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[1997] ZACC 5
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Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 4/96
WILLEM M PRINSLOO

Applicant
versus
GERHARDUS STEPHANUS VAN DER
LINDE
First Respondent
THE MINISTER OF FORESTRY AND
WATER AFFAIRS

Second Respondent
Heard on:
7 November 1996
Decided on:   18 April
1997
JUDGMENT
ACKERMANN J, O’REGAN J AND
SACHS J:
[1]
Much of South Africa is tinder dry.  Veld, forest and mountain
fires sweep across the
land, causing immense damage to property and
destroying valuable forest, flora and fauna.  The Forest Act 122
of 1984 (the “Act”)
has as one of its principal objects
the prevention and control of such fires.  A major method of
achieving this is to create
various fire control areas where schemes
of compulsory fire control are established, with special emphasis on
the clearing and maintenance
of fire belts between neighbouring
properties.
[1]
Landowners in areas outside of such fire control areas are, on the
other hand, encouraged but not required to embark on similar
fire
control measures.
[2]
A number of provisions prescribe criminal penalties for landowners in
fire control areas who fail to fulfil their statutory
obligations.
[3]
In addition, an offence is created in respect of persons who are
wilfully or negligently responsible for fires “in the
open
air”,
[4]
while it is an offence for any landowner in any area to fail to take
such steps as are under the circumstances reasonably necessary
to
prevent the spread of fires.
[5]
[2]
One provision in the Act dealing expressly with responsibility for a
fire on land outside
of a fire control area is section 84.  It
reads as follows:
“
84.
Presumption of negligence.
-
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 situated outside a fire control
area arises, negligence is presumed, until the contrary is
proved.”
It is the constitutionality of
this provision which is under consideration in the present matter.
THE REFERRAL
[3]
The present matter comes before us by way of a referral made in terms
of section 102(1) of
the Constitution of the Republic of South
Africa, 1993 (the “interim Constitution”)
[6]
by Van der Walt DJP in the Transvaal Provincial Division of the
Supreme Court (as it was then called).  Action had been
instituted
in that division by the first respondent (as plaintiff) as
a result of damage allegedly caused to his farmlands by the spread of
a fire from the neighbouring land of the applicant (defendant in
those proceedings).
[7]
It was common cause in this Court that the fire occurred on land
situated outside a fire control area.
[4]
As this Court has held on a number of occasions, a court should only
exercise its power under
section 102(1) after it is satisfied: first,
that the issue falls within the exclusive jurisdiction of the
Constitutional Court;
secondly, that it may be decisive for the case;
and, thirdly, that it would be in the interest of justice for the
referral to take
place.
[8]
[5]
Dealing with the second requirement, Didcott J in
Luitingh
v Minister of Defence
held that the requirement was satisfied “once the ruling given
there may have a crucial bearing on the eventual outcome of
the case
as a whole, or on any significant aspect of the way in which its
remaining parts ought to be handled”.
[9]
In
Brink
v Kitshoff NO,
Chaskalson P commented that this would include an issue which, if
decided in favour of the party who raised it, would put an end
to or
materially curtail the litigation.
[10]
It would also include an issue such as the onus of proof in relation
to the admissibility of a confession in a criminal trial,
which arose
in
S
v Zuma and Others
[11]
and
S
v Mhlungu and Others
.
[12]
In
Zuma
’s
case the decision of the entire case in fact depended on where the
onus lay.  In
Mhlungu
’s
case a ruling would determine the way in which the voir dire was to
be conducted, and was also necessary in fairness to the
accused to
enable them to decide whether or not to give evidence.
[6]
Van der Walt DJP issued an order granting the application.  His
reasons appear from an
annexure to the order in the following terms:
“
1.3
Dit is van wesenlike belang dat die geskilpunt of die vermoede van
skuld geskep soos in Artikel 84 ongrondwetlik
is al dan nie, en
daarop staat gemaak kan word al dan nie, beslis word voordat die
verhoor tussen die Applikant en eerste Respondent
‘n aanvang
neem, omdat dit sal bepaal watter getuies die gedingspartye (indien
enige) gaan roep as getuies om die party wat
die bewyslas dra hom
daarvan te laat kwyt, en wie die beginlas om met die verhoor op die
meriete te begin dra.
1.4
Hierdie is nie ‘n geval waar die vraag of Artikel 84
grondwetlik bestaanbaar is al dan nie eers
uitgemaak kan word nadat
getuienis oor die ander geskilpunte tussen die partye aangehoor is en
feitebevidings [sic] daaroor gemaak
is wat tersake kan wees nie,
omdat die vraag na wie die bewyslas en beginlas dra, van
deurslaggewende belang is vir hoe die saak
deur die partye in die hof
aangevoer moet word.”
[13]
[7]
In the case of
Stevens
v Stevens
,
[14]
Wright J came to the opposite conclusion in an action which was also
brought under the Act.  His opinion that a referral of
the
constitutionality of section 84 of the Act was, at that stage, not in
the interest of justice was based on the probability that
either of
the parties would be able, without the assistance of the presumption,
to either prove or disprove the negligence of the
defendant.  It
is neither necessary nor desirable to attempt to resolve the apparent
conflict between the conclusions of Van
der Walt DJP and Wright J
because every case must be decided on its own particular facts and
circumstances and what is essentially
a judgment on the peculiar
facts and pleadings before a judge requested to refer a matter in
terms of section 102(1) cannot be elevated
to a rule of law which is
capable of automatic application to the referral of all other cases
brought under the Act.
[8]
Van der Walt DJP clearly formed the view, as is evident from the
above reasons, that the ruling
on the constitutionality of section 84
of the Act might have a crucial bearing on a significant aspect of
the way in which the parties
would conduct their cases.  This
brings it within the formulation of the requirement in
Luitingh
quoted above.  It cannot confidently be stated that Van der Walt
DJP was wrong in the judgment he formed in this regard and
accordingly it cannot be concluded that this particular referral
requirement was not met.  That Van der Walt DJP must have
considered
it in the interest of justice to refer the matter at that
stage follows inevitably from the reasons furnished regarding the
crucial
importance of deciding the incidence of onus at the
commencement of the proceedings.  The learned judge did not
furnish explicit
reasons why he considered that there was a
reasonable prospect of the section being declared unconstitutional,
but at the time that
the referral was made there was little guidance
on the construction of section 8, which is a matter of some
complexity.  Under
these circumstances it is fair to infer that,
at the time and in the context of the referral, Van der Walt DJP must
have considered
that there was such a reasonable prospect.  In
any event no useful purpose would be served in the circumstances of
this particular
case by considering how the applicant’s
prospects of success on the constitutional challenge looked at the
time of the referral.
Full argument has been heard on the
challenge and the Court is in a position to deal with that definitely
and finally.  In our
view the referral should be accepted and
the merits of the constitutional challenge to section 84 considered.
[9]
The issues in the referral were formulated as follows:
“
2.
Die geskilpunt tussen die partye is meer in die besonder die vraag of
die vermoede van
skuld wat geskep word deur Artikel 84 van die Boswet
nie in botsing is met die fundamentele regte vervat in Hoofstuk 3 van
die Grondwet
nie, en meer in die besonder:
2.1
Die reg op gelykheid voor die reg en op gelyke beskerming deur die
reg soos vervat in
artikel 8(1) van die Grondwet;
2.2
Die verbod op diskriminasie soos vervat in artikel 8(2) van die
Grondwet;
2.3
Die reg om onskuldig geag te word totdat skuld bewys word soos vervat
word [in] Artikel
25(3)(c) van die Grondwet.”
Whether there is a
constitutional right to a fair civil trial and, if so, whether an
onus provision such as that provided for in section
84 might infringe
such right, are issues with which we are not concerned in this case
and on which we need express no view.
Counsel for the applicant
expressly renounced reliance on any such argument.
