REPORTABLE CASE NO 750/96 IN THE SUPREME COURT
BOPHUTHATSWANA PROVINCIAL DIVISION In the matter between:-
CHARLES KWEKU LARBI-ODAM GABRIEL KOFI TUGLO
JOSEPH YEBOA AKWA EPHRAIM KWAKU ADOM
LAWRENCE NTUNGWANA SIMELANE NKHANE ANDRIES RAMAGAPOLA KWABENA AMOAKOHENE-ABABIO MOSES SAMUEL KIIRYA NTENDE
First applicant Second applicant Third applicant
Fourth applicant Fifth applicant Sixth applicant Seventh applicant Eighth applicant
and
MEMBER OF THE EXECUTIVE COUNCIL FOR EDUCATION
THE MINISTER OF EDUCATION
First respondent Second respondent Application
Waddington J Mmabatho
Date of hearing 11 June 1996 Date of judgment 29 August 1996
For the applicants H Lever S-C. and P M Kennedy
For the respondents P C van der Byl S.C. and M T R Mogoeng
Waddington J: This was an application brought on a certificate
A
of urgency. The applicants are all male teachers who were appointed on temporary terms and conditions by the former Bophuthatswana government. The applicants are aliens. The first and sixth applicants are permanent residents of South Africa. The first, third, fourth and eighth applicants are married to South African citizens and in some cases their children are South African citizens- None of the applicants has
applied for South African citizenship. -:.;„,
Seven of the applicants hold at least one university honours degree either in the arts or sciences; one holds a university diploma in agricultural science; most hold graduate teachers' diplomas in education. In short, it is a well qualified teaching group.
The applicants' periods of appointment were not specified. Each", applicant's letter of appointment identified the appointee, the capacity in which he was to serve, the school where he would render service, the date of commencement of service, the starting salary, salary scale and the appointee's incremental date. The conditions of service were those "as published in the National Education Act (Act No 2 of 1979) and the regulations .
[published in] Government Notice No 150 dated 31st December 1981." (Bophuthatswana ) .
Each applicant not possessing a permanent residence permit was obliged to renew his temporary residence permit whenever the permit was about to expire. None of the applicants was entitled to be appointed during the existence of Bophuthatswana to the permanent establishment unless he became a Bophuthatswana citizen or held a permanent residence permit. (Section 12 (2) (a) Bophuthatswana Public Service Act 1972 (Act No 4 of 1972).
This bar was removed with the effective repeal of the restrictive provisions in question on 2 September 1994 by Proclamation No 138 of 1994. However, on 13 ^November 1995 a
Page 2
similar restriction was introduced with the publication by the second respondent of the Regulations regarding the Terms and Conditions of Employment of Educators (Government Notice No R 1743). There is no evidence that during the period between 2 September 1994 and 13 November 1995 any one of the applicants was appointed to the permanent establishment. There is also no evidence that any one of them at any stage became either a citizen of Bophuthatswana or of South Africa or has attempted to become a citizen.
Government Notice No R 1743 (the regulation) provides in regulation 2 (2) that -
"Subject to the provisions of subregulation (1) no person shall be appointed as an educator in a permanent capacity, unless he or she is a South African citizen and meets the requirements of section 212 (4) of the Constitution of the Republic of South Africa, 1993".
It was common cause that the effect of the regulation, if constitutionally sound and intra vires, would be to prevent the applicants from being appointed as educators in a permanent capacity because -
(a) their original contracts as temporary teachers continued after the absorption of Bophuthatswana into South Africa under the new constitutional dispensation; and
(b) as none of the applicants is a South African citizen, none can fill the1 permanent post he has occupied in a permanent capacity.
The applicants aver that the tenure of their employment in the service of the first respondent has been placed in serious jeopardy for the following reasons. Applicants 4, 5, 6, 7 and 8 and many other aliens occupying teaching posts in temporary Page 3
capacities received notices from the first respondent indicating , that the termination of their services was imminent for the stated reason that they were not South African citizens. The notices in question also informed the addressees that suitably qualified South African citizens had been interviewed and appointed to the addressees' posts- Finally each notice contained an invitation to the addressees to submit written representations as to why his services should not be terminated.
The respondents do not dispute that the notices in question apply to the applicants and depend for their validity upon regulation 2 (2) as published in Government Notice No R 1743.
Mr van der Byl, who appeared on behalf of the respondents, clearly embarrassed by the inelegant and confused construction of the notices, submitted that properly construed, the effect of the notices is that none of the applicants' contracts have as yet been terminated. Each remains in the paid employment of the North West Provincial Government of which first respondent is the member of the Executive Council responsible for education- This position, according to Mr van der Byl, will continue until an individual applicant's contract is lawfully terminated. That position will continue, furthermore, even if an individual's post has been filled by a South African citizen and that individual has since then not been required to render any actual service as a teacher. Having regard to the notices themselves (annexure "H" to the founding affidavit is an example) and to the undisputed evidence before me, that assessment of the true effect of the notices appears to me to be correct.
Against the background of the aforegoing the applicants originally sought relief in the following terms:-
"That a Rule Nisi be and is hereby issued calling on the respondents to show cause, if any, to this Court on Thursday the 13th June 1996 at lOhOO or §s soon thereafter
13-DEC 11: =6 f). K. AHMED-fiTTORNEYS
aa t e matter may be heard why
{a) an ordor tthoulci nnt*. I R S I I « rinninring hhwh t.hw
uf the tirst respondent in respect or tne applicants in f«'i 1 ing t o treat t h e m on t.hft Rarap tRruiK H R qualified temporary aou-ch African teachers is rtiRcriminarary and is in contravention of Their fundamental rig its in terms of tne constitution oi the Republic of South Africa Act, Number 200 of as amended;
(b) the principle < f giving preferential treatment to South African tuacharft against, the applicants should not he declared to be an infringement of the fundamental r.lghto of the applicants in tarmr. of the Constitution of the Republic ol South Africa Act, Number 200 o£ lv03 aa amended?
(c) the raervicoa of the upplicanta ao tcaohoro chould be terminated on the grounds of their expatriate atatun;
(d)
(e)
regulation 2 (?
Terms and Cond (si*?.) contained of 1.3 November being i;uitLrtuy
of South Africa alternat.1vR.ly wl declared u]fcTa, ttio Educators' ?
) of the "Regulations regarding the i.ti.ons of Employment of Education"
i.n Government Notice Number 11 1743 1995 should not be declared void as Lo Uie Constitution of the Republic Act, Number 200 of 1993 as amended;
•.y the aa Ld rtsyulaLlon shou.l d not be dres its enabling legislation being .mployment Act, 1994;
an interdict mould not restraining the
Page 5
• /
' - - " — • •
(!) frmn rtTifoi-ring thp. previsions of regulation 2 (2) of tl.G "Pcgulationo regarding the Terms and Cuntfi Lions o.C Snpluyment of Education?
