n South African Law Journal - Rationality review of legislation and executive decisions: and : notes

Volume 127, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



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,1995 (3) SA391 (CC) para 156; 1999 (3) SA 191 (CC) paras 19 and 24; 2000 (2) SA 674 (CC) paras 85 and 90; 2003 (1) SA 495 (CC) para 55; and 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, 1999 (1) SA374 (CC) paras 56-8; (supra) para 85).

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