PRESUMPTION OF INNOCENCE:
SECTION 25(3)(c)
[10]
In his written and oral argument, counsel for the applicant focused
primarily on the third point, namely
an alleged violation of the
right to be presumed innocent, as contained in section 25(3)(c) of
the interim Constitution.  The
obvious difficulty he had to
overcome was that the applicant was a defendant in a civil trial and
not an accused in a criminal trial.
In order to circumvent this
problem, he argued that the test to be adopted was an objective one,
which did not depend upon the subjective
situation of the applicant,
but rather on the objective reach of the provision.  Thus, if
the impugned section, objectively
speaking, was unconstitutional, it
would be of no force and effect for civil as well as criminal
trials.  The word “action”,
he contended, was
ambiguous and had to be read in its context, particularly in relation
to the fact that the Afrikaans text used
the word “geding”,
which corresponded to the wide English term “proceedings”.
[15]
Furthermore, criminal prosecutions in fact frequently took place and
section 84 of the Act was used to establish guilt.
[16]
It followed that the word “action” was wide enough to
include criminal as well as civil proceedings, with the result
that
it infringed the rights of accused persons as protected by section
25(3)(c).  Once it was invalid because of its application
to
criminal trials, he concluded, it lost all its force and effect and
accordingly could not be invoked in civil proceedings.
[11]
In our opinion, counsel was wrong both in relation to his approach to
interpretation and in respect of
the consequences of the construction
he urged upon us.  We shall make the following assumptions (most
of them very questionable)
in his favour (without deciding the
correctness of any of them): That standing of a civil claimant to
challenge a “reverse
onus” in a civil trial provides
standing to challenge the constitutionality of a statutory reverse
onus provision relating
to criminal trials, even when that claimant
is not in jeopardy of prosecution;
[17]
that the word “action” in section 84 is wide enough to
encompass criminal proceedings; that there is sufficient material
before this Court to enable us to determine whether a reverse onus in
a criminal trial would be unconstitutional; and that in fact
such a
reverse onus in a criminal trial would be unconstitutional.
[12]
Even on these assumptions, there is one insuperable obstacle to
counsel’s  argument, and that
is the approach to
interpretation enjoined upon us by section 35(2) of the interim
Constitution, which reads as follows:
“
No law
which limits any of the 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.”
[13]
Its terms are peremptory.  Our task is not to find the one
“correct” interpretation
of a statutory provision, but,
given more than one reasonably possible construction, to prefer one
which is consistent with the interim
Constitution.  In this
respect, ambiguity does not help the applicant.  On the
contrary, any ambiguity must be resolved
by favouring the
construction which keeps the provision constitutionally alive,
provided the construction is reasonable.  In
keeping with this
approach, we have no difficulty in deciding that even if the word
“action” was capable of including
criminal proceedings,
and even if such inclusion resulted in an unconstitutional invasion
of a right to a fair criminal trial, it
was also reasonably capable
of a more restricted meaning which excluded criminal trials and
thereby avoided unconstitutionality.
It follows that in terms
of section 35(2) the latter interpretation would be preferred.
Even if all the assumptions made in
paragraph 11 above were
correct, a proposition which is open to doubt, the attack based on
section 25(3)(c) would still fail.
[14]
In addition, even a finding in favour of the applicant’s
argument concerning section 25(3)(c) would
not enable him to get
around a further obstacle.  The very kind of situation contended
for by counsel, namely that section 25(3)(c)
rendered section 84
unconstitutional in part, appears to have been contemplated by the
interim Constitution, and answered in quite
a different way to that
for which he contends.  Section 98(5) of the interim
Constitution provides as follows:
“
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
. . .” (our emphasis)
Thus, even if
this Court were to hold that section 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 that it made that the provisions of the
section were
inconsistent only to the extent that they applied to criminal
proceedings.
[18]
The applicant can therefore not succeed in the attack based on
section 25(3)(c) of the interim Constitution.
THE EQUALITY ISSUES: SECTION
8
[15]
While the attack based on section 8 was not strongly pressed by
counsel for the applicant, it must nevertheless
be given due
consideration.  For present purposes the relevant provisions of
Section 8 of the interim Constitution read as follows:
“
Equality.
8.
(1)
Every person shall have the right to equality before the law and to
equal protection
of the law.
(2)
No 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.
(3)(
a
)   This
section shall not preclude measures designed to achieve the adequate
protection and advancement of persons or groups
or categories of
persons disadvantaged by unfair discrimination, in order to enable
their full and equal enjoyment of all rights
and freedoms.
(
b
) . . .
(4)
Prima facie
proof of discrimination on any of the grounds
specified in subsection (2) shall be presumed to be sufficient proof
of unfair discrimination
as contemplated in that subsection, until
the contrary is established.”
[16]
In his written argument, counsel pointed to the differentiation
between defendants in veld fire cases
and those in other delictual
matters.  According to him, this differentiation had no rational
basis, because the apparent object
that the legislature sought to
achieve by reversing the general rule regarding the incidence of onus
that whoever avers must prove,
could have been, and, indeed, already
was, accomplished by means of common law aids to proof.  He
referred in particular to
the concept of res ipsa loquitur
[19]
and the practice of triers of fact to require less evidence to
establish a prima facie case if the facts in issue are peculiarly
within the knowledge of the opposing party.
[20]
A second differentiation which was raised by first respondent,
relates to the fact that the presumption of negligence applies
only
in respect of fires in non-controlled areas, and not to those
spreading in controlled areas, which at first blush appears to
be
incongruous.  The challenge to constitutionality in both cases
would be based either on a breach of the right to equality
as
guaranteed in section 8(1) or on a violation of the prohibition of
discrimination contained in section 8(2).  To determine
whether
either challenge in terms of section 8 is correct, it is necessary to
consider first the proper approach to be taken to sections
8(1) and
(2).
[17]
If each and every differentiation made in terms of the law amounted
to unequal treatment that had to
be justified by means of resort to
section 33, or else constituted discrimination which had to be shown
not to be unfair, the courts
could be called upon to review the
justifiability or fairness of just about the whole legislative
programme and almost all executive
conduct.  As Hogg puts it:
“
What
is meant by a guarantee of equality?  It cannot mean that the
law must treat everyone equally.  The Criminal Code imposes
punishments on persons convicted of criminal offences; no similar
burdens are imposed on the innocent.  Education Acts require
children to attend school; no similar obligation is imposed on
adults.  Manufacturers of food and drugs are subject to more
stringent regulations than the manufacturers of automobile parts.
The legal profession is regulated differently from the accounting
profession.  The Wills Act prescribes a different distribution
of the property of a person who dies leaving a will from that
of a
person who dies leaving no will.  The Income Tax Act imposes a
higher rate of tax on those with high incomes than on those
with low
incomes.  Indeed, every statute or regulation employs
classifications of one kind or another for the imposition of
burdens
or the grant of benefits.  Laws never provide the same treatment
for everyone.”
[21]
The courts
would be compelled to review the reasonableness or the fairness of
every classification of rights, duties, privileges,
immunities,
benefits or disadvantages flowing from any law.  Accordingly, it
is necessary to identify the criteria that separate
legitimate
differentiation from differentiation that has crossed the border of
constitutional impermissibility and is unequal
or discriminatory “in
the constitutional sense”.
[22]
[18]
Even a cursory summary of international experience indicates that
there are no universally accepted bright
lines for determining
whether or not an equality or non-discrimination right has been
breached.  The varying emphases given
in different countries
depend on a combination of the texts to be interpreted, modes of
doctrinal articulation, historical backgrounds
and evolving
standards.  Questions of institutional function and competence
might play a role when reviewing, for example, legislation
of a
social and economic character.
[23]
[19]
In relation to the text and context of the interim Constitution, it
would therefore seem that a simplistic
transplantation from other
countries into our equality jurisprudence of formulae, modes of
classification or degrees of scrutiny,
might create more problems
than it solved.  At the same time, we must be mindful of section
35(1) which states:
“
Interpretation.
35.
(1)
In interpreting the provisions of this Chapter a court of law shall
promote the values which underlie an open and democratic society
based on freedom and equality . . .”
[20]
Our country has diverse communities with different historical
experiences and living conditions.
