Police Minister Bheki Cele said that people can't join the police if they have tattoos, adding this has always been part of their recruitment policy. Policing experts agreed that rules about visible tattoos have been part of the recruitment process for a while. However, some legal experts have argued that this may be considered unfair discrimination.
Police Minister Bheki Cele has dismissed the "noise" around his comments that a person with tattoos can't join the South African Police Service (SAPS), explaining that it has always been part of its recruitment policy.
Speaking on The Clement Manyathela Show on Radio 702 on Wednesday morning, Cele said SAPS's recruitment policy states that members should "not have a tattoo which will be visible if the person wears a uniform".
This is after Cele came under fire for comments about tattoos during a visit to Soweto, where he said SAPS didn't hire anyone with tattoos as they had "a tendency of being a gangster".
Police Minister Bheki Cele has tasked the Tactical Response Team to conduct a door-to-door operation to look for unlicensed firearms. During a community meeting, Cele said more than 130 AK-47 cartridges were collected from the scene.
News24 spoke to policing and legal experts about whether it is a requirement that police recruits do not have tattoos, and whether it can be legally challenged:
Is it a requirement of SAPS that recruits do not have tattoos?
Western Cape's Africa Criminal Justice Reform senior researcher Dr Jean Redpath told News24 that it had been a part of the police's regulations for a long time, even before the dawn of democracy, that they do not have visible tattoos.
The police's recruitment policy reads that an applicant should "not have any tattoo marks of which will be visible and irreconcilable with the objectives of the service".
Redpath said the current regulations had been introduced in a Gazette in 2002, but that some "tattoo requirement has always been there".
"Technically speaking, a butterfly tattoo might be fine, but not gang tattoos, a Nazi swastika, KKK, etc," she added.
The Institute for Security Studies (ISS) head of governance, crime and justice, Gareth Newham, added that internationally, many police agencies had a policy of no visible tattoos.
"If the regulations state 'no visible tattoos', there'd be no legal basis to refuse to accept you into the SAPS if you met all the other criteria and you had a tattoo that wasn't visible," he told News24.
Is the Police's requirement for tattoo's legally enforceable?
Jacqui Reed, an employment lawyer at international law firm Herbert Smith Freehills, said the Employment Equality Act prohibited discrimination in relation to any employment or practice.
"And it seems to me as requiring someone not to have tattoos, I think would probably be problematic and probably constitute a form of unfair discrimination," she said.
But, Reed added that the Employment Equality Act did make provision that someone could be excluded based on the inherent requirements of the job.
"So obviously, the inherent requirement of the job of the police is not to be a criminal. But I don't think that you can associate tattoos with criminality. I don't believe that to be correct," she said.
"I think that an applicant for employment that wasn't employed on the basis of they have a tattoo, in the absence of some kind of criminal record checks that have shown that that person is not fit for purpose, then I think then that alone would constitute unfair discrimination, of an applicant for employment."
University of Cape Town Associate Professor at the Department of Commercial Law, Debbie Collier, said an employer who imposes a blanket ban on the recruitment or employment of persons with tattoos is likely to be in breach of employment law.
She added, however, that an employer may have a valid justification for the exclusion of tattoos which convey racist or sexist beliefs or where the role involves working with chemicals and tattoos present a health risk.
"The reasons for limiting tattoos may be more compelling in some professions, including the police force and law enforcement, but even so the rights and interests of the employee must be considered and balanced against those of the employer," Collier said.
University of Free State Department of Mercantile Law lecturer Maralize Conradie added that, in the past, courts had found that the requirement by private security services that one be "neat and clean-shaven" was a valid one.
"However, it must be kept in mind that an employer has a duty to indicate why an employee can't be reasonably accommodated," she told News24.
Conradie said factors which may influence whether it was legally justifiable to exclude certain tattoos would be whether they were associated with gangsterism, or visible when the employee was in uniform.
"But that said, the employer can't simply assume that a tattoo is indicative of gangsterism.
"Although this requirement may have been a requirement of the SAPS in the past, one needs to specifically ask whether it is still a necessary and indispensable requirement – taking into account the changing good morals and public opinion of society. That can prove to be a very dangerous and costly assumption at the end of the day."
For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact
This article was first published by News24 on 15 July 2022.
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