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24 Chapter 1
striking down the law as facially absurd – as most reasonable people would
have been tempted to do – the Court held that it furthered the important
purpose of protecting public health because of testimony that ‘trained’
florists are ‘very diligent about not having an exposed pick, not having a
broken wire, not hav[ing] a flower that has some type of infection, like, dirt
that remained on it when it’s inserted into something they’re going to
handle’. 121 Presuming that was the legitimate purpose the law was meant to
forward, one would have expected a showing that the exam actually included
questions aimed at avoiding those injuries. However, because the court
defined the law simply as having an exam without regard to the content of
the exam, the law could be considered rational.
An example from South Africa shows the effect, in a slightly different
context, of changing the level at which the law is defined. 122 In 2005, the
government re-arranged the borders of a number of provinces to abolish
‘cross-boundary municipalities’ – municipalities that had a provincial
boundary running through them – that had proved extremely wasteful and
inefficient. Two municipalities challenged the law in part on the basis that
it was irrational for government to have placed them in province A rather
than province B. Two Constitutional Court justices took very different
approaches to this issue. Sachs J, although not deciding the issue, made it
clear that, although the benefits of abolishing cross-boundary municipalities
presented a legitimate goal, government also had to justify its
decision to locate a municipality in one province rather than another. 123
In a later case, Van der Westhuizen J rejected that reasoning and
defined the act requiring justification as the abolition of all cross-boundary
municipalities. 124 He viewed further interrogation of where the provincial
boundaries eventually fell as a form of ‘second-guessing’ the legislature. 125
The point of this example is as follows: If the law is viewed through Justice
Sachs’s lens, then a mere resort to the purposes served by abolishing all
cross-boundary municipalities – saving costs, better service delivery and so
on – are insufficient because, in the absence of additional evidence, they
have been equally well served by moving the municipality to the other
province. A different or additional purpose is needed.
121 Meadows v Odom (n 20 above) 824.
122 The cases discussed here were not an equal protection challenge but were based on the
general principle of the rule of law. However, the only reason for this was that the law
which differentiated was a constitutional amendment and therefore not subject to
conformity with the Bill of Rights. It was, however, subject to the more basic rationality
norm implicit in the rule of law. If the change had been effected by normal law, an
ordinary equality challenge could have been brought. I discuss it because I think it is the
best example of the phenomenon.
123
Matatiele Municipality v President of the Republic of South Africa (1) 2006 5 BCLR 622 (CC)
paras 101 - 108 (Sachs J concurring).
124 Merafong Demarcation Forum v President of the Republic of South Africa 2008 5 SA 171 (CC)
para 114.
125 As above.