Case no: _________
LABOUR COURT CASE NO: P246/10 LABOUR APPEAL COURT CASE NO: PA9/13
In the matter of the petition of:
DALUXOLO NICHOLAS SALI APPLICANT
and
NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES FIRST RESPONDENT PROVINCIAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICES SECOND RESPONDENT MINISTER OF SAFETY AND SECURITY THIRD RESPONDENT
FOUNDING AFFIDAVIT
I the undersigned,
DALUXOLO NICHOLAS SALI
do hereby make oath and state:
INTRODUCTION:
1. I am an adult male residing at 9 Makhangiso Street, NU 6, Swartkops Valley, Motherwell, Port Elizabeth. The content of this affidavit falls within my personal knowledge unless otherwise stated and is also true and correct to the best of my knowledge. Where I make legal submissions hereinunder, I do so on the advice of my legal representative.
2. I am seeking leave to appeal to this Honourable Court against the order of the Labour Court dismissing my application for appointment and related relief, as will be set out below. This Application is brought within the time periods as set out in the Rules of this Honourable Court.
The Applicant has until 22 November 2013 to file this Application that is 15 days after the refusal by the Labour Appeal Court to grant the Applicant leave to Appeal.
3. The First Respondent is the National Commissioner of the South African Police Services, established in terms of the South African Police Services Act, 68 of 1995. The Second Respondent is the Provincial Commissioner of the South African Police Services established in terms of the South African Police Services Act, 68 of 1995. The Third Respondent is the Minister of Safety and Security. The Respondents are herein referred to as the South African Police Services, an organ of state duly established under Statute and further having the capacity to litigate in its own name. The Respondents has chosen the offices of the State Attorney, Port Elizabeth as the address at which it will accept notice and service of all process in the proceedings.
4. I seek leave to appeal to the Constitutional Court as my constitutional rights are infringed by the judgment of Her Ladyship, Lallie J, in the Labour Court of South Africa under case number: P246/10. A copy of
the judgment in the Labour Court case against which leave to appeal is sought is annexed hereto as ANNEXURE DNS 1.
5. I first sought Leave to Appeal against the said judgment from the Labour Court itself and in terms of the Rules of the Labour Court filed Heads of Argument, a copy of which is annexed hereto as ANNEXURE DNS 2. Her Ladyship, Lallie J, refused leave to appeal in chambers.
This judgment is annexed hereto as ANNEXURE DNS 3.
6. The Labour Court dismissed my application for leave to appeal without addressing any of the concerns raised in the Leave to Appeal application as amplified in the attached Heads of Argument.
Furthermore, the Labour Court also failed to have any regard to my concerns that my constitutional rights had been infringed and my request to have the matter enrolled for oral hearing due to the importance of this matter. It was specifically submitted in my Heads of Argument that if the leave to appeal application was considered in chambers it will make “dangerous inroads into our system of justice which ordinarily requires court proceedings that affect the rights of parties to be heard in public”.
7. After the Labour Court dismissed my leave to appeal application, I approached the Labour Appeal Court on petition for leave to appeal.
The Respondents opposed this petition. On 30 October 2013 the Labour Appeal Court per the Honourable Justices Tlatstsi ADJP, Musi AJA and Mokgoathleng AJA dismissed my petition with no order as to costs. I attach this order hereto as ANNEXURE DNS 4.
8. I considered the option to approach the Supreme Court of Appeal for special leave as was granted by that Court in the matter of Republican Press v CEPPWAWU [2007] SCA 121 (RSA).
9. However I am advised that since the decision in Republican Press v CEPPWAWU our Constitution was amended with effect from 23 August 2013 to state:
“168 (3) (a) The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament.
(b)The Supreme Court of Appeal may decide only (i) appeals;
(ii) issues connected with appeals; and
(iii) any other matter that may be referred to it in circumstances defined by an Act of Parliament.
10. The Act of Parliament currently curtailing the Supreme Court of Appeal’s jurisdiction is the Labour Relations Act 66 of 1995. In terms of this Act, read with the amendment to our Constitution, I am barred from approaching the Supreme Court of Appeal for special leave.
11. My remedies are therefore exhausted, save in so far as I seek Leave to Appeal from this Honourable Court because of the infringement of my constitutional rights. I am not seeking leave to appeal on a broader basis as I submit that the new Superior Courts Act, 10 of 2013, which come into operation on 23 August 2013, is not applicable in my case as section 52 of that Act determines that it is not applicable where a matter was commenced prior to 23 August 2013. Therefore this appeal is solely based on the infringement of my constitutional rights.
