Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another

The appellants were eight foreign nationals employed as temporary teachers in the North-West Province, formerly under the Bophuthatswana administration. Although well qualified and in many cases long‑term residents of South Africa, they were barred from permanent appointment as educators by regulation 2(2) of regulations issued under the Educators’ Employment Act 138 of 1994, which required South African citizenship for permanent appointment. During a nationwide rationalisation of education departments, their posts were advertised and they received notices of termination based solely on lack of citizenship. They challenged the regulation as unconstitutional discrimination and, alternatively, as ultra vires the enabling Act.

The appeal was upheld. Regulation 2(2) was declared unconstitutional and invalid to the extent that it barred non‑citizens from permanent appointment as educators. The respondents were ordered to pay the costs.

This was the first Constitutional Court decision to recognise citizenship as a ground of discrimination capable of violating the equality clause. It affirmed that non‑citizens are entitled to constitutional protection against unfair discrimination and clarified the equality analysis framework under the Interim Constitution, particularly following Hugo, Prinsloo and Harksen.