Final Judgement – The Association of Test Publishers vs HPCSA

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

The judgment was delivered on, 2 May 2017, by Judge Mali in the application brought forward on behalf of the Association of Test Publishers (“ATP”) as it pertains to section 8 of the Employment Equity Act. The respondents in this application were the President, the Minister of Labour and the Health Professions Council of South Africa (“the HPCSA”).

Judge Mali was called on to decide whether the procedures that were in place (for the purpose of classifying whether a test is a psychological test) were applicable to the necessary regulatory infrastructure for the purpose of the certificate called for in terms of section 8(d). The court needed to consider this with retrospect to what was in place on 1 August 2014.

It was conceded by the counsel of respondents that “other similar assessments” in section 8 referred to tests other than psychological tests of which, had no current procedure in place, or body authorised to issue a certificate as envisaged in the new section 8(d) with respect to “other similar assessments”.

The court was also called upon to determine whether the policy and guidelines of the HPCSA that were instituted in 1999 (for purposes of classifying psychological tests) could be said to be the appropriate regulatory infrastructure for purposes of issuing the certificate required in terms of the new section 8(d).

In the judgment handed by Judge Mali, she found in favour of ATP’s application and granted the following order:
That 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 of Employment Equity Act, Act 55 of 1998 in terms of section 4 of the Employment Equity Amendment Act, 2013, Act 47 of 2013.

That Section 8 of the Employment Equity Act, Act 55 of 1998 as it pertained on 31 July 2014 continued, and continues, unabated as from the aforesaid date.

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.

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.

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