LABOUR COURT CASE
12. The dispute centred on my claim that the Respondents discriminated against me based on my age by not enlisting me as a permanent member of the South African Police Services. The dispute was first referred to conciliation, whereafter the matter was referred for adjudication by the Labour Court.
13. I applied for enlistment as a permanent member of the SAPS and my application was ultimately unsuccessful. The primary reason for my unsuccessful application for employment, as communicated to me, was my age as I was over 40 years at the time I applied for employment.
14. Requirements for the appointment of Police Officers are set out in terms of Regulation 11 of Regulation R203 of 14 February 1964, as amended, (hereinafter referred to as “the Regulation”). I attach regulation 11 as an extract from the Regulation hereto as ANNEXURE DNS 5. Regulation 11 (1)(a)(iii) determines that a person applying to be appointed must be between the ages of 18-30 years. Regulation 11(2) states that the National Commissioner can in his/her discretion and in exceptional circumstances waive these requirements in the interest of the Police Service.
15. According to the evidence before the Labour Court the National Commissioner decided that a person who has been a reservist, as I was, can be appointed if such a reservist was under the age of 40 years. Please find a document setting this out annexed hereto as ANNEXURE DNS 6.
16. Although I went through all the processes and I passed the physical fitness assessment, psychometric essay and the interview, I was not appointed as I was 41 years old at the time.
17. The Respondents contended that I was too old and therefore they were not allowed to appoint any person (including me) contrary to the requirements stipulated in the Regulation. They also argued that the Regulation does not fall within the definition of “employment policy or practice” as per the definition of the Employment Equity Act 55 of 1998 (hereinafter referred to as “EEA”). Based on this submission they contended that my claim did not fall within the ambit of the EEA.
18. I claimed the following relief in the Labour Court that:
18.1. The Respondents be ordered to pay damages or compensation to me equal to R500 000.00 or an amount equal to two years’
salary which I would have earned had I been permanently appointed, whichever is the greater or
18.2. The Respondents permanently appointing me in the position I applied for with retrospective effect and/or
18.3. The Respondents be directed to eliminate unfair discrimination on the basis of age in respect of the Respondents’ recruitment policies and/or
18.4. A declaratory order be issued that the provisions of the Regulation in relation to a minimum age requirement for permanent employment is discriminatory in nature and without any justification and therefore amounts to unfair discrimination based on age and is accordingly invalid.
19. My claim failed as the Labour Court:
19.1. Incorrectly declined to interpret the Regulation in light of the EEA and our Constitution.
19.2. Incorrectly found that the Regulation is the culmination of discussions on employment of reservists during which I, through my representatives, consented to the age restriction which forms part of the contents of the Regulation, therefore wrongly finding that I was represented or co-determined the age restriction.
20. One of my primary complaints was that the Respondents were required to refrain from embracing any recruitment policy which contained discriminatory components. Save for the Regulation there was no justifiable reason(s) as to why the age criteria should have barred me from permanent employment. I successfully underwent all assessments necessary before appointment. The entire enlistment process was followed until completion thereof. I was advised that I will be furnished with a written contract for employment. When this was not
forthcoming, and after making the necessary enquiries, I was advised that they will be unable to appoint me due to my age.
21. At the time of application for enlistment until date hereof, I served as an active reservist in the SAPS, performing the same duties as the permanent members of the Respondents, such as having the power to make arrests, and to carry a firearm.
22. In dealing with my contentions and submissions in relation to this particular issue, the Court a quo rejected my fundamental premise by finding that the Respondents were barred from appointing me as a result of “law”.
23. The Labour Court erred in concluding that the Respondents were bound to the Regulation. The Labour Court failed to exercise the Court’s inherent power and duty to interpret the relevant definition of the EEA with due regard to the provisions of the EEA read with the Constitution, and furthermore, erred in failing to exercise its duty to declare the Regulation unfair and unconstitutional in so far as it discriminates against me and others on the listed ground of “age”.
24. The Respondents’ opposition to my petition to the Labour Appeal Court stated that I had at “no stage prior to the commencement of the trial”
before the Labour Court “or during the trial” indicated that I will seek an order that the Regulation should be declared unlawful. However this submission is incorrect. In my statement of case I asked for an order directing the Respondent to eliminate unfair discrimination based on age from its recruitment policies. In the pre-trial minute this was expanded to a request for a declaratory order that the Regulation dealing with the age restriction is discriminatory and without justification. If discrimination is without justification it is thus unlawful and no court can allow unlawful discrimination to continue. In the cross- examination of the Respondents’ witnesses these issues were raised extensively. It has been my case throughout that the Respondents have discriminated against me on the basis of my age and that the
Respondents should be ordered to eliminate the age restriction from their recruitment policies. This was also the argument that my legal representative addressed in her written Heads of Argument before the Labour Court.