Until recently, very many
areas of public and private life were invaded by systematic legal
separateness coupled with legally enforced
advantage and
disadvantage.  The impact of structured and vast inequality is
still with us despite the arrival of the new constitutional
order.
It is the majority, and not the minority, which has suffered from
this legal separateness and disadvantage.  While
our country,
unfortunately, has great experience in constitutionalising
inequality, it is a newcomer when it comes to ensuring constitutional
respect for equality.  At the same time, South Africa shares
patterns of inequality found all over the globe, so that any
development
of doctrine relating to section 8 would have to take
account both of our specific situation and of the problems which our
country
shares with the rest of humanity.  All this reinforces
the idea that this Court should be astute not to lay down sweeping
interpretations
at this stage but should allow equality doctrine to
develop slowly and, hopefully, surely.  This is clearly an area
where issues
should be dealt with incrementally and on a case by case
basis with special emphasis on the actual context in which each
problem
arises.
[21]
In
Brink
v Kitshoff NO
,
a general review was conducted of the approaches adopted in Canada,
the United States of America, India and in international conventions
and covenants.
[24]
That review concluded:
“
. . .
that the various conventions and national constitutions are
differently worded and that the interpretation of national
constitutions,
in particular, reflects different approaches to the
concepts of equality and non-discrimination.  The different
approaches adopted
in the different national jurisdictions arise not
only from different textual provisions and from different historical
circumstances,
but also from different jurisprudential and
philosophical understandings of equality.”
[25]
The Court
emphasised that section 8 is the product of our own particular
history, that perhaps more so than in the case of other provisions
in
Chapter 3 the interpretation of section 8 must be based on its own
language and that our history was particularly relevant to
the
concept of equality.
[26]
[22]
When section 8 is read as a whole it appears that the concept of
equality is referred to in different
ways.  In section 8(1) it
is described positively as a “right to equality before the law”
and as a “right
. . . to equal protection of the law”.
In section 8(2) it is formulated negatively: “No person shall
be unfairly
discriminated against, directly or indirectly. . .”.
It may be neither desirable nor feasible to divide the various
subsections
or descriptions into watertight compartments.
Nonetheless, it would appear that the right to “equality before
the law”
is concerned more particularly with entitling
“everybody, at the very least, to equal treatment by our courts
of law”.
[27]
It makes clear that no-one is above or beneath the law and that all
persons are subject to law impartially applied and administered.
This right, or this aspect of the right guaranteed, does not apply to
the present case.
[23]
The idea of differentiation (to employ a neutral descriptive term)
seems to lie at the heart of equality
jurisprudence in general and of
the section 8 right or rights in particular.   Taking as
comprehensive a view as possible
of the way equality is treated in
section 8, we would suggest that it deals with differentiation in
basically two ways:  differentiation
which does not involve
unfair discrimination and differentiation which does involve unfair
discrimination.  This needs some
elaboration.  We deal with
the former first.
[24]
It must be accepted that, in order to govern a modern country
efficiently and to harmonise the interests
of all its people for the
common good, it is essential to regulate the affairs of its
inhabitants extensively.  It is impossible
to do so without
differentiation and without classifications which treat people
differently and which impact on people differently.
It is
unnecessary to give examples which abound in everyday life in all
democracies based on equality and freedom.  Differentiation
which falls into this category very rarely constitutes unfair
discrimination in respect of persons subject to such regulation,
without
the addition of a further element.  What this further
element is will be considered later.
[25]
It is convenient, for descriptive purposes, to refer to the
differentiation presently under discussion
as “mere
differentiation”.  In regard to mere differentiation the
constitutional state is expected to act in a rational
manner.
It should not regulate in an arbitrary manner or manifest “naked
preferences”
[28]
that serve no legitimate governmental purpose, for that would be
inconsistent with the rule of law and the fundamental premises of
the
constitutional state.  The purpose of this aspect of equality
is, therefore, to ensure that the state is bound to function
in a
rational manner.  This has been said to promote the need for
governmental action to relate to a defensible vision of the
public
good,
[29]
as well as to enhance the coherence and integrity of
legislation.
[30]
In Mureinik’s celebrated formulation, the new constitutional
order constitutes “a bridge away from a culture of
authority .
. . to a culture of justification”.
[31]
[26]
Accordingly, before it can be said that mere differentiation
infringes section 8 it must be established
that there is no rational
relationship between the differentiation in question and the
governmental purpose which is proffered to
validate it.  In the
absence of such rational relationship the differentiation would
infringe section 8.  But while the
existence of such a rational
relationship is a necessary condition for the differentiation not to
infringe section 8, it is not a
sufficient condition; for the
differentiation might still constitute unfair discrimination if that
further element, referred to above,
is present.
[27]
It is to section 8(2) that one must look in order to determine what
this further element is.  For
reasons which will subsequently
emerge it is unnecessary to consider the precise ambit or limits of
this subsection.  It is,
however, clearly a section which deals
not with all differentiation or even all discrimination but only with
unfair discrimination.
It does so by distinguishing between two
forms of unfair discrimination and dealing with them differently.
[28]
The first form relates to certain specifically enumerated grounds
(“specified grounds”) on
the basis whereof no person may
unfairly be discriminated against.  The specified grounds are
race, gender, sex, ethnic or social
origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture
or language.  When there is prima
facie proof of discrimination
on these grounds it is presumed, in terms of subsection (4), that
unfair discrimination has been sufficiently
proved, until the
contrary is established.  These are not the only grounds which
would constitute unfair discrimination.
The words “without
derogating from the generality of this provision”, which
introduce the specified grounds, make it
clear that the specified
grounds are not exhaustive.  The second form is constituted by
unfair discrimination on grounds which
are not specified in the
subsection.  In regard to this second form there is no
presumption in favour of unfairness.
[29]
The question arises as to what grounds of discrimination this second
form includes.  A purely literal
reading and application of the
phrase “without derogating from the generality of this
provision” would lead to the conclusion
that discrimination on
any ground whatsoever is proscribed, provided it is unfair.
Such a reading would provide no guidance
as to what unfair meant in
regard to this second form of discrimination.  It would provide
very little, if any, guidance in
deciding when a differentiation
which passed the rational relationship threshold constituted unfair
discrimination.  It also
seems unlikely that the content of the
concept unfair discrimination would be left to unguided judicial
judgment.  We are of
the view, however, that when read in its
full historical and evolutionary context and in the light of the
purpose of section 8 as
a whole, and section 8(2) in particular, the
second form of unfair discrimination cannot be given such an
extremely wide and unstructured
meaning.
[30]
Proper weight must be given to the use of the word “discrimination”
in subsection (2).
The drafters of section 8 did not, for
example, follow the model of the Fourteenth Amendment to the
Constitution of the United States
which, in paragraph 1 thereof,
refers only to the denial of “the equal protection of the
laws.”  Section 8(1) certainly
positively enacts the
encompassing and important right to “equality before the law
and to equal protection of the law”,
but section 8 does not
stop there.  It goes further and in section 8(2) proscribes
“unfair discrimination” in the
two forms we have
mentioned.
[31]
The proscribed activity is not stated to be “unfair
differentiation
”
but is stated to be “unfair
discrimination
”.
Given the history of this country we are of the view that
“discrimination” has acquired a particular pejorative
meaning relating to the unequal treatment of people based on
attributes and characteristics attaching to them.  We are
emerging
from a period of our history during which the humanity of
the majority of the inhabitants of this country was denied.
They
were treated as not having inherent worth; as objects whose
identities could be arbitrarily defined by those in power rather than
as persons of infinite worth.  In short, they were denied
recognition of their inherent dignity.
[32]
Although one thinks in the first instance of discrimination on the
grounds of race and ethnic origin one should never lose
sight in any
historical evaluation of other forms of discrimination such as that
which has taken place on the grounds of sex and
gender.  In our
view unfair discrimination, when used in this second form in section
8(2), in the context of section 8 as a
whole, principally means
treating persons differently in a way which impairs their fundamental
dignity as human beings, who are inherently
equal in dignity.
