Communication at the heart of which is whether the distinction that arose from the payment of pension benefits to the beneficiaries of the first and second privatisation schemes of the Venda Pension Fund, who respectively received 91% and 75% of their actuarial interests in the fund can be said to amount to a violation of Article 2 of the African Charter, taking into consideration all the circumstances of the case. 108. The Complainants have submitted that this distinction prejudiced the civil servants who took part in the second privatization scheme. According to them, the revised formula upon which the payments of the second privatization scheme was based, did not accurately reflect a member's actual and/ actuarial interest in the pension fund. The Respondent State on the other hand contends that the Complainants willingly participated in the privatization scheme in order to prevent prejudice to themselves upon the reintegration of Venda into South Africa and were part and parcel of the decision against which they are complaining, given that they were represented at all times in the negotiation process. The Respondent State maintains that the Complainants were not paid less than their calculated interest in the Funds 109. The Commission is therefore called upon to determine whether the Complainants in the circumstances were victims of discrimination in terms of Article 2 of the Charter. 110. To respond to this issue, it is imperative to examine what amounts to discrimination under the Charter and whether or not a distinction between categories of persons who are similarly placed amounts to a violation of Article 2 of the Charter. 111. Article 2 of the Charter provides as follows: [i]Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any other status.[i] 112. The Commission has defined discrimination in terms of Article 2 in Zimbabwe Lawyers for Human Rights & Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v Zimbabwe as:21 any act which aims at distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms. 113. The Commission has also established in Kenneth Good v Botswana22 the test to establish whether there has been discrimination. The Commission held in the above case that ''a violation of the principle of non-discrimination arises if: 1. equal cases are treated in a different manner; 2. a difference in treatment does not have an objective and reasonable justification; and 3. if there is no proportionality between the aim sought and the means employed'' .23 114. The Complainants have not substantiated how the conduct of the Respondent State restricted or excluded them from enjoying the rights guaranteed in the Charter; they only make reference to the distinction between civil servants who received 91% and 75% of their benefits under the first and second privatization schemes. They have also not shown that the distinction lacked an objective purpose or that it was disproportionate. 115. Furthermore, the Complainants have not established how their dignity as human beings was infringed on by the distinction, nor whether the grounds on which they were purportedly distinguished is one that is prohibited under the Charter. Their only contention is that the distinction materially affected them. The issue to be resolved is thus whether distinction/differentiation amounts to discrimination under the Charter? 116. In that regard, the Commission refers to the South African Constitutional Court ruling in Priceloo v Van der Linde,24 In regard to mere differentiation, the constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest naked preferences that serve no legitimate Government purpose, for that would be inconsistent with the rule of law and the fundamental premises of a constitutional state. 117. It follows that Article 2 of the Charter does not require all individuals in similar circumstances to be necessarily treated in the same manner, it permits the different treatment of people similarly placed if such treatment is meant to achieve a rational and legitimate purpose that does not impair the fundamental 12