
For so long as Regulation
11(1) stands, Mr Sali cannot coherently or
justly – or indeed lawfully – be granted relief.
This is because any
relief would be at odds with an extant statutory
requirement with legal force.
[95]
So there is no escape. A job-seeker –
reservist or non-reservist – seeking to challenge the age
requirements the
SAPS applies must frontally attack
Regulation 11(1). And his attack on the validity of the
waiver the Commissioner granted
is driven back to the question of the
validity of the main restriction in Regulation 11(1).
[96]
It follows from this that it is not
necessary to enquire into the nature of the discretion Regulation
11(2) affords the Commissioner
to waive the job requirements.
Mr Sali should be refused leave to appeal, because his challenge does
not tackle the biggest
question in it: the validity of the Regulation
that is the ultimate source of his grievance. It is not in the
interests of
justice to decide his appeal. The Court could not
grant him effective relief, and indeed could only make him and those
in
his position worse off.
Costs
[97]
Though
Mr Sali fails at the leave to appeal hurdle, the issue he has raised
is important. According to the usual rule applied
in
constitutional litigation against state parties,
[38]
there should be no costs order against him.
Order
[98]
I therefore make the following order:
1.
The application for leave to appeal is refused.
2.
There is no order as to costs.
For
the Applicant:
Advocate
L Crouse, instructed by Legal Aid South Africa.
For
the Respondents:
Advocate
G Bloem SC and Advocate P Kroon, instructed by the State
Attorney.
[1]
55
of 1998.
[2]
This
is known as the principle of constitutional subsidiarity, as
discussed below in [72].
[3]
Harksen
v Lane NO and Others
[1997]
ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC)
.
[4]
Id
at para 54.
[5]
In
the context of the Act:
“‘
[E]mployment
policy or practice’ includes, but is not limited to—
(a)
recruitment procedures, advertising and
selection criteria;
(b)
appointments and the appointment process;
(c)
job classification and grading;
(d)
remuneration, employment benefits and
terms and conditions of employment;
(e)
job assignments;
(f)
the working environment and facilities;
(g)
training and development;
(h)
performance evaluation systems;
(i)
promotion;
(j)
transfer;
(k)
demotion;
(l)
disciplinary measures other than
dismissal; and
(m)
dismissal.”
[6]
Regulations
for the South African Police Service, under GN R203,
Government
Gazette
719, promulgated on 14 February 1964 (Regulations).
[7]
Constitution
Seventeenth Amendment Act 72 of 2012.
[8]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011]
ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) and
Lane
and Fey NNO v Dabelstein and Others
[2001]
ZACC 14; 2001 (2) SA 1187 (CC); 2001 (4) BCLR 312 (CC).
[9]
Shaik
v Minister of Justice and Constitutional Development and Others
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at para 25.
[10]
Phillips
and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para
43.
[11]
Majority
judgment at [94].
[12]
Engelbrecht
v Road Accident Fund and Another
[2007]
ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC);
Road
Accident Fund v Smith
[2006] ZASCA 172
;
2007 (1) SA 172
(SCA);
Road
Accident Fund v Thugwana
[2003] ZASCA 139
;
2004 (3) SA 169
(SCA); and
Road
Accident Fund v Mothupi
[2000] ZASCA 27; 2000 (4) SA 38 (SCA).
[13]
Sali
v National Commissioner of the South African Police Service and
Others
[2013] ZALCPE 12 (Labour Court judgment) at para 18.
[14]
Id
at para 10.
[15]
Id
at para 23.
[16]
Id
at para 15.
[17]
Regulation
11(1)(a)(iii).
[18]
Regulation
11(1)(a)(iii) refers to the age requirement quoted in [62].
[19]
Section
205(3) of the Constitution.
[20]
68
of 1995.
[21]
Id
section 24(1)(b).
[22]
Mazibuko
and Others v City of Johannesburg and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) and
MEC
for Education, KwaZulu-Natal and Others v Pillay
[2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC).
