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44 Chapter 2
Africa, 30 a presidential proclamation of amendments to the Road Accident
Fund Act 31 was invalidated on grounds of irrationality, because it mistakenly
purported to amend a random selection of that Act’s provisions. Perhaps the
most striking extension of rationality review into the executive domain is the
suggestion in Kaunda v President of South Africa 32 that the courts are empowered
to review foreign policy decisions regarding requests for diplomatic protection
and to set them aside if they are irrational. Finally, the Constitutional
Court recently held in Albutt v President of South Africa that a procedural right
to be heard can, on occasion, be based on the principle of rationality: The
Court declared irrational the President’s refusal to hear victims of crimes
committed by persons applying for a presidential pardon on the ground that
they had acted with a political motive. 33
Rationality is also an important requirement of administrative law. In
terms of section 33 of the Constitution, all administrative action must be
reasonable, and rationality is a necessary (but usually insufficient) condition
for reasonableness. 34
In addition, section 6(2)(f)(ii) of the Promotion of Administrative Justice
Act (PAJA) provides that courts are empowered to set aside an
administrative act if it is:
not rationally connected to –
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering decision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator.
Section 6(2)(e)(vi) provides for review of administrative action taken
‘arbitrarily or capriciously’ (although it is difficult to imagine an irrational
administrative decision that would not also be arbitrary, and vice versa).
But PAJA applies only to ‘administrative action’ as defined in
section 1. In contrast, the constitutional principle of rationality, based on the
principle of legality and the right to equality before law, applies far more
widely. Stretching beyond the courts’ traditional scrutiny of the
30 2009 1 SA 417 (CC).
31
Act 56 of 1996.
32 2005 4 SA 235 (CC) paras 77 - 80.
33 Albutt (n 2 above). When exercising public power, a procedural duty hear will be owed
under rationality review where affording a hearing is necessary (ie ‘the only rational
means’: paras 69, 90) to serve the legitimate purpose of the power. In this case, the
Court held that hearings were necessary for the impugned pardons process to serve its
professed purposes of promoting national unity and reconciliation. For further analysis
of this decision, see Price (n 2 above).
34 C Hoexter Administrative law in South Africa (2007) 307, citing the use by O’Regan J of the
formula ‘reasonableness or rationality’ in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs 2004 4 SA 490 (CC) para 43.