SCA rules recruitment age requirement for Navy not discriminatory

The South African Navy has successfully challenged a Limpopo High Court decision declaring its recruitment age requirement policy invalid. File picture: Tracey Adams/African News Agency (ANA)

The South African Navy has successfully challenged a Limpopo High Court decision declaring its recruitment age requirement policy invalid. File picture: Tracey Adams/African News Agency (ANA)

Published Mar 23, 2021

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Cape Town - The South African Navy has successfully challenged a Limpopo High Court decision declaring its recruitment age requirement policy invalid.

This was after the Tebeila Institute, which took on the Navy, could not prove their case at the Supreme Court of Appeal (SCA).

The policy stipulated age requirements for admission to the navy’s recruitment programme, the military skills development system (MSDS).

The MSDS is used by the South African National Defence Force(SANDF) to select persons who enlist in the defence force to undergo training.

Thereafter they are 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.

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 sciences, 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.

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, according to court papers.

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, stated the papers.

However, the Navy contended in its papers that the age requirements do not constitute unfair discrimination and “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...and the class affected by the age requirements have suffered no impairment to their dignity.”

In his judgement, SCA Judge David Unterhalter said: “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.” Judge Unterhalter set aside the order made by the Limpopo High Court.

Tebeila Institute spokesperson for Caiphus Moshutla said they would possibly take the matter to the Constitutional Court after their legal team has studied the judgment.

“There is still another court to go to which is the Constitutional Court. After the study, we will confirm the decision with you,” said Moshutla.

Attempts to get comment from the Navy was unsuccessful by deadline.

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Crime and courts