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68 Chapter 2
Thus, it seems that the Constitutional Court will usually uphold as
rational laws and conduct that somehow serve their legitimate purposes.
This degree of deference is understandable, in general, given the institutional
respect courts owe the political branches of the state. It follows that if the
law or conduct in question fails to serve its legitimate purpose at all (as in
Kruger and Pharmaceutical Manufacturers), it will be declared arbitrary;
conversely, it will be upheld as rational if it either achieves its end
symbolically or tends to achieve its end as a matter of causality. 140 Most
decisions have fallen into the latter category, where the law or conduct is
upheld because the Court accepts as an empirical fact that it tends, or will
tend, to serve its purpose. For example, in Prinsloo the Court approved the
empirical assumption that the presumption of negligence of landowners
outside fire-controlled areas in respect of fires spreading from their land
would incentivise vigilance against fires on their part. 141 In Merafong, it was
accepted that the abolition of cross-boundary municipalities would lead to
more efficient state service delivery. 142 In Walker, the Court held that the
Pretoria City Council’s temporary policy of charging residents of
Mamelodi and Atteridgeville a flat rate for electricity and water, while
charging residents of old Pretoria for their actual consumption using meters,
would tend to achieve equality of facilities and resources between residents
of different areas. 143
Where, as in these cases, the connection between law or conduct and
its purpose is a causal matter, there is inevitably a degree of empirical
uncertainty. Will the means serve the end? How efficiently will it do so?
Will the end be fully or merely partially achieved? And so on. Sometimes
no evidence settling these questions of probabilistic causation will be
available, and acquiring it (when that is possible) will often be very costly.
In such circumstances, and provided no vital interests (such as those
protected by fundamental rights) are threatened or limited, it is surely
justified for the Court to defer to the plausible empirical assumptions of the
executive and legislature. Where the state’s empirical claims seem
implausible or far-fetched, however, the Court should require some
evidentiary support for them. And where such evidence does exist, the
Court should of course be willing to take it into account. 144 Nonetheless, in
no rationality review case, in my view, has the Constitutional Court
approved an implausible causal assumption, nor has it ever accepted the
state’s causal assumptions in the face of contrary empirical evidence.
This short, thematic survey suggests that, generally, the practical
application of the rationality principle by the Constitutional Court has not
140 This distinction is discussed above, sec 2.3.
141
n 2 above, para 40.
142 n 22 above, para 114.
143 n 4 above, para 27.
144
Bishop’s suggestion to this effect in Woolman & Bilchitz (n 5 above) 34 is surely
justified.