Recent Case: Constitutional aspects of criminal justice

• Published date: 06 July 2020
• Citation: (2020) 33 SACJ 257
• Date: 06 July 2020
• Pages: 257-271
• Author: Freedman, W.

Constitutional aspects of

criminal justice

WARREN FREEDMAN

University of KwaZulu-Natal

1 The right to equality

1.1 Introduction

Section 9(1) of the Constitution provides that ‘[e]veryone is equal

before the law and has the right to equal protection and benet of

the law’. In Prinsloo v Van der Linde 1997 (3) SACR 1012 (CC), the

Constitutional Cour t held that this section applies in those cases i n

which a legislative provision differentiates between persons or groups

of persons, but this dif ferentiation is not based on one of the grounds

enumerated in s 9(3), such as race, gender, sex, pregnancy, marital

status and so on, or on a ground that is ana logous to the enumerated

grounds (at paras [23]–[24], [28]).

In these sorts of cases, t he Constitutional Court held f urther, the

differentiation must be rational ly related to the legitimate governmental

purpose it is intended to achieve. If the governmental pur pose

is not legitimate or if the dif ferentiation is not rationally related to

that purpose, then the legislative provision is arbitra ry and infr inges

s9(1). When it comes to applying this test, therefore, it is necessary

to consider, rst, whether the purpose of the legislative provision is a

legitimate one and, second, whether the differenti ation has a rational

connection to that purpose (at paras [24]–[25]).

As Price has pointed out, determi ning the purpose of a legislative

provision is usually a straightforwa rd exercise. This is b ecause ‘it raises

everyday questions of statutory inter pretation and the respondent state

can be expected to submit to the court what it considers t he relevant

purpose to be’ (see A Price ‘The content and justication of rat ionality

review’ (2010) 25 SAPL 34 6 at 355). Although he is undoubtedly correct,

there will be rare cas es in which the identication of the purp ose

of a legislative provision will not be a straightforward exercise, but

rather complicated and difcult one. Phaahla v Minister of Justice and

Correctional Service s 2019 (2) SACR 88 (CC) is just such a case.

1.2 The facts

In this case, the accused was sentenced to li fe imprisonment four days

after Chapter VI of the Cor rectional Services Act 111 of 1998 came

Recent Cases 257

(2020) 33 SACJ 257

© Juta and Company (Pty) Ltd