other hand, provides a holistic, general question, incorporating notions of necessity,
suitability and proportionality in an ad hoc method, which is arguably less restraining of
the adjudicator’s own views.
Again, the example of Mazibuko demonstrates the destructuring of the proportionality
step within reasonableness review: in finding Johannesburg’s water reforms to be
reasonable, the court did not consider whether the City’s objectives – “to reduce
unaccounted for water, to rehabilitate the water network, to reduce water demand and to
improve the rate of payment”118 could have been pursued through other, less restrictive
alternatives. For example, the Constitutional Court did not consider whether the City’s
objectives might have been achieved through installation of conventional credit meters
(which would not result in automatic shutoffs); or whether a more generous quota applied
overall would be more cost-effective than keeping an indigent person’s register, given
that the City’s representative had indicated that the universalist system would be cheaper
to administer.119 In this respect, the structure of proportionality analysis might force the
adjudicator to engage more explicitly with the more rights-respecting alternatives. So too
may a more explicit adoption of the proportionality principle, without the requirement of
deference.
IV. PROPORTIONALITY-INFLECTED REASONABLENESS?
118
Mazibuko 2010 (3) BCLR 239 at para. 13.
See, e.g., Anashri Pillay & Murray Wesson, Recession, Recovery and Service Delivery: Political and
Judicial Responses to the Financial and Economic Crisis in South Africa, in ECONOMIC AND SOCIAL
RIGHTS AFTER THE GLOBAL FINANCIAL CRISIS, supra note 101, at 352.
119
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