Where a court is asked to set aside legislation on the grounds that it breaches the principle of legality because the law is not rationally connected to the legitimate government purpose for which it is passed, the threshold is low. The connection must not be arbitrary but the law can be based on a reason that does not have to be the most efficient or the only reason. Where there is a limitation of rights in the law, the question is whether there is an acceptable reason for the limitation.

In this case the National Society for Prevention of Cruelty to Animals challenged the law relating to private prosecutions which only allows private prosecutions to be brought by a ‘private person’ and not a juristic person such as the Society. The Society wants to bring private prosecutions for acts of cruelty to animals in its own name.

The regulation of private prosecutions is a legitimate government purpose. Private prosecutions in terms of section 7 of the Criminal Procedure Act are permitted on grounds of direct infringement of human dignity. This is the reason for excluding juristic persons (other than the prosecuting authorities).

Human dignity is a foundational value of our Constitution but a juristic person does not have a right to protection of human dignity. Therefore, section 7(1)(a) of the Criminal Procedure Act was held not to be unconstitutional.

People are always declaring that laws are unconstitutional and it is worth bearing in mind the test before getting too emphatic.

The case is National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development.