(sic) contained in tiovernment ifottne Number R 1743 of 1' November 3 991S,
f i I j f rcm tej minatinq the serv i U H K u£ the T-Psponrlpni « Hnri thfi c.i ass of persons i n whose intcrcete the application is brought, namely teachers of foreign origin employed by the former government ot i50pnutnatswana,
pendinq the detarminationsj of. vnlidity of the said regulation
(f) in the event of the above Honourable Court Cinaincj that the first -oepondant is entitled to t.Rrminatfi the servi ces o : the appl icuri^o, why the f .i rnt respondenr should net
(.i) give rcaaoi able notice of at. least three uf Lhu intention to do so and
(ii) inform the applicants zimeniiK Iy of the nature and extent of the terminal benefits which they can expect t« . r u i
(g) the recpondonts should not pay thp r o s t s of t h i s dpplicaLiuii join ;ly and severally the one paying the other to be aoso.
Paru iruph 2 (e) hereof io to operate with .immediate*
as t -i interim interd.'njL pendi:iq the determination of t h i e c a t i o n . " .
Paqe fi
I5-DEC l l : S e a.K.flHMB>fl7T0RNEYS
the • implication first came hpfore me, .it wan agreed -cheiL tho parti ;s ehould be df.Toraed an opportunity of filing answering ind replying affidavits and that full heads of argument t \ould be preparei. rne first respondent undertook that pend:i -9 the final determination of this application the sarvicttB » : the applicant 5 or "the class of persons they represent" would not bn "onn.-fnated on the basis of LheJ.r nationai.it: status. The fi'St respondent al.'so undertook not to make I'urtht r appointments of South African citizens Lu Uie posts held by t ;e eippiJ.cants or other raemiDers of the class thny represents pending th«? final determination of this application.
The need ,t >r d temporary j nterdict therefore fell away. Mr Levor who ; |]pear«d on boha.l.f of the applicanta .Ludiuated during argument U it ill consequence the applicants would be satisfied with the o tlei-K referred to in paragi-aphti (*t) - (A) inclusive
(supra)-
Mr vein dc : By.J , without conceding that it was unfairly diacriminat iry, mndc the con session LhuL regulation 'A (2) i.s at least Cliscr minatory in effect as against educatorR who are not Sout-.h Afrlc <n oitizcr.a. Thi t cunt;Hysion was correctly made in my view, s- otion 8 of tho Crnstitution of the Republic of Sourh Africa 1.993 (Aot No ^00, 199:) provides tnter__iilia as follows:-
"(] ) Ev« ry person shall have the rigftt to equality be ore the law dud lo equal protection o± tne law.
(2) No porison ainxli be uu'airly discriminated against, di: tactly or indirectly, and, without derogating frc 1 the qeneratlty of. tills provision, on one or moi ;i u£ Ulie roliowini grounds in particular: race, gei :ler, aex, otnnl^ or sooiai .pxigifl, colour, so: u«l orientation, age, disability, religion, cot .uience, Ueiiet, :uiture or language.
(Tl :-( underlining is nine.)
( 3 )
(4) £ r j ifi^Jfaelfl proof of d i s c r i m i n a t i o n on any of t h e grc .>nas"" s p e c i f i e d in s u b s e c t i o n (2) s h a l l be
Page 7
J
l_i uuu i U - ' U. K. UJ-LU l l l ! l j r i _ r L i frv| P0G
I r"F.r.mr-d UJ JDO yufficient proof of unfair r] «i:f Imination as rontcmplarwo: in t h a t subsection, ii iH.l th« uwnkrary i s astabli^hfld.".
Mr van df r- Qyi submitted t h a t though cLiccrininatory in i t n e f f e c t , re iulat-.ion 3 (2) cl. es 110L t,tuxiIllc;L irxecunoildbly wiLh t-iie r;!qht entrenched i n ccction K. HO r e l i e d for t h i n
on section on (.1) tiiat
t.'nn. Cousi.il nL.Uin whutli
limi
-ighra entrencthftd in t.hifi Ch«pt".r»r mny be limited :iw of genera 1 a >pl i cnt.i on, prnvidnd r h s t auch
l
(H)
'hall be permiRB ble only to the extent that it L a •
(i) reasonable; and
(i i ) justili&blt in an up«n and democrat,! r.
bdb ati u u rxtftidujn a n d
s h a l l IILJL
rinht ±; Lh« «ti««iiLJ.Al c o n t e n t , of
Mr VUTI il c, Byl Butmittoc t h a t r e g u l a t i o n ?. (2) i s boLh reasonab.le md juHtifi.ab.1e in t h a s e n s e s contemplated i n s e c t i o n S3. TTurtl-rmore, tiic prcuimptlon o r c a t o a by subBoction (4) or s e c t i o n 0 toes n o t npply in t h e p r e s e n t case because t h « ground or Zixe a.l i r i n i n a t i o n In } oqulatlon 2 <2) being c i t i z e n s h i p , docs n o t f II wit.h in "rtiiy [j( t h e yrrmnds Kpe.cified i n subsection
Ci!)". tvi = ccctior. a ( 4 ) ) .
Tn my v i e * Mr van d c r D y l ' s sunmiaai.ons r e g a r d i n g t h e e x t e n t t o vhi.oh t h e presumption e r e itert hy s e c t i o n 8 (d) »pn~\)n»i i s c:orrcr.t. t van not-, conr.fin-iftd on behnl f of tile QppXJ.cantc t n a t :jf i:iUiz«nship j s otm whiuh i s incluHpri In t.he uaun I
t h e e x p r e s s i o n s r a c e , gender, s e x , c t h n j o o r i g i n , axual o r i e n t a t i o n , a g e , d i s a b i l i t y , r e l l t j i t u i , b o l i e f , uuli;uie or; .language. Th wn« f a i n t l y n Wr r.evcr*n hnnin of argument t h a t "citLKvnicIilp" i s Page 0
meanings c colour,
included in the expression "social origin". That proposition was not, however, pursued in argument. "Social" origin, in its ordinary connotation refers in my view to class origin rather than to citizenship. Citizenship by operation of law is a quality which may overlay all the.grounds specified in section 8 (4) including social origin and which according to the Shorter Oxford Dictionary, consists of the status enjoyed by enfranchised members of a State as opposed to aliens. The same source by contrast defines the word "social" as meaning:5
"Marked or characterised by mutual intercourse, friendliness or geniality; enjoyed, taken, spent, etc. in company with others esp. with those of a similar class or interests".
