Narrowing the Band: Reasonableness Review in Administrative Justice and Socio-Economic Rights Jurisprudence in South Africa

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 639-663
• Date: 16 August 2019
• Author: Geo Quinot
• Citation: (2011) 22 Stell LR 639

639

NARROWING THE BAND: REASONABLENESS

REVIEW IN ADMINISTRATIVE JUSTICE AND

SOCIO-ECONOMIC RIGHTS JURISPRUDENCE

IN SOUTH AFRICA

Geo Quinot

BA LLB LLM LLD

Professor, Stellenbosch University

Sandra Liebenberg

BA LLB LLM LLD

HF Oppenheimer Chair in Human Rights Law, Stellenbosch University*

1 Introduction

The evolution of reasonableness as a standard of rev iew has been one

of the most signicant developments i n both socio-economic rights and

administ rative justice ju risprudence in South Afr ica under t he Constitution

of the Re public of Sout h Af rica, 1996 (“the Constitution”). However, the

relationship between the development of reasonableness in these t wo a reas

of law has not received much attention and they remain seemingly distinct

developments. At the same time, our cour ts’ reasonableness model of judicial

review for socio-economic r ights has been va riously criticised and praised as

one premised on an admin istrative-law conception of review.1 That is meant

to convey a model that is relatively process orientat ed and pays lit tle regard

to developing the substance of the normative content and obligations imposed

by socio-economic rights. Critics thus argue that such an admin istrative-

law reasonableness model of review is il l-suited for socio-economic rights

adjudication.2

But reasonableness is also arg ued to hold distinct advantages as a standa rd

of constitutional review over more “absolutist” methods of interpreting rights.

* Our tha nks to the participa nts at the L aw and Poverty Colloquium for responses to the paper and in

particu lar to Katie Young and Petr us Maree for valuable c omments on an earl ier draft

1 See, generally, CR S unstein “Soc ial and Econom ic Rights? Lesso ns from South Africa” (2000 -2001) 11

Constitut ional Foru m 123; D Brand “ The Proc eduralisation of Sout h Afric an Socio-E conomic R ights

Jurispr udence, or ‘What are Soc io-Economic Right s for?’” in H Botha, AJ van der Walt & J van der Walt

(eds) Rights and Demo cracy in a Transforma tive Const itution (20 04) 33; DM D avis “Adjudicating the

Socio-Econom ic Rights in the South Afr ican Constitut ion: Towards ‘Deference Lite’?” (2006) 23 SAJHR

301 See also S Liebenber g Socio-Eco nomic Rights: Adjudication under a Transformative Constitution

(2010) 173

2 See Brand “Procedu ralisation” in Rig hts and Democrac y 51-56; Liebenberg Socio-Econ omic Rights 173

(2011) 22 Stell LR 639

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Sadurski3 ide nties two such a dvantages. First, reasonableness review

promotes greater tr ansparency in legal reasoning4 in that t he competing

value and policy considerations at stake, a nd the method and choices made in

weighing them are openly acknowledged and set out in the reasoning. Second,

reasonableness as a standa rd in judicial review is “consensus- orientated” in

that it acknowledges that valid constit utional considerations and argume nts

are frequently made by both pa rties, and judicial review in the context of

constitutional rights seeks to attain as far as possible to reconcile and

accommodate compet ing values and interests.5 Della Cananea p oints out that

a reasonableness standard dif fers f rom a more rigid rule-based st andard “in

the sense that it escapes a ny all-or-nothing logic”:

“It instead makes it necessary to carefully weigh and balance all the circumstances in a case and all

matters of fact and law. Which means that the kind of judicial review the principle involves goes well

beyond the traditional review by which to determine legality.”6

This concept ion of reasonableness review avoids nor mative closure and is

capable of stimulating deliberative democracy both in court and in the broader

public sphere.7 It supports a dynam ic concept of law, whe re law is responsive

to changing circumstances and socio-political contexts. Sadu rski obs erves t hat

reasonableness involves a continuum or band between weak reasonableness

aimed at the exclusion of man ifestly unfair or irrational cons equences,8 and

reasonableness in the st rong sense of a proportionality analysis.9

3 W Sadurski “Reasonableness and Value Pluralism in Law and Politics” in G Bongiovanni, G Sartor & C

Valentini (eds) Reasona bleness and Law (20 09) 129 145-146 He describ es reasonablene ss review as follows:

“By showing all the ‘ing redients’ of his/he r reasoning, a judge conduc ting the proport ionality analysis

indicates that the final conclusion is not a result of a mechanica l calculus: a syllogism in which the

conclusion necessar ily follows from the premises, but r ather t he outcom e result s from a complex,

practical reason ing, in whi ch significa nt but often mutually com peting values have to be c onsidered

in thei r actua l social context… [P]ro portionalit y analysis is more conducive to critical analysis and

dissection of its elements than the ‘absolutist’ analy sis which focuse s on one cons titutional r ight and

on a thorough exa mination of its mea ning ” (139)

4 On the signific ance of promoting trans parency of legal processes and legal re asoning for the project

of transfo rmative const itutionalism and deepen ing democra tic culture , see K Kl are “Legal C ulture an d

Transformat ive Constitutiona lism” (1998) 14 SAJHR 14 6 170-171

5 This concept of reasonablenes s fa cilitates the relationa l, d ialogic and fluid notion of constit utional

rights and j udicial r eview develo ped by scholars such as Jenn ifer Nedel sky “Re conceiving Rights as

Relationship” (1993) 1 Rev o f Consti tutional Studies 1; and Henk Botha “Metaphoric Reasoning and

Transformat ive Constitutiona lism” (2003) TSAR 20

6 G della Ca nanea “Rea sonableness in Admin istrative Law” in G Bongiovan ni, G S artor & C Valentini

(eds) Reasonablene ss and Law (2009) 299 307

7 See Liebenberg Socio -Economic Rights 163-186

8 Sadurski descr ibes this stand ard of review as “safety valve” re asonableness and poi nts out its connection

with the s tandard laid down for the r eview of admi nistrative de cisions in Asso ciated Provinc ial Picture

Houses v Wednesb ury Corporati on[1948] 1 KB 223 See Sadurski “ Reasonableness” i n Reasonableness

and Law 131-132

9 Reasonableness in th e strong sense involves t wo primary st ages of inquiry:

Stage 1: The identification of the aim o r purpose of a given measu re, and an a ssessment of it s nature

and import ance

Stage 2: A three -tiered propor tionality test , posing the following qu estions:

a) Ar e the means adopte d “suitable” or “reaso nably and demonstr ably justified” ?

b) Do the means adopted limit the constitut ional r ights in t he leas t rest rictive way (the “least

restrict ive means test”)?

c) Do the advantages of accomplishing the purpose outweigh the disadvantages and costs of restricting

the specif ic constitutio nal right – “costs an d benefits” ana lysis (proport ionality sens u stricto)

Sadurski “Reason ableness” in Reaso nableness and L aw 133-134 See the simila r, but not iden tical

formulation u nder s 36 of the Constit ution

640 STELL LR 2011 3

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