By Duncan Wild on 28 September 2014

The case concerns whether the age requirement in the recruitment polices of the South African Police Service (“SAPS“), unfairly discriminate of the basis of age.

The Constitutional Court denied the applicant leave to appeal on the basis that he had only raised a challenge to constitutionality of  the SAPS recruitment age bar on appeal, which is not acceptable. In addition, the Commissioner of the SAPS had raised the age bar from 30 years, which is set in the application regulations, to 40, and if the Court were to set aside the decision to raise the age limit to 40 years, this would leave the applicant in worse position, by leaving the 30 year age limit in place. The the Constitutional Court held would not be in the interests of justice.

The applicant, Mr Daluzolo Sali, was a police reservist, and in 2009, applied for a permanent position in the SAPS.  He was informed that he had been successful, and that subject to a medical examination, he would be appointed. He passed the medical examination, but was not offered a position. In answer to his enquiries as to why he was not appointed, he was told that he was over age. He then referred a dispute to the Centre for Conciliation Mediation and Arbitration (“CCMA“) claiming that he had been discriminated against on the basis of age. The matter was not resolved at the CCMA and so was referred to the Labour Court for resolution.

The SAPS answered the claim on the basis that the position required that to be successful and applicant would have be no older that 40 years old, and have more than 3 years experience, and Mr Sali fulfilled neither of these requirements, so was not appointed.

At the time Mr Sali applied for the position, it was not disputed that he was 41 years and 11 months old, and had been a reservist for 2 years and 11 months.

Section 6(1) of the Employment Equity Act 55 of 1998 (“EEA“) provides that:

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.

The employee must prove that a policy or practice the discriminates against him, and the employer must then prove, that, if there was discrimination, it was fair.

The Labour Court, considered first that, despite Mr Sali’s claims, the age and experience requirements, were in place and known to him at the time of his application. The age requirement is located in Regulation 11 of Regulation R203, dated 14 February 1964 as amended (“the Regulation“). Regulation 11(1)(a)(iii) of the Regulation provides that an applicant must be at least 18 and not more that 30 years of age. The age may be changed by the National Commissioner, and the Court accepted that the National Commissioner had done so, changing the requirement to require a maximum age of 40 years. The Labour Court found that at the relevant time, Mr Sali was over 40 years old and so did not meet this requirement.

However, the Court found that the relevant time for determining whether an applicant had three years experience was the date of the interview, and not the date of the application.  At the time of the interview, Mr Sali had more than three years experience at the time of the interview and so met this requirement.

Therefore, Mr Sali did not meet the age requirement but did meet the experience requirement, at the relevant time.

The Labour Court, then went on to consider whether Mr Sali had been discriminated against. The SAPS argued that the if there was discrimination, it was not found in a SAPS “policy or practice”, as required under section 6 of the EEA, but was sourced in the Regulation. The Labour Court found that as Mr Sali did not meet the requirements, and as the requirements was found in regulations, the SAPS could not appoint Mr Sali in contravention of these regulations.  Therefore, the Labour Court therefore found that Mr Sali had not been discriminated against.

In the Constitutional Court, Mr Sali argues that the Labour Court was wrong to exclude the Regulations from the meaning of “policy or practice”, and that the age requirement, is unfairly discriminatory and should be struck from the Regulations.  He does so on the basis that the age limit is arbitrary, and does not fulfil a legitimate purpose.

The majority of the Constitutional Court, in a judgment written by Justice Cameron with Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Froneman J, Khampepe J, Madlanaga J, Majiedt AJ, Van der Westhuizen J and Zondo J concurring, found that it was not acceptable the the applicant had raised the challenge to the age bar based on its unconstitutionality on appeal. The majority stated that in order to allow the Constitutional Court to properly consider a constitutional challenge, with full information and argument before it, a party seeking to challenge legislation on constitutional grounds must do so clearly and at an early stage. In the present matter neither the parties nor the judge had addressed the question of the constitutionality of the Regulations at the trial.

Moreover, as the decision in question was the Commissioner’s waiver of the 30 age limit and imposition of a 40 year limit, setting that decision aside would leave the 30 year limit in place, leaving the applicant and those similarly placed in a worse position.

Given the above the Constitutional Court found it was not in the interests of justice to grant leave to appeal.

Justice Jafta wrote a dissenting judgment in which he found that the Labour Court had erred in finding that the age limit was not an “employment policy or practice”, and so he would have found that the decision was reviewable. Jafta J then considered the policy and found it to be unfairly discriminatory. He would therefore have upheld the appeal and remitted the matter to the Labour Court to determine appropriate relief.

Download the judgment here.