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The content and justification of rationality review 67
insolvent spouse; 130 to exercise financial prudence while pursuing equity in
state school staffing during a difficult transitional period; 131 to take
temporary measures to phase in equitable municipal rates collection,
while also ensuring continuity, in the light of lingering historical
disparities in service delivery; 132 to promote efficient local government
service delivery by the abolition of cross-border municipalities; 133 to
promote national unity and reconciliation; 134 and so forth. Presumably
because the application of the ‘legitimate government purpose’ requirement
has seldom proved contentious, the Court has not considered its
meaning in any depth. That will remain the case if, as I have argued
above, 135 the Court adopts an approach according to which the purpose of
the law or conduct in question is ‘legitimate’, under the rationality
principle, if and only if it is consistent with all other legal and
constitutional constraints, including the Bill of Rights and the Constitution’s
objective, normative value system.
The Court has also made it clear that only one legitimate purpose need
be served for a law or act to be rational, 136 and consequently it has not
become embroiled in evaluating the many, sometimes conflicting, purposes
that laws and conduct may serve. In Jooste, for example, where legislation
barred ordinary delictual claims by employees against employers, the
Court restricted itself to assessing whether the balance struck by the new
statutory compensation scheme between the various conflicting interests of
employees and employers, and thus multiple possible purposes, was an
arbitrary one. 137
Thirdly, there is little reason to believe that the Court has generally
applied the rational ‘connection’ or ‘relationship’ requirement
inappropriately. This vague condition, to recall, requires that the law or act
serves its purpose in some way, but specifies neither how, nor how well, it
should do so. Undoubtedly, the Constitutional Court has taken a fairly
deferential attitude in this respect. First, it was held that the law or conduct
need not be the least restrictive means to achieve its legitimate purpose. 138
Then, in Weare it was unanimously held:
The question is not whether the government could have achieved its purpose
in a manner that the court feels is better or more effective or more closely
connected to that purpose. 139
130
Harksen (n 13 above).
131 Bel Porto (n 13 above).
132 Walker (n 4 above).
133
Merafong (n 22 above); Poverty Alleviation Network (n 2 above).
134 Albutt (n 2 above).
135 See sec 2.3 above.
136
See the cases cited in n 42 above.
137 n 13 above.
138 Prinsloo (n 2 above) para 35.
139
n 13 above, para 46. See also East Zulu Motors (Pty) Ltd v Empangeni/Ngwelezane
Transitional Local Council 1998 2 SA 61 (CC) para 24.