12 Limitation - Centre for Human Rights, University of … S v Zuma & others 1995 (2) SA 642 (CC), 1995 (1) SACR 568 (CC), 1995 (4) BCLR 401 (CC) at 414 (fundamental rights analysis

12 LimitationStuart Woolman

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12.1 Introduction to limitation analysis . . . . . . . . . . . . . . . . . . . . . . 12--1(a) Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--1(b) Mechanics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--2(c) History of the limitation clause of the interim Constitution . . . . . . 12--4

(i) The Technical Committee and the evolution of the clause . . . . 12--4 (ii) The Canadian debt . . . . . . . . . . . . . . . . . . . . . . . . 12--6(iii) The American influence . . . . . . . . . . . . . . . . . . . . . 12--9(iv) The German contribution . . . . . . . . . . . . . . . . . . . . . 12--12

(d) History of the limitation clause of the final Constitution . . . . . . . . 12--12 (i) Deletions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--12

(aa) Levels of scrutiny . . . . . . . . . . . . . . . . . . . . . 12--13(bb) Essential content of the right . . . . . . . . . . . . . . . . 12--15

(ii) Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--16

12.2 Relationship between fundamental rights analysis and limitation analysis . 12--17(a) The general relationship . . . . . . . . . . . . . . . . . . . . . . . . . 12--17(b) The specific relationship between internal limitations and general

limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--24D

12.3 Burden of legal justification . . . . . . . . . . . . . . . . . . . . . . . . . 12--26

12.4 Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12--27

12.5 Law of general application . . . . . . . . . . . . . . . . . . . . . . . . . . 12--28

12.6 Limitations analysis under s 33(1) of the interim Constitution . . . . . . . 12--32(a) Reasonable and justifiable in an open and democratic society based

upon freedom and equality . . . . . . . . . . . . . . . . . . . . . . . 12--35(b) Reasonable and necessary and justifiable in an open and democratic

society based upon freedom and equality . . . . . . . . . . . . . . . . 12--37

12.7 Related to free and fair political activity . . . . . . . . . . . . . . . . . . . 12--38

12.8 Negating the essential content of the right . . . . . . . . . . . . . . . . . . 12--40

12.9 Purpose of s 33(2) of the interim Constitution . . . . . . . . . . . . . . . 12--43

[REVISION SERVICE 5, 1999] 12--i

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12.10 Purpose of s 33(3) of the interim Constitution . . . . . . . . . . . . . . 12--45

12.11 Purpose of s 33(4) of the interim Constitution . . . . . . . . . . . . . . 12--45

12.12 Purpose of s 33(5)(a) and (b) of the interim Constitution . . . . . . . . . 12--46

12.13 Limitation analysis under s 36(1) of the final Constitution . . . . . . . . 12--47(a) Reasonable and justifiable in an open and democratic society based

upon human dignity, equality and freedom . . . . . . . . . . . . . . . 12--47(b) Stages of analysis, levels of scrutiny and threshold inquiries . . . . . 12--48(c) Relevant factors and the proper order of analysis . . . . . . . . . . . 12--49(d) Balancing ---- the metaphor and its problems . . . . . . . . . . . . . . 12--54

(i) What balancing is . . . . . . . . . . . . . . . . . . . . . . . . 12--54 (ii) Why balancing is often impossible . . . . . . . . . . . . . . . 12--55

(aa) Pluralism, incommensurability, complexity and choice . . 12--56(bb) Consequences for limitation analysis . . . . . . . . . . . 12--58(cc) What to make of the foregoing examples . . . . . . . . . 12--61

(iii) Limitations without balancing: theory and practice . . . . . . . 12--62

12.14 Purpose of s 36(2) of the final Constitution . . . . . . . . . . . . . . . . 12--64

12--ii [REVISION SERVICE 5, 1999]

CONSTITUTIONAL LAW OF SOUTH AFRICA

12.1 INTRODUCTION TO LIMITATION ANALYSIS

1REVISION SERVICE 2, 1998Section 33(1) of the interim Constitution reads: ‘The rights entrenched in this Chapter may be limited by law of general application, providedthat such limitation ----(a) shall be permissible only to the extent that it is ----

(i) reasonable; and(ii) justifiable in an open and democratic society based upon freedom and equality; and

(b) shall not negate the essential content of the right in question,and provided further that any limitation to(aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30(1)(d) or (e) or (2); or(bb) a right entrenched in section 15, 16, 17, 18, 23, or 24, in so far as such rights relate to free and

fair political activity,shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary.’

Section 36(1) of the final Constitution reads: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to theextent that the limitation is reasonable and justifiable in an open and democratic society based onhuman dignity, equality and freedom, taking into account all relevant factors, including:(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and(e) less restrictive means to achieve the purpose.’

(a) Purpose

The limitation clause has a fourfold purpose. First, it functions as a reminder that the rightsenshrined in the Constitution are not absolute. The rights may be limited where therestrictions can satisfy the test laid out in the limitation clause. Secondly, the limitation clausetells us that rights may only be limited where and when the stated objective behind therestriction is designed to reinforce the values which animate this constitutional project. Thosevalues include openness, democracy, freedom, and equality, as well as the more specificvalues reflected in the individual rights themselves. Thirdly, the test set out in the limitationclause ---- with a bit of judicial amplification ---- will allow for open and candid considerationof competing government, public, private, and constitutional interests. That is, the limitationclause should provide us with a mechanism for weighing or balancing competing fundamen-tal values against one another. Fourthly, the limitation clause represents an attempt to solvethe problem of judicial review by establishing a test which determines the extent to whichthe democratically elected branches of government may limit our constitutionally protected

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[REVISION SERVICE 2, 1998] 12--1

rights and the extent to which an unelected judiciary may override the general will and writethe law of the land. By making the guidelines for judicial nullification of majoritariandecisions reasonably precise the drafters hoped to provide at least a partial solution to theproblem of judicial review.1

(b) Mechanics

2Constitutional analysis under the Bill of Rights takes place in two stages.2 First, the applicantis required to demonstrate that her ability to exercise a fundamental right has been infringed.This demonstration itself has several parts. To begin with, the applicant must show that theactivity for which she seeks constitutional protection falls within the sphere of activityprotected by a particular constitutional right. If she is able to show that the activity for whichshe seeks protection falls within the value-determined ambit of the right,3 then she must show,in addition, that the law or government action in question actually impedes the exercise ofher protected activity. This second showing may be satisfied by demonstrating that the lawor government action either expressly intends to restrict the right or effectively restricts theexercise of the right.4

1 See Third Report of Technical Committee on Fundamental Rights (28 May 1993) 9--10:‘In choosing the exact formulation of such clauses, most human rights documents attempt to define with a fairdegree of precision, the guidelines which the judge should follow in fulfilling their duty in this respect. This isparticularly so as the judges are generally secure in tenure . . . and so therefore less democratically accountablethan the legislature, on whose laws they sit in judgment. Such guidelines may be all the more necessary in a legalsystem, moving in to judicial review of legislative action for the first time.’

Whether any solution to the countermajoritarian problem is possible where judges possess the power to strike downlegislation or enjoin executive action is a subject discussed at length above, Kentridge & Spitz ‘Interpretation’§§ 11.6 and 11.9. See also Stuart Woolman ‘Riding the Push-Me Pull-You: Constructing a Test that Reconciles theConflicting Interests which Animate the Limitations Clause’ (1994) 10 SAJHR 60.

2 The courts have been quick to adopt this two-step form of analysis. See S v Zuma & others 1995 (2) SA 642 (CC),1995 (1) SACR 568 (CC), 1995 (4) BCLR 401 (CC) at 414 (fundamental rights analysis under IC Chapter 3 ‘calls fora two-stage approach. First, has there been a contravention of a guaranteed right? If so, is it justified under the limitationclause?’). See also S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (2) SACR 1 (CC), 1995 (6) BCLR 665(CC) at 707D--E; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at 26H--27A.

3 See Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (Ck), 1994 (1) BCLR 17 (Ck) at 34C (‘[E]stab-lish[ing] . . . the meaning or contents . . . of the relevant fundamental rights [entails] . . . a value judgment as opposedto a legalistic or positivistic approach’). However, the Constitutional Court is often reluctant to determine clearlythe ambit of the right, fearing that such an approach to demarcation will bind them in the future. See, for example,Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), 1996 (5)BCLR 745 (CC), 1996 (1) SACR 587 (CC) at para 94 (‘The less we say meanwhile, in short, the better that will bein the long run’).

4 See Irwin Toy Ltd v Quebec (Attorney General) (1989) 58 DLR (4th) 577 (setting out different tests forgovernment actions which intentionally restrict the protected activity and government actions which effectivelyrestrict the protected activity). The US ‘chilling effects’ doctrine offers a potentially more generous solution to theproblem of restrictive effects. According to this doctrine, a constitutionally protected activity ---- such as expression---- is chilled when people whose actions are not constitutionally proscribable are intimidated into not exercisingtheir right by a law which proscribes some other form of activity. A restriction may chill protected activity in twoways. First, it may be overbroad. The law may sweep into its proscriptive coverage both constitutionally forbiddenactivity and constitutionally protected activity. See Secretary of State of Maryland v J H Munson Co 467 US 947,104 SCt 2839 (1984). Secondly, it may be vague. The law may so unclearly define the proscribed activity that peoplewill refrain from exercising their rights because they fear they fall afoul of the law and be punished. See Connallyv General Construction 269 US 385, 46 SCt 126 (1926).


12--2 [REVISION SERVICE 2, 1998]

If the court finds that the law in question infringes the exercise of the fundamental right,the analysis may move to its second stage.1 In this second stage the government ---- or theparty looking to uphold the restriction ---- will be required to demonstrate that the infringe-ment is justifiable.2 Under both the interim and final Constitutions this last determination ismade, not within the context of the fundamental freedom, but within the limitation clause.It is important to note that the government need not litigate this second stage. If it believesthat the infringement cannot in fact be justified under the limitation clause, then it mayconcede the argument. The applicant’s prima facie showing of an infringement will then bedeemed sufficient for establishing a constitutional violation.3 According to s 33(1) of the interim Constitution, if the respondent does attemptto demonstrate that the restriction on the fundamental right is constitutionally justifiable,subsec (1)(a) and (b) require that the respondent answer satisfactorily at least three questions.First, is the restriction placed on the right ‘reasonable’? Secondly, is the restriction placedon the right ‘justifiable in an open and democratic society based upon freedom and equality’?Thirdly, does the restriction placed on the right negate the ‘essential content of the right’?To pass constitutional muster the respondent must be able to convince the court that thefirst and second questions are answered affirmatively, and that the third question isanswered negatively. Finally, if the action has restricted the exercise of a right covered ineither subsec (1)(aa) or (bb), then in order for the restriction to survive constitutional scrutinyit must be deemed ‘necessary’ in addition to being deemed ‘reasonable’.

According to s 36(2) of the final Constitution, a respondent attempting to show that arestriction of a fundamental right is justifiable must answer this question satisfactorily: is therestriction placed on the right reasonable and justifiable in an open and democratic societybased on human dignity, equality, and freedom? In answering this question the respondentand the court are instructed to consider the following factors:

(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and(e) less restrictive means to achieve that purpose.

Of course, these questions and factors simply reflect the wording of the text. It remainsfor the Constitutional Court to give substance to terms such as ‘reasonable’, ‘justifiable’,‘open and democratic society’, ‘human dignity’, ‘freedom’, and ‘equality’. This exercise intextual exegesis engages much of the rest of this chapter.

1 See Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (Ck), 1994 (1) BCLR 17 (Ck) at 34E (‘Once it isestablished that a statute does interfere with a fundamental right, the onus moves to the person attempting to justifythe interference’).

2 As Chapter 10 ‘Application’ (above) makes clear, I employ the terms ‘state action’ and ‘government action’loosely to include all laws, legal rules and legitimate exercise of state power. That I believe that the applicationof the Bill of Rights of both the interim and the final Constitutions is horizontal has no effect on the mechanics oflimitation analysis described in this chapter. It is the state interest or objective animating the impugned legislation,rule or act that is in issue under the limitations clause, whether the application of the chapter is deemed to be verticalor horizontal.

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(c) History of the limitation clause of the interim Constitution

4Like all documents of its kind, the interim Constitution has a complex history. The textreflects a wide array of indigenous sources and foreign influences. This section attempts toseparate out the various influences upon the limitation clause in the interim Constitution withthe aim of better understanding the clause’s history, and thereby better understanding its purpose.1

(i) The Technical Committee and the evolution of the clause2

The basic form of the limitation clause did not change over the course of the twelve reportsof the Technical Committee on Fundamental Rights. In its Second Report the Committeeidentified what it believed to be the primary features of a limitation clause: (a) a law of generalapplication threshold test; (b) a reasonableness requirement; (c) a necessity requirement;(d) a justifiability in a free, open and democratic society requirement; (e) a proportionalityor balancing approach; (f) non-derogation from the core of the right being limited;(g) immunization of select rights from any limitation at all. With the exception of the lastcharacteristic ---- immunization of select rights from limitation ---- all the other attributesappear in one form or another in the twelfth and final version of the clause.3 That said, thetransformation of some of these attributes over twelve drafts is worth noting and gives ourinterpretation of the clause initial direction.

The first significant transformation was the elimination of the immunization proviso.Initially it appeared that certain rights would be expressly inviolable.4 In the seventh draft

1 See ANC (Border Branch) v Chairman, Council of State, Ciskei 1994 (1) BCLR 145 (Ck) at 158D--E: ‘[T]hetesting of laws against fundamental rights has not really been undertaken by the Courts of the Republic of SouthAfrica or Ciskei except to a very limited extent. For that reason it is only to be expected that a lot of learning willhave to be gleaned from those institutions and Courts which have had occasion to undertake this task.’

2 That the Technical Committee or Ad Hoc Committee notes will ‘generally’ be of ‘some’ assistance inunderstanding the meaning and purpose of a constitutional provision is beyond dispute ---- even if the value of aparticular set of notes is a point of contention in a specific instance. See S v Makwanyane (supra) at 679E--F (BCLR)(Chaskalson JP concurring) (‘Such background material can provide a context for interpretation of the Constitutionand where it serves that purpose, I can see no reason why it should be excluded. The precise nature of the evidence,and the purpose for which it may be tendered, will determine the weight to be given to it’).

3 The disappearance of this last characteristic of immunization of select rights from limitation in favour of ananalytic structure which would subject all rights to justifiable limitation may overemphasize symmetry at theexpense of good sense. See Mureinik ‘A Bridge to Where: Introducing the Bill of Rights’ (1994) 10 SAJHR 31.

4 See Third Report of the Technical Committee on Fundamental Rights (28 May 1993) 8: ‘Typical among thosewhich are regarded as absolutely inviolable are freedom from torture and freedom of conscience, religion, belief,thought and opinion.’ See also Fifth Report of the Technical Committee on Fundamental Rights (11 June 1993) 14:

‘30 Limitation With the exception of the rights and freedoms referred to in Section 6(2), 7 (excepting the right not to be subjectto forced labour), 9 (excepting freedom of religion), 21 and 27, the rights and freedoms entrenched in this Chaptermay be limited by a law of general application, provided that such limitation ----(a) shall be permissible to the extent

(i) necessary and reasonable, and(ii) justifiable in a free, open and democratic society,

(b) shall not negate the essential content of the right or freedom in question.’ (Emphasis added.)[continued on page 12--5]



that commitment dissolved.1 However, that certain rights were no longer expressly inviolabledid not mean that the drafters believed that these rights were now in fact limitable. Bystipulating that no restriction on a fundamental right may negate the essential content of theright the drafters believed that they had effectively immunized certain rights from limitation.And for good reason. It is hard to know how one could limit the freedoms from slavery,servitude, forced labour or torture without negating their essential content.5 The second significant transformation of the limitation clause also took place betweenthe Fifth and Seventh Reports of the Technical Committee.2 The word ‘necessary’ dis-appeared. The disappearance signals one of two choices. Either the Committee wished torelax the limitation test or the Committee believed the word to be redundant at this juncture.

I say ‘at this juncture’ because the third significant transformation witnesses the resurrec-tion of the word ‘necessary.’ This time ---- in the Eleventh Report ---- ‘necessary’ occupies avery different place in the limitation clause. In this report the term ‘necessary’ is intended tomodify the limitation clause test with respect to the rights enumerated in s 33(1)(aa) and (bb).Restrictions on these rights must not only be ‘reasonable’, as provided for in s 33(1)(a), butalso ‘necessary’, as provided for in s 33(1)(b). The notes in the Eleventh Report make it clearthat the term ‘necessary’ is meant to subject restrictions on the enumerated right to a stricterform of judicial scrutiny. Indeed, the rights in s 33(1)(aa) and (bb) had been said to be subjectto ‘strict scrutiny’ in previous drafts of the interpretation clause ---- and not in the limitationclause.3 However, when the drafters got wind of the vast potential for incoherence that wouldresult from having a ‘reasonableness’ test in a Canadian-style limitation clause and anAmerican-style shifting of standards of scrutiny in the interpretation clause, they excised the

The Combined Meeting of the Ad Hoc Committee and the Technical Committee on Fundamental Rights heldon 14 September 1993, at 22, generated the following list of illimitable rights: Human Dignity, Freedom and Securityof the Person (in so far as it protects against torture or cruel, inhuman or degrading treatment punishment), Rightsof Detained, Arrested and Accused Persons (in so far as they include the rights to reasons for detention, to detentionunder dignified conditions, to be informed of the right to remain silent and to not be compelled to make a confessionif arrested, and the rights if accused to be informed of the charge, to be presumed innocent, to remain silent duringplea proceedings, not to be a compellable witness, to not be convicted of an ex post facto crime, to not be subjectto two trails for the same crime, to be tried in a language the accused understands, and to be sentenced within areasonable period of conviction), and the Rights of Children not be neglected, abused, or subject to child labour andto be detained in appropriate conditions. The suspension clause was also said to be illimitable.

1 Seventh Report of the Technical Committee on Fundamental Rights (29 July 1993) 10:‘Limitation . . . The rights and freedoms entrenched in this Chapter may be limited by a law applying generally and not solelyto an individual case, provided that such limitation ----(a) shall be permissible to the extent

(i) reasonable, and(ii) justifiable in a free, open and democratic society, and

(b) shall not negate the essential content of the right or freedom in question . . ..’2 The Fifth Report reads that rights and freedoms may be limited ‘to the extent (i) necessary and reasonable’.

The Seventh Report reads that rights and freedoms may be limited ‘to the extent (i) reasonable’.3 See Tenth Report of the Technical Committee on Fundamental Rights (5 October 1993) 30 (‘[A] law limiting

a right entrenched in sections . . . shall be strictly construed for constitutional validity’) (emphasis added). The debtto American jurisprudence is made explicit in the draft committee notes.

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offending text in the interpretation clause and modified the limitation clause accordingly.1 Itis to such foreign debts, influences and contributions that we now turn.

(ii) The Canadian debt

6The undeniable debt our limitation clause owes to the Canadian Charter argues for payingclose attention to the lessons that Canadian case law has to offer.2 Canadian limitation clausejurisprudence begins with R v Oakes.3 In Oakes the Supreme Court laid out a fairly stringenttest for determining when a government’s prima facie infringement of a fundamental rightis constitutional. The test has two prongs. First, the objective of the impugned governmentaction must be of sufficient importance to warrant overriding a constitutionally protected

1 For a fuller explanation of the problems with the original formulation of the limitation and interpretation clauses,see Albertyn, Murphy, Halfkenny & Woolman ‘Critique of the Tenth Progress Report of the Technical Committeeon Fundamental Rights’ (unpublished memorandum on file with author). In the Eleventh Report of the TechnicalCommittee on Fundamental Rights (8 November 1993) 14--15 the Committee explains the change as follows:

‘If the Council is of the opinion that laws limiting certain rights should be subject to stricter form of review thanlaws limiting other rights, the Technical Committee proposes the inclusion of the second proviso as submitted.This would mean that for the laws limiting rights listed in the proviso, a necessity test will apply in addition tothe test for reasonableness already required by clause 34(1)(a)(i). In this way, the further logical development ofprinciples conceived in Canadian jurisprudence will be possible without creating the danger of confusion withthe fundamentally different principles ennunciated in US jurisprudence.’

See also Du Plessis ‘A Note on Application, Interpretation, Limitation and Suspension Clauses in South Africa’sTransitional Bill of Rights’ (1994) 5 Stellenbosch LR 86 at 89 (Committee’s attention drawn to potential incoherenceby aforementioned memo; offending text in interpretation clause excised and moved to limitation clause).

2 The interim Constitution’s limitation clause and the Canadian Charter’s limitation clause share two importantcharacteristics. First, both limitations clauses apply generally to the constitutionally enshrined rights. The generalityof these two limitations clauses distinguishes the Canadian Charter and the interim Constitution from thoseConstitutions (and Conventions) which have individualized limitation clauses within particular rights and freedomsclauses and those Constitutions which have no limitation clause(s) at all. Secondly, the language of subsec (1)(a)of the interim Constitution’s limitation clause is strikingly similar to the language of the Canadian Charter’slimitation clause. Section 1 of the Canadian Charter holds that the ‘guarantees . . . set out in . . . [the Charter are]subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democraticsociety.’ Subsection (1)(a) of the interim Constitution’s limitation clause holds that the ‘rights of this Chapter [onFundamental Rights] may be limited by law of general application provided that such limitation . . . shall bepermissible only to the extent that it is . . . reasonable . . . and justifiable in an open and democratic society basedupon freedom and equality’.

3 [1986] 1 SCR 103, 26 DLR (4th) 200 at 227--8. For more concise wording of this limitations test, see R v Chaulk[1990] 3 SCR 1302, 62 CCC (3d) 193 at 216--17. See also Edwards Books & Art Ltd v The Queen [1986] 2 SCR713, 35 DLR (4th) 1 at 41 (while the Oakes test appears to require the government to go to great lengths to answersatisfactorily all of it questions, the Edwards court suggests that the government’s showing might be subject to aless exacting standard of proof and that the same questions need not be asked in every case). See below, §§ 12.3and 12.4 for a more detailed discussion of burdens and standards of proof. The Oakes test has been cited withapproval in the vast majority of recent South African Supreme Court judgments. See Qozeleni v Minister of Lawand Order 1994 (3) SA 625 (E); Kauesa v Minister of Home Affairs 1995 (1) SA 51 (Nm), 1994 (3) BCLR 1 (Nm) at26; S v Majavu 1994 (4) SA 268 (Ck), 1994 (2) BCLR 56 (Ck) at 83--4. But see S v Zuma (supra).



right or freedom.1 To be characterized as sufficiently important the government objectivemust relate to concerns which are ‘pressing and substantial’ in a free and democratic society.Secondly, assuming that a sufficiently important objective or interest has been established,the means chosen to achieve the objective must pass a proportionality test.2 This proportion-ality test has, in turn, three parts. The first part requires that the government restriction of theright be ‘rationally connected’ to its objective and not be arbitrary, unfair or based uponirrational considerations.3 The second part requires that the government restriction impairthe right or freedom as ‘little as possible’. The third part requires that the restriction’s effectson the limitation of rights and freedoms are proportionate to the objective.4

7 The problem with the Canadian limitation clause lies in the second part of the Oakesproportionality prong: the requirement that the government restriction impairs the right orfreedom as ‘little as possible.’ On its face, the minimal impairment test appears to require

1 In deciding what sorts of principles are foundational for a free and democratic society, and of sufficientimportance to justify an infringement of constitutional rights, the Oakes court suggested that one might begin withsuch values as the dignity of the individual, social justice, equality, tolerance, cultural diversity, and a commitmentto representative and participatory politics. This list is in no sense exhaustive. One can easily imagine other valuesof sufficient importance in an ‘open and democratic [South African] society based upon freedom and equality’ whichwould justify the infringement of constitutionally guaranteed rights. Other candidates include national security,public safety, public order, crime prevention, morals, health, personal reputation and privacy, the country’s economicwelfare, and maintaining the impartiality of the adjudicatory branches of government. However, in light of SouthAfrica’s history such justifications for infringement as national security and public order must be viewed withcaution.

2 Canadian jurisprudence hardly has the last word on proportionality tests. For an excellent article on EuropeanCourt of Human Rights proportionality jurisprudence, see Eissen ‘The Principle of Proportionality in the Case-Lawof the European Court of Human Rights’ in MacDonald, Matscher & Petzold (eds) The European System for theProtection of Human Rights (1993) 125. The Constitutional Court has made several positive references to ECHRproportionality jurisprudence. See e g S v Makwanyane (supra); Coetzee v Government of the Republic of SouthAfrica 1995 (4) SA 631 (CC), 1995 (10) BCLR 1382 (CC).

3 The requirement that the restrictive measure be rationally connected to achievement of its objective is a testthat a government act or legislation rarely fails in Canadian jurisprudence. But see R v Oakes [1986] 1 SCR 103,26 DLR (4th) 200 (reverse onus provision requiring individual in possession of drugs to show that she was nottrafficking deemed rationally unrelated to objective of stopping trafficking); R v Morgenthaler [1988] 1 SCR 30,44 DLR (4th) 385 (holding that the procedures imposed by the former s 251(1) (now s 287(1)) of the Criminal Codewere arbitrary, unfair and rationally unrelated to the legislation’s objective ---- restricting abortion to cases in whichthe woman’s life was in danger); Andrews v Law Society of British Columbia [1989] 1 SCR 143, 56 DLR (4th) 1(holding that citizenship requirements for bar membership were unrelated to the objective of ensuring that lawyerscarried out their duties in an honourable and conscientious manner). However, the rational connection requirementdoes provide a minimum floor for justification below which government’s explanations may not fall.

4 The Canadian Supreme Court has found minimum drug sentences (R v Smith [1987] 1 SCR 1045, 40 DLR(4th) 435), laws protecting the confidentiality of matrimonial proceedings (Edmonton Journal v Alberta [1989] 2SCR 1326, 64 DLR (4th) 577), by-pass and notice provisions for abortions (R v Morgenthaler [1988] 1 SCR 30, 44DLR (4th) 385), citizenship requirements for bar membership (Andrews v Law Society of British Columbia [1989]1 SCR 143, 56 DLR (4th) 1), and restrictions on advertising by dentists (Rocket v Royal College of Dental Surgeons[1990] 2 SCR 232, 71 DLR (4th) 68) to impose costs and injuries disproportionate to the alleged benefits. On theother hand, it has found measures intended to prevent drunk-driving (R v Hufsky [1988] 1 SCR 621, 40 CCC (3d)398; R v Thomsen [1988] 1 SCR 640, 40 CCC (3d) 411), to restrict publication of sex-assault victim’s names(Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122, 52 DLR(4th) 690), and to prohibitpicketing outside courthouses (BCGEU v British Columbia (Attorney General) [1988] 2 SCR 214, 53 DLR (4th)1) to impose costs proportionate to the benefits realized. Unfortunately the qualitatively different kinds of interestsat stake from case to case ---- and thus the highly case specific nature of the cost--benefit analysis ---- has meant thatthe court has been unable to articulate generally useful or applicable standards for this part of the proportionalityanalysis.

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that the government find and employ the least restrictive means possible to achieve itsobjectives when a fundamental right is to be infringed. However, as decisions followingOakes have been quick to recognize, such a requirement invites significant judicial interven-tion into legislative policy-making, a task for which the courts are clearly not suited.1 Theminimal impairment test, so the critique goes, allows courts to strike down legislation underthe guise of having found a ‘better’ means ---- a less restrictive means ---- of achieving thelegislature’s objectives. To combat this problem of judicial interference, and to givethe government more room to manoeuvre, the post-Oakes court has called for a more flexibleapproach to the minimal impairment test.2 The problem with this solution, however, is thatthe court has been generally unable to decide which situations demand a weaker versionof the minimal impairment test and which situations require a stronger test.3 The danger inthe court’s failure to work out which sorts of governmental action receive more deferentialtreatment and which receive stricter scrutiny is that all government action will receive thesame watered-down test.4 A watered-down test threatens indiscriminate judicial deference.Indiscriminate deference, in turn, may amount to judicial abdication.8 The South African limitation clause provides a partial solution to this problem. Thelimitation clause clearly identifies which particular rights and situations deserve especiallyclose judicial attention and which rights and situations allow for greater legislativemanoeuvrability and the attendant judicial deference. As we have already seen, subsec (1)(a)says that all restrictions on fundamental rights must be ‘reasonable’ and ‘justifiable in anopen and democratic society based upon freedom and equality’. Subsection (1)(b) says that,in addition to the governmental restrictions being ‘reasonable’, restrictions on rights listed

1 See Reference re Public Service Employees Relations Act (Alta) [1987] 1 SCR 313 at 392, 38 DLR (4th) 161.2 Reference re ss 193 and 195.1(1)(c) of the Criminal Code [1990] 1 SCR 1123 at 1138, 56 CCC (3d) 65 (‘The

legislative scheme . . . need not be the most ‘‘perfect’’ scheme that could be imagined by this Court or any otherCourt. Rather it is sufficient if it is appropriately and carefully tailored in the context of the infringed right’); EdwardBooks and Art Ltd v The Queen [1986] 2 SCR 713, 35 DLR (4th) 1 at 41 (‘[T]he nature of the proportionality testwould vary depending upon the circumstances. Both in articulating the standard of proof and in describing thecriteria comprising the proportionality requirement, the Court has been careful to avoid rigid and inflexiblestandards’); Black v Law Society of Alberta [1989] 1 SCR 591, 58 DLR (4th) 317 at 348 (‘legislature must be givensufficient room to achieve its objective’); USA v Cotroni [1989] 1 SCR 1469 at 1489, 48 CCC (3d) 193(‘a mechanistic approach [to the proportionality test] must be avoided’); Andrews v Law Society of British Columbia[1989] 1 SCR 143, 56 DLR (4th) 1 at 41 (‘The test must be approached in a flexible manner. The analysis shouldbe functional, focusing on the character of the classification in question, the constitutional and societal importanceof the interests adversely affected, the relative importance to the individuals affected of the benefit of which theyare deprived, and the importance of the state interest’).

