The Public Servants Association v National Commissioner of the South African Police Service

The National Commissioner of the South African Police Service applied to the High Court at Pretoria for a declarator concerning the interpretation of regulation 24(6) of the South African Police Service Employment Regulations, 1999. The regulation dealt with situations where a post was upgraded (regraded to a higher salary range) due to incorrect job weight evaluation. Regulation 24(6) stated that if the National Commissioner raises the salary of a post, "he or she may continue to employ the incumbent employee in the higher-graded post without advertising the post" if three conditions were met: (a) the incumbent already performs the duties of the post; (b) the incumbent has received a satisfactory performance rating; and (c) the incumbent starts employment at the minimum notch of the higher salary range. The Commissioner sought a declaration that the use of "may" conferred a discretion to continue employing the incumbent or to advertise the post. The Public Servants Association (a trade union representing public servants) opposed the application. Ponnan J granted the declarator in favor of the Commissioner, and the Association appealed with leave.

• Whether regulation 24(6) of the South African Police Service Employment Regulations confers a discretion on the National Commissioner to continue employing an incumbent in an upgraded post, or imposes an obligation to do so when the requirements are met
• Whether the word 'may' in regulation 24(6) should be interpreted as permissive or peremptory/imperative
• Whether dismissal of a satisfactorily performing incumbent due to post upgrading would constitute unfair labour practice
• Whether the regulatory scheme and constitutional values require retention of incumbents in upgraded posts when they meet the specified criteria

The appeal succeeded (by majority). The order of the High Court was set aside and replaced with an order dismissing the application with costs.

Where regulation 24(6) of the South African Police Service Employment Regulations provides that the National Commissioner 'may' continue to employ an incumbent employee in a higher-graded (upgraded) post without advertising if the incumbent (a) already performs the duties, (b) has a satisfactory performance rating, and (c) starts at the minimum notch of the higher salary range, the word 'may' must be interpreted as imposing an obligation rather than conferring a discretion. When the specified conditions are met, the Commissioner is obliged to retain the incumbent in the upgraded post. This interpretation is required because: (1) permitting dismissal of a satisfactorily performing incumbent merely due to post upgrading would constitute unfair labour practice; (2) the regulatory scheme provides no mechanism for such dismissal; (3) the drafter could not have intended such manifest unfairness; and (4) this interpretation aligns with constitutional values of equity and fair labour practices.

Howie P observed that the use of 'may' in regulation 24(5) regarding salary increase upon upgrading was also inapposite, as upgrading necessarily entails salary increase linked to the higher grade - there is no room for discretionary choice. The President also noted that if a discretion had been intended in regulation 24(6), one would expect indications as to how it should be exercised, and the absence of such indications suggests no discretion was intended. The dissenting judgment of Streicher JA contained extensive obiter regarding how any discretion under regulation 24(6) should be exercised: with due regard to efficient service delivery, employment equity, fairness, and achieving a representative service (per regulations 22(1) and 34). The dissent also noted that decisions would be subject to administrative law review under the Promotion of Administrative Justice Act (PAJA), and procedural fairness would be required where an incumbent had a legitimate expectation of appointment.

This case is significant for establishing the principle that seemingly permissive language in regulations may be interpreted as imposing obligations where the context, purpose, and constitutional values (particularly fair labour practices) require it. The case illustrates an important principle of statutory interpretation: that permissive language ('may') can be read as imperative where necessary to prevent manifest unfairness and to align with the purpose of the legislation. It demonstrates judicial protection of employees' rights against unfair dismissal arising from administrative regrading of posts. The case also shows the constitutional values of equity and fairness influencing the interpretation of employment regulations. The divided judgment reflects ongoing debate about the proper approach to interpreting administrative discretions and the weight to be given to linguistic form versus substantive fairness concerns.