29 Judgment No. CCZ 2/18 Constitutional Application No. CCZ 86/15 In America, the right to equal protection of the law is found in the Fourteenth Amendment to the United States Constitution under section 1. Among other things, the section provides that no State in America shall deny to any person within its jurisdiction the equal protection of the laws. As far back as 1897 the United States Supreme Court in the case of Gulf, Colorado & Santa Fe Ry. Co. v Ellis 165 U.S. 150 (1897) held that equal protection of the laws means subjection to equal laws applying alike to all in the same situation. In 1910 the same court in Southern Railway Co. v Greene, 216 U.S. 400 (1910) made the point that while reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed. Classification cannot be arbitrarily made without any substantial basis. Arbitrary selection cannot be justified by calling it classification. Currie & de Waal: ”The Bill of Rights Handbook” 6 ed Juta at p 218 explain that classification of people for purposes of legislation does not violate the right to equal protection when it is based on reasonable grounds. The learned authors state as follows: “The equality right does not prevent the State from making classifications and from treating some people differently to others. This is because the principle of equality does not require everyone to be treated the same, but simply that people in the same position from a moral point of view should be treated the same. Laws may therefore classify people and treat them differently to other people for a variety of legitimate reasons. Indeed, laws almost inevitably differentiate between persons. It is impossible to regulate the affairs of the inhabitants in a country without differentiation and without classifications that treat people differently and that impact on people differently. Not every differentiation can therefore amount to unequal treatment. If it did, the courts could be called on to review almost the entire legislative programme.” (my emphasis) In Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) the Constitutional Court of South Africa explained that mere differentiation without a rational relationship to the legislative