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The content and justification of rationality review 41
law was not arbitrary and thus did not violate the right to equality before the
law.
After Prinsloo, the rationality principle has consistently been applied to
challenges in terms of section 9(1) to differentiating legislation or policy. 13
In New National Party v Government of South Africa, however, the
Constitutional Court extended its scope by holding, in effect, that all
legislative schemes must bear a rational relationship’ to ‘the achievement of
a legitimate government purpose’ and that Parliament ‘cannot act
capriciously or arbitrarily’. 14 In that case, a political party challenged
provisions in the Electoral Act 15 which required possession of a bar- coded
ID document to register as a voter and to vote. Writing for the majority,
Yacoob J drew a distinction between rationality and reasonableness as
standards of review of legislative schemes, holding that the former was the
appropriate standard in the light of the separation of powers, and was
justified because arbitrariness is contrary to the rule of law; the latter was
relevant only to whether a violation of the right to vote under section 19 of
the Constitution was justified in terms of section 36. 16 He then held that
the provisions were neither arbitrary nor capricious, because they were
rationally related to the legitimate government purpose of ensuring the
effective, efficient and reliable exercise of the right to vote. 17
13 The most important decisions are Prinsloo (n 2 above); Harksen v Lane NO 1998 1 SA 300
(CC); Walker (n 4 above); Jooste v Score Supermarket Trading (Pty) Ltd 1999 2 SA 1 (CC); Bel
Porto School Governing Body v Premier of the Western Cape 2002 3 SA 265 (CC); Van der
Merwe v Road Accident Fund 2006 4 SA 230 (CC); Union of Refugee Women v Director,
Private Security Industry Regulatory Authority 2007 4 SA 395 (CC); Nyathi v Gauteng MEC
of Health 2008 5 SA 94 (CC); Weare v Ndebele NO 2009 1 SA 600 (CC). S v Ntuli 1996 1
SA 1207 (CC), which was decided before Prinsloo, is not a genuine example of
rationality review. There it was held that legislation requiring that unrepresented prisoners
acquire a certificate from a High Court judge in order to appeal their Magistrate’s
Court convictions in the High Court violated the right to a fair trial under sec 25(3)(h)
of the interim Constitution and the right to equality before the law under sec 8(1). The
thrust of the Court’s reasoning was that, unlike the leave to appeal procedure in the
superior courts, the certification procedure was unsystematic, haphazard and over-broad,
because it was not statutorily guided and was conducted by unrepresented persons. The
consequent danger that meritorious appeals would not be heard violated sec 25(3)(h).
Sec 8(1) was also violated because the violation of sec 25(3)(h) affected only one class of
convicted persons, but not all. However, the Court certainly did not consider whether
the violation of the fair trial rights of some prisoners but not of others was rationally
connected to a legitimate government purpose!
14
n 2 above, para 19.
15 Act 73 of 1998.
16 n 2 above, para 24. In a dissenting judgment, O’Regan J held at para 122 that
reasonableness, not rationality, was the appropriate standard to be applied in the
context of the right to vote.
17 New National Party (n 2 above) paras 26 & 48. It is difficult to avoid the conclusion that,
despite clearly distinguishing between the requirement of rationality (under the rule of
law) and the right to vote, the majority nevertheless conflated these separate
requirements when applying the law to facts. Yacoob J effectively held that the right to
vote was not limited because the law was rational. But even if the requirement to possess a
bar-coded ID was rational, why did it not nevertheless at least limit the right to vote of
those unable to obtain a bar-coded ID? They were prevented from voting. Such a
limitation, of course, would have required independent justification under sec 36 at the
standard of reasonableness.