[32]
In Dworkin’s words, the right to equality means the right to be
treated as equals, which does not
always mean the right to receive
equal treatment.
[33]
We find support for the approach we advocate in the following passage
from the judgment of this Court in
The
President of the Republic of South Africa and Another v Hugo
:
“
At the
heart of the prohibition of unfair discrimination lies a recognition
that the purpose of our new constitutional and democratic
order is
the establishment of a society in which all human beings will be
accorded equal dignity and respect regardless of their
membership of
particular groups. The achievement of such a society in the context
of our deeply inegalitarian past will not be easy,
but that that is
the goal of the Constitution should not be forgotten or
overlooked.”
[34]
and in which
the following passage from
Egan
v Canada
[35]
was quoted with approval:
“
This
court has recognized that inherent human dignity is at the heart of
individual rights in a free and democratic society . . .
More
than any other right in the
Charter
,
s.15 gives effect to this notion . . .  Equality, as that
concept is enshrined as a fundamental human right within s.15 of
the
Charter
,
means nothing if it does not represent a commitment to recognizing
each person’s equal worth as a human being, regardless
of
individual differences.  Equality means that our society cannot
tolerate legislative distinctions that treat certain people
as
second-class citizens, that demean them, that treat them as less
capable for no good reason, or that otherwise offend fundamental
human dignity.”
[36]
[33]
Where discrimination results in treating persons differently in a way
which impairs their fundamental
dignity as human beings, it will
clearly be a breach of section 8(2).  Other forms of
differentiation, which in some other way
affect persons adversely in
a comparably serious manner, may well constitute a breach of section
8(2) as well.  It is not necessary
to say more than this in the
present case, for reasons which emerge later in this judgment.
[37]
[34]
Since the adoption of the interim Constitution, the provisions of
section 8 have been referred to in
a number of reported Supreme Court
judgments.  In some the reference has been somewhat in passing;
in others provisions have
been held to be merely regulatory while in
certain instances they have been held to constitute a clear breach of
the section 8(2)
prohibition against unfair discrimination.  The
question whether, and to what extent, the protection of section 8 may
be invoked
by juristic persons has also been considered.  None
of these cases has been concerned with the constitutionality of a
statutory
onus provision in civil cases.  Nor has an attempt
been made in any of them to conduct a comprehensive analysis of the
proper
interpretation of section 8 and in particular the relationship
between  section 8(1) and 8(2).  It therefore does not seem
necessary for us to consider or comment on any of them individually.
[35]
Turning now to the case before us, it is necessary in the first place
to enquire whether the necessary
rational relationship exists between
the purpose sought to be achieved by section 84 of the Act and the
means sought to achieve it.
The objectives of the Act as set
out in the long title, are “[t]o provide for . . . the
prevention and combating of veld, forest
and mountain fires; . . .
and matters connected therewith.”  In essence, applicant
contended that section 84 lacked rationality
because it did not use
the least onerous means of achieving its objectives.  This
approach, however, is based on two misconceptions.
First, the
applicant is prematurely importing a criterion for justification into
a test to be applied at the infringement enquiry
(definitional or
threshold) stage.  The question of whether the legislation could
have been tailored in a different and more
acceptable way is relevant
to the issue of justification, but irrelevant to the question of
whether there is a sufficient relationship
between the means chosen
and the end sought, for purposes of the present enquiry.
Second, underlying the argument is an assumption
that somehow there
should be a “presumption of innocence” in civil matters
as weighty and untouchable as that in criminal
cases, so that a
reverse onus in a civil matter should be as vulnerable to impeachment
as one in a criminal trial.
[36]
In regard to the first misconception, a person seeking to impugn the
constitutionality of a legislative
classification cannot simply rely
on the fact that the state objective could have been achieved in a
better way.  As long as
there is a rational relationship between
the method and object it is irrelevant that the object could have
been achieved in a different
way.  In any civil case, one of the
parties will have to bear the onus on each of the factual matters
material to the adjudication
of the dispute. So, in the case of an
aquilian claim for damages arising from a veld fire, one of the
parties will bear the onus
concerning negligence.  As long as
the imposition of the onus is not arbitrary, there will be no breach
of section 8(1).
In rare circumstances, it may be that the
allocation of onus will impair other constitutional rights and a
challenge will then arise.
That is not the case here.
[37]
In regard to the second misconception, an onus in a civil case cannot
be equated with the overall onus
of proof in criminal cases.  In
Mabaso
v Felix
[38]
the Appellate Division described the fundamental difference between
the incidence of the onus of proof in civil and criminal cases
in the
context of assault as follows:
“
In its
anxiety that no accused should be punished for a crime without proof
of his guilt our common law deliberately places the burden
of proving
every disputed issue, save insanity, on the prosecution.  But in
civil law . . . considerations of policy, practice,
and fairness
inter
partes
may require that the defendant should bear the overall
onus
of averring and proving an excuse or justification for his otherwise
wrongful conduct.”
[39]
[38]
There is indeed nothing rigid or unchanging in relation to the
question of the incidence of the onus
of proof in civil matters, no
established “golden thread” like the presumption of
innocence that runs through criminal
trials.
[40]
As Davis AJA, quoting Wigmore, put it:
“
. . .
all rules dealing with the subject of the burden of proof rest ‘for
their ultimate basis upon broad and undefined reasons
of experience
and fairness.’”
[41]
As long as the rules relating to
the onus are rationally based, therefore, no constitutional challenge
in terms of section 8 will
arise.
[39]
The purpose of the Act is to prevent veld fires.  There can be
no doubt that the State has a legitimate
and strong interest in
preventing veld, forest and mountain fires.  It has chosen to
fulfil its responsibility by means of the
scheme set out in the
opening paragraph of this judgment.  In fire control areas there
is compulsory participation in schemes
to prevent fires spreading,
involving shared information, planning and execution.
[42]
Specific statutory duties are imposed with prescribed penalties for
disobedience.
[43]
[40]
In non-controlled areas, on the other hand, there are opportunities
for joint management on a voluntary
basis only, with no obligation,
and no necessity for shared management and pooled knowledge.
[44]
Persons are left in the dark as to what steps their neighbours have
taken to avert fires.  The causes of the fire and
its spread
will often be peculiarly within the knowledge of the neighbour.
The specific duties imposed on landowners in fire
control areas are
accordingly counterbalanced by the general inducement contained in
section 84 for those responsible for land in
non-controlled areas to
be specially vigilant lest they find themselves saddled with
responsibility for damage caused by fire spreading
from their land.
The purpose of section 23 of Act 72 of 1968, the predecessor of the
present section 84, was identified by
Fannin J as follows:
“
It was
argued on behalf of the plaintiff that the presumption was created in
recognition of the peculiar difficulties faced by a person
who
suffers damage as a result of a fire whose origin he may be wholly
unable to establish, and of the fact that, in most cases,
if not all,
a person from whose land a fire spreads will be in a much better
position to show how and where the fire originated,
whether it was
lit by himself or by anyone for whose acts he is in law responsible
and the manner in which the fire was dealt with,
if at all, by him or
by his servants or agents.  This, I think, is undoubtedly
correct.  Furthermore, a person who has
suffered as a result of
a fire which has come from another’s land will often not be in
a position to embark upon any investigation
as to the origin or cause
of the fire, and will certainly have no right to enter upon that land
to conduct any such investigation.
That such difficulties in
relation to fires have long been recognised appears from a perusal of
Voet
,
9.2.20, which however relates to fires in buildings.”
[45]
In our view,
there can be no doubt that a rational relationship is demonstrated
between the purpose sought to be achieved by section
84 and the means
chosen.
