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60 Chapter 2
by private individuals to themselves without fresh official guidance or weighing
up of social issues, and the need to leave open, for later settlement by an
informed, official choice, issues which can only be properly appreciated and
settled when they arise in a concrete case. 97
These insights reveal that when structuring legal rules and principles,
different balances may reasonably be struck between the need for certainty
and the need for discretionary, case-specific judgment. On occasion, it will
be justifiable to sacrifice a degree of legal certainty, and thereby empower
judges to exercise greater discretion in order to promote other substantive
goals. Of course, going too far in this direction dilutes the valuable
guidance that law can provide and increases the risk that the law in question
will be arbitrarily applied by officials or judges. Exactly where the balance
should lie will vary with the context. Open-ended legal standards, such as
reasonableness, are more appropriate in circumstances ‘where the sphere
to be controlled is such that it is impossible to identify a class of specific
actions to be uniformly done or forborne and to make them the subject of
a simple rule’, 98 and yet some form of legal oversight is nevertheless
valuable. Of course, the overall justification of such discretionary
standards will also depend on the manner in which judges tend to apply
them. 99
4.2 Costs and benefits
It is time to assess the justifiability of the rationality principle. First, let us
consider its benefits. In Prinsloo, the majority held that the rationality
principle
has been said to promote the need for governmental action to relate to a
defensible vision of the public good, as well as to enhance the coherence and
dignity of legislation. In Mureinik’s celebrated formulation, the new
constitutional order constitutes ‘a bridge away from a culture of authority …
to a culture of justification’. 100
These important truths are captured by saying that rationality review
97
HLA Hart The concept of law (1997) 130.
98 Hart (n 97 above) 132.
99 See part 5 below.
100
Prinsloo (n 2 above) para 25 (footnotes omitted). The reference is to E Mureinik ‘A
bridge to where? Introducing the interim Bill of Rights’ (1994) 10 SAJHR 31 32.