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6 Chapter 1
that government advocates in the litigation. 27 They have not engaged in
the sort of speculation often evident in the US courts.
A third difference lies in the use of empirical evidence. The US courts
have taken the attitude that ‘legislative choice is not subject to courtroom
fact-finding and may be based on rational speculation unsupported by
evidence or empirical data’, 28 although they do not always adhere to that
standard. 29 A litigant bringing a rationality challenge cannot, therefore,
rely on the fact that the law does not in fact achieve its alleged end if the
legislature – or a court – could ‘rationally speculate’ that it might. South
African courts have not yet taken a stand on this issue, although there are
signs that they would consider empirical evidence. 30
Finally, US courts approach rational basis claims with a ‘strong
presumption of validity’. 31 South African courts have not adopted any
presumptions in this area. Although the plaintiff must prove the case, the
burden is the same as any other constitutional claim.
Although the two jurisdictions have much in common, if one takes the
courts at their word, the US courts apply a more lenient test. This will be
important in what follows because, while there are certain specific problems
with some of the positions taken in the US, most of the analysis that follows
applies equally to both regimes.
3 Justification
Having established the basic outline of the test, the next step is to inquire
what justifies its existence and what ends it is meant to serve. The test is a
means for courts to strike down legislation enacted through ordinary
democratic processes and such decisions therefore require a sturdy
justification.
27
There is no case in which a law has been upheld on a basis not argued by the state. In
Union of Refugee Women v Director, Private Security Industry Regulatory Authority 2007 4
BCLR 339 (CC), the Constitutional Court declined to adopt a rationale that would
have provided a much stronger justification for the government’s action than the one
government relied on. The case concerned a law permitting only citizens and permanent
residents to qualify as security guards. The government’s asserted purpose was an interest
in ensuring the safety of citizens, allegedly furthered by the law because it was more
difficult to check refugees’ previous criminal history. The more obvious purpose was
simply to protect the job market for those who had a demonstrated commitment to the
country. Yet the Court did not even mention that purpose because government had
specifically disavowed any reliance on it.
28 Beach Communications (n 20 above) 315, quoted with approval in Heller (n 17 above) 320.
29
New York Transit Authority v Beazer 440 US 568 (1979).
30 Matatiele Municipality v President of the Republic of South Africa (1) 2006 5 BCLR 622
(CC) (Sachs J concurring).
31
See, eg, Murgia (n 16 above) 314; Heller (n 17 above) 319; Beach Communications (n 20
above) 314 - 315.