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42 Chapter 2
Since New National Party, the rationality principle has been applied to
statutes outside the context of sections 9(1) and 19 on several occasions. 18
In United Democratic Movement v President of South Africa (No 2), 19 the
Constitutional Court unanimously rejected an argument that a legislative
scheme permitting members of Parliament and the provincial legislatures to
change parties without losing their seats during prescribed periods was
arbitrary. The Court held that legislators’ motives when voting for legislation
were irrelevant to rationality review, 20 and that the scheme was rationally
connected to the legitimate purpose of allowing floor-crossing – a purpose
specifically contemplated by the Constitution itself. 21 In Merafong Demarcation
Forum v President of South Africa, 22 the Court applied the rationality
principle to those provisions of the Constitution Twelfth Amendment Act 23
that purported to alter provincial boundaries so that the Merafong City Local
Municipality, which initially lay partly in Gauteng and partly in the North West
province, would be located entirely within North West. Remarkably, all the
justices appeared to agree that it was appropriate to apply the rationality
principle, not only to the provisions of the Act, but also to the prior decision of
the Gauteng provincial legislature to approve the Bill, as part of the legislative
process in terms of sections 74(3)(b) and (8) of the Constitution. 24 Both
18 Further examples, in addition to those discussed in the text, are Affordable Medicines (n 2
above) paras 74 - 77, 96 - 100; Poverty Alleviation Network (n 2 above) paras 64 - 76; Law
Society of South Africa (n 2 above) paras 32 - 33; Glenister (n 2 above) paras 55 - 70.
19 n 2 above.
20
United Democratic Movement (n 2 above) para 56.
21 United Democratic Movement (n 2 above) paras 57-5 & 69 - 75. The enactment of floorcrossing
legislation is envisaged by item 23A(3) of Annexure A to Schedule 6 of the
Constitution.
22 2008 5 SA 171 (CC). Poverty Alleviation Network (n 2 above) concerned a rationality
23
24
challenge to very similar legislation and the Court followed its decision in Merafong.
Of 2005.
The dissenting justices, Moseneke DCJ, Madala and Sachs JJ, all agreed that the decision
of the provincial legislature was irrational, because it acted ‘without a proper appreciation of
its [Constitutional] powers and duties’ (para 124). Van der Westhuizen J doubted in his
joint-majority judgment whether this extension of rationality review was appropriate (paras
72 - 74), but nevertheless concurred with the joint-majority judgment of Ngcobo J, who
held that although it was generally undesirable for courts to speculate about what reasons
move legislators to enact laws, the decision of the Gauteng legislature in question was
different. It could appropriately be reviewed for rationality, because it was not ordinary
legislating and the record contained a committee report setting out some reasons for
supporting the Bill which the legislature ‘adopted’ by majority vote (paras 254 - 258).
This extension of rationality review is problematic, for two reasons. First, it is not merely
difficult, but impossible, to tell what reasons subjectively moved legislators to vote for or
against a Bill. As a collective body, there is no single set of reasons that subjectively moves all
the legislators when they vote. That is so even where, as here, the majority of the legislature
adopts a document setting out the reasons for a Bill which satisfied a legislative committee.
For the committee and the legislature are different bodies and legislators are not constrained
to follow the reasoning of committee members. This is borne out by Moseneke DCJ’s
observation (para 176) that there were four possible sources of reasons for the Gauteng
legislature’s decision to approve the Bill, which were not all consistent. What justified his
relying only on one source of reasons, while disregarding the others (para 176)? The
extension also appears to conflict with the unanimous ruling in United Democratic Movement
(n 2 above) that legislative motives are irrelevant to rationality review (para 56). Secondly, it
is impossible to conceive of some non-fictional, objective set of reasons that moved every
legislator in his or her legislative voting. It surely follows that empowering courts to review