Sekhoshe Days Ramaila v Minister of Justice and Correctional Services and Others

The applicant, Mr Sekhoshe Days Ramaila, was appointed as a Senior State Law Adviser in the Department of Justice and Constitutional Development on 2 March 2015, recruited from private practice where he worked as an attorney. He was appointed together with five other State Law Advisers at the same time, at the same salary level and minimum notch, with identical job requirements, key result areas, and performance agreements. After a performance assessment for the financial year 2015/2016, Mr Ramaila achieved an overall annual rating of 100% (fully effective), as did two of his colleagues, Ms Veounia Grootboom and Ms Lucinda le Roux. However, unlike his colleagues who had been appointed from within the public service, Mr Ramaila was denied annual pay progression. The reason given was that as a "new appointee to the public service" (first time participant), he was required to complete 24 months of service before qualifying for pay progression, whereas employees appointed from within the public service qualified after only 12 months. This differentiation stemmed from PSCBC Resolution 1 of 2012, which amended PSCBC Resolution 9 of 2001 and extended the qualifying period for pay progression from 12 to 24 months for "first time participants" – defined as new appointees to the public service, including those who had previously resigned and were re-appointed. The stated objective was "to develop and professionalise the public service." This policy was implemented through the Incentive Policy Framework issued by the Minister of Public Service and Administration and the Department's Performance Management Policy. Mr Ramaila complained to the Department and the DPSA, but received no satisfactory response. He then referred an unfair discrimination dispute to the CCMA, which was not resolved, leading to this application to the Labour Court.

• Whether the differentiation in pay progression qualifying period between first time participants (24 months) and other employees (12 months) is rational and bears a rational connection to the stated objective of developing and professionalising the public service
• Whether the differentiation amounts to discrimination on an arbitrary ground within the meaning of section 6(1) of the Employment Equity Act
• Whether such discrimination, if established, is unfair discrimination
• Whether PSCBC Resolution 1 of 2012 (clauses 4.1 to 4.3), the Incentive Policy Framework, and the Performance Management Policy constitute administrative action reviewable under the Promotion of Administrative Justice Act (PAJA)
• Whether the differentiated pay progression policy is justified under Employment Equity Regulations 7(1)(a), (f) and (g) and 7(2)(a) and (b)
• What is the appropriate test for establishing unfair discrimination on an arbitrary/unlisted ground under section 11(2) of the Employment Equity Act

The Court made the following order: 1. The differentiation in clause 6 of the Incentive Policy Framework extending the qualifying period for pay progression for first time participants from 12 to 24 months is declared irrational, arbitrary and unfairly discriminatory against the applicant and other first time participants. 2. The differentiation in clause 6 of the Performance Management Policy of the Department of Justice providing that newly appointed employees qualify for pay progression only after 24 months is declared irrational, arbitrary and unfairly discriminatory. 3. Clauses 4.1 to 4.3 of PSCBC Resolution 1 of 2012 are reviewed and set aside. 4. The decision of the Department not to grant the applicant pay progression is declared invalid. 5. The first and third respondents are ordered to direct the relevant functionary to effect the necessary salary adjustment to reflect the pay progression the applicant is entitled to for financial year 2015/2016 and all consequent pay progression adjustments. 6. The first to third respondents are ordered to pay the applicant's reasonable costs and disbursements, jointly and severally.

The binding legal principles established by this judgment are: 1. A differentiation in terms and conditions of employment (including pay progression qualifying periods) must bear a rational connection to the legitimate objective it purports to serve. The objective must be achieved through means that are "appropriate and effective" – it is insufficient for the objective itself to be legitimate. 2. Where employees perform the same work or work of equal value, have identical job requirements, performance agreements and key result areas, start at the same salary level, and achieve the same performance outcomes, differentiation in pay progression based solely on whether they were appointed from outside or within the public service constitutes discrimination on an arbitrary ground under section 6(1) of the Employment Equity Act. 3. Such discrimination is unfair where it: (a) creates pay disparity between employees doing identical work; (b) results in perpetual disadvantage; (c) renders performance achievements meaningless; and (d) has no rational connection to its stated purpose. 4. Clauses in PSCBC Resolutions that amend conditions of service are deemed to be ministerial determinations under section 5(6)(a) of the Public Service Act and constitute administrative action reviewable under PAJA. 5. Policy frameworks and directives issued by the Minister of Public Service and Administration to implement PSCBC Resolutions constitute administrative action under section 1(a)(ii) of PAJA. 6. Administrative action that results in irrational differentiation not connected to its stated purpose, or that constitutes unfair discrimination, may be reviewed and set aside under section 6(2)(f)(ii)(aa) and 6(2)(i) of PAJA. 7. Differentiation based on "length of service" for purposes of the Employment Equity Regulations must be genuine recognition of service duration, not a proxy for other arbitrary distinctions such as employment source (internal vs. external appointment). 8. Public functionaries have a constitutional duty under section 195 and a statutory duty under section 5(7)(a) of the Public Service Act to investigate and correct irregularities and unlawfulness in public administration, particularly in employment matters, when they become aware of them.

