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58 Chapter 2
Bishop argues that the rationality principle prohibits two classes of law
or conduct – those motivated only by prejudice or ‘naked preferences’; and
those that fail to serve an appropriate purpose 87 – and that these two classes
correspond to the twin evils that rationality review is designed to avert:
prejudice and arbitrariness. 88 It should be noted, however, that prejudice or
‘naked preferences’ are merely species of arbitrariness. So it seems more
accurate to say that rationality review is designed simply to guard against the
single evil of arbitrariness or irrationality in laws and conduct, and that a
law or act that serves no legitimate purpose, but is instead motivated purely
by prejudice, is a paradigmatic example of such arbitrariness or irrationality.
4 The justification of rationality review in principle
Armed with a clear understanding of the elements of the rationality
principle, as well as of arbitrariness, reasonableness, variability of judicial
scrutiny, and the principle of comity, we may now turn to our central
question: whether rationality review as it applies in South African
constitutional law is justified. As this is a normative question of some
complexity, reasonable people are bound to differ. For instance, Bishop
argues that rationality review needs to be saved, because, in his view, its
malleability 89 unmoors it from its traditional justifications 90 and
‘prevents [it] from filling the role it is meant to serve’. 91 He also argues:
In general, the test vacillates between being a rubber stamp for any government
plan no matter how ludicrous, and a barrier to reasonable regulation with
which judges disagree for other substantive reasons. 92
It seems to me that these criticisms attack both rationality review in principle,
as well as its application by the Constitutional Court in practice. These
questions may profitably be examined apart: If rationality review is
unjustifiable in principle, we need not consider how courts have applied it;
but even if it is justifiable in principle, the courts may nevertheless tend to
apply it inappropriately. With that distinction in mind, I advance an
alternative view to Bishop’s. In this part, I argue that rationality review is
87 Bishop (n 5 above) 9.
88 Bishop (n 5 above) 7.
89
Bishop (n 5 above) 25. What Bishop means by this is that ‘there is room for judicial
manipulation that can drastically alter the outcomes of the test’.
90 Bishop (n 5 above) 26.
91
As above.
92 As above.