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48 Chapter 2
level of abstraction 50 and then determine whether, at that level of
abstraction, it is legitimate. Finally, as mentioned, the vagueness of the
requirement that the law serve its purpose sufficiently well to be ‘rationally
connected’ to it often involves judicial choice, because it is unclear how, or
how well, the law is required to serve its purpose.
This ‘malleability’ 51 of rationality review – the fact that the application
of the rationality principle often involves the exercise of judicial discretion –
stands in tension with its second general feature, namely, the court’s frequent
statements that rationality review does not involve an assessment of the
reasonableness of legislation, 52 nor its political merits or demerits, 53 nor the
making of policy choices, 54 nor the substitution of the court’s opinions as to
what is correct or appropriate for the opinions of the legislature or executive
as the case may be. 55 These statements reflect the courts’ general duty to
respect the competence and political autonomy of other branches of the state.
It is sometimes referred to as the requirement that the courts do not ‘secondguess’
legislative and executive choices. 56
These observations raise several important questions. First, how does
an assessment of the rationality of law or conduct differ from an
assessment of its reasonableness? Secondly, how can the discretionary
character of rationality review be reconciled with the courts’ duty to respect
the autonomy of the political branches of the state? And thirdly, is the
courts’ frequent claim that rationality review is justified by the rule of law
defensible? Any adequate explanation of the content and justification of
rationality review must address these questions.
3 Reasonableness, rationality and arbitrariness
Before we can consider whether rationality review is justified, we need a
firmer grasp of its nature. That depends in part on contrasting the
constitutional standard of rationality with the related notions of
reasonableness and arbitrariness. In this part, I attempt to shed some light
on these distinctions in a way that explains the courts’ duty, introduced
above, not to ‘second guess’ the choices of the political branches of the state
when applying the rationality principle, as well as the different ways in
50
Eg, when applying the rationality principle to the presumption of negligence in Prinsloo
(n 2 above), if the court had set that law’s purpose too abstractly (eg to serve the
common good) or too specifically (eg to presume the negligence of neighbouring
landowners in respect of forest fires), then rationality review would have become futile.
51 Bishop (n 5 above) 26.
52 New National Party (n 2 above) para 24.
53
Merafong (n 22 above) para 63.
54 Jooste (n 13 above) para 17.
55 Pharmaceutical Manufacturers (n 2 above) para 90; Bel Porto (n 13 above) para 45; Kaunda (n
32 above) para 79; and Merafong (n 22 above) para 63.
56 See, eg, Merafong (n 22 above) paras 114, 171 and Bishop (n 5 above) 9.