Nyambirai v National Social Security Authority & Another 1996 (1) SA 636: Laws making provision for acquisition of property in satisfaction of tax or rate where that law is reasonably justifiable in a democratic society. Government , better placed than the judiciary to appreciate what was in the public interest. Three criteria used in test: legislative objective sufficiently important; self evident rational connection between the objective and the measures; means used impair rights no more than necessary.

The right not to have property compulsorily acquired is protected by s16(1) of the Constitution. Section 16(7) of the Constitution provided that the s16(1) right is not violated by laws making provision for acquisition of property in satisfaction of any tax or rate where that law is reasonably justifiable in a democratic society. The second respondent promulgated the Pensions and Other Benefits Scheme in which all working persons were required to contribute to the scheme. Applicant contended that his rights under s16(1) had been infringed.

Held as to the question as to whether the Scheme was in the public interest, that because government had superior knowledge and experience of society and its needs, and a familiarity with local conditions, it was in principle, better placed than the judiciary to appreciate what was in the public interest. In implementing social and economic policies a government’s assessment as to their needs was to be respected by the Courts: they would not intrude but would allow a wide margin of appreciation, unless convinced that the assessment was manifestly without reasonable foundation. This was not such a case.

Held as to whether the tax was reasonably justified in a democratic society, that an abridgment of a guaranteed right should not be arbitrary or excessive. The Court would consider three criteria: (1) whether the legislative objective was sufficiently important to justify limiting a fundamental right; (2) whether the measures designed to meet the legislative objective were rationally connected to it; and (3) whether the means used impaired the right or freedom no more than was necessary to accomplish the objective.

Held that the legislative objective of social security was sufficiently important to justify the imposition of the tax. There was a self evident rational connection between the objective and the measures employed to meet it. The means used impaired the right or freedom no more than was necessary to accomplish the objective.

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