3 For example, the court has said that cases involving the criminal justice system are subject to closer judicialscrutiny and a stricter form of the minimal impairment test than labour or business regulations, because criminaljustice is an area in which the court can claim greater expertise. McKinney v University of Guelph [1990] 3 SCR229, 76 DLR (4th) 545. And yet in at least one criminal case the court applied a fairly weak version of the minimalimpairment test and upheld the extradition of the accused. USA v Cotroni [1989] 1 SCR 1469, 48 CCC 193. Seealso Dagenais v Canadian Broadcasting Corp (1994) 120 DLR (4th) 12 (court apparently employs weakenedversion of Oakes test in criminal context).

4 See R Colker ‘Section 1, Contextuality and the Antidisadvantage Principle’ (1992) 42 University of Toronto LJ77 at 104.



in subsec (1)(b) must also be ‘necessary’ in order to pass constitutional muster.1 Thelimitation clause clearly intends that those rights covered by both the ‘reasonable’ require-ments of subsec (1)(a) and the ‘necessary’ requirements of subsec (1)(b) will receive greaterjudicial protection, and concomitantly, that the government will have far less room tomanoeuvre when placing restrictions on these rights. On the other hand, those rights coveredonly by the ‘reasonable’ requirement of subsec (1)(a) are clearly meant to receive far less inthe way of judicial solicitude and to be far more susceptible to government restriction.2 Thusthe express language of the limitation clause relieves the Constitutional Court of at least someof the responsibility for deciding which rights require greater judicial protection and whichsorts of legislative enactments will receive greater judicial deference.9 Of course, the language of the limitation clause only tells us which rights receive‘reasonable’ and ‘necessary’ protection, and which rights receive the weaker ‘reasonable’protection. The clause does not tell us the extent of the judicial protection offered in eithercase.3 The indeterminacy of the limitation clause language and the ‘desirable’ meaning ofthese different levels of scrutiny is the subject of the next subsection and § 12.6.

(iii) The American influence

The notion of shifting levels of scrutiny, where some rights are seen as deserving ‘reasonable’and ‘necessary’ protection, while other rights are accorded the weaker ‘reasonable’ protec-tion, is borrowed from American fundamental rights and equal protection jurisprudence.4

Indeed, previous drafts of the interim Constitution made the debt explicit by stating thatrestrictions on certain rights would be subject to ‘strict scrutiny’ ---- the highest degree ofprotection American constitutional law affords fundamental rights and certain classes of

1 These more highly protected rights and freedoms include those of dignity, security, conscience, religion,thought, belief, opinion, voting, campaigning, freedom from servitude, unlimited detention, arrest without process,and also freedom of expression, association, assembly, movement, information, and administrative justice in so faras they relate to political activity.

2 Those rights which receive a comparatively lesser degree of judicial solicitude under the limitation clauseinclude privacy, life, residence, labour relations, property, language, education, citizenship, access to court,environment, economic activity, certain aspects of children’s rights and religious rights, and, finally, expression,association, assembly, movement, access to information and administrative justice in so far as these rights do notrelate to political activity. For an explanation of the lesser degree of solicitude afforded these rights see below, § 12.6.

3 The court could, if it so desired, define ‘reasonable’ to permit any objectives ‘rationally’ connected to the meansdesigned to effect them. Almost all government restrictions on rights protected by the ‘reasonable’ requirementwould then pass constitutional muster. The court could also define ‘reasonable’ and ‘necessary’ protection in amanner which reflected a desire to give the legislature largely unfettered power to operate. That is, ‘necessary’ couldmean that the means employed are simply necessary for realizing the state’s objective. Construed in this way,‘necessary’ would not require the court to undertake an inquiry into the extent to which the right in question wasimpaired.

4 Unlike the interim Constitution’s limitation clause, the US Constitution does not expressly create a hierarchyof rights. The shifting levels of scrutiny found in equal protection and fundamental rights analysis are judiciallycreated heuristic devices.

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individuals in equal protection cases.1 However, while the use of levels of scrutiny terminol-ogy helps avoid some of the problems which plague Canadian limitation clause juris-prudence, significant caution should be exercised before adopting the particular meaningsassigned to the various levels of scrutiny in American jurisprudence.10 The first reason why great care should be taken before American terms and definitionsare appropriated is that the American approach to levels of scrutiny reflects a very specificreading of American history and an equally specific understanding of the requirements ofjustice which flow from such a reading.2 A second reason for care before appropriatingAmerican levels of scrutiny learning is the peculiarly American spin the courts put onstandards of review for the core democratic and liberal rights. Though the courts may appearto be employing strict scrutiny analysis in most, if not all, fundamental rights cases, the actual

1 See Tenth Report of the Technical Committee on Fundamental Rights (5 October 1993) 30:‘Interpretation . . . (2) A law limiting a right entrenched in this chapter shall be presumed constitutionally valid until the contraryis proved: Provided that a law limiting:(a) a right entrenched in section 10, 11, 12, 14(1) 21, 25, or 30(1)(d) or (e) or (2); or(b) a right entrenched in section 15, 16, 17, 18, 23 or 24 in so far as such right relates to free and fair political

activity, shall be strictly scrutinized for constitutional validity’ (emphasis added).2 For example, the fact that the institution of slavery lasted over 250 years and the vestiges of slavery remain to

this day has led the US Supreme Court to hold that laws which discriminate on the basis of race or nationality aresubject to the strictest scrutiny. Strict scrutiny means that state action which discriminates on the basis of race ornationality must be both necessary and narrowly tailored to serve a compelling state interest in order to passconstitutional muster. See e g Palmore v Sidoti 466 US 429, 104 SCt 1879 (1984) (state denial of child custodybecause white mother’s new husband was black violates equal protection). Only once has such a discriminatorymeasure survived strict scrutiny. Korematsu v United States 323 US 214, 65 SCt 193 (1944) (wartime incarcerationof US citizens of Japanese ancestry was found to be necessary to achieve the compelling interest of national security).Other forms of discrimination, such as discrimination based on gender, alienage or illegitimacy, have been deemedto be less central to the American experience. These groups therefore receive a lesser degree of judicial solicitudeand laws which discriminate against them are subject only to intermediate scrutiny. Intermediate scrutiny requiresthat state action which discriminates on the basis of gender, alienage and illegitimacy must be substantially relatedto the achievement of an important state interest in order to survive review. Government restrictions satisfy this testabout as often as they fail it. See e g Kirchberg v Feenstra 450 US 455, 101 SCt 1195 (1981) (statute giving husbandunilateral right to dispose of property jointly owned with wife violates equal protection); Plyler v Doe 457 US 202,102 SCt 2382 (1982) (state denial of primary and secondary educational opportunities to undocumented alienchildren constituted violation of equal protection); Trimble v Gordon 430 US 762, 97 SCt 1459 (1977) (statute maynot bar illegitimate children from inheriting from intestate fathers). Those forms of discrimination which fall outsidethe five aforementioned categories receive minimal scrutiny or rationality review. Rationality review reverses theburden of proof and requires the petitioner to show that a state action is not rationally related to a legitimate stateinterest. Under this test the law is presumed valid. In addition, loose-fitting laws are permitted. That is, the law neednot be the best one possible: so long as the law constitutes a reasonable first step toward the ultimate goal, the courtwill uphold it. See e g Railway Express Agency v New York 336 US 106, 69 SCt 463 (1949). As a result, laws whichdiscriminate on the basis of age, wealth or sexual orientation are almost a sure bet to survive constitutional review.See e g Massachusetts Board of Retirement v Murgia 427 US 307, 96 SCt 2562 (1976) (police officer may be forcedto retire at 50 despite fitness); San Antonio Independent School Dist v Rodriguez 411 US 1, 93 SCt 1278 (1973)(wealth not suspect or quasi-suspect class, thus distribution of educational benefits on local property taxes subjectto rationality review, which it satisfies); Bowers v Hardwick 478 US 186, 106 SCt 2841 (1986) (homosexuals donot constitute a suspect or quasi-suspect class and proscriptions on sodomy are deemed rationally related to alegitimate state interest).



meaning of ‘strict scrutiny’ varies dramatically from right to right.1 Hence, despite the factthat the South African limitation clause ensures that democratic rights, expressive rights,religious rights, and voting rights receive the highest level of protection ---- as they do in theUS ---- the different histories of the countries and the arguably different philosophies under-lying the respective Constitutions militate against adopting the American standards of reviewwhen analysing cases under the limitation clause.11 Still, we must give meaning to the different levels of protection: ‘reasonable’ and‘reasonable and necessary’. To the extent that phrases such as ‘compelling interests’,‘significant interests’, ‘narrowly tailored means’, and ‘rationally related means’ have realcontent ---- and are not merely talismanic ---- the American jurisprudence may well act as auseful guide for constructing our limitation clause tests. One relatively uncontroversial lessonthat we might take away from the American experience is that where a government restrictionmust be both reasonable and necessary, the applicant’s interest in the fundamental right willbe privileged with respect to the government’s interest. In other words, the activity protectedby the fundamental right will receive a thumb on the scale and the government restrictionwill be less likely to survive judicial scrutiny. Conversely, if the government need only showthat the restriction on a fundamental right is reasonable, then the restriction is far more likelyto survive constitutional review.2

1 For example, because freedom of speech is sacrosanct in American constitutional culture, few laws whichinfringe speech survive the strict scrutiny to which they are subjected. Unless the speech being restricted falls intoone of a few constitutionally unprotected categories ---- obscenity, defamation, fighting words, words creating aclear and present danger to public order, and misleading or false advertising ---- the government restriction must becontent-neutral and necessary in order to achieve a compelling state interest and narrowly tailored to achieve thatinterest. Laws which engage this test are rarely upheld. See United States v Eichman 496 US 310, 110 SCt 2404(1990) (prohibition against mutilation of US flag invalid attempt to proscribe speech since government has nocompelling interest). On the other hand, because freedom of assembly is understood to be a mere adjunct of freedomof speech ---- and not a freedom of genuinely independent worth ---- it is accorded somewhat diminished respect andprotection. The courts will uphold those government restrictions on assembly in ‘public forums’ which arecontent-neutral and which are narrowly tailored to effect an important (not compelling) state interest in regulatingthe time, place and manner of the expressive activity or conduct. See Heffron v International Society for KrishnaConsciousness 452 US 640, 101 SCt 2559 (1981) (court upholds restriction on distribution of leaflets at publicfair on grounds that restriction was necessary for crowd control and that there were alternative channels forcommunication). Similarly, while freedom of association may be near inviolable when expressive interests are atstake, it receives far less protection when ‘merely’ social or economic interests are at issue. Compare NAACP vAlabama 357 US 449, 78 SCt 1163 (1958) (state’s attempt to compel disclosure of membership list struck down ongrounds that it would exercise a significant restraint on freedom of association, and, consequently, on the freedomof speech) with New York State Club Ass’n v New York City 487 US 1, 108 SCt 2225 (1988) (state interest inending discrimination justifies prohibition of private clubs which are neither intimate associations nor expressiveassociations, but which discriminate on the bases of race, gender, nationality, sexual orientation or religion). Indeed,it is safe to say that all the remaining fundamental rights, from religion to voting rights to privacy, receive relativelyidiosyncratic forms of review that reflect peculiarly American concerns. For example, compare United States vBallard 322 US 78, 64 SCt 882 (1944) (neither state nor courts may declare a religious belief false, though it mayhave a compelling interest in determining whether the assertion of the belief is genuine) with Employment Division,Department of Human Resources of Oregon v Smith 494 US 872, 110 SCt 1595 (1990) (state has a compellinginterest in proscribing the use of the drug peyote even if the proscription interferes in the performance of religiousrituals).

2 Another valuable lesson of American jurisprudence is that even where levels of scrutiny appear to be notionallyidentical the actual extension of terms such as ‘rational’ or ‘necessary’ may vary significantly, depending upon theright or nature of the restriction in play.

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(iv) The German contribution

12The German Basic Law made two specific contributions to the interim Constitution’slimitation clause: the ‘law of general application’ threshold test and the ‘may not negate theessential content of the right’ requirement.1 These two contributions are dealt with at greaterlength below. It is worth noting, however, that the borrowing of the ‘essential content’requirement from the German Basic Law reflects one of the most egregious errors in thedrafting of the limitation clause. The ‘essential content’ prong was taken from the GermanBasic Law and placed in an interim Constitution which contains none of the Basic Law’sparticular safeguards.2 The result is that while the German government can effectively negatethe essential content of a right where it can demonstrate the requisite sort of threat to thestate’s free and democratic order, it appears that under the interim Constitution the SouthAfrican government could not.3

(d) History of the limitation clause of the final Constitution

(i) Deletions

The final Constitution makes two dramatic deletions from the original limitation clause. First,it removes the justificatory requirement that a limitation be necessary for certain classes ofrights and freedoms. All limitations on the rights and freedoms enshrined in the new Bill ofRights must simply be reasonable and justifiable in an open and democratic society basedon human dignity, equality and freedom in order to pass constitutional muster. Secondly, itremoves the ‘shall not negate the essential content of the right’ requirement. Courts need nolonger concern themselves with what might constitute the inviolable core of any given right.

1 For more on German constitutional jurisprudence and its contribution to the interim Constitution, seeChaskalson, Davis & De Waal ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in VanWyk, Dugard, De Villiers & Davis (eds) Rights and Constitutionalism: The New South African Legal Order (1994)1. See also De Waal ‘A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights’(1995) 11 SAJHR 1.

2 Article 19.2 of the Basic Law holds that ‘in no case may the essential content of a right be encroached upon’.The inclusion of the clause in the Basic Law reflects the drafters’ belief that legislation under the WeimarConstitution had been interpreted in such a way as to permit the complete evisceration of that Constitution’sguarantees. The clause was intended to provide a floor below which restrictions on fundamental rights could notfall. See Maunz, Durig & Herzog Grundgesetz Kommentar (1991) art 19, II-9. While there can be few objectionsto drawing round the core of a right a bright prophylactic line that will suffer no trespass, there may well be instancesin which the threat of the prima facie protected activity to the state’s continued existence is so great that the statemust legitimately be able to suspend the individual’s right in order to prevent him from carrying out his threat.The German Basic Law recognizes the potential for such threats and includes some safeguards to thwart them.Article 18 holds that whoever abuses certain specified rights in order to undermine the ‘free democratic basic order’shall forfeit her basic rights. Article 19.2 holds that parties that ‘seek to impair or abolish the free democratic orderor to endanger the existence of the Federal Republic of Germany, shall be unconstitutional’. Article 9.2 holds, inrelevant part, that ‘associations . . . which are directed against the constitutional order . . . are prohibited’. For amore sanguine view of the ‘essential content’ prong, see Gerhard Erasmus ‘Limitation and Suspension’ in Van Wyk,Dugard, De Villiers & Davis (eds) Rights and Constitutionalism: The New South African Legal Order (1994) 629at 650. Perhaps the drafting structure of a limitation clause with an essential content prong and a suspension clausedemarcating both illimitable and limitable rights will provide the greatest of constitutional safeguards.

3 There are at least three ways around this problem: (1) define the right in question so as to exclude such threatsto the democratic order; (2) read a ‘but the applicant’s action may not threaten the basic democratic order’ provisioninto the ‘essential content’ test; or (3) make one’s proportionality analysis so strict (or so malleable) that one neverreaches the ‘essential content’ prong. For a further discussion of this problem, see below, § 12.8.



(aa) Levels of scrutiny

Many will welcome the removal of the requirement that a limitation be ‘necessary’ in orderto justify the infringement of specified rights and freedoms. From a purely formal perspec-tive, the deletion of the term ‘necessary’ means that the courts will not have to create twoexpressly different kinds of limitation tests.1 From a substantive perspective, courts are freeto develop their own theories about the normative value of each right, how the rights in thefinal Constitution relate to one another ---- how they conflict and cohere ---- and whether thereis in fact an identifiable hierarchy of rights and freedoms.2

13 Perhaps the elimination of the express hierarchy of rights found in the interim Constitutionwill help the Constitutional Court to overcome its resistance to articulating a full-blowntheory of limitation analysis. The resistance to developing such an overarching theory mightbe traced, at least in part, to two distinct effects of the different treatment different rightsreceive under the interim Constitution’s limitation clause. First, the interim Constitution’sclause seems to privilege liberal and procedural rights over more egalitarian guarantees. Forthose judges who would place equality, life, privacy and a range of second-generation andthird-generation rights on an equal footing with the interim Constitution’s civil liberties andpolitical rights, the reluctance to articulate a theory of interpretation that would recognizethe primacy of the latter set of rights over the former set is quite understandable. Secondly,the interim Constitution’s limitation clause seems to create an incentive for applicants toforum-shop amongst the rights enshrined in the Chapter. That is, when an applicant claimsthat her rights have been violated under the interim Constitution she will, if possible, placethe greatest emphasis on those rights which receive the greatest judicial solicitude under thelimitation clause ---- regardless of whether those rights would appear to provide the most‘natural’ grounds for protection of the applicant’s activity.3 The incentive to ‘rights-shop’created by the interim Constitution’s bifurcated system of limitation review presents twodangers. The first danger is that judges might feel constrained by the text to find aconstitutional violation under the right which receives the greater solicitude that ‘necessary’review demands. The second danger is that judges might ‘inappropriately’ circumscribe the

1 The Constitutional Court had been extremely reluctant to develop clearly distinct tests for those rights and free-doms which receive reasonable and necessary protection under the limitations clause and those rights and freedomswhich simply receive reasonable protection. The issue has been considered in four judgments: Justice O’Regan’sconcurrence in S v Makwanyane (supra); Justice Sachs’s concurrence in Coetzee (supra); Justice Ackermann’sjudgment in Ferreira v Levin (supra); Chaskalson P’s majority judgment in Ferreira v Levin (supra).

2 See E Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31 at 33. Thedrafters of the final Constitution appear to have taken to heart Professor Mureinik’s recommendation that the courtsnot be hamstrung by the bifurcation of tests reflected in IC s 33(1) and be free to work out their own vision of howspecific rights should be limited.

3 See Ferreira v Levin (supra) at 1087D--1088C (SA), 101H--102H (BCLR) (Chaskalson P). In Ferreira, forexample, the applicant could have failed at the first stage of a challenge based upon the right to privacy, and yetsucceeded at the first stage of a challenge based upon the unenumerated freedom rights to be found in IC s 11(1).As Chaskalson P points out, the applicant would then benefit from the fact that restrictions on IC s 11(1) are subjectto necessary review and would thus have a better chance at ultimately persuading the court to find the restrictionunconstitutional. This means that an applicant might actually prefer to fail on a privacy challenge ---- which receivesonly reasonable review ---- and succeed on a residual freedom challenge ---- which receives the higher level ofnecessary review. Part of the majority’s rejection of Justice Ackermann’s expansive interpretation of IC s 11(1) mayturn upon the dangers of such a scenario.

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ambit of a right in order to avoid a finding of a prima facie infringement so that they may,in turn, escape any further finding of a constitutional violation. Either choice could distortthe substance of our constitutional jurisprudence. The non-preferential treatment of all rightsunder the limitation clause of the final Constitution would seem to put an end to suchtemptations.1

14 The deletion of ‘necessary’ is not without its potential costs. The interim Constitution’slimitation clause provides a partial solution to the problem of judicial review. The interimConstitution’s limitation clause clearly intends that those rights covered by both the ‘reason-able’ requirements of s 33(1)(a) and the ‘necessary’ requirements of s 33(1)(b) will receivegreater judicial protection, and concomitantly, that the government ---- or some other respon-dent ---- will have far less room to manoeuvre when placing restrictions on these rights. Onthe other hand, those rights covered only by the ‘reasonable’ requirement of s 33(1)(a) areclearly meant to receive far less in the way of judicial solicitude and to be far more susceptibleto legal restriction. Thus the express language of the interim Constitution’s limitation clauserelieves the Constitutional Court of at least some of the responsibility for deciding when acourt ought to overturn a decision rendered by a democratically accountable body and whena court ought to defer to a decision rendered by such a body.

The problem with the final Constitution’s clear intent to subject all limitations of rightsto ‘reasonable and justifiable’ review is that ---- though now freed from the heuristic shacklesof express levels of scrutiny ---- the court may prove unable or unwilling to decide for itselfwhich rights ought to receive greater protection and which rights ought to receive diminishedsolicitude. Such irresolute behaviour poses several threats. First, without an express require-ment that a limitation be ‘necessary’, we may be left with a very weak test which fails toreinforce the rights and freedoms enshrined in the new Chapter 2.2 Secondly, it is potentially

1 I say ‘seem’ because if the court is free to establish its own normative vision of the relative worth of differentrights and freedoms under the final Constitution ---- as it is ---- then it would also be free to establish its own hierarchyof rights and freedoms. It could thus create for itself some of the same problems that the interim Constitution’slimitation clause presents. Indeed, given the new clause’s injunction that the court take ‘the nature of the right’ intoaccount when it undertakes limitations analysis, it seems inevitable that some kind of ‘hierarchy’ ---- howeverunfashionable the term ---- will be created. See Theme Committee Four Advisors Memorandum to ConstitutionalAssembly 14 April 1996 (‘Including the elements of proportionality will indicate clearly, that, as elsewhere in othersystems, a bifurcated approach can be developed by taking into account the ‘‘nature of the right’’ and the ‘‘importanceof the purpose’’ ’). The advantage of the single express level of scrutiny found in the new limitation clause is thatthe court can construct its own limitations jurisprudence bearing in mind the potential dangers and avoiding at leastsome of these pitfalls.

2 The certification judgment, Ex parte Chairperson of the Constitutional Assembly: In re Certification of theConstitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC), should allaysome of this fear. The judgment deals directly with the limitation clause and the effect of the deletion of the term‘necessary’ (paras 89--90). First, it holds that the limitation test articulated in s 33(1) of the interim Constitution ----and expounded upon in S v Makwanyane ---- is in all important respects the same as that articulated in s 36(1) of thefinal Constitution. Secondly, it holds that ‘necessity is by no means universally accepted as the appropriate normfor limitation in national constitutions’ (para 89). Thirdly, it holds that both tests meet the ‘conceptual requirementestablished by international norms relative to proportionality or balancing’ (para 90). As with many of theconclusions reached in the certification judgment, the effect of the judgment on the interpretation of the finalConstitution is unclear. Thus some will continue to see harbingers of doom for rights enforcement in the eliminationof the term ‘necessary’. Others will look at the judgment and say ‘plus ça change’. However, the judgment doeshint elsewhere that this court will retain a strong commitment to rights enforcement. The court holds that the chosen

[continued on page 12--15]



unprincipled. An unprincipled limitation jurisprudence threatens the coherence and legiti-macy of all the decisions that emanate from the court. Thirdly, litigants will not know howto build cases unless the court identifies what limitation clause questions it wants answeredin each kind of case. Fourthly, social actors will not know how to conform their behavior tothe Constitution unless the court maps out in advance the kinds of questions which shouldengage them when they are contemplating potential limitation of a fundamental right.

(bb) Essential content of the right

15It is unlikely that anyone will shed a tear over the deletion of the requirement that no limitation‘shall negate the essential content of the right’. Although various attempts have been madeby members of the court1 and the academic community2 to give the essential contentrequirement substance, no one has put forward a particularly compelling account of itsmeaning. Division on the court and the failure to provide a credible explanation for theessential content requirement’s operation has meant that the real job for the court has becomeworking around it. That is, the court has had to find a way to make the limitation clause workwithout having recourse to the ‘essential content’ requirement. This the court has done. Inbrief, the court has discovered that there is nothing that the essential content requirement cando that cannot be accomplished by simply tightening the rest of the tests undertaken duringlimitation analysis. Thus, when it came time for Theme Committee Four and the Constitu-tional Assembly to decide what should stay and what should go, the essential contentrequirement was sent packing.3

method for amending the Constitution fails to provide the ‘special procedures’ for amendment contemplated byConstitutional Principle XV (para 156). It further holds that the draft of the final Constitution does not ensure theentrenchment of ‘universally accepted rights, freedoms and civil liberties [in] justiciable provisions [of]the Constitution’ required by Constitutional Principle II. The court’s rejection of a simple two-thirds majority of theNational Assembly as either a ‘special procedure’ or the ‘bulwark [for entrenchment] envisaged by CP II’ sends asignal that the court does not wish to see rights and freedoms diminished by frequent amendments. One mightassume then that the court itself would not adopt an approach to limitations analysis which regularly permittedordinary legislation to override and to diminish the strength of these same guarantees. Cf Ex parte Chairperson ofthe Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of SouthAfrica, 1996 1997 (2) SA 97 (CC), 1997 (1) BCLR 1 (CC).

1 S v Makwanyane (supra) generated four different opinions on the meaning of ‘essential content.’ SeeChaskalson P’s judgment at 446G--448A (SA) (arguing that the purpose of the provision is to ensure that ‘rightsshould not be taken away altogether’ and that a meaningful distinction can be drawn between the subjective andobjective content of a right); Kentridge AJ’s judgment at 470 (rejecting Chaskalson P’s understanding on the groundsthat he finds it difficult, ‘on any rational use of language’, to explain the notion of the essential content of a rightin terms of a subjective dimension); Ackermann J’s judgment at 458F--H (refusing to agree with Chaskalson P onobjective and subjective content and emphasizing the German origin of the provision); and Mahomed DP’s judgmentat 496G--J (suggesting that there may be a ‘third angle’ or ‘third way’ to understand essential content).

2 See for example J de Waal ‘A Comparative Analysis of the Provisions of German Origin in the InterimConstitution’ (1995) 11 SAJHR 1 at 18--21; G Erasmus ‘Limitation and Suspension’ in Van Wyk, De Villiers, Dugard& Davis (eds) Rights and Constitutionalism (1994) 629 at 650; below, § 12.8.

3 Theme Committee Four also recognized that at least one of the limitation factors identified in S v Makwanyane(supra) could be used to accomplish ends similar to that of the essential content test: ‘[T]he essential content ofrights could indeed play a role by taking into account ‘‘the extent and nature of the limitation’’.’ Theme CommitteeFour Advisors Memorandum to Constitutional Assembly 14 April 1996 citing Ford v AG Quebec [1988] 2 SCR 712,772.

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As with the deletion of the term ‘necessary’ the elimination of the ‘essential content’requirement is not without its potential costs. The ‘essential content’ requirement serves animportant function. It tells the court that no matter how pressing the government’s objectivesmay be, there is a point beyond which the government may not go in limiting the rightsenshrined in the Constitution. It serves this role by shifting the limitation clause analysisaway from questions about the merit of the restriction’s means and objectives and back tothe detrimental effect the restriction may have on the right and the right-holders whoseactivities are being limited by law.1 The elimination of the ‘essential content’ requirementmeans that the court will have to devise its own method for ensuring that the rights enshrinedin Chapter 2 are not undermined by an unduly deferential limitation test.

(ii) Additions

16Aside from the deletions identified above, the language of the limitation clause remainslargely the same ---- with one notable exception.2 The limitation clause of the interimConstitution did not spell out the kinds of considerations a court was to take into accountwhen doing limitation analysis. The new limitation clause states explicitly at least some ofthe factors a court should consider when deciding whether a limitation placed on a funda-mental right is both reasonable and justifiable.

As a matter of historical interest, the drafters of the new limitation clause copied its‘relevant’ factors almost verbatim from Chaskalson P’s discussion of ‘proportionality’ inS v Makwanyane.3 In Makwanyane the President of the Constitutional Court states that thebalancing process required by s 33(1) of the interim Constitution demands that we ask suchquestions as ‘what is the nature of the right that is limited, and its importance to an open anddemocratic society based on freedom and equality’; ‘the purpose for which the right is limitedand the importance of that purpose to such a society’; ‘the extent of the limitation [and] itsefficacy’.4 According to s 36(1) of the final Constitution, the relevant factors for limitationanalysis include ‘(a) the nature of the right; (b) the importance of the purpose of the limita-tion; (c) the nature and the extent of the limitation; (d) the relation between the limitationand its purpose; (e) [the existence of] less restrictive means to achieve the purpose’.

This bit of ‘sampling’ by the drafters reflects an understandable desire to recognize andto work with the court’s developing body of jurisprudence. However, this ‘sampling’ of

1 See Explanatory Memoranda on the Draft Bill of Rights 9 October 1995. In its part of the ExplanatoryMemoranda, Theme Committee Four noted that ‘although it is necessary to recognize that there is a core contentof most rights that may not be destroyed by a limitation, it is not clear that the essential content test is a usefulcomponent of our limitation clause. It is a test that is not easily loosened from its German moorings and courts arelikely to devote too much of their interpretative energies to ascertaining the meaning of this phrase in German law’.It should also be noted that in the forty years of its existence the German Federal Constitutional Court, whichinterprets the document from which our own clause was drawn, has never used the clause to find a lawunconstitutional.

2 Again a cautionary note: when I say limitation clause I am simply referring to the basic criteria set out in s 33(1)of the interim Constitution and s 36(1) of the final Constitution. The remaining subsections of IC s 33 have eitherbeen deleted ---- as in the cases of subsecs (3), (4) and (5) ---- or altered ---- as in the case of subsec (2) (now s 36(2)).

3 Supra at 708E--F (BCLR). See also Certification of the Constitution, 1996 (supra) at para 90.4 Ibid.



Makwanyane was ill-considered because the meaning of the factors was not fully considered.Although the flaws with the factors as they are described in Makwanyane and listed in s 36(1)are not fatal, they do possess the potential to confuse the efforts of all courts undertakinglimitation analysis. The nature of this confusion is discussed below, § 12.13(b).

12.2 RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS ANALYSIS AND LIMITATION

ANALYSIS

17This section attempts to answer two basic questions. First, how does fundamental rightsanalysis relate to limitation clause analysis? That is, what happens in the first stage ofanalysis, what remains to be done in the second stage, why do we allocate certain analyticaltasks to one stage and not the other, and how do we justify our overall approach toconstitutional interpretation? Secondly, how do the internal limitations or exceptions foundwithin some of the fundamental rights affect the subsequent limitation clause analysis? Doesthe internal limitation simply represent an intervening hurdle for the applicant? Or does it infact alter the general form of the limitation clause’s requirements?

