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The content and justification of rationality review 69
been problematic. Despite the discretionary character of the test, the
outcomes and reasoning in most cases have been defensible.
5.2 Three difficult cases
Three instances of rationality review by the Constitutional Court deserve
closer scrutiny. All three cases were genuinely difficult, albeit for differing
reasons, so it is not surprising that the Court was divided on each occasion.
I shall supplement my defence of the Constitutional Court’s record by
defending the majority’s application of the rationality principle in the first
and second cases, and by offering an interpretation of the majority judgment
in the third case.
We start with the judgment in Merafong 145 where, to recall, the
Merafong community challenged, inter alia, the rationality of legislation
amending provincial boundaries to relocate the Merafong municipality,
which had previously straddled the Gauteng-North West border, wholly
within North West. The community passionately wanted to be placed in
Gauteng. Everyone agreed that abolishing cross-boundary municipalities
would serve the valuable purpose of promoting effective state service
delivery. But what exactly had to be rational? Was it the decision to abolish
cross-boundary municipalities by relocating Merafong in either Gauteng or
North West? Or the decision to locate Merafong in North West instead of
Gauteng? The choice had a direct bearing on the outcome: the former
characterisation automatically ensured that the law served its purpose and
thus was rational; the latter presumably called for an additional purpose to
be served specifically by choosing North West over Gauteng, but since the
state had not proffered one, and the relative consequences of choosing
either North West or Gauteng were contested and uncertain, the law may
have been arbitrary. 146 This choice of characterisation is a particularly clear
example of the discretion judges must sometimes exercise under the
rationality principle.
The majority chose the former characterisation and upheld the law. 147
In my view, this was the correct outcome, for two connected reasons. First,
even under the latter characterisation, the law could not justifiably be
regarded as arbitrary or irrational. Locating Merafong within North West
still served the purpose of abolishing a cross-boundary municipality
thereby easing service delivery problems. It could hardly be said in reply that
defining the purpose at this level of abstraction renders rationality review
meaningless. But secondly, as Van der Westhuizen J observed, 148 adopting
the narrower characterisation and investigating whether choosing North
West over Gauteng served legitimate purposes over and above that of
145 n 22 above. Other aspects of the case are discussed above (n 24 above) and 56.
146 This is what I understand Bishop (n 5 above) to imply at 24. He observes that Sachs J had
previously suggested in an obiter dictum in a minority concurring judgment in a similar
case (Matatiele Municipality v President of South Africa (1) 2006 5 SA 47 (CC) paras 101 -
108) that the latter characterisation of the issue was appropriate.
147
n 22 above, para 114. The minority did not address the issue.
148 n 22 above, para 114.