Rationalising judicial review: Towards refining the ‘rational basis’ review test(s)
Author Michael Tsele
Affiliations: Member of the Cape Bar; Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 136 Issue 2, p. 328-360
Public-law review principles, in particular the rational-basis review test, have been subject to controversy for lack of clarity or consistency in application. This article revisits some of the issues that currently captivate and confuse our courts. It either calls for answers, or offers suggestions as to what the answers should be. The first part is dedicated to analysing the nuances of certain principles, their growth in recent years, and the resultant problems. It then proffers views on those issues which appear to remain unclear in our law. The second part of the article critically examines two recent decisions of the Supreme Court of Appeal and Constitutional Court, aiming to unpack the reasoning employed by the respective courts with a view to making sense of some of the disagreements between judges of these courts. It is argued that the divergence of views between the justices of the Constitutional Court shows that we are yet to have a clear concept of the rational-basis review principle. I nonetheless argue that the main judgment, authored by the Chief Justice, brings us closer to clarity on a number of issues.