MOKGORO J
citizenship provisions of the Act and the immigration policy it is said to
support. But that is not the test for determining constitutionality under our
Constitution.
Section 27(2) of the Constitution sets the standard of
reasonableness which is a higher standard than rationality.68
Is there unfair discrimination?
[68]
The fact that the differentiation between citizens and non-citizens may
have a rational basis does not mean that it is not an unfairly discriminatory
criterion to use in the allocation of benefits. If the differentiation is based on a
ground listed in section 9(3)69 of the Constitution a rebuttable presumption that
the discrimination is unfair is created by section 9(5).70 However, where, as in
this case, the ground for the differentiation is not itself listed but is analogous to
such listed grounds, there is no presumption in favour of unfairness and the
unfairness first has to be established.
68
Bel Porto School Governing Body and Others v Premier, Western Cape and Another 2002 (3) SA
265 (CC); 2002 (9) BCLR 891 (CC) at para 46.
69
Section 9(3) provides:
“The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.”
70
Section 9(5) states:
“Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
See also Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para
53.
42
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