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

Eight foreign teachers (from Ghana, Swaziland, Zimbabwe and Uganda) were temporarily employed in the North-West Province, formerly by the Bophuthatswana government. They were well-qualified, with most holding post-graduate qualifications. Some were permanent residents of South Africa, some were married to South African citizens with children born in South Africa, and some had been resident for over 10 years. They challenged regulation 2(2) of the Regulations regarding Terms and Conditions of Employment of Educators (Government Gazette 16814 GN R1743 of 13 November 1995) which prohibited the permanent appointment of non-citizens as educators. The regulation was applied during education rationalisation, converting temporary teaching posts to permanent ones. The appellants' temporary contracts had been repeatedly renewed as a matter of course. Approximately 700 foreign teachers were employed in the North-West Province out of about 5,000 nationally (1.5% of the teaching population). The Bophuthatswana High Court (Waddington J) held the regulation discriminatory but justified under section 33(1) due to teacher oversupply (approximately 50,000 teachers facing retrenchment nationally).

• Whether regulation 2(2) constituted unfair discrimination on the ground of citizenship contrary to section 8(2) of the interim Constitution
• Whether citizenship is a specified or unspecified ground of discrimination under section 8(2)
• Whether any discrimination was unfair having regard to the impact on the complainants
• Whether any unfair discrimination was justified under section 33(1) of the interim Constitution
• Whether the regulation was ultra vires the Educators' Employment Act 138 of 1994
• Whether different orders should be made in respect of permanent residents versus temporary residents
• The interpretation and effect of regulation 5(1) on regulation 2(2)

The appeal was allowed with costs (including costs for two counsel). Regulation 2(2) was declared inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and invalid. The order of Waddington J in the court below was set aside. The respondents were ordered to pay the applicants' costs. Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, O'Regan J, and Sachs J all concurred in the judgment of Mokgoro J.

Discrimination on the ground of citizenship constitutes discrimination under section 8(2) of the interim Constitution because citizenship is based on attributes and characteristics that have the potential to impair fundamental human dignity, given that non-citizens are a vulnerable minority with little political power and citizenship is an immutable or difficult-to-change characteristic. Such discrimination is unfair, particularly against permanent residents, where it denies them employment opportunities despite their having been permitted to enter and remain in the country permanently. Permanent residents who have been selected for residence and are entitled to citizenship within years should be treated no differently from citizens when it comes to employment opportunities, unless posts require citizenship due to particular political sensitivity. The limitation of equality rights through a blanket prohibition on permanent appointment of non-citizens is not justified under section 33(1) where: (1) it is illegitimate to reduce unemployment among citizens by increasing unemployment among permanent residents; (2) the government has made a commitment to permanent residents by permitting their entry; and (3) the measure compromises the primary aim of providing quality education. A negotiated or collectively bargained provision does not justify unfair discrimination against a vulnerable minority.

The Court made several non-binding observations: (1) regarding the interpretation of regulation 5(1) and its relationship to regulation 2(2), the Court noted the interplay was complex and the meaning unclear, but declined to make a final determination as even a broad interpretation would not neutralize the discrimination; (2) the Court noted that citizenship requirements may be appropriate for posts with particular political sensitivity (citing Constitutional Court judges, Public Protector, members of Parliament, and human rights commissioners); (3) the Court observed that the practice of employing teachers on repeatedly renewed 'temporary' contracts for extended periods (in some cases over 10 years) with indefinite terms, increments, and provident fund membership raised questions about whether such employment was truly 'temporary' in substance; (4) the Court commented that the apartheid policy of denationalisation on the basis of race was a major human rights violation, though clarified this was more invasive than regulation 2(2); (5) the Court noted it could not be sure whether limiting the declaration to permanent appointments would do injustice to temporary residents given uncertainty about what other disadvantages attached to 'temporary' educator status; and (6) the Court observed that reducing unemployment among citizens may in certain circumstances be a legitimate aim, particularly when thousands of qualified educators are unemployed, but this must never compromise the primary aim of quality education.

This is a landmark case establishing that discrimination on the basis of citizenship can constitute unfair discrimination under section 8 of the interim Constitution. It was one of the first cases to apply the equality framework later refined in Harksen v Lane, examining whether differentiation constitutes discrimination and whether such discrimination is unfair. The judgment is significant for: (1) recognising non-citizens, particularly permanent residents, as a vulnerable group deserving constitutional protection; (2) establishing that permanent residents should generally be treated the same as citizens for employment purposes unless citizenship is required for particular political sensitivity; (3) emphasising that collective bargaining or negotiated agreements cannot justify unfair discrimination against minorities; (4) placing education quality as the primary objective over employment creation; (5) demonstrating sensitivity to South Africa's apartheid history of using citizenship/nationality as a proxy for racial discrimination; and (6) showing the Court's willingness to strike down regulations that discriminate against vulnerable minorities even in contexts of scarce resources and high unemployment. The case remains an important authority on the rights of non-citizens and the scope of equality protection in South African constitutional law.