Sali v National Commissioner of the South African Police Service and Others

The applicant, Mr Daluxolo Nicholas Sali, served as a police reservist with the South African Police Service (SAPS) from 2006. Reservists performed full police functions but were unpaid volunteers. In 2009 SAPS considered appointing reservists as permanent members. Regulation 11(1) of the SAPS Regulations set an age limit for appointment as a permanent member. Following protests, a task team proposed amendments allowing reservists to be appointed if under 40 years and with three years’ experience. The applicant applied for permanent posts in 2009, passed all tests, and was initially informed he would be appointed. In January 2010 he was told he would not be appointed because he was over 40 years old. He alleged that the refusal constituted unfair age discrimination under section 6 of the Employment Equity Act (EEA). The Labour Court dismissed his claim, holding that the decision was based on legislation (the Regulations) and thus fell outside the scope of section 6 of the EEA. Leave to appeal was refused by both the Labour Court and the Labour Appeal Court, prompting an application for leave to appeal to the Constitutional Court.

The application for leave to appeal was refused. No order as to costs was made.

The case reinforces the principle of constitutional subsidiarity and the procedural requirement that constitutional challenges must be clearly raised in the court of first instance. It confirms that where alleged discrimination is authorised by legislation, a claimant must properly challenge the constitutionality of that legislation rather than rely solely on the Employment Equity Act. The judgment also underscores the importance of precision in constitutional pleadings.