The content and justification of rationality review

• Pages: 346-381
• Published date: 01 January 2010
• Date: 01 January 2010
• Author: Alistair Price
• DOI: 10.10520/EJC153240

The content and justification of rationality

review

Alistair Price

*

1Introduction

It is a general principle of South African constitutional law that every law and every

exercise of public power should not be arbitrary but, instead, should be rational.

1

This

principle, developed by the Constitutional Court in a series of judgments,

2

sets

rationality or non-arbitrariness as a necessary condition that every law or act of all

branches and spheres of the state must satisfy in order to be legally valid. It operates

as a minimum standard – a constitutional baseline – that applies even in

circumstances where no fundamental right or other constitutional standard is directly

applicable. By developing this principle, the courts have asserted a significant power,

for they are now able to assess, on substantive grounds, the rationality of every

provision in the statute book and all conduct of the executive, public administration,

and other organs of state.They do so, in general, by deciding whether the law or

*

BBusSc LLB (UCT) BCL (Oxon). Research student, Gonville and Caius College, Cambridge

University. I am very grateful to Michael Bishop, Coel Kirkby, Hannah Woolaver, and the participants

at a seminar on 2009-07-06 at the South African Institute for Advanced Constitutional, Public,

Human Rights and International Law, Johannesburg, for their comments on an earlier draft of this

essay. Any errors are mine alone.

1

Throughout this essay, I refer to this general prohibition on arbitrariness as the ‘rationality principle’

and describe its application by the courts as ‘rationality review’.

2

S v Makwanyane 1995 3 SA 391 (CC) para 156; Prinsloo v Van der Linde 1997 3 SA 1012 (CC)

para 24; New National Party v Government of South Africa 1999 3 SA 191 (CC) paras 19 and 24;

Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa

2000 2 SA 674 (CC) paras 85 and 90; United Democratic Movement v President of South Africa (No

2) 2003 1 SA 495 (CC) para 55; and Affordable Medicines Trust v Minister of Health 2006 3 SA 247

(CC) paras 74-79; Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4 para

49; Poverty Alleviation Network v President of South Africa [2010] ZACC 5 para 65; Law Society of

South Africa v Minister for Transport [2010] ZACC 25 paras 32-39; and Glenister v President of

South Africa [2011] ZACC 6 paras 55-70. For a comparative analysis of Poverty Alleviation Network

and Albutt, see Price ‘Rationality review of legislation and executive decisions’ (2010) 127 SALJ 580-

591. Due to time and spatial constraints, I have been unable to include a discussion of Law Society

of South Africa and Glenister. Fortunately, the reasoning and outcome of those decisions is

consistent with, and in many respects confirms, the arguments advanced below.

The content and justification of rationality review 347

conduct in question is rationally connected to a legitimate government purpose.

3

If

that minimum standard is not met, the law or conduct is unconstitutional. The courts

have held that this power is justified by the rule of law which, by virtue of s 1(c) of the

Constitution, is a founding value of South African law.

4

Without doubt, the uniquely

broad applicability of this rationality principle, and its apparently foundational nature

as an entailment of the rule of law, underline the importance of a sound grasp of its

content and justification.

Michael Bishop has written an insightful and provocative essay exploring

rationality review only as it applies to legislative differentiations between classes of

persons in terms of section 9(1) of the Constitution.

5

For our courts apply that

provision by invalidating legislative differentiations that are irrational or arbitrary.

6

Bishop’s argument has two legs: the first critical; the second constructive. He argues

that the structure of rationality review, and perhaps also the manner in which it has

been applied, ensure that it cannot serve its traditional justifications. He then

proposes an additional justification for the rationality principle, as well as a new

structure for its application, which together, he claims, ‘save’ rationality review. What

follows here is an attempt, in a spirit of collaboration, to evaluate Bishop’s argument.