The Concise Oxford Dictionary of Current English (9th Ed: 1995) defines the word as :
" 1 . of or relating to society or its organisation
2. concerned with the mutual relations of human beings or of classes of human beings".
The Interim Constitution itself refers expressly in a number of instances (as to which see below) to the holding of citizenship as a prerequisite to the making of certain appointments of public importance. These references plainly refer to citizenship in the sense which is usually opposed to alienage.
Had that meaning been intended in section 8 (2) one would have expected that . intention to have been indicated by a similar express reference to citizenship.
The main issue, as submitted by Mr Lever and by Mr van der Byl is wnytner, firstly, regulation 2 (2) is/) inconsistent with
Ooo
Page 9
section 8 of the Constitution and, secondly, whether it is ultra vires its enabling. Act. , Both counsel were agreed that should the regulation be found by this Court to be
(a) unconstitutional; or
(b) ultra vires the enabling provisions of section 28 of the enabling Act (the Educators' Employment Act, 1994;
the applicants would be entitled to the relief sought in paras (a) - (d) inclusive of the Notice of Motion (supra). Mr van der Byl contended that should the Court reach the opposite conclusions, the first respondent would be entitled to refrain from appointing the applicants (and other similarly placed teachers) to permanent teaching posts on the ground of their non-South African citizenship. For the same reason first respondent would be entitled to consider terminating the applicants' service on the ground " of their temporary appointments made in consequence of their expatriate status" in appropriate cases in the exercise of the powers conferred on employers by s 8 (6) of the Educators' Employment Act, 1994 which reads:-
"The employer may discharge from his, her or its service an educator employed in a temporary capacity at a state educational instution by giving him or her reasonable notice of such discharge".
Before considering these submissions, I should emphasize that the first respondent's present attitude as stated by Mr van der Byl during argument is that the first respondent confirms the undertaking not to terminate the services of the applicants or other teachers similarly placed or make other permanent appointments to the applicants' posts or to the posts of others similarly placed pending the determination of this application.
The first respondent's concession that all these persons continue in paid employment until that determination means that none of the notices served purporting to terminate the services of all these persons with effect from 31 May 1996 or from any other date are of any continuing effect. Fresh procedures and decisions may be invoked and made in due course by the first respondent. This annlication is not a review of any decision of or act made by the first- respondent. The application1 must t>e regarded "therefore ds arising onlv from an alleged threatened violar.ion of the applicants' fundamental xinht to .'^quality before th« law" f section 8 (1)) and the right not to be
"unfairly discriminated against" (section 8 (2)) on the grounds that they are not citizens of South Africa.
Although Mr Lever in his heads of argument indicated that reliance would be placed on the provisions of s 8 (1) in advancing the applicants', case, no specific argument was addressed to the Court as to how, if at all, the applicants' right to equality before the law might have been compromised.
The essential topic which the Court has been invited to adjudicate upon concerns, as it was submitted, the inherent unfair discrimination which appears ex facie regulation 2 (2) published in Government Notice No 1743 of 13 November 1995. The question whether ss (1) and (2) of s 8 " is an independent provision or a corollary or concretisation" of the other was found by Ackermann J unnecessary to consider in Bernstein and Others v Bester and Others NWO 1996 (2) SA 751 (CC) at 806 E - F. In my opinion this application can also-be decided without considering that question. I shall therefore restrict my enquiry to the content of s 8 (2) but not before observing en passant that the authors ChasJcalson, Kentridge et al in Constitutional Law of South Africa at para 14.3 at 14-5 express the following view:
Page 11
"The fact that the guarantee of equality before the jj law and equal protection of the law is contained in a
separate subsection from the prohibition of unfair disqrimination indicates that the two are not synonymous or coterminous. Each has a role to play in the protection of equality . Were s 8 (2) to be read to qualify s 8 (1), then s 8 (1) would be little more than a rhetorical flourish to section 8. This is not the case each aspect of s 8 has a role to play in the protection of equality, the right to equality before the law, the right to equal protection of the law, and the freedom from discrimination It is submitted therefore that s 8 (2) supplements rather than qualifies s 8 (1)."
The authors also express the view that the phrase "equality before the law" means that
11 those who come before the courts of the land are assured of fair and impartial adjudication". (Para 14.4 at 14.12)
The applicants do not complain that this particular fundamental right has been denied them. It seems possible that it is for this reason that Mr Lever did not submit in argument that the applicants' rights under s 8 (1)had been compromised and that the attack in this respect has been confined to the unconstitutionality of regulation 2 (2) apropos s 8 (2) of the Interim Constitution.
The effect of the regulation is not merely to classify or differentiate between classes. The regulation imtos©.^ a total ban on the aoDointment of aliens to permanent teaching posts regardless of their academic qualifications-; Those may be exactly the same or exceed the qualificatipns held by others who
a s ~ 3 0 - 9 6 1:1 1 : 55 S U P R E M E .-COURT:
, \
te'^":"- '••Si^llD=014 02?1!
also, however, hold South African citizenship, the open sesame to any permanent appointment in the teaching profession. The regulation results in ' unequal treatment; it withholds a privilege; it imposes a burden on aliens involving as it does an element of unfavourable bias against them. The Oxford Dictionary defines discrimination (in the pejorative sense) as
ti to make an adverse distinction with regard, to;
to distinguish unfavourably from others.". ^
Because (for other reasons as well possibly) it refers to
"unfair" discrimination, s 8 (2) is obviously not concerned with the benign meaning of discriminate, that is, the mere careful observation of distinctions. (Cachalia et al : Fundamental Rights in the New Constitution 28). Chaskalson, Kentridge et al (op cit) para 14.5 (a) at 14-15 - 14-16 express difficulty in accepting this relatively simple explanation because the benign meaning " has virtually no place in the modern juris prudence of discrimination". The authors argue that the use of the word "unfairly" in s 8 (2) indicates that fair discrimination where that expression is understood in "the ordinary way" (presumably in the non-pejorative sense) may not be prohibited. The argument is that the "harm caused by measures which disadvantage vulnerable and subordinate groups goes beyond the evi 1 of discrimination. Such treatment is unfair in that it perpetuates and exacerbates existing disadvantage. Measures which disadvantage powerful and privileged groups, on the other hand, may be discriminatory, but are not necessarily unfair in the same way". The authors mitigate the effect of this approach by stating that they wish to make it clear that H the argument is not that the Constitution always permits discrimination against privileged groups or their members".
Fortunately, perhaps, I am not obliged to enter into the debate Page 13
because what the applicants complain of in this case is discrimination in the impermissible, pejorative sense which certainly is the mischief s 8.(2) is designed eradicate.
