LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Translating socio-economic rights 87
Proportionality and rational connectivity
To heighten the level of scrutiny under the general limitation clause,
a proportionality test, as inspired by Canadian jurisprudence 156 and
as is implicit in section 36(1), has been employed by the
Constitutional Court. The proportionality test has been applied in the
section 36 enquiry to determine whether a limitation is reasonable
and justifiable in an open and democratic society. In the Makwanyane
case, the Constitutional Court held that the limitation of
constitutional rights for a purpose that is reasonable and necessary in
a democratic society involves the weighing up of competing values
and ultimately an assessment based on proportionality. The fact that
the different rights have different implications for democracy and, in
the case of the Constitution, for ‘an open and democratic society
based on freedom and equality’, means that there is no absolute
standard which can be laid down for determining reasonableness and
necessity. The Court said that principles can be established, but the
application of these principles to particular circumstances can only be
done on a case-by-case basis. The Court went on to hold that this is
inherent in the requirement of proportionality, which calls for the
balancing of different interests. In the balancing process, according
to the Court, the relevant considerations will include the nature of
the right that is limited and its importance to an open and democratic
society; the purpose for which the right is limited and the importance
of that purpose to such a society; the extent of the limitation, its
efficacy and, particularly where the limitation has to be necessary,
and whether the desired ends could reasonably be achieved through
other means less damaging to the right. 157
In S v Bhulwana, 158 the Constitutional Court held that there is a
need to place the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the
infringement caused by the legislation on the other. The more
substantial the inroad into fundamental rights, the more persuasive
the grounds for justification must be. 159
There is room for application of a similar proportionality test in
socio-economic rights litigation. This is especially in those cases
where the state has failed to provide socio-economic goods and
services on the ground that their provision would affect certain
interests. An example of such case is the Khosa case. One could,
however, submit that the Khosa case is not a good example since it
was based on a negative violation under section 9 of the Constitution
156 See R v Oakes [1986] 1 SCR 103, 26 DLR (4th) 200.
157 Para 104.
158
1996 1 SA 388 (CC) (Bhulwana case).
159 Para 18.