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The content and justification of rationality review 65
to law or executive conduct; 117 it has dismissed far more. 118 Of the former
set of cases, two (Pharmaceutical Manufacturers and Kruger) involved good
faith mistakes by the President that were obviously irrational, while a third
(Van der Merwe) involved an outdated and patriarchal statutory restriction
on delictual claims by certain married persons against their spouses, which
manifestly served no purpose in the light of subsequent legislative
developments. 119 A fourth (Albutt) concerned the President’s refusal to
afford a hearing to victims of crimes committed for allegedly political
motives when deciding whether to pardon the perpetrators under a special
scheme intended to promote national unity and reconciliation. Although
the decision undoubtedly extends rationality review into the realm of
procedure, it is difficult to disagree with the Court’s ruling that it was
irrational for the President to attempt to promote reconciliation by
excluding victims from the process. The fifth and final decision (Nyathi)
was admittedly problematic and I return to discuss it below. Nevertheless,
the broad pattern of decisions shows that the Constitutional Court has not
tended to abuse or misapply its discretionary power under rationality
review so as to interfere unduly with the political autonomy of the executive
and legislature. It cannot be said that the Court has, on the whole,
unjustifiably ‘second-guessed’ legislative and executive wisdom.
It follows that, if the Court is guilty of any general sin, it could only
be excessive deference. But in which cases has the Court rubber-stamped
plainly irrational acts? When has it upheld obviously arbitrary laws? To
my mind, after more than a dozen instances of rationality review, only two
decisions bear any possibility of fitting this description – Union of Refugee
Women 120 and Merafong 121 – and I defend the application of the rationality
principle in both below. But even if the Court has occasionally erred in this
manner, has it tended to do so? I do not think so. To substantiate this claim,
let us consider how the Constitutional Court has applied the various
elements of the rationality principle a little more closely.
117 Pharmaceutical Manufacturers (n 2 above); Van der Merwe (n 13 above); Kruger (n 30
above); Nyathi (n 13 above), Albutt (n 2 above) (discussed in Price (n 2 above)). I have
already explained (n 13 above), why Ntuli is not a genuine example of rationality
review. A possible sixth example is Zealand v Minister for Justice and Constitutional
Development 2008 4 SA 458 (CC) para 44, but in that case the Court’s review for
rationality is merely an obiter dictum.
118 Prominent examples include S v Rens 1996 1 SA 1218 (CC); Prinsloo (n 2 above);
Harksen (n 13 above); Walker (n 4 above); Jooste (n 13 above); New National Party (n 2
above); Bel Porto (n 13 above); Merafong (n 22 above); United Democratic Movement (n 2
above); Union of Refugee Women (n 13 above); Weare (n 13 above); Poverty Alleviation
Network (n 2 above); Law Society of South Africa (n 2 above); Glenister (n 2 above). Another
example is arguably provided by Geuking v President of South Africa 2003 3 SA 34 (CC)
paras 25 - 30, despite the fact that the language of ‘rationality’ was not used.
119 This case is discussed in n 78 above.
120
n 13 above.
121 n 22 above. Poverty Alleviation Network (n 2 above) stands or falls with Merafong, because
the former decision rejected a rationality challenge to legislation very similar to that
upheld in the latter case, and did so for the same reasons. For further discussion, see
Price (n 2 above).