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66 Chapter 2
First, it is fairly clear that the Court has generally been sensitive to the
need to specify the challenged law or conduct in an appropriate way,
taking into account the broader legislative and policy context. For
example, in Prinsloo, the presumption of negligence of neighbouring
landowners in respect of fires starting on their properties was assessed in the
light of the legislative scheme as a whole. 122 The same was true in Jooste,
where a legislative bar on ordinary delictual claims by employees against
employers was assessed in the light of the statutory compensation scheme
that was designed to replace such claims. 123 So too, in Bel Porto, where a
policy decision by the Western Cape Education Department not to take
over the employment of certain persons employed directly by state schools
was assessed in light of the Department’s broader policy of promoting
equity in school staffing throughout the province. 124
Secondly, there is no reason to believe that the Court has generally
applied the purpose requirement in an inappropriate way. On the one
hand, it has been sensitive to the need to specify the purpose of the law or act
at a meaningful level of abstraction. Thus, in Van der Merwe, Moseneke DCJ
held:
A court remains obliged to identify and examine the specific government
object sought to be achieved by the impugned rule of law or provision. In
other words, we are obliged to look at the specific purpose of section 18(b) [of
the Matrimonial Property Act] even though the general purpose of regulating
property arrangements in marriage may not in itself be open to constitutional
doubt. 125
In Weare, for example, the Court upheld as rational provisions in an old
provincial ordinance that prohibited juristic persons from holding
bookmaker licences, not on the meaningless ground that they merely
‘regulated bookmaking’, 126 but rather on the ground that they eased the
burden of bookmaking regulation, because holding natural persons
accountable for bookmaking activities was less resource intensive than
holding juristic persons so accountable. 127
On the other hand, the Court has, on the whole, exercised its
discretion to evaluate the legitimacy of the purposes of challenged laws
and acts in a defensible manner. That is because the proffered purpose in
most cases has been obviously legitimate: for example, to prevent
meritless appeals from progressing in the courts; 128 to incentivise fireprevention
behaviour; 129 to ensure that trustees acquire all the assets of an
122
n 2 above, paras 39 - 40.
123 n 13 above, para 17.
124 n 13 above, paras 43 - 44.
125
n 13 above, para 33.
126 Bishop’s discussion of this case in Woolman & Bilchitz (n 5 above) from 15 - 16.
127 n 13 above, para 50.
128
Rens (n 119 above).
129 Prinsloo (n 2 above).