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

Volume 4, Issue 1
  • ISSN : 2073-6215



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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