Suffice it to say that Mr van der Byl did not rely on the argument that the prohibition against discrimination does not operate in this case because regulation 2 (2) "fairly"
discriminates against the applicants. The respondents' defence rests squarely on the proposition' that the applicants have failed to prove that the discrimination in question is unfair discrimination but that in any event the regulations have been shown by the respondents to have been saved by s 33 (1) of the
Interim Constitution.
Under the transitional provisions of the Interim Constitution (s 241 as amended by s 15 of Act 13 of 1994 refers) as read with s' 101 (3) (a), this Court enjoys jurisdiction in respect of
"any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3".
Section 8 (2) is part of Chapter 3. This Court also enjoys jurisdiction in terms of s 101 (3) (b) " to enquire into the constitutionality of any law other than an Act of Parliament ". In terms of s 101 (4) as read with s 98 (5) of the Interim Constitution this court may declare regulation 2 (2) , not being an Act of Parliament, invalid to the extent of its inconsistency with the provisions of the Interim Constitution.
I am therefore called upon to approach the question in two stages. The f irst stage involves deciding whether there has been, in relation to the applicants, a violation or threatened violation of their guaranteed right not be unfairly discriminated against. The second stage, should the answer to
the first question be in the affirmative, is whether the discrimination is justified under s 3 3 (1). (S v Zuma and Others 1995 (2) SA 642 (CC); S v Makwanvane and Another 1995 (3) SA 391 (CC) at 435 D; S v Williams and Others 1995 (3) SA 632
(CC) at 649.).
The onus of proving that there has been a breach of a guaranteed right rests upon the applicants. As the respondents rely on the limiting provisions contained in s 33 (1) in justification of the content, of regulation 2 (2), the onus rests upon them to demonstrate that the limitation contained therein is both reasonable and justifiable in an open and democratic society.
(Park-Ross and Another v Director : Office for Serious Economic Offences 1995 (2) SA 148 (C) at 167 C ) .
The task of the applicants in discharging their onus has been considerably lightened by Mr van der Byl's fairly made concession. The essential breach of their right not to be unfairly discriminated against stems from two undisputed facts.
The first is that the first respondent evinced an intention of discharging persons who are temporary educators by serving the notices to which reference has been made "earlier in this judgment. Those notices, it is common cause, suggest (despite the notices' poor construction) that the main ground for the proposed discharges is that the addressees, not being South African citizens cannot be appointed on permanent terms by reason of the operation of regulation 2 (2). The posts occupied by the addressees, furthermore, appear to have been required so that unemployed South African citizens may be appointed to them.
That leads on to the second undisputed fact which is that the discriminatory effect of the reaulation in question is conceded- Mr van der Byl's first argument was that the applicants failed in their founding papers to prove t h a t ^ the discrimination contained in regulation 2 (2) is unfair]. Therefore, the Page .15
argument went, the application should be dismissed without further ado. This submission in my view is incorrect. The applicants in the founding affidavit deposed to by the first applicant correctly traced the history of the restriction in question (paras 20 - 22 founding affidavit). The discriminatory effect of the regulation was also adverted to and it was stated that at the hearing of the application it would be argued that it conflicted with the Interim Constitution. The inherent effect of the regulations has already been described * in this
judgment. The regulations -
(a) distinguish alien teachers from South African citizen teachers unfavourably;
(b) ban alien teachers from permanent teaching careers in South Africa;
(c) withhold a privilege from such aliens;
(d) impose a burden on such aliens as an element of unfavourable bias against them is involved.
All these factors emerge clearly from the terms of the regulations in my view. Mr van der Byl's concession did not as already stated specifically include the admission that the discrimination was unfair in any possible sense contemplated in s 8 (2). In the view I take of the matter, however, if the true effect of the regulations is as stated in paragraphs (a) - (d) above the discrimination so created cannot amount to anything nt>ior +-v,an unfair di scrim-i"=»tion because those effects are eacn ana evci.y one invidious. Cachalia et al (op cit) at p 28) state that:-
"the addition of the word "unfair" [in s 8 (2)] is to make it absolutely clear that what ip/not permitted
Page 16
is invidious classification ".
This is not an incorrect statement of the position in my view.
The applicants were required to show nothing more than the invidious nature of the discriinination created by regulation 2 (2) in addition, of course, to the threat of violation .'of their fundamental right. The making of the threat has "not been disputed. The unfairness of the discrimination is loudly proclaimed by the content of regulation 2 (2) itself. The applicants, in the result, did prove what was required of them in my opinion.
It is therefore necessary to consjrip-r next whether the respondents havp. dj^charqed the onus of showing Liiau regulation 2 (2) is, first, reasonable ana second" ]ustinanie in an open and democratic «~~ietv based on freedom and equality without negatincr the essential content-, of the riant in question. (s 33 (1) (a) (i) and (ii).). Since the same facts are relied on by the respondents in support of their contention that both reasonableness and justification have been established in discharging the onus resting upon them, it will be convenient to
consider both questions together-
In Makwanvane/s case fsupra) at 436 C Chaskalson P expressed his views as to the manner in which the determination of the reasonableness of the limitation of constitutional rights may best be achieved. The learned President stated the position thus;-
"The limitation of constitutional rights for a purpose that is reasonable [and necessary] in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. The facts that different rights have different implications for democracy and, in the
Page 17
case of our Constitution, for an open and democratic society based on freedom and equality, means that there is no absolute standard which can be laid down for determining reasonableness [and necessity].
Principles can be established, but the application of these principles to particular circumstances can only be done on a case-by-case basis; This is inherent in the requirements of proportionality which calls for the balancing of different interests. In the balancing process the relevant considerations will include the volume of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of . the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the rights in question. In the process, regard must be had to the provisions of s 33 (1) and the underlying values of the Constitution.".
(The references to "necessity" in the above quotation relate to the further requirement in s 3 3 (1) (b) (aa) and (bb) that in limiting certain other entrenched rights not relevant to this judgment, the limitation to be valid, must be necessary in addition to being reasonable.)
The criteria to be satisfied by a law that qualifies as a reasonable limit that can be justified in a free and democratic society were referred to with approval by Tebbutt J in Park-Ross and Another v Director : Office for Serious Economic Offences (supra) 168 B - E as having been conveniently tabulated by Hogg : Constitutional Law of Canada 3rd ed (1989) para 35.9 at p 867 B - E in the manner following:-
"(1) Sufficiently important objective. The law must pursue an objective that is sufficiently
important to justify limiting a charter right.
(2) Rational connexion. The law must be rationally connected to the objective.
(3) Least drastic means. The law must impair the
Page 18
right no more than is necessary to accomplish the objective.
