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The content and justification of rationality review 63
that rationality review is justified by the rule of law, 108 which is a
foundational constitutional value of great importance. The argument seems
to be that, because arbitrary governance is by its nature inconsistent with the
rule of law and the idea of a constitutional state, it follows that the courts
are justified in upholding a prohibition on arbitrariness by assessing the
purposes and effects of laws and state conduct. What can we make of this
argument?
For one thing, if it is sound, then it gives rise to a puzzle. On the one
hand, it should by now be clear that the rationality principle both suffers
from a degree of uncertainty and affords the Constitutional Court a
discretion that may be misapplied or abused, from which there is no
further appeal or review. In these two respects, rationality review appears
to undermine some of the requirements of the rule of law. 109 But, on the
other hand, it is the rule of law itself that is said to justify rationality review
in the first place. How can it be that the rule of law justifies the rationality
principle if its application in fact undermines the rule of law?
The way to resolve this paradox is to recognise that the rule of law, as
a justiciable legal principle in South African law, 110 has been held by the
courts to impose restrictions on both the form and the content (or ‘substance’)
of laws and conduct. For example, the requirement of ‘reasonable
certainty’ is a formal requirement, 111 while the requirement of rationality
or non-arbitrariness is a requirement of content. 112 Although the test for
arbitrariness is not perfectly clear, the resulting deficit in the formal aspect of
the rule of law is arguably offset by the countervailing substantive gains
arising from the invalidation of arbitrary laws and acts.
The Constitutional Court thus seeks to justify rationality review by
appealing to a ‘substantive conception’ of the rule of law, 113 which, as we
have seen, imposes various requirements of form and content that do not
always pull in the same direction. It follows that the courts’ claim that
rationality review is justified by the rule of law necessarily depends, in turn,
108 See, eg, the cases cited (n 4 above). Reference is also made in Makwanyane (n 2
above) para 156 and Affordable Medicines (n 2 above) para 74 to ‘the idea of the
constitutional state’.
109 These, of course, are the formal requirements of the rule of law. See generally Raz (n 94
above), as well as Affordable Medicines (n 2 above) para 108 and Kruger (n 30 above) para
64.
110 There is an important distinction between the rule of law as a justiciable principle of law,
which is given concrete meaning by judicial decisions, and the less determinate, political
value of the rule of law, which forms part of political morality. Accordingly, one could
coherently accept that Pharmaceutical Manufacturers (n 2 above) held that the rule of law, as
a justiciable legal principle, imposes a substantive requirement of rationality that courts
must uphold and enforce, but also argues that in doing so the Court misunderstood the
value of the rule of law as a part of political morality.
111
Affordable Medicines (n 2 above) para 108; Kruger (n 30 above) para 64.
112 Pharmaceutical Manufacturers (n 2 above) para 85; New National Party (n 2 above) para
24 and United Democratic Movement (n 2 above) para 55.
113
See, eg, P Craig ‘Formal and substantive conceptions of the rule of law: An analytical
framework’(1997) 21 Public Law 467.