Prinsloo v Van der Linde and Another

JurisdictionSouth Africa
Citation1997 (3) SA 1012 (CC)

Prinsloo v Van der Linde and Another
1997 (3) SA 1012 (CC)

1997 (3) SA p1012


Citation

1997 (3) SA 1012 (CC)

Case No

CCT 4/96

Court

Constitutional Court

Judge

Ackermann J, O'Regan J et Sachs J, Chaskalson P, Mahomed DP, Didcott J, Goldstone J, Kriegler J, Langa J, Madala J, Mokgoro J

Heard

November 7, 1996

Judgment

April 18, 1997

Counsel

D Mills for the applicant
No appearance for the first respondent
J P Vorster for the second respondent

Flynote : Sleutelwoorde G

Fire and firearms — Fire — Veld or forest fire — Forest Act 122 of 1984 — H Presumption of negligence in s 84 of Act — Presumption not inconsistent with s 8(1) or (2) or s 25(3)(c) of Constitution of the Republic of South Africa Act 200 of 1993.

Constitutional law — Human rights — Right to equality before the law and not to be unfairly discriminated against in terms of s 8(1) and (2) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Section 8 I dealing with differentiation and distinguishing between differentiation involving fair discrimination and differentiation involving unfair discrimination — Some differentiation essential for government of modern State — Such differentiation rarely unfair — But differentiation infringing s 8 when State acts in arbitrary manner or manifests naked preference that serves no legitimate governmental purpose — Existence of rational J

1997 (3) SA p1013

link between differentiation and governmental purpose proffered to validate it, A however, not sufficient for differentiation not to infringe s 8 — Must, in addition, (a) not be on one of grounds specified in s 8(2), or (b) amount to impairment of fundamental dignity of person.

Headnote : Kopnota

The first respondent instituted action in a Provincial Division as a result of damage B allegedly caused to his farmlands when a fire had spread to it from the applicant's land. It had been common cause that the fire had occurred on land situated outside a fire control area. The Provincial Division referred the matter to the Constitutional Court in terms of s 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993. The Forest Act 122 of 1984 had as one of its principal objectives the prevention and C control of veld and forest fires. Section 84 of the Act dealt with responsibility for fire on land outside fire control areas and provided that 'when in any action by virtue of the provisions of this Act or the common law the question of negligence in respect of a veld, forest or mountain fire which occurred on land outside a fire control area arises, negligence is presumed until the contrary is proved'. The issues referred were whether D the presumption in s 84 of the Forest Act was in conflict either with the right to be presumed innocent under s 25(3)(c) of the Constitution or with the right to equality before the law and not to be unfairly discriminated against under s 8(1) and (2) of the Constitution.

The presumption of innocence under s 25(3)(c) E

In order to overcome the obvious obstacle of being a defendant in a civil trial and not an accused in a criminal trial, the applicant argued that the test was an objective one that did not depend on his subjective situation but on the objective reach of the provision. He further contended that the word 'action' in s 84 of the Forest Act was wide enough to include both criminal and civil proceedings, and that it accordingly F infringed the rights of accused persons as protected by s 25(3)(c). If invalid because of its application to criminal trials, he argued, the section lost all force and effect and could not be invoked in civil proceedings.

The Court (per Ackermann J, O'Regan J and Sachs J; Chaskalson P, Mahomed DP, Goldstone J, Kriegler J, Langa J, Madala J and Mokgoro J concurring) held that the G applicant was wrong both in his approach to the interpretation of s 84 and with regard to the alleged consequences of the construction he urged upon the Court. The reason was that, even if it were assumed in favour of the applicant that standing of a civil claimant to challenge a reverse onus in a civil trial provided standing to challenge the constitutionality of a statutory reverse onus provision relating to criminal trials even when that claimant was not in jeopardy of prosecution; that the word 'action' in s 84 H was wide enough to encompass criminal proceedings; that there was sufficient material before the Court for it to determine whether a reverse onus in a criminal trial would be unconstitutional; and that it was in fact unconstitutional, s 35(2) of the Constitution still provided an insuperable barrier to applicant's argument. (Paragraphs [11] and [12] at 1020A/B–D.) This was because s 35(2) provided that 'no law which limits any of the I rights entrenched in this chapter shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation'. Its terms were peremptory and the J

