68/05

[2006] ZACC 18

2007 (3) SA 521 (CC)

[2007] 5 BLLR 383 (CC)

Sachs J Majority judgment

Yacoob J separate judgment

O'Regan J dissenting judgment

Nkabinde J separate judgment

18 May 2006

13 October 2006

http://hdl.handle.net/20.500.12144/34552

Appeal to the Constitutional Court against a judgment and order of the Supreme Court of Appeal: Public Servants Association v National Commissioner of the South African Police Service, SCA 573/04, 25 November 2005, as yet unreported ; see also the earlier judgment National Commissioner of the South African Police Service v South African Police Union and Others, TPD Case No 28812/02, 31 October 2003, as yet unreported.

The applicant contested the interpretation of the word 'may', in regulations dealing with the upgrading and downgrading of officers in the SAPS. The question was whether the regulation conferred a discretion on the Commissioner to advertise a post when it was held by a satisfactorily performing incumbent. Sachs J writing for the majority held that the regulation did confer a discretion but it must be exercised in a manner that ensured that no incumbents are unfairly retrenched. Langa CJ, Moseneke DCJ, Mokgoro J, Skweyiya J, Van der Westhuizen J, Nkabinde J concurred. They also concurred in the separate concurring judgment of Yacoob J where it was consistent with Sachs J. O' Regan J dissented on the basis that the interpretation adopted by the majority would inevitably lead to unfair job losses and that would be inconsistent with the constitutional commitment to fair labour practices.