example of the reasonableness standard, which was forged by the court in the presence of
both clearly enumerated and justiciable constitutional economic and social rights, and a
structured limitations clause.24 In Part II, I contrast this approach with proportionality
analysis, which has been deployed in civil and political constitutional rights cases in
South Africa, but far fewer economic and social rights cases. In Part III, I discuss a more
direct integration of proportionality into reasonableness review, and suggest what is
gained, and what is lost, by this approach. A final question is whether reasonableness
review, developed out of largely common law traditions, will travel as well as
proportionality analysis purports to do.
I. REASONABLENESS REVIEW
The South African Constitution provides a useful case study in which to evaluate the
connections between reasonableness, proportionality and economic and social rights.
With an expansive text,25 and the rights-promoting legacy of the anti-apartheid struggle,26
the Constitutional Court’s approach to interpreting the constitutional rights to housing,
health care, food and water, social security, and education has drawn a great deal of
comparative attention. And if proportionality analysis jurisprudence is usually developed
24
Sth. Afr. Const. §§ 26-29 (rights to housing, healthcare, food, water and social security, children’s rights,
and education); § 36 (limitations of rights).
25
Id.
26
For analysis, see Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 S. AFR. J.
HUM. RTS. 146 (1998); THEUNIS ROUX, THE POLITICS OF PRINCIPLE (2013).
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