The main issue was whether or not a regulation excluding non-citizens from being able to take permanent teaching posts was constitutionally valid. The appellants argued that the regulation was discriminatory and inconsistent with the right to equality in the South African Interim Constitution. The respondent (the MEC for Education) argued that the regulation was justified on the basis that non-citizen teachers had less commitment to South Africa than South African citizens, because there was another country to which they could go for work.
Citizenship was not a listed ground of prohibited discrimination in the Interim Constitution. However, the court held that distinctions on the basis of citizenship could be discriminatory because non-citizens are a minority group and because of the vulnerable and precarious position that they are in politically and socially.
With regard to permanent residents, the Court held that, unless a post requires that its incumbent should be a citizen, for example because of the particular political sensitivity of the job, employment opportunities should be available to permanent residents and South African citizens on an equal basis. Many of the appellants had families in South Africa and had lived there for a long time, thus they had strong ties to the country. The court also pointed out that the argument of the respondent that non-citizens were not as committed as citizens was unsupportable. This argument applied with equal force to South African citizens who hold dual nationality, yet the regulation did not impose any bar to their eligibility for permanent employment.
With regard to temporary residents, the court did not reach a conclusion as to whether the regulation constituted unfair discrimination. Unlike permanent residents, temporary residents are only able to remain employed for as long as their permits are valid. It held, however, that given the injustice that might be caused if the regulation was invalidated only with respect to permanent residents and not with respect to temporary residents, the regulation should be declared invalid with regard to temporary residents as well.
Constitutional law; citizenship; discrimination; non-citizens; temporary residents; permanent residents; equality; Interim Constitution; teachers
South Africa’s Regulation 2(2) of Regulations dealing with the terms and conditions of employment of educators (GN R1743 of 13 November 1995) provided that, subject to certain exceptions, only South African citizens could be appointed to permanent teaching positions in state schools. As a result, eight temporarily-employed teachers, who were foreign citizens some of whom had permanent residence and some temporary residence permits, were given notices of termination.
The appeal was upheld. Regulation 2(2) was declared invalid on the grounds that it was inconsistent with s 8(2) of the Interim Constitution.
The regulation was inconsistent with s 8 of the Constitution in that it constituted unfair discrimination. This right was not limited to citizens, as it states that "Every person shall have the right to equality before the law and to equal protection of the law". The fact that citizenship is not a listed ground of discrimination does not prevent regulations that focus on non-citizens from being unfairly discriminatory.