Chapter 6 - Limitation of rights

Question 1

Importance of the general limitation clause

Answer 1

1. Section 36 makes it clear that the rights in the Bill of Rights may only be limited if a number of strigent requirements have been met. Fundamental rights may therefore never be limited simply because it is convenient to do so.
2. In cases in which a fundamental right has been limited, the state (or other party seeking to justify the limitation) is given the opportunity to show why it considers the limitation to be reasonable and justifiable in an open and democratic society. To end this, the state is required to adduce evidence to show that the purpose of the limitation is important.

Question 2

The limitation inquiry

Answer 2

1. The court first asks whether the right is limited in terms of a law of general application. If there is no law of general application, the application cannot be justified and there is no need to proceed to the second leg of the inquiry.
2. Is the limitation reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom?

Question 3

Factors to be taken into account when determining whether a limitation is reasonable and justifiable?

Answer 3

1. The nature of the right
2. The importance of the purpose of the limitation
3. The nature and extent of the limitation
4. The relation between the limitation and its purpose; and
5. Less restrictive means to achieve the purpose.

Question 4

Purpose, effects and importance of the limitation, and less restrictive means to achieve the purpose

Answer 4

In S v Makwanyane, it was found that the rights affected by the death penalty were fundamentally important and that the death penalty constituted a severe and irrevocable infringement of these rights, For these reasons, the state needed a particularly compelling justification for the limitation of these rights.

Question 5

Dermacation of rights, and limitation clause

Answer 5

Some of the rights in the Bill of Rights are textually qualified. For instance, section 9(3) guarantees the right not to be unfairly discriminated against, while section 17 protects the right to assemble, demonstrate, picket and present petitions peacefully and unarmed.