[41]
This does not end the matter, because despite the existence of the
aforementioned rational relationship
between means and purpose, the
particular differentiation might still constitute unfair
discrimination under the second form of unfair
discrimination
mentioned in section 8(2).  The regulation effected by section
84 in the present case differentiates between
owners and occupiers of
land in fire control areas and those who own or occupy land outside
such areas.  Such differentiation
cannot, by any stretch of the
imagination, be seen as impairing the dignity of the owner or
occupier of land outside the fire control
area.  There is
likewise no basis for concluding that the differentiation in some
other invidious way adversely affects such
owner or occupier in a
comparably serious manner. It is clearly a regulatory matter to be
adjudged according to whether or not there
is a rational relationship
between the differentiation enacted by section 84 and the purpose
sought to be achieved by the Act.
We have decided that such a
relationship exists.  Accordingly, no breach of section 8(1) or
(2) has been established.
CONCLUSION
[42]
In the result the applicant has not established that section 84 of
the Act is in any way inconsistent
with the provisions of section
8(1) or (2) or section 25(3)(c) of the interim Constitution.
The case should accordingly be
referred back to the Transvaal
Provincial Division of the High Court.  No order for costs was
asked for, indeed counsel specifically
agreed that none should be
made, and there is no reason to make one.
[43]
ORDER
1.
It is declared that the provisions of section 84 of the Forestry Act
122 of 1984
are not inconsistent with the interim Constitution.
2.
The case is referred back to the Transvaal Provincial Division of the
High Court
to be dealt with in the light of this judgment.
Chaskalson P, Mahomed DP,
Goldstone, Kriegler, Langa, Madala, Mokgoro JJ concur in the judgment
of Ackermann, O’Regan and Sachs
JJ.
DIDCOTT   J:
[44]
The point that has been put to us for our ruling on it in these civil
proceedings concerns section 84
of the Forest Act (122 of 1984),
which decrees 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 situated outside a fire control
area arises, negligence is presumed, until the contrary is
proved.”
The section has been invoked in
the present litigation, an action awaiting trial before the Transvaal
Provincial Division of the Supreme
Court, or of the High Court as it
is now called, where damages are claimed at common law for the
burning by a veld fire of the plaintiff’s
orchards and
pasturage.  The fire occurred outside a fire control area.
It started on, or ran at all events across, land
owned and controlled
by the defendant.  It then spread to the plaintiff’s
adjoining farm.  The defendant is blamed
for the destruction
that it wrought there.   He or his servants,  acting
in the course of their  employment
by him, are said to
have caused that by their negligence.  The effect of the section
in all those circumstances, if it survives
our adjudication on it,
will be to load him with the burden of disproving such negligence
when the action goes to trial.
He contends that the
section fell foul of the interim Constitution  (Act 200 of
1993),  however,  which was in force
when the
proceedings began and continues to govern them.
1
Whether the section was so hit is what we must now decide.
[45]
The main ground on which the defendant bases his contention is the
store that he sets by section 25(3)(c)
of the interim Constitution.
No part of that touched civil matters.  It dealt only with
criminal prosecutions.
The right to a fair trial was guaranteed
by subsection (3),  but explicitly and solely to persons accused
of crimes.
Paragraph (c) then proclaimed the presumption
of innocence and the privilege of silence as particular features of
that general right,
and therefore as those enjoyable under it by such
persons alone.
2
Counsel who represented the defendant maintained that subsection
(3)(c) was nevertheless pertinent to the present proceedings.
His argument went like this.   Section 84 covered all
matters indiscriminately, embracing civil and criminal ones alike.
It was constitutionally objectionable in its application to criminal
cases,  since there it provided for a reverse onus of the
kind
which, on the very strength of subsection (3)(c), we had condemned in
comparable situations posed on several earlier occasions,
holding
that the reversal violated the presumption of innocence.
The defect tainted the entire section.  It was
consequently
invalid as a whole, and thus in a civil as well as a criminal
setting.
[46]
The statute creates a host of crimes and a wide variety also.
Negligence is specified as an element
of merely one which has caught
my eye, that emerging from section 75(2)(b)(iii).   But it
may well become a material factor
elsewhere too.   The
additional offences that I have in mind are any requiring
mens
rea
for
their commission where
culpa
serves
that purpose.   Room of one size or another could
accordingly have been found for the accommodation within section
84
of criminal prosecutions.
[47]
Whether the space was filled is a different matter.   That
sounds doubtful, to say the least.
Section 84 speaks of
“any action”, not of “any proceedings” as its
statutory predecessors did in section
23 of the Forest Act (72 of
1968) and section 26 of the Forest and Veld Conservation Act (13 of
1941).     The
word “action”, when
used with reference to forms of  legal procedure, denotes in
common parlance the civil type.
One does not normally
describe a criminal prosecution as an “action”, and we
were told of no other legislation which
had attached that label to
any.   Nor have I managed to find a single reported case
where section 84  has been brought
to bear on criminal
proceedings.   The current statute seems itself, I mention
in parenthesis, to recognise the distinction
in terminology.
For section 83(1), which enacts its own separate presumption, applies
that specifically to every  “prosecution
for
an offence”.   The defendant’s counsel drew
our  attention to  the word “geding”,
which
appeared in the Afrikaans text of  section 84 as the
counterpart  to “action” and tended to have
broader
connotations.  The English text was the one signed.
But that is not a conclusive consideration.  The
Afrikaans
version remains relevant, even so,  to the interpretation of the
section.  Yet it takes the matter no further.
The reason
is a helpful rule of statutory construction catering for the
situation that we have here, where the one text happens to
be couched
in terms which are wider than but encompass those of  the
other.   The texts must then be reconciled, ordinarily
at
any rate and especially when they impose fresh burdens, by
attributing to the legislation the narrower meaning, since that is
the denominator common to both.
3
It follows that, if the English version envisages nothing but a civil
“action”, the rule requires “geding”
to be
read in the same way so that the two words may match each other.
[48]
Let us suppose, however, that “action” like “geding”
is a word quite capable
in such a context of  identifying either
a civil one alone or any legal proceedings, including the criminal
sort, and furthermore
that their interpretation in that second and
wider sense, if chosen, would result in the incompatibility of
section 84 with section
25(3)(c).   Another rule of
statutory construction would then come into play and eliminate the
choice, a special rule which
section 35(2) of the interim
Constitution dictated when, with regard  to the Chapter
containing section 25(3)(c), it stipulated
that:
“
No law
which limits any of the 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.”
So that rule too would enjoin
us, on the supposition which I have made, to avoid a clash between
section 84 and section 25(3)(c) by
putting on both words the
interpretation that restricted their ambit to civil cases only.
[49]
Nor, in any event, would the defendant’s case have prospered
from the success of his counsel in
persuading us that section 84 did
cover criminal prosecutions and collided with section 25(3)(c) by
doing so.  A declaration
of nullity that dealt solely with the
application of section 84 to those particular proceedings would then
have been the maximum
that he could  obtain.  For section
98(5) of the interim Constitution empowered us to go no further in
condemning any law
than its invalidation “to the extent of its
inconsistency” with a constitutional command.
4
The defendant’s lack of any apparent interest in the grant of
relief so circumscribed would have disqualified him, what
is more,
from gaining even that.
[50]
We need not decide in the end, I believe, whether section 84 purports
to affect criminal trials and,
if it does, whether section 25(3)(c)
forbade that.   I say so because, in my opinion, the
reliance placed on that section
has no merit on any footing and the
main argument advanced on behalf of the defendant must therefore be
rejected.
[51]
An alternative objection which the defendant has taken to section 84
then enters the picture.  He
protests that its regulation of the
civil actions to which it applies, when viewed on their own, was
repugnant to section 8 of the
interim Constitution.  That
section entrenched the right of every person to enjoy “equality
before the law”, to
be afforded the “equal protection of
the law”, and not to be “unfairly discriminated against,
directly or indirectly”.
5
The discrimination and inequality now asserted is said to lie in the
differentiation between defendants engaged in actions
that are
governed by section 84  and those involved in all other
delictual cases casting no onus of proof on them, to the disadvantage
and detriment of the former category.
[52]
Complaints about discrimination and inequality have been heard
frequently in the attacks launched here
on statutory provisions since
we began our work two years ago.  We have found it unnecessary
to deal with the point on some
occasions, either because
jurisdictional or procedural obstacles to its consideration were
insuperable or because separate constitutional
challenges succeeded.