(a) The general relationship

The full nature of interpretation under a fundamental right has been discussed in ch 11. Torehearse briefly, s 39 of the final Constitution (much like s 35 of the interim Constitution)tells us that the content and scope of the rights and freedoms enshrined in the Bill of Rightsshould be determined in the light of the five fundamental values which animate the entireconstitutional enterprise: openness, democracy, human dignity, freedom, and equality.1

Section 39 thereby confirms that the determination of a right’s scope is a value-basedexercise. However, the scope-determinative values are not limited to the five identified ins 39. For each right there are specific values which can be said to have led to the constitu-tionalization of that right. The specific values which animate each right, along with s 39’smore general concerns, determine the right’s sphere of protected activity.17 On this account, if an applicant can show that her activity falls within the sphere of activitythe right was intended to protect, and can then show that her exercise of the protected activityhas been impaired by the government, then she has made a prima facie showing of aconstitutional infringement. The government then has an opportunity to justify its prima facieinfringement of the right under the limitation clause.

There is of course another way to go. One could argue that any activity which couldnotionally fall within the ambit of a right is protected. It remains then to show a governmentimpairment of the now protected activity before moving on to the limitation clause.

There are several reasons to prefer the first approach to the second approach. First, it isconsistent with the text’s admonition that provisions of the Bill of Rights be interpreted inlight of the ‘values which underlie an open and democratic society based on human dignity,

1 These five values do not operate on the same normative plane: the condition of possibility of the first two values---- openness and democracy ---- is dependent upon the realization of the next three ---- human dignity, freedom, andequality. See above, Kentridge & Spitz ‘Interpretation’ § 11.3.

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equality and freedom’. The Constitution was not meant to protect certain forms of behaviourand a value-based approach permits us to screen out those forms of behaviour which do notmerit constitutional protection. Secondly, if one adopts the value-based approach, then fewerconstitutional infringements will be recognized by the court. That in turn means that therewill be less judicial review of legislative or executive action. (And for many, the less judicialreview of the democratically elected branches, the better.)1 Thirdly, the higher the barriersare at the first stage of analysis ---- where the applicant bears the burden of showing animpairment ---- the less constitutional litigation there will be. Constitutional litigation is muchmore attractive where the initial barrier is low and the petititioner can place the governmentin the awkward position of having to justify the prima facie infringement of a constitutionalright. Fourthly, high value-based barriers for the first stage of analysis mean that only genuineand serious violations of a constitutional right make it through to the limitation clauseanalysis. If only serious infringements make it through, then the court can take a fairlyrigorous approach to the government’s justification for the impairment. It could befairly confident that when it nullified a governmental action there would be something worthprotecting behind the nullification. Finally, the valued-based approach is also consistent withthe notion that a ‘unity of values’ underlies both the rights-infringement determination andthe limitation--justification analysis. The language of the interpretation clause and thelimitation clause strongly suggests that both inquiries are driven by the same desire to servethe five values underlying the entire constitutional enterprise: openness, democracy, humandignity, freedom, and equality.2

18 The desirability of the value-based approach is perhaps clearer when compared with theconsequences of the notional or expansive approach to rights interpretation. First, thenotional approach suggests that certain forms of behaviour which we would generally holdnot to merit constitutional protection will in fact receive prima facie protection. Secondly,the notional approach entails that many more constitutional infringements will be recognizedby the court and that there will be far more judicial review of the democratically electedbranches ---- with all the attendant philosophical discomfort. Thirdly, the lower barrier formaking a prima facie showing of impairment under the notional approach is likely to attractconstitutional litigation. Fourthly, the notional approach expands the number of claims thatmake it to the second stage of analysis. The result is that if the courts wish to curtail theirfindings of unconstitutionality, then their criteria for the justification of government limita-tions on rights have to become more flexible. The further possibility exists that in order tomake their justificatory criteria more flexible the courts may expand their list of the valueswhich justify limitations on constitutional rights. This result would seem to stand in directconflict with the textual demands that both interpretation and limitations analysis beundertaken in the light of the needs of an open and democratic society based on freedom andequality. Finally, by pushing all the analysis into the limitation clause, and forcing themselvesto be more flexible with respect to the grounds for justification of a limitation, the courts willlimit their capacity to articulate useful standards of justification.

1 It is not that less review is necessarily better review. It’s that we want to have the right kind of judicial scrutinyin their appropriate domains.

2 See Hogg Constitutional Law of Canada 3 ed (1992) sec 35 for a similar discussion of how the ‘unity of values’in s 1 of the Canadian Charter affects the structure of analysis. See also Weinrib ‘The Supreme Court of Canadaand Section One of the Charter’ (1988) 10 Supreme Court LR 469.



For the most part the problem with the Constitutional Court’s current position on thetwo-stage approach to fundamental rights analysis is that it says too little.1 The court hasneither described in detail the analytical processes which occur at each step nor has it justifiedthe allocation of certain tasks to particular stages of the analysis.2

19 Two judges, however, have had something more substantial to say about the relationshipbetween rights analysis and limitations analysis. Sachs J states his position ---- or positions---- in a concurrence in Coetzee3 and a concurrence in Ferreira.4 Ackermann J states hisposition ---- or positions ---- in Ferreira5 and Bernstein.6

In Ferreira Sachs J sets out to develop the court’s largely unarticulated understanding ofthe relationship between rights analysis and limitations analysis in a manner which avoidsthe current sterility of the two-stage approach.7 Sachs J’s rationale for his project flows fromhis belief that the Court ‘should not engage in purely formal or academic analyses, norsimply restrict [itself] to ad hoc technism’.8 Rather the court should, when undertakingfundamental rights analysis, ‘focus on what has been called the synergetic relationshipbetween the values underlying the guarantees of fundamental rights and the circumstancesof the particular case’.9

The judge then concludes that ‘[i]n [his] view, faithfulness to the Constitution is bestachieved by locating the two-stage balancing process within a holistic, value-based andcase-oriented framework’.10 Beyond these generalizations, Sachs J offers little in the way ofclear direction for what a new relationship between rights analysis and limitations analysiswould look like. He simply enjoins his fellow judges to ‘exercise . . . a structured anddisciplined value judgment, taking account of all the competing considerations that arise inthe present case’.11

There are several potential problems with Sachs J’s intervention on this subject. First, atwo-stage approach is not necessarily ‘formal’ or ‘academic’. The quality of the inquirydepends on the nature of the questions asked, not on their number or ordering. Secondly, itis impossible to know what Sachs J means by a ‘synergetic relationship’ between the twostages of analysis or by the ‘exercise . . . of a structured and disciplined value judgment’

1 See, for example, S v Makwanyane (supra) at 707D--E (BCLR) (‘Our Constitution . . . calls for a two-stepapproach, in which a broad rather than a narrow interpretation is given to the fundamental rights enshrined inChapter 3 and limitations have to be justified through the application of s 33’).

2 But see Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC) at para 35 (recognizingdifference between kinds of definitional questions asked at the rights infringement stage and the kinds of justificatoryquestions asked at the limitations stage).

3 Coetzee (supra). 4 Ferreira v Levin (supra). 5 Ibid. 6 Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC). 7 Coetzee (supra) at 656B (SA). 8 At 656D (SA). 9 At 656E (SA).10 At 656B (SA).11 At 657C (SA). Only Mokgoro J concurred with this part, as well as the whole, of Sachs J’s judgment.

Kentridge AJ concurred solely with a more limited portion of Sachs J’s judgment.

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when he gives neither examples nor further description of these processes. Thirdly, and mostdisturbing, however, is Sachs J’s vision of a ‘two-stage balancing process within a holistic,value-based and case-oriented framework’.20 Sachs J’s apparent vision of balancing at both stages ignores the clear intention andstructure of a bill of rights which possesses both fundamental rights and a general limitationsclause (as well as the foreign jurisprudence on the subject) ---- that different forms of analysiswill take place at different stages of analysis. Intentions and structure aside, as a historicalmatter few judges and academics view the first stage of analysis as involving a balancing ofinterests.1 The first stage of analysis is generally understood to require the judge to determinethe ambit of the right ---- what falls within the scope of the right, what falls outside the scopeof the right. The determination is made by asking what values underly the right and then, inturn, what practices serve those values. The judge is not required to compare the importanceof the values underlying the right allegedly being infringed with the values said to underlythe policy or right or state interest said to support the alleged infringement. This comparisonis left for the second stage of analysis under the limitations clause. It is under the limitationsclause that we ask whether, on balance, the government’s interest (and the values underlyingthat interest) in a law which restricts a fundamental right is of sufficient import to justify theinfringement of that right.

Furthermore, a two-stage balancing process may lead to inadequate protection of constitu-tional rights. If a general limitations test is cause for concern for those interested in strongrights enforcement, then talk of introducing balancing into the first stage of analysis ---- where

1 Another sense of value choice made during the process of determining the contours of a right is worth discussing.For example, not all activity that might notionally qualify as a demonstration merits the right’s protection. A groupof skinheads tossing trashcans through plateglass windows, shouting racial epithets, and protesting the presence ofnon-indigenous communities might be attempting to convey collectively a ‘political’ message that is generally notcountenanced by mainstream parties. However, the fact that it is not a peaceful conveyance and, indeed, that theprimary motivations for the acts are destructive and not communicative may take this demonstration outside thebounds of protected activity.

What should be clear is that the determination made here is one of definition or demarcation, not balancing. Weare asking what counts as protected assembly activity, not whether this kind of protected activity, when offset againstsome competing set of government, public or private interests, still merits protection. We are deciding what values---- and therefore practices ---- underlie a particular right. We are not deciding what to do when the values ---- andpractices ---- underlying competing rights come into conflict. The problem of value conflict between rights is playedout at the next stage of inquiry ---- the limitations clause.

At the same time there is a manner in which it makes sense to talk about value conflict within the right ---- andan understandable misunderstanding of the situation which may suggest that some form of deep balancing is goingon. For example, freedom of expression is generally understood to be grounded, at least in part, on the value ofpolitical participation. However, the value of political participation may be served by practices which conflict withone another. Hate speech may be thought by those expressing it to reflect their participation in or contribution tothe political process. At the same time the targets of the hate speech ---- especially when it is directed at small ormarginal social groups ---- may find that the expression of hate speech makes it difficult for them to expressthemselves fully or equally in the public square. They may feel coerced into silence by the hate speech. They mayfeel that the hate speech creates invidious conditions in which others will inevitably fail to listen to them or to takethem seriously. Hate speech thus creates a paradox. Deny the expression of the hate speakers and you deny themfull political participation. Permit the expression of the hate speakers and you deny the targets of their hatespeech full political participation. It is a value conflict ---- under the freedom of expression ---- which cannot bereconciled. One kind of expression ---- and its attendent value ---- must give way to another form of expression ----with its attendent value.

For more on the important difference between balancing competing rights at the first stage of analysis anddemarcating the boundaries of the right in question, see above, Kentridge & Spitz ‘Interpretation’ §§ 11.8--11.10.



one determines the ambit of the right ---- should be cause for alarm. Quite simply it gives thegovernment ---- or some other party ---- two chances to justify its infringement of a right.Conversely, this double-balancing act twice obliges the applicant to show that her rights claimis more important than the rights or policies claim of another party. More importantly, doingbalancing at both stages is an open invitation for the worst kind of analytical confusion.1

How, one must ask, does the balancing at the first stage differ from the balancing atthe limitations stage? What balancing of what does one do at each stage? Why have thelimitations clause at all? Greater specification of the modalities of both rights and limitationsanalysis would seem to be required.2

21 In all fairness, Sachs J’s interventions in Coetzee may simply be open to misinterpretation.In his judgment in Ferreira, Sachs J approaches the meaning of ‘freedom . . . of the person’in IC s 11(1) in a relatively circumspect manner. In contrast to the expansive interpretation ofIC s 11(1) offered by Ackermann J ---- an approach that Sachs J says might force the court to‘test the reasonableness or necessity of each and every piece of regulation undertaken by thestate’ ---- he suggests that ‘the Constitution . . . requires the court to focus its attention on realand substantial infringements of fundamental rights’.3 A charitable reading of this interven-tion might conclude that Sachs J might believe that the analysis under the right and theanalysis under the limitations clause differ substantially. But it remains unclear to this authorthat an integrated assessment of Sachs J’s conclusions in Coetzee and Ferreira either yieldsnew fruit or diminishes his very real anxiety over the judge’s understanding of the relationshipbetween rights analysis and limitations analysis.

Ackermann J’s contributions to this discussion are a bit more difficult to track. Indeed,his decisions in Ferreira and Bernstein seem to point in opposite directions.

In Ferreira Ackermann J starts off as if he might follow a value-based approach to rightsanalysis. He writes:

‘[I]t is necessary, as a matter of construction, to define or circumscribe the s 11(1) rightto the extent necessary for purposes of this decision . . . [S]ome attempt must be made at thisstage to determine the meaning, nature and extent of the right . . . This court has given itsapproval to an interpretive approach ‘‘which . . . gives expression to the underlying valuesof the Constitution’’.’4

But after reading ‘freedom’ in IC s 11(1) disjunctively from ‘security of the person’, andthen giving a ringing defence of ‘freedom’ as freedom in the classically liberal sense,Ackermann J’s real position on rights analysis and limitations analysis becomes clearer. Heargues that while a ‘broad and generous interpretation does not deny or preclude theconstitutionally valid . . . role of state intervention in the economic as well as the civil andpolitical spheres . . . legitimate limitations on freedom must occur through and be justified

1 For a detailed discussion of this danger, see Stu Woolman ‘The Limitations of Justice Sachs’s Concurrence:Coetzee v Government of the Republic of South Africa’ (1996) 12 SAJHR 99 at 115--21; Stu Woolman & Johan deWaal ‘Voting With Your Feet: The Freedom of Assembly’ in Van Wyk, Dugard, De Villiers & Davis (eds) Rightsand Constitutionalism: The New South African Legal Order (1994) 292 at 308--14.

2 For an explanation and critique of the court’s refusal to lay down clear rules for rights analysis and limitationsanalysis based upon an ostensible aversion to formalism, see below, § 12.6. See also Stu Woolman ‘The Limitationsof Justice Sachs’s Concurrence: Coetzee v Government of the Republic of South Africa’ (1996) 12 SAJHR 99 at108--15; Alfred Cockrell ‘Rainbow Jurisprudence’ (1996) 12 SAJHR 1.

3 Ferreira v Levin (supra) at para 252.4 Supra at para 45, quoting S v Makwanyane (supra) at para 9.

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under the principles formulated in IC s 33(1), not by giving a restricted definition of the rightto freedom’. While some interpreters might characterize this approach to rights analysis asboth purposive and generous, it seems to possess the same problems which attach to thenotional approach to rights analysis described above: all the difficult inquiries are left tothe rather amorphous contours of the limitations clause.22 Two particular problems with the notional approach ---- as it applies to freedom of theperson under IC s 11(1) ---- are worth mentioning. First, one reason that Ackermann J’sjudgment is rejected by the majority is the relative unboundedness he imputes to IC s 11(1).Although he describes s 11(1)’s right to freedom as being a residual right of freedom, he saysthat if an enumerated right cannot first be found upon which to ground a constitutionalchallenge to some restriction of individual liberty, then resort may be had to s 11(1). Theresult, of course, is that Ackermann J’s judgment practically begs petitioners to rest at leasta portion of all their challenges to some alleged constitutional infringement on IC s 11(1),with the hope of making it through to the limitations clause.

Secondly, on Ackermann J’s understanding, a petitioner might fail to succeed at the firststage of challenge based upon the right to privacy, and yet succeed at the first stage of achallenge based upon the unenumerated rights found in IC s 11(1). As Chaskalson P pointsout,1 the petitioner would then benefit from the fact that restrictions on s 11(1) are subject tonecessary review and thus have a better chance at ultimately convincing the court to find therestriction unconstitutional. This means that as an applicant, you would actually prefer to failon a privacy challenge ---- which receives only reasonable review ---- and succeed on aresidual freedom challenge ---- which receives the higher level of limitations review. GivenAckermann J’s fairly unbounded approach to IC s 11(1), there is a good chance that such astrategy may work. Chaskalson P bases at least part of his rejection of Ackermann J’sinterpretation of IC s 11(1) on the possibility of such a scenario.

One might well agree with Ackermann J’s response that the level of scrutiny a restrictionof a right receives under the limitations clause of the interim Constitution should not affectthe court’s determination of the content of a right ---- and that according freedom of the persona higher level of limitations review than privacy is not necessarily anomolous. However, itis Ackermann J’s largely notional approach to a right’s review ---- and the dumping of all theimportant analysis into the limitations clause ---- that creates the aforementioned problem.For reasons already assayed, the majority of the court rightly avoided the problems associatedwith this approach.

In Bernstein Ackermann J’s approach to the relationship between rights analysis andlimitations analysis takes a sharp turn (to the right?). Having been chastened by the majority’srejection of his interpretation of IC ss 11(1) and 33(1) in Ferreira, Ackermann J changes tackin analysing an attack on the Companies Act based upon IC s 13, the right to privacy. Hebegins with a brief discursus about the meaning of privacy2 ---- in terms of its relationship toautonomy, the dependency of autonomy on community, the common law of privacy in SouthAfrica, international instruments, and the comparative constitutional jurisprudence. He then

1 Supra at paras 173--4 (opinion garners support of a majority of the court).2 Bernstein & others v Bester & others NNO 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) at paras 65--79.



draws the following conclusions. First, ‘the ‘‘right to privacy’’ relates only to the mostpersonal aspects of a person’s existence, and not to every aspect of his/her personalexperience or knowledge’.1 Secondly, ‘in defining the right to privacy, it is necessary torecognize that the content of the right is crystalized by mutual limitation. Its scope is alreadydelimited by the rights of the community as a whole.’2 For the protector of relativelyunbridled ‘freedom’ under IC s 11(1) in Ferreira, these clearly value-based circumscriptionsof the right to privacy are somewhat startling. The Bernstein analysis appears to be directlycontrary to the approach Ackermann J outlines in Ferreira.3 Remember that in Ferreira almostevery restriction of activity that could notionally count as involving ‘individual freedom’under IC s 11(1) would be deemed prima facie unconstitutional, and almost every restrictionof freedom would therefore have to be justified under IC s 33(1). In Bernstein Ackermann Jconcludes that not every activity or experience that could notionally count as private deservesconstitutional protection under IC s 13. Only those practices which serve the valuesunderstood to underlie the right to privacy fall within the sphere of activity protected by theright. One may disagree with the manner in which Ackermann J has circumscribed thecontent of the right to privacy4 ---- and even with his approach to determining the value-basedprotective sphere of a right. However, that he gives the right some discernable, definablecontent is certainly a step in the right direction for rights and limitations analysis.23REVISION SERVICE 5, 1999But what little Bernstein gives to the coherence of rights and limitation analysis, Beinashtakes back. In Beinash v Ernst & Young 5 the court addresses the question of whether s 2(1)(b)of the Vexatious Proceedings Act 3 of 1956 violates the right of access to court underFC s 34.6 The sum total of the court’s fundamental rights analysis reads as follows:

‘The effect of section 2(1)(b) of the Act is to impose a procedural barrier to litigation on personswho are found to be vexatious litigants. This serves to restrict the access of such persons to courts.That is its very purpose. In so doing, it is inconsistent with section 34 of the Constitution whichprotects the right of access for everyone and does not contain any internal limitation of the right.The barrier which may be imposed under section 2(1)(b) therefore does limit the right of access tocourt protected in section 34 of the Constitution.’7

1 At para 79. 2 Ibid.3 There is, of course, a less pejorative interpretation of Ackermann J’s approach to the relationship between rights

analysis and limitation analysis. One could argue that in Ferreira he takes a purposive and generous approach torights interpretation because the meaning of ‘freedom’ in IC s 11(1) warrants such a generous approach. One could thenargue that in Bernstein he takes a purposive and non-generous approach to rights interpretation because the meaningof ‘privacy’ in IC s 13 warrants such a non-generous approach. The problem with this explanation is that the judgedoes not explain why one right receives a generous construal and another right receives a restrictive construal.

4 See below, McQouid-Mason ‘Privacy’ § 18.3. 5 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC).6 Judge Fevrier in the High Court had found the applicants to be vexatious litigants in terms of the Vexatious

Proceedings Act 3 of 1956. This order barred the applicants from bringing any legal proceeding in any courtanywhere in South Africa without first securing the appropriate leave from a judge of the High Court. The applicantslodged an appeal with the Constitutional Court. They argued that the provision relied upon by Judge Fevrier violatedtheir right of access to court under s 34 of the final Constitution. In the alternative, they argued that as a constitutionalmatter Judge Fevrier had incorrectly exercised his discretion in devising this particular punishment. The Constitu-tional Court found that the applicable provision of the Vexatious Proceedings Act 3 of 1956 did indeed infringe theapplicant’s right of access to court under s 34. The court, however, then held that the Act’s infringement of theapplicant’s right of access to court was both reasonable and justifiable under s 36. The Constitutional Court savedboth the Act and Judge Fevrier’s judgment on the grounds that the Act establishes an invaluable screening mechanismfor the legal system: it ensures that South African courts are not swamped by matters without any merit nor abusedby litigants seeking to extort settlements from their innocent adversaries.

7 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 16.

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24 As a rule, an applicant must run the following gauntlet: (1) ambit determination, (2) en-titlement, (3) impairment. Having run this gauntlet, the applicant can then rest assured thenshe has made, at the very least, a prima facie showing of a constitutional infringement. Butthis is hardly the analytical path traversed by Justice Mokgoro in Beinash. Justice Mokgorodoes not ask how s 34’s right of access to court is to be understood in light of s 39’s fivefoundational values. Justice Mokgoro does not inquire into the drafters’ motivations for en-shrining the right in Chapter 2 or speculate as to the specific values served by s 34.1 JusticeMokgoro does not even seriously question whether the applicant’s activity was entitled tothe protection of the right. Indeed, if she had asked ---- and answered ---- any of these inquiries,she would probably have held that the applicant’s actions were not protected and thereforewere not impaired by the relevant provisions of the Act. Furthermore, the very basis for sucha finding is plainly manifest in the judgment itself.

First, as a matter of logic, it is impossible to guarantee access to court if the court systemis awash in frivolous and vexatious litigation. Put another way, one cannot provide access tothe courts if such access is blocked by a mountain of pre-existing petty proceedings. If theright of access itself must, of necessity, be understood to exclude those actions which makeits exercise impossible, then vexatious litigation is exactly the kind of activity which shouldnot fall within the protective sphere of the right. Secondly, other rights indicate the specificends which s 34 was designed to protect. As Justice Mokgoro herself notes in her limitationanalysis, ss 7(2), 34, 35 and 165 of the Constitution constitute a constellation of rights andpowers whose very essence demands the ever vigilant protection ‘of bona fide litigants, theprocesses of the courts and the administration of justice against vexatious proceedings’.2

Section 35 protects ‘arrested, detained and accused persons’ with an extraordinarily detailedset of procedures and prohibitions. However, it is quite clear that no matter how explicit s 35’sprotections are, they will not be able to ensure the proper functioning of our system ofcriminal justice if the courts are tied up by frivolous after tedious motion in civil actions.Section 165(3) and (4) make this point expressly clear. Section 165(3) reads: ‘No person ororgan of state may interfere with the functioning of the courts.’ Section 165(4) reads: ‘Organsof state . . . must assist and protect the courts to ensure the independence, impartiality, dignity,accessibility and effectiveness of the courts.’ If these rights and powers of necessity precludevexatious litigation, then it is difficult to imagine why s 34 alone should be understood toprovide any solace to the vexatious litigant. Thirdly, it is difficult to see how vexatiouslitigation ---- which undermines the rule of law, democratic institutions and civil society ----can be said to serve the five foundational values underlying our constitutional enterprise.One must have a very generous understanding of ‘openness’ or ‘freedom’ to find court actionsdesigned to grind the wheels of justice to a halt or to squeeze every possible rand from personswho cannot afford the expense of myriad motions and trials actually strengthen our nascentdemocracy. Fourthly, even if one thought that the applicant had made the case for anexpansive ambit and his entitlement to the right’s protection, it is not clear that the applicant’sright of access to court has been impaired by the provisions in question. As Justice Mokgoro

1 Section 34 of FC Chapter 2 provides: ‘Everyone has the right to have any dispute that can be resolved by theapplication of law decided in a fair public hearing before a court or, where appropriate, another independent andimpartial tribunal or forum.’

2 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 17.



observes, the applicant has the right to apply to the High Court to lift the order declaring hima vexatious litigant and has the right to approach the High Court for relief should a primafacie meritorious matter arise.24AYet instead of a careful exegesis of the right and its relationship to the applicant, JudgeMokgoro justifies her overly expeditious approach to rights analysis by noting that s 34 ‘doesnot contain any internal limitation of the right’. But this justification is a red herring in anopinion brimming with lemmings. As I have argued at length elsewhere, the presence ofan internal limitation (or an internal modifier for that matter) does not alter the basic structureof fundamental rights and limitation analysis.1 That is, even if the section in questionpossessed an internal limitation, it certainly would not obviate the need for a thorough-goinganalysis of the ambit of the fundamental right, a determination as to whether the applicant’saction or status falls within the protective sphere of the right and a finding as to whether theapplicant’s actions have indeed been impaired by the law in question.

The court’s short-circuited rights analysis is saved by its reasoning under the limitationclause. And at the time, the upholding of a law at the limitation stage made Beinash entirelyunique. No rule of law, up to Beinash, had been upheld by the Constitutional Court afterbeing subjected to a thorough-going limitation test. But this unique feature of the judgmentcame at a cost. The first cost is that the court’s nominal, notional approach to rights analysisdrives all of the meaningful assessment of the issues raised in the case into the limitationclause. The second cost is that this inappropriate ‘dumping’ of rights issues forces the courtto fudge its analysis of one of the critical legs of the limitation test. At least two prongs ofthe limitation test undertaken in Beinash track determinations which should have beenundertaken under the right itself. When considering ‘the nature of the right in terms of section36(1)(a)’ Justice Mokgoro writes: ‘[A] restriction of access in the case of a vexatious litigantis in fact indispensable to protect and secure the right of access for those with meritoriousdisputes.’2 As I argued above, this point is logically connected to a determination of thecontent of the right and whether the applicant’s activity was indeed deserving of constitu-tional protection. When considering ‘the importance of the purpose’ of the Act according tos 36(1)(b), Justice Mokgoro cites an array of rights ---- ss 7, 35, and 165 ---- to support theproposition ‘that bona fide litigants, the processes of the courts and the administration ofjustice’ all require the kind of protection the Act offers against vexatious proceedings.3 Again,the court should have made the case ---- earlier ---- that these rights inform of our under-standing of the content of the right itself.

It is worth remembering that in order for the respondent to succeed at the limitation stage,he or she must satisfy all of the limitations clause’s requirements. These requirements run(1) from the presence of a law of general application (2) to showing that a law’s objectivemerits constitutional salvation (3) to proof of a rational relationship between the law’s ends

1 For more on the relationship between fundamental rights, internal modifiers, internal limitations and the generallimitation clause, see below, Woolman ‘Limitation’ § 12.2(b).

2 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 17.3 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 17.

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and the means it employs (4) to an appraisal, if absolutely necessary, of the costs and benefitsof the legal regime under scrutiny (5) to a demonstration that the rule of law in questionadopts means that are as narrowly tailored as possible to achieve the objectives of the law.When the court finally considers this last prong and asks, for the purposes of s 36(1)(e),whether ‘less restrictive means to achieve the purpose’ of the Act exist, Justice Mokgoro doesnot squarely address the issue of whether the Act’s aims could have been achieved via a morenarrowly tailored remedy. Instead, she remarks that the Act has struck an appropriate balancebetween means and ends. This is, of course, an answer; but very obviously not an appropriateanswer to the question actually raised by this particular factor.1 No alternative scheme isconsidered. No alternative language for the statute is contemplated.2 We have no way ofknowing, from the court’s express deliberations, whether or not the existing provisionsof the Vexatious Proceedings Act constitute some of the least restrictive means of achievingthe Act’s purpose.24BAnd thus there would appear to be at least some evidence for my second contention: byneglecting to engage in any serious examination of the content of s 34’s right of access tocourt and canvassing of all of the consequential constitutional issues under the limitationclause, the court was actually forced to fudge its analysis of this prong of the limitation test.It is my belief that the court could have averted the analytical confusion that takes place inthe limitation clause if it had undertaken a value-based approach to its determination of theright’s ambit in the first place.

Proof, however, that the Constitutional Court is aware of the appropriate division of tasksbetween the two stages of analysis and consciously struggles to fashion a coherent approachto fundamental rights and limitation analysis is evident from its decisions in August &another v Electoral Commission & others,3 New National Party of SA v Government of theRSA & others (‘NNP’)4 and Democratic Party v Government of the RSA & others (‘DP’).5

In August & another v Electoral Commission & others the court had found that ss 6 and36 of the Constitution created an unqualified right of adult suffrage. But the result in Augustwas rather easily reached: the Electoral Commission had failed to put in place any mechanismat all that would enable prisoners to exercise the franchise. The court in NNP and DP facedthe more daunting task of deciding whether the bar-coded ID books required by the ElectoralAct6 was an infringement of the franchise, and a justifiable one at that.24CAs was noted above, an applicant must run the following gauntlet when trying to establisha prima facie infringement of a right: (1) ambit determination, (2) entitlement, (3) impair-ment. What the court in NNP and DP effectively held was that in order to establish a prima

1 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at para 21.2 For example, the court could have suggested that the statute’s current infirmities be corrected by making certain

that any order issued under the Act which barred a vexatious litigant from court include a sunset clause. An orderwith a sunset clause ---- unlike an order to which an indefinite time period and penalty attach ---- would seem to bea less restrictive means of achieving the Act’s purpose.

3 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC).4 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC).5 1999 (3) SA 254 (CC), 1999 (6) BCLR 607 (CC).6 Act 73 of 1998. Section 38(2) read with the definition of ‘identity document’ in s 1(xii) of the Act precluded

citizens from voting unless they could prove their identity through an identity document issued under theIdentification Act 72 of 1986 or a temporary identity document issued under the Identification Act 68 of 1997.


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facie infringement of the franchise ---- for the rights-bearer to show that she was entitled toexercise it ---- the rights-bearer would have to show that she acted reasonably in an attemptto exercise her right to vote. If her reasonable efforts to exercise the franchise were thwartedby the government’s electoral scheme, then she would have demonstrated a prima facieinfringement.

