Proportionality Analysis

AZAPO v President of the RSA 1996 (8) BCLR 1015 (CC)

appropriate relief

if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice

<p>The first situation is when an applicant alleges that a legislative provision is unconstitutional because it is incompatible with one or more constitutional rights. The second situation is during the course of civil or criminal litigation when one of the parties raises a constitutional point.</p> Signup and view all the answers

<p>In the first situation, the dispute revolves solely on the constitutionality or otherwise of the impugned legislative provision. In the second situation, the court is called upon to rule on the constitutionality of legislation in the course of civil or criminal litigation.</p> Signup and view all the answers

<p>The two stages are the infringement stage and the limitation stage.</p> Signup and view all the answers

<p>Extra-constitutional and intra-constitutional limitations.</p> Signup and view all the answers

<p>Extra-constitutional limitations originate from outside the Constitution, while intra-constitutional limitations originate from provisions inside the Constitution itself.</p> Signup and view all the answers

<p>Section 47 of the Constitution places restrictions on the right of every citizen to stand for public office and hold office.</p> Signup and view all the answers

<p>Section 36(2) states that, except as provided in subsection (1) or any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.</p> Signup and view all the answers

<p>The purpose of the limitation clause in the Canadian Charter of Rights is to set out the requirements for limiting all the rights in the Charter.</p> Signup and view all the answers

<p>The difference between internal and external limitation clauses is that internal limitation clauses judge limitation in accordance with the specific right that has been infringed, while external limitation clauses apply the same criteria for limitation to all the rights.</p> Signup and view all the answers

<p>The United States constitution does not have limitation clauses.</p> Signup and view all the answers

<p>The two requirements for limitation according to section 36(1) of the Constitution of South Africa are: (1) the limitation must be in accordance with a law of general application, and (2) the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors.</p> Signup and view all the answers

<p>Proportionality analysis refers to a process of balancing the harm caused by infringing a right against the benefits achieved by such infringement. If the harm outweighs the benefits, the limitation would be held illegitimate and unconstitutional.</p> Signup and view all the answers

<p>The factors considered include the nature of the right being infringed, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose.</p> Signup and view all the answers

<p>The nature and extent of the limitation refers to how invasive or restrictive the infringement is. A more invasive infringement is less likely to be justifiable, while a slight invasion might be more readily justifiable.</p> Signup and view all the answers

<p>The test for rationality focuses on whether the limiting measure is factually capable of achieving its alleged purpose, while the test for reasonableness assesses whether the limitation is reasonable in the context of the values of a society. The test for rationality represents a minimum standard of scrutiny, while the test for reasonableness is broader and encompasses considerations of proportionality.</p> Signup and view all the answers

<p>The two stages in the infringement process are the allegation stage and the limitation stage. In the allegation stage, an allegation is made that a provision of legislation violates a constitutional right. In order to determine whether a right has been infringed, it is important to define the right that has allegedly been infringed. This is because some rights are unconditionally defined, while others are conditionally defined and have their own built-in restrictions.</p> Signup and view all the answers

<p>Examples of rights with unqualified definitions are Sections 9, 12, and 18. Examples of rights with qualified definitions are Sections 16, 17, 22, 26, 27, and 30.</p> Signup and view all the answers

<p>The right to freedom of expression has built-in restrictions that exclude war propaganda, incitement to violence, and hate speech. The right to assembly, demonstration, picket, and petition has built-in restrictions that require demonstrations, meetings, etc to be peaceful and unarmed. Armed and non-peaceful demonstrations are not constitutionally protected.</p> Signup and view all the answers

<p>The SATAWU v Garvis case highlighted the importance of correctly defining rights. In this case, the Regulation of Gatherings Act, 205 of 1993 was held to be constitutional because Section 17 does not provide for an unrestricted right to demonstrate, but only for peaceful and unarmed restrictions. This case emphasized the need to analyze the totality of a rights provision in order to define the right correctly.</p> Signup and view all the answers