[23]
Section
38 of the Constitution, in relevant part, provides:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
[24]
Fose
v Minister of Safety and Security
[1997]
ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 19.
[25]
Id
at para 60.
[26]
Section
50(1) of the Act provides:
“
Except
where this Act provides otherwise, the Labour Court may make any
appropriate order including—
(a)
on application by the Director-General in
terms of section 37(6) or 39(6) making a compliance order an order
of the Labour Court;
(b)
subject to the provisions of this Act,
condoning the late filing of any document with or the late referral
of any dispute to,
the Labour Court;
(c)
directing the CCMA to conduct an
investigation to assist the Court and to submit a report to the
Court;
(d)
awarding compensation in any circumstances
contemplated in this Act;
(e)
awarding damages in any circumstances
contemplated in this Act;
(f)
ordering compliance with any provision of
this Act, including a request made by the Director-General in terms
of section 43(2)
or a recommendation made by the Director-General in
terms of section 44(b);
(g)
imposing a fine in accordance with
Schedule 1 for a contravention of certain provisions of this Act;
(h)
reviewing the performance or purported
performance of any function provided for in this Act or any act or
omission of any person
or body in terms of this Act on any grounds
that are permissible in law;
(i)
in an appeal under section 40, confirming,
varying or setting aside all or part of an order made by the
Director-General in terms
of section 39; and
(j)
dealing with any matter necessary or
incidental to performing its functions in terms of this Act.”
[27]
55 of 1998.
[28]
Section
9 of t
he
Employment Equity Act provides that, for the purposes of, inter
alia, the prohibition on unfair discrimination in section 6,
“‘employee’ includes an applicant for employment.”
[29]
Regulation
11(1)(a) of the SAPS Regulations above n 6 sets out 13 requirements
with which an applicant for employment in the SAPS
has to comply,
including that he or she must be “at least eighteen (18) and
under thirty (30) years of age”.
[30]
Labour
Court judgment above n 13 at para 23.
[31]
Section 6(1) of the Employment Equity Act (quoted above at [12] of
the main judgment) prohibits
unfair
discrimination against employees or job applicants “in any
employment policy or practice” on one or more grounds,
including age.
Section
1 of the Act (set out above at n 5 of the main judgment) defines
“employment policy or practice” extensively.
[32]
Regulation
11(2) is set out at [61] of the main judgment.
[33]
Section 11 of the Employment Equity Act provides: “Whenever
unfair discrimination is alleged in terms of this Act, the
employer
against whom the allegation is made must establish that it is fair.”
[34]
The
Labour Court stated that the Commissioner “amended” the
age limit for the enlistment of reservists from 30 to
40 years.
See the Labour Court judgment above n 13 at para 10, quoted in the
main judgment at [57]. This statement
does not mean that
the
Regulations themselves
were
amended – and appropriately so, for I can find no suggestion
by the Commissioner, the Task Team, the trial witnesses,
counsel for
the SAPS or counsel for Mr Sali that the Commissioner had amended
the Regulations. In this Court, too, no party
suggested that
the Commissioner had introduced the 40-year age limit by amendment.
The suggestion was canvassed from the
Bench – and counsel for
the SAPS in response expressly disavowed the suggestion. The
SAPS’s case was that the
Commissioner had waived, rather than
amended, the 30-year age limit, but that the waiver was limited in
extent: it allowed reservists
over the age of 30 to be permanently
appointed, but only if they were no older than 40 and had at least
three years’ experience.
[35]
See
the main judgment at [22] to [23], saying that the Task Team
proposed that the Regulations be “amended” and that
in
approving this proposal the Commissioner “purported to amend”
the Regulations. I find no indication that
the Task Team or
the Commissioner understood themselves to be “amending”
the Regulations. Nor, despite the
main judgment at [34], did
the SAPS argue that they did.
[36]
See
the main judgment at [42].
[37]
See
the main judgment at [47].
[38]
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at
paras 21-3.