The rule of law, the principle of legality and the test for rationality: a critical analysis of the South African jurisprudence in the light of the separation of powers.

Abstract

Over the past twenty (20) years the South African jurisprudence has been shaped by numerous factors that emanate primarily from the interpretation of the Constitution. As a result the study, knowledge and philosophy of law has witnessed vital developments which at some point seem to cause confusions in the legal fraternity. Among other confusions that exist is what constitutes “rationality” in law, what factors are relevant in defining rationality, how has rationality been defined and how has it been applied? The thesis explores various instances where our courts particularly the Constitutional Courts and the Supreme Court of Appeal has defined and applied the rationality test when testing for the exercise of public power by the public functionaries. To begin with, our courts have held that rationality is a central principle under the principle of legality which is an implicit term to the study of the rule of law. The rule of law itself has been held to be an implicit term to the Constitution of the Republic of South Africa and that all actions will only be valid if they comply with the rule of law as a constitutional value thereof. However this is not to imply that other values of the constitution like transparency, openness and accountability are less important than the rule of law but most litigation has occurred under rule of law, hence why the focus of this thesis is on the rule of law. Under this legality principle, there are a lot of principles like the principle of authority but rationality appears to be the most significant and the courts have focused mostly on it. In defining what legality rationality is, our courts have pronounced that it is a legal safety-net applicable to every exercise of public power but more particularly where no constitutionally defined right has been violated, it protects individuals against the abuse of power. The courts initially envisaged a ‘poor rationality”, however when comparing how the principle has developed over years it is clear that the principle has been used variably. At some point rationality has been applied leniently while at some point more stringently without any clear guidance, which creates uncertainty as to the correct legal position. Among other considerations of the thesis includes the fact that when the rationality principle is stringently applied, it has been held to threaten the principle of the separation of powers, however when the same principle is leniently applied, it has been held to fall short of the required standards and the demands of the constitutions especially the transparent basis of the decisions. And when this principle is applied variably, it has been seen to undermine the very principle of the rule of law that it is meant to give effect to; this is because the rule of law demands that law should be static and predictable. This confusion stimulates the construction of the thesis as different developments have been formulated but most interestingly proposes the different standards that should apply to executive and legislative decisions.