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CHAPTER
2
THE CONTENT AND
JUSTIFICATION OF
RATIONALITY REVIEW
Alistair Price*
1 Introduction
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 conduct in
* 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 6 July 2009 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 & 24; Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of
South Africa 2000 2 SA 674 (CC) paras 85 & 90; United Democratic Movement v President of
South Africa (No 2) 2003 1 SA 495 (CC) para 55; 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 A 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.
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