I do so indirectly, by offering an alternative account of the content and justification of

rationality review that is both broader and narrower than his. It is broader because I

consider rationality review of legislation and exercises of public power generally, not

only of differentiations in terms of section 9(1). It seems to me that this broad

applicability, together with the courts’ view that rationality review is justified by the rule

of law, call for a wider analysis. My account is narrower because it focuses solely on

South African law, whereas Bishop compares rationality review in South Africa and

the United States and draws conclusions that seem to apply equally to both countries.

I am hesitant to follow Bishop down the comparative road for two reasons.

First, rational basis review under the US equal protection clause

7

applies to many

legislative differentiations that in South Africa are tested against the more rigorous

prohibition on unfair discrimination in terms of section 9(3) of the Constitution.

8

For

example, differentiations on grounds of sexual orientation, age, or HIV-status

3

The content of the rationality principle is analysed more closely below, from 7.

4

See, eg, Prinsloo (n 2) para 25; City Council of Pretoria v Walker 1998 2 SA 363 (CC) para 137;

New National Party (n 2) para 24; Pharmaceutical Manufacturers (n 2) para 85; Albutt (n 2) para 49;

and Poverty Alleviation Network (n 2) para 65.

5

Bishop ‘Rationality is dead! Long live rationality! Saving rational basis review’ (2010) 25 SAPL 312.

Section 9(1) provides that ‘Everyone is equal before the law and has the right to equal protection and

benefit of the law.’ Bishop suggests (3) that his conclusions may apply beyond the context of s 9(1).

6

This rule was first established in Prinsloo (n 2) para 24.

7

The relevant part of the Fourteenth Amendment to the US Constitution provides that ‘No State shall

… deny to any person within its jurisdiction the equal protection of the laws’.

8

Section 9(3) provides that ‘The state may not unfairly discriminate directly or indirectly against anyone

on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,

colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’.

(2010) 25 SAPL348

need merely be rational in the United States,

9

whereas South African courts

assess whether they constitute unfair discrimination. Some of the academic

disapproval of rational basis review in the United States may be partly motivated

by the relative ease with which such differentiations are upheld as constitutional,

because rational, in that country. In South Africa, by contrast, the broader reach

and higher standard of the prohibition on unfair discrimination ensure that many

of these differentiations will not survive constitutional scrutiny, whether or not they

satisfy the rationality principle. Accordingly, rationality review arguably has costs

in the United States that it does not incur in South Africa. Secondly, the

justification of rationality review depends to a significant extent on the manner in

which its evaluative and vague elements are applied by judges in particular cases.

But it is by no means clear that since 1994 South African judges have applied the

rationality principle in a manner identical to US judges. Whatever the record of the

US courts may be, we need not accept Bishop’s claim that the South African

Constitutional Court is guilty of applying the rationality principle in an inappropriate

way. For these two reasons, we should be hesitant to tar rationality review in both

legal systems with the same critical brush.

Having explained the difference between the scope of my account of rationality

review and Bishop’s, I now outline the argument that follows. Part 2 surveys the

different contexts in which the rationality principle applies. I then analyse its content,

drawing attention to some of its characteristics – in particular, the fact that its

application often requires courts to make discretionary judgments – which call for

further explanation and justification. Part 3 takes the first step by analysing the

distinction between reasonableness and rationality in constitutional law. It then

explains the court’s duty to respect, or not to ‘second-guess’, the political autonomy

of the executive and legislature, as well as the idea that judicial scrutiny can vary in

intensity. This part concludes by briefly considering the notion of arbitrariness.

Having explained the content of the rationality principle, I turn to its justification. Part

4 advances some reasons for believing that rationality review is justified in principle,

relying prominently on the idea that its discretionary character is part of its value. Part

5 argues that rationality review is justified in practice, because the Constitutional

Court has, on the whole, applied the rationality principle sensibly. My ultimate

conclusion, then, is that rationality review does not need to be saved.

2 The content of rationality review

2.1 Contexts in which the constitutional principle of rationality

is applicable

The first category of cases in which the rationality principle is applied are those

addressing whether legislative differentiations between classes of persons comply

9

See, for a classic account, Tribe American constitutional law (1988) (2

nd

ed) ch 16.