In short and in general, where the meaningful exercise of a right depends upon the positiveaction of both government and citizenry, then the rights-bearer may be asked to demonstratethat she ‘acted reasonably in pursuit of the right’ before the court will grant that she is entitledto the protection afforded by the right.1 If she succeeds at the rights stage, ‘the question wouldthen arise whether the limitation [created by the government’s scheme] is justifiable underthe provisions of s 36’.2 While taking into account the peculiar demands the franchise placesupon both government and citizen, the NNP and DP courts were still able to maintain thebasic integrity of Chapter 2’s two stages of analysis.3

1 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 23.2 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC) at para 24.3 The lone dissenter in NNP and DP, Justice O’Regan, charts a rather different and undesirable course in her

fundamental rights analysis of the franchise. For reasons that are not entirely clear, the Justice imports areasonableness test of the government electoral scheme itself into the determination of the ambit of the right to vote.The Justice’s departure from form was rejected by the other members of the court ---- for several good reasons. First,there was no textual basis for this new internal limitations test. The court’s overriding commitment to judicialrestraint would seem to argue against the creation of internal limitation tests where the text is silent. Secondly, thevery test itself is taken almost verbatim from the limitation test devised by the court to reflect the requirements ofs 36. Thirdly, the reasonableness test does not address the nature of the right itself (or the actions of the rights-bearer)but the relationship between the means the legislation employs and the ends the government seeks to achieve.Fourthly, having previously granted in August that suffrage is a core constitutional right, it remains unclear why theJustice in these two judgments engages in no rights analysis at all, but instead begins and ends with limitationanalysis.

The ostensible justification for standing the Bill of Rights on its head is that this particular right by necessitydemands that Parliament pass legislation which contemplates regulations designed to ensure the right’s properexercise by the citizenry. But this is no answer at all. Of course, Parliament must pass laws to make the exercise ofthe franchise possible. The question is whether or not rules regarding ‘the date of the an election, the locationof polling booths, the hours of voting and the determination of which documents prospective voters will require inorder to register and vote’ actually impair a voter’s right to exercise the franchise (see para 142). If any one of themdoes, then the question should be whether such an impairment can be saved under s 36. Thus, the Justice could wellhave found an infringement of the right to vote, and then decided under the limitation clause that the means employedand ends sought were rational, reasonable and justifiable. On its face, the Justice’s approach to rights and limitationanalysis in these two cases appears very much at odds with recent judgments in other cases.

For example, one might wish to compare O’Regan J’s judgments in South African National Defence Union vMinister of Defence 1999 (4) SA 469 (CC), 1999 (6) BCLR 615 (CC) with her judgments in NNP and DP. In SANDFUnion Justice O’Regan spent a significant amount of space attempting to determine the ambit of s 23, whether thesoldiers satisfied the definition of worker therein, and thus whether they were entitled to the protection of the right.Having found that the soldiers were ‘workers’, the Justice then found that the provisions of the Defence Act underscrutiny did indeed infringe the soldiers’ s 23(2)(a) right ‘to form and join a trade union’. The Justice then movedon to s 36 and rejected the Minister’s contention that an infringement of the right was justified by the constitutionalimperative to structure and manage the SANDF as a ‘disciplined military force’. That Justice O’Regan is aware ofa better approach to rights and limitations analysis is made manifest in the text. After rejecting overbreadth as aconstitutional doctrine appropriate to the resolution of this challenge, she writes (at para 18) that ‘the first questionto be asked is whether the provision in question infringes rights protected by the substantive clauses of the Bill ofRights. If it does, the next question that arises will be whether that infringement is justifiable. At the second stageof the constitutional enquiry the relevant questions are what is the purpose of the impugned provision, what is itseffect on constitutional rights and is the provision well-tailored to that purpose.’

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(b) The specific relationship between internal limitations and general limitations

In a world of tersely worded fundamental rights and a general limitation clause we wouldalways proceed in the same way: we would make value-based determinations of a right’sscope and whether a particular activity or a person’s status fell within its protective sphereand then, if an impairment was found, we would subject the restriction to searching reviewunder the limitation clause. Unfortunately the Bill of Rights of the South African Constitutionis not such a world. Many of the rights contained therein possess wordy modifications to andhighly specific internal limitations on the right.1 The pressing question is whether thesedifferences in construction alter significantly the form of constitutional analysis whichthese rights receive.2

The general theoretical desiderata of elegance, consistency and simplicity would seem tosuggest that the internal limitations within various rights provide aids in determining the24D

1 The Third Report of the Technical Committee on Fundamental Rights suggests that this confused system ofinternal and general limitations was on the cards from the outset. Third Report of the Technical Committee onFundamental Rights (28 May 1993) 9. The rights which the committee chose to beset with internal limitationsare equality (IC s 8(3)(a)), religion (IC s 14(2)), expression (IC s 15(2)), economic activity (IC s 26(2)), property(IC s 28(2)), and education (IC s 32(b) and (c)).

2 For another view of the relationship between internal limitations and a general limitations clause, seeG Carpenter ‘Internal Modifiers and Other Qualifications in Bills of Rights: Some Problems of Interpretation’(1995) 10 Public Law 260.


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content of the right in question. According to this account, the internal limitations specifythe values which animate the right and serve to delineate the sphere of protected activityoffered by the right. The internal limitations are thereby assimilated into the first of our twostages of analysis.1 Furthermore, this reading entails that the affirmative action clause in theright to equality found at IC s 8(3)(a) is functionally no different than the ‘peaceful andunarmed’ modifiers in the freedom of assembly guarantee.2 The affirmative action provisosimply fills out a theory of equality ---- just as ‘peaceful and unarmed’ clarify the kinds ofassembly which that right is designed to protect.24EIf elegance, consistency and simplicity alone constituted theory building, this approachwould be quite satisfying. Unfortunately this approach lacks the most important componentof a good theory: explanatory power. There is a signal difference between internal modifierssuch as ‘peaceful and unarmed’ in the right to freedom of assembly and internal limitationslike that of affirmative action in the right to equality. Internal modifiers require an inquiryregarding the applicant’s activity and/or status and whether they fall within the protectedsphere. Specific limitations require an inquiry regarding the rule of law at issue and whetherthe objective pursued and the means employed are acceptable.3 The internal modifier analysisfits naturally within fundamental rights analysis. It directs itself toward the applicant’sactivity or status. The specific limitation analysis fits more naturally under the limitationclause. It directs itself towards the law used to restrict a right.4

1 In other words, the internal limitations would be taken into account at the first stage of analysis, wheredefinitional or categorical analysis is used to delineate the contours of the right.

2 Indeed, it may be possible to reword the ‘peaceful and unarmed’ modifier in freedom of assembly to look likethe affirmative action modifier in equality, and perhaps to reword the affirmative action modifier to take the clippedform of the ‘peaceful and unarmed’ modifier. See Albertyn & Kentridge ‘Introducing the Right to Equality in theInterim Constitution’ (1994) 10 SAJHR 149 at 177 (adopting an assimilationist approach).

3 IC s 8(3)(a) ---- equality ---- states that ‘this section shall not preclude measures designed to achieve the adequateprotection and advancement of persons . . . disadvantaged by unfair discrimination . . .’. IC s 14(2) ---- religion,belief and opinion ---- holds that ‘religious observances may be conducted at state or state-aided institutions underrules established by an appropriate authority for that purpose, provided that such religious observances are conductedon an equitable basis and attendance at them is free and voluntary’. IC s 15(2) ---- expression ---- states that ‘[a]llmedia financed or under control of the state shall be regulated in a manner which ensures impartiality and theexpression of a diversity of opinion’. IC s 26(2) ---- economic activity ---- states that ‘[s]ubsection (1) shall notpreclude measures designed to promote the protection or improvement of the quality of life, economic growth,human development, social justice, basic conditions of employment, fair labour practices or equal opportunity forall, provided such measures are justifiable in an open and democratic society based upon freedom and equality’. ICs 28(3) ---- property ---- states that ‘[w]here any rights in property are expropriated pursuant to a law referred to insubsection (2), such expropriation shall be permissible for public purposes only . . .’. IC s 32(b) and (c) ---- education---- hold that ‘[e]very person shall have the right . . . (b) to instruction in the language of his or her choice where thisis reasonably practicable; and (c) to establish, where practicable, educational institutions based upon a commonculture, language or religion . . .’. See also the rights to equality, religion, labour relations, environment, property,housing, health care, food, water, social security, education, and access to information in the final Constitution. Formore on internal modifiers and internal limitations and their effect on the interpretation of socio-economic rights,see below, Liebenberg ‘Socio-economic Rights’ ch 41. See also Pierre de Vos ‘Pious Wishes or Directly EnforceableHuman Rights: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 SAJHR 67. He suggests(at 91n97) that the distinction between internal modifiers and internal limitations does not hold for socio-economicrights and that the distinction fails to take horizontal application into account. I politely demur on both counts, butleave it to the reader to decide who prevails.

4 But see for example S v Lawrence 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC) at para 30: ‘The criteriaprescribed by [IC] section 26(2) and [IC] section 33 are different . . . Section 26(2) is directed in the first inst-ance to the ‘‘design’’ of the measure . . . . Section 33 calls for a proportionality test which does not form part of a


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Secondly, the language of IC ss 8(3)(a), 14(2), 15(2), 26(2), 28(3) and 32(b) and (c), andthe language of FC ss 9(2), 15(2), 23(5), 24(b), 25(3), 26(2), 27(2), 29(2) and 32(2), not onlypoints to the kind of justificatory analysis of government action undertaken under thelimitation clause; it also suggests a burden shift consistent with that analysis. It would be oddindeed if, consistent with the burden cast upon the applicant to show a prima facieinfringement of the right, she then had to demonstrate that a particular government measurewas not ‘designed to achieve the adequate protection . . . of persons disadvantaged by unfairdiscrimination’ or not ‘regulated in a manner which ensures . . . the expression of the diversityof opinion’. The language suggests, rather, that the burden is on the party seeking to upholdthe measure to show that the means employed or the objectives pursued meet the articulatedtest.1

25REVISION SERVICE 2, 1998Finally, this three-tiered approach to constitutional analysis ---- fundamental rights analy-sis, internal limitation analysis, and then general limitation analysis ---- is not the onlythree-tiered approach required by the Bill of Rights ---- at least in the interim Constitution.2

IC ss 33(4) and 33(5)(a) also require fundamental rights analysis, an initial limitationsexercise ---- within the limitations section ---- and then, where necessary, the general limita-tion clause analysis. Assuming that this second approach has greater explanatory power, andis therefore preferable, what consequences follow? Where an internal limitation is in playthere appears to be a burden shift within the fundamental rights stage of analysis whichrequires the state to make the requisite showing. If the state makes the requisite showing,then it knocks out the applicant’s challenge at the internal limitations stage and the actionfails. If the state fails to make the requisite showing ---- and assuming that the applicant hasshown that her activity is protected and has been infringed ---- then we move on to the generallimitation clause and the government has another more general shot at justifying therestriction on the applicant’s right.

The answer to our initial question ---- do the internal limitations or exceptions found withinsome of the fundamental rights affect the subsequent limitation clause analysis? ---- is no.The general form of limitation clause analysis will not be altered. What will be affected bythe internal limitation clause analysis is the ability of the government to offer particularjustifications for the restriction its places on a fundamental right. For example, if the courtfinds that the government measure was not ‘designed to achieve adequate protection . . . fordisadvantaged persons’ under IC s 8(3)(a), then the government will have difficulty offering

section 26(2) analysis. If sections 26(1) and (2) are read together as defining the right, effect can be given toboth section 26(2) and section 33. There is, accordingly, no reason why section 26 should be construed as excludingthe operation of section 33.’ The court appears to endorse the underlying arguments for the three-tiered approachdescribed herein. At the same time, it seems to assume that if any analysis takes place within the right, it is perforcedefinitional. Unfortunately, the court chose not to examine in any detail the difference between the kinds of analysisrequired by IC ss 26(1), 26(2) and 33(1).

1 One possible response is that, given the social pathologies which the Constitution seeks to rectify and thepowerful class of applicants likely to bring challenges, it makes sense to place the burden on the applicants.

2 Memorandum from the Panel of Experts to the Chairpersons and Executive Director of the ConstitutionalAssembly (20 February 1996) seems to support the three-tiered approach in the final Constitution as well: ‘Doesthe general limitation clause have a role to play in justifying infringements of rights that are by their own termsqualified by [internal or special limitations such as] reasonableness? . . . The answer is yes.’

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this justification with a straight face when it comes to the general limitation clause.1 However,a range of other justifications may exist. The general limitation clause clearly provides aframework for determining the viability of these other justifications.2

12.3 BURDEN OF LEGAL JUSTIFICATION

26During the first stage of analysis under the Bill of Rights the applicant is obliged to adducesufficient evidence to establish that her ability to exercise a fundamental right has beeninfringed. That the applicant bears the burden at this first stage of the analysis flows fromthe generally accepted rule that the person asserting a breach bears the burden of legaljustification.3 Assuming that a prima facie infringement has been established at the conclu-sion of this first stage, the next question concerns which party bears the burden of proofduring the second, justificatory stage of analysis.

Nothing in the expressed language of the limitation clause requires that the governmentbear the burden. There are, however, at least three good reasons for placing the burden onthe government.4

1 One response to this line of argument is that the test under the general limitation clause is different ---- morerelaxed ---- and thus the same rationale can be offered again with potentially different results. Of course, the rejoinderto this gambit is why bother having the internal limitation test at all, when the government gets a second easier biteat the cherry under the limitation clause? The only answer to this rejoinder is that the internal limitation clausespecifically identifies a government objective which may limit a fundamental right ---- and prevents the court fromdeciding that the objective is not sufficiently important to justify limiting the right. The general limitation clausedoes not provide such clear direction, and it would otherwise be possible for the court to decide that the objectiveidentified in the internal limitation clause did not justify an infringement.

2 Naturally, some internal limitation tests will do more work than others and leave little residual work forthe limitation clause. Section 26(2) seems to be a good example of such an expansive internal limitation test.See below, Davis ‘Economic Activity’ § 29.4.

3 See Ferreira v Levin (supra) at 26H (BCLR) (‘The task of interpreting the Chapter 3 fundamental rights rests,of course, with the courts, but it is for the applicants to prove the facts upon which they rely for their claim ofinfringement of a particular right in question’). See also Nortje v Attorney-General, Cape 1995 (2) SA 460 (C),1995 (2) BCLR 236 (C) at 248F--G (‘the party seeking to establish the existence of the right bears the onus of proofin so far as the first leg is concerned’). See also Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck) at560G--H (‘The onus is on the party relying on the infringement of a fundamental right to prove such infringement’);Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C), 1995 (2) BCLR 198 (C).

4 See S v Makwanyane (supra) at 708A--B (BCLR) (‘It is for the legislature, or the party relying on the legislation,to establish this justification, and not for the party challenging it to show that it was not justified’). See also Ferreirav Levin (supra) at 26I--27A (BCLR). Prior to the Constitutional Court’s clarification of the matter, most SupremeCourts had also held that the burden falls on the government or party seeking to uphold the limitation. The majorityof opinions simply cited the Canadian Supreme Court decision R v Oakes (1986) 26 DLR (4th) 200 at 225 for thisproposition (‘onus . . . rests on party seeking to uphold limitation’). See Nortje v Attorney-General, Cape 1995 (2)SA 460 (C), 1995 (2) BCLR 236 (C) at 248F--G (‘the party who seeks a limitation of [the] right bears the onus ofestablishing the justification for that limitation’); see also Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA534 (Ck) at 560G--H (‘Thereafter the onus is on the party relying on a limitation to prove that it is a lawfullimitation’); Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C), 1995 (2) BCLR 198(C); S v Majavu 1994 (4) SA 268 (Ck), 1994 (2) BCLR 56 (Ck) at 84A--B; Khala v Minister of Safety and Security1994 (4) SA 218 (W), 1994 (2) BCLR 89 (W) at 98D--E; Matinkinca v Council of State, Ciskei 1994 (4) SA 472(Ck), 1994 (1) BCLR 17 (Ck) at 34D--E (‘Once it is established that a statute does interfere with or limit afundamental right . . . the onus moves to the person attempting to justify the interference . . .’). But see Kauesa vMinister of Home Affairs 1995 (1) SA 51 (Nm), 1994 (3) BCLR 1 (Nm) at 7I--J (in Namibian constitutional law the




First, the Bill of Rights tells us ---- indeed promises us ---- that there are significant areasof our lives where we can act as we wish, free of government interference. On this accountit would be absurd if the government could come along and limit that freedom in whateverway it wished and then require the individual to show that the government’s restriction andits exercise of power was unjustifiable. By placing the burden of proof on the governmentwe simply recognize the government’s unmatched power to shape, manipulate and determinethe content of our lives, and require it to justify the use of its power in areas in which theConstitution tells us we are notionally free.1

27 Secondly, the clause asks for ‘justifications’ for government restrictions. Knowledge of thosejustifications will most likely lie in the hands of those who crafted them. Just as burdens are oftenplaced on the party with unique access to the information the court needs to make its determination,it clearly makes sense to place the burden for justifying the restriction on the government.

Thirdly, the language of the clause appears to imply that the government bears the burden.One would expect that if the applicant bore the burden, the section would read that a ‘rightmay not be limited where such a limitation is unreasonable and unjustifiable’. The actuallanguage requires some party to demonstrate that the limitation is reasonable and justifiable.The government (or a party seeking to have the limitation upheld) is the party which has aninterest in making such a showing.

12.4 STANDARD OF PROOF

Nothing in the expressed language of the limitation clause dictates the appropriate standardof proof. However, several jurisprudential arguments support the use of the civil standard ofproof on a balance of probabilities.2

First, the primary motivation behind the criminal standard is to protect an innocentindividual from the worst conceivable fate, namely deprivation of life or liberty. Constitu-tional litigation only rarely engages issues of such magnitude. Second, that the clause itselfgenerally asks for ‘reasonable’ justifications, and not foolproof arguments, suggests that themore relaxed standard is appropriate.3

applicant bears the onus to persuade the court that the said regulation ‘is not reasonably justifiable in a democraticstate and not on the state to show that it is’), quoting Devenish Interpretation of Statutes 210--12; Nyambirai vNational Social Security Authority 1996 (1) SA 636 (ZS), 1995 (9) BCLR 1221 (ZS) at 1231G (under Zimbabweanconstitutional law ‘the onus is on the challenger to establish that the enactment under attack goes further than isreasonably justifiable in a democratic society, and not on the state that it does not’).

1 The argument that the government should bear the burden of justifying its actions is the same for both negativeand positive rights. See Mureinik ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8SAJHR 451 at 464.

2 Khala v Minister of Safety and Security 1994 (4) SA 218 (W), 1994 (2) BCLR 89 (W) at 97 (adopts civilstandard of proof) citing R v Oakes [1986] 1 SCR 103 at 137 (Canadian Supreme Court adopts a civil standard ofproof for justification under the limitation clause). See also Matinkinca v Council of State, Ciskei 1994 (4) SA 472(Ck), 1994 (1) BCLR 17 (Ck) at 34H--I: court holds that ‘[t]he degree of proof required [to show] that a statute isunconstitutional is proof on a balance of probabilities’. It then goes on to say the degree of proof required to justifya limitation involves a ‘very high degree of probability’ when it comes to satisfying various requirements laid outin the Oakes test. Needless to say, the standard of proof here is unclear.

3 Given that the limitation of some rights also requires a ‘necessary’ justification, and that the stakes in suchcases are fairly high, perhaps the standard ought to be applied with somewhat greater rigour in these cases. That is,proof on balance of probabilities that the limitation is ‘reasonable’; proof on the balance of probabilities that thelimitation is ‘necessary’.

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12.5 LAW OF GENERAL APPLICATION

According to IC s 33(1) and FC s 36(1), only laws of general application may legitimatelylimit the rights entrenched in the Bill of Rights.1 If a piece of legislation, common-law rule,or executive action does not qualify as a ‘law of general application’, then a governmentviolation of a fundamental right cannot be saved under the limitation clause, no matter howreasonable or justifiable it may be.

This threshold test for permitting government justification of its actions is designed to dotwo things. First, it is intended to promote and give effect to the rule of law. Secondly, itshould filter out bills of attainder.2

28 Laws under a regime governed by the rule of law have several notable attributes. First,under such a regime the law is supreme and general. That is, it applies to government actorsand citizens alike. By subjecting government actors to legally binding norms of publicbehaviour the rule of law should preclude arbitrary and discriminatory action by governmentofficials. Secondly, the rule of law requires the creation of a positive body of law that permitscitizens to know what the law expects of them. This requirement means that the law must beaccessible to the citizenry ---- publicly promulgated laws only. Policies kept in a governmentdrawer will not suffice. This second requirement also means that the law must be preciseenough to permit individuals to plan their lives so as not fall foul of the law. Laws, on thisaccount, may not simply grant officials the discretion to use their power however they wishwithin a particular social sphere. Nor should the laws be so vaguely worded as to leadreasonable people to differ fundamentally over their extension.3

1 The phrase ‘law of general application’ appears to have been borrowed from the German Basic Law.Article 19(1) reads: ‘In so far as a basic right may under this Basic Law be restricted by or pursuant to a law, suchlaw must apply generally and not to an individual case.’ However, the phrase ‘law of general application’ occupiesthe same position and serves the same purpose as the phrase ‘prescribed by law’ does in the Canadian Charter, theEuropean Convention of Human Rights, and the New Zealand Bill of Rights. Reference should, and will, thereforebe made to these bodies of law when attempting to determine the meaning and ambit of ‘law of general application’.

2 That the phrase ‘law of general application’ is meant to serve these two purposes is supported by the draftinghistory. The Sixth Report of the Technical Committee on Fundamental Rights includes the phrase ‘law of generalapplication’. In the Seventh Report the phrase is broken down into its two component parts and reads ‘a law applyinggenerally and not solely to an individual case’. In the Tenth Report the phrase ‘law of general application’ reappearsin place of ‘a law applying generally and not solely to an individual case’. A member of the Technical Committeehas suggested that the word choice and change was a matter of artifice and not substance. Thus the interpretationoffered here ---- that ‘law of general application’ was meant to serve both rule of law and bill of attainder ends ----seems more than plausible.

It has also been suggested that the phrase ‘law of general application’ is intended to filter out laws which applyretroactively. Stated at that level of generality, the proposition appears too strong. However, one can imagine a wholehost of retroactive laws which would fail to satisfy both rule of law and bill of attainder criteria and thus not bedeemed ‘laws of general application’.

3 For further descriptions of the rule of law and its relationship to the terms ‘law of general application’ and‘prescribed by law’, see Reference re Manitoba Language Rights [1985] 1 SCR 721 at 748--9, 19 DLR (4th) 1;Hogg Constitutional Law of Canada sec 35.7; Sunday Times v United Kingdom (1979--80) 2 EHRR 245 para 49 at271; Delmas-Marty (ed) The European Convention for the Protection of Human Rights: International Protectionversus National Restrictions (1992) 216--17. Lorraine Weinrib notes that by subjecting the exercise of state powerto the rule of law through the law of general application test we reinforce both the constitutional and the democraticnature of our regime of law. First, the law of general application test protects our constitutional regime byrequiring that ‘[a]rbitrary incursions on guaranteed rights must yield in any confrontation with such fundamentalvalues’. Secondly, the law of general application test ensures that the potential reprieve which the limitationclause offers the government is only available ‘if, and only if, the state has utilized its democratic law-




As we noted above, ‘law of general application’ is also meant to prevent the justificationof bills of attainder. Bills of attainder are laws which are designed to pick out specific namedindividuals or easily ascertainable members of a group for punishment without judicial trial.1

By requiring that laws which seek the benefits of the limitation clause be general inapplication this threshold test ensures that law-making bodies themselves do not craft lawswhich infringe the fundamental rights of named or easily ascertainable individuals. Thus therequirement of generality not only appears to bar arbitrary and discriminatory behaviour byofficials who wield discretionary power but also appears to put a brake on the arbitrary anddiscriminatory powers of law-making bodies themselves.29 The important question, then, is how we go about differentiating a ‘law of general applica-tion’ from a law which is not of general application. In theory a law of general applicationwill satisfy the aforementioned requirements of generality, non-arbitrariness, publicity, andprecision. In practice this four-pronged test will be satisfied by most statutes, regulationsand the common law, as well as by most actions which flow from the operation and necessaryimplication of statute, regulation and common law.2 It is not at all clear, however, whetherdirectives or guidelines issued by government agencies or statutory bodies should qualify aslaws of general application.3

making machinery’. Weinrib ‘The Supreme Court of Canada and Section One of the Charter’ (1988) 10 SupremeCourt LR 469 at 477.

1 The US Constitution prohibits both the federal and state governments from passing any bill of attainder: art I,ss 9, 10. See US v Lovett 328 US 303, 66 SCt 1073 (1946) (legislation prohibiting payment to three named federalemployees on grounds of subversive activity declared invalid as bill of attainder); US v Brown 381 US 437, 85 SCt1707 (1965) (law making it a crime for member of Communist Party to serve as labour union official declaredinvalid as bill of attainder). See generally Tribe American Constitutional Law 2 ed (1988) 641--65.

2 See Shabalala & others v Attorney-General, Transvaal, & another 1996 (1) SA 725 (CC), 1995 (12) BCLR1593 (CC) at 1604, 1995 (2) SACR 761 (CC): ‘ ‘‘[L]aw of general application’’ within the meaning of [IC] s 33(1)would ordinarily include a rule of the common law.’ See Du Plessis v De Klerk 1996 (3) SA 850 (CC), 1996 (5)BCLR 658 (CC) (Kriegler J) at para 136: ‘[IC] Section 33(1) . . . draws no distinction between different categoriesof law of general application . . . [I]t is irrelevant whether it is statutory, regulatory . . . founded on the XII Tablesof Roman Law . . . or a tribal custom.’ See also ANC (Border Branch) v Chairman, Council of State, Ciskei 1994(1) BCLR 145 (Ck) at 159; Khala v Minister of Safety and Security 1994 (4) SA 218 (W), 1994 (2) BCLR 89 (W)at 97. See also R v Therens [1985] 1 SCR 613 at 645, 18 DLR (4th) 655; Ministry of Transport & Noort Police vCurren [1992] 3 NZLR 260; Sunday Times v The United Kingdom (1979--80) 2 EHRR 245 para 47 at 270. But seeJ de Ville ‘The Right to Administrative Justice: An Examination of s 24 of the Interim Constitution’ (1995) 11 SAJHR264 at 275 (arguing that, as written, ‘law of general application’ covers only laws and not actions pursuant to laws;therefore actions pursuant to laws may not be justified under IC s 33(1)).

3 Canadian authority is divided on the matter. See Committee for Commonwealth of Canada v Canada [1991] 1SCR 139, 77 DLR (4th) 385 (court divided as to whether internal airport rules qualified as law for purposes ofs 1 review). To the extent that such rules, directives and guidelines satisfy the four rule-of-law criteria at least onegood structural reason exists for treating them as laws of general application. If such rules, directives and guidelinesare deemed not to qualify as laws of general application, then the government will not have the ability to justifythem under IC s 33. Pressure may then be placed on the court to do justificatory analysis under the freedom itself.That is, the court may be inclined to change the content of the right in order to save the legal action in question.The result could be either the development of two different bodies of fundamental freedom analysis ---- one solelyunder the freedom clause, one more naturally divided between the freedom and the limitation clauses ---- or thedistortion of the fundamental rights analysis resulting from the absence of s 33 review in some non-law of generalapplication cases. For a relevant discussion of this problem in Canadian jurisprudence, see Woolman & De Waal‘Freedom of Assembly: Voting With Your Feet’ in Van Wyk, Dugard, De Villiers & Davis (eds) Rights andConstitutionalism: The New South African Legal Order (1994) 308--14. See also President of RSA v Hugo 1997 (4)SA 1 (CC), 1997 (6) BCLR 708 (CC) (Mokgoro J) at para 104: ‘I consider it undesirable to take a technical approachto the interpretation of ‘‘law of general application’’ . . . [A] technical approach unduly reduces the types of rulesand conduct which can justify limitations . . . [E]xclusion from section 33(1) may adversely affect the properinterpretation of the scope of rights in Chapter 3 . . ..’

LIMITATION


30 There are instances in which legislation, common law and executive action will fail toqualify as law of general application. Legislation or common law may fail this threshold testwhere, for instance, the grants of power to government officials are not constrained byidentifiable legal standards.1 For example, legislation might simply grant a censorship boardthe power to ban films without specifying the criteria for banning.2 Such an unfettered grantof power potentially fails the general application test on two grounds. First, it logically entailsarbitrary action: arbitrary in the sense that no norms or precedents govern the governmentactor’s behaviour.3 Secondly, the grant of power completely lacks precision.4 The absenceof criteria prevents individuals from conforming their behaviour to an identifiable legalstandard. Similarly, legislation or common law may fail this threshold test where the law isvague.5 For example, a statute may give the police the power to stop individuals of‘questionable moral character’ from moving about South Africa, but fail to identify criteriaby which a person might determine who qualifies as an individual of questionable moralcharacter. Such a law, while general and public, is far too imprecise, far too vague to placethe public on sufficient notice of what the law expects of them.6

Executive action will generally fail this test where police and other enforcement officerstake actions which infringe fundamental rights without possessing clear legal authority to doso. Such actions might include the failure of the police to inform an arrested person that shehas a right to counsel where no statutory or common law specifies the conditions under whichsuch a failure could legally occur.7 Likewise, if an enforcement official were to take aconfession without informing the accused of his right to remain silent in the absence of legalauthority permitting such a departure from form, then the action would not be justifiableunder the limitation clause.8 In both sorts of cases the executive actions appear to fail all four

1 See, for example, United States v Hudson & Goodwin 11 US (7 Cronch) 32 (1812) (conviction reversed onground that federal criminal law must be embodied in an Act of Congress and may not be based solely on executivepolicy or judicial rule); Panama Refining Co v Ryan 293 US 388, 55 SCt 241 (1935) (delegation of authority toexecutive declared unconstitutional because Congress had abdicated responsibility for setting clear policy limits onexecutive action). The rationale in Panama Refining seems very close to the Constitutional Court’s reasoning inExecutive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995(4) SA 877 (CC), 1995 (10) BCLR 1289 (CC).