(4) Proportionate effect. The law must not have a disproportionately severe effect on the person to whom it applies.".
See also Matinkinca and Another v Council of State. Republic of Ciskei 1994 (4) SA 472 at 487 G-490 H.)
The observance of the criteria which emerge from the judgments of Chaskalson P and Tebbutt J referred to above is calculated to
"promote the values which underlie an open and democratic society based on freedom and equality." A court of law is required to promote those values in interpreting the provisions of Chapter 3 of the Interim Constitution of which s 33 (1) forms a part. (Section 3 5 (1)). That section also permits a court to have regard to comparable foreign case law for the same purpose.
This court must be guided accordingly in deciding whether the permissible limitations described in s 33 (1) have been established by the respondents.
The reason for the making of regulation 2 (2) by the second respondent is explained by one norkel ctul^ - authorised by the
second respondent to oppose the application. Morkel is the Director : Service Dispensation Matters in the Department of Education. The reasons for the making of the regulation are vital because their nature will ultimately determine whether the diminution of the right not to be unfairly discriminated against serves a legitimate purpose within the contemplation of s 33 (1). As Chaskalson, Kentridge et al (op cit. at para 14.9 (a) at 14 - 32) put it:-
•t the limitation on rights by s 33 (1) is focused on the purposes, actions and reasons of government the justification enquiry under s 33 (1) focuses on the issue of balancing the right to equality against other rights and against other aspects of public policy, such as the distribution of
J
Page 19limited resources."
Morkel's explanation may be paraphrased in the following manner:
1. Section 212 (3) of the Interim Constitution which provides:-
"Employment in the public service shall be accessible to all South African citizens who comply with the requirements determined or prescribed by or under any law for employment
in such service."
means that "it is the intention or, at the very least, that it is permitted that only South African citizens have a right to be appointed in the public service."
This submission is plainly incorrect in my view. The word
"accessible" does not mean "reserved exclusively for" or
"limited to "or some other similar meaning. "Accessible" is defined in the Shorter Oxford Dictionary as "capable of being entered or reached; get - at able". Contrary to what the position might have been in the past in South Africa, s 212 (3) declares that all citizens and not merely a favoured section of the citizenry are now entitled to be considered for employment in the public service subject to applicants-.
possessing the required academic or other necessary qualifications. This interpretation conforms to one of the underlying values of the Interim Constitution which emerges from the preamble and the concluding paragraph of that Constitution. In the preamble it is recorded that
"Whereas there is a need to create a new order in which all South Africans will be entitled to a common South African citizenship so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.
Page 20
The final paragraph of the Constitution reads"partly that:-
"This Constitution provides a future
founded on the recognition of development opportunities for all South Africans ".
These extracts are sure indicators that the framers of the Constitution intended that all basic rights and freedoms and development opportunities would in future be available to all South African citizens without exception. Section 212 (3) in my view goes no further than entrenching the right to equally accessible employment opportunities in the public service for all South African citizens. It does not restrict those opportunties to citizens only, however.
2. Morkel next states that it is the duty and function of "any government to provide first and foremost for the training and employment of its own citizens". He then gives the
following facts in relation to education in South Africa:- (a) Twenty-six thousand educators are trained annually
in 104 teachers colleges, 21 universities and 7 technikons.
(b) According to Departmental records, 345543 educators were employed during 1995.
(c) The national educators attrition rate in 1994 was 20500. In 1995 it was 20700.
(d) In the ordinary course of events it would have been possible to accommodate 24340 out of 26000 educators who qualified in 1994.
(e) Similarly, not all educators who qualified in previous years could be accommodated i.e. offered posts in the teaching profession.
(f) In consequence, there are large numbers of unemployed educators in South Africa.
Page 21
The oversupply of educators is exacerbated by the rationalization process being carried out in accordance with the-provisions of s 237 of the Interim Constitution. Prior to the coming into operation of the Interim Constitution, 15 departments of education served the interests of the area that today constitutes South Africa. These are being rationalized into one national and nine provincial education departments. .. .
The availability of government funds will permit a pupil/teacher ratio of only 40:1 in primary schools and 35:1 in secondary schools. These ratios were negotiated in the Education Labour Relations Council consisting of employer and educators' representation including the representation of temporary educators such as the applicants. The Council was established in terms of the Education Labour Relations Act, 1993. As a result, about 10976 primary school teachers will become redundant and about 39508 secondary school teachers will become redundant-
In order to alleviate this problem, agreements were reached in the Education Labour Relations Council providing for voluntary redundancy packages and redundancy discharges of educators who cannot be absorbed in the rationalization process.
Furthermore, the state of affairs outlined above has prompted the education authorities to consider cutting "in terms of of the National Education Policy Act, 1996", the intake of students into educational training institutions by 40 per cent.
On the basis of the aforegoing it is submitted by Morkel that every justification exists for making a distinction between South African citizens in E l a t i o n to permanent
appointments in the teaching profession.
4. The Regulations of which regulation 2 (2) forms a part were' agreed to after negotiation in the Education Labour Relations Council in which, as already stated, the applicants' interests were represented.
5. The Interim Constitution itself distinguishes between citizens and non-citizens in debarring non-citizens from filling a number of positions recognised in the Constitution. Reference is made in this regard by Morkel to sections 99, 110, 191, 200 (3) and 211 of the Interim Constitution.
Section 99 (2) (a) of the Interim Constitution .restricts appointments to the Constitutional Court to South African citizens and refers to such citizenship as a gualification for appointment.
Section 110 requires that the Public Protector shall be a South African citizen.^
Section 191 requires that the Auditor General shall ' be South African citizen.
Section 200 (3) limits appointments to the Financial and Fiscal Commission to South African citizens. Similarly, s 211 (2) (a) limits membership of the Public Service Commission to South African citizens.
The point which is made is that the Interim Constitution itself recognises the need in certain vital offices of the judiciary and general administration to discriminate against non-citizens.
Whether these constitutional forms of discrimination amount to
"unfair" discrimination in the ordinary sense^ of that expression Page 23
is a moot point. The better view in my opinion would be that the distinctions in question are based simply on the desire to ensure that great affairs of state remain in the hands of those with the deepest roots in and commitment to the state. But in my view this does not assist greatly in deciding to what extent unfair discrimination against aliens may be justified under s 33
(1) of the Interim constitution.
The applicants in their main founding affidavit (para 33) expressed the view that the "policy" of the respondents is based on a fallacy. The statement is made that large numbers of South African citizens are not "being unfairly kept out of employment by persons of foreign origin". It is disputed that any factual foundation exists for such a belief. The baia statement is made that there are not sufficient qualified teachers "of South African origin" to fill the posts available. The founding affidavit refers to no source for this averment.
