Proportionality Analysis

Constitutionality of Legislative Provisions

• The court may rule on the constitutionality of a legislative provision in scenarios where the provision is challenged on the basis of its inconsistency with the Bill of Rights, or where it is alleged to have been enacted in a manner that violates the Constitution.
• The two stages involved in disputes related to the constitutionality of a legislative provision are:
  • First, determining whether the provision limits a right in the Bill of Rights.
  • Second, determining whether the limitation is justifiable in terms of section 36(1) of the Constitution.
• It may not be possible to interpret a legislative provision in conformity with the Bill of Rights if the provision is inconsistent with the Constitution or if it violates a right in the Bill of Rights.

Proportionality Analysis

• The purpose of the proportionality analysis is to determine whether a limitation on a right is justifiable in terms of section 36(1) of the Constitution.
• The respondent (state) must show that the limiting means used are reasonable and justifiable in an open and democratic society.
• The test for rationality in the proportionality analysis assesses whether the means used to achieve the purpose are rationally connected to that purpose.
• The respondent (state) must also show that the limitation is necessary to achieve a legitimate government purpose.

Criminal Justice System

• Evidence obtained by unconstitutional means may be admissible in a trial if it is deemed to be relevant and probative.
• Section 35(5) of the Constitution deals with the exclusion of evidence obtained in a manner that violates any right in the Bill of Rights.

Bill of Rights

• The rights in the Bill of Rights that have unqualified definitions are the right to life, the right to dignity, and the right to freedom from slavery.
• The built-in restrictions for the right to freedom of expression (section 16) are:
  • Propaganda for war.
  • Incitement to imminent violence.
  • Advocacy of hatred.

Case Law

• The case of SATAWU v Garvis 2012 (8) BCLR 840 (CC) is about the limitation of the right to freedom of expression.
• The two species of limitation clauses mentioned in the text are internal and external limitation clauses.
• The country that does not have a limitation clause in its constitution is the United States.

Limitation Clauses

• The key requirement for a law to legitimately limit a constitution is that it must be justified in terms of section 36(1) of the Constitution.
• The difference between internal and external limitation clauses is that internal limitations are built into the right itself, while external limitations are imposed by a separate provision.
• The two requirements for a law to limit a constitution in South Africa are:
  • The limitation must be reasonable and justifiable in an open and democratic society.
  • The limitation must be necessary to achieve a legitimate government purpose.

Section 36(1) and Section 36(2)

• The cases of S v Makwanyane 1995 (3) SA 391 (CC) and S v Zuma 1995 (2) SA 642 (CC) provide good examples for the application of section 36(1).
• The difference between section 36(1) and section 36(2) is that section 36(1) deals with the justification of limitations, while section 36(2) deals with the interpretation of rights.

Constitutional Right to Stand for Public Office

• The provisions of the Constitution that place limitations on the constitutional right to stand for public office are sections 47(1) and 47(3).
• The limitations in section 47 are not considered unconstitutional because they are reasonable and justifiable in an open and democratic society.