“When it came to interpreting and applying the general limitation clause, most commentators expected the Constitutional Court to follow the sequential and structured approach adopted by the Canadian Supreme Court in R v Oakes. In its seminal decision in S v Makwanyane, however, the Constitutional Court rejected this approach and adopted a singular global approach in terms of which certain factors are considered. This singular global approach is usually referred to as a balancing or proportionality test. Unfortunately, it is not always clear what this balancing or proportionality test requires.”
“Academics who before the adoption of the interim Constitution advocated the Canadian approach towards the limitation of rights in great detail were “taken by surprise” and disappointed. They were critical of both the Chaskalson dicta in the Makwanyane case and the formulation in the final Constitution. They still are.”
Source: Rautenbach, IM. 2014. Proportionality and the limitation clauses of the South African Bill of Rights. Potchefstroom Electronic Law Journal,17(6): 2228-226701.
De Vos, P. et al. 2021. South African Constitutional Law in Context. 2nd Edition. Oxford University Press Southern Africa.
Discuss the Constitutional Court’s approach to the limitation analysis provided in section 36 (1) of the Constitution of South Africa, 1996 by:
i. Addressing how the Constitutional Court should reconsider the role of proportionality when undertaking a section 36 (1) analysis.
ii. Addressing some of the criticism levelled at the Constitutional Court’s global or all-at-once approach or balancing process.
Answers on Above Questions on Constitutional Law
Answer 1: The Constitutional Court’s approach to the limitation analysis provided in section 36 indicates that
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