On others we have disposed of it.  The complaint failed in
S
v Rens.
6
It was upheld in
S
v Ntuli,
7
in
Brink
v Kitshoff NO
8
and in
Fraser
v Children’s Court, Pretoria North, and Others.
9
Not even then, however, have we yet developed a complete and coherent
jurisprudence on the subject of equality. Sooner
or later, no doubt,
we shall have to enunciate one.  But so complex, so subtle and
so delicate a task ought not to be undertaken
in a case inappropriate
for it.  We may otherwise overlook nuances and implications of
the principle to which our thoughts are
not immediately attuned.
I do not regard the present case as a suitable opportunity for any
such general endeavour.
It suffices for our
purposes there,  I consider, to say no more than this.
Mere differentiation can never amount, in itself
and on its own, to
discrimination or unequal treatment in the constitutional sense.
The law differentiates between categories
of people on innumerable
scores which sound unobjectionable and may often be unavoidable.
A few examples that spring
to mind straight away are their levels of
income at which the rate of the tax assessed on that is fixed, their
ages when or the length
of their employment before pensions become
payable to them, and the criteria for their entitlement to the
benefits of social welfare.
What surely counts at least in
those and all other instances of differentiation is always how
rational in its basis, nature, scope
and objectives the particular
one appears to be, and sometimes how fair it also looks in those
respects.  It follows that I
cannot imagine our denunciation of
any differentiation which we evaluated as both fair and rational.
[53]
In appraising the differentiation assailed by the defendant we had
better try at first to get some clarity
in our minds on what section
84 means when, alluding to the set of circumstances which puts into
operation the presumption and its
accompanying switch in the onus of
proof,  it describes that as the one where  “the
question of negligence . . .
arises”.  The same vague
phrase appeared in both section 26 of the 1941 statute and section 23
of the 1968 successor to
that, and its scarcely informative use
became a topic of judicial discussion in those days.  Watermeyer
J had this to say about
section 26 in
Van
Wyk v Hermanus Municipality
:
1
0
“
It may
well be, but I express no opinion on the point, that the wide meaning
of the section has to be cut down in some way so as to
make it
operate only where there is some
nexus
between
the fire and the person alleged to have been negligent, but if so
there was in my opinion a sufficiently close
nexus
shown in the present case arising from the fact that the defendant
was the owner, and in control, of the land upon which the fire
burned, and that its servants were in attendance and attempted to
extinguish it.”
That passage
struck Fannin J in
Quathlamba
(Pty) Ltd v Minister of Forestry
1
1
as “a useful start to the search for the answers to the
questions . . . posed”.  Referring to section 23, the one
in force by that time, his judgment then commented and elaborated on
the ideas which Watermeyer J had voiced by continuing thus:
1
2
“
The
section does not provide that whenever negligence is alleged in any
proceedings, negligence shall be presumed.  The use of
the word
‘arises’ instead of the verb ‘is alleged’
does, I think, provide some justification for the suggestion
made by
Watermeyer J, for it can hardly be said that any question of
negligence in respect of a fire will really arise if there is
no
connection or
nexus
shown to have existed between the fire and the person sought to be
fixed with responsibility for it.  But it may be argued with
some force, I think, that to require only some
nexus
is not enough, for unless the
nexus
between the fire and the person alleged to have been negligent is
such as to be at the least consistent with negligence, the plaintiff
will have taken the matter no further than if he had merely alleged
negligence and done no more.  I would prefer, therefore,
to
suggest that ‘the question of negligence’ in respect of
veld or forest fires can be said properly ‘to arise’
in
any proceedings only where-
(a)
negligence is alleged against a party to such proceedings; and
(b)
the party making such allegation has established a
nexus
or
connection, between the fire and the party against whom the
allegation is made, which is consistent with such negligence.
Thus where, as here, negligence
is alleged against a defendant in civil proceedings and the fire is
shown to have spread from the
defendant’s property, the
presumption created by the section comes into operation against the
defendant.”
The case went
on appeal under the name of
Minister
of Forestry v Quathlamba (Pty) Ltd
.
1
3
Ogilvie Thompson CJ, whose judgment was the sole one delivered then,
did not react in so many words to the manner in which
Fannin J had
approached and treated the problem.  What he in turn said
instead follows:
1
4
“
Manifestly
the presumption created by the section cannot be invoked merely by
averring negligence, without anything more.  The
contesting
submissions of the parties centre around what additional averment or
proof is required of a plaintiff to entitle him to
call the
presumption in aid.  More specifically, the real enquiry is
whether or not the terms of the section embrace the duty
of care.
For defendant it was argued that, inasmuch as negligence is the
breach of a legal duty, no ‘question of negligence
arises’
unless and until the particular duty of care which a plaintiff claims
to have been breached is first established.
Counsel for the
plaintiff, on the other hand, submitted that both the duty of care
and the breach thereof fall within the ambit of
the section . . . .
I do not find it necessary for the decision of this appeal to pursue
counsel’s above-mentioned conflicting
submissions.  For .
. . the circumstances that the fire . . . was not shown to have been
started by any servant of the defendant,
or indeed by any human
agency, does not in my opinion by itself relieve the defendant of
responsibility for the damage sustained
by plaintiff.
Consequently, the latter’s averments of negligence in relation
to the fire which caused it damage, coupled
with proof that the fire
. . . emanated from (and also originated upon) landed property owned
and controlled by defendant, sufficed,
in my judgment, to bring the
case within the ambit of section 23.  The effect of this was
that the onus thereafter rested upon
defendant to show either that in
the particular circumstances harm to plaintiff was not, and could not
reasonably have been, foreseen
or, alternatively, that,
notwithstanding the exercise by him of such care as the circumstances
reasonably required, defendant could
not prevent the fire from
extending beyond the boundaries of its (
sic
)
property and occasioning harm to plaintiff.”
The somewhat
different ways in which the two
Quathlamba
judgments had handled section 23 were considered in three subsequent
cases.  Leon J expressed the opinion in
Titlestad
v Minister of Water Affairs
1
5
that the judgment of Fannin J had been “substantially upheld”
by Ogilvie Thompson CJ “with regard to the proper
interpretation of section 23".  So did Kannemeyer JP in
Louw
and Others v Long
.
1
6
Nestadt JA, on the other hand, took this contrary view in
Steenberg
v De Kaap Timber (Pty) Ltd
:
1
7
“
Ogilvie
Thompson CJ affirmed the principle that the presumption cannot be
invoked merely by averring negligence.   The
learned
Chief Justice did not, however, adopt the approach of Fannin J.
It was simply held that the additional element required
could be
satisfied by proof that the fire originated upon land owned and
controlled by the defendant.”
[54]
I am not sure about the correct classification of the enquiry into
when and how “the question of
negligence . . . arises”,
whether the ascertainment of that depends at its heart on the
interpretation of those words or, as
Ogilvie Thompson CJ seems to
have considered, on their judicial application in each case to its
own particular facts.  Neither
Quathlamba
judgment, one then notices, went beyond the facts of that matter by
indicating what circumstances, apart from the defendant’s
ownership and control of the land from which the fire had come, would
or might augment the bare allegation of negligence sufficiently
to
trigger the presumption and its consequence.  Nor am I aware of
any judicial pronouncement since then which has shed further
or fresh
light on the difficulties encountered elsewhere in determining how
the question of negligence could rightly be thought in
the past to
arise for the purposes of sections 26 and 23 and can truly be said to
do so now for those of section 84.  That problem
is obviously
not posed by the present case, seen in isolation.   For
here the defendant did own and control the land
from which the
fire spread to the plaintiff’s farm, with the result that both
Quathlamba
judgments hit him.  We are concerned in this investigation,
however, not with the application of the presumption to any
individual
matter, but in principle with its general operation.
