THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 252/2019

In the matter between:
SOUTH AFRICAN NAVY

FIRST APPELLANT

MINISTER OF DEFENCE

SECOND APPELLANT

and

TEBEILA INSTITUTE OF
LEADERSHIP, EDUCATION,
GOVERNANCE AND
TRAINING

RESPONDENT

Neutral citation: South African Navy and Another v Tebeila Institute of
Leadership, Education, Governance and Training
(252/2019) [2021] ZASCA 23 (19 March 2021)

Coram:
PETSE AP, MBHA, MBATHA JJA and GOOSEN and
UNTERHALTER AJJA

Heard:
26 February 2021

Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 19 March 2021.

Summary: Age requirements for recruitment to the defence force –
equality challenge in terms of s 9 of the Constitution – whether age
requirements constituted unfair discrimination – challenge under s
29(1)(b) of the Constitution – right to further education and the
obligations of the State – held that age requirements do not constitute
unfair discrimination – held further that no case made out to establish
infringement of s 29(1)(b) of the Constitution – appeal upheld.

ORDER

On appeal from: The High Court, Limpopo Division, Polokwane
(Mokgohloa DJP, sitting as court of first instance):
1 The appeal is reinstated.
2 The appeal is upheld.
3 The order of the court below is set aside and replaced with the
following order:
The application is dismissed.

JUDGMENT

Unterhalter AJA (Petse AP, Mbha and Mbatha JJA, and
Goosen AJA concurring)

Introduction
[1] The first appellant, the South African Navy (the Navy), has
implemented the military skills development system (MSDS). The MSDS
is used by the South African National Defence Force (the defence force),
of which the Navy forms part, to select persons who enlist in the defence
force, to undergo training. They are then deployed for a period of two
years, so as to determine whether such recruits are suitable for continued
service, in the regular force or in the reserves.

[2] The respondent, the Tebeila Institute of Leadership, Education,
Governance and Training (Tebeila), challenged the age requirements for
admission to the MSDS. Tebeila is an organisation that works to ensure
access to further education, post-matric, for persons from poor
communities. 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, and 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 (the age requirements).

[3] Tebeila challenged the age requirements, not on the basis of the
educational requirements, but rather on the basis of the stipulations as to
age eligibility. It did so in the interests of those excluded by the age
requirements from applying for admission to the MSDS, and also in the
public interest. Tebeila’s challenge was based on three grounds. First,
Tebeila contended that the age requirements constitute unfair
discrimination contrary to s 9 of the Constitution. Second, the age
requirements fail to accord to post-matric students the right to further
education, which the State, through reasonable measures, must make
progressively available, as required by s 29(1)(b) of the Constitution.
Third, the Navy has failed to respect, protect, promote and fulfil the rights
in the Bill of Rights in terms of s 7(2) of the Constitution by stipulating
for the age requirements.

[4] In the high court, Tebeila’s challenge prevailed. Mokgohloa DJP
held that the age requirements constitute unfair discrimination. The high
court found that the educational history of our country has left most
young people in the position where they battle to finish their degrees or
diplomas between the ages of 18 and 26. The age requirements deprive
these persons of the opportunity to be trained as soldiers or military
personnel under the MSDS. That is unfair discrimination. The right to
equality cannot be sacrificed, so it was reasoned, upon the altar of the
recruitment objectives of the Navy. The high court declared the Navy’s

policy concerning the admission of applicants under the MSDS to be
invalid. The declaration of invalidity was suspended for 12 months to
enable the Navy to revise its policy. With the leave of the court below,
the Navy and the second appellant, the Minister of Defence, appeal to this
court. The appellants failed to file the record timeously, and the appeal
lapsed. The appellants sought condonation and explained their delay. The
delay occasioned Tebeila no prejudice, and we granted condonation and
reinstated the appeal.

Unfair discrimination
[5] The appellants contended that the age requirements do not
constitute unfair discrimination. Relying upon the markers of unfair
discrimination enunciated in Harksen,1 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 affected by the
age requirements have suffered no impairment to their dignity. No
infringement of s 9 of the Constitution, as a result, was proven.

[6] Nor, urged the appellants, do the age requirements constitute
measures taken by the Navy that retard the State’s duty progressively to
make further education available and accessible. The MSDS has recruited
significant numbers of members who have successfully completed their
training. That fulfils the duty resting upon the State in terms of s 29(1)(b)
of the Constitution. Furthermore, the MSDS does not give rise to any
failure by the State to respect, protect, promote or fulfil the rights in the
Bill of Rights, as required by s 7(2) of the Constitution.

1 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) para 51.

