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

The applicant, Mr Daluxolo Nicholas Sali, joined the South African Police Service (SAPS) as a reservist in 2006, stationed at Humewood Police Station in Port Elizabeth. Reservists performed police functions but were not employees and received no remuneration. In 2009, reservists nationwide demanded permanent appointment as SAPS members. Many reservists were over 30 years old and therefore did not qualify for appointment under Regulation 11(1) of the SAPS Regulations, which required applicants to be between 18 and 30 years of age. Following a summit in March 2009, a Task Team proposed amending the requirements for reservists, including raising the age limit to 40 years and requiring three years' experience. The National Commissioner approved this proposal in May 2009. In September 2009, Mr Sali, then 41 years and 10 months old, applied for two SAPS vacancies. One vacancy required applicants to be between 41 and 45 years old. Mr Sali passed all required tests, including medical and physical fitness assessments, and was told he would be appointed. However, in January 2010, he was informed that he would not be appointed because he was over 40 years old. Mr Sali's Station Commissioner requested that the age requirement be waived in his favor, but received no response. Mr Sali referred the matter to the CCMA under section 10 of the Employment Equity Act, alleging unfair age discrimination. Conciliation failed and he instituted proceedings in the Labour Court in April 2010. The Labour Court dismissed his claim, finding that the discrimination arose from legislation (the purportedly amended Regulations) rather than an employment policy or practice, and thus fell outside section 6 of the Employment Equity Act. Both the Labour Court and the Labour Appeal Court refused leave to appeal.

• Whether leave to appeal should be granted to bypass the Supreme Court of Appeal and come directly to the Constitutional Court
• Whether the National Commissioner had power under Regulation 11(2) to amend the SAPS Regulations or only to waive requirements
• Whether Regulation 11(1) of the SAPS Regulations should be declared constitutionally invalid for age discrimination
• Whether the decision not to appoint Mr Sali was based on legislation (the Regulations) or an employment policy or practice within the meaning of section 6(1) of the Employment Equity Act
• Whether the age-based differentiation constituted unfair discrimination under section 9(3) of the Constitution and section 6(1) of the Employment Equity Act
• Whether the SAPS discharged its onus under section 11 of the Employment Equity Act to prove that any discrimination was fair
• What remedy would be appropriate if unfair discrimination was established

The application for leave to appeal was refused by majority decision (10-1). There was no order as to costs given the constitutional importance of the issues raised and Mr Sali's indigence.

The binding legal principles established by the majority judgment are: 1. A constitutional challenge to legislation must be explicit and properly raised in the court of first instance, with due notice to all affected parties, to ensure the correct order can be made, all interested parties can make representations, relevant evidence can be led, and separation of powers is respected (applying Phillips v National Director of Public Prosecutions). 2. It is not in the interests of justice to grant leave to appeal where the Court cannot give effective relief because the applicant has failed to challenge the underlying statutory provision that is the ultimate source of the grievance. 3. A court will not grant relief that would place an applicant in a worse position than if no relief were granted, particularly where this results from failure to properly frame the constitutional challenge. 4. The principle of constitutional subsidiarity applies - where legislation gives effect to a constitutional right, claimants must base their claim on that legislation rather than directly on the Constitution (following Mazibuko and Pillay). The minority judgment's reasoning on waiver vs. amendment and the interpretation of Regulation 11(2) is obiter as leave to appeal was refused.

The minority judgment by Jafta J contains important obiter observations on age discrimination and employment equity: 1. Age discrimination is a serious constitutional concern that must be treated with equal gravity to other listed grounds such as race and gender under section 9 of the Constitution. 2. Under Regulation 11(2), the National Commissioner has discretionary power to waive requirements in Regulation 11(1) in exceptional circumstances where it would be in the interest of the SAPS, but this power does not extend to amending the Regulations. Waiver and amendment are distinct legal concepts. 3. The power to waive appointment requirements exists to give the SAPS flexibility in acquiring scarce skills necessary for performing its constitutional mandate, not to create new and different requirements. 4. Under section 11 of the Employment Equity Act, the burden of proving fairness rests on the employer once unfair discrimination is alleged, and is triggered by mere allegation. 5. Discrimination based on a listed ground (such as age) is presumed to be discrimination which is further presumed to be unfair. The applicant need only show differentiation based on a listed ground for the double presumption to be triggered. 6. An "employment policy or practice" as defined in the Employment Equity Act includes recruitment procedures and selection criteria but does not cover legislation itself. Where discrimination is authorized by legislation, the claimant must challenge the constitutional validity of that legislation. 7. Evidence based on hearsay and generalized assumptions about age-related performance has little probative value in justifying age discrimination where the individual applicant has demonstrated actual ability through passing required tests. These observations provide guidance on the interpretation of employment equity legislation and the approach to age discrimination claims, though they are not binding given the refusal of leave to appeal.

This case demonstrates the strict procedural requirements for constitutional challenges to legislation in South Africa. It establishes that: 1. Constitutional challenges must be clearly and properly raised in the court of first instance with adequate notice to affected parties, and cannot be raised for the first time on appeal except in exceptional circumstances. 2. Courts will refuse to grant relief where doing so would be ineffective or place the applicant in a worse position due to failure to challenge the underlying statutory provision. 3. The principle of constitutional subsidiarity requires claimants to rely on legislation giving effect to constitutional rights rather than directly on the Constitution. 4. Age discrimination in employment is recognized as raising important constitutional issues under section 9 of the Constitution and the Employment Equity Act. 5. The distinction between waiver and amendment of statutory requirements is significant - a power to waive does not include power to amend unless expressly granted. The case highlights the practical difficulties faced by applicants challenging age limits in public sector employment and the importance of properly framing constitutional challenges from the outset. The majority's refusal to grant leave on procedural grounds meant the substantive question of whether age limits for police employment constitute unfair discrimination remained unanswered.