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156 Chapter 10
affirmative, and so on. This sequential exercise is substantially
different from an approach grounded in balancing and proportionality.
12 Not only is it more structured, but a ‘balancing
exercise’ is undertaken only at the very end of the inquiry, once it has
been established that the limitation does serve an important
objective, that it is rationally connected to such an objective, and
that it impairs the right as little as possible. If the limitation fails any
of the first three legs, the court need not engage in cost-benefit
analysis.
That the Oakes test should be seen as worthy of emulation in
South Africa after 1994 is hardly surprising. The test represents a bold
attempt to come to terms with the sometimes conflicting doctrines of
constitutional supremacy and separation of powers. The Oakes test
subjects fundamental-rights limitations to rigorous scrutiny, refuses
to lend legitimacy to the limitation of rights in the name of a crass
utilitarian calculus, links conceptually the grounds for finding a rights
infringement to the grounds for finding that such a limitation is
justified, and offers a sophisticated understanding of the proper
degree of deference the courts owe the legislature. Finally, the Oakes
test promotes analytically rigorous and politically candid judicial
reasoning.
But that is not the direction that we have chosen to go. In the end,
the Constitutional Court has opted for balancing. The metaphor of
balancing is so deeply embedded in our constitutional discourse that
we often use it without giving the actual meaning of the metaphor a
second thought. Our purpose in this section is to offer (a) several
definitions of balancing and (b) a number of trenchant critiques of the
practice. 13 This exercise is meant to clear the space for our preferred
reading of FC section 36.
3.1 Definitions of balancing
Balancing means the ‘head-to-head’ comparison of competing rights,
values or interests. It takes two basic forms.
Sometimes balancing means that one right (or interest or value)
will simply ‘outweigh’ another right (or interest or value). For
example, in Makwanyane, the Court held that the applicant’s right
not to be subject to cruel, inhuman and degrading punishment
(informed by the right to life and the right to human dignity)
12
Cf P Hogg ‘Canadian law in the Constitutional Court of South Africa’ (1998) 13
South African Public Law 1 7.
13 For a good faith reconstruction and critique of the Court’s doctrines of balancing
and proportionality, see S Woolman & H Botha ‘Limitations’ in S Woolman et al (n
6 above) Chapter 34.