The constitutionality of mandatory retirement in South African labour law

Abstract

This thesis examines whether South African mandatory retirement (MR) law unjustifiably impairs the constitutional rights to fair labour practices and against unfair age discrimination (affected rights, collectively), and is therefore unconstitutional; and if South African MR law is unconstitutional, how the South African MR law should be adapted to render it constitutional. In doing so, the following areas are explored: the meaning of MR and the principles that underpin South African MR law; the constitutional principles that apply to the affected rights, and the manifestation of the affected rights in labour law; the effect of the constitutionalisation of labour law; the detriments that MR causes for older persons; the predominant justifications of MR; and the applicable international, regional law, and comparative Canadian and German law.

A dignity framework is developed and presented. The relevant parts of this framework are combined with applicable constitutional principles to propose a three-step test to determine whether an older person’s dignity, based on self-fulfilment (self-fulfilment dignity), and concomitantly the affected rights, are unjustifiably impaired by MR. The first step is to provisionally determine the meaning of the older person’s self-fulfilment dignity and whether it had been impaired by MR in relation to individualistic considerations. If it is found that there was a provisional impairment, the second step is to verify whether there are MR justifications that are worthy of shaping the provisional meaning of an older person’s self-fulfilment dignity. The worthiness of the MR justification must be verified by applying relevant social justice norms and proportionality considerations in terms of section 36(1) of the Constitution. Third, if the MR justifications are found to be worthy, it must finally be established what the meaning of an older person’s self-fulfilment dignity is with due regard to the worthy MR justifications, and whether this final version of self-fulfilment dignity had been impaired.

It is argued that MR, in general, provisionally impairs an older person’s self-fulfilment dignity because MR often suppresses an older person’s ability to realise, maintain, and develop their physical, psychological, and social identity, health, capacities and desires, in accordance with their unique attributes. It is contended that the majority of the MR justifications that are examined are unworthy because it is not sanctioned by applicable social justice rules; and/or MR does not reasonably fulfil the purpose that the MR justifications aim to achieve; and/or there are other ways of achieving the purpose that the MR justification endeavours to achieve. In consequence, it is advanced that the provisional impairment of self-fulfilment dignity occasioned by MR will, in the final analysis, therefore mostly constitutes an unjustifiable impairment of an older person’s self-fulfilment dignity.

As a result, this thesis concludes that South African MR law, in terms whereof employers enjoy a very broad MR right, unjustifiably impairs the affected rights and is therefore unconstitutional. This conclusion is bolstered by the assertion that the “high situation-dignity MR approach” to the affected rights, in terms whereof MR is permitted in exceptional circumstances, is the only constitutionally congruent approach. This proposition follows from an assessment of the general South African human rights design; applicable international and regional law; and comparative Canadian and German law.

To remedy the unconstitutionality of South African MR law it is recommended that sections 187(2)(b) and 198B(1)(c) of the LRA must be repealed; that the worthiness of MR justifications must be evaluated exclusively by determining whether it constitutes an inherent requirement of the job in terms of section 187(2)(a) of the LRA; and a Code of Good Practice: Mandatory Retirement is formulated to provide clarity in regards to the continued application of MR in South Africa.