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The content and justification of rationality review 57
Yet it is clear that the courts, when applying the rationality principle to
laws and executive conduct, 83 have not expressly adopted a ‘spectrum’
approach to constitutional rationality review – according to which judges
move closer to and further away from a full reasonableness standard
depending on the context. Nor does it appear that they have implicitly or
effectively done so. This should be welcomed. Adopting a ‘spectrum’
approach to reasonableness and rationality would make it very difficult to
predict what degree of scrutiny is to apply in future cases, and would make
it easier for courts to violate the principle of comity by straying beyond
their appropriate constitutional role. Nevertheless, it is highly likely that
applicants in rationality review cases will try to persuade judges to move in
this direction, whether expressly or merely in effect. So we should be aware
of both the temptation for courts to take this step, as well as the risk that they
might do so implicitly or unconsciously. In my view, if the Constitutional
Court ever decides that bare rationality is too deferential a standard for a
particular context, it should instead openly discuss and decide whether a
change to a more rigorous standard of review is justified in the
circumstances. 84
3.5 Arbitrariness
The final issue to be briefly explored in this part is the notion of arbitrariness
in the context of rationality review. Although arbitrariness is a difficult
concept which has had various, shifting senses in South African law at
different times and in different contexts, 85 its meaning as employed by
courts engaged in rationality review is reasonably clear. Endicott defines
arbitrariness in its ‘ordinary pejorative sense’ as follows: ‘an unjustified act,
a capricious or despotic act that calls for – and lacks – some justification
other than the fact that the actor willed it and did it’. 86 On this
interpretation, an arbitrary act is simply an unjustified act. That cannot be
what arbitrariness means in the context of rationality review in South
African constitutional law. Instead, in this latter context, arbitrariness is
identical to irrationality. A law or act is irrational or arbitrary simply if it
fails to serve a legitimate government purpose.
83
I leave open the question whether the courts have adopted a ‘spectrum’ approach to
rationality and reasonableness when reviewing ordinary administrative action in terms
of PAJA or sec 33 of the Constitution. On this, see the sources cited above (n 34
above).
84 See, eg, the dissenting judgment of O’Regan J in New National Party (n 2 above) para
122.
85
Eg, F Michelman observes in ‘The rule of law, legality and the supremacy of the
Constitution’ in S Woolman et al (eds) Constitutional law of South Africa (2005) (2nd ed) 11-1
n 5, that ‘it is notorious ... that the meaning of “arbitrary” underwent contraction ... under
the stress of apartheid-era realpolitik’. Another example is the prohibition on ‘arbitrary
deprivation of property’ in terms of sec 25(1), where arbitrariness has been interpreted to
lie somewhere between ‘mere rationality’ and proportionality: First National Bank v
Commissioner, South African Revenue Services 2002 4 SA 768 (CC) para 65.
86 Endicott (n 61 above) 90.