n Tydskrif vir die Suid-Afrikaanse Reg - Means-end rationality in constitutional court judgments : notes
|Article Title||Means-end rationality in constitutional court judgments : notes|
|© Publisher:||Juta Law Publishing|
|Journal||Tydskrif vir die Suid-Afrikaanse Reg|
|Publication Date||Jan 2010|
|Pages||768 - 779|
|Keyword(s)||University of Johannesburg|
ISI Social Science
Rationality review, in the sense that a court may invalidate a rule or action because it is not rationally related to a legitimate purpose, has indeed become a prominent feature of the constitutional court's jurisprudence. Rationality review is a complex phenomenon. It has so many facets that all of them cannot be covered satisfactorily in a single note. As part of a more comprehensive investigation one could try to trace how it came about that the constitutional court now considers the application of a rational relationship test as "axiomatic" (see Abbutt v Centre for the Study of Violence and Reconciliation 2010 5 BCLR 391 (CC) par 49). The constitutional court has applied rules relating to "rationality" to different situations. In this note this development is recorded in respect of the two broad categories of instances in which the court has applied rational relationship tests. The first category comprises instances in which the court has employed a rational relationship test in respect of the limitation of various rights. They are noted in paragraph 2. In the second category, the court uses a rational relationship test in a broader context, namely, as stated in the quotation above, in respect of the exercise of all government power regardless of whether a right in the bill of rights or any other constitutional provision has been affected. This category includes the application of the test to the exercise of the president's executive powers (par 3.1), to the power of parliament to pass ordinary legislation (par 3.2) and to the power of parliament to amend the constitution (par 3.3). Description and categorisation stimulate reflection - a few conclusions are also recorded.
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