Download this publication - PULP

250 Chapter 14
4.1 FC section 9(1) (rationality)
FC section 9(1) provides constitutional protection against any
irrational or arbitrary classifications (on any basis) made by the state.
This constitutes a weak rationality constraint on the state that
renders such classifications irretrievably unconstitutional. Failure at
this stage does not require further assessment under FC section 9(3),
and cannot be saved by the higher standards of reasonableness and
proportionality found in section 36. The rationality test in FC section
9(1) — on all differentiations that do not occur on a prohibited ground
— is thus minimal and extremely deferrential to the legislature (as is
reflected in the low success rate in such cases). 132
4.2 FC section 9(2) (a defence to unfair discrimination)
FC sections 9(3) and (4) provide the main substantive protection of
the right by prohibiting unfair discrimination on an open-ended list of
grounds. However, if the discrimination complained of relates to a
positive measure to promote equality, then the respondent (usually
the state) is able raise a defence to the claim under FC section 9(2).
In terms of FC sections 9(2), the impugned action is not ‘unfair discrimination’,
but a measure ‘designed to protect or advance persons,
or categories of persons, disadvantaged by unfair discrimination’. Van
Heerden v Minister of Finance confirmed that FC section 9(2) provides
a complete defence to a claim of unfair discrimination if the following
questions are answered in the affirmative:
• Does the measure target persons or categories of persons who have
been disadvantaged by unfair discrimination?
• Is the measure designed to protect persons or categories of persons
who have been disadvantaged by unfair discrimination?
• Does the measure promote the achievement of equality? 133
Compliance with FC section 9(2) does not make positive measures
‘exempt’ from attack as unfair discrimination. It simply means that
the measures are fair. 134 In general, the Court has suggested that in
determining compliance with these conditions, courts should exercise
some restraint, leaving space for government and parliament to
address the patterns of subordination and disadvantage in our society.
132
It has been successfully employed only once, in Van der Merwe v Road Accident
Fund 2006 4 SA 230 (CC), 2006 6 BCLR 682 (CC). The Court held that legislation
rules preventing spouses married in community from claiming delictual damages
for bodily injury from their spouse violated FC s 9(1).
133 Van Heerden (n 31 above) para 37. Note that all judges agree with this test,
although Mokgoro J and Ngcobo J each come to different conclusions in applying
the test.
134 Van Heerden (n 31 above) para 140.