There are lengthy replying affidavits. Considerable portions of these are devoted to discussing a topic which concerns the ratio of "qualified" teachers to "unqualified" teachers employed in the North West Province and to the need for high quality education to be provided. In one affidavit Professor Awudetsey (professor of education in the University of the North West) expresses surprise at the excellent matriculation examination results achieved overall in the North West despite the high numbers of unqualified or under qualified teachers who tutored the examinees. He ascribes this "apparent oddity" to the "fact that this part of the country has been fortunate in procuring the services of [well qualified] foreign born teachers".
Somewhat at odds with thi s statement, he then expresses the belief that the total number of "foreign" born teachers comprises a mere 1,5% of the total number of teachers employed in South Africa, N O source for this belief is given. He does Page 24
not dispute the actual statistics given by Morkel concerning the excessive numbers of educators available in South Africa. He states that these figures are meaningless, however, unless one takes into account that "percentage of ungualified and underqualified" teachers. By this the implicit suggestion seems to be that the extent of any true excess should be arrived at only after ignoring the. numbers of unqualified or underqualified teachers in the equation which, in 1992, he suggests (by reference to the Annual Race Relations Survey for 1993/94) was 57% of the total teacher force at that time. He points to a different survey which discloses that in 1994 35,8% of .teachers were unqualified or underqualified. It is not entirely clear from his affidavit what accounts for the reduction in percentage from 57 to 3 5,8. However, the overall point which is sought to be made appears to be that educationally speaking it would be unwise to discharge well-qualified non-citizen educators because this course would adversely affect the general quality of education in South Africa.
To sum up, the factual position on the undisputed facts is_ that the educator production capability of South Africa has been in excess of past and present needs; that the numbers of educators to be trained in future needs to be pared; that not all educators now available (whatever their level of qualification) can be absorbed into an affordable education system; and;
finally, the services of a considerable number of educators most of whom are South African citizens will have to be dispensed withf in the near future because insufficient funds are available to pay their salaries. Neither the second respondent nor any of the applicants have suggested in the papers that the problem, which seems to have stemmed mainly from a shortage of funds, could be overcome by reducing the salaries of the entire teaching fraternity proportionally in order to retain the services of all educators presently employed.
Page 25
According to the second respondent's answering affidavit, about one-seventh or about 50484 of the total teaching establishment will perforce have to be retrenched under the rationalization scheme. That figure has not been disputed. If all temporary alien educators are among those retrenched and if Professor Awudetsey's estimate that foreign born teachers employed in South Africa number only 1,5% of the total teaching force is correct, a simple calculation reveals that of the approximately 50484 teachers to be retrenched, 45301 will be South African citizens while 5183 will be non-citizens. The corollary is. that if the services of all non-citizen educators were to be retained, 5183 more South African citizens would be retrenched.
This seems to represent the essence of the problem.
In submitting that in this case the limitation of the right not to be unfairly discriminated against can be justified under s 33 (1) of the Interim Constitution, Mr van der Byl referred to the.
positions in several other countries to indicate that similar, forms of discrimination against aliens operate in those countries and for reasons similar to those advanced by the second respondent. It was submitted that s 8 (3) and (4) of the Unified Teaching Service Act of Botswana provides:
"(3) No person who is not a citizen of Botswana shall be appointed to any post in the United Teaching Service unless the appointing authority is satisfied that no citizen of Botswana is qualified and suitable for appointment to that post.
(4) No person who is not a citizen of Botswana shall be appointed to any post (other than on transfer or promotion) on permanent•terms.".
Furthermore, Regulation 104 of the Code of Regulations governing the Unified Teaching Service of Botswana reads as follows;-
11 (1) Appointments to the Service fare made on
Page 26
permanent, contract or temporary terms.
(2) An appointment on permanent terms may only be offered to a citizen of Botswana who is a qualified teacher.
(3)
(4) An appointment on temporary terms may be re-offered to a person who is not eligible for appointment on permanent terms or whose services are required for a limited period of time only.
The applicants do not dispute the existence of these provisions.
The Constitution of Botswana specifically exempts laws which make provision "with respect to persons who are not citizens of Botswana" (s 15 (4) (b)) from the general prohibition that "
no law shall make any provision that is discriminatory either of itself or in its effect." (s 15 (1)). The criteria enunciated.
in Makwanyane's case (supra) and in the Park-Ross case (supra\ *.
therefore would play no part in the formulation of laws subject, to the Botswana constitution since non-citizens appear to enjoy no constitutionally guaranteed rights in that country to be • protected against the passing of laws which are discriminatory
in effect.
By comparison, non-citizens (aliens) are also subject to discrimination in the employment field under the laws of the United Kinadom where Parliament's powers to legislate remain sovereign and where aliens, in consequence, do not enjoy any guaranteed rights under a written constitution.
"An alien may only be employed in the Civil Service if, either, he is appointed and employed outside the United Kingdom, the Channel Islands and the Isle of Man in service of a class or description which appears to the responsible minister to be appropriate for the employment of aliens or if a certificate issued by the responsible Minister is in force in respect of his employment. " . /)
Page 27
(Halsbury's Laws of England Vol 4 (2) para 66) Note 13 to para 66 explains that a ministerial certificate may be specific (to the alien and the service) or general, but in either case must be based upon non-availability of British subjects or, in the case of a specific alien, possession of exceptional qualifications or experience. Such certificates are of limited duration but may be renewed; every year the Treasury is required to lay before Parliament a list containing particulars of certificates and of aliens employed pursuant to them. (Aliens'
Employment Act, 1955 s s 1 (2) (3) and (4)).
In addition to the above, further employment restrictions apply to aliens in respect of service rendered on board merchant vessels registered in the United Kingdom. (Note 9 to para 66) There can be little doubt that the restrictions on the employment of aliens in Botswana and in the United Kingdom are calculated to ensure that citizens of those countries are not prejudiced by the employment of excessive numbers of aliens.
The old adage "charity begins at home" is thus accorded respect in those countries for what must be assumed are politically correct (and necessary) reasons.
In the United States of America a somewhat different approach to the rights or aliens in the field of employment has developed.
The Equal Protection Clause of the Fourteenth Amendment of the American Constitution guarantees that
11 [N] o State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws"
Barron and Dienes, Constitutional Law state at p 202 that the Fifth Amendment Due Process Clause applies the same limitation to the laws of the federal government. In the case of State laws, it is the Fourteenth Amendment whoAh gives protection
' Page 28
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against discrimination. The development of the law on this particular subject in question was traced by Marshall J in Bernal v Fainter 467 US 216 (1984)' as follows:-
"As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. Applying this principle, we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. In Sugannan v Dougall, 413 US 634 (1973), we struck down a state statute barring aliens from employment in permanent positions in the competitive class of the state civil service. In re Griffith, 413 US 717 (1973) we nullified a state law excluding aliens from eligibility for membership in the State Bar. And in Examining Board v Flores de Otero, 426 US 572 (1976), we voided a state law that excludes aliens from the
practice of civil engineering.