2 See Re Ontario Film and Video Appreciation Society 45 OR (2d) 80 (CA).3 The action must be logically ‘arbitrary’ where the executive official or administrative body are not bound by

their previous decisions. Where the administrative body is bound by its previous decisions the question ofarbitrariness is closer. Of course, questions of publicity and precision remain.

4 See Irwin Toy Ltd v Quebec [1989] 1 SCR 927, 58 DLR (4th) 577 at 606, 617: ‘Absolute precision in the lawexists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to whichthe judiciary must do its work.’

5 See R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606, 93 DLR (4th) 36 (discussing doctrine ofvagueness and manner in which issue may be raised in Canadian Charter applications); Connally v GeneralConstruction Co 269 US 385, 46 SCt 126 (1926) (setting out vagueness doctrine in US law).

6 Such a law would probably violate the overbreadth doctrine in US law on the grounds that no sharp line couldbe drawn between protected and proscribed activity and that constitutionally protected activity would be swept intoits coverage. See Secretary of State of Maryland v Joseph Munson 467 US 947, 104 SCt 2839 (1984); Arnett vKennedy 416 US 134, 94 SCt 1633 (1974). For a discussion of overbreadth in South African constitutional law, seeCase v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), 1996 (5)BCLR 745 (CC) at paras 49, 55 (Mokgoro J).

7 See R v Therens [1985] 1 SCR 613, 18 DLR (4th) 655.8 See R v Hebert [1990] 2 SCR 151, 57 CCC (3d) 1.



prongs of the law of general application test. They lack generality, publicity, precision andseem to be paradigmatic examples of official arbitrariness.1

31REVISION SERVICE 5, 1999De Lille & another v Speaker of the National Assembly2 represents one of the first casesto take up at length the question of whether an Act or a rule or a law fails to meet therequirements of a law of general application.3 The applicant was found by Parliament to haveviolated alleged rules of parliamentary privilege. She was duly punished and suspended. Theapplicant appealed. The court found that the punishment violated s 57(1)(a) of the Constitu-tion and that it could not be justified under section 36 of the Constitution because the allegedrule of parliamentary privilege did not qualify as a law of general application.

The court’s reasoning goes as follows. First, the law of parliamentary privilege in questiondoes not qualify as a law of general application for the purposes of s 36 of the Constitutionbecause it ‘was not codified or capable of ascertainment’.4 (In the language used above: itwas not accessible.) Secondly, it was not ‘based on a clear system of precedent’. (In thelanguage used above: it was not precise.) Thirdly, ‘there was no guarantee of parity oftreatment. It was essentially ad hoc jurisprudence which applied unequally to all parties.’5

(In the language used above: it was neither general nor non-arbitrary.) For all those reasons‘the law of parliamentary privilege failed the ‘‘law of general application’’ leg of thelimitations test in s 36 of the Constitution’.6

Then the court makes a strange, but hardly fatal, misstep. Having found three such blatantfailures to satisfy the threshold test for a law of general application, it finds that thepunishment of suspension also failed the second leg of the limitations test ---- that is, it wasnot reasonable and justifiable in an open democratic society based on freedom and equality.It need not have undertaken this inquiry. The law could not be justified because it had already

1 But see S v Mathebula 1997 (1) BCLR 123 (W). The learned judge would appear to agree that these kinds ofcases fail to satisfy the test for a law of general application as set out in these pages. However, he refuses to applythe suggested test on the grounds that acceptance of this test ‘might undermine the proper working and applicationof our double-barreled procedure’. With respect, it seems that the learned judge has misunderstood my meaning.We would agree that a common-law rule of waiver would satisfy the test for a law of general application. The issue---- which the judge fails to engage ---- is how to treat executive actions which infringe constitutional rights butpossess no clear, controlling legal authority for doing so ---- be that authority statute, regulation, common-law ruleor tribal custom.

2 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C) (Hlophe J).3 For a rather oblique analysis of the meaning of the phrase ‘law of general application’ and an obtuse discussion

of the relationship between ‘law of general application’, ‘the rule of law’, and ‘vagueness’, see National Coalitionfor Gay and Lesbian Equality v Minister of Justice 1998 (6) BCLR 726 (W) (Heher J) at 741A--743F.

4 1998 (3) SA 430 (C) at 455A. See also August & another v Electoral Commission & others 1999 (3) SA 1(CC), 1999 (4) BCLR 363 (CC). The Electoral Commission decision not to permit prisoners to vote violated ss 6and 19 of the final Constitution but had no basis in underlying legislation, was not a law of general application andthus could not be justified under s 36. Justice Sachs wrote that ‘Parliament cannot, by its silence, deprive prisonersof the right to vote’ (at para 33). ‘If Parliament seeks to limit the unqualified right of adult suffrage entrenched inthe Constitution, it will be obliged to do so in terms of a law of general application which meets the requirementsof reasonableness and justifiablity as set out in section 36’ (at para 3); Premier, Province of Mpumalanga v ExecutiveCommittee of the Association of Governing Bodies of State-Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC),1999 (2) BCLR 151 (CC) at para 42. The member of the Mpumalanga Executive Council responsible for educationunilaterally decided not to pay bursaries for certain needy students. The court held that this action violated IC s 24and could not be justified under the limitation clause because the action did not satisfy the threshold requirementthat it be ‘a law of general application’.

5 At 455B 6 At 455C.

LIMITATION


failed the ‘first leg’. Be that as it may, the rationale for the failure of the second leg was thatit was an ex post facto punitive suspension for unparliamentary remarks about memberswhich the applicant had already withdrawn. The punishment was not designed to protect theproceedings of the Assembly, but simply to single out a specific member of Parliament forpunishment without making provision for trial.1 As I have suggested at length above, thiskind of punishment falls well within the parameters of that set of actions which fail to satisfythe threshold test for laws of general application. To have a chance at justifying aninfringement of a constitutional provision, a law cannot be a bill of attainder ---- a lawdesigned to pick out a specific or readily ascertainable individual for punishment withoutjudicial trial. This requirement, too, is a brake on arbitrary and discriminatory behaviour bya law-making body and thus another attempt to ensure that Parliament may only craftinfringements of the Constitution where it follows the appropriate democratic mechanismsfor creating law.

12.6 LIMITATIONS ANALYSIS UNDER SECTION 33(1) OF THE INTERIM CONSTITUTION2

32As we have already noted, there is good reason to believe that are at least two limitationclause tests under s 33(1).3 The first test will apply to restrictions which must simply be‘reasonable’ in order to be upheld. The second test will apply to restrictions which must beboth ‘reasonable’ and ‘necessary’ in order to be upheld. It is also worth noting at the outsetthat within each of the two tests different rights will likely receive slightly different treatment.These nuances in application will flow from the court’s belief, let us say, that expression ismore important than assembly, or that privacy is more important than language.4

1 At 455D--F.2 Few of the lower court judgments have attempted to set out the questions which need be answered by the

litigants during limitation clause analysis. But see Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (Ck),1994 (1) BCLR 17 (Ck) at 34; Dabelstein & others v Hildebrandt & others 1996 (3) SA 42 (C).

3 Some commentators argue that the court ought not to be hamstrung by IC s 33(1)’s hierarchy of rights andbifurcation of tests. They argue that the court should be permitted to work out its own normative vision of whichrights are most important and the specific manner in which they should be limited. See Mureinik ‘A Bridge to Where?Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31 at 33. The text itself appears to preclude this position.

4 A compelling critique of the bifurcated system of tests outlined below is that it employs impairment andbalancing tests which are appropriate for negative freedoms and rights, but which are not appropriate for those(‘positive’) rights which by their nature require other forms of justification, e g education. See J de Waal‘A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights’ (1995) 11 SAJHR 1. Myresponse is twofold. First, I have not suggested that the courts ought to employ these tests without deviation.Secondly, as I argue in the text below, I fear that unless the court articulates some basic tests, it will approachlimitation clause analysis in a rather ad hoc manner with all the attendent dangers inherent in this approach.



Even these relatively simple propositions remain speculative. In its first two years ofoperation, the Constitutional Court has moved very slowly and cautiously in its developmentof a limitations doctrine.1 Despite its lack of expansiveness about the kinds of questions thecourt wants answered when doing limitations analysis, there are some signs of an emergingjurisprudence. For example, O’Regan J, concurring in Makwanyane, writes that

‘What is clear is that section 33 introduces different levels of scrutiny for laws which cause aninfringement of rights. The requirement of reasonableness and justifiability which attaches tosome of the section 33 rights clearly envisages a less stringent constitutional standard than doesthe requirement of necessity. In both cases the enquiry concerns proportionality . . . Where theconstitutional standard is necessity, the considerations are similar, but the standard is morestringent.’2

32AO’Regan J’s take on IC s 33 seems consistent with the two-test approach identified aboveand discussed in greater detail below. Other members of the court have been a bit moreoblique on this point. Chaskalson P, writing for the court in Makwanyane, states that‘particularly where the limitation has to be necessary, [the court must determine] whetherthe desired ends could reasonably be achieved through other means less damaging to theright in question’.3 Despite the relatively clear inference that limitations on rights receiving‘reasonable and necessary’ review will be more strictly scrutinized, the reader is left in thedark about the specific character of the standards the court will employ.

1 In their less capacious moments some members of the court write as if they are not obliged to supply anylimitations criteria ---- other than those set out in attenuated form by the Constitution itself. In S v Zuma (supra) atpara 35 Kentridge AJ writes that ‘I see no reason in this case . . . to fit our analysis into the Canadian pattern’, andthen goes on to supply no pattern of ‘our’ own. In S v Makwanyane (supra) at para 110 Chaskalson P appears to beeven more emphatic in his refusal to define the terms found in IC s 33(1). He quotes Kentridge AJ’s rejection ofOakes and then goes on to say that there is ‘no reason . . . to fit our analysis . . . into the pattern followed by any ofthe other courts to which reference has been made’. Both judges then explain that their desire not to follow thelimitation criteria employed by other nations is a fuction of the differences in construction of the interim SouthAfrican Constitution and its international counterparts. What exactly those differences are and why exactly thosedifferences justify different (or no) criteria under the interim South African Constitution remains unclear. See alsoS v Ntuli 1996 (1) SA 1207 (CC), 1996 (1) BCLR 141 (CC), 1996 (1) SACR 94 (CC) at paras 21, 25. The entiretyof the court’s limitation discussion reads as follows: ‘In order to pass one of the tests for permissibility which s 33(1)sets, the infringements of ss 8(1) and 25(3)(h) have to be rated as reasonable. They are not in my opinion. They failanother test too, I believe, the test of justifiability in a ‘‘society based . . . on equality’’. How they fare on the rest I neednot consider’ (italics added). The Ntuli court could not possibly have said less about limitation analysis nor done less.

2 S v Makwanyane (supra) at para 339 (O’Regan concurring). See also S v Lawrence 1997 (4) SA 1176 (CC),1997 (10) BCLR 1348 (CC) (Sachs J) at para 148: ‘The intensity or severity of the breach must . . . be a highlyrelevant factor in any proportionality exercise; the more grievous the invasion of the right, the compelling must beits justification’; S v Bhulwana 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) (O’Regan J) at para 18: ‘Themore substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.’

3 At para 104.

LIMITATION


The President of the Constitutional Court justifies his refusal to supply details about thelimitations tests it will employ on the grounds that ‘different rights have different implicationsfor . . . an open and democratic society based upon freedom and equality’ and that ‘meansthat there is no absolute standard which can be laid down for determining reasonablenessand necessity’1 (emphasis added). The notion that people are waiting for the court to articulateimmutable criteria or to employ tests from which they may not deviate is a canard. Whatpeople are waiting for is some indication of the ‘kinds’ of questions the courts are going toask and an idea of how reasonableness and necessity might influence or change the contoursof those questions.2

32B

1 S v Makwanyane (supra) at para 104.2 To be fair, the Constitutional Court President does discuss the concept of proportionality ---- ‘which calls for

the balancing of interests’ ---- and places it at the heart of limitation clause jurisprudence. He then goes on to saythat the balancing process required by IC s 33(1) demands that we ask such questions as ‘what is the nature of theright that is limited, and its importance to an open and democratic society based upon freedom and equality’;‘the purpose for which the right is limited and the importance of that purpose to such a society’; ‘the extent of thelimitation [and] its efficacy’. S v Makwanyane (supra) at para 104. Though these questions do indeed give greatersubstance to the court’s jurisprudence, the phraseology is a bit odd. First, in two-stage fundamental rights analysisthe inquiry into the nature of the right limited and its importance in an open and democratic society based uponfreedom and equality occurs at the first stage ---- the fundamental rights stage. At the second stage ---- the limitationstage ---- it is the limitation which is examined for its reasonableness and justifiability in an open and democraticsociety based upon freedom and equality. Secondly, the ‘purpose for which the right is limited’ is not a proportion-ality or balancing question. It is a threshold question. If the objective of the limitation cannot justify the infringementof a fundamental right, then the limitation’s inquiry ends. There need be no comparison of the competing interestsat play. The state or respondent seeking to uphold the limitation loses.


12--32B [REVISION SERVICE 5, 1999]

33REVISION SERVICE 2, 1998Sachs J’s remarks about limitations analysis in Coetzee represent some improvement onthe court’s general reticence. The strength of Sachs J’s opinion lies in his articulation of someof the rationales underlying ‘necessary’ review. First, ‘necessary review’ might mean that a‘law would not be permitted to impose restrictions or burdens going beyond what would bestrictly required to meet the legitimate interests of judgment creditors and society as awhole’.1 This formulation closely approximates the cost--benefit test employed in Canadianlimitations tests.2 Secondly, he seems to flirt with the idea that some form of a minimalimpairment test might be appropriate if the

‘requirement of finding the ‘‘least onerous solution’’ [did not impose] . . . on the court a duty toweigh each and every alternative with a view to determining precisely which imposed the leastburdens. What would matter is that the means adopted by Parliament fell within the category ofoptions which were clearly not unduly burdensome, overbroad or excessive, considering all thereasonable alternatives.’3

Still, some problems with Sachs J’s approach to limitations analysis remain. About therequirement that a limitation must be reasonable, Sachs J writes that it presupposes

‘more than the existence of a rational connection between the purpose to be served and the invasionof the right. Thus, a limitation logically connected to its objective could be unreasonable if itundermined a long-established and now entrenched right; imposed a penalty that was arbitrary,unfair or irrational; or, as in this case, used means that were unreasonable.’4

1 Coetzee (supra) at 664E--F (SA).2 See, for example, Canadian Broadcasting Corp v Dagenais [1994] 120 DLR (4th) 12.3 Coetzee (supra) at 664E--F (SA).4 At 659B (SA).

LIMITATION


Sachs J claims that reasonableness means more than a rational connection between the meansemployed and the objective sought. However, the examples he employs fail clearly todifferentiate reasonableness from rational connection. First, if a penalty is arbitrary orirrational ---- which would fail Sachs J’ resonableness test ---- how could it pass the rationalconnection test? Arbitrariness and irrationality would seem to be synonyms for a lack ofrational connection. Secondly, if the means used to achieve a legitimate objective are logicallyconnected to that objective, how could they be deemed ‘unreasonable?’ Similarly, one mustask what it means for a ‘limitation logically connected to its objective’ to be deemed‘unreasonable if it undermined a long-established and now entrenched right?’ If Sachs Jmeans that the means for achieving a legitimate state or legal objective will not be justifiableif they unduly impair the infringed right, then he ought to say so explicitly.1 One wonderswhether his lack of clarity reflects the realization that were he to be more explicit, he wouldactually be articulating the kinds of ‘formal’ tests employed elsewhere ---- such as a minimalimpairment test ---- which he has so emphatically said we should try to avoid.34 In Ferreira v Levin Ackermann J reinforces some of Sachs J’s ideas about the requirementsof necessary review. He begins by suggesting that for a restriction on a fundamental right tobe deemed necessary it must serve ‘a pressing or compelling state interest’.2 He then tightensthe test by adding that the ‘real question is whether [the restriction on the right] is necessaryin the sense that no other method exists which achieves the desired objective’.3 UnlikeSachs J’s flirtation with minimal impairment, Ackermann J’s stated test for necessary reviewis nothing other than a minimal impairment test.

One good reason for clarity when it comes to limitations clause analysis is the alternative:murkiness and an ad hoc jurisprudence.4 As the Canadian experience suggests, an ad hoc

1 I’m sure that ‘long-established right’ is a bit of unnecessary padding. But assuming it is not ---- why should wetreat a long-established and now entrenched right differently to a relatively recently conceived and now entrenchedright? Is the right to petition more important than the right to equal treatment with respect to sexual orientation?And how are we to treat these classes of right differently for the purposes of limitations analysis?

2 Ferreira v Levin (supra) at para 126. 3 At para 127.4 One good explanation for the court’s murky limitations jurisprudence is that the judges have yet to figure out

what they want this limitation clause to do. Do they want it to play a democracy-reinforcing function and intervenein legislative or executive actions only when Roberts Rules have been violated? Or do they want it to play arights-reinforcing function and intervene whenever the legislature or the executive threatens the individual rightsenshrined in Chapter 3? Or do they want to go both ways? In one breath, Chaskalson P writes that ‘the limitationof constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighingup of competing values’ (emphasis added): S v Makwanyane (supra) at 708C--D (BCLR); that ‘different rights havedifferent implications for democracy’; and that ‘the role of the Court is not to second-guess the wisdom of policychoices made by legislators’: S v Makwanyane at 708G (BCLR), quoting Reference re ss 193 and 195(1)(c) of theCriminal Code of Manitoba (1990) 48 CRR 1 at 62. If not to second-guess, why have the court? Or is there somedistinction between principle and policy here that goes unstated? In a second breath, Chaskalson P curbs hisdemocratic inclinations, and writes that while the court should give due deference to legislators, it should ‘[not]give them an unrestricted licence to disregard an individual’s Charter Rights’: S v Makwanyane at 710A--B (BCLR),quoting Tetreault-Gadoury v Canada (1991) 4 CRR (2d) 12 at 26. When the court figures out how much room theother branches may have when it comes to the infringement of fundamental rights, a clearer limitations jurisprudenceshould follow suit. Based upon what the court has said thus far, however, there remains a lingering fear. The Presidentquotes at length from the decisions of the post-Oakes Canadian Supreme Court. The Canadians have moved awayfrom an Oakes rights-reinforcing model and put nothing in its place. The result, as viewed by some, is a court thatis statist, erratic (confused), and inimical to fundamental rights challenges. See D Beatty Talking Heads and theSupremes: The Canadian Production of Constitutional Review (1990); R Colker ‘Section 1, Contextuality and theAntidisadvantage Principle’ (1992) 42 Toronto LR 77.



approach to limitations carries with it several dangers.1 First, it may leave us with very weaktests which fail to reinforce the rights in IC Chapter 3. Secondly, it is potentially unprincipled---- with the result that the coherence and legitimacy of the jurisprudence flowing from thecourt is threatened. Finally, practitioners will not know how to build cases ---- what evidenceor arguments are required of them ---- unless the court identifies what limitation clausequestions it wants answered in each kind of case.35 Lower courts have been far less reticient about articulating what they believe to be theappropriate limitation clause test(s). By and large they track the test for limitations set out inR v Oakes.2 The problem with many of the lower-court decisions is that the courts have beengenerally unwilling to differentiate between Oakes and s 1 of the Canadian Charter ---- whichhas no expressed levels of scrutiny built in ---- and s 33(1) of the interim Constituition, whichexpressly articulates different standards of review for limitations on different rights.

The two tests set out below attempt to identify a via media between the ConstitutionalCourt’s denial of and the lower courts’ overenthusiastic endorsement of Oakes. In givingmeaning to the unique structure of s 33(1), these tests are Oakes-inspired, but not Oakes-identical. They simply reflect what this author believes to be the ‘kinds’ of questions oneought to ask when doing limitations analysis.

(a) Reasonable and justifiable in an open and democratic society based uponfreedom and equality

The reasonable restriction test should be driven by two primary ---- and somewhat opposed---- concerns. On the one hand, for the rights enshrined in the Constitution to have realmeaning the court must be willing to defend them vigorously and subject restrictions tosearching review. To make good this promise, the reasonable restriction test cannot be appliedwith the same generosity or deference as American minimal scrutiny or rational relation tests.On the other hand, given that the rights which receive only ‘reasonable’ protection generallyeither involve matters of social policy ---- rather than principle ---- or reflect constitutionalcompromises on hotly contested matters, the government should be permitted sufficient roomto craft legislation and undertake actions which serve pressing public interests.3

1 See above, § 12.1(c)(ii).2 See Nortje v Attorney-General, Cape 1995 (2) SA 460 (C), 1995 (2) BCLR 236 (C) at 248F--G (‘the party

seeking to establish the existence of the right bears the onus of proof in so far as the first leg is concerned’). Seealso Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck) at 560 (‘The onus is on the party relying onthe infringement of a fundamental right to prove such infringement’); Park-Ross v Director: Office for SeriousEconomic Offences 1995 (2) SA 148 (C), 1995 (2) BCLR 198 (C); S v Smith 1997 (1) BCLR 70 (Nm) at 75F--G.

3 I say these rights generally involve matters of social policy or reflect constitutional compromises on hotlycontested matters, because there are two exceptions which would threaten to swallow a more firmly articulated rule.First, non-political expression, assembly, association, movement, freedom of information requests or administrativematters are, ostensibly, matters of principle covered only by the reasonable restriction test. One response to thiscritique is that in so far as non-political expression, association, assembly, movement, information and administra-tive justice concerns implicate freedom of conscience, religion, thought, belief and opinion, they are protected underIC s 14 and are covered by the reasonable and necessary restriction test. Thus these matters of principle are in factgiven the highest level of protection by the limitation clause. Secondly, equality is covered only by the reasonablerestriction test. While equality itself might be classified as a matter of principle, the mechanisms for redress of thevast inequalities in this society are clearly both social policy issues and hotly contested matters. Given the technicaland contested nature of redress mechanisms, the limitation clause grants the government a significant amount oflatitude to effect remedial measures.

LIMITATION


The first requirement of a reasonable restriction test is likely to be that the governmentrestriction in question be a means1 for effecting a substantial and pressing governmentobjective. This requirement involves a determination by the court as to whether the objectivebeing pursued by the government is sufficiently ‘substantial and pressing’ to justify arestriction of a fundamental right in ‘an open and democratic society based upon freedomand equality’. In effect the limitation clause is telling us that the rights enshrined inIC Chapter 3 may only be limited where and when the government objective behind therestriction is designed to reinforce the values which animate the constitutional project andour fundamental rights in the first place. At the most general level those values includeopenness, democracy, freedom, and equality. At a more specific level, the values which justifyrestriction ---- and which flow from the individual rights themselves ---- may include individ-ual dignity, tolerance, cultural diversity, a commitment to representative and participatorypolitics, and privacy.36 It must be said, however, that the further one ventures from the values which animateChapter 3, the less likely one is to satisfy this first requirement. For example, it seemsrelatively uncontroversial to argue that administrative convenience and the saving of costsshould not justify the overriding of constitutional guarantees.2 After all, if you are going toallow rights to be trumped by efficiency concerns, you might as well leave their protectionto the hurlyburly of the legislative process.

The second requirement is likely to be that the government restriction must be designedto impair the right in question as little as is reasonably possible. As we saw in the section onthe Canadian jurisprudence, a minimal impairment prong in the limitation test causes no endof heartache. To avoid a similar fate the impairment test for rights legitimately subject to‘reasonable’ restrictions should be flexible.3 The test should allow the government sufficient

1 I have left out a separate rationality requirement for the government objective for three reasons. First, therequirement is analytically unnecessary and redundant, given the other prongs of the test. It seems almost impossibleto imagine a government restriction of a constitutional right which is irrational or unfair, but still ‘impairs the rightin question as little as reasonably possible’ or ‘impairs the right no more than is absolutely necessary’. That is, it isnot conceivable that a restriction would infringe the rationality prong of a limitations test, but not infringe theimpairment prong of that same test. Cf Hogg Constitutional Law of Canada sec 35.10 (arguing, in fact, that therationality requirement is not redundant). Secondly, it strikes me that a rationality test does not belong with the restof the proportionality prongs which come later. It has nothing whatsoever to do with the balancing or comparisonof the state’s and the individual’s interests. If it is to be dealt with anywhere, it should be in that part of the test inwhich the court is looking at the coherence and legitimacy of the governmental interest alone. Thirdly, by includingthe word ‘means’ in the first prong the court can, if it finds a radical disjunction between the objective and the means,end its inquiry there. There is implicit in the term ‘means’ a requirement of rational connection to some end. Thusprovision is made for analysing both the coherence and legitimacy of the governmental interest.

2 There are exceptions. For example, IC s 24(b) ---- of administrative justice ---- might be understood to grant aright to a hearing where rights and legitimate expectations are threatened. Such a requirement could hamstring aparticular regulatory programme requiring urgent promulgation and execution. We may therefore wish to recognizethat costs may limit the process due applicants in some instances.

3 In South Africa a certain degree of flexibility in the reasonable restriction test does not pose the same threat ofwholesale judicial deference as it does in the Canadian Charter limitation test. Not all rights in the interimConstitution are subject to the same ‘flexible’ test. Remember: rights generally involving socially controversialissues or economic policy receive reasonable restriction review. Under reasonable restriction review the governmentis afforded significant latitude in achieving its objectives. However, the core liberal and democratic rights ----e g religion and expression ---- receive the highest level of protection under reasonable and necessary restrictionreview. Under reasonable and necessary review the government is afforded little latitude in effecting its ends.



freedom to achieve its substantial and pressing goals. At the same time the test must forcethe government to take cognizance of the manner in which fundamental freedoms may bedeleteriously affected by its programmes or actions before it initiates them. Even whereeconomic policy and socially controversial issues are concerned the court should not, asDavid Beatty argues, give the government ‘the benefit of every doubt’.1

37 The final requirement should be that the government restriction must not impose costs onthe burdened individuals or groups which are not reasonably proportionate to the expressedobjective. While a ‘substantial and pressing’ objective may warrant the imposition of somecosts on those individuals whose exercise of a fundamental right is being restricted, themagnitude of those costs should not be vastly greater than the benefits the restriction isintended to reap. Where a restriction realizes little benefit and generates much hardship, acourt should strike it down as disproportionate.

(b) Reasonable and necessary and justifiable in an open and democratic societybased upon freedom and equality

Two primary concerns drive the reasonable and necessary restriction test. First, while all therights enshrined in the Constitution must be vigorously defended by the judiciary, rightswhich receive ‘reasonable and necessary’ protection should receive the greatest judicialsolicitude. Secondly, since these rights protect values deemed central to South Africa’sconstitutional enterprise, restrictions on these rights should only be permitted if the govern-ment’s interest is of overwhelming importance and if the sphere of activity protected by theright is disturbed as little as is humanly possible.

The first requirement involves a determination as to whether the objective pursued by thegovernment warrants the infringement of a right. The difference between the reasonablerestriction test and the reasonable and necessary restriction test is a matter of emphasis. Underthis latter test the government restriction must be a means of effecting an overridinglyimportant government concern. The only objectives which can safely be identified as ofoverriding importance are those objectives which reflect the values inherent in otherfundamental rights. Even when restrictions are justified on the basis of such compellingobjectives as national security and public order the restriction must be closely scrutinized soas to determine whether such an objective is genuine or merely a pretext for limiting therange of the right.2

The second prong of the reasonable and necessary restriction test tightens the impairmentrequirement. Now the government restriction must be designed to impair the right no morethan absolutely necessary. The centrality of the guarantees given reasonable and necessaryprotection argues strongly against the government being given more room to manoeuvre thanis absolutely necessary. Indeed, if the court truly wishes to safeguard these rights, the test it

1 Beatty Talking Heads and the Supremes 261.2 One might wish to go even further. It is not simply that the courts must scrutinize invocations of national security

to ensure that they are not a pretext ---- the courts would have to do the same under a reasonableness test in anyevent. Under a reasonable and necessary test one might also wish the government to provide greater particularizationor specification of the threat and, perhaps, the greater importance of the threat for national security.

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employs must force the government to search for the least restrictive means of achievingits objectives.

The final prong of the reasonable and necessary test weights the balancing test morestrongly in favour of the rights holder. The government restriction must not impose costs onthe burdened individuals or groups which are not strictly proportionate to the benefits whichflow from the expressed objective.1 If the court wishes to protect these core rights, it cannotallow the government to initiate actions which both realize limited social benefits ---- nomatter how overridingly important the objective ---- and impose significant burdens onaffected individuals. Only those restrictions which realize significant social benefits, and donot unduly burden the affected individuals, should pass constitutional muster.

12.7 RELATED TO FREE AND FAIR POLITICAL ACTIVITY

38As we have already noted, those government actions which restrict ‘free and fair politicalactivity’ with respect to the rights enumerated in IC s 33(1)(bb) must pass the reasonable,justifiable, and necessary restriction test. The question for us now is: What falls within theextension of the term ‘free and fair political activity’?

At first blush this task of differentiation seems rather routine. For example, assemblieswhich serve largely commercial purposes ---- such as a business convention ---- or purelyrecreational purposes ---- such as a sporting event ---- or entirely aesthetic purposes ---- forexample, a rock concert ---- would appear to fall outside the extension of ‘free and fairpolitical activity’ and would therefore be subject to reasonable government restrictions.Rallies for political parties or particular social causes, on the other hand, would invariablyfall with the phrase’s extension.

