Proportionality and the Incommensurability Challenge – Some Lessons from the South African Constitutional Court

Niels Petersen 

Max Planck Institute for Research on Collective Goods; NYU School of Law
March 8, 2013

NYU School of Law, Public Law Research Paper No. 13-07 
Abstract:      
This paper analyzes the application of the proportionality test by the South African Constitutional Court. In contrast to other courts, like the Canadian Supreme Court or the German Constitutional Court, the South African Court has not adopted a structured proportionality test with separate steps. Instead, proportionality only consists of a global balancing test. The Court thus seems to be particularly susceptible to the critique that is voiced in the legal literature against the rationality of balancing. Many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. However, a close analysis of the case law of the South African Constitutional Court reveals a more nuanced picture. In practice, the Court rarely balances when it finds that a law is incompatible with the constitution. Instead, it often bases its judgments on rationality arguments. In sum, the Court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.

Number of Pages in PDF File: 24

Keywords: Proportionality, balancing, South Africa, constitutional law, incommensurability, consistency, fundamental rights, Makwanyane, Manamela, justification

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230454