1997 (3) SA p1014

Court's task was thus not to find the 'correct' interpretation of s 84 but, given more A than one reasonably possible construction, to choose the one consistent with the Constitution. Any ambiguity had to be resolved by favouring the construction which kept the provision constitutionally alive. On this approach the word 'action', even if it were capable of including criminal proceedings and even if such inclusion resulted in a B constitutional invasion of the right to a fair criminal trial, was reasonably capable of a more restricted meaning which excluded criminal trials and thereby avoided unconstitutionality. It followed that under s 35(2) the latter interpretation had to be preferred. Accordingly, even if all the above assumptions were correct, the attack based on s 25(3)(c) still had to fail. (Paragraph [13] at 1020E/F–H.) Section 98(5), C by providing that 'in the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency' was a further barrier to the applicant's approach, for even if the Court were to hold that s 84 necessarily included criminal as well as civil proceedings, and that the presumption in relation to criminal trials was unconstitutional, it would have to declare in any order it made that the D provisions of the section were inconsistent only to the extent that they applied to criminal proceedings. (Paragraph [14] at 1020H– 1021B/C.)

The equality issues: s 8(1) and (2)

Section 8 provided that '(1) (e)very person shall have the right to equality before Ehe E law and to equal protection of the law' and that '(2) (n)o person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language'. The applicant contended that the F differentiation between defendants in veld fire cases and those in other delictual matters had no rational basis.

The Court held that the idea of differentiation was at the heart of equality jurisprudence in general and of the s 8 rights in particular. Section 8 distinguished between differentiation which did not involve unfair discrimination and that which did. The G former involved the differentiation necessary for the efficient government of the modern State in the interests of all its people, which was impossible without classifications that treated and impacted on people in different ways. For such 'mere' differentiation not to infringe s 8 a rational relationship was required between the differentiation in question and the governmental purpose proferred to validate it. The State could not regulate in an arbitrary manner or manifest naked preferences that H served no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional State. But while such a rational relationship was a necessary condition for the differentiation not to infringe s 8, it was not a sufficient condition, for the differentiation could still constitute unfair discrimination if a further element, to be found in s 8(2), was present. Section 8(2) did I not prohibit all differentiation or even all discrimination but only unfair discrimination, which it divided into two categories: unfair discrimination on the grounds specified in the subsection, which were not exhaustive and which carried a presumption of unfairness, or on grounds not specified therein, which carried no presumption of unfairness. (Paragraphs [23]–[28] at 1024C–1025G), paraphrased.) The existence of this second category of unfair discrimination could be inferred from the introductory phrase J

1997 (3) SA p1015

'without derogating from the generality of the provision' and was present when people were treated differently in a way which impaired their fundamental dignity as human beings. (Paragraphs [28] and [31] at 1025F–G and 1026F–G.) Reverting to the facts of the instant case, the Court pointed out that the purpose of the Forest Act was to prevent veld fires, that the State had a legitimate interest in doing so, and that there was a rational relationship between the purpose sought to be achieved in s 84 and the means chosen to do so. (Paragraphs [39] and [40] at 1028H/I and 1029F/G.) Furthermore, the differentiation between owners and occupiers of land in fire control...

