Excluding refugees from the right to work as private security providers simply because they are refugees will inevitably foster a climate of xenophobia which will be harmful to refugees and inconsistent with the overall vision of our Constitution. As a group that is by definition vulnerable, the impact of discrimination of this sort can be damaging in a significant way. In reaching this conclusion it is important to bear in mind that it is not only the social stigma which may result from such discrimination, but also the material impact that it may have on refugees.
Do High Court judges all take the time to read the judgments of the Constitutional Court,? If they do, why do some of them seem so clueless about the jurisprudence of the highest court in the land?
I ask, because today the Constitutional Court handed down judgment in Weare and Another v Ndebele and Others, refusing to confirm an order of the Pietermaritzburg High Court. The High Court had declared invalid a KwaZulu/Natal ordinance which prohibits a juristic person (that is a company or other legal entity) from holding a license to carry on the business of bookmaking. The ordinance states that only natural persons may hold bookmaking licenses in the province.
The Pietermaritzburg High Court held that this constituted an irrational and arbitrary differentiation and thus declared the section unconstitutional for contravening section 9(1) of the Constitution, which provides for equality before the law. It also found that the Ordinance contravened section 9(3) of the Constitution, which prohibits unfair discrimination.
The test for determining whether section 9(1) is violated is extremely difficult to meet because the Constitutional Court did not want litigants with deep pockets to run to the Court to challenge every small or frivolous differentiation made in the law between different classes of people or different institutions. Anyone who has read the Constitutional Court judgments on equality will know that if one wants to win one’s case with an equality argument, one will have to argue that the law differentiates on the basis of race, sex, gender, sexual orientation or a similar ground and thus constitutes unfair discrimination in terms of section 9(3).
In Prinsloo v Van der Linde and Harksen v Lane the Court explained the test for s 9(1) as follows:
A law may differentiate between classes of persons if the differentiation is rationally linked to the achievement of a legitimate government purpose. The question is not whether the government could have achieved its purpose in a manner the court feels is better or more effective or more closely connected to that purpose. The question is whether the means the government chose are rationally connected to the purpose, as opposed to being arbitrary or capricious.
The Premier argued that the regulation of gambling is a legitimate government purpose. It is more expensive and difficult to monitor juristic persons and to hold them accountable, than it is with regard to natural persons. The policy of restricting licences to natural persons is a rational way to ensure that, given these practical realities, gambling activities are properly regulated.
The applicant argued that the Executive had indicated that the Ordinance need to be amended to allow juristic persons also to become book makers and that the Ordinance was therefore irrational. This argument was obviously rejected by the Constitutional Court who pointed out that it would lead to absurd results because:
any piece of “old” legislation would be unconstitutional as soon as reform is proposed. This result is not only absurd, but confuses a better or worse policy with a rational or irrational one, contrary to this Court’s rationality jurisprudence.
The High Court clearly misconstrued the rationality jurisprudence of the Constitutional Court and failed to understand how strict the test is in a section 9(1) case. It clearly decided that the Ordinance was unwise, but that is irrelevant for a section 9(1) inquiry – all that is required is to show that the differentiation is for some legitimate government purpose (in this case to regulate bookmaking) and that there is some rational connection between this purpose and ordinance.
The Constitutional Court also rejected the finding by High Court that the differentiation unfairly discriminated against the applicant, completely misunderstanding the section 9(3) jurisprudence of the Constitutional Court which is based on the value of human dignity. As the Court has stated on many occasions to show that a legislative provision is unfairly discriminatory, it would need to be shown that the kind of differentiation it embodies is based on attributes or characteristics that have the potential to impair the fundamental dignity of persons as human beings or to affect them in a comparably serious fashion.
But the High Court never found that the Ordinance had this kind of effect. From the High Court judgment it is clear that it had no clue about the true meaning of the Constitutional Court’s jurisprudence on section 9(3). If a student had made such basic mistakes as the High Court did in the court a quo, I probably would not have given that studnet a pass mark.
This is worrying as it suggests that the judiciary is not completely transformed yet and that many judges are in dire need of some judicial education on the values and principles embodied by the Constitution. We are now almost fifteen years into our constitutional democracy so one would expect judges sitting on the High Court Bench to have read and internalised the basic tenets of the Constitutional Court judrisprudence on the Bill of Rights – especially on such a pivotal topic as the right to equality.
The fact that a High Court judge had failed so dismally to grasp the nettle of what is not a particularly difficult concept makes one worry about the kind of jurisprudence committed in courts all over South Africa. How can ordinary citizens have trust in the judicial system if important players in that system have not been able to grasp the most basic principles of Constitutional Law?
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