25. A Court, acting reasonably, must conclude that the Labour Court approached the matter on the strength of an incorrect factual and legal premise, and one not supported by the Respondents’ own characterisation of the substance of its “defence”. This was of course a dispute in respect of which the Respondents bore the onus of proof.
26. It is respectfully submitted that it was incumbent upon the Labour Court to interpret and apply the provisions of the EEA against the backdrop of the Constitution and that the Labour Court failed herein.
27. In my application for leave to appeal before the Labour Court I raised various grounds, which included the manner in which that Court interpreted the relevant provisions of the EEA, without having regard to constitutional principles, which I am advised is the foundation of the EEA. The judgment by the Labour Court endorsed the findings of Khanyile v Minister of Education and Culture, Kwa-Zulu-Natal and Another. It is submitted that the Labour Court erred in that this judgment was quite distinguishable from the facts which served before the Labour Court. Furthermore the Labour Court had no consideration to the relevant provisions of the EEA and Constitution whilst interpreting the issues which served before it.
28. Under the specific circumstances, my constitutional rights were infringed during the recruitment process in that the Respondents discriminated against me on the basis of my age. My constitutional rights were also infringed during the Leave to Appeal procedure in that I was not afforded the opportunity to address the Labour Court regarding the various constitutional aspects relevant to this matter.
THE CRUX OF THE APPEAL:
29. In addressing the crux of the appeal, I will refer to the principles applicable to the relevant interpretation of the EEA given the objectives of employment legislation and the Constitution, as well as the Court’s obligation to declare regulations which are unconstitutional invalid.
30. I now proceed to deal with specific issues under specific headings:
Interpretation of EEA provisions
31. The Labour Court held in the judgment at paragraph 23 that legislation is excluded from the EEA’s definition in respect of an “employment policy or practice” which prohibits unfair discrimination.
32. That Court erred herein by:
32.1. Adopting a narrow approach in interpreting the term
“employment policy or practice” instead of interpreting the term by applying Section 3 of the EEA and interpreting the provisions in compliance with the Constitution.
32.2. Failing to attach due weight to the purpose of the EEA as set out in section 2 thereof, and application of the EEA as set out in section 4(1) thereof.
32.3. Failing to adopt a “purposive” approach as is required in terms of our Constitution.
32.4. Effectively failing to elect the interpretation that best gives effect to the Constitution.
32.5. Failing to conclude that the EEA, with reference to Chapter 1 thereof, does not specifically exclude, alternatively lists
“legislation”, as any legislation automatically forming part of any policy or practice adopted in the workplace.
33. Therefore, I respectfully submit that this Court could reasonably conclude that the term “employment policy or practice”, properly and reasonably interpreted, includes all aspects relevant to the recruitment selection criteria (appointment process) inclusive of underlying legislation, regulations and discretionary powers relevant thereto.
Unfair discrimination in the regulation
34. The Labour Court held at paragraph 26 that I cannot obtain relief by being appointed in breach of the Regulation, and that the Respondents cannot be restrained from enforcing the age restriction determined by a regulation in that no one may renounce a right contrary to law.
35. In reaching this conclusion, the Labour Court erred by not having due regard to the following:
35.1. Legislation containing unfair discrimination which is not justifiable under section 36 of the Constitution, must be declared invalid.
35.2. A regulation is “legislation” for the purposes of the Constitution, although there was no obligation on the Labour Court to refer a finding of unconstitutionality to this Honourable Court.
35.3. Discrimination on the listed ground of “age” will automatically be unfair, unless the Respondents were able to show that the discrimination is not unfair due to inherent requirement of the job or that it is justifiable under section 36 of the Constitution.
35.4. The EEA provides that the Act must be interpreted “...in compliance with the international law obligations of the Republic, in particular those contained in the International Labour
Organisations Convention (No 111) concerning Discrimination in Respect of Employment and Occupation.”
35.5. Convention 111 defines “discrimination” as: “... any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” But it includes “...such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.”
35.6. South Africa, as a member state and after the envisaged consultation within NEDLAC, included age as a specified ground of discrimination in the EEA.
