SELECTIVE ENFORCEMENT OF LEGISLATION BY THE BUREAUCRACY – IS IT PERMISSIBLE?

We live in a country where a government agency is frequently, due to inadequate resources, unable to enforce the legislation controlled by it, against those contravening such legislation.

Consequently, many businesses and persons who operate outside the law more or less with impunity. Unlicensed businesses continue to thrive, unlicensed taxi vehicles patrol the streets, rates and taxes are not collected. In short, many transgressors of the law go unpunished, because law enforcement agencies are under-resourced.

So where does that leave the people (sometimes few in number) who are prosecuted, fined or otherwise punished when the bureaucrats who catch up with them? Is it not unfair to enforce the law against some, but not others?

This interesting conundrum faced the Gauteng High Court in the matter of Quick Drink Company (Pty) Ltd & Others v Medicine Control Council & Others. The Medicine Control Council had seized a large consignment of electronic cigarettes imported by Quick Drink, on the grounds that they contained nicotine, a scheduled medicine. The evidence before the court established that electronic cigarettes were widely available in South Africa, and that many other importers and distributors of electronic cigarettes went unpunished. The Medicine Control Council averred that it faced capacity constraints that prevented it from going after others.

The court held that selective enforcement of legislation is constitutional only if it were rational or rationally connected to a legitimate government purpose. If the target of selective enforcement shows, in court proceedings, that it was being treated differently from other identical offenders, the discrimination would be unfair in the absence of proof of rational connection between the targeting and some legitimate government purpose. The failure by the Medical Control Council to explain why it was Quick Drink that was targeted, and not other offenders, was in the court’s view of decisive importance. In giving judgment, the court said the following: “Where resources are limited it may be unreasonable to expect every potential defaulter to face the might of the law. Under such circumstances the law may then be enforced in an unequal and possibly haphazard manner and I cannot imagine that it would be open to someone to challenge such an act of enforcement on that basis alone… It would, however, be a different matter when, beyond being unequally enforced, the law is enforced in a selective manner and where no rational basis for the selectivity exists. Selectivity must be an option open to law-enforcement agencies. There may be many viable reasons why a law is selectively enforced – the selection may enhance the efficacy of the system or the selection may be justified by the availability of resources. Accordingly, even though the concept of selective enforcement may appear to be at odds with the values of equality, there may well be cogent justification for it and it would appear to me that, given that rationality is a part of the rule of law, selective enforcement would pass constitutional muster when it is rational. If this were not the case it would be open to law-enforcement agencies, who carry both enormous power as well as responsibility in applying and enforcing the law, to do so irrationally and to the prejudice of those affected. In this case it would have been known to the first respondent [the Medicine Control Council] that there were many importers, manufacturers, wholesalers and distributors of e-cigarettes in the South African market, most of whom were already doing business in the public retail space. If those businesses represent a group, then it is indeed inexplicable why enforcement was chosen in respect of only one business within that group.”

The court accordingly set aside the seizure of the consignment of e-cigarettes from Quick Drink, pending the outcome of further litigation in which the final review and setting aside of the seizure would be decided.

The case perhaps provides useful grounds upon which businesses and individuals can defend themselves against unequal and irrational treatment by the bureaucracy.

Compiled by: Annerine du Plessis

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)