Questions potentially relevant to our deliberations at that level are
whether, if the necessary process is one of interpretation, section
35(2)
1
8
requires us to construe section 84 restrictively on the aspect of it
scrutinised now and whether, if that is not the true area of
enquiry,
the circumstances setting the presumption in motion can and must be
defined more narrowly than they were by either Ogilvie
Thompson CJ or
Fannin J.  But those questions do not present themselves at this
stage.  They will become pertinent to our
decision only if and
when we conclude eventually that, with the effect attributed in the
Quathlamba
case to its precursor, the section is unconstitutional on the grounds
of the second objection to it which the defendant has lodged.
[55]
Something must next be said generally about the onus of proof in
civil actions, and especially about
its location there, so that we
may then proceed to focus within that field on the import of section
84.  Wigmore wrote in his
treatise on
Evidence
:
1
9
“
The
characteristic . . . of this burden of proof  (in the sense of a
risk of nonpersuasion)  in legal controversies is that
the law
divides the process into stages and apportions definitely to each
party the specific facts which will in turn fall to him
as the
prerequisites of obtaining action in his favor by the tribunal.
It is this apportionment which forms the important element
of
controversy for legal purposes.  Each party wishes to know of
what facts he has the risk of nonpersuasion.  By what
considerations is this apportionment determined?  Is there any
single principle or rule which will solve all cases and afford
a
general test for ascertaining the incidence of this risk?  By no
means.  It is often said that the burden is upon the
party
having in form the affirmative allegation.  But this is not an
invariable test, nor even always a significant circumstance;
the
burden is often on one who has a negative assertion to prove . . . .
It is sometimes said that it is upon the party
to whose case
the fact is essential.  This is correct enough, but it merely
advances the inquiry one step; we must then ask
whether there is any
general principle which determines to what party’s case a fact
is essential.  Still another consideration
has often been
advanced as a special test for solving a limited class of cases, ie
the burden of  proving a fact is said to
be put on the party who
presumably has peculiar means of knowledge enabling him to prove its
falsity if it is false . . . .
But this consideration furnishes
no universal working rule . . . .  This consideration, after
all, merely takes its place among
other considerations of fairness
and experience as a most important one to be kept in mind in
apportioning the burden of proof in
a specific case.
The
truth is that there is not and cannot be any one general solvent for
all cases.  It is merely a question of policy and fairness
based
on experience in the different situations
.
. . .   There is . . . no one principle, or set of
harmonious principles, which afford a sure and universal test for the
solution of a given class of cases.  The logic of the situation
does not demand such a test; it would be useless to attempt
to
discover or to invent one; and the state of the law does not justify
us in saying that it has accepted any.
There
are merely specific rules for specific classes of cases, resting for
their ultimate basis upon broad reasons of experience and
fairness
.”
I have quoted
at length from the book because the state of affairs existing in
South Africa echoes exactly, in all its force and resonance,
that
description of the American one.  Our common law likewise
contains no comprehensive rule on the onus of proof in civil
proceedings which is inflexibly free from exceptions.  Here too
the onus does not always lie upon the plaintiff asserting a
claim
but, on issues peculiar to the nature of the case, is sometimes borne
by the defendant in his or her resistance to that.
One thinks,
for instance, of the issues raised when self-defence is pleaded in
answer to a claim for damages suffered as the result
of an assault,
when a contract admitted or proved is said in an action for its
enforcement to have been cancelled or novated, when
some special
defence is presented as a means of escape from liability on a bill of
exchange, and when a host of other situations
arise in which
confessions and avoidances are familiar. Hoffmann and Zeffertt have
discussed the topic in their
South
African Law of Evidence
,
2
0
furnishing further examples of an onus placed on the defendant in
this country and commenting on the lack of any general theory or
policy to account for that site of it which seems logical, coherent
and consistent.  It is therefore no surprise to see that
the
sentences in earlier editions of Wigmore’s work which are
matched by the parts of my excerpt from the current one appearing
in
italics have been reproduced or paraphrased with approval by judges
of our Appellate Division, the first passage in
Mabaso
v Felix
2
1
and the second in
Pillay
v Krishna and Another
2
2
and
Nydoo
en Andere v Vengtas
.
2
3
[56]
In our adversarial system of civil litigation one side or the other
has to bear the onus of proof.
Differentiation between the
parties in that regard is thus inevitable.  So is the
disadvantage under which the side carrying
the load often labours.
Its location for specific issues depends not on doctrinaire
considerations, but on wholly pragmatic
ones.  Veld, forest and
mountain fires are calamities with which our country is well
acquainted, and their consequences are
frequently disastrous.
In enacting section 84 Parliament evidently believed that the
defendants embroiled in the actions which
it defined were shown by
experience to be better placed than the plaintiffs suing them, by and
large, for investigations into and
the ascertainment of the causes,
origins and progress of such fires when they occurred  beyond
the strict  supervision
inside  fire  control
areas  that  was planned.  The position of the same
defendants was apparently thought
in addition to be distinguishable,
on the whole, from that occupied by other defendants opposing
delictual claims, the general run
of those in the first place and the
particular group in the second who were blamed for fires that had
started on or emanated from
land lying within fire control areas.
For no comparably peculiar knowledge or sources of information about
the detailed causation
of the harmful incidents resulting in the
litigation could realistically be imputed, as a rule, to so vast and
amorphous a category
of defendants as the first lot.  That goes
without saying, given the infinite variety of circumstances relevant
to the suits
brought against them.  Nor, when it came to the
second category of defendants, would a
prima
facie
responsibility imposed upon them have been warranted in the
conditions prevailing throughout the controlled areas, where fire
protection
schemes operated, where measures devised to prevent
conflagrations and their spread were in force, and where compliance
with those
was both compulsory and verifiable.  That is a
situation quite unlike the sort encountered elsewhere in which
individual landowners
are largely left to take their own precautions
and they alone know what has or has not been done in that
connection.
We may agree or disagree, as we prefer, with
the generality of those beliefs or with the way in which effect was
given to them.
But the assessment was one falling well within
the zone of an essentially legislative judgment.  I can find no
substance whatsoever
in the suggestion that the reaction of
Parliament to the scene which it saw was either unfair or irrational
once that is viewed in
the light of the
Quathlamba
decisions.  It follows,  in my opinion,  that on this
leg of the course the defendant has fallen at the first hurdle.
[57]
Two questions which my judgment leaves open, and a couple of
possibilities occurring to me that it does
not dismiss, will be
mentioned in conclusion.  The first question concerns the
relationship between our constitutional provisions
proclaiming the
right to equality before and the equal protection of the law on the
one hand and prohibiting unfair discrimination
on the other.
2
4
It is whether the prohibition forms a corollary to the right which
amplifies that or an independent and self-contained provision.
2
5
The second question asks whether the criterion of rationality suits
the right alone while the one of fairness fits only the
prohibition,
or whether both criteria are apt for each.  Neither question
needs to be decided for the time being, since the
defendant’s
case must fail irrespective of the true answer to it.  I have
accordingly tried to express myself in a manner
which avoids
suggesting a definite stance taken yet on either point.  The
possibilities to which I have referred, merely hypothetical
ones at
present, are these.  The right to equality and the prohibition
against unfair discrimination may well have an impact
on the civil
onus of proof in the highly imaginary situation where a class of
litigants is generally saddled with or freed from the
burden on
account of their personal identities, and with no regard to the
exigencies of any particular litigation or to the equipment
for such
of those persons or institutions.  A civil onus may also be
vulnerable to attack outside the perimeters of that right
and
prohibition, and on grounds laid elsewhere by the bill of rights,
2
6
once its incidence impedes the enforcement or defence of any other
right entrenched there.  Neither possibility is elevated
by this
case, however, to a real one.  To expatiate on either is
therefore unnecessary now.
[58]
In the result I concur in the grant of the order which Ackermann J,
O’Regan J and Sachs J propose
in their joint judgment, the
final draft of which I have read since writing this one of mine.
The two judgments differ sometimes
in their approach to the issues
canvassed, in their emphasis and in the extent to which they
elaborate on their reasoning, but not
otherwise as far as I can see.
