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56 Chapter 2
effects, possible alternative laws or acts, and other countervailing
considerations are not relevant under rationality review. Nevertheless, one can
readily imagine a court relaxing this approach by taking into account a
particularly notable reason against the law or conduct, and deciding whether
that reason is outweighed by any legitimate purpose that the law or conduct
serves.
The unfortunate scenario facing the Constitutional Court in Merafong
provides an example. 80 One of the issues in that case was the rationality of
the provisions of the Constitution Twelfth Amendment Act that purported to
alter various provincial boundaries so that the Merafong City Local
Municipality, which initially lay partly in Gauteng and partly in the North
West province, would be located entirely within North West. It was agreed
that abolishing cross-border municipalities in order to facilitate efficient local
government service delivery was a legitimate purpose in general, and the
majority held that the provisions in question served that purpose and
therefore were rational. 81 In doing so, however, the Court treated as irrelevant
the Merafong community’s burning desire, expressed with passion and
occasional violence, to be located in Gauteng. That desire was clearly a
powerful reason for Merafong to be put in Gauteng rather than North West, an
avenue that would equally have abolished the pre-existing cross-boundary
municipality. 82 We can imagine a different court, moved by the plight of the
Merafong community, deciding to take this factor into account under
rationality review. In doing so, the court would have to weigh it against the
purpose of locating Merafong in North West. But that would be a step in the
direction of reasonableness review, for the wider the range of factors a court
takes into consideration, the more closely the test comes to resemble one of
reasonableness.
So one can readily imagine a spectrum: at the end of full-blown
reasonableness, courts take into account all relevant considerations; at the
opposite end of bare rationality, courts search only for a single legitimate
rationale for the law or act, ignoring all other considerations. An approach
that took into account the feelings of the Merafong people would lie
somewhere in between. This illustrates how the distinction between rationality
and reasonableness could become one of degree if the courts chose to depart
from bare rationality by taking countervailing considerations into account.
80 n 22 above.
81
Merafong (n 22 above) paras 110 - 115.
82 That the various legislatures saw fit, at the time, to ignore the deeply-held wishes of the
Merafong people is what made the case so difficult and may, from a ‘legal realist’
perspective, provide a plausible explanation for the minority’s unprecedented
willingness to declare irrational the decision of the Gauteng provincial legislature to
approve the Bill in question in terms of secs 74(3)(b) and (8) of the Constitution, thereby
extending rationality review deeply into the legislative process. See the discussion above
(n 24 above).