Limitation of Rights

Question 1

In what case was the s36 analysis set out?

Answer 1

Christian Education

Question 2

When is the s36 analysis important/relevant?

Answer 2

When a right has been infringed.
- some limitations are justifiable in an open and democratic society, so s36 determines whether the limitation is justifiable.

Question 3

What is the process when dealing with a limitation as was set out in Christian Education?

Answer 3

Firstly: are the three requirements for a law of general application met?
Secondly: proportionality analysis is done, part of which is a reasonable accommodation test.

Question 4

When can we limit a right in the BOR?

Answer 4

As per s36 of the CSA:
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
- nature of the right, importance of the purpose of the limitation, nature and extent of the limitation, the relation between the limitation and its purpose, less restrictive means to achieve the purpose.

Question 5

What does s7(3) of the CSA tell us?

Answer 5

rights are not absolute, and can be limited by s36(1), elsewhere in the CSA, and ‘elsewhere in the CSA’
- this means: some rights are unqualified (i.e., nothing tells us the content or scope - e.g., right to life), have internal limitations (e.g., s9(3) says that only discrimination that is UNFAIR is prohibited), there are also modifiers (i.e., scope is given… “which includes/excludes”)
- SO, only once the internal limitation/modification has been applied, do you go to s36(1)

Question 6

What are the two stages of s36 application?

Answer 6

Infringement
- finding the scope/content of the right
- has it been infringed?
Limitation
- was it via law of general application?
- if so, was it reasonable and justifiable? taking into account provisors of s36 - nature of the right, importance of the purpose of the limitation, nature and extent of the limitation, relation between the limitation and its purpose; and less restrictive means to achieve the purpose

Question 7

When examining infringement, how do we determine the scope and content of a right?

Answer 7

Determining the scope and context:
- trying to determine what the right protects
- the interpretation of the BOR (while paying attention to the language used) must be ‘generous’, ‘purposive’, and ‘give expression to the underlying values of the CSA.’ (Makwanyane)
- need to understand rights in their textual setting, and within their social and historical context (Grootboom)

Question 8

When examining infringement, how do we determine the limitation?

Answer 8

Need to balance General Application, Global and non-sequential approaches.

Question 9

What is law of general application?

Answer 9

A right in the BOR can only be limited by a law of general application.

Hugo (p102)
1. Accessibility - i.e., has to apply the rule of law principles (equality, democracy etc.)
2. Precision - needs to be precise and correct
3. General Application - has to apply broadly, can’t target specific groups.
SO, if there is no law of general application, the limitation is invalid and unconstitutional.

Question 10

Why do we only limit by law of general application?

Answer 10

Democracy
- i.e., Bill of Rights should be limited only by laws passed by a democratically elected legislature as representative of the people
- AND, the commitment to the rule of law limitations should apply equally to all and should not be arbitrary in their scope and application.

Question 11

What is the character of a law of general application?

Answer 11

Found in Hugo, para 102.
- ‘The need for accessibility, precision and general application flow from the concept of the rule of law. A person should be able to know of the law, and be able to conform his or her conduct to the law. Further, laws should apply generally, rather than targeting specific individuals.’

Question 12

What is a law of general application? (examples)

Answer 12

• A decision by a shopping centre to ban protests there (limitation of the right to protest)
• A decision by the IEC (a public body) not to provide infrastructure that allows prisoners to vote (limit on the right to vote, August v Electoral Commission)
• Contract between private persons Dladla v City of Johannesburg (wasn’t a law, but was a limit on right to dignity, privacy etc.)
• CAN INCLUDE: the common law, legislation, customary law, national and provincial legislation, regulations, municipal bylaws, rules of court, domesticated international conventions.

Question 13

What was the approach to rights limitations that the court took in Makwanyane?

Answer 13

The court decided against structured proportionality, instead chose a ‘global’, ‘non-sequential’, ‘broad balancing’ approach

Question 14

What is ‘broad balancing’?

Answer 14

‘In essence, the Court must engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list.
- As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be.
- Ultimately, the question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be protected
- Each particular infringement of a right has different implications in an open and democratic society based on dignity, equality and freedom. There can accordingly be no absolute standard for determining reasonableness.”
S v Mandamela paras [32]-[33]

‘To sum up: limitations on constitutional rights can pass constitutional muster only if the Court concludes that, considering the nature and importance of the right and the extent to which it is limited, such limitation is justified in relation to the purpose, importance and effect of the provision which results in this limitation, taking into account the availability of less restrictive means to achieve this purpose.’
Christian Education para [31]

Question 15

What is the alternative, sequential approach to the global approach that the court takes?

Answer 15

1. Legitimacy of Purpose: What is the purpose of the limitation and is it legitimate in an open democratic society?
2. Rationality: What is the relationship between the limitation and its legitimate purpose? Are they rationally connected?
3. Necessity: Are there alternative, less restrictive means?
4. Overall balancing or ‘proportionality stricto sensu’: Is the limitation proportional, taking into account the extent of the infringement, the nature of the right, the breadth of the limitation and the social good it achieves?

Question 16

What is the critique of the global approach?

Answer 16

Following from the above, the core of the critique of the Court’s ‘global approach’ is that some of the factors in s 36 should be treated as threshold questions – thus, if there is no legitimate purpose for the limitation and if the legitimate purpose has not been achieved, the inquiry should end there. Thus, the court’s global approach is said to be:

a. Illogical – if something has no legitimate purpose, it can never be proportional
b. Create extra work for court: why consider the other factors when there’s no legitimate purpose?
c. Analytically unsound – creates a vague analysis of the decision-making process
d. Reduces precedential value

Question 17

What is Reasonable Accommodation?

Answer 17

Pillay:
‘But what is the content of the principle? At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms.’

Christian Education:
Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.’

Question 18

What are the concerns about reasonable accommodation in terms of separation of powers?

Answer 18

Prince:
‘The search for an appropriate accommodation in this frontier legal territory accordingly imposes a particularly heavy responsibility on the courts to be sensitive to considerations of institutional competence and the separation of powers. Undue judicial adventurism can be as damaging as excessive judicial timidity.

Question 19

What is the burden of justification?

Answer 19

• The general principle was set out by Chaskalson P in Makwanyane when he held that ‘[i]t 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’.
• Failure to bring evidence of the proportionality of limitation – your claim that limitation is justified may fail– especially if policy-based arguments not made.
• In some cases – judicial knowledge and common sense relied on.