Rationalising judicial review: Towards refining the ‘rational basis’ review test(s)

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Rationalising judicial review: Towards refining the ‘rational basis’ review test(s)

Author Michael Tsele

ISSN: 1996-2177
Affiliations: Member of the Cape Bar; Faculty of Law, Rhodes University
Source: South African Law Journal, Volume 136 Issue 2, p. 328-360

Abstract

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.

Taxpayer insolvent estates: Constitutional juristic persons?

by | Jan 3, 2020 | SALJ, SALJ V136 I2 2019

Taxpayer insolvent estates: Constitutional juristic persons?

Author Fareed Moosa

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 136 Issue2, p. 361-383

Abstract

Section 8(4) of the Bill of Rights confers on juristic persons an entitlement to constitutional rights. In this context, ‘juristic person’ has an imprecise meaning. No hard and fast rules can be laid down in advance as to which entities will qualify for the benefits of s 8(4). Each claim to an entitlement must be adjudicated on its merits. This article argues that, for purposes of s 8(4), recognition as a person in the eyes of either the common law, customary law, legislation or the Bill of Rights ought to lie at the heart of our constitutional conception of ‘person’. Having regard to the transformative potential of s 8(4), and applying grammatical, contextualist, purposive and teleological techniques of interpretation, this article advocates that the notion of ‘person’ under s 8(4) is not confined to the traditional common-law notion applied in private law. Rather, constitutional persons include entities recognised in legislation as persons with legal personality. Accordingly, this article concludes that taxpayer insolvent estates, designated as persons under the fiscal laws of South Africa, qualify in this capacity as beneficiaries of s 8(4) so that, during tax administration by the South African Revenue Service and its officials, they may seek refuge in relevant entrenched rights.