Section 25 vortices (part 2)
CITATION: Van Der Walt, A. J. 2016. Section 25 vortices (part 2). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2016(4):597-621.
The original publication is available at https://journals.co.za/content/journal/jlc_tsar
Even when he first identified the arbitrariness vortex, Roux pointed out that courts may well not follow the methodology set out in the FNB case strictly and that deviations might reduce the vortex effect in some cases. In some subsequent decisions, the constitutional court did follow its approach in the FNB case, but it has become clear that the arbitrariness vortex is not going to materialise in a pure form or consistently and that the court will indeed deviate from the FNB methodology in ways that will at least water the vortex effect down. Perhaps more surprisingly, subsequent decisions have also shown that the court will deviate from the FNB methodology in ways that might create new vortices, centred on other parts of the section 25 inquiry.