n South African Law Journal - The variable standard of rationality review : suggestions for improved legality jurisprudence

Volume 130, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



Upon a conspectus of 'legality' challenges, it is clear that the level of scrutiny in rationality reviews varies, ranging from the very strict to the deferential, and oftentimes with a lack of guidance by the courts as to the standard's parameters and applicability. The authors argue that this lack of clarity is problematic under the rule of law. The article identifies potential explanations for the variable application of the rationality test. The authors also explore what factors and guidelines ought to form the basis of the Constitutional Court's legality jurisprudence, in order to respect adequately the separation of powers, and to achieve the rational justification which the Constitution demands. Ultimately, the article aims to show that the court's legality jurisprudence might be improved in a number of respects. It is respectfully contended that such clarifications will benefit both potential litigants, particularly those who are forced by the nature of their case to seek refuge in the principle of legality, and lower courts, that are left to give effect to the Constitutional Court's decisions, while still respecting the doctrine of separation of powers.

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