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38 Chapter 2
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 section 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.
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
3 The content of the rationality principle is analysed more closely below, from 7.
4 See, eg, Prinsloo (n 2 above) para 25; City Council of Pretoria v Walker 1998 2 SA 363 (CC)
para 137; New National Party (n 2 above) para 24; Pharmaceutical Manufacturers (n 2 above)
para 85; Albutt (n 2 above) para 49; and Poverty Alleviation Network (n 2 above) para 65.
5 M Bishop ‘Rationality is dead! Long live rationality! Saving rational basis review’ in
S Woolman & D Bilchitz (eds) Is this seat taken? Conversations at the Bar, the bench and the
academy about the South African Constitution (2012) 1. Sec 9(1) provides that ‘[e]veryone is
equal before the law and has the right to equal protection and benefit of the law’. Bishop
suggests that his conclusions may apply beyond the context of sec 9(1).
6 This rule was first established in Prinsloo (n 2 above) para 24.
7 The relevant part of the Fourteenth Amendment to the US Constitution provides that
‘[n]o state shall … deny to any person within its jurisdiction the equal protection of the
laws’.