We have, however, developed a narrow exception to the rule that discrimination based on alienage trigger strict scrutiny. This exception has been labeled the
"political function" exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-governance. The contours of the "political function" exception are outlined by our prior decisions. In Folev v Connelief 435 US 291 (1978), we held that a State may require police to be citizens because, in performing a fundamental obligation of government, police "are clothed with authority to exercise an almost infinite variety of discretionary powers" often involving the most sensitive areas of daily life. In ^mharh y_
Norwick. 441 US 68 (1979), we held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. Finally, in Cabell v Chavev-Salido. 454 US 432 (1982), we held that a State may bar aliens from, positions as probation officers because they, lyfjke police and
Page 29
teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other
individuals.
The rationale behind the political-function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community. Some public positions are so closely bound with the formulation and implementation of self-government that the State is permitted. to exclude from those positions persons outside the political community, hence, persons who have hot become part of the process of democratic self-determination.
The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition.
Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community.
We have therefore lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations "go to the heart of representative government."...
In support of the applicants' contentions, Mr Lever referred the Court to the case of Hampton v Mow Sun Wong 426 US 88 (1976).
Certain admitted resident aliens, according to the summary of the report, had been denied or discharged from unemployment in a number of federal agencies "because of their alienage". A class action was brought against the United States Civil Service Commission challenging the constitutionality of the Commission's regulation in terms of which the denials and discharges had been effected. The United States Supreme Court affirmed the unconstitionality of the regulation in that it deprived aliens of liberty without due process of law under the Fifth Amendment.
Mr Lever referred in particular to the statement in the judgment / Page 30
A
of the Court delivered by Stevens J viz.
"It is the business of the Civil Service Commission to adopt and enforce regulations which will best promote the efficiency of the federal civil service. That agency has no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for naturalization policies. Indeed, it is not even within the responsibility of the Commission to be concerned with the economic consequences of permitting or prohibiting the participation by aliens in employment opportunities in different parts of the national market. On the contrary, the Commission performs a
limited and specific function.
The only concern of the Civil Service Commission is the promotion of an efficient federal service".
I was invited to infer from this decision and in particular from the passage quoted above that the qualification of citizenship, as a prerequisite to permanent employment in the public sector as provided , for in regulation 2 (2) should fail as the restriction should not be based on economic necessity. In any event it is one which on the basis of the reasoning in the Hampton decision cannot be justified in an open and democratic
society based on freedom and equality.
As to the first submission Mr Lever argued that adequate protection of citizens' employment opportunities as against aliens already exists by reason of the provisions contained in the Aliens Control Act No 96 of 1992. Section 25 (4) (d) of that Act requires the Immigrants Selection Board to refuse an alien a permanent residence permit if it considers that the applicant is likely to pursue an occupation in which in the Board's opinion a sufficient number of persons are already engaged in South Africa. The Board's powers, however, are limited to controlling the influx of aliens and do not extend to those aliens already lawfully admitted who have not breached any condition of the relevant permanent residence permit.
Cto
Page 31As to the second submission, the decision in Hampton does not appear to constitute the last word on the subject. According to Brest and Levinson : Processes of Constitutional Decision making
3rd Edition (1992) p 1404 et seq.:
"Following the decision in Hamp-hnn, President Ford issued an Executive Order making citizenship a condition for federal employment".
The authors point out that the presidential order has not been reviewed by the Supreme Court. I have been unable to find any rationale for the order (and was not referred to any) and consequently cannot express any view as to whether it was made pursuant to the "political function" exception recognised by the decisions of the Supreme Court or to some other objective e g the protection of citizens' employment opportunities.
The common factor which emercres from the above references and discussion is that in the cases of Botswana, the United Kingdom and the United States of America restrictions exist relating to the employment of aliens either to protect the interests of citizens or to ensure that policy making for the political community remains in the hands of full members i e citizens, of that community. If this conclusion is correct, the nature of the discrimination effected by regulation 2 (2) cannot be regarded as unique to South Africa. But that is not the test.
The question remains whether the limitation imposed by regulation 2 (2) is within the contemplation of s 33 (1) reasonable and justifiable in an open democratic society based on freedom and equality.
Mr Lever submitted that this Court is bound by the decision of Friedman JP in Baloro and Others v University of Bophuthatswana and Others 1995 (4) SA 197 (BOP) to the extent that aliens are
OJO
Page 32entitled in South Africa to the same treatment as citizens in respect of fundamental human rights such as the right to life and integrity of persons but not to political rights. I have no doubt that in this respect Mr Lever is correct but in my view there is nothing in the Baloro decision which obliges me having regard to the principles of stare decisis to find for the applicants in this case. In Baloro the respondent University had refused to consider the applicants' request to be considered for promotions at the same time as applications for promotion by staff members who were South African citizens. The applicants were aliens and it was this status which constituted the reason for the refusal. The refusal was found to be a gross violation of applicants' rights under s 8 (2) of the Interim Constitution having regard to the terms of their contractual rights.
However, Baloro involved no question of discrimination arising from the terms of a law of general application and fundamental rights limited within the compass of s 33 ( 1 ) . The decision is therefore distinguishable from the present case.
The justification relied on by the second respondent for the making of regulation 2 (2) reduced to its essence is that insufficient funds exist to pay the salaries of all educators currently employed. Their numbers must therefore be reduced.
Fewer educators must be trained in future. It is not possible to accommodate all newly qualified educators. The second respondent's perception is that those permanent teaching posts which are available should, in fairness to those citizens who are qualified to fill them, be reserved for the citizenry. No citizen should find himself unable to secure permanent employment as an educator for the reason that non-citizens who might choose to leave for their own home communities at any time occupy the only available permanent teaching posts. Second respondent submits therefore that it is incumbent upon him to safeguard the interests of citizens in this respect as a first duty. The question therefore is whether the arounds relied on
j I Page 33
by the second respondent for the making of regulation 2 (2) may b<=> reqarded as justification as contemplated in s 33 (1) for limiting the right of the applicants not to be unfairly discriminated against. In determining that question I am bound to observe the criteria laid down by Chaskalson P in Hakwanyane*s case (supra).
