Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997)

Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997)

Regulation 2(2) of the Regulations regarding the Terms and Conditions of Employment of Education, which bars non-citizens from permanent educator posts, constitutes unfair discrimination against permanent residents under section 8(2) of the interim Constitution. Citizenship is an attribute that is difficult to change and is not within the individual's control, making non-citizens a vulnerable group. The regulation impairs the dignity and security of permanent residents, who have been lawfully admitted and often reside in South Africa for extended periods. The government's commitment to permanent residents is undermined by excluding them from employment opportunities. The discrimination is...

Citation
[1997] ZACC 16
Parties
Appellant: Charles Kweku Larbi-Odam; Appellant: Gabriel Kofi Tuglo; Appellant: Joseph Yeboa Akwa; Appellant: Ephraim Kwaku Adom; Appellant: Lawrence Ntungwana Simelane; Appellant: Nkhane Andries Ramakgapola; Appellant: Kwabena Amoakohene-Ababio; Appellant: Moses Samuel Kiirya Ntende; Respondent: The Member of the Executive Council for Education (North-West Province); Respondent: The Minister of Education
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
26 November 1997
Case Number
CCT 2/97
Procedural Posture
Constitutional Appeal / Appeal From Bophuthatswana Provincial Division of the Supreme Court
Outcome
Appeal allowed. Regulation 2(2) declared inconsistent with the Constitution and invalid. Respondents ordered to pay costs.
Judges
Mokgoro, Chaskalson, Langa, Ackermann, Didcott, Goldstone, Kriegler, Madala, O'Regan, Sachs
Legal Topics
Unfair Discrimination, Citizenship and Employment, Section 8 Equality, Section 33 Limitation, Educators Employment Act, Aliens Control Act
Constitutional Law Labour Law Unfair Discrimination Citizenship and Employment Section 8 Equality Section 33 Limitation Educators Employment Act Aliens Control Act

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Parties

Charles Kweku Larbi-Odam

Appellant

Gabriel Kofi Tuglo

Appellant

Joseph Yeboa Akwa

Appellant

Ephraim Kwaku Adom

Appellant

Lawrence Ntungwana Simelane

Appellant

Nkhane Andries Ramakgapola

Appellant

Kwabena Amoakohene-Ababio

Appellant

Moses Samuel Kiirya Ntende

Appellant

The Member of the Executive Council for Education (North-West Province)

Respondent

The Minister of Education

Respondent

Procedural Posture

Constitutional Appeal / Appeal From Bophuthatswana Provincial Division of the Supreme Court

Legal Issues

  1. 1 Does regulation 2(2) of the Regulations regarding the Terms and Conditions of Employment of Education unlawfully discriminate against non-citizens contrary to section 8(2) of the interim Constitution?
  2. 2 Is regulation 2(2) ultra vires the enabling Educators' Employment Act 138 of 1994?
  3. 3 Is any discrimination justified under section 33(1) of the interim Constitution?

Ratio Decidendi

Regulation 2(2) of the Regulations regarding the Terms and Conditions of Employment of Education, which bars non-citizens from permanent educator posts, constitutes unfair discrimination against permanent residents under section 8(2) of the interim Constitution. Citizenship is an attribute that is difficult to change and is not within the individual's control, making non-citizens a vulnerable group. The regulation impairs the dignity and security of permanent residents, who have been lawfully admitted and often reside in South Africa for extended periods. The government's commitment to permanent residents is undermined by excluding them from employment opportunities. The discrimination is...

Court Disposition

Appeal allowed. Regulation 2(2) declared inconsistent with the Constitution and invalid. Respondents ordered to pay costs.

Orders

  • Regulation 2(2) of the Regulations regarding the Terms and Conditions of Employment of Education in Government Gazette 16814 GN R1743 of 13 November 1995 is declared inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and invalid.
  • Respondents are ordered to pay the applicants' costs, including costs attendant on the employment of two counsel.