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Chapter 10: Limitation of RightsIntroduction
- rights are no absolute
- s 36 of the Bill of Right contains the limitation clause
- courts must establish that a law infringes on one/more of the rights in the Bill of Rights —
.
- case that identifies infringement will only win if the court finds that the limitation is not
justifiable as required in s 36
This is difficult because:
- historical period of violation of fundamental rights/freedoms
-
- difficult/painful process
- commitment to rights-based Constitutional order means that political/social/economic/
historical controversies are resolved using language and logic of rights
- problematic because of application of empirical bases
- commitment to individual rights can go against public opinion
- difficult for many branches of government to bring their conduct into line with the BoR.
Limitation Clause:
! S v Makwanyane & Another (heard under the Interim Constitution)
! !
!
!
!
! s 33 (1) weighs up competing values on an assessment based on proportionality
! (in order to achieve an open/democratic society based on freedom/equality there can
! be NO absolute standard)
,The Makwanyane case effected the limitation clause within the final Constitution:
! 36(1) Rights within the Bill of Right may only be limited in terms of the law of general
! application:
! ! ! -
! ! ! - and must also take into account:
! ! ! ! - nature of the right
! ! ! ! - importance of the limitation
! ! ! ! - nature/extent of the the limitation
! ! ! ! - relationship between limitation + its purpose
! ! ! ! - less restrictive means to achieve its purpose
The Two Stage Approach:
1) Court must focus on
2) Court must ask
Walter’s Case:! entails examining
! ! ! (a) content/scope of the relevant protected right
! ! ! (b) meaning/effect of impugned enactment to see whether there is any
! ! ! limitation of (a) by (b)
Two approaches to the threshold enquiry
!
! 1) Gives comprehensive !
!
! as it is set out.
! 2) Accept notionally/hypothetically that a right has been limited and then to proceed to
!
! (there is much vacillation between these two approaches)
Content and Scope of the Relevant Protected Right:
! 1) Governed by general interpretation clause in s 39
! 2) Two-stage limitation process is crucial not to restrict the right unnecessarily by !
! adopting an excessively narrow interpretation of the right as ti would result in the !
! premature termination of the enquiry.
,Our Constitution is different from that of the US as limitations of rights are dealt with under s
36o of the Constitution and not at the threshold level. s 16(1) protects the freedom of
expression in a manner that does not warrant a narrow reading. Any restriction upon artistic
creativity must satisfy the rigours of the limitation analysis.
HOWEVER: the dangers of not following the US system become apparent in the New
National Party case as the majority found the “requirement that only those persons whose
names appear on the national voters roll may vote” was a “constitutional requirement of the
right to vote, and not a limitation of the right.” The questions was not whether the right to
vote was justifiably limited under s 36(1) by the electoral scheme but whether there was a
rational relationship between the electoral scheme and the achievement of a legitimate
governmental purpose. In conclusion, the majority did not make an effort to develop a
principled understanding of the right in its constitutional and political context.
Specific rights may also contain features relevant to delineating their scope and content. A
These internal modifiers may either restrict the scope of the
right or provide conditions for its operation.
Internal Modifiers can be divided into two categories:
1) Internal modifiers that either by explicitly excluding certain
practices from its protection or by conditioning its application more subtly.
2) There are
rights.
Is the right infringed?
Once scope/content has been determined:
! - the court must ask whether the limiting measure
! ! ! - determine the meaning and effect of the impugned enactment.
! - often a !
!
Justification:
Once the court has determined that a particular measure limits a protected right the second
stage of analysis begins, where it considers justification:
! ! - if justified: the measure has passed the (limitation must
! ! be in terms of law of general application and the limitation must be reasonable
, ! ! + justifiable in an open/democratic society based on equality/freedom/human
! ! dignity.
! ! - not justified: the legal provisions will be considered unconstitutional and hence
! ! invalid.
!
Law of General Application in the Justification Stage:
The limiting measure must be sourced in a law of general application.
However, a limitation in terms of a law of general application may be saved from
unconstitutionality by the limitation clause.
The two most common rationales advanced for this requirement are specifically aimed at
and to
What is required next is not clear as the CC has yet to articulate a general set of requirements
that must be met, rather, it has dealt with this requirement episodically and rather
unenthusiastically. BUT, the requirements that are clear demand both the form and content
of the source of the limiting measure.
! ! President of the Republic of South Africa and Another v Hugo: addressed the
! ! question of whether or not the powers vested in the President as Head of State
! ! would qualify as law for the purposes of s 36(1) in their separate dissenting !
! ! opinions. (The majority did not address the issue as it found that the measure
! ! in question effectively did not limit the right to equality.)
! ! !
! ! . The exercise of such power is non-recurrent
! ! and specific and intended to benefit particular persons or classes of persons.
! ! Furthermore, the Constitution makes no explicit demands of the impugned law
! ! in this regard beyond that it must of general applications.
! ! There is a need for accessibility, precision and general application that flows !
! ! from the concept of the rule of law. The Hugo case further qualified that it is an
! ! important principle of rule of law: precision and accessibility.
!
! ! - General Application
! ! - Accessibility
! ! - Precision
! ! These are the prerequisites reflect the minimalist position on what this !
! ! precondition demands of the content of the law in questions.
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