Download this publication - PULP

Rationaliy is dead! Long live rationality! Saving rational basis review 21
The departure is even more obvious in S v Ntuli. 104 Didcott J found
irrational a law that required unrepresented prisoners to get a judge’s
certificate before appealing their conviction while imposing no similar
requirement on represented prisoners or convicted people not in jail. The
purpose of the provision was to prevent appeals that were ‘lodged
frivolously with a view to no gain but the opportunity for an excursion to
court and some temporary relief from the tedium of imprisonment’. 105
Without much analysis, Justice Didcott concluded that the scheme
violated the guarantee of equal protection of the laws. 106 But the minimal
rationality standard would have upheld this law easily as, although some
appeals by unrepresented prisoners would have been genuine and some
appeals by the other classes of citizens would have been frivolous, the law
would have partially furthered its end by preventing some frivolous
appeals.
The results in Cleburne, Van der Merwe and Ntuli can only be explained
if courts adopt one, or some, combination of the following more
demanding tests: (a) require the means to substantially further the end; (b)
require a reason for why the state has focused only on one group and not
others to achieve the end; or (c) balance the achievement of the end against
the harm it causes. These methods – or similar formulations – not only
explain existing precedent but also provide standards for future
application. The problem is that they necessarily require courts to
adjudicate on the extent to which a law must further an end or the wisdom
of a legislative choice to single out a particular group. While they can still be
applied with deference, they cannot be applied without discretion.
4.4 The differentiation
The discussion up to now has covered the well-trodden terrain of the
difficulty in determining what purposes are legitimate, defining purposes
and setting an appropriate level of scrutiny. But the rational basis test can
be made to vacillate between competing goals in a fourth way: The
specificity with which the law being challenged is defined. In essence, this
reflects the insights about the degree of abstraction of purpose and the
simultaneous serving of multiple purposes and applies them to the way the
law is understood. There are two basic ways in which the law can be defined
in order to induce a different result: it can be considered outside the context
of other statutory provisions; only the general provision is considered.
In Union of Refugee Women, 107 the majority of the Constitutional Court
upheld a section of a statute 108 that permitted only citizens and permanent
104
n 22 above.
105 S v Ntuli (n 22 above) para 22.
106 S v Ntuli (n 22 above) para 20.
107
Union of Refugee Women (n 27 above).
108 Private Security Industry Regulation Act 56 of 2001 sec 23(1)(a).