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The content and justification of rationality review 47
This approach constrains judges to deciding only questions of law (Is this
purpose unconstitutional? Is this purpose otherwise unlawful?), and clearly
rules out certain purposes (eg unfairly discriminatory purposes and criminal
purposes). Where government purposes are otherwise constitutional and
lawful, courts should be loath to declare them ‘illegitimate’ under the
rationality principle.
Secondly, the effect requirement: If the law indeed has a legitimate purpose,
the court must then decide whether the law serves that purpose sufficiently well
to merit the description of bearing a ‘rational connection’ or ‘relationship’ to
it. It should immediately be apparent how vague the effect requirement is,
because it specifies neither how, nor how well, the law in question should serve
its purpose. Nevertheless, we may observe the following. A law intended to
serve a legitimate end is undoubtedly arbitrary if it fails to serve that end at all.
For example, the presidential proclamation in Kruger, 46 which purported to
amend and update the Road Accident Fund Act, was plainly intended to serve
important ends, but failed to do so because it inadvertently referred to the
incorrect sections of that Act. In contrast, a law will satisfy the effect
requirement if it achieves its end symbolically (ie has intrinsic value), or if it is a
means that tends to bring about its end as a matter of empirical causality (ie
has instrumental value). 47 An example of the former is a legal rule obliging
radio stations to play a minimum number of hours of South African music
every week, which is rational because it symbolically achieves the legitimate
end of supporting and promoting South African culture. An example of the
latter is provided by Prinsloo, 48 where the Court effectively approved the state’s
empirical assumption that the presumption that landowners outside firecontrolled
areas are negligent in respect of fires spreading from their property
was likely to alter their behaviour in a way that would reduce the risk of fires.
So, in sum, the rationality principle effectively requires courts to apply
an evaluative purpose requirement and a vague effect requirement. This analysis brings
into sharp relief the fact that it often demands discretionary judgment. As
Bishop has explained in detail, 49 there are at least three ways in which judges
exercise discretion when applying the rationality principle. First, judges have
freedom to choose whether to assess the challenged legal rule in isolation or
as part of a broader legislative scheme. This is significant, for a rule
considered in isolation may seem arbitrary or purposeless and yet constitute
a vital cog in a larger legislative machine. For example, the presumption of
negligence in Prinsloo was arguably intelligible only within the broader
context of a scheme designed to reduce the risk of forest fires. Secondly,
deciding whether a law has a legitimate purpose necessarily requires
evaluative judgment, for the court must both specify the purpose at a meaningful
46
n 30 above.
47 Of course, a law will satisfy the effect requirement if it has both intrinsic and
instrumental value.
48
n 2 above.
49 Bishop in Woolman & Bilchitz (n 5 above) 10 - 25.