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40 Chapter 2
2 The content of rationality review
2.1 Contexts in which the constitutional principle of rationality
is applicable
The first category of cases in which the rationality principle is applied are
those addressing whether legislative differentiations between classes of persons
comply with the right to equality before the law in terms of section
8(1) of the interim Constitution (from 1994 to 1996) and section 9(1) of the
final Constitution (from 1997). 10 In Prinsloo v Van der Linde, the majority
held:
In regard to mere differentiation [ie differentiation that does not constitute
‘unfair discrimination’] the constitutional state is expected to act in a rational
manner. It should not regulate in an arbitrary manner or manifest ‘naked
preferences’ that serve no legitimate purpose, for that would be inconsistent
with the rule of law and the fundamental premises of the constitutional state.
The purpose of this aspect of equality is, therefore, to ensure that the state is
bound to function in a rational manner … Accordingly, before it can be said that
mere differentiation infringes [the right to equality before the law] it must be
established that there is no rational relationship between the differentiation in question
and the governmental purpose which is proffered to validate it. 11
That case provides an instructive example. Section 84 of the Forest Act 12
provided that negligence is presumed in delictual actions for damages arising
from forest fires on land situated outside designated ‘fire control areas’.
Prinsloo challenged the constitutionality of that provision when Van der
Linde sued him for delictual damages allegedly suffered on his farm by the
spread of fire from Prinsloo’s neighbouring land which was not located in a
fire control area. The issue was whether the legislative differentiation between
owners of land outside controlled areas, who were presumed negligent, and
owners of land within such areas, who were not, was consistent with the
right to equality before the law. The majority upheld the law on the ground
that it was rationally related to the legitimate purpose of reducing the risk of
fires spreading from land in non-controlled areas. Unlike landowners in
controlled areas, the owners of non-controlled land bore no statutory duties
relating to fire prevention; instead, the presumption of negligence provided
an incentive to be vigilant. The presumption also alleviated the difficulty of
proving fault, given that how a fire starts on neighbouring land, or what steps
are taken to prevent or contain a fire, are generally within the peculiar
knowledge of the neighbouring landowner. Accordingly, the differentiating
10 Although sec 9(1) (n 5 above), includes the additional concept of ‘equal benefit’ of the
law, it was held in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1
SA 6 (CC) para 59 that it should be applied exactly as sec 8(1) had been, that is, by way
of rationality review.
11
Prinsloo (n 2 above) paras 25 - 26 (footnote omitted) (my emphasis).
12 Act 122 of 1984.