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The content and justification of rationality review 55
Hence, in what may roughly be labelled ‘political’ contexts, when
courts assess the rationality of decisions lying close to the heart of executive
power (for example those concerning foreign relations, national security,
economic policy, and so forth), the court is bound to exercise considerable
deference when deciding whether the purpose of the decision is legitimate
and whether the decision is likely to serve that purpose. In such contexts, the
considerations of democratic principle and institutional competence are
particularly pressing and consequently oblige the court to pay a higher degree
of respect to the empirical and normative judgments of the executive. This
extra respect should be reflected in the way the court exercises its
discretionary judgment, 77 when specifying the law or conduct in question
more or less widely, discerning and evaluating its purpose at a narrower or
wider level of abstraction, and choosing how well the law or conduct ought
to have served that purpose – how ‘closely connected’ to its end it should
have been. By contrast, in less ‘political’ contexts – that is, in cases where
the considerations of institutional competence and democratic principle
are less weighty 78 – the courts need not tread as lightly when evaluating the
purpose and effect of the law or conduct in question. 79 Of course, the
distinction between these cases and more ‘political’ cases is one of degree
and a matter of difficult, discretionary judgment for experienced judges.
3.4 Upholding the distinction between reasonableness and
rationality
There is a second way in which rationality review could conceivably vary in
intensity, which would lead to the distinction between rationality and
reasonableness breaking down and becoming one of degree rather than kind.
To recall, the rationality principle requires only a single legitimate rationale
supporting the law or conduct in question, notwithstanding the presence or
absence of other reasons for or against it. Such a rationale is present whenever
the law or conduct serves a legitimate governmental purpose. Harmful side
77 Discussed above, in sec 2.3. For further elaboration of this point, see Price (n 2 above),
which differentiates between ‘timid’ and ‘assertive’ instances of rationality view.
78
An example is Van der Merwe (n 13 above), where the Court declared irrational a
statutory rule which prohibited persons married in community of property (but not
persons married out of community of property) from suing their spouse in delict for
‘patrimonial damages’. The rule was an historical anomaly. At common law, spouses
married in community of property originally could not sue one another in delict
because they jointly owned all their property. Later, legislation came to recognise
separate property falling outside the joint estate and accordingly permitted inter-spouse
delictual claims, but only for non-patrimonial damages. The law thus came to permit
persons married in community of property to sue their spouse only for non-patrimonial
damages, but permitted persons married out of community of property to sue their
spouses for both patrimonial and non-patrimonial damages. The Court unanimously
held that this differentiation served no legitimate purpose, given that legislation had
since recognised the possibility of spouses married in community
79 The Constitutional Court already seems to accept this: see Poverty Alleviation Network (n 2
above) para 74, where Nkabinde J recently held for a unanimous Court that judicial
intervention on the basis of rationality ‘should be guided by the principle of separation
of powers’.