of the right itself (e.g., social security), § 36 tells us that we may cast our
justificatory nets as far as the needs of an open and democratic society based on
human dignity, equality, and freedom will allow.87
Yet the Constitutional Court itself has declined to endorse any distinction between the
two approaches. It is now worth examining the differences in the approaches to
proportionality analysis and reasonableness review.
III. DISTINGUISHING THE TWO APPROACHES
Proportionality and reasonableness may be analytically similar in the way they heighten
the demand for justification according to the seriousness of the rights infringement; but
their methodologies are critically distinct. There are three main differences: first, in the
interpretation of the claimed right; second, in the approach to deference; and third, in the
structuring of the limitation. These differences are outlined below, before turning to the
question of how much turns on them, in actual practice.
A. The Content Inquiry
First, proportionality analysis and reasonableness review are distinct in the latitude they
provide to judges in interpreting the claimed-for right. This is a consequential matter for
Stu Woolman & Henk Botha, Limitations, in Constitutional Law of South Africa (2nd ed, Original
Service June 2008), 34.3-34.5.
87
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