Affirmative action and intensity of review : South African Police Service v Solidarity obo Barnard

In assessing the merits of an affirmative action measure, as with the merits of any law or conduct, a court must engage in at least two levels of reasoning. At the first level, a court must consider the reasons for and against the measure; its substantive merits. At the second level, a court must de...

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Bibliographic Details
Published in:Constitutional Court review (Pretoria, South Africa: 2008) South Africa: 2008), 2015-10, Vol.7 (1), p.163-197
Main Author: McConnachie, Chris
Format: Article
Language:English
Online Access:Get full text
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Summary:In assessing the merits of an affirmative action measure, as with the merits of any law or conduct, a court must engage in at least two levels of reasoning. At the first level, a court must consider the reasons for and against the measure; its substantive merits. At the second level, a court must determine the appropriate intensity of review. This involves deciding whether, and to what extent, it is institutionally appropriate for a court to interrogate the substantive merits. In practice, these first and second levels of reasoning are intertwined. However, it is important to recognise that they are conceptually distinct parts of a court’s reasoning process, even if they are inseparable in application.
ISSN:2073-6215
DOI:10.2989/CCR/2015.0008