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54 Chapter 2
to facilitate public involvement in the legislative process; 72 to decide
whether an official in the public administration has complied with the right
to just administrative action and PAJA; 73 and so forth.
But why does the rationality principle apply as a general baseline while
the standard of reasonableness applies in a more restricted fashion?
Here is an answer. On the one hand, the principle of comity obliges
courts to respect the decisions of the political branches of the state in all
circumstances. Usually, only the relatively deferential standard of rationality
is compatible with this ever present duty. 74 On the other hand, certain laws
and state conduct trigger vital individual and collective interests in a way that
calls for special attention. The most obvious examples are those acts and laws
that threaten or limit fundamental rights. The higher reasonableness standard
is appropriate in these circumstances because the engaged interests are of such
normative importance that they partially offset the courts’ countervailing duty
to respect the political autonomy of the executive and legislature. This duty
is never totally outweighed, though, as is reflected in the distinction the law
draws between judging acts as reasonable and judging acts as justified or
correct. 75
The second form of variability of judicial scrutiny of law and conduct is
within the standards of review. This is obvious in the case of reasonableness, as
different factors of variable weight must be assessed in different contexts. The
greater the potential or actual adverse effects of the law or conduct in question,
the stronger the required countervailing reasons militating in its favour. This
variability was expressly recognised by O’Regan J in Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs. 76
Less well recognised, however, and more subtle is variability within
rationality review. To recall, that principle requires that the law or conduct
in question, once appropriately specified, first have an appropriate purpose
(the purpose requirement) and, secondly, serve that purpose sufficiently well
in order to be ‘rationally connected’ to it (the effect requirement). The wide
variety of circumstances to which this test applies, the discretion its application
involves, and the courts’ duty to apply it in a manner that respects the
autonomy of the political branches of the state inevitably, and rightly, call
for a degree of variability.
72
Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC) paras 118 -
129, 204; Matatiele Municipality v President of South Africa 2007 6 SA 477 (CC) paras 36 - 40,
45.
73
Bato Star Fishing (n 34 above) para 44.
74 This is exactly the point that Bishop (n 5 above) questions in general. I have already
explained why the claim that rationality review is compatible with the principle of
comity is intelligible. I argue that that claim is justified below, from 58.
75 Note that sec 36 empowers courts to determine whether limitations to rights are
‘reasonable and justifiable’ (my emphasis), not justified. The distinction, albeit a fine
one, is important.
76 Bato Star (n 34 above) para 45.