Proportionality Analysis
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Questions and Answers

Which of the following situations is NOT mentioned as a scenario where the court will have to rule on the constitutionality of a legislative provision?

  • When a constitutional point is raised during the course of civil or criminal litigation
  • When a legislative provision is alleged to be unconstitutional due to its incompatibility with constitutional rights
  • When a legislative provision is found to be unconstitutional by the court (correct)
  • When a legislative provision is challenged for being against the spirit, purport, and objects of the Bill of Rights

    • What are the two stages involved in disputes related to the constitutionality of a legislative provision?

  • The civil stage and the criminal stage
  • The applicant stage and the legislative stage
  • The infringement stage and the limitation stage (correct)
  • The constitutional stage and the legislative stage

    • In which situation might it not be possible to interpret a legislative provision in conformity with the Bill of Rights?

  • When a legislative provision is found to be unconstitutional by the court
  • When the section 39(2) option is not available (correct)
  • When a legislative provision is challenged for being against the spirit, purport, and objects of the Bill of Rights
  • When a constitutional point is raised during the course of civil or criminal litigation

    • What is the purpose of the proportionality analysis?

    <p>To balance the benefits and harm of an infringement</p> Signup and view all the answers

    Which factor is NOT considered in the proportionality analysis?

    <p>The nature of the right</p> Signup and view all the answers

    What does the test for rationality in the proportionality analysis assess?

    <p>The ability of the limitation to achieve its purpose</p> Signup and view all the answers

    What must the respondent (state) show in relation to the limiting means used?

    <p>The limiting means is less restrictive than other means</p> Signup and view all the answers

    Which court case is considered the locus classical for this form of limitation?

    <p>AZAPO v President of the RSA 1996 (8) BCLR 1015 (CC)</p> Signup and view all the answers

    In the criminal justice system, when can evidence obtained by unconstitutional means be admissible in a trial?

    <p>Never</p> Signup and view all the answers

    Which section of the constitution deals with the exclusion of evidence obtained in a manner that violates any right in the Bill of Rights?

    <p>Section 35(5)</p> Signup and view all the answers

    Which rights in the Bill of Rights have unqualified definitions?

    <p>Sections 9, 12, and 18</p> Signup and view all the answers

    What are the built-in restrictions for the right to freedom of expression (section 16)?

    <p>War propaganda, incitement to violence, and hate speech</p> Signup and view all the answers

    What is the case of SATAWU v Garvis 2012 (8) BCLR 840 (CC) about?

    <p>The Regulation of Gatherings Act</p> Signup and view all the answers

    What are the two species of limitation clauses mentioned in the text?

    <p>Internal limitation clauses and general external limitation clauses</p> Signup and view all the answers

    Which country does not have a limitation clause in its constitution?

    <p>United States</p> Signup and view all the answers

    What is the key requirement for a law to legitimately limit a constitution?

    <p>It must be a law of general application</p> Signup and view all the answers

    What is the difference between internal and external limitation clauses?

    <p>Internal limitation clauses apply to specific rights, while external limitation clauses apply to all rights</p> Signup and view all the answers

    What are the two requirements for a law to limit a constitution in South Africa?

    <p>It must be a law of general application, and it must be reasonable and justifiable in an open and democratic society</p> Signup and view all the answers

    Which cases provide good examples for the application of section 36(1)?

    <p>S v Makwanyane 1995 (3) SA 391 (CC) paras 96-104 110-144</p> Signup and view all the answers

    What is the difference between section 36(1) and section 36(2)?

    <p>Section 36(1) regulates scenarios of extra-constitutional limitation, while section 36(2) deals with intra-constitutional limitation.</p> Signup and view all the answers

    Which provisions of the Constitution place limitations on the constitutional right to stand for public office?

    <p>Section 19(3)(b), 62, 106 and 158</p> Signup and view all the answers

    Why are the limitations in section 47 not considered unconstitutional?

    <p>Because they are limitations from inside the constitutional text itself</p> Signup and view all the answers

    Study Notes

    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.

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    Test your understanding of proportionality analysis and its practical application in various jurisdictions. Explore how this requirement involves balancing the harm caused by infringement with the benefits gained.

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