Proportionality and the Incommensurability Challenge in the Jurisprudence of the South African Constitutional Court

The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the court balances when it confirms legislation, or when it corrects common law rules. In both cases, the court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.