oa Constitutional Court Review - Rationality, reasonableness, proportionality : testing the use of standards of scrutiny in the constitutional review of legislation



At least three cases decided by the South African Constitutional Court in the 2010 term deal with constitutional challenges to legislation. In this brief overview, I discuss the Court's choice regarding the standard of scrutiny, and the way in which the selected standard is applied in each concrete case critically. Issues to be explored include: what is the justification for choosing a particular test? What are the practical consequences of applying different standards of scrutiny? Does it really make a difference? To which degree does the Court actually employ the sets of questions or prongs that it uses to characterise each test? How intense is the scrutiny made under the chosen test?


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