1 While the second prong of the test ---- ‘impair the right no more than absolutely necessary’ ---- and this thirdprong appear to overlap and generate similar results, they are analytically distinct tests. The second prong is athreshold test. It asks that the government search for the least restrictive means available to achieve its objective.For example, a law which requires a hospital committee to determine the eligibility of women for abortions maynot be the least restrictive means of professional oversight available, especially if few hospitals have establishedsuch committees or if they prove difficult to convene. Requiring a decision by a single official supervising physicianmight be deemed a less restrictive means of realizing the state’s oversight objective. The third prong is a balancingtest. It balances the benefits realized by the restriction to the government, public interest or sector of the publicagainst the costs imposed on the parties subject to or affected by the restriction. For example, a law prohibitingdentists from advertising may be said to benefit members of the public vulnerable to deceptive advertising. However,the costs imposed on practitioners who cannot spread word of their skill ---- and on a general public which has itsaccess to important information impaired ---- might be much greater then the said benefits. See T Alienikoff‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale LJ 943 (distinguishing between tests which providestandards which measure compliance and tests which assign weights and values to the various competing interestsat stake). The two tests thus draw attention to different aspects of the same problem. The second prong asks thegovernment to pay careful attention to the means it employs to achieve its objectives. The third prong asks thatthe government look at the costs its restrictive measures impose on various parties. It is therefore possible for theleast restrictive means of impairing a right to place unconscionable burdens on the persons effected: thus passingthe second prong, but failing the third. Despite this possibility, it will be relatively rare for a measure to fail one testand pass the other. The reason for this similarity in result is that if a restrictive measure is not as narrowly tailoredas possible, then it is very likely to impose greater costs on the persons affected than would a more narrowlytailored restriction.



The aforementioned examples appear to suggest a neat dividing line between political andnon-political activities. But how ought one to classify a concert put together to raise moneyfor AIDS research, a play about corruption in the present government, or even a businessconvention where the primary focus is on changing the copyright laws for computer softwareand other intellectual property? All three assemblies possess characteristics associated withpolitical activities. At the same time it is unlikely that all the attenders are politicallymotivated. The difficulties in differentiation are even more pronounced with respect to purelyexpressive issues. Texts do not normally come with the tag ‘related to free and fair political activity’attached to them. Yet it is the odd text which cannot be found to have a political dimension.39 The real question behind this inquiry about the boundaries of ‘free and fair politicalactivity’ is what activity we believe is sufficiently important to warrant significant judicialintervention and protection. For example, restricting the more highly protected category ofexpressive activity to ‘governance’-related matters only begs the question of what forms ofexpression we deem essential for carrying on our political life. If we conceive of our politicallife in narrow terms and our constitutional concerns tend to revolve around judicial conven-ience, then we would probably wish to restrict ‘political speech’ to expressive activity whichbears directly on a voter’s decision at the polling booth. If, however, judicial convenience isnot our primary jurisprudential motivation, and we believe that ‘there are many forms ofthought and expression within the range of human communication from which the voterderives the knowledge, intelligence and sensitivity to human values’ necessary for engagingin informed political debate and the exercise of the franchise, then our approach to thisdefinitional exercise should be far more generous.1 Furthermore, the acknowledgement thata wide range of expressive activity informs and influences ‘the deliberative processes ofpolitical life’ and ought to be appropriately protected requires a second-order level ofgenerosity. This second-order level of generosity flows from the greater difficulty in line-drawing that a broader category of political expression entails ---- the greater difficulty itselfflowing from the contested nature of what counts as political. If, however, we are going toensure that all expressive activity that might influence our political deliberations receives thehighest level of constitutional protection, then, as Derek Spitz has argued, ‘it is necessary tooverprotect high-value speech to ensure that we do not underprotect it’.2

Though the court may wish to take such a generous definitional approach with respect to‘free and fair political activity’ for all the rights enumerated in s 33(1)(bb), it will certainlybe the case that the phrase will receive different treatment with respect to the different rights.The same justifications which may underlie the broad construction of ‘free and fair politicalactivity’ when it comes to s 15 inquiries may not, for example, justify a similarly broadconstrual when s 24 interests are at stake. It remains for the court to work out both a grandnormative vision for what counts as ‘related to free and fair political activity’ in ‘an open anddemocratic society based upon freedom and equality’ and how that vision manifests itselfwith respect to the protection afforded particular rights.

1 Meiklejohn ‘The First Amendment is an Absolute’ 1961 Supreme Court LR 245 at 257.2 Spitz ‘Eschewing Silence Coerced By Law: The Political Core and Protected Periphery of Freedom of

Expression’ (1994) 10 SAJHR 301.

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12.8 NEGATING THE ESSENTIAL CONTENT OF THE RIGHT

40Unlike the other clauses in IC s 33(1), this clause is likely to be far more symbolic thanfunctional.1 The ‘essential content’ test will simply not be engaged in most limitation clauseanalyses. The vast majority of constitutional cases will require the careful analysis of closelybalanced state and individual interests ---- and never really engage the threshold determina-tion about whether the essential content of the individual right has been negated. Despite itslimited practical role, the essential content prong does provide a strong reminder to the courtthat the government, no matter how lofty its objectives, may go so far and no further inlimiting the rights in enshrined in Chapter 3.

Though we venture far into the land of conjecture, the ‘essential content’ of a right mightsafely be said to be made up of those values and practices which, if entirely proscribed, wouldprevent the right from fulfilling its intended function.2 If we follow the objective content/subjective content bifurcation found in German jurisprudence,3 the test for negating the

1 Though the court has recognized the existence of IC s 33(1)(b)’s provision that a limitation on a right may notnegate the essential content of the right, it has yet to define the phrase or use it in determining the outcome of acase. In S v Makwanyane (supra) at 718 (BCLR) Chaskalson P recognizes that the purpose of the provision is toensure that ‘rights should not be taken away altogether’. He then discusses the German jurisprudence on the subjectand suggests that the ‘essential content of a right’ may have both an objective and an subjective component. However,since the case did not turn on whether the limitation negated the essential content of the right, the President heldover defining the phrase for a more appropriate occasion.

Some judges have questioned the efficacy of ‘essential content’ in its entirety ---- or so it might appear. In AZAPO& others v President of the Republic of South Africa & others 1996 (4) SA 671 (CC), 1996 (8) BCLR 1015 (CC)at para 66 Didcott J writes: ‘Negating the essential content of a constitutional right is, however, a concept I havenever understood. Nor can I fathom how it applies to a host of imaginable situations.’ The judge should not beunderstood to be saying that he could find no possible meaning in the phrase nor that it defies application. Ratherhe should be read as commenting upon the difficulties of making sense of the phrase, his inclination to see it playa limited role in limitation analysis, and his pleasure in seeing it disappear from the text of the final Constitution.

2 Before we try to determine in what exactly the ‘essential content of a right’ consists, and when the rare conditionsfor its negation might occur, it is perhaps worth recalling what we mean when we talk about the content of a right.The content of a right is determined during the first stage of analysis, when the court inquires as to whether thefundamental right in question has been infringed. As we have already seen, the ‘content’ of a right is really no morethan the values and the practices the right is designed to support. For example, freedom of speech might be said toserve such socially desirable goals as political participation, an unfettered press, political stability, truth-seekingthrough critique and competition, cultural autonomy, self-realization, and anti-orthodoxy. The practices which servethese values run the gamut from art exhibitions to commercials, public political protests to poetry readings, heavytexts to two-word t-shirts.

3 While the German Basic Law is the source of this test, the Federal Constitutional Court (‘FCC’) has not hadthe opportunity or the inclination to develop its meaning. The test itself has never been used to find a law invalid.But see 45 BVerfGE 187 (although the test for essential content was not directly engaged, the court effectively heldthat life imprisonment did not challenge the core of the rights to human dignity and equality because under theexisting penal system an individual had a reasonable prospect for parole and release based upon his good behaviour);33 BVerfGE 303 (absolute restrictions on admission to university only constitutional where (a) absolutely necessaryand (b) selection is based on objective criteria, otherwise denial of a place at university might negate the essentialcontent of the right to choose where one is educated). See D Kommers The Constitutional Jurisprudence of theFederal Republic of Germany (1989) 295, 315 (for translations of, and commentary on, the ‘Life Imprisonment’Case and the ‘Numerus Clausus’ (Education) Case). See also D Currie The Constitution of the Federal Republic ofGermany (1994); De Waal ‘A Comparative Analysis of the Provisions of German Origin in the Interim Bill of Rights’(1995) 11 SAJHR 1.



essential content of the right might be broken down into two separate questions:1 first, doesthe restriction make it objectively impossible for the right itself to fulfil its intended socialfunction? Secondly, does the restriction make it subjectively impossible for the individualsaffected ever to exercise the right?2

41 The first question calls our attention to the kinds of institutions and practices necessaryto sustain an open and democratic society based upon freedom and equality. For example,the social or objective content of the freedom of association might be said to lie in themultifarious benefits which political, economic, religious and cultural associations havefor our overall social life. Imagine, however, that legislation proscribed the creation ofassociations larger than two people. One could rather convincingly argue that such legislationmade it impossible to build the political parties, labour unions, cultural organizations orreligious bodies that the freedom was designed to protect.

The second question calls our attention to the effects of a restriction on the lives ofparticular individuals. For instance, the subjective content of the freedom of association couldbe said to guarantee the individual the right to enter into associations with others so that sheand the group members may pursue specific individual or group ends. Imagine then thatexecutive enforcement of a law prevented an individual from associating with other individu-als. For a limited period of time ---- let us say a month in solitary confinement ---- the denialof the freedom to associate would probably not negate the essential content of the right.

1 See Khala v Minister of Safety and Security 1994 (4) SA 218 (W), 1994 (2) BCLR 89 (W) (endorsing thisbifucated analysis), citing with approval Woolman ‘Riding the Push-Me, Pull-you: Constructing a Test thatReconciles the Conflicting Interests which Animate the Limitation Clause’ (1994) 10 SAJHR 60 at 71--2.

2 In S v Makwanyane (supra) at 742B--D (BCLR) Kentridge AJ rejects the ‘subjective’ approach. He argues that‘[i]t cannot accomodate the many State measures which must be necessary and justifiable in any society, suchas long-term imprisonment for serious crimes . . . I find it difficult to comprehend how, on any rational use oflanguage, it could be denied that while he is in prison the essence of the prisoner’s right[s] to freedom . . . toleave the Republic . . . or to pursue a livelihood . . . are not negated.’

I am not quite sure what the judge means by the phrase ‘any rational use of language’ or what theory of languageunderlies the phrase. I can only guess.

As I suggest in the text below, I do think it possible for the phrase to take on a subjective cast without doingviolence either to the fundamental rights enshrined in IC Chapter 3 or to this country’s penal system. Most modernpenal systems are committed to the following two principles: retribution and rehabilitation. The second principle---- rehabilitation ---- recognizes that people can change over time and that if a convict changes his behaviour in waysconsistent with acceptable social intercourse, then he may deserve early release. The subjective prong of the essentialcontent test is designed to ensure that even where serious punishments are meted out the person will not have thepossibility of exercising his fundamental rights entirely extinguished. On this account then the extension of thephrase ‘not negate the essential content’ ultimately depends on the purpose we believe the phrase is designed toachieve ---- not on the Oxford English Dictionary or what one judge characterizes as ‘rational’.

Whether or not the judge likes the discourse of objective and subjective content suggested here is, of course, ofless import than the judge’s own contribution to the debate. In his discussion of essential content the he providesan example from which we are to draw the principle. He gives us two instances of limitations on speech ---- an actproviding for the censorship of all publications and an act proscribing hate speech. However, it is not clear fromthe judge’s account why the limitation of one type of expression ---- potential censorship of all publications ----negates the essential content of the right to freedom of expression, but the proscription of another kind of expression---- hate speech ---- would not negate the essential content of the right. Both acts are aimed at the ‘content’ of a speechact. Both would be likely candidates for constitutional infringement. The judge, however, fails to identify whatcharacteristics of a general censorship act threaten the core of the right to expression and what characteristics placehate speech outside the core of the right. Without more examples or exposition, meaningful induction about theambit of the ‘essential content’ of the freedom of expression cannot take place.

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However, were the period of solitary confinement to extend to the end of the individual’slife, without opportunity for reprieve, the proscription would very likely be deemed to denythe right’s essential content.42 Nothing in the previous account should imply that each right comes fully equippedwith a fixed essential content. Given an ongoing constitutional conversation between thelegislature, the judiciary and other sectors of society, one would expect that the values andpractices that a right is understood to support will shift over time. Such a shift will inevitablyalter the core content of the right.1

Whatever those shifts might be, the previous account should have suggested that the coreitself will rarely be disturbed by government restrictions.2 Remember that on this accountthe restriction must either make it impossible for the right to serve its intended objective orsocial function or in its application bar permanently individuals and groups from exercisingthe right. In a reasonably well-governed polity ---- where the legislature and the executiveabide by constitutional norms ---- such restrictions should be rare.3

This last insight supports the conclusion that the essential content prong has a twofoldpurpose. First, there were certain rights which the drafters initially thought should be entirelyimmunized from the limitation clause and any attempt at government justification. Thepresence of the essential content prong means that, structurally, the prima facie infringementof a freedom will invariably be subject to the limitation clause, but that practically certainconstitutional guarantees will not be capable of justifiable limitation. For example, s 11(2)guarantees that ‘no person shall be subject to torture of any kind’. The essential content prongappears to block any government attempt at justification. What, after all, could possibly bethe essential content of such a right except the prevention of torture of any kind. However,the fact that s 11 is not subject to a blanket immunization means that other subsections within s 11,such as the right to freedom and security of person, might be subject to justifiable limitation.

Secondly, the presence of the essential content prong serves as a reminder to the courtthat its ultimate role is that of guardian of IC Chapter 3’s rights. It serves as such by shiftingthe limitation clause analysis away from questions about the merit of the restriction’sobjectives and means to the potentially detrimental effect the restriction will have on theright and the right-holders under attack. It tells the court that no matter how noble and

1 Stated slightly differently, the contours of a right’s essential content may well appear to shift as theConstitutional Court views the right against the differing factual backgrounds of various cases and restrictivemeasures.

2 The classification of the right as one covered by the reasonable restriction test or as one covered by thereasonable and necessary restriction test need not have any particular effect on the right’s essential content. However,the classification as one of lesser importance may influence the court to make less than robust defences of the valuesunderlying the right or the individual stake in the right, and thus make the court less inclined to find a negation ofthe right’s essential content. Conversely, a right of greater importance may well engage the court’s attention moreclosely and lead to more frequent determinations that the essential content of a right has been transgressed.

3 Of course, the court could expand the essential content of any particular right ---- or all rights ---- so as to precludeany and all imaginable government restrictions. However, the conceptual pressure that other prongs of the limitationclause test place on the court’s analysis should prevent such an occurrence. That is, the court’s overall test mustreflect the underlying premise of the limitation clause: that ‘reasonable’ or ‘necessary’ government restrictionswhich are ‘justifiable in a open and democratic society based upon freedom and equality’ are constitutional. Toexpand the essential content prong to its illogical extreme ---- where all restrictions are deemed unconstitutional ----would render the rest of the limitation clause meaningless.



important the government’s objectives are, there is a point beyond which it may not go inlimiting the rights enshrined in IC Chapter 3.1

12.9 PURPOSE OF SECTION 33(2) OF THE INTERIM CONSTITUTION

‘Save as provided for in subsection (1) or any other provision of this Constitution, no law,whether a rule of common law, customary law or legislation, shall limit any right entrenchedin this Chapter.’43On a quick reading this provision’s ambit seems relatively straightforward. It purports to tellus that in order for a law legitimately to limit a right entrenched in Chapter 3 it must satisfythe test set out in s 33(1). Upon closer inspection it is clear that the wording of the provisionis in fact open to several misinterpretations.

It has been suggested that because s 33(2) states that ‘no law, whether . . . common law,customary law or legislation, shall limit any right entrenched in this Chapter’ we shouldunderstand that Chapter 3 applies generally to common law and customary law. That is, someread s 33(2) back into s 7 in an attempt to extend the reach of Chapter 3. That interpretationstrikes me as untenable. The purpose of s 33 is to set the parameters for limitations onChapter 3’s rights, not to establish the reach of those rights. The correct reading is that wherelegislation, common law and customary law are in fact subject to Chapter 3, then any limitswhich they effect on the Chapter’s fundamental rights can only be justified by reference tothe test set out in s 33 and or some other provision of the interim Constitution.2

1 There can be few objections to drawing round the core of a right a bright prophylactic line that will suffer notrespass. The bright lines ensure that government cannot entirely trample over guarantee after guarantee. There may,however, be instances in which the threat of the prima facie protected activity to the continued existence of the stateis so great that the state must be able to suspend legitimately the individual’s right in order to prevent him fromcarrying out his threat. The German Basic Law recognizes the potential for such threats and includes some safeguardsto thwart them. Unfortunately neither the limitation clause itself nor the rest of the individual guarantees in the interimConstitution have mechanisms for qualifying the ‘essential content’ prong. The lone provision that permits the state tonegate the essential content of the interim Constitution’s protections is the suspension clause. However, in order for thesuspension clause to permit the state to suspend an individual’s or a group’s rights, the state must first declare astate of emergency. The new accountable order ushered in under the interim Constitution gives one reason to believethat such emergencies will be rather uncommon. Yet even if the government wanted to take such a hard line, thesuspension clause itself places significant brakes on its power to do so. Only in the most extreme circum- stanceswill the suspension clause function as a qualification of the ‘essential content’ prong of the limitation clause. We can,however, take some comfort in the fact that although the essential content prong remains relatively unbridled, theinstances of such threats to the democratic order are sufficiently rare that they should cause us little fear.

The other major problem ---- perhaps more important than the override problem ---- is that the essential contentprong may make the procedural or factual posture of the case decisive in many instances. That is, the prong’srequirements may mean that the rights a petitioner seeks to vindicate may force the court to reach one conclusionregarding a particular area of the law, while petitioners seeking vindication of other rights in similar circumstancesmay push the court to reach another conclusion. The best example of such a scenario is abortion litigation. If thelitigants are women who seek a declaration that the present common-law rules are unconstitutional, then their rightsto equality and dignity are the rights whose essential content may not be negated. If, however, the litigants areindividuals who seek a declaration from the court voiding tabled legislation granting women the freedom to havean abortion, then the foetus’s right to life will be the right whose essential content may not be negated. One canimagine the court reaching different conclusions about the validity of abortion in the two cases because of theessential content hurdle in each case. Although I have left out several important questions ---- namely whether thepetitioners get past the first stage of rights inquiry ---- Chapter 3’s analytic framework seems to make our lawcontignent upon who gets to court first. See below, O’Sullivan & Bailey ‘Reproductive Rights’ § 16.8.

2 For further support for this proposition, see the Seventh Report of the Technical Committee on FundamentalRights (July 1993) 12.

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It is the phrase ‘any other provision of this Constitution’ which is the real source of trouble.The phrase seems to suggest that limitations on fundamental rights may be justified not bysatisfying the rigorous test set out in s 33, but instead by reference to other provisions in theinterim Constitution.44 For example, the relevant part of s 58(2) states that National Assembly and Senate standingcommittees ‘shall have the power to summon persons to appear before [them] to giveevidence on oath or affirmation and to produce any documents required by [them]’. Thepower to summon persons to appear before the standing committee to give evidence clearlycreates the possibility that such persons might be required to give incriminating evidence.Depending upon how the provisions in s 25 are construed, this power to coerce evidencecould well have the effect of infringing a person’s rights to remain silent and not to be acompellable witness against himself or herself. Similarly, the power to coerce the productionof documents might be deemed to infringe the right to privacy generally or its specificprotection against the violation of private communications. In either case, however, thisreading of the phrase ‘any other provision of this Constitution’ would appear to permit theoverriding of fundamental rights by other provisions of the interim Constitution withoutthe requirement that they be justified by reference to the test laid out in s 33(1).

There is a better reading. First, we can read ‘any other provision of this Constitution’restrictively. We should not assume that another provision of the interim Constitutioncontemplates limitation of a fundamental right entrenched in Chapter 3 unless there are cleartextual indications that such a limitation is intended. Secondly, we should not necessarilyassume a hierarchy of constitutional provisions which automatically subordinates the rightsenshrined in Chapter 3 to the various government powers provided for elsewhere in the text.Given the primacy of place which fundamental rights are accorded in the text and theirexpress purpose of placing clear limits on the exercise of government power, it wouldcertainly seem counterintuitive automatically to subordinate these rights to the exercise ofgovernment power. At the very least it should remain an open question as to whether or notthe exercise of power expressly provided for by the interim Constitution should be permittedto limit a fundamental right. While we may not want to subject such limitations to thejustificatory test set out in 33(1), another kind of justificatory test is warranted. Such a testmight legitimately treat the kinds of justification for the constitutionally provided forlimitation of a fundamental right differently than s 33(1) treats the justifications for statutory,executive or common-law limitations of fundamental rights.




‘The entrenchment of the rights in terms of this Chapter shall not be construed as denyingthe existence of any other rights or freedoms recognized or conferred by common law,customary law or legislation to the extent that they are not inconsistent with this Chapter.’45Section 33(3) is both sop and savings clause. It is a sop to those participants in the draftingprocess who did not see their favourite right enshrined in Chapter 3. To the extent that suchconstitutionally unrecognized rights are recognized in statutory, customary or commonlaw ---- and to the extent that they are ‘not inconsistent with’ the rights enshrined in theChapter ---- s 33(3) saves them, and the courts will continue to recognize them as binding.1

Furthermore, s 33(3) permits statutory, customary and common law to be developed in wayswhich expand the recognized corpus of rights. Section 33(3) thereby prevents the ossificationof rights that could occur if Chapter 3 was understood to set strict limits on the rights wepossessed and if we found ourselves politically incapable of amending Chapter 3.2


‘This Chapter shall not preclude measures designed to prohibit unfair discrimination bybodies and persons other than those bound in terms of section 7(1).’Section 33(4) is both sop and immunization clause. It is a sop to those drafters who wishedgenerally to see Chapter 3 applied horizontally and who wished in particular to see s 8 appliedhorizontally in order to end private discrimination.3 By implication, s 33(4) when read withs 8(3)(a) seems to function as an enabling provision for civil rights legislation. That is, s 33(4)contemplates that Parliament will have the power to pass civil rights legislation and goes onto provide that such legislation will be protected against constitutional attack. For example,civil rights legislation may require all business associations to open up their membership toall interested individuals regardless of race or gender. While the legislation may be found tobe a prima facie infringement of s 17’s freedom to associate, s 33(4) tells us that suchlegislation, as long as it is ‘designed to prohibit unfair discrimination’, will be upheld as ajustifiable limitation on a fundamental right.4 Of course, the insulation of civil rights

1 See the Seventh Report of the Technical Committee on Fundamental Rights (July 1993) 12: ‘[R]ights recognizedand conferred by indigenous law and not affected by this Chapter, remain of full force and effect.’

2 Section 33(3) is not the only section of Chapter 3 designed to prevent such ossification. Section 35(3) isexpressly intended to promote rights-based development of both customary law and common law.

3 The Tenth Report of the Technical Committee on Fundamental Rights states that this subclause was ‘insertedin response to a fear expressed that privatised racial discrimination [was] not sufficiently prevented by the provisionsof the Chapter as they stood’ at the time.

4 The presence of s 33(4) shifts the limitation clause analysis away from s 33(1). That is, the determination ofwhether the infringement of a fundamental right by civil rights legislation is justifiable is made under s 33(4). Thejustificatory framework laid out under s 33(1) appears to be bypassed.

Or so it seems. It is logically possible, though perhaps analytically untidy, to argue that if the law in question isfound not to be ‘designed to prohibit unfair discrimination’, then one could proceed to s 33(1) to attempt justificationon other grounds. Indeed, whether or not much solace is offered by s 33(1), I would argue that the form ofconstitutional analysis requires that if a law is deemed not to be ‘designed to prohibit unfair discrimination’ forpurposes of s 33(4), the analysis should still proceed to s 33(1). As with fundamental rights that possess an internallimitation clause, much, but not all, of the justificatory work is done under the internal limitation clause. However,there still remains some residual analysis which might occur under the limitation clause, simply because a test for‘designed to prohibit unfair discrimination’ might not be identical to a test for ‘reasonableness and justifiability’.

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legislation from constitutional challenge is not airtight. The language of s 33(4) appears toallow for a successful attack on such legislation if the applicant can somehow overcome thestate’s showing that the legislation was designed to prohibit unfair discrimination. However,my guess is that the term ‘designed’ is sufficiently generous that the state is unlikely to failin its efforts to make the necessary showing.1

12.12 PURPOSE OF SECTION 33(5)(a) AND (b) OF THE INTERIM CONSTITUTION

‘(a) The provisions of a law in force at the commencement of this Constitution promoting fairemployment practices, orderly and equitable collective bargaining and the regulation ofindustrial action shall remain in full force and effect until repealed or amended by thelegislature.’

46Like s 33(4), s 33(5)(a) is best understood as both a sop and an immunization clause. Theclause is a sop to those who feared that constitutionalizing labour rights in s 27 might affordthe judiciary the power to undermine what many believe to be a very progressive andwell-developed body of labour legislation and regulation. The question is whether infact s 33(5)(a) does insulate that body of law from judicial meddling.2 A literal reading ofs 33(5)(a) suggests that few, if any, laws would be saved. As Martin Brassey notes, it will bethe rare law which is deemed to infringe a Chapter 3 fundamental right but which will thenbe declared to be promoting ‘fair’ employment practices, ‘orderly and equitable’ collectivebargaining and the regulation of industrial action, and thereby survive constitutional attack.3

By the time of publication, this provision may well have been overtaken by history. A newLabour Relations Act has been introduced in Parliament and seems certain to supplant itspredecessor in most respects. Repeal or amendment of the old law by the new suggests that,from here on in, all labour law will be fair game for review under s 27.

‘(b) If a proposed enactment amending or repealing a law referred to in paragraph (a) deals witha matter in respect of which the National Manpower Commission, referred to in section 2Aof the Labour Relations Act, 1956 (Act No 28 of 1956), or any similar body which may replacethe Commission, is competent in terms of a law then in force to consider and make

1 Cf Murienik ‘A Bridge to Where: Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31 at 33 (arguingthat ‘designed’ could be construed to mean narrowly tailored, and thus make the legislation easier to attack). Seealso Albertyn & Kentridge ‘Introducing the Right to Equality in the Interim Constitution’ (1994) 10 SAJHR 149 at177 (offering two alternative explanations of the clause and arguing that it serves not to immunize but merely toprovide certain protections.)

2 As with s 33(4), the presence of s 33(5)(a) appears to shift at least some of the limitation clause analysis awayfrom s 33(1). That is, the determination of whether the infringing employment practice is fair or the collectivebargaining law ‘orderly and equitable’ is made under s 33(5)(a). However, as I argued above, if a law is found notto be a fair employment practice or not to be an orderly and equitable collective bargaining law, then one shouldproceed to s 33(1) to attempt justification on other grounds. Whether or not s 33(1) offers much solace, the form ofconstitutional analysis prescribed by Chapter 3 requires that the government be given an opportunity to justify fullyits infringement of the fundamental right. Simply put, a justificatory test for ‘fairness’ or ‘orderliness andequitableness’ might not be identical to a test for ‘reasonableness and justifiability’.

3 Brassey ‘Labour Relations under the New Constitution’ (1994) 10 SAJHR 179. See also below, Brassey ‘LabourRelations’ § 30.1(b). But see Cape Local Authorities v Independent Municipal & Allied Trade Union 1997 (3) BCLR306 (C) (Farlam J): ‘In my opinion, one cannot hold that section 33(5)(a) does not achieve what the framers of theConstitution clearly intended, that is some measure of immunization against constitutional attack for at least somelabour legislation.’



recommendations, such proposed enactment shall not be introduced in Parliament unless thesaid Commission or such other body has been given the opportunity to consider the proposedenactment and to make recommendations with regard thereto.’

Unlike s 33(5)(a), s 33(5)(b) is nothing but a sop. This time the sop is for those who fearedthat the new South African Parliament will perhaps pass legislation that might underminethat very same progressive and well-developed body of labour legislation and regulationostensibly protected by s 33(5)(a). Fortunately or unfortunately, depending on which side ofthe sop one is on, the language of this provision is so permissively worded that the legislatureis unlikely to find its decisions limited in any meaningful way. It appears only to require thatthe Commission or other appropriate party be able to view the legislation in advance andmake suggestions. The Commission is not required to assent to changes, nor does it possessa veto power.

12.13 LIMITATION ANALYSIS UNDER SECTION 36(1) OF THE FINAL CONSTITUTION

(a) Reasonable and justifiable in an open and democratic society based on humandignity, equality and freedom

47The wording of this first part of s 36(1) of the final Constitution remains very similar to thewording of s 33(1) of the interim Constitution. As noted above in § 12.1(d), two majorchanges have been made to this section. The first involves the deletion of the necessity andessential content requirements. The effect of these deletions is discussed at length above,§ 12.1(d)(i). The second involves the addition of a list of relevant factors for limitationanalysis. The effect and meaning of this addition is discussed at length below, § 12.13(b)and (c).

The drafters of the new text have also added the term ‘human dignity’ to the list of valuesthat a court must take into account when deciding whether a limitation of a fundamental rightis justified. The phrase is likely to bear the same meaning that it bears in other contexts and,in particular, in s 10 ‘Human dignity’ of both the interim and final Constitutions.1

The purposes and structure of limitation analysis should remain ---- for the moment ----roughly the same.2 We should, for example, expect any limitation test to be driven by twoprimary concerns: (1) to provide a vehicle for subjecting infringements of fundamental rightsto vigorous review; (2) to provide a mechanism which permits the government or some otherparty to undertake actions which, though prima facie unconstitutional, serve pressing publicinterests. We should also expect that any limitation test will ask roughly the same kind ofquestions: (1) whether the objective of the law under scrutiny warrants the infringement ofa right; (2) whether the means employed to realize that objective are rationally connected tothat objective; (3) whether the government or some other party defending the law at issuecould have used some means less restrictive of the rights of the aggrieved party.

1 See below, D Leibowitz & D Spitz ‘Human dignity’ ch 17.2 For the purposes of limitation analysis, see above, § 12.1. For the general structure of limitation analysis under

the interim Constitution see above, § 12.6.

