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276 Chapter 12
will be loaded in favour of rights. What these theorists highlight is rather a
concern about the likelihood that courts (and possibly other institutions)
will not conduct the process of balancing properly and so fail to give rights
the weight they deserve in such a process.
The critique of Alexy thus highlights the importance of ensuring that
the structure of rights analysis is congruent with its purpose. I would
suggest that congruency is not sufficient: The form should itself give
expression to the purpose of rights protection. The worries of Alexy’s
critics in relation to the form of his theory should not be easily dismissed.
The evaluation of rights against other considerations on the same ‘level’
may tend to lead courts to fail to give sufficient strength to rights and thus
lead to their under-protection. It may thus be necessary to develop
procedural safeguards that ensure rights are given the strength they deserve
in any constitutional analysis. The two-stage procedure in South African
constitutional law assists in ensuring that at least courts begin by thinking
through the nature of the violation that occurs in relation to a particular
constitutional right. It is thus critical that courts do not omit the first stage
of the analysis and seek to capture the interests and values at stake in a
particular violation. 41 The second stage of the inquiry will involve a
proportionality analysis which must take account of the ‘nature of the
right’: This factor will require understanding the strength and intensity to
be given to a particular right. 42
Yet, it might be thought that these procedural elements remain
insufficient to deal with the likelihood of error on the part of courts in giving
rights the strength they deserve. Various possibilities suggest themselves: One
has already been canvassed in the form of a presumption in favour of rights.
Alexy suggests another possibility for dealing with the problems identified by
Kumm that would not systematically over-protect rights but, he claims, deal
with the likelihood of error in such cases.
He indicates that these problems arise particularly when empirical
premises lie at the foundation of a claim to limit rights: the proposition, for
instance, that the inclusion of lesbian and gay people in the military impacts
upon its fighting power and effectiveness. Alexy consequently proposes a
second law of balancing to be included within the proportionality analysis:
‘The more heavily an interference in a constitutional right weighs, the
41 I thus support the arguments of Woolman & Botha (n 1 above) 34-18 - 34-29 where
they criticise certain dicta by Justice Sachs that suggest a possible conflation between
the two stages of the inquiry. They also correctly criticise decisions such as Christian
Education where the first stage is virtually entirely omitted. For a recent example of the
majority of the Court failing adequately to conduct the first stage of the analysis, see
Road Accident Fund v Mdeyide 2011 2 SA 26 (CC) and D Bilchitz ‘How should rights be
limited? Road Accident Fund v Mdeyide (2011) Journal of South African Law 568.
42 In the last section, I will suggest why, when we understand the nature of the substantive
enquiry we are to conduct, there would also be a systematic bias in favour of rights
protection.