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72 Chapter 2
foreign nationals to apply independently is rationally related to the purpose,
given the practical difficulties faced, of assessing their trustworthiness on a
more flexible, case-by-case basis. For these reasons, I think the majority
was correct to hold that the legislation in question was not arbitrary and
thus did not violate section 9(1). 162
The third case is Nyathi v Gauteng MEC of Health, 163 where the majority
held that the legislative prohibition on executing judgment debts against state
assets 164 was unconstitutional on several grounds. One of those was its
finding that the prohibition violated section 9(1) of the Constitution. What
is striking about the majority’s application of the right to equality before
the law is that the notions of rationality or arbitrariness are never
mentioned. Unlike the minority judgment, 165 the majority makes no
attempt to apply the rationality principle. Nor does it explain why some other
approach to section 9(1) is appropriate in the context of the case. This is hard
to understand. For, in my view, the prohibition on the execution of
judgment debts against state assets (or, in equality terms, the
differentiation between judgment creditors against the state and judgment
creditors against private debtors) manifestly serves the worthwhile purpose
of preventing disruption to state service delivery, including vital services
such as policing, healthcare, and so forth. Whether it is the least restrictive
means to that end is irrelevant under rationality review. 166 To describe
this law as irrational or arbitrary is to stretch language past its breaking
point.
The only reasonable interpretation of the majority judgment, then, is
that it implicitly developed section 9(1) to require something more than
mere rationality in the circumstances of the case. The majority hints as
much by holding that the law in question ‘makes an unjustifiable
differentiation’. 167 Such a development in the law may, in fact, be
welcome, 168 but it is a pity that it was not discussed openly. It also
follows, of course, that Nyathi is not an example of the misapplication of
rationality review; it is a puzzling example of the implicit abandonment of
rationality review.
162 This is to say nothing about whether the citizenship/permanent residence condition
was unfairly discriminatory. It is possible for rational laws and acts to discriminate
unfairly if, despite their rationally serving a legitimate purpose, they nevertheless severely
offend the dignity of an identifiable class of persons, or otherwise affect them in a
comparably serious manner.
163
n 13 above.
164 Sec 3 of the State Liability Act 20 of 1957.
165 The minority applies the rationality principle at paras 139 - 143.
166
Prinsloo (n 2 above) para 35.
167 Prinsloo (n 2 above) para 39 (my emphasis).
168 See, eg, the discussion of developing sec 9(1) beyond rationality in C Albertyn &
B Goldblatt ‘Equality’ in S Woolman et al (eds) Constitutional law of South Africa (2005)
(2nd ed) 35-26 - 3529.