The Court made several notable obiter observations: 1. On the quality of legal representation: The Court commented extensively on the unprofessional conduct of the respondents' legal team, including late delivery of papers, late applications to amend causing postponements, arriving late to court, and bringing unpaginated bundles. The Court contrasted this with the excellent self-representation by Mr Ramaila, noting that "the old adage of a litigant representing himself 'having a fool as a client' did not apply in this case" and that his work "would put many practising counsel to shame." 2. On the Compulsory Induction Programme: The Court observed that the Department enrolled the applicant in the phased-out Public Sector Induction Programme instead of the required Compulsory Induction Programme, confirmed his probation based on this erroneous completion, and then failed to correct this error even after it became apparent during litigation. The Court noted this failure was particularly inexplicable given the stated objective of the policy was to "develop and professionalise" the public service. 3. On the CIP timeframe: The Court noted that even though the CIP is described as a "one year programme" and employees have 24 months to complete it, and the programme content itself is only 25 days, the qualifying period for pay progression is still 24 months regardless of when the CIP is actually completed. This further undermines the rational connection between the measure and its stated purpose. 4. On contemporary examples: The Court used the recent appointment of Ms Shamila Batohi as Director of Public Prosecutions as an illustrative example of the irrationality of the policy – despite her wealth of international experience, she would be classified as a "first time participant" and denied pay progression for 24 months even if she "works miracles and prosecutes everyone involved in state capture within 12 months." 5. On labour peace arguments: The Court described the respondents' argument that the policy would ensure labour peace and prevent strikes as "entirely irrational and without foundation," noting that "the respondents led not a shred of evidence that there was any such demand from organised labour for such an extension, much less the threat of a strike or unlawful destruction of public property." 6. On costs for self-represented litigants: The Court noted that while Mr Ramaila did not incur legal costs in the strict sense, he incurred disbursements (flights from Pretoria and accommodation in Cape Town) and "should not be out of pocket for those costs." This suggests courts should consider awarding reasonable disbursements to successful self-represented litigants.

This judgment is significant in South African labour law for several reasons: 1. It establishes that differentiation in remuneration and conditions of employment based on whether an employee is a "new appointee" or "first time participant" to the public service (as opposed to being appointed from within) can constitute unfair discrimination on an arbitrary ground under the Employment Equity Act. 2. It reinforces the principle that for a measure to be rational, there must be a rational connection between the means (the differentiated policy) and the stated objective. It is not sufficient for the objective itself to be legitimate – the measure must be an "appropriate and effective" means to achieve that objective. 3. It clarifies that pay progression is a performance-based incentive, not recognition for length of service, and that denying such incentives to employees who meet performance requirements cannot be justified merely by labelling them as "new appointees." 4. It demonstrates the Court's willingness to scrutinize collective agreements and ministerial determinations affecting public servants, holding that they constitute administrative action reviewable under PAJA. 5. It emphasizes the constitutional duties of public functionaries under section 195 of the Constitution to investigate and correct irregularities and unlawfulness in public administration, particularly in employment matters. 6. It provides guidance on the evidentiary burden under section 11(2) of the Employment Equity Act for claims based on arbitrary grounds – the employee must produce sufficient evidence to cast doubt on the employer's explanation or show a more likely reason. 7. The judgment illustrates the practical application of the Harksen test for unfair discrimination, particularly the requirement to assess the impact of discrimination on complainants. 8. It serves as a reminder that seemingly neutral criteria (like "new appointee" status) can mask unfair discrimination when they result in disparate treatment of employees doing identical work of equal value. The case has implications for the entire public service regarding the treatment of new appointees versus internal transfers, and potentially affects thousands of public servants. It also demonstrates the importance of ensuring that policies designed to "develop and professionalise" the workforce actually serve that purpose rather than undermining it through demotivation and unfair treatment.