Published online by Cambridge University Press: 14 April 2020
The chapter presents an analysis of the application of the proportionality doctrine in the case law of the South African Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The data reveals that although the failure rates at the worthy purpose, suitability, and necessity stages are surprisingly high, the court generally continues its analysis to also consider the balance between values. These findings lead to a nuanced understanding of the South African court’s global application of proportionality, in which the court utilizes all elements of the analysis in each case to evaluate whether allowing a particular limitation or striking it down advances constitutional values more faithfully. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.
To save this book to your Kindle, first ensure email@example.com is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.