Michael Weare and Another v Mr Joel Sibusisio Ndebele NO and Others

Michael Weare, a natural person, held a bookmaking licence in KwaZulu-Natal and operated "The Betting Shop". In 2001, he accepted a position as managing director of Betting World (Pty) Ltd, a juristic person operating bookmaking businesses in all South African provinces except KwaZulu-Natal. The parties concluded agreements whereby Betting World would provide managers for Weare's business and potentially purchase it, subject to legislative change permitting juristic persons to hold bookmaking licences in KwaZulu-Natal. Section 22(5) of the KwaZulu-Natal Regulation of Racing and Betting Ordinance 28 of 1957 prohibited juristic persons from holding bookmaking licences in the province—only natural persons could do so. When the expected legislative change did not occur by December 2002, the sale agreement lapsed. In 2006, disciplinary proceedings were initiated against Weare for potentially contravening the Ordinance. The applicants challenged section 22(5) in the Pietermaritzburg High Court, which declared it unconstitutional for violating sections 9(1) and 9(3) of the Constitution.

• Whether the invalidation of a provincial ordinance requires confirmation by the Constitutional Court
• Whether juristic persons can be bearers of the right to equality under section 9 of the Constitution
• Whether section 22(5) of the Ordinance violates section 9(1) by creating an irrational differentiation between natural and juristic persons
• Whether section 22(5) creates an irrational differentiation between partnerships and other business entities
• Whether section 22(5) creates an irrational differentiation between natural persons in KwaZulu-Natal and other provinces
• Whether section 22(5) constitutes unfair discrimination under section 9(3) of the Constitution

The appeal was upheld. The Constitutional Court declined to confirm the High Court's order of unconstitutionality made on 29 February 2008, and set aside that order. The applicants' application for condonation for late filing was granted. The third respondent's application for condonation was refused. There was no order as to costs in either the High Court or the Constitutional Court.

Provincial ordinances that have been amended or incorporated by reference by a provincial legislature after 1994 constitute "provincial Acts" for purposes of sections 167(5) and 172(2)(a) of the Constitution, requiring Constitutional Court confirmation of orders of invalidity. A legislative differentiation violates section 9(1) only if it is not rationally connected to a legitimate government purpose—the test is not whether better alternatives exist, but whether the chosen means are rational rather than arbitrary or capricious. The fact that the executive is proposing legislative reform does not render existing legislation irrational. Differentiation between natural and juristic persons for regulatory purposes, based on the difficulty of holding juristic persons accountable due to separate legal personality and limited liability, is rationally connected to the legitimate purpose of regulating gambling. Differentiation between partnerships and juristic persons is rational given their different legal nature. Provincial legislative variation in areas of concurrent competence does not per se violate section 9(1).

The Court expressly left open the question of whether juristic persons can be bearers of rights under sections 9(1) and 9(3), assuming this in favor of the applicants for purposes of the judgment. Van der Westhuizen J noted it is "less easy to assume that juristic persons are bearers of the section 9(3) right than the right protected in section 9(1)" given that the core of section 9(3) is human dignity. The Court also left open whether ordinances that have not been amended or incorporated by provincial legislatures would require Constitutional Court confirmation, stating this was not necessary to decide. The judgment notes that section 9(3) unfair discrimination requires differentiation based on grounds that "have the potential to impact upon the fundamental dignity of human beings" or grounds listed in section 9(5), which was absent in this case. The Court declined to make a general ruling on past orders of constitutional invalidity regarding ordinances not referred to the Constitutional Court, noting parties may approach courts for relief in specific cases if injustice results.

This case is significant for establishing that provincial ordinances that have been amended or incorporated by post-1994 provincial legislatures should be treated as "provincial Acts" requiring Constitutional Court confirmation when declared invalid. The judgment clarifies the scope of sections 167(5) and 172(2)(a) of the Constitution. It also provides important guidance on the application of the rationality test under section 9(1), particularly regarding legislative timing and policy choices. The Court emphasized that courts should not substitute their views for legitimate legislative choices, and that proposed legislative reforms do not render existing legislation irrational. The decision reinforces the principle that concurrent legislative competences allow for provincial variation in regulation. The judgment also demonstrates judicial restraint in not imposing retrospective constitutional requirements on past court orders without full argument on the implications.