The equality challenge The plaintiff’s challenge to the regulations is based on both art (10(10 and 10(2) of the Constitution. Art 10 provides: and freedom from discrimination ‘Equality All persons shall be equal before the law. No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.’ As has been made clear by the Supreme Court, the tests to be applied in determining whether there is discrimination under the two sub-articles differ. As was succinctly stated in Muller, with reference to an earlier matter: 10, and more particularly subart (1), was only once before the subject of ‘Article interpretation. The case to which I refer is Mwellie v Minister of Works, Transport and Communication and Another 1995 (9) BCLR 1118 (NmH). The approach of a Court to the article was set out as follows (at 1132E - H): . . article 10(1) . . . is not absolute but . . . it permits reasonable “. classifications are rationally connected to a legitimate object and that the content of the right to equal protection takes cognizance of ''intelligible differentia'' and allows provision therefor”. In regard to subart (2) the Court stated the following: far as art 10(2) is concerned it prohibits discrimination on the “As grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status. Apart from the provisions of art 23 any classification made on the grounds enumerated by the sub-article will either be prohibited or be subject to strict scrutiny. For purposes of the present case I need not decide the issue.”’ The Supreme Court in Muller proceeded to summarise the test in respect of each sub-article as follows: Article 10(1) ‘(a) The questioned legislation would be unconstitutional if it allows for differentiation between people or categories of people and that differentiation is not based on a rational connection to a legitimate purpose. (See case at 1132E Mwellie's supra
The equality challenge The plaintiff’s challenge to the regulations is based on both art (10(10 and 10(2) of the Constitution. Art 10 provides: ‘Equality and freedom from discrimination All persons shall be equal before the law. No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.’ As has been made clear by the Supreme Court, the tests to be applied in determining whether there is discrimination under the two sub-articles differ. As was succinctly stated in Muller, with reference to an earlier matter: ‘Article 10, and more particularly subart (1), was only once before the subject of interpretation. The case to which I refer is Mwellie v Minister of Works, Transport and Communication and Another 1995 (9) BCLR 1118 (NmH). The approach of a Court to the article was set out as follows (at 1132E - H): “. . . article 10(1) . . . is not absolute but . . . it permits reasonable classifications are rationally connected to a legitimate object and that the content of the right to equal protection takes cognizance of ''intelligible differentia'' and allows provision therefor”. In regard to subart (2) the Court stated the following: “As far as art 10(2) is concerned it prohibits discrimination on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status. Apart from the provisions of art 23 any classification made on the grounds enumerated by the sub-article will either be prohibited or be subject to strict scrutiny. For purposes of the present case I need not decide the issue.”’ The Supreme Court in Muller proceeded to summarise the test in respect of each sub-article as follows: ‘(a) Article 10(1) The questioned legislation would be unconstitutional if it allows for differentiation between people or categories of people and that differentiation is not based on a rational connection to a legitimate purpose. (See Mwellie's case supra at 1132E