n South African Law Journal - The burgeoning constitutional requirement of rationality and the separation of powers : has rationality review gone too far?

Volume 130, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



This article analyses three recent judgments of our apex courts. Collectively, they illustrate a maximising of the 'minimum threshold requirement' of rationality through the seemingly inexhaustible principle of legality. The question sought to be addressed is whether the courts are going too far in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality, in the context of non-administrative action and in the absence of any meaningful engagement with the doctrine of separation of powers. In addressing this question, the article examines the tenets of the doctrine of separation of powers, and juxtaposes these theoretical tenets with the usefulness of the doctrine in practice. The role of the judiciary, notably through judicial review, is highlighted as the crucial 'check' against abuses of state power which gives this doctrine its lasting relevance. In examining how the courts ought to strike the 'delicate balance' in exercising their power, the article explores the paradoxes inherent in judicial review and its defensible limits. Against this backdrop, the rationality requirement is elucidated and compared with the more searching requirement of reasonableness. Finally, the analysis of the case law reveals that although the conclusions reached in the judgments are to be hailed, their failure to engage meaningfully with the prescripts of the separation of powers in expanding the frontiers of rationality review is indicative of a worrying trend that may ultimately compromise our judiciary's crucial institutional integrity.

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