In South Africa, the Constitution prohibits unfair discrimination based on a number of grounds, including age. In a recent Supreme Court of Appeal ("SCA") decision in South African Navy and Another v Tebeila Institute of Leadership, Governance and Training, the SCA was faced with the question of determining whether age requirements for a particular job constituted unfair discrimination.
This matter centred around the South African Navy's military skills development system ("MSDS"), which is used by the South African National Defence Force, of which the Navy forms a part, to select persons for training who enlist in the Defence Force. The Tebeila Institute of Leadership, Education, Governance and Training challenged the age requirements for admission to the MSDS.
Under the MSDS, applicants who would serve in a combat role are required to be between 18 and 22 years of age, having completed Grade 12 with mathematics and physical science, with at least level 3 in both subjects. Graduate applicants are required to be between 18 and 26 years of age, having completed Grade 12 and holding a degree, national diploma or a trade test certificate in mechanical, marine or electrical engineering.
Tebeila challenged the age requirement, not on the basis of the educational requirements, but rather on the stipulations as to age eligibility. Tebeila's challenge was based on three grounds. Tebeila contended that:
- the age requirements constitute unfair discrimination, contrary to section 9 of the Constitution;
- the age requirements fail to accord with post-matric students' right to further education, which the State, through reasonable measures, must make progressively available, as required by section 29(1)(b) of the Constitution; and
- the Navy failed to respect, protect, promote and fulfil the rights in the Bill of Rights in terms of section 7(2) of the Constitution by stipulating the age requirements.
For the purposes of this article, and from an employment law context, focus is only placed on Tebeila's first challenge regarding the age requirements constituting unfair discrimination. It is worth noting that in the High Court, Tebeila's challenge prevailed. The High Court held that the age requirements constitute unfair discrimination and that they deprive the young people, who battle to finish their degrees or diplomas between the ages of 18 and 26, the opportunity to be trained as soldiers or military personnel under the MSDS and that such a deprivation is unfair discrimination.
On appeal to the SCA, the Defence Force and Navy (the "appellants") contended that the age requirements do not constitute unfair discrimination. Relying on the markers of unfair discrimination enunciated in Harksen v Lane NO and Others, the appellants submitted that:
- persons above the age of 26 rendered ineligible for admission to the MSDS by reason of the age requirements, are not a vulnerable class;
- the MSDS forms part of a recruitment policy that seeks to ensure age-appropriate recruitment to the Defence Force; and
- the class of persons affected by the age requirements suffer no impairment to dignity.
As a result, no infringement of section 9 of the Constitution was proven.
Tebeila contended otherwise. It argued that the age requirements were arbitrary and irrational because they excluded the majority of young people, that is those aged 26 to 35, from access to the MSDS system. It argued that their wholesale exclusion constitutes unfair discrimination. Furthermore, it argued that to deny young persons over the age of 26 the opportunity to enter the military exacerbates the problem of youth unemployment in the country.
The appellants set out in some detail the basis upon which the age requirements came to form an integral part of the MSDS. Section 200 of the Constitution requires that the Defence Force must be a disciplined military force that defends the country. To achieve this, section 63(4) of the Defence Act, 2002 states that the training of members of the Defence Force is an essential part of the force's preparation. The MSDS imposes age requirements so as to train recruits who are young, fit and healthy. These recruits may also be deployed with less concern for family commitments.
Tebeila accepted that it is a legitimate purpose for the Defence Force to recruit persons who are young, fit and healthy. Tebeila contended, however, that these attributes are also to be found in people up to the age of 35, and, to exclude them from consideration solely on the grounds that they are older than 26 years is arbitrary and unfair. Tebeila further asserted that, in South Africa, people aged 16-35 are considered young.
The SCA, having considered the arguments, concluded that the duty of the Defence Force is to defend and protect South Africa. To do so, it must be combat-ready and this requires soldiers who may be readily deployed. It held that older recruits have young families, with attendant responsibilities and that they are more area bound and less amenable to lengthy and stressful deployments away from home and that these considerations support the age requirements.
The SCA further held that Tebeila's challenge failed to properly reckon with the age profile of the ranks making up the Defence Force. It concluded that the older persons are, when first recruited, the shorter will be time that they may serve as soldiers who are combat ready – a core competence that the Defence Force must have. The SCA held that this was precisely the problem that the MSDS was meant to address because too many serving soldiers in the junior ranks were simply getting too old, which compromised the capacity of the Defence Force to protect and defend.
Tebeila sought to answer these justifications for the age requirements by recourse to an individual assessment. It contended that, rather than to impose the age requirements, the Navy should assess whether individual applicants over the age of 26 have the attributes necessary to meet the needs of the Defence Force. Tebeila argued that if an applicant is fit, unattached, willing to be subjected to unpredictable deployment, and otherwise qualified, why should the fact that they are aged 27-35 preclude them from consideration?
The SCA dealt with these contentions by accepting that there may be persons older than 26 years who would make good soldiers. This, however, does not render the threshold arbitrary or unfair. It held that as long as the age requirements are imposed for reasons that bear rational scrutiny, then the requirements are not arbitrary or unfair merely because there are persons of merit who are excluded. The SCA further held that the attributes of fitness for combat, unencumbered relationships, and a willingness to be subject to a command structure are meaningfully correlated with age.
The SCA concluded that the fact that Tebeila would determine the recruitment policy in a different and more expansive way is irrelevant to the question as to whether the age requirements are unfair. The proper enquiry concerns whether the age requirements that have been decided upon withstand scrutiny under the constitutional standard of unfair discrimination. Accordingly, the SCA found that the age requirements, forming part of the MSDS, have a rational basis that serves the functional requirements of the Defence Force so as to permit the force to carry out its constitutional mandate.
Comment
This SCA decision highlights that it is permissible for an employer to have in place age requirements for hiring certain employees for a particular job, provided that the age requirements are imposed for reasons that bear rational scrutiny and can withstand the constitutional standard of unfair discrimination. Employers may similarly already have in place age requirements for other purposes, such as providing certain benefits to a certain age class of employees, or imposing age requirements pertaining to retirement age. Employers need to tread carefully and ensure that any age requirements imposed are rationally connected to the purpose for which they have been prescribed and that they can withstand the constitutional standard of unfair discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
