The judicial defense for affirmative action measures : a critique of the rationality standard of judicial review.

Abstract

The South African Constitution states that in order to promote the achievement of equality, legislative and other measures designed to protect those disadvantaged by unfair discrimination may be taken. One of these measures is affirmative action. For the constitutionality of measures in disputes the Court has opted for the ‘rationality’ standard of judicial review. This dissertation aims to critically analyse the rationality standard in the judicial defense of affirmative action measures through an examination of court cases and government legislation. It was found, firstly, that the role of rationality in the Constitution value structure as a whole is superficially confined to the legitimacy of governmental purpose. Its result excludes the full spectrum of competing interests and a determination of their relative weight in terms of an integrative account of the Constitution structure. Secondly, it was found that promoting the achievement of equality has proved to be problematic within the strictures of a rationality standard. It is concluded that to promote the achievement of equality requires a judicial review during affirmative action disputes to have regard to the impact of measures in their implementation within the ambit of right and value to equality. Legal standards are supposed to provide the basis to choose amongst varying competing ends or relate them in a meaningful way to an integrating normative standard in order to claim democratic justificatory and legitimizing value. The rationality standard needs to be amended to introduce a more substantive normative standard which ensures that the implementation of measures which passes constitutional muster also takes into account how it may affect other constitutional rights and values. The proportionality standard provides the degree of democratic accountability expected of rights- limiting measures by considering the impact which such measures may have on competing rights and the interests of those detrimentally affected by it.