The first question to decide is whether th« objective of the regulation is of sufficient imoortance to justify the limitation of the right bearing in mind the "volume" of the right that is limited. In my view it has been shown that the principal responsibility of the department of education is to create and maintain as sound an education system as its financial resources will permit. Next, the department is part of the overall administration of the existing government the responsibility of which must be to protect and further the interests of South Africans firstly for the benefit of South Africans. It is therefore the duty of the department, not only to guard and further the interests of those to be educated but also to fulfil its role as part of the general administration in guarding and furthering the interests of those whose permanent home is South Africa. It seems to me that it is a matter of commonsense that the government of any state would wish to ensure that, in fields where employment opportunities are limited, available jobs should in the first instance be made available to the citizens of that state." That approach would be no less rational than the implementation of a policy which might reserve limited places for pupils in South African schools firstly for South African children and only after their needs had been satisfied to provide for the admission of non citizen children. I am therefore n-F the view that the objective behind the limitation effected by the regulation is of sufficient importance to justify the limitation of the rights under consideration to an appropriate degree.
Page 34 /
A
As already indicated in this judgment, the limitation of employment opportunities by reference to alienage is a practice recoanised bv the laws of Botswana, the United Kingdom and, since President Ford's Executive Order (supra), in the united States of America.
Individual^"states' may recognise different reasons for imposing such limitations but that is only to be expected since different problems may arise from state to state at different times.
Consequently, furthermore, the degree of limitation may be expected to vary depending on the circumstances of individual cases.
Next to consider is whether less drastic measure^ could have been resorted to by the second respondent. " j.n LUX ^connexion it is well to remember that, as stated earlier in this judgment, when the applicants were initialy appointed under the laws of the erstwhile Bophuthatswana, it was not oossible for- *-hem to have been appointed as p<=»Tianent educators unless they .first became <-.itizens_o-r held nermanen+- residence permits. There is no evidence that any applicant became a citizen or applied for citizenship or, holding a permanent residence permit, applied for appointment on permanent terms of employment.
The limitation imposed by regulation 2 (2) is therefore little different from the limitation to which the applicants were originally subject. The regulation does not in itself prohibit the applicants f-mm continuina to serve as educators in exactly the same capacities as hitherto. Should the employer not choose to give the applicants notice in terms of s 8 (6) of the Educators Employment Act, 1994, nothing would prevent them from rendering service under the conditions which appear to have satisfied them for many years in several instances. The regulation does nnf totally bajT^aii aliens from employment; it does not ban alien educators rrom serving in the same temporary
Page 35
capacities as the applicants always have; if an alien is able to become a citizen under the applicable laws, he could enjoy the same privileges as any other citizen. It has been demonstrated that even if all alien educators serving in South Africa were to be retrenched, a ' large number of citizen educators would nevertheless have to be retrenched for lack of sufficient funds and teaching posts. The regulation was designed to reduce the number of citizens who will find themselves deprived of the opportunity of obtaining security of tenure as permanent appointees in the teaching profession. For each alien appointed on permanent terms in my view, the probability has been established that one citizen wnnirt suffer. To obviate that position, the regulation had to be framed in its existing terms.
It is difficult to perceive, given the extent of the problem, l?6w tbfi—iiegulation could hav*1 been drafted in anv other manner.
There is thu^ an obvious!v close r a u o n a l conneccion oetweerPtfte objective and terms of the regulation.
The effect of the regulation is to place the applicants, as has already been suggested in this judgment, in the same position thev were in ^ t the_tlme of _their original appointments. il^ey are today in the same positions as tney apparently chose to remain in during their respective periods of appointment- The regulation therefore cannot be . said to have had a disproportionately severe effect upon the applicants.
Chaskalson P pointed out in Makwanyane's case (supra^ that there can be no absolute standard w*ich can _ be laid dojgm- in determinina reasonableness. The presence of s 33 (1) in the Interim Constitution is the clearest indicator of the recognition that circumstances might arise which would call for limitations being placed upon the fundamental rights entrenched in Chapter 3 of the Interim Constitution. In my view Morkel's affidavit establishes the existence of a serious problem stemming from the economic exigencies tpj which he refers. The
measures which have formed the subject of this application reDresent, to my mind a Reasonable method of alleviating the plight of___a—large—number _ of snutn__A£rican cijcxzen albeit requiring the right not to be unfairly discriminated against being eroded to some extent in the case of alien teachers who have throughout their careers enjoyed no status any different from that envisaged by the regulation. > :
I bear in mind that the harmonius theme which pervades the entire Interim Constitution is one of freedom as opposed to oppression; equality as opposed to invidious discrimination;
openness as opposed to secretiveness; reconciliation as opposed to the perpetuation of old enmities; and governance where the supreme power is vested in the people of South Africa as opposed to despotism. The very first words of the Constitution read:-
"Whereas there is a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that alll citizens shall be able to enjoy and exercise their fundamental rights and freedom".
The pre-eminence given to these ideals and objectives suggest that the framers of the Constitution thought that they were making an important statement. That being so, the reference to
"South Africans", "citizenship" and the enjoyment of fundamental rights are indications in my opinion that citizens' rights and privileges were also thought to be of major importance. The special protec-Hnn_aJ:for£lert to the_ citizens of Bo^.-ana, the United Kinadom and trie Unicea «:•*-=< in_the field of employment
if taken as evidence of examples of acceptable state
toaetner with the underiyi nq ~VHTu~es of the Constitution to wnich re££r"eiioe is made above, persuade me thai-, tne reuuiaXXorT uncter consideration can in the special c.i rnnmst<iiiw%sa or this case be regarded as justifiable tor the purposed of s JJ ii) of the
Page 37
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Interim Constitution.
Finally, it was submitted on behalf of the applicants that regulation 2 (2) is ultra vires the enabling Act. The regulation was framed in terms of ss 4 (1) and 28 of the Educators' Employment Act 1994.
Section 4 (1) reads:- '"••
"The qualifications for appointment and promotion shall be prescribed".
("prescribed" is defined in s 1 of the Act as meaning
"prescribed by regulation11.)
Section 28 reads, where relevant, as follows:-
"The Minister may make regulations which are not inconsistent with any law, relating to -
any matter required to be prescribed under this Act"
The word "qualifications" where it appears in s 4 is not specially defined.
In Minister of Education and Training and Others v Ndlovu 1993 (1) SA 89 at 96 H the Appellate Division approved once again Caney's statement (Statute Law and Subordinate Legislation at 94) that
"The authority to which the power of legislating is delegated (the subordinate legislature) is bound within the limits of the powers confined, beyond which it cannot go; otherwise its legislation is ultra vires "
This is indeed fundamental and trite law.
The only argument advanced by Mr Lever was that the second respondent was empowered to prescribe Athe qualifications for