The clearest difference is visible where I have felt able to reach a
confident conclusion on
the second part of the case without analysing
in similar detail either the concepts of equality and
non-discrimination or their constitutional
interaction.  I do
not dissent, however, from the opinions which my colleagues have
expressed on those points.  And I had
better add, since nothing
has yet been said by me  about the referral, that I share the
view of that taken by them.
For the applicant
:
Mr D Mills, instructed by Gildenhuys van der Merwe Inc.
For the first respondent
:
No
appearance.
For the second
respondent:
Mr JP Vorster, instructed
by the State Attorney, Pretoria.
[1]
Part VI of the Act deals with these issues.
[2]
Section 24.
[3]
Sections 75(7) and (8).
[4]
Section 75(2)(b).
[5]
Section 75(8)(f).
[6]
Which provides the following:

If, in any matter before a provincial or
local division of the Supreme Court, there is an issue which may be
decisive for the case,
and which falls within the exclusive
jurisdiction of the Constitutional Court in terms of section 98(2)
and (3), the provincial
or local division concerned shall, if it
considers it to be in the interest of justice to do so, refer such
matter to the Constitutional
Court for its decision . . .

[7]
When the matter was referred to this Court, the
Minister of Water Affairs and Forestry, acting in terms of section
102(10) of the
interim Constitution, intervened as second
respondent, in order to defend the validity of section 84 of the
Act.
[8]
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 59;
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 8;
Bernstein and Others v Bester and
Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996
(4) BCLR 449
(CC) at para 2;
Luitingh
v Minister of Defence
[1996] ZACC 5
;
1996 (2) SA 909
(CC);
1996 (4) BCLR 581
(CC) at paras 4-6.
[9]
Id at para 9.
[10]
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at
para 10.
[11]
1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA).
[12]
Supra n 8.
[13]
As contained in annexure

B

to the referral judgement entitled:

Formulering
Van Geskilpunt En Redes Vir Verwysing

.
[14]
1996 (3) BCLR 384
(O) at 390E-G.
[15]
The English text is the signed copy.
[16]
Other than this assertion, no evidence was placed
before the Court to support this contention.
[17]
See the majority judgment in
Ferreira
v Levin
supra n 8 at paras 165-6.
[18]
Ferreira v Levin
supra
n 8 at para 131;
Bernstein v Bester NNO
supra n 8 at para 49.
[19]
Hoffmann and Zeffertt
The
South African Law of Evidence
4 ed
(Butterworths, Durban 1988) at 551.
[20]
Union Government (Minister of Railways) v
Sykes
1913 AD 156
at 173-4.  See
also Hoffmann and Zeffert  id at 512.
[21]
Hogg
Constitutional
Law of Canada
3 ed (Carswell, Ontario
1992) at para 52.6(b).
[22]
A phrase used by Didcott J in
S
v Ntuli
[1995] ZACC 14
;
1996 (1) SA 1207
(CC);
1996
(1) BCLR 141
(CC) at para 19.
[23]
Nowak and Rotunda
Constitutional
Law
5 ed (West Publishing Co., St.
Paul, Minnesota 1995) at 362.
[24]
Supra n 10 at paras 34-9.
[25]
Id at para 39 per O

Regan
J, a judgment concurred in by all the members of the Court.
[26]
Id at para 40.  The preamble to the interim
Constitution underlines the need for this approach.
[27]
Supra n 22 at para 18 per Didcott J for the
Court.
[28]
Sunstein

Naked
Preferences and the Constitution

84
Columbia Law Review
1689
(1984).
[29]
See Tribe
American
Constitutional Law
(Foundation Press
Inc., Mineola 1988) at 1451.
[30]
Van Dijk and Van Hoof
Theory
and Practice of the European Convention on Human Rights
2 ed (Kluwer, Deventer 1990) at 539.
[31]
Mureinik

A
Bridge to Where? Introducing the Interim Bill of Rights

(1994) 10
SA Journal
of Human Rights
31 at 32, cited in
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA
391
(CC);
1995 (6) BCLR 665
(CC) at para 156 n 1.
[32]
See
S v Makwanyane
id at paras 262 and 328-30.
[33]
Taking Rights Seriously
(Harvard University Press, Cambridge, Mass 1977) at 227.
[34]
Case No CCT 11/96, in which judgment is being
delivered simultaneously with this judgment, at para 41.
[35]
(1995) 29 CRR (2d) 79 at 104-5, internal
footnotes omitted.
[36]
Supra n 34 at para 41.
[37]
See para 41 infra.
[38]
1981 (3) SA 865 (A).
[39]
Id at 872G-H.
[40]
S v Zuma
supra n
11 at para 33 quoting
Woolmington v
Director of Public Prosecutions
[1935] UKHL 1
;
(1935)
AC 462
(HL) at 481.
[41]
Pillay v Krishna and Another
1946 AD 946
at 954.
[42]
Sections 18 to 23.
[43]
Sections 75(7) and (8).
[44]
See section 24.
[45]
Quathlamba (Pty.) Ltd. v Minister of Forestry
1972 (2) SA 783
(N) at 788B-D.
1
Since the case was argued here the interim Constitution
has been
repealed and replaced by the final one (Act 108 of 1996).
Paragraph 17 of schedule 6 to that, as read with its section
241,
ordains that (a)ll  proceedings which were pending
before a court when the new Constitution (ie the final
one)
took effect, must be disposed of as if the new Constitution
had not been enacted, unless the interests of justice
require
otherwise.
2
Section 35(3)(h) of the final Constitution is expressed
in
substantially the same terms and its meaning appears to be
identical.
3
See
New Union Goldfields Ltd v Commissioner for Inland Revenue
1950(3) SA 392 (A) at 406C-H;
Whitla v Standerton Town Council
1952(3) SA 567 (T) at 571G-572A;
Santam Versekeringsmaatskappy
Bpk v Kemp
1971(3) SA 305 (A) at 320H;
S v Moroney
1978(4) SA 389 (A) at 407H-408G;
Mpisi v
Trebble
1994(2) SA 136 (A) at 142I-143D.
4
That accounted for the limited order issued, for
instance, in
Ferreira  v Levin NO
and Others; Vryenhoek and Others v Powell NO and Others:
para 157: 1996(1) SA 984 (CC) at 1079D-G; 1996(1) BCLR 1 (CC) at
94G-95A.
5
Its counterpart in the final Constitution is section
9.
6
1996(1) SA 1218 (CC); 1996(2) BCLR 155 (CC).
7
1996(1) SA 1207 (CC); 1996(1) BCLR 141 (CC).
8
1996(4) SA 197 (CC); 1996(6) BCLR 752 (CC).
9
1997 (2) BCLR 153
(CC).
10
1963(4) SA 285 (C) at 295A-B.
11
1972(2) SA 783 (N) at 788E-F
.
12
at 788F-789A.
13
1973(3) SA 69 (A).
14
at 84C-H.
15
1974(3) SA 810 (N) at 814B-C.
16
1990(3) SA 45 (E) at 54H-I.
17
1992(2) SA 169 (A) at 174I-J.
18
See para 48 above.
19
Chadbourn revision: vol IX, para 2486 at 287-92.  The American
spelling used
in the text has been retained in this extract taken
from it.  All the footnotes and their numbers listed in the
text have
been omitted. The italics are mine.
20
4th edition at 509-13
.
21
1981(3) SA 865 (A) at 873B-D.
22
1946 AD 946
at 953-4.
23
1965(1) SA 1 (A) at 21H-22A.
24
The interim Constitution catered for the right in section 8(1)
and
for the prohibition in section 8(2).  That textual pattern has
been repeated in the final Constitution, which attends
to the right
in section 9(1) and to the prohibition in sections 9(3) and 9(4).
25
The same question was raised but not decided in
S v Ntuli
:
see footnote 7 above: para 18 at 1214D
in the first report cited there and at 150F-G in the second
one.
26
That is a reference to Chapter 3 of the interim Constitution and
Chapter 2 of the
final one, viewed     in turn.