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(b) Stages of analysis, levels of scrutiny and threshold inquiries

While the questions posed in Makwanyane and the factors listed in s 36(1) give greatersubstance to our limitation jurisprudence, I believe the phraseology of both to be inapt inimportant respects. The language of both Makwanyane and the final Constitution seems toreflect a continuing failure clearly to separate the stages of fundamental rights analysis andto recognize that not every limitation question involves issues of proportionality.1

48 The first question the Makwanyane court says we should ask is ‘what is the nature of theright that is limited, and its importance to an open and democratic society based upon freedomand equality?’ The final Constitution rehearses this language with the more telegrammaticinjunction to consider ‘the nature of the right’. The problem, however, is that in two-stagefundamental rights analysis the inquiry into the nature of the right limited and its importancein an open and democratic society based on freedom and equality occurs at the first stage ofanalysis and not as part of the second stage of the analysis ---- the limitation stage. AlthoughI should not be understood as defending an absolutely rigid distinction between rightsanalysis and limitation analysis, the limitation stage directs our attention primarily, if notexclusively, to the reasonableness and justifiability of a limitation in an open and democraticsociety based on human dignity, freedom and equality. Consideration of the nature and scopeof the right is something that should already have taken place.

There is one possible explanation for this repetition. The drafters could be suggesting amore nuanced approach to the levels of scrutiny which might be applied. The repetition mayprovide a device that enables a court to tighten or to loosen several of the clause’s justificatoryrequirements according to the importance (or the nature) of the right that has been infringed.For example, with respect to infringements of core rights, such as equality or expression, thenature of the right may require a reviewing court to ensure that (1) the object the governmentwishes to achieve is so overwhelmingly important that it justifies the infringement of suchrights or (2) that the means used to achieve the government’s objective must be no morerestrictive of the protected activity than is absolutely necessary or (3) that the benefits to berealized by the government objective significantly outweigh the burdens imposed upon the

1 Cf Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at 770D--771D with Mohlomi vMinister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC). In Brink Justice O’Regan goes throughthe steps in their proper order. While she could have stopped her analysis after finding the objectives of the lawunjustifiable, she chose to go on to consider proportionality. In Mohlomi, on the other hand, Justice Didcott statesthat the clause requires every limitation to pass two tests: one for reasonableness and one for justifiability. (No otherjudgment handed down thus far mentions discrete tests for the two terms.) He then says that ‘[each] test require[s]the competing interests and values it impairs and promotes to be weighed against one another for an appraisal oftheir proportionality’ (at para 15). It is not clear how ‘competing interests and values’ are both subject to ‘an appraisalfor their proportionality’. It is the law that has infringed the fundamental right ---- the means the law employs andthe objectives it seeks to achieve ---- which is measured for its proportionality. The fundamental right in question isnot so measured. Assuming that there are two tests, and that both require some sort of proportionality analysis, onewould expect Justice Didcott to elaborate on what the two tests are and whether their various requirements are metin the case in question. Instead the judge simply says that ‘the nature and importance’ of IC s 22 speaks for itselfand requires ‘no elaboration’ (at para 16). Several pages later, after comparing a less restrictive statute of limitationswith the provision being contested, the judge concludes that no good argument supports the more restrictiveprovision being contested and that it therefore fails to satisfy the tests for reasonableness and justifiability.



rights-holder. On the other hand, with respect to the infringement of rights whose ‘nature’makes them less central to our constitutional project ---- say trade and occupation or residence---- the burden on the government or party seeking to uphold the limitation may be lighter.1

49REVISION SERVICE 3, 1998Where such choices were expressly made in the text, as they were in the interimConstitution, this interpretation of Makwanyane’s first question makes somewhat less sense---- unless you read the court as either wishing to subvert the express choices of the draftersor as simply suggesting that greater sensitivity to the nature of the infringed right is requiredwithin each of the two (or three) categories of limitation analysis expressly provided for bythe interim Constitution. However, this interpretation does makes sense where, as in the finalConstitution, express levels of scrutiny do not exist and the courts are required to reach theirown conclusions about the relative importance of each right and the kind and the strength ofjustification the party defending the infringement must offer.

The second limitation inquiry identified by the Makwanyane court is the ‘purpose forwhich the right is limited and the importance of that purpose’. In the final Constitution thisinquiry is transposed into the following factor: ‘the importance of the purpose of thelimitation’. What is important to recognize is that this is not, as the Makwanyane court seemsto suggest, a balancing question. It is a threshold question. If the objective of the limitationcannot justify the infringement of a fundamental right, then the limitation inquiry ends.2

There need be no comparison of competing interests.3

(c) Relevant factors and the proper order of analysis

Another troubling aspect of the new limitation clause is that the order of relevant factors ins 36(1) does not reflect accurately the proper order of factors for the purposes of limitationanalysis. This errant ordering may lead courts to ask the wrong questions at the wrong time.4

1 For example, Theme Committee Four has written that when courts compare the limitation in question withother appropriate alternative restrictions, they are not obliged to pick the least restrictive measure: ‘Those restrictingrights will be left with a discretion to decide on any particular measure within this [acceptable] range; . . . this neednot be the least restrictive measure viewed in isolation.’ Theme Committee Four Advisors Memorandum toConstitutional Assembly 14 April 1996. One would expect the range of acceptability to be, at least in part, contingentupon the extent to which we think the right infringed is central or peripheral to our constitutional project. The morecentral the right, the narrower the range of acceptable forms of limitation. The more peripheral the right, the greaterthe range of acceptable forms of limitation.

2 See for example Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC) at para 16.Justice Didcott’s analysis ends once he finds that the Act in question does not serve ends of sufficient importanceto warrant overriding a fundamental right, in this case the right of access to court.

3 The benefits and the importance of the limitation are not being compared to the importance of or burdens placedupon the right. The test for justifying the limitation’s objective is simply tightened or loosened depending upon thenature of or the importance attributed to the right.

4 Some might attribute a certain amount of prescience to Theme Committee Four in this regard. One could readsuch aperçus as ‘[t]he list of factors should remain open-ended’ and ‘none of the factors should be regarded as aconclusive ‘‘test’’ and care should be taken not to formulate these factors as ‘‘tests’’ ’ as part of an effort to take thesting out of just this line of criticism. Theme Committee Four Advisors Memorandum to Constitutional Assembly14 April 1996. But if this is so, they beg the question: What are the factors meant to do? Are the factors like arrowsin a children’s game that allow the child to decide where to go and what to make of them? Zen koans and Kafka’sprose are meant to offer everything and confirm nothing. But surely the final Constitution and the ConstitutionalCourt should be understood to confirm much of what they offer.

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According to the final Constitution’s limitation clause, the first factor of which a courtshould take cognizance is ‘the nature of the right’ which has been infringed. As we havealready seen above, one way of reading this injunction is that it determines the level ofscrutiny which a given limitation will receive. If the right infringed is deemed crucial to ourconstitutional project, it will tighten several, if not all, of the limitation requirements thatfollow. It is not so much a separate inquiry as it is a mechanism for adjusting the entirelimitation clause to the exigencies at hand. The first factor seems well placed to serve this end.50 The second factor ---- ‘the importance of the purpose of the limitation’ ---- also appears tobe well placed. It asks us to determine whether the objective or purpose of the limitationserves the values of openness, democracy, human dignity, freedom, equality and the othervalues which underlie the Bill of Rights and the Constitution as a whole. If the objective orpurpose of the limitation does not serve any of these values in a manner which justifies theinfringement of an express fundamental right, then the party seeking to uphold the limitationloses and our limitation inquiry ends.

The third factor, however, ‘the nature and the extent of the limitation’ is misplaced. As weshall see below, this inquiry ---- which invites cost--benefit analysis ---- belongs last in ourbasic litany of limitation questions.

The fourth factor is ‘the relation between the limitation and its purpose’. It is properlyplaced after the second factor. Once the legitimacy of the limitation’s objective is establishedit makes sense to ask whether the means employed to achieve the objective are rationallyrelated to achieving that objective.1 If not, then there can be no good reason to permit theinfringement of the right.2

Assuming a legitimate objective and rational means, we reach the fifth factor: whether‘less restrictive means to achieve the purpose’ exist. If the government (or some other party)is going to restrict the exercise of a fundamental right in the service of some other compellingconcern, then it should attempt to employ means of doing so which are least restrictive ofthe right(s) being infringed.3

1 See for example S v Zuma (supra) (use of a reverse onus provision making possession of drugs prima facieproof of trafficking not rationally related to the objective of curbing trafficking).

2 It may make no difference whether the rational relation of the means inquiry or the legitimacy of the limitation’sinquiry is undertaken first. Both inquiries are discrete. They do not depend upon an answer to the other. Both inquiriesare threshold inquiries. If a restriction fails either inquiry, the limitation analysis comes to a halt.

3 See for example Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 at 770J--771A (respondentcould not carry burden of justification under IC s 33(1) because he could not demonstrate that there were not otherlegislative provisions which could reasonably serve the purpose of protecting the interests of creditors in a mannerless invasive of constitutional rights); S v Makwanyane (supra) at para 128 (State could not carry burden ofjustification under IC s 33(1) because it could not demonstrate that the death penalty was a more effective deterrentthan life imprisonment, and life imprisonment least impaired the constitutional rights at issue); S v Williams 1995(3) SA 625 (CC), 1995 (7) BCLR 861 (CC), 1995 (3) SACR 251 (CC) at paras 62--3 (State could not carry burdenof justification under IC s 33(1) because it could not demonstrate that whipping ---- though an effective deterrent ----was a more effective deterrent than other creative sentencing options which are less invasive of the minor’s right tohuman dignity); Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC) (infringementby s 113 of the Defence Act of the right to access to court ---- its limitation on the time required to launch anapplication ---- deemed to be neither reasonable nor justifiable because means less restrictive of the right and capableof achieving the same objective are readily available).



51REVISION SERVICE 5, 1999Returning to the third factor for limitation analysis ---- ‘the nature and the extent of thelimitation’. It is not clear what the Makwanyane court or the drafters mean by the ‘nature . . .of the limitation’. It seems to involve an inquiry largely identical to the determination of the‘importance of the purpose of the limitation’ required by the second factor. On the other hand,the meaning of that portion of the factor which reads ‘the extent of the limitation’ seemstransparent. The court and the drafters appear to be concerned that an apparently justifiablelimitation ---- one which serves a legitimate end, employs means rationally connected to thatend, and reflects one of the least restrictive means possible for achieving that end ---- doesnot impose costs or burdens upon the rights-holder(s) which far outweigh the benefits said toflow to other members of society. As I have argued elsewhere,1 this is the only real balancinganalysis we undertake. It is the only inquiry which compares directly the competing and oftenincommensurable values at stake. It is also an inquiry bound to put the court under the greatestpolitical pressure. It asks the court to revisit the compromise of social interests struck by theco-ordinate branches of government. If we must balance competing rights, values andinterests ---- and it appears we must ---- then it is, perhaps, an inquiry best saved for last.2

Some evidence of the mild conceptual confusion wrought by the Makwanyane model oflimitation analysis is on display in Mistry v Interim National Medical and Dental Councilof South Africa (INMDCSA).3 Again, the problem is not so much with the underlyingprinciples the court seeks to vindicate, but with an inapt articulation and an errant orderingof the questions to be posed. Indeed, my previous concern was that the Makwanyane modelwould confuse lower courts. Mistry suggests that the model has left the Constitutional Courta bit disoriented as well.

After finding that a search conducted by agents of INMDCSA clearly violated the rightto privacy of the applicant ---- IC s 13 ---- the court undertakes the obligatory second stage of

1 S Woolman ‘Out of Order? Out of Balance? The Limitation Clause in the Final Constitution’ (1997) 13 SAJHR102. The article explores problems with the metaphor of balancing in limitation analysis, argues that balancing isoften impossible because of problems of incommensurability between the goods and values sought to be balanced,and suggests that a workable alternative to balancing may be found in legal storytelling or a picture theory ofconstitutional politics.

2 It is relatively rare that limitation analysis in Canada reaches this final inquiry. For reasons that need not bedetailed in full here, when fundamental rights challenges fail they invariably fail at the rights stage, the legitimacyof the limitation’s objective stage, the rational connection stage, or the least restrictive impairment stage. SeeS Woolman ‘Riding the Push-Me Pull-You: Constructing a Test that Reconciles the Conflicting Interests whichAnimate the Limitation Clause’ (1994) 10 SAJHR 60 at 89n80 (discussing the differences between impairmentanalysis and cost--benefit analysis and why they yield almost identical results).

3 1998 (4) SA 1127 (CC), 1998 (7) BCLR 880 (CC) (Sachs J). For further evidence of the court’s haphazardapproach to limitation analysis see also S v Dlamini; S v Joubert; S v Schietekat; S v Dladla 1999 (4) SA 623 (CC),1999 (7) BCLR 771 (CC), 1999 (2) SACR 51 (CC), where the court upheld the bail provisions of Criminal ProcedureAct (‘CPA’) despite infringement of the applicants’ rights under s 35. In a rather unstructured limitation analysis ofthe sections under scrutiny the court held that the alarming level of crime, the apparent absence of less restrictivebail mechanisms and the fact that the CPA’s bail conditions were not unduly invasive of the applicants’ rights satisfiedthe requirements of s 36. But see Lotus River, Ottery, Grassy Park Residents Association & another v SouthPeninsula Municipality 1999 (2) SA 817 (C), 1999 (4) BCLR 440 (C) (Davis J) for evidence that many judges incourts below have been able to come to grips with the basic requirements of both rights and limitation analysis:court holds that although a uniform increase in rates by municipality had a differential impact on ratepayers,exacerbating already unequal positions based on race and therefore presumed, in terms of s 9(5), to be a violationof the right to equality, the increase was deemed to be justifiable under s 36 because it was chosen only after carefulconsideration of limited range of viable options and because a new, more equitable rates system would be in placethe following year.

LIMITATION


analysis: whether the limitation of the right was justifiable. First, it considers ‘the nature ofthe right that is limited, and its importance to an open and democratic society based onfreedom and equality’.1 The court writes that the right to privacy, ‘[s] 13 [of the interimConstitution,] . . . requires us to repudiate the past practices that were repugnant to the newconstitutional values, while at the same time re-affirming and building on those that wereconsistent with these values’.2 But, of course, they have already found this to be the caseduring the first stage of analysis by finding that the actions of INMDCSA agents violatedthe applicant’s s 13 right to privacy. Nothing new ---- certainly no limitation analysis ---- isadded here. The rights analysis has simply been repeated.52 As I have argued above, limitation analysis really begins with the court’s second consid-eration, ‘the purpose for which the right is limited and its importance for an open anddemocratic society based on freedom and equality’.3 The Mistry court asks whether the objectivesof the specific sections under scrutiny are consistent with the values of an open and democraticsociety based on freedom and equality. The court concludes that ‘[t]here is nothing to suggestthat the broad objectives of section 28(1) raise echoes of the racism and authoritariande-personalization which characterized the earlier era. Indeed, the purpose of the MedicinesAct is manifestly beneficent; it ‘‘was put on the statute book to protect the citizenry atlarge’’.’4 In short, the objectives of the Act are justifiable and pass constitutional muster.

But then the Mistry court goes on to consider ‘the extent of the limitation’.5 As I suggestabove, and as the court indicates in its reasoning, this complex inquiry invites cost-benefitor ‘balancing’ analyses best saved for last, if undertaken at all. The court writes that ‘it [is]necessary to decide on a case by case basis how invasive any such regulatory inspectionswould be. The more public the undertaking and the more closely regulated, the moreattenuated would the right to privacy be and the less intense any possible invasion’.6 Afterundertaking this unnecessarily broad inquiry, the Mistry court finds that ‘the section [of theAct in question] is so wide and unrestricted in its reach as to authorize any inspector to enterany person’s home’ without the need to secure a warrant and on the mere suspicion that quitelegal medications may be there.7 Such unchecked police powers, the court rightly concludes,cannot possibly outweigh the requirements of a state committed to even the most modestunderstanding of privacy.

In proceeding directly to this ‘balancing’ analysis the Mistry court overlooks completelythe rightful second step in the limitation inquiry: is there a rational relationship between alegitimate objective and the means used to achieve it? If the court decides that the relationshipbetween ends and means is rational ---- again not necessarily optimal ---- the court shouldmove on to a third consideration: ‘[w]hether the desired ends could reasonably be achievedthrough other means less damaging to right in question’.8

1 At para 25.2 Ibid.3 At para 26.4 Ibid.5 At paras 27--8.6 At para 27.7 At para 28.8 At para 29.



However, the Mistry court’s observations on the adequacy of the section’s tailoring areentirely superfluous. Having already undertaken the ‘extent of the limitation’ analysis ---- andhaving found the Medicines Act sorely lacking ---- the limitation game is over. But the courtpresses on and finds, quite correctly, that ‘the desired and permissible ends of regulatoryinspection [of doctors, dentists and pharmicists] could easily be achieved through means lessdamaging to . . . section 13’ and the right to privacy.1 The right analysis ---- at the wrong placeand time.

If one desires somewhat greater precision when it comes to limitation analysis, then theefforts of the court in S v Meaker provide a welcome relief.2 In Meaker the issue was whethera reverse onus provision (in s 130 of the Road Traffic Act 29 of 1989), which held that for

52A

1 At para 29.2 1998 (8) BCLR 1038 (W), 1998 (2) SACR 73 (W) (Cameron J).

LIMITATION


52B

the purposes of prosecuting a traffic offence the owner of an automobile could be presumedto be the driver of an automobile at the time of the offence, violated the right to be presumedinnocent under FC s 35(3)(h). The court found quite easily that the Act’s presumption violatedFC s 35(3)(h). The question, then, was whether the presumption could be justified ---- andthus upheld ---- under FC s 36.53REVISION SERVICE 3, 1998Judge Cameron does not adopt a rigid, paint-by-the-numbers approach to limitationanalysis, but rather synthesizes the primary questions regarding the constitutionality ofpresumptions with a set of questions that reflects the underlying principles of limitationanalysis. The point here being that for each right there might be different desiderata fordetermining when the infringement of a right is justifiable under the limitation clause.Cameron J distills limitation analysis with regard to reverse onus provisions down to thefollowing five considerations: (1) was it in practice impossible or unduly burdensome for thestate to discharge the onus of proving all the elements pertaining to the offence beyondreasonable doubt?1 (was the objective justifiable in an open and democratic society basedupon equality, dignity and freedom?); (2) was there a logical connection between the factproved and the fact presumed and was the presumed fact something which was more likelythan not to arise from the basic facts proved?2 (was there a rational connection between theend sought and the means employed to achieve it?); (3) did the application of the common-law rule relating to the state’s onus cause substantial harm to the administration of justice?3

(having decided that the connection is rational, one must ask whether the harm is profoundenough to justify invalidating the law); (4) generally, was the presumption in its terms castto serve only the social need it purported to address or was it disproportionate in its impact?4

(this inquiry does not exactly amount to a cost-benefit analysis, but rather is best understoodas an inquiry into whether or not the presumption over-reached its legitimate target);(5) finally, could the state adequately achieve its legitimate ends by means which would notbe inconsistent with the Constitution in general and the presumption of innocence inparticular?5 (given the legitimacy of the objective, could the state have more narrowly tailoredthe scheme employed to achieve its objective?)

This is not to say that the test set out in Meaker is not without its problems. As the judgmenttakes the rather novel view that the presumption against innocence is ‘eminently’ justifiable,6

one might ask whether such a conclusion was necessary AND whether another kind oflimitation question might have elicted a different response. It is possible to conclude thatwhatever a reverse onus could do, an evidentiary burden could do as well. How might thisprofoundly different answer have been elicited? Well, one could have answered the fifthquestion in the affirmative rather than in the negative. One might have also asked a slightlydifferent question; especially given that the presumption of innocence is a core right of thisConstitution. One might have asked, importing language from the interim Constitution,whether the reverse onus was necessary in such circumstances, or whether another method,such as an evidentiary burden, would have sufficed. That said, the quarrel is really in theconclusion. The questions themselves do justice to the principles underlying limitationanalysis in a reverse onus context.

1 1998 (2) SACR at 87 2 At 88.3 Ibid. 4 Ibid.5 Ibid. 6 At 93.

LIMITATION


(d) Balancing ---- the metaphor and its problems

‘[T]he limitation clause should provide us with a mechanism for weighing up or balancingcompeting fundamental values against one another.’1

Stuart Woolman ‘Limitation’

54The quote above is a perfect example of one’s utterances outstripping one’s capacity tounderstand them. The metaphor of balancing is so deeply embedded in our constitutionaldiscourse that we often use it without giving the actual meaning of the metaphor a secondthought.2 My contention in this section is that there are intractable problems with the notionof balancing.

(i) What balancing is

Balancing means the ‘head-to-head’ comparison of competing rights, values or interests. Itcan take at least two forms.3

Sometimes balancing means that one right (or interest or value) will simply ‘outweigh’another right (or interest or value). For example, in Makwanyane the court held that theapplicant’s right to life outweighed the state’s interest in the death penalty for the sake ofrevenge and communal catharsis. Under no circumstances will the death penalty outweighthe right to life. Put another way, it will not live to survive further constitutional scrutiny.

1 Chaskalson, Kentridge, Klaaren, Marcus, Spitz & Woolman Constitutional Law of South Africa (1995) § 12.1(RS1 1996). See also S Woolman ‘Riding the Push-me Pull-you: Constructing a Test that Reconciles the ConflictingInterests which Animate the Limitation Clause’ (1994) 10 SAJHR 60 at 89n80: ‘The third prong is a balancing test.It balances the benefits to be realized by the restriction to the government, public interest or sector of the publicagainst the costs imposed on the parties subject to or affected by the restriction’ (emphasis added).

2 See, e g, Johan de Waal ‘A Comparative Analysis of the Provisions of German Origin in the Interim Constitution’(1995) 11 SAJHR 1 at 26 (‘[B]alancing is just another way of limiting rights’); Gerhard Erasmus ‘Limitation andSuspension’ in D Van Wyk, B De Villiers, J Dugard & D Davis Rights and Constitutionalism (1994) 629 at 649--50(‘In order to perform this [limitation] function the judiciary will have to do the necessary balancing throughout’);James Casey Constitutional Law in Ireland (1992) 313--14 (‘Balancing constitutional rights: On occasion, oneperson’s exercise of his/her constitutional rights will collide heavily with those of others . . . [and] courts willobviously have to weigh . . . the constitutional rights involved . . . to achieve an accommodation’); Paul SeighartThe International Law of Human Rights (1991) 94 (‘[Limitations analysis] involves a delicate balance between thewishes of the individual and the utilitarian greater good of the majority’); David Currie The Constitution of theFederal Republic of Germany (1994) 180 (‘If the mystical terminology of reciprocal effect sounds peculiar . . . thebottom line of interest balancing does not’); Lawrence Tribe American Constitutional Law (1988) 792--3 (‘[D]eter-minations of the reach of first amendment protections . . . presuppose some form of ‘‘balancing’’ whether or notthey appear to do so’). For talk of ‘balancing’ in our jurisprudence, see, e g, S v Makwanyane 1995 (3) SA 391 (CC),1995 (6) BCLR 665 (CC) at 708E--F (proportionality ‘calls for the balancing of interests’); Coetzee v Governmentof the Republic of South Africa 1995 (4) SA 631 (CC) at 656B, 1995 (10) BCLR 1382 (CC) (Sachs J, concurring)(‘[F]aithfulness to the Constitution is best achieved by locating the two-stage balancing process within a holistic,value-based and case-oriented framework’) Mistry v Interim National Medical and Dental Council of South Africa1998 (7) BCLR 880 (CC) at 890 (‘This . . . calls for the balancing of different interests’). Philosophers also employthe terminology. See, e g, John Rawls Political Liberalism (1993) 243: Rawls writes that citizens, like members ofthe court, must ‘be able to explain their vote to one another in terms of a reasonable balance of public politicalvalues’ (italics added). The language of balancing is an inevitable part of any utilitarian theory. For a critique of‘balancing’ in utilitarian theory see Bernard Williams ‘A Critique of Utilitarianism’ in J C C Smart & B Williams(eds) Utilitarianism: For and Against (1973) 75.

3 T Alexander Alienikoff ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale LJ 943.



55 Sometimes balancing means ‘the striking of a balance’ between competing rights orinterests. No right is asked to pay the ultimate price. In Holomisa v Argus Newspapers LtdCameron J held, in defamation cases involving the media, neither that the plaintiff’s rightsto dignity or reputation outweighed the media’s right to freedom of expression, nor that themedia’s rights outweighed the plaintiff’s rights. Rather in such defamation cases the Justiceheld that a person ‘who exercises his or her right of free speech by publishing even falsedefamatory statements in the area of ‘‘free and fair political activity’’ ’ will be affordedconstitutional protection for that act ‘unless the plaintiff shows that the publisher actedunreasonably’.1

(ii) Why balancing is often impossible

The balancing of constitutional rights, values or interests at its best often involves termino-logical confusion.2 At its worst, it is an impossible undertaking.3

1 These two cases do not exhaust all possible examples of constitutional balancing. There may be another classof balancing cases in which the courts will see-saw between the rights and interests engaged. Reverse onusprovisions may well be such a class of cases. For example, in S v Zuma 1995 (2) SA 642 (CC), 1995 (4) BCLR 401(SA) the presumption of the right to be presumed innocent was held to outweigh the use of a reverse onus provisionthat effectively made drug possession tantamount to trafficking. The Constitutional Court was careful to note thatthere may be other instances in the future where reverse onus provisions could be used by the state without doingviolence to the Constitution’s commitment to a presumption of innocence. The Zuma court said that the state would,in such a future case, have to show that its interest in the use of a reverse onus provision was rationally related tothe crime to be curtailed and that the reverse onus provision in question met the rest of the limitation clause’srequirements. In fact, that is just what happened in S v Meaker 1998 (8) BCLR 1038, 1998 (2) SACR 73 (WLD)(Cameron J). In Meaker a reverse onus provision which stated that for the purposes of prosecuting a traffic offencethe owner of an automobile could be presumed to be the driver of an automobile at the time of the offence, was heldto have infringed the right to be presumed innocent under FC s 35(3)(h), but was upheld under FC s 36, the limitationclause.

2 The terminological confusion may take several forms. In its most benign form, it may involve the charac-terization of the kind of interests at stake. See Alienikoff at 975: ‘Balancing opinions typically pit individual againstgovernmental interests. This characterization, however, is arbitrary. Interests may be conceived of in both publicand private terms.’ Take expression. The individual interest in communicating one’s ideas to others may be statedas a societal interest in a diverse marketplace of ideas. Time, place and manner limitations on expressive behaviourmay be based on a governmental interest in public safety or a private interest in unencumbered access to publicfacilities. In a less benign form, the terminological confusion invites us to make comparisons that cannot be made.See Ludwig Wittgenstein The Blue and Brown Books (1958) 18 (explaining the ‘craving for generality’, whichbalancing reflects, in terms of ‘our preoccupation with the method of science . . . the method of reducing theexplanation of natural phenomena to the smallest number of primitive natural laws’ and suggesting that what worksin the natural sciences obscures our understanding of what works in the social sciences).

3 See New Jersey v TLO (1985) 469 US 325, 369 (Brennan J) (balancing is ‘doctrinally destructive nihilism’);Murray v Ireland [1985] IR 532 (Costello) (balancing talk is often misleading). See also Cass Sunstein ‘ConflictingValues in Law’ (1994) 62 Fordham LR 1661; C Sunstein ‘Incommensurability and Valuation in Law’ (1994) 92Michigan LR 779. See also Martha-Elin Blomquist ‘Review of Gaurino-Ghezzi and Loughran’s Balancing JuvenileJustice’ (1997) 7 Law and Politics Book Review 24 at 25: ‘[T]he authors’ call for ‘‘balance’’ and the vision of‘‘balance’’ they offer (punishment coexisting with accountability, treatment and respect for the youth’s constitutionalrights) are neither new, enlightening nor particularly helpful. The problem facing the juvenile justice system is notso much that the system is single minded, but that with its myriad goals, the system has difficulty translating andaccomplishing these goals in some meaningful ways. [J]ust why ‘‘balance’’ should be pursued and valued as highlyas the authors advocate is far from clear. As a goal, ‘‘balance’’ appears to be one more buzz word like ‘‘rehabilitation’’and ‘‘accountability’’ that is part of the . . . lexicon but is not particularly useful because . . . it lacks . . . content.’

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(aa) Pluralism, incommensurability, complexity and choice

56Why impossible? We do not solely value things in quantitative terms: intensity or utility. Wevalue things in qualitatively differently ways. Furthermore, human beings, generally, do notvalue just one thing in life. Human beings value a vast array of goods. And we value eachgood in our own and its own particular way.

This first claim about pluralism and the qualitatively different ways in which we valuegoods suggests a second claim. Human goods are often incommensurable. It is fair to saythat the things we value most in life ---- friends, lovers, work, beauty, nature, and yes, money---- cannot be compared with one another. Put differently, while we may be able to comparethe virtues of friends with friends, the virtues of lovers with lovers, the virtues of work withwork, the virtues of beauty with beauty, and certainly the virtues of more money with lessmoney, there is no single external template against which we can measure claims offriendship, love, work, beauty, nature and money. They may compete with one another. Butthey compete in a way not easily measured. Indeed, justice may require us to refrain, in sofar as it is possible, from attempts to measure these competing goods by a single yardstick.Michael Walzer puts our second complex claim thusly:

‘There has never been a universal medium of exchange . . . [T]here has never been a singlecriterion, or a single set of interconnected criteria for all distributions. Desert, qualification,birth and blood, friendship, need, free exchange, political loyalty, democratic decision: eachhas had its place, along with many others, uneasily coexisting, invoked by competing groups,confused with one another.’1

From these observations Walzer draws the following conclusions. First, goods, like people,have shared meanings in a society, because goods, like people, are a product of social,political, economic, educational, religious and linguistic practices which generate meaning.Secondly, it is the shared meaning or understanding of a good which determines, or shoulddetermine, its movement and distribution. Thirdly, and perhaps most importantly for Walzer,when the meanings of social goods are distinct their distributions must be autonomous. Thatis, for each good there exists a set of criteria and procedures deemed to be appropriate for itsdistribution.2

One might observe that in rejecting any single measure of distributing goods Walzer haserred on the side of radical incommensurability. The demands of justice ---- even in a worldof plural and incommensurable goods ---- are, in fact, far more complex than Walzer’s account

1 Spheres of Justice (1985) 4. See also John Finnis ‘On Reason and Authority in Law’s Empire’ (1987) 6 Law &Philosophy 357 at 374: ‘[Once one] strips away the last veil hiding the problem of the incommensurability ofthe criteria proposed for identifying a best or uniquely right interpretation, theory or answer . . . [w]e are left with themetaphor: ‘‘balance’’. . . But in the absence of any metric which could commensurate the different criteria . . .,the instruction to balance . . . can legitimately mean no more than bear in mind, conscientiously, all the relevantfactors, and choose.’

