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The content and justification of rationality review 51
less frequently. To my mind, a profitable interpretation of that distinction
is this. Whereas a law or act is reasonable if the reasons for it defeat the reasons
against it, that law or act is merely rational if, notwithstanding the reasons against
it, there is at least one reason or rationale for it. 63 The distinction is clear:
Whereas an evaluation of the reasonableness of a law or act calls for an
assessment of the competing considerations for and against it, an evaluation
of its constitutional rationality calls only for the identification of one
rationale in its favour. In the courts’ idiom, all that is required is that the law
or act be rationally connected to one legitimate purpose. To recall, that will
be the case if and only if the law or act is both intended to serve a legitimate
end (the purpose requirement), and does serve that end to some extent (the
effect requirement), whether symbolically (where the law or act has
intrinsic value) and/or by tending to bring about its end as a matter of
causality (where it has instrumental value). This analysis, in turn, entails
that the range of rational laws and acts in a particular context will be wider
than the range of reasonable laws and acts. For many laws and acts which,
on balance of the competing reasons, are unreasonable will nevertheless
be rational because a legitimate rationale in their favour can be identified
within the balance of competing considerations. In other words, the latitude
that the courts grant to the political branches to make rational
decisions is far wider than the latitude they grant to make reasonable
decisions.
3.2 The principle of comity
This explanation of the difference between reasonableness and rationality has
two implications. The first is that it helps us to understand the duty of
courts, when applying the rationality principle, not to ‘second-guess’ the
wisdom of the legislature and executive. This, it will be recalled, is
convenient shorthand for various judicial statements to the effect that
rationality review does not concern the political merits or demerits of the law
or conduct in question, nor does it involve the making of policy choices, nor
the substitution of the court’s opinions as to what is correct or appropriate
for the opinions of the relevant political branch of the state. 64 These dicta are, of
course, a reflection of the general principle – which we may refer to as the
‘principle of comity’ – that the courts ought to respect the views of the legislature
and executive, which in turn is justified by the considerations of
institutional competence and democratic principle discussed above. It applies
whenever the courts scrutinise law or state conduct, and requires that they
adhere to their proper role within the constitutional scheme of the separation
63 I want to emphasise that my intention, here, is to attempt to advance a clear and
constructive explanation of the rationality/reasonableness distinction in South African
constitutional law that is tolerably faithful to the reasoning and decisions of the courts.
It is not my view that courts should jettison the current test for rationality in favour of
some kind of ‘one-reason-for’ test. For an account of the nature of ‘reasons for action’,
see generally Gardner & Macklem (n 57 above).
64 See the judgments cited above (n 52 - 56 above).