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The content and justification of rationality review 73
6 Conclusion
So after a long march through both theory and practice, we arrive at our
conclusion. Rationality review does not need to be saved. In principle, its
benefits outweigh its costs. Both the imperfect guidance it provides and the
limited discretionary power wielded by the judges who apply it are
arguably more than compensated for by the valuable part it plays in
promoting state adherence to public reason. We need not appeal to a
substantive conception of the rule of law, as the courts have done, in order
to reach this conclusion. In addition, with the possible exception of the
decision in Nyathi, rationality review has not been applied by the
Constitutional Court in an inappropriate way.
If any generalisations can safely be made, they are these: First,
the Constitutional Court has expressed a willingness to subject all law and
every exercise of public power, no matter how politically sensitive, to the
scrutiny of rationality review. Secondly, in circumstances where no
fundamental rights are threatened or limited, the Court is reluctant to
invalidate laws or acts unless they are clearly arbitrary. This, on the whole,
is a well-balanced approach. On the one hand, it reminds the executive and
legislature that no exercise of public power is beyond constitutional control
and that every law and act should serve a purpose that is constitutionally
acceptable. On the other hand, that judicial control is exercised in a
restrained manner, consistent with the courts’ duty to respect the political
autonomy of the other branches of government.
If there is no need to save rationality review, it follows that we need
not provide it with a new structure. The approach developed over the past
fifteen years by the Constitutional Court is, by and large, a defensible one,
and may be followed in good conscience in the future. 169
169 Bishop (n 5 above) 32 - 33, where an elaborate new structure is proposed. In fact, in
some respects his proposals overlap with the approach already developed by the Court. For
example, while he proposes that, when assessing the rationality of differentiations in terms
of sec 9(1) of the Constitution, the burden of justification should lie on the state, in
practice it is already for the state to proffer justificatory purposes: arbitrariness is present
where ‘there is no rational relationship between the differentiation in question and the
governmental purpose which is proffered to validate it’ (Prinsloo (n 2 above) para 26;
Harksen (n 13 above) para 44 (my emphasis)). In addition, while Bishop suggests that the
challenged law should be understood in the light of its context, in practice that is what is
usually done. If, however, we reinterpret Bishop’s argument as, at bottom, a call
merely for greater transparency in the Court’s evaluative reasoning when applying
rationality review, then there is little reason to disagree. Judicial transparency is
valuable, and more of it is usually better than less (unless it comes at the expense of
other judicial virtues, or results in political attacks which undermine the Court’s
institutional security). Nevertheless, it would be an exaggeration to say that the Court
has generally applied the rationality principle with insufficient transparency.