[7] Tebeila contended otherwise. It submitted that the age
requirements are arbitrary and irrational because they exclude the
majority of young people, that is, those aged 26 to 35. This class of young
people should not be denied their right to equality and further education
simply on the basis of their age. Persons falling within this class may
enjoy the attributes necessary to serve in the military. Their wholesale
exclusion constitutes unfair discrimination. Furthermore, 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 age
requirements, it was argued, were thus properly determined by the high
court to constitute unfair discrimination. For similar reasons, Tebeila
maintained that the MSDS violates the right to further education
protected in terms of s 29(1)(b) of the Constitution. In consequence, the
MSDS failed to comply with the State’s duties under s 7(2) of the
Constitution.

[8] The parties, rightly, located their submissions in the durable
framework set out in Harksen2 for the consideration of challenges
brought under s 9 of the Constitution. Section 9(3) provides that the State
may not unfairly discriminate against anyone on one or more grounds,
including specified grounds. Among the specified grounds in s 9(3) is
age. Following Harksen, if the differentiation that is challenged is on a
specified ground, then discrimination will have been established. Despite
criticism of this somewhat mechanical approach to the identification of
discrimination, Harksen remains the authoritative interpretation of s 9(3).
Since the age requirements specify an age limit to determine eligibility
for participation in the MSDS, that limit amounts to discrimination
because it excludes persons from participation in the MSDS on the

2 Paragraph 53.

grounds of age, a specified ground. In particular, the challenge brought
by Tebeila was made on the basis of the upper age limits specified by the
policy of the Navy to be considered for participation in the MSDS.

[9] Once discrimination has been established, following Harksen, the
question is whether such discrimination is unfair. Section 9(5) of the
Constitution directs that discrimination on a specified ground is unfair,
unless it is established that the discrimination is fair. This constitutional
presumption requires the appellants to satisfy us that the age requirements
are fair. If that burden of persuasion is not met by the appellants, then the
age requirements constitute unfair discrimination in terms of s 9(3).

[10] Harksen makes it plain that the constitutional prohibition of unfair
discrimination is a protection against impairments of human dignity,
judged on the basis of the impact of the discriminatory measure upon the
complainant or, as in this case, the group that the complainant represents.
That impact is assessed on the basis of the following: the position in
society of those impacted by the discriminatory measure and whether
they have suffered past patterns of discrimination; the power that has
been exercised and the purpose served thereby; and the effect of the
discriminatory measure upon the rights and interests of those affected.
These considerations are not necessarily exhaustive of the enquiry.

[11] 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 and protects the Republic. To do this, s 63(4)
of the Defence Act 42 of 2002 requires that the training of members of
the defence force is an essential part of the force’s preparation.

[12] The Department of Defence has adopted a policy, entitled ‘the
policy for the implementation of inherent rank-age requirements for the
South African Defence Force’ (the policy). The policy, though expressed
in sometimes arcane language, explains that the defence force requires
young, fit and healthy members who are able to adapt to change. The
defence force runs the risk of rank-age imbalance. The essential difficulty
is that the age profile of members of the defence force, within and
between the different ranks, exceeds international norms. This can
hamper the readiness and capability of the defence force. It can also give
rise to the difficulty that older soldiers holding more junior ranks are
commanded by younger soldiers holding more senior ranks. Put simply,
too many members of the defence force within the ranks, and especially
within the junior ranks, are, on average, too old. Recruitment policy must
therefore seek to redress this imbalance.

[13] The MSDS is the primary programme used to recruit regular and
reserve forces. Those enlisted undergo training and serve for a period of
two years. Thereafter, members may serve in the reserve or in the regular
force, if vacancies arise. The MSDS imposes the age requirements so as
to train recruits who are young, fit and healthy. Such recruits may be
deployed with less concern for family commitments. The age
requirements also permit of recruitment that allows for the correction of
the sub-optimal age profile of the junior ranks.

[14] This corrective function appears to have met with some success. In
2002, before the implementation of the MSDS, only 8% of regular
privates and equivalent ranks were aged between 18 and 24 years,
compared with 57% in 2011.

[15] Tebeila, in its replying affidavit, accepted that it is a legitimate
purpose for the defence force to recruit persons into the defence force
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. The MSDS exacerbates the problem
of youth unemployment because it denies young people over the age of
26, who are studying for a degree or a diploma, the opportunity to pursue
a military career, to which they may well be suited. Tebeila also asserted
that in South Africa people aged 16-35 are considered young.

[16] The analysis must commence with the consideration of those
persons aged 27 to 35 who are fit and healthy, wish to be considered for
the MSDS to pursue a military career, but are excluded by reason of their
age. The essence of the challenge is that the imposition of the age
requirements renders the opportunity to be considered for recruitment
through the MSDS under-inclusive because people who are still young
are thereby excluded.

