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The content and justification of rationality review 45
administration’s acts, decisions and rules, this judicial power now extends
deeply into the legislative process 35 and executive domain. 36 The decision
as to whether a legislative or executive differentiation complies with
section 9(1) of the Constitution is but one of the many areas in which it is
applied. Moreover, in all these contexts, the courts frequently seek to justify
rationality review by appealing to the rule of law. 37
2.2 The various forms of rationality review
There are subtle variations in the content of the constitutional principle of
rationality. The ‘central case’, or exemplar, of rationality review is the test
applied to legislation in general, which requires that the impugned law
be rationally connected to a legitimate governmental purpose. 38 The test applied
to exercises of public power is slightly different: it requires that the
impugned act or decision be rationally related to the purpose for which the power
was given. 39
These tests are closely analogous to those under sections 6(2)(f)(ii)(aa),
(bb) and (dd) of PAJA, which respectively require that the impugned
administrative action bear a rational connection to the purpose ‘for which it
was taken’, the purpose ‘of the empowering provision’ and the ‘reasons for it
given by the administrator’. 40 Less closely analogous, however, is the fourth
rationality test under PAJA, namely the requirement that administrative
action be rationally connected to ‘the information before the administrator’
(section 6(2)(f)(ii)(cc)).
Notwithstanding the conceptual overlap and subtle differences between
these standards, the remainder of this essay focuses only on the constitutional
principle of rationality as developed by the Constitutional Court, 41 and
specifically on its central case – that is, the requirement that legislation and
executive conduct be rationally connected to legitimate government
35
See, eg, Merafong (n 22 above).
36 See, eg, Kaunda (n 32 above).
37 See, eg, the cases cited (n 4 above).
38
See, eg, Prinsloo (n 2 above) para 25; Harksen (n 13 above) para 53; Jooste (n 13 above) para
17; Van der Merwe (n 13 above) para 42; Weare (n 13 above) para 46.
39 Pharmaceutical Manufacturers (n 2 above) para 85. Albutt (n 2 above) illustrates that if a public
power was not given for any particular purpose, then its exercise must be rationally
connected to the purpose which the defendant intended to serve by invoking it (provided, of
course, that that purpose is ‘legitimate’): in other words, the central case test is applied. In that
case, the President sought to exercise his power to pardon criminals under sec 84(2)(j) of the
Constitution specifically in order to promote national unity and reconciliation; accordingly,
the manner in which he exercised it had to be rationally related to those purposes.
40
Presumably, if the ‘purpose for which it was taken’ or the ‘reasons given for it by the
administrator’ are different to the ‘purpose of the empowering provision’, then the
court will also have to decide whether the administrative action was based on ‘an
ulterior purpose or motive’ or ‘reason not authorised by the empowering provision’ in
terms of sec 6(2)(e)(i) and (ii).
41 I do not assess rationality review cases under PAJA and sec 33 of the Constitution. A full
assessment of the rationality review of ‘administrative action’ calls for a far wider study
of High Court and Supreme Court of Appeal judgments which is not undertaken here.