n South African Law Journal - Rationality review of legislation and executive decisions: poverty alleviation network and Albutt : notes
|Article Title||Rationality review of legislation and executive decisions: poverty alleviation network and Albutt : notes|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Publication Date||Jan 2010|
|Pages||580 - 591|
In a series of judgments, the Constitutional Court has developed a general principle of constitutional law that every law and every exercise of public power should not be arbitrary, but instead should be rational (see, for example, S v Makwanyane 1995 (3) SA391 (CC) para 156; New National Party v Government of South Africa 1999 (3) SA 191 (CC) paras 19 and 24; Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa 2000 (2) SA 674 (CC) paras 85 and 90; United Democratic Movement v President of South Africa (No 2) 2003 (1) SA 495 (CC) para 55; and Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) paras 74-9). In sum, when a court applies this constitutional principle of rationality to a legislative provision or an exercise of public power, it is obliged to decide whether the provision or conduct is irrational or arbitrary, and if the court so decides, to declare it unconstitutional and invalid. The Constitutional Court has also held that the constitutional requirement of rationality (as opposed to rationality under the Promotion of Administrative Justice Act 3 of 2000 ('PAJA')) is justified by the principle of legality, which in turn is justified by the constitutional value of the rule of law (see, for example, Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA374 (CC) paras 56-8; Pharmaceutical Manufacturers (supra) para 85).
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