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46 Chapter 2
purposes – for this version most clearly exemplifies the features of
rationality review which stand in particular need of explanation and
justification. In addition, since the other tests (the ‘peripheral cases’) share
some but not all the features of the central case, arguably they can only be
fully understood in the light of it.
2.3 The central case of rationality review
The precise meaning of the principle that law and exercises of public power
must be rationally connected to a legitimate governmental purpose is far
from clear. What follows is a constructive analysis or interpretation of this
principle which seeks to advance our understanding of it. The primary
source of confusion arises from the metaphorical requirement of a ‘rational
connection’ or ‘relationship’ between the law and a purpose. What is meant
by this? It seems to me that what rationality review calls for, at least in effect
if not at the level of legal doctrine, is a two-pronged assessment of (1) a law’s
purpose and (2) its actual or probable effect.
First, the purpose requirement: The court must decide whether the impugned
law is intended to serve at least one 42 legitimate purpose, for a law without a
legitimate purpose is irrational. This in turn requires judges both to discern the
purpose of a law and then to judge whether it is legitimate. Determining the
purpose of the law in question is often straightforward, because it raises
everyday questions of statutory interpretation and the respondent state can be
expected to submit to the court what it considers the relevant purpose to be. 43
It is less clear how judges are to decide whether that purpose, once discerned,
is ‘legitimate’. The Constitutional Court has not explicitly addressed the issue,
presumably because it has seldom proved contentious in practice. 44 Clearly an
evaluative judgement is called for. One approach is to hold that the court is
free to approve or disapprove of the purposes endorsed by the executive
and/or legislature by making an entirely open-ended value judgment. But it is
doubtful whether courts should make such unconstrained judgments. A
preferable alternative is to hold that a legal rule’s purpose is legitimate, under
the rationality principle, if and only if it is consistent with all other legal and
constitutional constraints, including the Bill of Rights and the Constitution’s
‘objective, normative value system’. 45
42 Both New National Party (n 2 above) para 24 and Merafong (n 22 above) para 63, eg, make
it clear that there need only be a single legitimate purpose.
43 If the applicant can advance plausible reasons casting doubt on the rationality of the
law or conduct, that is sufficient to oblige the state to explain why the law or conduct is in
fact rational, and where necessary, to provide evidence supporting this assertion. Bishop
(n 5 above) 33 - 34, argues that the courts should develop a legal rule placing a full onus
on the state to establish rationality. This step is probably unnecessary in practice, given
that the state will shoulder an explanatory and evidentiary burden as soon as the
applicant advances a prima facie case. This threshold requirement is also arguably
necessary to prevent vexatious and costly rationality review litigation.
44
A brief survey of the relevant case law, below at 24 - 25, suggests as much.
45 Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) paras 54 - 55.