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

Section 22(5) of the KwaZulu-Natal Regulation of Racing and Betting Ordinance 28 of 1957 permitted only natural persons, and not juristic persons, to hold bookmaker’s licences in KwaZulu-Natal. In all other provinces, juristic persons were allowed to hold such licences. The first applicant, a licensed bookmaker in KwaZulu-Natal, entered into agreements with the second applicant, a company operating as a bookmaker in the other eight provinces, including a conditional sale agreement dependent on legislative change permitting juristic persons to be licensed in KwaZulu-Natal. The legislative change did not occur and the agreement lapsed. Disciplinary proceedings were later threatened against the applicants for allegedly contravening the Ordinance. The applicants challenged the constitutionality of section 22(5) in the High Court, which declared it unconstitutional for violating the equality clause. The matter came before the Constitutional Court for confirmation of that order.

The order of constitutional invalidity made by the High Court declaring section 22(5) of the KwaZulu-Natal Regulation of Racing and Betting Ordinance 28 of 1957 unconstitutional was confirmed. Section 22(5) was declared inconsistent with section 9(1) of the Constitution and invalid.

The case is significant for confirming that juristic persons are bearers of the right to equality under section 9(1) of the Constitution and that irrational legislative differentiation affecting them is unconstitutional. It also clarified that provincial ordinances are subject to the Constitutional Court’s confirmation jurisdiction when declared invalid, thereby reinforcing institutional comity and the Court’s supervisory role in constitutional adjudication.