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

• Jurisdiction: South Africa
• Judge: Mokgoro J, Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, O'Regan J, Sachs J
• Judgment Date: 26 November 1997
• Citation: 1998 (1) SA 745 (CC)
• Docket Number: CCT 2/97
• Counsel: H Lever (with him PM Kennedy) for the appellants PC Van Der Byl (with him LG Thomas) for the respondents J Kentridge (with her E Du Toit) for the amicus curiae
• Court: Constitutional Court

Mokgoro J:

[1] This is an appeal from a judgment delivered on 29 August 1996 by Waddington J in the Bophuthatswana Provincial Division of the Supreme Court. [1] The learned Judge dismissed an application which in effect sought an order that: C

(a)

reg 2(2) of the 'Regulations regarding the Terms and Conditions of Employment of Education' (sic) contained in Government Gazette 16814 GN R1743 of 13 November 1995 ('the regulations') was invalid because of its inconsistency with s D 8(2) of the Constitution of the Republic of South Africa Act 200 of 1993 ('the interim Constitution');

(b)

alternatively, reg 2(2) was ultra vires its enabling legislation being the Educators' Employment Act Proclamation 138 of 1994 ('the Educators' Employment Act'). E

[2] The material portions of the regulations provide:

'[2.](2) . . . (N)o 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 s 212(4) of the Constitution of the Republic of South Africa, 1993. F

. . . .

5(1) Whenever a post becomes vacant, any educator may, notwithstanding anything to the contrary contained in these Regulations, with his or her consent be appointed in a permanent capacity by the employer to such vacant post.'

[3] The regulations were issued by the Minister of Education, the second respondent. The first G respondent, the Member of the Executive Council for Education of the North-West Province, has relied upon reg 2(2) in the process of rationalisation of education. [2] That process has included, inter alia, the conversion of temporary teaching posts to permanent ones. Thus the first respondent has advertised the posts held by foreign teachers temporarily H employed in the province, and has issued such teachers with notices purporting to terminate their employment. The appellants submit that the restrictions on their eligibility for permanent appointment amount to unfair discrimination, contrary to s 8(2) of the interim Constitution (the Constitution of the Republic of South Africa

Mokgoro J

Act 200 of 1993). They are supported in their submissions by the Centre for Applied Legal A Studies, which acted as an amicus curiae in the proceedings before this Court. [3]

[4] The eight appellants are foreign teachers temporarily employed in the North-West B Province, and were formerly employed as teachers by the Government of Bophuthatswana. They are a well qualified group, with most of them holding post-graduate qualifications. They originate from Ghana, Swaziland, Zimbabwe and Uganda. Some of the appellants are permanent residents of South Africa. Some are married to South African citizens and have C children born in South Africa. The appellants have been resident in South Africa for various periods of time and, in a number of cases, for periods in excess of 10 years. They belong to an informal association with a membership of around 120 teachers who find themselves in a similar situation.

[5] Prior to the issue of the regulations, the appellants were ineligible for permanent teaching D employment because of regulations issued under s 12 of the Bophuthatswana National Education Act 2 of 1979. Regulation 2(1)(a) of those regulations provided that a person could not be appointed or promoted in a permanent post unless he or she was a citizen of E Bophuthatswana. The appellants contend that their contracts of temporary employment were repeatedly renewed as a matter of course. [4] Section 8(6) of the Educators' Employment Act provides that temporary contracts of educators can be terminated upon reasonable notice.

[6] A similar bar to the appellants' permanent appointment was introduced by reg 2(2), relied F upon by first respondent in the rationalisation process. As part of that process, first respondent advertised approximately 5 000 temporary teaching posts in the North-West Province in July 1995. Some 700 of those posts were held by foreign teachers. Over the course of the following year, several foreign teachers were issued with notices purporting to terminate their services by the then Department of Education, Sport and Recreation of the province, on the basis of their citizenship. [5] In the Court a quo, the appellants initially sought G an

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interdict restraining the respondents from enforcing reg 2(2). [6] In lieu of an interdict, the first A respondent gave an undertaking not to terminate the services of the appellants or of teachers in a similar position, or to make permanent appointments in the posts held by such persons, pending the outcome in these proceedings. [7] The respondents conceded at the hearing below B that the effect of the notices is that none of the appellants' contracts has as yet been terminated. [8] Each remains in paid employment until his or her contract has been lawfully terminated. [9] That position will continue even if an appellant's post has been temporarily filled by a South African citizen, and the appellant has not been required to render any actual service as a teacher. [10] C

[7] Waddington J held that although reg 2(2) is contrary to s 8(2) of the interim Constitution, it is justified under s 33(1). As regards s 8(2), he stated that 'the discrimination (created by reg 2(2)) cannot amount to anything other than unfair discrimination because (its) effects are each and every one invidious' (citation omitted), and that the 'unfairness of the discrimination is D loudly proclaimed by the content of reg 2(2) itself'. [11] Waddington J also held that reg 2(2) was not ultra vires its enabling statute. [12] His judgment summarises with clarity the respondents' case for justification, and merits quotation at length:

'(The second respondent) gives the following facts in relation to education in South Africa: E

(a)

26 000 educators are trained annually . . . .

(b)

According to Departmental records, 345 543 educators were employed during 1995.

(c)

The national educators attrition rate in 1994 was 20 500. In 1995 it was 20 700. F

(d)

In the ordinary course of events it would have been possible to accommodate 24 340 out of 26 000 educators who qualified in 1994.

(e)

Similarly, not all educators who qualified in previous years could be accommodated, ie offered posts in the teaching profession.

(f)

In consequence, there are large numbers of unemployed educators in South Africa. G

3. The oversupply of educators is exacerbated by the rationalisation process being carried out in accordance with the provisions of s 237 of the interim

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Constitution . . . 15 departments of education . . . are being rationalised into one national and nine A 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. . . . As a result, about 10 976 primary school teachers will become redundant and about 39 508 secondary school teachers will become redundant. B

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 rationalisation process.

Furthermore, the state of affairs outlined above has prompted the education authorities to consider cutting . . . the intake of students into educational training institutions by 40%.' [13] C

[8] Waddington J continues as follows:

'(If it is correct) that foreign-born teachers employed in South Africa number only 1,5% of the total teaching force . . ., a simple calculation reveals that of the approximately 50 484 teachers to be D retrenched, 45 301 will be South African citizens while 5 183 will be non-citizens. The corollary is that, if the services of all non-citizen educators were to be retained, 5 183 more South African citizens would be retrenched. This seems to represent the essence of the problem.

. . .

In my view, it has been shown that the principal responsibility of the department of education is to E 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 F interests of those whose permanent home is South Africa. It seems to me that it is a matter of common sense 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.' [14]

[9] It should be noted that the figures concerning retrenchment in Waddington J's judgment are G based on national statistics. Likewise, the reference to foreign teachers as being 1,5% of the teaching population is a national statistic, provided by the appellants with no supporting facts. This translates to approximately 5 000 foreign teachers countrywide. There appear to be approximately 700 foreign teachers employed in the North-West Province.

[10] For the reasons given below, I respectfully disagree with Waddington J's findings with H regard to justification. Before I turn to that issue, I will address a question which was raised for the first time at the hearing before this Court, namely the effect of reg 5(1) on the scope of reg 2(2).

[11] Regulation 5(1) provides that: I

'Whenever a post becomes vacant, any educator may, notwithstanding anything to the contrary contained in these Regulations, with his or her consent be appointed in a...