Redrawing the contours of rationality review in South Africa ; procedural fairness as a component of rationality requirement of legality

Abstract

The coming into force of the interim Constitution and later, the final Constitution in 1996, ushered, amongst other things, a need to control the exercise of public power. Rationality was introduced as one of the principles necessary to control the exercise of public power and uphold the rule of law. Under the principle, decisions can only be rational if there is a rational link between the exercise of power and the decision itself. This means that the power must only be exercised for the purpose for which it was granted for.

Over time, this principle has developed to include, amongst others, rationality of the process leading to the actual decision being taken. This has become known as procedural rationality. This development brought another aspect; whether considerations on the process should include requirements of procedural fairness. The apex court has given inconsistent rulings on this aspect. Relying on the academic writings, the dissertation has argued that the expansion of procedural rationality should be embraced. Through this expansion, the recognition of procedural fairness advances values that underpin the Constitution such as accountability, openness and transparency.

Although there are valid concerns about the impact of its expansion on subsidiarity and separation of powers, these concerns could be managed if the courts could delineate cases that should be resolved using legality principle and those that can only be challenged through PAJA. This will ensure that legality contributes positively to the values of the Constitution and the development of legality jurisprudence.