Final Judgement of the Court Case Between the Association of Test Publishers (ATP), the President of the Republic of South Africa, the Minister of Labour and the Health Professions Council of South Africa released
Judgment was delivered on 2 May 2017 by Judge Mali in the application brought by the Association of Test Publishers (“ATP”) in regard to the amendment to section 8 of the Employment Equity Act of 1998 (EEA). Before the amendment in August 2014, section 8 of the EEA specified that:
Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used:
(a) has been scientifically shown to be valid and reliable;
(b) can be fairly applied to employees;
(c) is not biased against any employee or group; and
The amendment act added another sub-clause to section 8. The addition of section (d) stated that such testing would be prohibited unless it had been “certified by the HPCSA or any other body which may be authorised by law to certify those tests or assessments”.
The court application brought by ATP in the High Court, Pretoria, was heard on the 29th and 30th November 2016. On Tuesday, 2 May 2017, Judge Mali handed down her judgement. The court found in favour of ATP’s application and granted the following order:
1. That the Proclamation 50 published in Government Gazette 37871 on 25 July 2014 is null and void and of no force or effect to the extent that it brings into operation the amendment of section 8 (clause “d”) of Employment Equity Act, Act 55 of 1998 in terms of section 4 of the Employment Equity Amendment Act, 2013, Act 47 of 2013.
2. That Section 8 of the Employment Equity Act, Act 55 of 1998 as it pertained on 31 July 2014 continued (clauses “a” to “c”), and continues, unabated as from the aforesaid date.
3. That this order be published by way of one notice in the Government Gazette, and a notice in each of the Sunday Times, Rapport and City Press.
4. That the respondents are ordered to pay costs of this application, costs to be paid jointly and severally the one paying the other to be absolved. Costs to include the cost of Senior Counsel.
Please visit the ATP website at www.atp.org.za (and a link to the attached press release) for further information this ground break development for testing in South Africa. Please also ensure that you join us at the SIOPSA conference from the 25th to the 27th July 2017 where PAI will host a special panel discussion and session with relevant stakeholders to discuss the judgement, outcomes as well as the impact of these on testing in South Africa and the way forward.