Discrimination based on age is justified in the Defence Forces – but one size does not fit all
Considering the implications of South African Navy and Another v Tebeila Institute of Leadership, Education, Governance, and Training (252/2019)  ZASCA 23 (19 March 2021)
Author: Yuri Tangur – Candidate Attorney
*Supervised by Candice Pillay – Director
The South African National Defence Force (SANDF) and the South African Navy implemented the Military Skills Development System (MSDS) in 2003. The purpose of the system is to select recruits who will serve in the SANDF or the Navy for a period of two years during which time they will undergo military training. Thereafter, should they wish to continue in the armed forces or as part of the reserves, they would be deployed accordingly.
Apart from academic criteria, the eligible age for applicants is between 18 and 26 years. An educational organisation challenged this requirement in the interests of those excluded based on their age. The Tebeila Institute of Leadership is an organisation that provides access to further education for post-matriculants from poor communities. In the case of South African Navy and Another v Tebeila Institute of Leadership, Education, Governance, and Training (252/2019)  ZASCA 23 (19 March 2021), Tebeila had challenged the South African Navy on the age requirement on three constitutional grounds:
Section 9 – unfair discrimination;
Section 29(1)(b) – the right to further education; and
Section 7(2) – the state failed to respect, protect, and promote the rights in the Bill of Rights.
The matter was heard on appeal from the Limpopo High Court, which had ruled in Tebeila’s favour and declared the Navy’s recruitment policy invalid on the grounds of unfair discrimination. The Navy appealed against the order to the Supreme Court of Appeal (SCA).
The SCA considered the first challenge.
Tebeila argued that excluding most young people aged 26 to 35 is both irrational and arbitrary because this class of persons may possess the necessary attributes to be part of the military. The consequence being that unemployment amongst the youth would be exacerbated. Conversely, the Navy, relying on the Harksen judgment (Harksen v Lane NO and Others 1998 (1) SA 300 (CC)), argued that persons above the age of 26 are not a vulnerable class, that there is no impairment to dignity, that the system forms part of a recruitment policy that seeks to ensure age-appropriate recruitment in the defence force and that as a result there is no infringement of section 9 of the Constitution.
The court, however, dismissed that argument and reiterated that in terms of section 9(3), the State may not unfairly discriminate against anyone on any of the specified grounds (including age) and that discrimination would be established once there is differentiation based on any such specified ground.
Once the court was satisfied that there was discrimination based on age, the enquiry proceeded to consider whether the discrimination was fair. The court considered the impairment of human dignity based on the impact of discrimination on the group that the complainant represented (which involved a consideration of whether they had suffered past patterns of discrimination), the power that had been exercised, the purpose served by the discrimination, and the effect of the discriminatory measure upon the rights and interests of those affected.
Counsel for the Navy argued that the constitution requires that the National Defence Force remain disciplined to protect the Republic, and training is an essential component of its ability to do that (as per s63(4) of the Defence Act 42 of 2002). Further, the Department of Defence implemented a policy entitled ‘the policy for the implementation of inherent rank-age requirements for the South African Defence Force’ which sought to address an imbalance between rank and age. The legal argument advanced was that the main reason for the age requirement was to maintain a state of combat readiness and applicants of a younger age were found to have fewer family commitments, were able to adapt to change, were willing to be subject to a command structure, were less bound to a specific geographic location, were more amenable toward deployments and were able to serve for longer periods in the service.
The court acknowledged that the age requirement did not need to consider individual criteria but would need to focus on the rational and reasonable demarcation of attributes that correlate with age. The court further found that there was no assault on the affected persons’ dignity – there are persons outside of the age requirement that would make good soldiers, but this does not make the age requirement arbitrary or unfair. Finally, the court held that the group did not form part of a vulnerable group that was affected by discrimination and concluded that, considering all factors, the age requirement was rational and the discrimination not unfair. Tebeila’s challenge was dismissed.
Although this case was a constitutional challenge based on unfair discrimination centred on age as an entry requirement, such challenges can also be grounded in statute against current practices or policies of employers. Employers in both the non-profit and for-profit sectors, government departments, and start-up companies should proactively and regularly review their internal recruitment policies to ensure that they are tailored to requirements and contemporary, as well as capable of withstanding constitutional scrutiny, especially considering imminent amendments to anti-discrimination legislation.
 Section 200.
For more information on how we can assist you in ensuring that business practices and policies are non-discriminatory in both intent and law, please contact our Corporate Citizenship team.
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