Nathi Mthethwa goes from the police to arts and culture. Photo: S'bonelo Ngcobo

Johannesburg - An Eastern Cape reservist wants a century-old restriction barring applicants over 40 from becoming police officers declared unconstitutional and invalid.

Daluxolo Sali, who turns 47 in November, is taking his fight for the job he successfully applied for to the Constitutional Court, where he is demanding that national police commissioner General Riah Phiyega, Eastern Cape provincial commissioner Lieutenant-General Celiwe Binta and Police Minister Nathi Mthethwa bring their recruitment policy in line with the constitution.

In his written arguments, Sali wants the country’s highest court to direct the three to eliminate unfair discrimination on the basis of age in their recruitment policies.

Sali also wants the Constitutional Court to order them to permanently appoint him to the position he applied for from January last year, or be paid R500 000 in damages or compensation, or the two years’ salary he would have earned had he been permanently appointed.

“Age discrimination is often not viewed as seriously as other discrimination, yet the consequences are equally harmful as that of other forms of unlawful discrimination,” Sali said in court papers.

Police say the age restriction of 30 has been in place for 80 to 100 years. The restriction was increased to 40 for reservists with three years’ service.

Sali wants the court to declare the provisions of a 1964 police minimum-age regulation discriminatory, without any justification and invalid. He hopes these provisions will be struck from the regulation. “Age discrimination often compacts on the effect of other discriminations and thereby causes more hardships for prospective employees who have experienced discrimination in other areas,” Sali said.

Sali, a police reservist since August 2006, was 41 years and eight months when he applied for a job as a police officer in July 2009.

Police reservists were encouraged to apply for vacant positions in the SAPS after they marched to the ANC head office, Luthuli House, in February 2009.

At the time he had been informed that one of the requirements was to be aged between 41 and 45. He was later told his application had been successful and went through a medical examination and other tests, which he passed. However, Sali was never given a contract. Instead he was told he was over age and police bosses did not respond to his application for condonation of age. Police officials told Sali he should not have been older than 40 to qualify for the position.

He filed a discrimination dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA), but the matter was not resolved and Sali approached the Labour Court in Port Elizabeth in 2010. Last year Judge Zolashe Lallie dismissed Sali’s claims of age discrimination and his application for leave to appeal.

Lallie, however, refused to grant Phiyega, Binta and Mthethwa a cost order against Sali due to his socio-economic circumstances.

In October last year the Labour Appeal Court refused Sali’s petition for leave to appeal, forcing him to head to the Constitutional Court.

Phiyega, Binta and Mthethwa have until tomorrow to file their written arguments, including arguments on the merits of Sali’s appeal.

Police say older people, after the age of 25 to 26 years, are not as academically inclined or physically fit as younger persons.

Sali’s case will heard on March 10.

[email protected]

Sunday Independent