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70 Chapter 2
abolishing a cross-boundary municipality would inevitably have entangled
the Court in a complex political and economic debate, which, for reasons
of institutional competence and democratic principle, judges should avoid
having to resolve.
That is surely correct. The Court was not well-equipped to evaluate
and choose between the competing economic and political arguments
advanced for and against choosing North West over Gauteng. 149 In
addition, it is the elected political representatives, not judges, who are
primarily responsible for making these choices, and who stand to lose their
jobs if they systematically ignore the will of the people. Judicial
intervention, beyond upholding a baseline standard of rationality, would
have diluted that responsibility, thereby violating the principle of comity.
For these reasons, the majority cannot fairly be said to have unduly
rubber-stamped an obviously arbitrary law. Instead, the case provides a
good example of how the considerations underlying the principle of
comity do, and should, guide the way the courts exercise their discretion
under the rationality principle. 150
The second difficult case was Union of Refugee Women v Director, Private
Security Industry Regulatory Authority, 151 which dealt with legislation
prescribing various requirements for registration as a private security
guard, 152 one of which was that the applicant had to be either a South
African citizen or a permanent resident. The section also provided that
notwithstanding these requirements, ‘any applicant’ could be registered ‘on
good cause shown and on grounds which are not in conflict with the
purpose of this Act’. 153 A group of lawful refugees challenged the
permanent residency/citizenship condition on the ground that it was
unfairly discriminatory in terms of section 9(3) of the Constitution and
irrational in terms of section 9(1). The majority rejected both challenges
and upheld the legislation; the minority held that the condition violated
section 9(3), but some of its remarks seem to imply that section 9(1) was
also violated. The following analysis relates only to the rationality
question: Was the permanent residency/citizenship condition rationally
related to a legitimate governmental purpose?
Bishop argues that the majority’s answer to this question ‘renders
rationality review meaningless’ because it specified the law’s purpose at a
149 Both parties had advanced various, competing arguments for and against choosing either
one of the provinces, dealing inter alia with service delivery, general economic wellbeing,
emotional attachment, etc: Merafong (n 22 above) paras 110 - 113.
150 This point was accepted in Poverty Alleviation Network (n 2 above) para 74, where
Nkabide J held for a unanimous Court that the application of rationality review
‘should be guided by the principle of separation of powers’. Happily, it appears that the
wheels of democracy eventually turned: It was reported on the Mail & Guardian website
that some months after judgment was handed down the law was again amended by
Parliament to relocate Merafong from North West to Gauteng, in line with the wishes of
the community: ‘Merafong to be returned to Gauteng’ Mail & Guardian Online http://
www.mg.co.za/article/2009-04-09-merafong-to-be-returned-gauteng (accessed 12 April
2011).
151 n 13 above.
152
Sec 23(1) of the Private Security Industry Regulation Act 56 of 2001.
153 Sec 23(6).