ABSTRACT

According to Vicki Jackson, "'proportionality' analysis is becoming a term of art in constitutional law". Jackson may have referred to its "becoming" rather than being a term of art because of continuing variations in PA's components and the emphasis placed upon those components jurisdiction to jurisdiction, or perhaps even judge to judge within a given jurisdiction. Women have prevailed more often when litigating sex discrimination cases before the Constitutional Court of South Africa (CCSA) than before the Supreme Court of Canada (SCC). In their adjudications of the rather abstract and complex right to equality the justices of the apex courts of Canada and South Africa have built discretion into their doctrines. The greatest quantum of this discretion when adjudicating gender equality cases lies in the Prima Facie Stage of PA. As with Canada's "discriminatory" designation, in South Africa the apex court must find that a differentiation violates the complainant's dignity.