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275 practice notes
  • Centre for Child Law and Others v Media 24 Ltd and Others
    • South Africa
    • Invalid date
    ...Alliance and Others2020 (1) SA 428 (CC) (2019 (11) BCLR 1403; [2019] ZACC 35):referred toPrinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6)BCLR 759; [1997] ZACC 5): dictum in para [26] appliedRahube v Rahube and Others 2019 (2) SA 54 (CC) (2019 (1) BCLR 125;[2018] ZACC 42)......
  • S v Dodo
    • South Africa
    • Invalid date
    ...O'Neil v Vennont 144 US 323 (1892): referred to Palling v Corfield (1970) 123 CLR 52: considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): referred to R v Guiller (1985) 48 CR (3d) 226 (Ont Dist Ct): referred to R v Secretary of State for the Home Depar......
  • Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae)
    • South Africa
    • Invalid date
    ...[15] applied Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): dictum in para [25] H Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 3......
  • Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)
    • South Africa
    • Invalid date
    ...North Town Council v A1 Electric Ice-Cream Factory (Pty) Ltd 1953 (3) SA 1 (A): considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): referred R v Abdurahman 1950 (3) SA 136 (A): considered F R v Debele 1956 (4) SA 570 (A): considered R v Louw and Anothe......
  • Get Started for Free
237 cases
  • Centre for Child Law and Others v Media 24 Ltd and Others
    • South Africa
    • Invalid date
    ...Alliance and Others2020 (1) SA 428 (CC) (2019 (11) BCLR 1403; [2019] ZACC 35):referred toPrinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6)BCLR 759; [1997] ZACC 5): dictum in para [26] appliedRahube v Rahube and Others 2019 (2) SA 54 (CC) (2019 (1) BCLR 125;[2018] ZACC 42)......
  • S v Dodo
    • South Africa
    • Invalid date
    ...O'Neil v Vennont 144 US 323 (1892): referred to Palling v Corfield (1970) 123 CLR 52: considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): referred to R v Guiller (1985) 48 CR (3d) 226 (Ont Dist Ct): referred to R v Secretary of State for the Home Depar......
  • Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae)
    • South Africa
    • Invalid date
    ...[15] applied Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): dictum in para [25] H Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 3......
  • Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)
    • South Africa
    • Invalid date
    ...North Town Council v A1 Electric Ice-Cream Factory (Pty) Ltd 1953 (3) SA 1 (A): considered Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC) (1997 (6) BCLR 759): referred R v Abdurahman 1950 (3) SA 136 (A): considered F R v Debele 1956 (4) SA 570 (A): considered R v Louw and Anothe......
  • Get Started for Free
38 books & journal articles
  • The Punishment must fit the Crime: Also when the Offender has Previous Convictions?
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • August 16, 2019
    ...y should exist betwee n the crime and pu nishment)72 S v Dodo 2001 1 SACR 594 (CC) para 38, refer ring to Prin sloo v Van der Linde 1997 3 SA 1012 (CC) para 31PUNISHMENT AND PREVIOUS CONVICTIONS 197 © Juta and Company (Pty) “of all factors relevant to the nature and seriousness of the crimi......
  • Human Dignity in Comparative Perspective
    • South Africa
    • Juta Stellenbosch Law Review No. , September 2019
    • August 16, 2019
    ...Dawood; Shalabi; Thomas v Minist er of Home Affai rs 2000 3 SA 936 (CC), 2000 8 BCLR 837 (CC) para 35150 Prinsloo v Van der Linde 1997 3 SA 1012 (CC), 1997 6 BCLR 759 (CC) par as 31-33; President of the Republic of So uth Africa v Hugo 1997 4 SA 1 (CC), 1997 6 BCLR 708 (CC) para 41; Harksen......
  • Delict
    • South Africa
    • Juta Yearbook of South African Law No. , March 2022
    • March 28, 2022
    ...the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’327 Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) para 22.328 Paras 152–153. 329 Prinsloo v Van der Linde (note 327).330 Prinsloo v Van der Linde (note 327) para 25. © Juta and Company ......
  • 2016 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • August 16, 2019
    ...332Prinsloo v Bramely Children’s Home [2006] JOL 17236 (T) ............... 21Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) ................................ 212, 215Prophet v NDPP 2006 (2) SACR 525 (CC) .......................................... 248-9Protea Technology Limited v Wainer [1997......
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