[17] While it might be considered arbitrary to exclude some young
people from the valuable opportunity of applying for admission to the
defence force, this position fails adequately to appreciate the rationale for
the age requirements.

[18] First, the constitutional duty of the defence force is to defend and
protect the Republic. To do so, it must be combat ready. That requires, as
the deponent to the answering affidavit, Major General Sitshongave,
explained, soldiers who may readily be deployed. Older recruits have
young families, with attendant responsibilities. They are more area bound

and less amenable to lengthy, stressful, deployments away from home.
This consideration supports the age requirements.

[19] Second, the challenge fails properly to reckon with the age profile
of the ranks making up the defence force. The MSDS is the programme
through which the defence force recruits people, trains and deploys them,
and ultimately selects soldiers for the reserves and the regular force. The
older persons are when first recruited, the shorter will be the time that
they may serve as soldiers who are combat ready – the core competence
that the defence force must have. That was precisely the problem that the
MSDS was intended to address. 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. Younger recruits were the answer to
this problem. So too, the requirement that the command structure of the
ranks should be age appropriate was a further reason for the development
and implementation of the MSDS.

[20] Tebeila sought to answer these justifications for the age
requirements by recourse to an argument of individual assessment. Rather
than impose the age requirements, the Navy should assess whether
applicants over the age of 26 have the attributes necessary to meet the
needs of the defence force. 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?

[21] This argument is unavailing. First, the age requirements are
predicated upon a reasonable delineation of the attributes that generally
correlate with age. Whenever a maximum threshold is specified, persons
may be excluded who, with some relaxation of the threshold, would be

well qualified to enjoy a benefit. In this case, there may be persons
older than 26 who would make good soldiers. This, however, does not
render the threshold arbitrary or unfair. 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. This case is a good illustration of this principle. The
attributes of fitness for combat, unencumbered relationships, and a
willingness to be subject to a command structure are meaningfully
correlated with age. Where precisely the threshold should be set may be a
matter for debate. But the specification of an age requirement so as to
attract applicants most likely to have the attributes required is not unfair
to those excluded, because it is a delineation predicated upon a rational
judgment as to where the best applicants, in aggregate, are most likely to
be found.

[22] Second, the age requirements do not stand impugned as unfair
discrimination simply because it is possible to imagine other thresholds or
other means by which the functional requirements of recruitment for the
defence force could be met. That the maximum age might have been set
at 25 or 27, does not render the specified maximum of 26 unfair. The
implementation of a policy always requires that a limit is set. As long as
the limit falls within the range of reasoned substantiation, it is not unfair.
Nor is unfair discrimination determined by conceiving of another way in
which recruitment for the defence force could take place. That Tebeila
would determine 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.

[23] I am, thus, of the view 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.

[24] Tebeila also contended that the age requirements constituted unfair
discrimination because these requirements exclude a significant number
of young people from applying for employment with the defence force.
The age requirements, as a result, serve to limit the impact of the MSDS
in reducing youth unemployment.

[25] I recognise that youth unemployment is one of the country’s
gravest problems. In a youthful country, unemployment denies to many
the multi-faceted goods that come with a job, both material and by way of
personal fulfilment. However, the age requirements make no difference to
the number of young people recruited to the defence force. The age
requirements simply limit which young people secure the employment
opportunities created by recruitment under the MSDS, on Tebeila’s
premise that persons aged 27-35 are young. On the evidence before us,
there is no basis to contend that more young people would be employed if
the age requirements were eliminated or changed. And because the
defence force can only accommodate a predetermined number of recruits
for each intake, extending the age to 35, as Tebeila would have it, would
have no impact whatsoever on the country's youth unemployment
problem.

[26] Tebeila’s case amounted, then, to its central claim that it is unfair
discrimination to exclude a class of young people from the prospective
benefit of recruitment into the defence force. However, Tebeila made out
no case that those excluded from recruitment under the MSDS have in the

past suffered from patterns of discrimination. Whether or not young
people have been historically disadvantaged by limited opportunities to
gain employment was not Tebeila’s case. Nor was there any showing that
young people aged 27-35 are especially vulnerable as a class, whether in
comparison to older age groups or whether in comparison to young
people aged 18-26. Tebeila’s complaint was simply that the opportunities
created by the MSDS for youth employment should be more widely
available to an excluded class of young people.