35.7. The EEA also gives effect to the constitutional imperative in section 9 of the Constitution.
35.8. The Court in HOSPERSA obo Venter v SA Nursing Council [2006] 6 BLLR 558 (LC) at par 32 therefore held that discrimination on the ground of age, as prohibited in EEA, is absolutely prohibited if interpreted in compliance with ILO and Convention 111.
35.9. When examining the constitutional validity of legislation, a court is obliged in terms of section 172(1) to declare such legislation invalid to the extent of its inconsistency with the Constitution.
35.10. Our Constitutional Court specifically held in Van der Merwe v Road Accident Fund (2006) SA 230 (CC) at paragraph 61 that
“The constitutional obligation of a competent court to test the objective consistency or otherwise of a law against the Constitution does not depend on and cannot be frustrated by the conduct of litigants or holders of the rights in issue. Consequently, the submission that a waiver would, in the context of this case, confer validity on a law that otherwise lacks a legitimate purpose has no merit”.
35.11. The Labour Court neglected to properly consider the effect of section 63 of the EEA, which provides that should any conflict arises between a provision in the EEA and any other law - excluding our Constitution - the provisions of the EEA prevails.
35.12. The Labour Court should have found that the provisions of the EEA prevail where other legislation, such as the relevant Regulation is in conflict with its core purpose.
35.13. Unfair discrimination entitles me, as an applicant for employment, to redress.
36. In light of the above, this Court may conclude that the Regulation and any discretionary power exercised in terms thereof, resulted in unlawful discrimination and that the Regulation and any discretion exercised thereunder is unconstitutional.
Agreement to the age restriction
37. The Court wrongly concluded that I consented to the age restriction and that I cannot claim that the age restriction, which I “co- determined”, discriminates against me. I have never been part of the process, nor did I belong to any grouping that agreed to such a restriction. Alternatively no agreement would have any value as the discretion in the Regulation is given to the National Commissioner and is not determined by way of agreement.
38. Further Alternatively and in the event that the submissions in the previous paragraph are incorrect, then I submit that the Honourable
Court erred in not having regard to dictum of the Honourable Mr Justice Olivier in Transnet Ltd v Goodman Brothers (Pty) Ltd 2001(1) SA 853 (SCA), at paragraph 48 thereof, that a fundamental right can only be limited if the test in section 36 of the Constitution is satisfied.
39. The evidence during the trial shows no rationale for the age provision, other than that older persons are not as fit or as academically inclined as younger persons. However, I had successfully completed the fitness and academic tests utilised to determine fitness and academic suitability for the position. I thus submit that another Court may conclude that I did not consent to the age restriction, alternatively that no person can consent to discrimination that infringes on his/her basic constitutional rights.
Unjustifiable discrimination
40. The evidence shows that I was sufficiently fit and academically inclined to successfully do the work.
41. The Respondents conceded during cross-examination that a 70- year-old person with sufficient skill to pass the fitness and academic tests will be able to perform the duties successfully.
42. It is also their evidence that many persons older than 40 years are successfully performing duty in the position for which I applied.
In fact, I have been performing the same duties during my employment as a reservist for the last three years and am currently successfully performing those duties.
43. The Respondents was thus unable to show any reasonable objective why a person older than 30 or even 40 years cannot be appointed.
44. Refusal to appoint a person solely on the unsubstantiated assumption that the person is too old or too young would constitute a clear case of
direct age discrimination according to the judgment in Swart v Mr Video (Pty) Ltd [1997] 2 BLLR 249 (CCMA) at page 252.
45. The only test to apply is whether a limitation of the right would be fair in light of the provisions of section 36 of our Constitution, and in this regard, the Respondents, bearing the onus, have failed to justify the limitation.
46. I respectfully contend that on any of the above-mentioned grounds I would have been entitled to an order in terms of the relief sought before the Labour Court. The Labour Court had thus misdirected itself to my prejudice and I should be given leave to appeal to this Court to appeal against the order. The Labour Appeal Court equally misdirected itself in not granting me leave to appeal.
WHEREFORE I PRAY for the relief as set out in my Notice of Motion.
__________________________
DALUXOLO NICHOLAS SALI
I certify that the Deponent has acknowledged that he knows and understands
the contents of this affidavit which was signed and sworn to before me at PORT ELIZABETH on this 14th day of NOVEMBER 2013 the Regulations
contained in Government Notice No. R1258 of 21 July 1972, as amended, having been complied with.
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