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The content and justification of rationality review 43
were upheld as rational. 25
The rationality principle is also applied as a minimum standard to the
conduct of the executive branch of the state. In the Pharmaceutical
Manufacturers case, 26 it was held:
It is a requirement of the rule of law that the exercise of public power by the
executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise they
are in effect arbitrary and inconsistent with this requirement. It follows that in
order to pass constitutional scrutiny the exercise of public power by the
executive and other functionaries must, at least, comply with this
requirement. If it does not it falls short of the standards demanded by our
Constitution for such action. The question whether a decision is rationally
related to the purpose for which the power was given calls for an objective
enquiry. 27
This formulation makes it clear that no exercise of public power by the executive
or other functionaries (presumably including ‘organs of state’ under section
239 of the Constitution and perhaps private bodies performing public
functions) is beyond rationality review by the courts. The source of the court’s
power in this regard is said to be the constitutional principle of legality, which is
justified by the broader value of the rule of law, and has been held to require
that public powers should not be misconstrued and should be exercised
rationally and in good faith. 28
Accordingly, in Pharmaceutical Manufacturers it was held that a
presidential proclamation specifying the commencement date for national
legislation dealing with human and animal medicines was irrational, because
it provided for the statute to come into force before various schedules of
substances and regulations essential for its operation had been made.
Although the proclamation was made in good faith, itwas arbitrary and, for
that reason, was declared invalid. 29 Similarly, in Kruger v President of South
24
the reasons that move legislators, especially in multi-stage legislative processes that include
a series of collective decisions, embroils judges too deeply in the exercise of legislative
power. The better approach is to apply the rationality principle only to the content of legislation,
not to prior decisions to enact that legislation taken by legislators during the legislative
process. Fortunately, the Constitutional Court seems recently to have adopted this view
in Poverty Alleviation Network (n 2 above) paras 72 - 73. But that judgment does not
disapprove or even discuss the different approach taken in Merafong. So it would
seem that there are now two conflicting approaches to the same question in the law
reports.
25
I discuss the challenge to the content of the Act below at 16 & 26.
26 n 2 above.
27 Pharmaceutical Manufacturers (n 2 above) paras 85 - 86.
28
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 1 SA
374 (CC) paras 56 - 58; President of South Africa v South African Rugby Football Union 2000
1 SA 1 (CC) para 148; Pharmaceutical Manufacturers (n 2 above) above para 85; Albutt
(n 2 above) para 49.
29 Pharmaceutical Manufacturers (n 2 above) para 94.