2 Justice, on this account, consists in making sure that a social good is distributed in accordance with theappropriate criteria for that sphere of human activity. Injustice, on the other hand, consists in the use of eitherinappropriate criteria for the distribution of goods or, more likely, the use of goods accrued in one sphere of sociallife to determine the distribution of goods in another sphere. For example, the Pope should be selected on the basisof piety, good judgment and knowledge of Catholic dogma, not because he was the son of the previous Pope or hassufficient wealth to renovate the Vatican. Wealth may be an appropriate criterion for the distribution of some goods,but it is not appropriate for ecclesiastical office.



allows. First, spheres of human activity do overlap and thereby complicate the criteria forthe distribution of any particular social good. Secondly, to the extent that some spheres ofactivity are inextricably linked it is inevitable that the distribution of one good will influencethe distribution of another. Thirdly, given the spontaneous, evolutionary manner in whichmost spheres of activity have come into being ---- meaning they are never the product of asingle agent ---- the criteria for the distribution of a social good are rarely going to be clearor conflict-free. The criteria are rarely going to conform to a single scheme of values.Fourthly, not only may criteria within spheres conflict, the individual criteria within the samesphere may be so indeterminate as not to yield a clear result in a given instance. Fifthly,different goods can sometimes be measured along the same metric. We discover on closeranalysis, for example, that friendship and military honour share a common value ---- loyalty;or we find when we look at the constitutional goods of equality and expression that they areundergirded by a common commitment to democratic participation.1 Sixthly, spheres maynot only overlap with one another or through domination affect the unjust distributionof some good. They may also conflict directly with one another. That is, the internal criteriaof two spheres of activity may be such that it is impossible in a given situation to do justiceto both. For instance, a commitment to a clean and unsullied environment may be completelyat odds with a commitment to life, equality and economic development.57 Although this account of the relationship between spheres of activity and various goodsis somewhat more complex than a pure pluralist account, the fact remains that in innumerableinstances goods are incommensurable. Hard choices as to which human good we pursue haveto be made. How do we undertake such decisions? There are, it would appear, three basicoptions.

One could adopt a strict hierarchy of goods. At one time or another ---- never all the time---- we might pursue any of the goods on our list. However, when recognized goods comeinto conflict with one another, we would choose to pursue those goods in order of theirappearance on some hypothetical list.

One could choose the preferred good on an ad hoc basis. No good would have primacyof place and each decision as regards a conflict between goods would depend on theexigencies and sentiments of the moment.

We could adopt some combination of the two approaches. One might have a theory ofgoods ---- a theory of justice really ---- which told us which goods were most valued, in what

1 This general account of incommensurability may strike some readers as just a bit too glib. As this fifth pointsuggests, there are occasions where if we were to think a little more about the nature of the particular values ‘atodds’, we might make some progress towards resolving the conflict. Values may have either instinsic worth orinstrumental worth or both. If value P is valuable only in its service to Q, then the conflict between P and Q, whenit arises, is only apparent. For example, we may believe that democracy (P) is only valuable in so far as it protectsindividual liberty (Q). Or if P and Q are valuable only in light of their service to R, then when they conflict we maybe able to make a clear judgment as to which better serves R. So if we were convinced that democracy (P) andequality (Q) were only valuable in so far as they served the value of community (R), then there might be a way ofdeciding which of the two goods ---- P or Q ---- best served R in a particular instance. In addition, even if our Ps, Qsand Rs are incommensurable, there may be some procedures which are better than others for reconsidering ourintuitions about these values. Rawls, for example, uses the original position to generate his two principles and todefend the priority of the liberty principle over the difference principle. As I suggest below, there may be still otherways of constructively reflecting upon the way we choose between and order incommensurable values.

LIMITATION


circumstances and why. However, in recognizing the heterogeneity and incommensurabilityof goods, this theory would not demand a strict hierarchy of goods. For example, if in ourtheory of goods egalitarian concerns were privileged over autonomy concerns, then we mightexpect that where constitutional goods such as equality and expression came into conflict,the former would generally take precedence over the latter. However, because our theoryrecognized the plurality and incommensurability of goods, there would be circumstances inwhich we might recognize the priority of the latter over the former. Most importantly perhaps,given our recognition of the complexity of the decisions to be made about the just distributionof goods, as well as the tendency of goods to conflict, we would acknowledge that we couldnot map out all of our choices in advance. In fact, there may be many instances in whichmultiple goods press their claims upon us in ways which cannot be easily settled. We arestuck, in such instances, with hard choices.1

58 A word about such hard choices. While we will not be able to choose one good overanother good in such cases without experiencing regret, the choice need not be arbitrary. Wemay still possess and give reasons for our choice. It is just that the reasons given will nothave the same character or form as our general theoretical justifications. They will, underconditions of apparently intractable conflict, have to be much more specific to the circum-stances of conflict itself. This reason-giving process will, ultimately, depend on the exerciseof good judgment.2

(bb) Consequences for limitation analysis

What goes for goods generally goes for constitutional goods in particular. Various constitu-tional goods are incommensurable with one another. Equality is not reducible to freedom.Dignity is not the same thing as expression. Culture is no guarantor of children’s rights. Aswith other kinds of goods, the relationship between constitutional goods is complex.Constitutional goods will share some underlying justifications. They will influence theinterpretation of one another. Each will contain internally inconsistent and indeterminate

1 See John Finnis ‘On Reason and Authority in Law’s Empire’ (1987) 6 Law & Philosophy 357 at 375: ‘A caseis hard, in the sense which interests lawyers, when there is more than one right, i e not wrong, answer.’

2 Charles Lamore Patterns of Moral Complexity (1986) writes in a very similar vein when articulating thefollowing five-fold thesis with regard to the complexity of moral judgment. First, without some external incontro-vertible method by which to measure morality, it is inevitable that rational people will not always agree about whatdecisions to make in a given situation. Secondly, if we recognize the potential for such rational disagreement aboutwhat decision to take in given situations, then ‘we must reckon with a fundamental heterogeneity of morality. Bythis I mean that we have an allegiance to several different moral principles that urge independent claims upon us(we cannot plausibly see the one as a means for promoting the other) and so can draw us in irreconcilable ways’ (at138). Thirdly, given this fundamental heterogeneity of moral values, any ranking of principles is contingent at best.We can expect situations which undermine the ranking and force us to sacrifice a ‘primary’ commitment to a‘subordinate’ commitment. Fourth, the sacrifice does just mean we simply reverse our order of principles in a givencase. There will be many instances in which, as Lamore writes, ‘we find that heeding both sorts of ultimate moralcommitments is at odds with the way the world is, when we cannot do what they tell us we ought to do, [and that]we cannot entertain revising their authority or suspending judgment. We have to live with the fact that we have[dual] obligations we cannot [simultaenously] honor. Our possibilities in the world are then too narrow for what weknow we ought to do’ (at 150). Finally, the application of moral principles requires the capacity to exercise goodjudgment. The principles do not tell us when they must be applied. The moral situations to which the principlesapply do not come to us with labels that we may simply read off.



criteria for application. They will, as a group, lack a set of second-order rules which mighttell us how to reconcile competing goods with one another.1 Most importantly, there will besituations in which constitutional goods will urge independent and irreconcilable claims uponus: in such situations, we will have to choose between incommensurable goods. The examplesset out below are designed to show what such conflict between incommensurable constitu-tional goods looks like.

Environment vs life

59Assume that the government gives the go ahead for a steel plant at Saldhana Bay. In response,a loosely affiliated group of environmentalists, fishermen, members of the ecotourismindustry and local citizens bring an action claiming that the project would violate their rightto a safe and healthy environment. Assume further that the court hearing the case finds aprima facie infringement of the right to a safe and healthy environment. The court must thendecide whether the government possesses sufficient justification for the violation. It mustdecide whether the government’s argument that the project would create the jobs and wealthcitizens in this nation require if they are to lead meaningful and dignified lives satisfies therequirements of the limitation test.

Here is the bind the court finds itself in. You can say that the beauty of Saldhana Bay isworth stopping the development that would create two thousand jobs. Or you can say thattwo thousand jobs are worth far more than a stretch of wetlands and a couple of dolphins.But you are not balancing the two.2 You are saying in one case that you prefer a natural worldpreserved to marginal increases in wealth. Take the other side and you are saying that theimproved lives that come with development ---- better education, better health care, biggercars ---- are worth a lost wilderness. These are different and competing pictures of the world.And while we might like to have both, that is not the way the world works. Choose one. Losethe other. Such is the nature of life.

Expression vs equality

Even with the hate speech exclusion in the new freedom of expression clause, the conflictbetween expression and equality will continue. The source of the conflict ---- or paradox ----is simple. Political participation, and equal participation, is a prerequisite for democracy.However, if you allow all political expression without restriction, including speech offensive

1 Legal rules may be indeterminate in a number of different ways. A first-order rule may be ambiguous orindeterminate. First-order legal rules may conflict with one another. Second-order legal rules, where they exist, maybeequally ambiguous and equally apt to conflict with other second-order rules. For a critical take on this view ofindeterminacy and legal rules, see Lawrence Solum ‘On the Indeterminancy Crisis: Critiquing Critical Dogma’(1987) 54 U Chicago LR 462. See also Anton Fagan ‘In Defense of the Obvious ---- Ordinary Meaning and theIdentification of Constitutional Rules’ (1995) 11 SAJHR 545; Alfred Cockrell ‘Rainbow Jurisprudence’ (1996) 12SAJHR 1 at 5. For a brief discussion of indeterminacy in a constitutional context, see Stuart Woolman ‘Review ofDu Plessis’ and Corder’s Understanding South Africa’s Transitional Bill of Rights’ (1995) 112 SALJ 711 at 714.

2 Balancing could only occur in this scenario if we were comparing rands and cents, jobs vs jobs, GNP vs GNP.Balancing only makes sense when we compare the purely economic interests of the fishermen, the ecoindustrialists,and the steel producers ---- as well as their relative contributions to the overall wealth of the country.

LIMITATION


to some individuals and groups, then you will erect barriers to the full participation of thosewho are targeted by the offensive speech and who feel that they cannot participate equallywhen collective decisions are being taken. However, if you place restrictions on offensivespeech in order to ensure full participation by targeted groups, then the price of theirparticipation is the exclusion from full participation of those who would have otherwiseengaged in the offensive speech. Either way you go, the ultimate goal of a democratic society---- full and equal participation of all citizens ---- appears to be blocked.1 There is no balanceto be struck.

Religion vs public safety and personal security

60In Prince v President of the Law Society, Cape of Good Hope, & others2 Friedman JP andHlophe and Brand JJ were asked to weigh the respective import to our fledgling constitutionaldemocracy of the freedom of religion and the right to a drug-free South Africa.

The matter concerned the refusal by a legal professional body to register an applicant whoprofessed to adhere to the Rastifarian religion, who had two previous convictions forpossession of cannabis in terms of s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992,and who stated his intention to continue to use cannabis for the purpose of religious worship.The Law Society stated that such a person could not be regarded as a fit and proper personfor the registration of legal service. The Prince court upheld the Law Society’s decision.

The Prince court agreed with the applicant that the Act in question infringed theapplicant’s freedom to practise his religion.3 It then moved immediately to the issue ofwhether the criminalization section of the Drugs Act was justified under FC s 36, thelimitation clause. The court rather forthrightly determined that the section of the Drugs Actunder scrutiny was justifiable and therefore constitutional.

In reaching its conclusion, the Prince court had regard to international instruments andwas of the view that ‘cannabis is regarded internationally as a drug, the possession and useof which should be strictly regulated and controlled’.4 The court noted that law enforcementauthorities in the Republic shared a similar view. The court resolved the conflict as follows:‘Balancing the right to religious freedom against the evils which the legislature sought tocombat through the enactment of section 4 of the Drugs Act, applicant’s right to practisehis religion must, in my judgment, be subordinate to the provisions of the Drugs Act’5

(emphasis added).

1 Robert Post calls this conflict the paradox of democracy. See R Post ‘The Constitutional Concept of PublicDiscourse’ (1990) 103 Harvard LR 601; R Post ‘Racist Speech, Democracy and the First Amendment’ (1991) 32William & Mary LR 267. Some readers might wonder whether the example does the work I ask of it. They mightclaim that the real value at issue is full participation and that any way we go there are limits to its realization. (Orthey might claim that the offensive speech doesn’t erect barriers to full participation ---- but that’s really asociological issue). However, the heart of the conflict here is individual autonomy versus group equality. The rightto say anything is generally associated with the value of autonomy. The right not to be the object of offensive speechis generally associated with equality. Whichever way one characterizes the values at stake, both cannot be served.

2 1998 (8) BCLR 976 (C).3 The court accepted (at 991B) that ‘cannabis is used by adherents of the Rastafarian religion as part of their

religious observance’.4 At 985H.5 At 988I.



61 The court rejected an exemption for those persons using cannabis for bona fide religiouspurposes on the grounds that such an exemption ‘would place an additional burden on thepolice and the courts, both of which are operating under heavy pressure because of the generalcrime situation in this country’. The Prince court offered absolutely NO evidence at all tosupport this claim.1 Indeed, the court took notice of the North American jurisprudence ---- byreference to judicial decisions and statutes ---- in which exemptions were granted for the useof peyote for religious purposes.2 Thus, the court could easily ---- had it wanted to ---- havehad it both ways: (1) it could have upheld the statute, our bulwark against crime; and (2) itcould have created a limited exemption for the religious use of cannabis, much as anexemption has been made in years past for wine use during the sacraments. And yet it choosenot to grant this most Solomonic and equanimious of decisions. Strangely enough, however,this failure of will by the court ---- the failure to balance that which could have been balanced---- just brings our more basic point into sharper relief. The real issue for the Prince court isnot the balancing of equally important though incommensurable goods. It has no interest insuch a Sisyphean task. For the Judge President and his fellow judges the real issue is a choicebetween competing visions of the world: one world in which long-haired strangers are freeto smoke pot and another world in which free to smoke they are not.3

(cc) What to make of the foregoing examples

The first point, of course, is that we are often called upon to make such comparisons ---- anddecisions ---- when we do limitation analysis. The second, and more important, point is thatwhen we say that such comparisons generally involve the balancing of interests we distortthe truth. It is no more than a form of linguistic alchemy to say that we can convert wetlandsinto jobs, jobs into wetlands, place them both along a list of relevant factors for balancinganalysis, and come up with an answer to our problem. What we have is a choice ---- an oftenunenviable choice ---- about how we wish the world to look, what kind of world we wish tolive in.4

1 The court did, however, assert that allowing an exception would be contrary to South Africa’s internationalobligations (at 989A). It did not say why exactly this would be so.

2 At 989C--J.3 For an interesting discussion of this issue, see Graeme McLean ‘Freedom of Religion and State Neutrality:

A Philosophical Problem’ (1997) 114 SALJ 174.4 Consider, says John Rawls Political Liberalism (1993) 243n32, ‘the troubled question of abortion . . . Suppose

. . . that we consider the question in terms of these three important political values: the due respect for human life,the ordered reproduction of political society over time, including the family in some form, and finally the equalityof women as equal citizens . . . I believe that any reasonable balance of these values will give a woman a dulyqualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that atthis early stage of pregnancy the political value of women’s equality is overriding.’ Rawls may be right in result. (Itis unsettling, however, that Rawls’ result tracks so closely the Supreme Court’s decision in Roe v Wade 410 US 113(1973).) But the assertion that some sort of balancing yields this result doesn’t seem to tell us what took place orwhat happened to the other two values. How did Rawls decide they were of secondary or tertiary import? Perhapsthe real failure is that what we have come to call public reason has taken on such a pale cast that it cannot carry theburdens of persuasion that we require of it. When we say we are comparing goods that often defy comparison, whenwe say we are ticking off factors to see which good weighs more, when we cannot say what a trimestral cut-offpoint has to do with the value of life or the ordered reproduction of political society over time, we know that thereis something unsatisfying about the way we talk about these issues. Perhaps one source of the problem is theshort-circuiting of discussion which takes place when we employ the metaphor of balancing.

LIMITATION


(iii) Limitations without balancing: theory and practice

62Given the limits of balancing, there would seem to be little reason to believe that even deepthinkers will be able to give us a theory of limitations that enables us to reconcile theincommensurable. That said, the foregoing analysis does offer the opportunity to do morewith limitation analysis than we have thus far. At this juncture, the following constructivecourse of action recommends itself.

First, we should attend to the current tests ---- tried and true ---- available to us.We must ensure that laws, rules, regulations and directives found to infringe fundamental

rights are truly laws of general application. By weeding out ex post facto punishments aswell as arbitrary, imprecise, non-general, ad hoc, and non-public, non-ascertainable edicts,this limitation requirement places a brake on discriminatory behavior by our law-makingbodies and represents another effort at ensuring that all branches of our government followthe appropriate democratic mechanisms for creating law.

We should pay especially careful attention to whether the objective of the law underscrutiny during limitation analysis warrants the infringement of a right in a open anddemocratic society based on human dignity, equality and freedom. Denise Meyerson, in herrecent work Rights Limited, makes a powerful case for viewing this threshold test as alinchpin of South African constitutional analysis. She demonstrates how the need for all law‘to conform to the standards an open and democratic society based on human dignity, equalityand freedom generates . . . a distinctive and principled test of use in determining whatabridgements of constitutionally protected rights majorities are and are not competent tomake’.1 In short, she draws on recent work in political philosophy by Thomas Nagel, JohnRawls, Charles Lamore and Jurgen Habermas to develop a threshold test in which,

‘. . . in disabling the majority from taking up any position about the scope of constitutionalrights which is inconsistent with respect for equality and freedom, [this leg of the limitationtest] . . . demand[s] that the justification for whatever position is taken up should be onewhich would win the consent of all reasonable citizens’.2

Assuming that our law has cleared these two high hurdles, and that the party seeking touphold the law has satisfied the court that the means the law employs are rationally relatedto the ends it seeks to achieve, all courts should take the utmost care in determining whetherthe law or rule at issue could employ means of achieving its objectives which are far lessrestrictive ---- and perhaps less transgressive ---- of the rights of the aggrieved party. I thinkthis threshold test especially important because if it is applied vigorously, then we can avoidmany of the difficulties associated with ‘balancing’. As I have argued elsewhere,3 while atest that determines whether a right’s violation impairs the right no more than absolutelynecessary and a test that weighs the costs and the benefits of a law impairing the exercise ofa right are analytically distinct, the two tests generate remarkably similar results. Indeed, it

1 Denise Meyerson Rights Limited (1997) xxvii--xxviii.2 At 11.3 S Woolman ‘Riding the Push-me Pull-you: Constructing a Test that Reconciles the Conflicting Interests which

Animate the Limitation Clause’ (1994) 10 SAJHR 60, 89n80.



should be rare for a legal measure to fail one test and pass the other. The reason for this nearidentity in result is simple. If a restrictive measure is not as narrowly tailored as possible,then it is very likely to impose far greater than acceptable costs on the persons affected thanwould a much more narrowly tailored restriction.63 Secondly, we should work harder at developing theories which more clearly and expansivelyarticulate the principles which animate an open and democratic society based on humandignity, equality and freedom. Judges, faced as they are with the exigencies of the casesbefore them, are institutionally less well disposed and philosophically generally less inclinedto use cases to build nations. Academics have no such excuse. And yet after almost five yearsof this remarkable and vibrant constitutional dispensation, only one work of any magnitudehas been produced: Denise Meyerson’s Rights Limited. Although it modestly claims to be aconcise commentary on the limitation clause, it is actually nothing of the sort.1 Its discussionof the wording of the limitation clause is simply a clever pretext for enunciating what it isthe most sustained and sophisticated attempt yet at providing a coherent interpretive frame-work for South African constitutional jurisprudence.

Thirdly, this call for papers comes with a detailed proviso. While we can and must producemore and better theories about exactly what kind of nation our Constitution commits us to,theory can only take us so far. What we require from all those who participate in theexplication of our constitutional project are detailed depictions of exactly what they expectour society to look like. For lack of a better phrase, I call this a picture theory of constitutionalpolitics.

As I have suggested at length elsewhere,2 theory has its limitations when it comes tolimitation analysis. We may have fairly intricate theories about the content of freedom ofexpression or the ambit of the right to education. We may have somewhat more generaltheories about what such grundnorms as equality, freedom, democracy, openness and humandignity demand. We may even have a very rough idea of a political philosophy that drivesour entire constitutional project and gives us some sense of how these disparate freedoms,rights and grundnorms hang together.

But when it comes to doing the kind of detail work that limitation analysis requires ofus, theory ---- at least at the level of grundnorm or grand political philosophy or some systemthat purports to explain it all for us ---- starts to take on a rather pale cast. Theory startsto give out at this point for reasons that I have already identified in the discussion ofbalancing: there is a plurality of incommensurable goods; the meaning of specific goodsis often controversial and mutable; there is a number of ‘rational’ ways of orderingsuch diverse goods; in a heterogeneous society people will invariably differ about howbest to arrange society and individual lives; and individuals themselves will not be certainabout how to order those diverse and competing goods from time to time and situation tosituation.

1 Indeed, Justice O’Regan’s foreword ---- at vii the Justice writes ‘the main focus of this book is [the limitationclause]’ ---- is part of the ruse.

2 S Woolman ‘Out of Order? Out of Balance? The Limitation Clause in the Final Constitution’ (1997) 13 SAJHR102, 119--34 (on a picture theory of constitutional politics and a storytelling approach to limitation analysis.)

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64 What follows is that there will be many instances when we do limitation analysis whenit will be impossible to say that our understanding of constitutional politics dictates that oneright or interest must, inevitably, take precedence over another right or interest. In suchsituations, we will be forced to make hard choices that draw on a combination of high theory,rules of thumb and storytelling.

Again this approach is hardly meant to signal that theory has a limited or diminished roleto play in constitutional politics. On the contrary, theory plays a critical role in both thecreation and the refinement of our constitutional commitments.1 My picture theory ofconstitutional politics simply pushes the thesis that in the many hard constitutional cases thatthe courts face, theories and rules do not yield a uniquely specifiable set of responses.2

So the world in all its irreducible complexity rarely yields entirely to theory. When ourtheories and our rules of thumb run out, we rely again on stories and pictures, albeit moresophisticated stories and pictures, about and of the world we wish to live in. Indeed, doingjustice to the competing claims of goods in our constitutional democracy ought to reflect aneffort to make our gut sense of justice clearer: and this we can do not solely through bettertheory but by painting more detailed pictures and telling more nuanced stories about howwe think our lives are ordered and how we think they ought to be ordered. Ultimately whatI want from our judges, lawyers, academics and practitioners in urging this storytellingapproach to limitation analysis upon them is that they come as close as is humanely possibleto meeting the challenge of Martha Nussbaum’s ethical claim that ‘our highest and hardesttask is to make ourselves people ‘‘on whom nothing lost’’ ’.3 In rising to this challenge, Ibelieve that our jurists will discover new and creative ways to think about what we ought todo when we compare incommensurable goods during limitation analysis.

12.14 PURPOSE OF SECTION 36(2) OF THE FINAL CONSTITUTION

‘Except as provided for in subsection (1) or any other provision of this Constitution, nolaw shall limit any right entrenched in the Bill of Rights.’Section 36(2) is substantially the same as its predecessor, s 33(2) of the interim Constitution.First, it tells us that in order for a law legitimately to limit a right entrenched in Chapter 2 itmust satisfy the test set out in s 36(1). Secondly, it retains the problem phrase ‘any other

1 Indeed, the claims I put forward above constitute a ‘theory’ of how one ought to undertake limitation analysis.The ‘theory’ reflects a refinement of what the text says. I set out steps to take, questions to ask, discrete justificationsfor these steps and questions, and a global justification for the approach adopted ---- and I believe that the courts’handling of limitation analysis would improve if they took some of the theoretical arguments offered seriously.Furthermore, we need theories to help us to decide which kinds of stories tell us where justice lies. Everyone in acourtroom ---- litigants, judges, lawyers and witnesses ---- has a story to tell. What we want are theories which tellus why certain stories should be heard and made law, and why others should be excluded and inform ourunderstanding of injustice. In sum, theorists and theories should enable us to refine our stories through logic,clarification, criticism and conversation.

2 For more on the decision-generating limits of moral theory, the inevitable need for the exercise of judgment,and the story of a hostage told to shoot one of his fellow hostages or watch all ten of his friends be shot, see C LamorePatterns of Moral Complexity at 131--50.

3 ‘ ‘‘Finely Aware and Richly Responsible’’: Moral Attention and the Moral Task of Literature’ (1985) 82 Journalof Philosophy 415, quoting Henry James The Art of the Novel (1907) 149.



provision of this Constitution’. The phrase seems to suggest that limitations on fundamentalrights may be justified not by satisfying the rigorous test set out in s 36(1), but, whereappropriate, by reference to other provisions in the Constitution. On a strong reading of thephrase, where a legal power conferred by another provision of the Constitution conflicts withthe dictates of a provision in the Bill of Rights, the former trumps the latter. As I have arguedabove in § 12.9, there is a better reading. First, we should not assume that another provisionof the Constitution contemplates limitation of a fundamental right entrenched in the Billof Rights unless there are clear textual indications that such a limitation is intended.Secondly, we should not necessarily assume a hierarchy of constitutional provisions whichautomatically subordinates the rights enshrined in the Bill of Rights to the various govern-ment powers provided for elsewhere in the text.1

65 There is one noteworthy difference between s 36(2) and its predecessor. Section 36(2)deletes the modifying clause ‘whether a rule of common law, customary law or legislation’that followed the phrase ‘no law’ in IC s 33(2). The drafters appear to have recognized thatthe purpose of s 36 is to set the parameters for limitations on the Bill of Rights and not toestablish the reach of the Bill.2

The case of De Lille & another v Speaker of the National Assembly3 affords us anopportunity to consider several of the constructions of s 36(2) canvassed above. In De Lillethe applicant was found by Parliament to have violated alleged rules of parliamentaryprivilege. She was duly punished and suspended. The question for the court in short waswhether provisions of the Constitution dealing with the powers of Parliament could justifi-ably limit the constitutional rights of the applicant, especially the rights to administrativejustice, political participation and freedom of expression.

Parliament had taken the position that the rules of parliamentary privilege ---- whichgenerally involve the power of the National Assembly to order its own affairs ---- wereeffectively immune from constitutional analysis, and therefore, judicial review. The De Lillecourt rejected this view (almost) in toto.66 The De Lille court observed that in terms of FC s 2 the Constitution is the supreme lawof the Republic and any law or conduct inconsistent with the Constitution is invalid. Thecourt then noted that according to s 8(1) the Bill of Rights applies to all law and binds thelegislature, the executive, the judiciary and all organs of state.4 On this view, any privilege

1 For more on this point see above, § 12.9. 2 For further discussion of this point see above, § 12.9.3 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C) (Hlophe J).4 Judge Hlophe writes further in this regard at 452: ‘Ours is no longer a parliamentary state. It is a constitutional

state founded on the principles of supremacy of the Constitution and the rule of law. A new political andconstitutional order has been established in South Africa. The new Constitution shows a clear intention to breakaway from the history of parliamentary supremacy. There are many other provisions in the Constitution which donot support Mr Heunis’ contention. For example: (i) s 1(c) says the Republic of South Africa is a democratic statefounded on the supremacy of the Constitution and the rule of law; (ii) s 2 provides that the Constitution is thesupreme law of the Republic and law or conduct inconsistent with it is invalid; (iii) s 34 states that everyone hasthe right to have any dispute that can be resolved by the application of the law decided in a fair public hearing beforea court of law or, where appropriate, another independent and impartial tribunal or forum; (iv) s 38 entitles anyonealleging that a right in the Bill of Rights has been infringed or threatened to approach law courts for appropriaterelief; (v) s 165(3) provides that no person or organ of state may interfere with the functioning of the courts;(vi) s 172(1)(a) provides that when a court decides a constitutional matter within its power it must declare that anylaw or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; (vii) s 8 providesthat the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state;and (viii) other relevant sections include s 165(2), s 39(1)(a) and 39(2).’

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inconsistent or incompatible with the Constitution ---- even if drawn from the provisionsof the Constitution itself ---- must also be found invalid. In the De Lille case the extent ofprivilege was so inextricably bound up with the exercise of the privilege that the two couldnot be distinguished. The De Lille court was therefore obliged to hold that the determinationof the extent of privilege must relate to its exercise, and that both must therefore be subjectto judicial review ---- otherwise Parliament would have a blank cheque to set the limits of itsown powers.1 Most importantly, the court held that where a parliamentary privilege isexercised in breach of constitutional provisions, and in particular the Bill of Rights, it is theconstitutional obligation of the courts to ensure an individual’s rights are vindicated throughthe provisions set out in Chapter 2. One reasonably strong conclusion can be drawn from theDe Lille court’s line of reasoning: where another provision of the Constitution appears tocontemplate a limitation of a fundamental right, no such limit should be permitted withoutclear and convincing textual evidence.2

1 At 446G/H--447B/C (Hlophe J).2 Indeed, further support for this conclusion can be drawn from the De Lille court’s judgment (at 455) that ‘[t]he

freedom of speech conferred by s 58(1) was an absolute freedom in the sense that it was subject only to the rulesand orders of the Assembly. It was not subject to the limitations clause contained in s 36 of the Constitution.’ Thus,the freedom of speech afforded by s 57 of the Constitution was reinforced by s 16 of Constitution, and not open toany ‘reasonable’ attempt to limit the freedom’s ambit under s 36(1).



Documents

12 Limitation - Centre for Human Rights, University of … S v Zuma & others 1995 (2) SA 642 (CC), 1995 (1) SACR 568 (CC), 1995 (4) BCLR 401 (CC) at 414 (fundamental rights analysis