[27] That complaint does not amount to unfair discrimination.
Recruitment under the MSDS provides employment for young people.
That this benefit is limited by the age requirements to a restricted class of
young people has been adequately explained. Those excluded, on the
evidence before us, have not been made especially vulnerable to past
discriminatory practices. Nor is their exclusion actuated by any assault
upon their dignity. The age requirements are not imposed to demean the
respect that is due to young people aged 27-35. Rather, the age
requirements ration a limited and valuable resource, recruitment into the
defence force, for reasons of functional efficacy. The exclusion of young
people aged 27-35 from recruitment into the defence force is based upon
a rational calculus as the attributes of value to the defence force that are
more likely to be found in one class of young people over another. Aging
brings both benefits and detriments. That the defence force considers
certain attributes of one class of young people to have special utility for
the purpose of recruitment entails no judgment that demeans another class
of young people. As long as there is a proper basis for distinguishing
these two classes in relation to the recruitment needs of the defence force
(as I have found), the age requirements do not constitute unfair
discrimination.

[28] There remains one further issue that warrants mention. The high
court found that the Navy’s admission policy amounted to unfair
discrimination on the grounds of age. The consideration that weighed
with the court was that the educational history of our country meant that
most of the youth between the ages of 18 and 26 have not yet graduated,
battle to complete their degrees by the age of 26, and yet these are the
very young people who need to be trained to become soldiers. The high
court reasoned that rights of young people who would become soldiers
cannot be sacrificed ‘at the altar of the respondent’s (the Navy’s) HR
concepts’.

[29] This line of reasoning cannot assist Tebeila. First, there is no
evidence before us that appreciable numbers of young people are not able
to complete their degrees or diplomas by the age of 26. Second, as I have
observed, Tebeila made no challenge to the educational requirements of
the MSDS, nor did it posit any relationship between the educational and
age requirements of the MSDS as the basis of its case that the Navy’s
recruitment amounted to unfair discrimination. The high court’s decision
rested upon a case that was not made. Tebeila has no entitlement to
sustain that holding on appeal.

[30] For these reasons, although the age requirements constitute
discrimination under s 9 of the Constitution, the appellants have
established that the age requirements do not amount to unfair
discrimination, and hence, the right to equality has not been infringed.

The right to further education
[31] Tebeila contended that the age requirements denied potential
recruits above the age of 26 the right to further education, as provided for
in s 29(1)(b) of the Constitution. Section 29(1)(b) accords everyone the

right to further education, which the State, through reasonable
measures, must make progressively available and accessible.

[32] Recruitment into the defence force provides an opportunity for
training, and that training may include study at institutions of tertiary
education. I shall assume, without deciding, that military training within
or under the auspices of the defence force constitutes further education
within the remit of s 29(1)(b). The right to further education, in terms of s
29(1)(b), is a claim against the State to make further education, through
reasonable measures, progressively available and accessible. In order to
sustain such a challenge, a complainant must set out what the State has
done and failed to do in the measures it has taken to make further
education available and accessible.

[33] Tebeila has not made out such a challenge. Even on the premise,
adopted in its favour, that recruitment into the defence force forms part of
what the State does to provide further education, Tebeila’s papers do not
explain what the State has done to provide further education in
furtherance of its constitutional obligations under s 29(1)(b). Nor does
Tebeila make any attempt to show what opportunities for further
education the State has provided to young people excluded from
recruitment into the defence force by the age requirements. Absent some
such showing by Tebeila, it is impossible to say in what way, if any,
exclusion from the training opportunities of recruitment into the defence
force constitutes a derogation by the State of its duty to make further
education progressively available and accessible. Tebeila’s challenge
cannot prevail.

Section 7(2)
[34] Tebeila also advanced the contention that the appellants had failed
to uphold their obligation to respect, protect, promote and fulfil the rights
in the Bill of Rights, as required by s 7(2) of the Constitution.

[35] Counsel for Tebeila accepted that if its challenges under ss 9 and
29(1)(b) did not prevail, then it had no independent case to advance under
s 7(2). Since, for the reasons given, these two challenges cannot be
sustained, Tebeila’s s 7(2) case must also fail.

Conclusion
[36] For these reasons, the appeal succeeds. The appellants, rightly,
recognised that this litigation was initiated and pursued in the public
interest. As a result, no costs are sought by the appellants, and no adverse
cost order is made against Tebeila. The following order is made:
1 The appeal is reinstated.
2 The appeal is upheld.
3 The order of the court below is set aside and replaced with an order as
follows:
The application is dismissed.

________________________
D UNTERHALTER
ACTING JUDGE OF APPEAL

Appearances:
For appellants:
B Makola SC (with him O Motlhasedi, M Lengane
and F Mnisi)

Instructed by:

The State Attorney, Polokwane
The State Attorney, Bloemfontein

For respondent:
S Tebeila (with him TA Makola and S Makoasha)
Instructed by:

Maponya Attorneys, Polokwane
Fixane Attorneys, Bloenfontein